SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE YEAR ENDED DECEMBER 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____________ TO ____________.
AMERIPATH, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 65-0642485
(State or Other Jurisdiction (I.R.S. Employer
Incorporation or Organization) Identification No.)
7289 GARDEN ROAD, SUITE 200, RIVIERA BEACH, FLORIDA 33404
(Address of Principal Executive Offices)
Registrant's Telephone Number, Including Area Code: (561) 845-1850
Securities Registered Pursuant to Section 12(B) of the Act:
Securities Registered Pursuant to Section 12(G) of the Act:
COMMON STOCK (PAR VALUE $.01 PER SHARE)
(Title of Class)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
The aggregate market value of voting stock held by non-affiliates of
the Registrant as of March 10, 2000 was approximately $196.9 million based on
the $9.938 closing sale price for the Common Stock on the NASDAQ National Market
System on such date. For purposes of this computation, all executive officers
and directors of the Registrant have been deemed to be affiliates. Such
determination should not be deemed to be an admission that such directors and
officers are, in fact, affiliates of the Registrant.
The number of shares of Common Stock of the Registrant outstanding as
of March 10, 2000 was 21,580,687.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's definitive Proxy Statement relating to the
Registrant's 2000 Annual Meeting of Shareholders to be filed with the Securities
and Exchange Commission no later than 120 days after the end of the year covered
by this Report are incorporated by reference into Part III of this Report.
<PAGE>
INDEX TO ITEMS
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PART I
Item 1. General Business 1
Item 2. Properties 16
Item 3. Legal Proceedings 16
Item 4. Submission of Matters to a Vote of Security Holders 16
PART II.
Item 5. Market for the Registrant's Common Stock and Related
Stockholder Matters 17
Item 6. Selected Financial Data 17
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations 19
Item 7A. Quantitative and Qualitative Disclosures about Market Risk 29
Item 8. Financial Statements and Supplementary Data; Index to
Consolidated Financial Statements 29
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure 29
PART III.
Item 10. Directors and Executive Officers of the Registrant 30
Item 11. Executive Compensation 30
Item 12. Security Ownership of Certain Beneficial Owners and Management 30
Item 13. Certain Relationships and Related Transactions 30
PART IV.
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K 31
Exhibits 31
Signatures 35
Financial Statements F-1
Financial Statement Schedules S-1
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PART I
ITEM 1. GENERAL BUSINESS
AmeriPath, Inc. and its subsidiaries ("AmeriPath" or "the Company") is
the nation's leading integrated physician group practice and laboratory
management company focused on providing anatomic pathology diagnostic services,
based on an analysis of geographic breadth, number of physicians, number of
hospital contracts, number of practices and net revenues. Since inception, the
Company has acquired or affiliated with 44 physician practices (the "Practices")
located in 13 states. The 297 pathologists employed by the Company provide
medical diagnostic services in outpatient laboratories owned and operated by the
Company, hospitals, and outpatient ambulatory surgery centers. Of these
pathologists, 293 are board certified in anatomic and clinical pathology, and
133 are also board certified in a subspecialty of anatomic pathology, including
dermatopathology (study of diseases of the skin), hematopathology (study of
diseases of the blood) and cytopathology (study of abnormalities of the cells).
As of December 31, 1999, 24 Practices had contracts with a total of 164
hospitals to manage their clinical pathology and other laboratories and provide
professional pathology services. The majority of these hospital contracts are
exclusive provider relationships of the Company. The Company has 29 outpatient
laboratories, of which 13 operate in conjunction with hospital laboratories.
STATISTICAL DATA:
DECEMBER 31,
1997 1998 1999
---- ---- ----
/bullet/ Pathologists 133 226 297
/bullet/ Hospital Contracts 75 125 164
/bullet/ Employees 994 1,346 1,595
/bullet/ Outpatient laboratories 16 21 29
The Company essentially operates as a pathology group practice and is
legally structured so as to comply with the different laws dealing with the
corporate practice of medicine. Refer to the section entitled "AmeriPath
Corporate Structure; Owned and Affiliated Practices; Hospital Contracts and
Laboratories" for a more detailed discussion of the Company's legal structure in
the various states.
AmeriPath manages and controls all of the non-medical functions of the
Practices, including:
/bullet/ recruiting, training, employing and managing the technical and
support staff of the Practices;
/bullet/ developing, equipping and staffing laboratory facilities;
/bullet/ establishing and maintaining courier services to transport
specimens;
/bullet/ negotiating and maintaining contracts with hospitals, national
clinical laboratories and managed care organizations and other
payors;
/bullet/ providing financial reporting and administration, clerical,
purchasing, payroll, billing and collection, information
systems, sales and marketing, risk management, employee
benefits, legal, tax and accounting services;
/bullet/ maintaining compliance with applicable laws, rules and
regulations; and
/bullet/ providing slide preparation and other technical services for
the Practices.
During 1999, the Company acquired 10 Practices in six states (adding a
total of 71 pathologists): eight of these were in states in which the Company
previously operated (Pennsylvania, Wisconsin, Florida, and Texas) and two were
in additional states (Georgia and Michigan).
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ANATOMIC PATHOLOGY; INDUSTRY OVERVIEW
Pathologists are medical doctors who specialize in the science of
pathology, the study of disease. Following college and medical school,
pathologists typically spend five or more years to become eligible to sit for
certification by the American Board of Pathology in anatomic and clinical
pathology. Many pathologists spend additional years of training to receive
certification in subspecialty areas of pathology such as dermatopathology (study
of diseases of the skin), hematopathology (study of diseases of the blood and
bone marrow), immunopathology (study of diseases of the immune system), and
cytopathology (study of abnormalities of cells).
Anatomic pathology involves evaluating tissues (surgical pathology) and
cells (cytopathology) through variable magnifications using a microscope. In
surgical pathology, the goal of such microscopic evaluations is to make a
definitive diagnosis of a patient's disease. Virtually all tissues removed from
patients during surgery (hence the term "surgical" pathology) are examined under
the microscope by pathologists in order to determine whether or not a disease is
present; examples of surgical pathology specimens seen by pathologists include
breasts, prostate, skin, and bone marrow biopsies. Thus, pathologists play an
indispensable role in determining whether a patient's illness is benign,
inflammatory or cancerous. The surgical patient's subsequent treatment almost
always depends on the diagnosis rendered by the surgical pathologist. For this
reason, doctors often refer to pathologists as the "physician's physician" a
compliment that acknowledges the fact that the pathologist's diagnosis
represents a critical factor in determining a patient's future care.
Pathologists receive tissue samples from surgical procedures performed
on both inpatients (patients seen in hospitals) and outpatients (patients seen
in physician offices and in ambulatory surgery centers). Subspecialties within
the area of surgical pathology include dermatopathology and hematopathology. The
Company currently employs almost 300 pathologists who are board certified in
anatomic pathology; over 130 of them have additional subspecialty board
certification.
Cytopathology involves the evaluation of cells under the magnification
of a microscope. Pathologists examine cells obtained from body fluids, from
solid tissues aspirated through needles and from scrapings of body tissues. The
most widely known cytopathologic examination is the "Pap" smear, developed by
George Papanicolaou in 1940. A conventional "Pap" smear consists of a scraping
of cells taken from the cervix, spread on a slide, stained with a dye to color
the cells, and examined by a pathologist using a microscope. To help reduce the
number of false negatives, another form of cell accumulation was developed. This
mono-layer technology collects a sample from the cervix using a cyto-brush,
which is then rinsed into a vile filled with preserved solution. The cell
solution is processed at a laboratory by a technician. The device filters the
blood and mucous and spreads cells in a thin layer, making the slide easier to
read. Despite the higher cost of mono-layer methods, the technology is rapidly
gaining acceptance in the medical community. "Pap" smears are considered
screening tests, which provide another physician with information that suggests
whether or not a potentially dangerous condition is present. If an abnormality
is detected, the pathologist recommends what additional diagnostic procedures
(such as biopsy of the affected tissue) may be necessary. Other cytopathology
examinations may, in and of themselves, be diagnostic of a specific disease
condition. As with surgical pathology specimens, cytopathology specimens may
come from hospitalized patients, from patients in ambulatory surgery centers,
from patients being seen in private physician offices, from clinics, or from
pathologists taking aspiration biopsies directly from patients. Experts in this
subspecialty of pathology are called cytopathologists. All of the Company's
anatomic pathologists possess board certification that qualifies them to read
cytology cases. Of these pathologists, 60 also are board certified
cytopathologists.
Clinical pathology represents the second major category of pathology.
Broadly defined, clinical pathology involves the study of diseases identified by
analyzing blood or other body fluids such as urine or spinal fluid (the liquid
that surrounds the brain and spinal cord). Frequently, high volume, high
technology automated equipment performs these analyses. Pathologists'
responsibilities related to automated testing revolve around their roles as
medical directors and clinical consultants. Pathologists are legally responsible
for the validity and accuracy of clinical laboratory test results and for the
function of the clinical laboratory under the federal Clinical Laboratory
Improvement Act of 1988 ("CLIA"), for identifying additional diagnostic and/or
therapeutic approaches suggested by the laboratory result; and for discussing
the possible clinical significance of laboratory results with attending
physicians in light of the patient's history and symptoms.
In other words, pathologists play a critical role in ensuring that
laboratory tests are performed accurately and in a timely fashion. Once again,
the pathologist's role as a "physician's physician" makes a critical
contribution to the proper diagnosis and efficient management of patients with
virtually every disease. Modern healthcare would not be possible without such
invaluable supervision of the clinical laboratory.
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Pathologists perform their duties in laboratories within hospitals,
within free standing local, regional, and national laboratories independent of
hospitals, within ambulatory surgery centers, and within a variety of other
settings. Because tissue and fluid samples are readily transportable,
pathologists working within one of these settings may actually receive specimens
for evaluation and diagnosis from multiple sources including physician offices,
clinics, other laboratories, and even other hospitals. This ability to deliver
work to sites having capacity to handle additional volume enhances the
pathologists' productivity and allows a pathology practice to serve a larger
geographic area. The Company uses this strategy to ensure the growth of "same
practice net revenues," while making its pathologists more productive and
efficient, and enabling the Company to better serve the customer by utilizing
the specialized expertise available within the Company's pathologists.
The Company focuses on providing its inpatient anatomic and clinical
pathology services at hospitals and outpatient anatomic pathology services to
nonhospital clients. Based on a study prepared for the Company, the Company
believes that, as of 1995, the domestic market for nonhospital outpatient
pathology services was approximately $2.1 billion; for inpatient pathology
services in hospitals with 400 or fewer beds, the market was approximately $1.1
billion.
The Company expects the market for anatomic pathology services to grow
primarily due to the aging of the United States population, the increasing
incidence of cancer, and accelerating medical advancements that allow for the
earlier diagnosis and treatment of diseases. The American Cancer Society
estimates that approximately 13 million Americans alive today have had, or still
have, some form of cancer and in 2000, about 1.2 million new cancer cases are
expected to be diagnosed, 47,700 of which will be new melanoma cases. Studies
published by the American Cancer Society revealed that there were approximately
1.3 million new cases of non-melanoma cases (basal cell carcinoma and squamous
cell carcinoma) diagnosed in 1999. According to the information published by the
American Medical Association, there are approximately 14,000 practicing
pathologists in the United States.
Current trends within healthcare may accelerate the demand for the
Company's services. Healthcare cost containment pressures, the increasing
influence of managed care, and medical and technological advancements drive
hospitals to reduce the length of patient stays, decrease the number of
procedures being performed as inpatients, and increase the number of procedures
shifted to the outpatient setting. The Company expects to capitalize on this
trend by working with hospitals to eliminate the redundancies within the typical
anatomic pathology laboratories that exist within hospitals, thereby reducing
hospitals' costs. By consolidating and centralizing these functions into more
efficient and cost effective outpatient anatomic pathology laboratories, the
Company will also be able to broaden the range of subspecialty services it
offers and to develop new esoteric testing capabilities. Because the trend
toward providing medical services in outpatient settings almost certainly will
continue, the Company will be well positioned to capitalize on these
opportunities.
Although the selection of a pathologist is primarily made by individual
referring physicians, a trend is evolving toward decisions being made by managed
care organizations and other third-party payors. While the majority of referrals
by managed care organizations for outpatient anatomic pathology services are
made directly to pathology practices on a local basis, in certain instances
managed care organizations contract with national clinical laboratories.
Generally, these national clinical laboratories subcontract anatomic pathology
and cytology services to large practices that can provide a comprehensive range
of anatomic pathology and cytology services. The Company believes that hospitals
and national clinical laboratories will continue to outsource for the provision
of anatomic pathology services.
Historically, the anatomic pathology industry has been highly
fragmented, with the majority of the services being provided by relatively small
practices. The Company estimates that there are over 3,300 pathology practices
operating in outpatient laboratories in the United States. There is an evolving
trend among pathologists to form larger practices to provide a broader range of
outpatient and inpatient services and enhance the utilization of the practice's
pathologists. The Company believes this trend can be attributed to several
factors, including cost containment pressures by government and other
third-party payors, increased competition, managed care and the increased costs
and complexities associated with operating a medical practice. Moreover, given
the current trends of increasing outpatient services, outsourcing and the
consolidation of hospitals, pathologists are seeking to align themselves with
larger practices and physician practice management companies that can assist
providers in the evolving healthcare environment. Larger practices and physician
practice management companies can offer physicians certain advantages, such as:
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/bullet/ obtaining and negotiating contracts with hospitals, managed
care providers and national clinical laboratories;
/bullet/ marketing and selling of professional services;
/bullet/ providing continuing education and career advancement
opportunities;
/bullet/ making available a broad range of specialists with whom to
consult;
/bullet/ providing access to capital and business and management
experience;
/bullet/ establishing and implementing more efficient and cost
effective billing and collection procedures; and
/bullet/ expanding the practice's geographic coverage area.
Each of the foregoing factors support the pathologists in the efficient
management of the complex and time-consuming non-medical aspects of their
practice.
BUSINESS STRATEGY
The Company's objective is to enhance its position as the largest
provider of anatomic pathology services through the following strategies:
FOCUS ON ANATOMIC PATHOLOGY. The Company believes that its focus of
providing management services to anatomic pathology practices provides it with a
competitive advantage in the management of such practices. As a result of the
Company's single focus, pathologists are able to form an internal network for
consultations and to offer specialized services and testing to their clients.
The Company also believes that its single specialty focus enhances its expertise
in managing both inpatient and outpatient pathology practices.
In the fourth quarter of 1998, the Company began the operation of its
Center for Advanced Diagnostics ("CAD") in Fort Myers, Florida. CAD focuses on
molecular testing including DNA analysis, flow cytometry and cytogenetics. With
CAD's advanced technologies, it is able to provide AmeriPath's pathologists with
a greater level of diagnostic information to further refine diagnoses made after
routine surgical pathology evaluation. This increased diagnostic value is
demonstrated in CAD's ability to assist pathologists in better grading and
staging of cancers, accurately classifying leukemia and lymphomas as well as
providing a variety of prognostic information through enhanced pathology
reporting. As this detailed diagnostic reporting is provided to assist
AmeriPath's pathologists, it allows for improved input in analyzing the best
treatment options and selecting the most effective therapies. The Company is in
the process of moving this operation to an expanded facility in Orlando,
Florida.
During the second quarter of 1999, the Company entered into a services
agreement with A. Bernard Ackerman, M.D., widely regarded as the preeminent
dermatopathologist in the world. In order to maximize the effectiveness of Dr.
Ackerman's affiliation with the Company, AmeriPath established the "ACKERMAN
ACADEMY OF DERMATOPATHOLOGY" and a diagnostic facility in New York City. The
Academy has an accredited dermatopathology fellowship training program with
state-of-the-art instrumentation, including a 27-head microscope, and one of the
most technologically advanced audiovisual systems available. The diagnostic
facility, AmeriPath New York, operates as a licensed independent outpatient
laboratory specializing in dermatopathology and offers adjunctive methods for
diagnosis, including immunoperoxidase, marker studies, gene rearrangement, and
immunofluorescence.
ACQUIRE LEADING PRACTICES. The Company expects to increase its presence
in existing markets and enter into new markets through acquisitions of,
affiliations with and strategic minority investments in leading practices. The
Company's acquisition criteria include market demographics, size, profitability,
local prominence, payor relationships, synergy with other acquisitions in a
given geographic region and opportunities for growth of the acquired practice.
The Company intends to continue to source acquisitions and affiliations by
capitalizing on the professional reputations of its acquired practices and its
pathologists, and the Company's management experience and the benefits of being
part of a public company, including increased resources and access to capital.
In existing markets, the Company targets acquisitions and affiliations that can
expand its presence, provide specialization, such as dermatopathology, and
provide operational efficiencies for the practices in that market. In new
markets, the Company seeks to acquire and affiliate with prominent practices to
serve as a platform for building upon their long-standing relationships and
reputations. The Company's acquisition, or physician employment model, enables
the Company to more rapidly affect administrative and economic changes, improve
pathologist utilization, and consolidate technical and administrative support,
to effect cost savings. It also enables the Company to actually consolidate
practices into a more efficient, integrated group practice in a region, which is
not always possible under the management service agreement or equity model.
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EXPAND SALES AND MARKETING EFFORTS. The Company focuses on generating
internal growth for the Practices by augmenting their existing physician and
contractual relationships through a professional sales and marketing program.
The Company's marketing program is designed to: increase relationships with
physicians over a broader geographic region; expand contracts with national
clinical laboratories that subcontract for anatomic pathology services; and
capitalize on existing managed care relationships. Since specimens are readily
transportable, the Company's sales and marketing efforts focus on expanding the
geographic scope of the Practices. Nine Practices presently have contracts to
provide outpatient anatomic and cytopathology pathology services with the two
major national clinical laboratories. These contracts generally are exclusive to
the individual practice. The Company is seeking to extend its existing contracts
with national clinical laboratories to include multiple practices that cover
broader geographic regions. The Company believes that its regional business
model offers national clinical laboratories and managed care organizations a
convenient single source for anatomic pathology services.
INCREASE CONTRACTS WITH HOSPITALS. The Company seeks to obtain
additional exclusive hospital contracts for the Practices in a region through
the acquisition of other anatomic pathology practices, as well as through the
expansion of the Company's existing relationships with multi-hospital systems.
The Company believes that multi-hospital systems can benefit from contracting
with a single provider of pathology services in a geographic region through the
consolidation of clinical laboratory, histology and other ancillary hospital
support functions, thereby reducing costs, and simplifying and consolidating
contractual relationships with managed care organizations and other third party
payors. In addition, the Company believes that providing inpatient laboratory
services to multiple hospitals within a geographic area facilitates the
development and effectiveness of a successful outpatient services network by
creating market presence and economies of scale offering a broader range of
pathology expertise while maintaining the important physician relationships.
ACHIEVE OPERATIONAL EFFICIENCIES. The Company believes that its
Practices will benefit from the management and administrative support provided
by the Company's corporate staff, which provides oversight and technical and
administrative support services. The Company has centralized accounting and
financial reporting, payroll, benefits administration, purchasing, managed care
contracting, risk management and corporate compliance. Furthermore, the Company
has achieved and continues to pursue certain cost and operational efficiencies,
enhancing the Practices' profitability and efficiency by utilizing the Company's
collective buying power to negotiate discounts on laboratory equipment and
medical supplies and reductions in premiums for health, property, casualty and
professional liability insurance. Also, prior to their acquisition, each of the
Practices either managed their billing and collections in-house or outsourced
these functions. The Company continues to evaluate the billing and collection
systems of the Practices and centralizes such functions to the extent determined
practicable and efficient. To date, the Company has centralized the billing and
collections functions for eleven of the Practices at its centralized billing
operation in Fort Lauderdale, and has outsourced the billing for ten of its
Practices to Per Se' Technologies ("Per Se' "), formerly Medaphis Corporation.
Rates paid to Per Se' are tied to collection volume on accounts handled by Per
Se'. For the year ended December 31, 1999, the Company's consolidated billing
operation in Fort Lauderdale handled $63.7 million and Per Se' $59.4 million of
the Company's net revenue. This is compared to $55.5 million in Fort Lauderdale
and $41.4 million handled by Per Se' in 1998.
REGIONAL BUSINESS MODEL
The Company believes that its regional business model offers short and
long-term benefits to the Company, its pathologists, referring physicians, third
party payors and patients. The Company continues to integrate the Practices'
administrative and technical support functions, including accounting, payroll,
purchasing, risk management, billing and collections, and expects such
integration to result in enhanced operational efficiencies. The Company's
courier system for transporting specimens enables the Practices to penetrate
areas outside their current markets and enhance the utilization of their
laboratory facilities. The Company also integrates and coordinates the sales and
marketing personnel of the Practices to promote the Practices to physicians,
hospitals, surgery centers, managed care organizations and national clinical
laboratories. This marketing effort is based upon promoting the broad geographic
coverage, professional pathologist expertise and the extensive professional
services offered by the Company. The Company's strategy is to leverage its size
to expand its contracts with national clinical laboratories to all of the areas
covered by its Practices. The Company markets its services under the name
"AmeriPath" in order to develop brand identification of products and services to
payors and other clients. The Company plans to integrate the Practices'
management information systems into a single system (or at a minimum consolidate
the information resident on the various lab information systems) that will
expand the financial and diagnostic reporting capabilities of each of the
Practices and the Company. Based on the foregoing, the Company believes that
implementation of this regional model increases the revenues and profitability
of the Practices in the region, and the Company is applying this regional
business model, in whole or in part, to other states in which it operates.
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Through the implementation of its operating strategies, the Company
continues to develop integrated networks of anatomic pathology practices on a
regional basis. These networks consist of a number of practices that together:
(i) have a substantial regional market presence; (ii) offer a broad range of
services; (iii) have extensive physician contacts; and (iv) possess
complementary strengths and opportunities for operational and production
efficiencies. The Company has developed its regional business model in Florida
and is replicating its model in Texas and the Midwest. The Company believes that
Florida represents an attractive market due to its population, demographics,
including the growth of the general population and a large elderly population,
as well as the Company's familiarity and understanding of the anatomic pathology
market in Florida. The Company currently owns, controls and manages anatomic
pathology practices throughout Florida including Miami, Fort Lauderdale,
Jacksonville, Orlando, Daytona, Fort Myers and Tampa. In addition, the Company
contracts with Quest Diagnostics ("Quest") (including the former SmithKline
Beecham Clincal Laboratories, Inc. ("SmithKline")), a national clinical
laboratory, to provide anatomic pathology services on an exclusive basis in all
of Florida's 67 counties.
The Company believes that its improving performance in Florida, as
reflected in the following table, is due in part to the favorable results of its
regional model in Florida:
DECEMBER 31,
1997 1998 1999
------- ------- -------
FLORIDA STATISTICS (DOLLARS IN MILLIONS)
Number of Practices 8 11 12
Pathologists 72 82 80
Hospital contracts 30 31 31
Net revenues $ 70.8 $ 85.1 $ 92.5
Operating margin before amortization $ 20.2 $ 25.6 $ 27.7
Operating margin as a percent of net revenues 28.5% 30.1% 30.0%
AMERIPATH CORPORATE STRUCTURE; OWNED AND AFFILIATED PRACTICES; HOSPITAL
CONTRACTS AND LABORATORIES.
AmeriPath, Inc. is a holding company that currently operates through
its Practice Subsidiaries and Manager Subsidiaries as defined below. The manner
in which AmeriPath operates a particular Practice is determined primarily by the
corporate practice of medicine restrictions of the State in which the Practice
is located and other applicable regulation. The Company believes that it
exercises care in its efforts to structure its practices and arrangements with
hospitals and physicians and its subsidiaries so as to comply with relevant
federal and state laws and believes that such current arrangements and practices
comply with all applicable statutes and regulations. However, due to
uncertainties in the law there can be no assurance that none of such
arrangements or practices could be deemed to be in noncompliance in the future,
or that such occurrence could not result in a material adverse effect on the
Company.
Corporate practice of medicine restrictions, which are discussed in
further detail under "Government Regulation" below, prohibit corporate entities
from employing or otherwise exercising control over physicians. In states that
do not prohibit a for-profit corporation from employing physicians such as
Florida, Alabama, Mississippi and Kentucky, AmeriPath operates its Practices
through Practice Subsidiaries, which are subsidiary corporations of AmeriPath
that directly employ the physicians. In states that prohibit a for-profit
corporation from employing physicians, such as Texas, Indiana, Ohio, North
Carolina, Michigan, Wisconsin New York and Pennsylvania, AmeriPath operates each
Practice through a Management Subsidiary, which is a subsidiary of AmeriPath
that has a long-term management agreement with the applicable PA Contractor,
which in turn employs the Physicians. In many cases, several Practices are
included within or organized under a single Practice Subsidiary or PA
Contractor, as the case may be.
OWNERSHIP AND MANAGEMENT OF THE MANAGEMENT SUBSIDIARIES AND PRACTICE
SUBSIDIARIES. The Management Subsidiaries and the Practice Subsidiaries are
wholly-owned subsidiaries of AmeriPath and the officers and directors of such
companies are generally members of AmeriPath's executive management team.
OWNERSHIP AND MANAGEMENT OF THE PA CONTRACTORS. The term PA Contractor,
is used throughout this document to refer to an entity which has a contractual
relationship with the Company but is not owned directly by AmeriPath. These
entities can be a professional corporation or professional association, as
permitted and defined in various state statutes. The PA Contractors operating in
North Carolina, Wisconsin, New York, Michigan and Pennsylvania are owned by
physicians affiliated with AmeriPath. To the extent permitted under applicable
law, members of AmeriPath's executive management
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team who are also affiliated physicians own or control such PA Contractors. The
affiliated physicians who own PA Contractors have entered into agreements with
AmeriPath that (i) prohibit such affiliated physicians from transferring their
ownership interests in the PA Contractor, except in very limited circumstances
and (ii) require such affiliated physicians to transfer their ownership in the
PA Contractor to designees of AmeriPath upon the occurrence of specified events.
The PA Contractors in Ohio and Indiana are owned by trusts. The
beneficiary of such trusts is AmeriPath and the Trustees of such trusts are
affiliated physicians. The PA Contractors operating in Texas are organized as
not-for-profit 5.01(a) corporations, which are discussed in greater detail under
the "Government Regulation" below. The sole member of the not-for-profit PA
Contractors in Texas is AmeriPath.
To the extent permitted by law, the officers and directors of the PA
Contractors are members of AmeriPath's executive management team. However, in
states where law prohibits such non-licensed physician personnel from serving as
an officer or director of a PA Contractor, eligible affiliated physicians serve
in such positions.
Each PA Contractor is party to a long-term management agreement with
one of the Company's Management Subsidiaries. Under the terms of these
management agreements, AmeriPath provides all non-medical and administrative
support services to the Practices including accounting and financial reporting,
human resources, payroll, billing, and employee benefits administration. In
addition, the management agreements give the Management Subsidiaries certain
rights with respect to the management of the non-medical operations of the PA
Contractors. The management agreements require the PA Contractors to pay a
management fee to the applicable Management Subsidiaries. The fee structure is
different for each Practice based upon various factors, including applicable
law, and includes fees based on a percentage of earnings, performance-based
fees, and flat fees that are adjusted from time to time.
OPERATION OF PRACTICES GENERALLY. AmeriPath manages and controls all of
the non-medical functions of the Practices. AmeriPath is not licensed to
practice medicine. The practice of medicine is conducted solely by the
affiliated physicians. In managing the Practices, the Board of Directors and
management of AmeriPath formulate strategies and policies which are implemented
locally on a day-to-day basis by each Practice, without regard to whether such
practice is organized as a management or Practice Subsidiary or PA Contractor.
Each Practice has a pathologist Managing Director who is responsible for
overseeing the day-to-day management of the Practice, who report to one of four
Regional Managing Directors, three of whom are pathologists, who in turn report
to AmeriPath's Chief Operating Officer. AmeriPath's Medical Director and Chief
Operating Officer, are physicians and develop and review standards for the
affiliated physicians and their medical practices and review quality and peer
review matters with each Practice's Medical Director (or a medical review
committee). AmeriPath's Chief Operating Officer, a physician, oversees all
employment matters with respect to affiliated physicians and staffing decisions
at the Practices.
HOSPITAL CONTRACTS AND LABORATORIES. The Practices typically contract
with hospitals to exclusively provide pathology services. The Practices staff
each hospital with at least one pathologist who generally serves as the Medical
Director of the hospital laboratory and who facilitates the hospital's
compliance with licensing requirements. The Practices are responsible for
recruiting, staffing and scheduling the Practice's affiliated physicians in the
local hospital's inpatient laboratories. The Medical Director of the laboratory
is responsible for: (i) the overall management of the laboratory, including
quality of care, professional discipline and utilization review; (ii) serving as
a liaison to the hospital administrators and medical staff; and (iii)
maintaining professional and public relations in the hospital and the community.
Several Practices have both outpatient laboratories and hospital contracts,
which allow outpatient specimens to be examined by the hospital pathologists,
enhancing the utilization of pathologists in inpatient facilities. In the
hospitals, technical personnel are typically employed by the hospital, rather
than by the Practices. Upon initiation, the hospital contracts typically have
terms of one to five years and automatically renew for additional terms of one
year unless otherwise terminated by either party. The contracts provide that the
hospital may terminate the agreement prior to the expiration of the initial or
renewal term. Loss of any particular hospital contract would not only result in
a loss of net revenue to the Company, but also a loss of outpatient net revenue
that may be derived from the relationship with a hospital and its medical staff.
Continuing consolidation in the hospital industry may result in fewer hospitals
or fewer laboratories as hospitals move to combine their operations. As of
December 31, 1999, the Practices had contracts with 164 hospitals, of which the
majority are exclusive, 27 of which are owned by Columbia/HCA Healthcare
Corporation ("Columbia"), the country's largest publicly owned hospital company.
No assurance can be given that such contracts with hospitals will not be
terminated or that they will be renewed in the future.
All of AmeriPath's outpatient laboratories are licensed and certified
under the guidelines established by CLIA and
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applicable state statutes and are managed by a Medical Director of the
Laboratory. AmeriPath's corporate compliance, quality assurance and quality
improvement programs are designed to assure that all laboratories and other
operations are in compliance with applicable laws, rules and regulations.
MANAGEMENT INFORMATION SYSTEMS
The Company believes that its increasing integration and consolidation
of its laboratory information, billing and collections and financial reporting
systems enable it to monitor the operations of the Practices, enhance
utilization of the pathologists, develop practice protocols and archives and
provide the Company with a competitive advantage in negotiating national
clinical laboratory and managed care contracts. Each of the Company's
laboratories has a laboratory information system that enables laboratory
personnel to track, process, report and archive patient diagnostic information.
The Company's systems include an outpatient billing software program,
at its Fort Lauderdale centralized billing operation, which is being utilized
for the integration of outpatient billing. In its effort to further increase the
capacity of its centralized billing operations, during 1999 the Company signed
an agreement with a large healthcare software provider for a billing, accounts
receivable and collections system. In addition to performing services for
outpatient billing, hospital billing will be tested on the new system.
Conversion from the current billing system to the new billing system is
anticipated to be completed by the end of 2000. The Company has installed a
complete general ledger and financial reporting system to handle accounting for
the Practices and to consolidate all accounting and financial information. As of
January 2000, all of the Practices have been integrated onto one common
accounting system.
In 1999, the Company allocated significant resources to ensure that its
systems would not be adversely affected by the Year 2000. Because of its
remediation efforts, all systems within the Company functioned without flaw at
the turn of the millennium.
Because the Company is one of the largest diagnostic information
providers it realizes the importance and value of the data resident in the
various systems. In an effort to mine this data, the Company is in the process
of developing a Web-enabled data warehouse offering named PathWay
Solutions/trademark/. PathWay Solutions/trademark/ will provide comparative
statistical and diagnostic information that can be used by its client referring
physicians, hospitals, payers and others for disease management and awareness,
utilization management and research capabilities.
The impetus and advancement in the Internet is changing the way society
is conducting business and obtaining information. In an effort to exceed the
challenge, the Company is developing an Internet strategy that will provide
advanced services to its patients, client referring physicians, hospitals,
payers, and general public.
The Company invested approximately $1.5 million and $2.5 million in
information technology during the years ended December 31, 1998 and 1999,
respectively. It plans to invest additional amounts necessary to implement
advanced technologies by becoming more cost effective, efficient and responsive,
as well as providing value-added services.
SALES AND MARKETING
OUTPATIENT MARKET. The Company's marketing efforts are focused on
physicians, hospital and outpatient surgery center administrators, national
clinical laboratories and managed care organizations. Prior to being acquired by
the Company, the Practices' marketing efforts were primarily based upon the
professional reputations and individual efforts of the pathologists. The Company
believes that there is an opportunity to capitalize on these professional
reputations by hiring experienced personnel and utilizing professional sales and
marketing techniques. Historically, some of the outpatient practices marketed
outpatient services primarily to dermatologists, over a broad geographic area
including neighboring states. The Company continues to expand its sales force
with additional sales personnel and management staff to accommodate new
acquisitions as well as increase same store growth. These field representatives
are supervised by regional sales managers who coordinate the implementation of
regional contracting efforts, leverage operational capabilities, support
national sales strategies and provide ongoing training and field sales support.
The Regional Sales Managers report to a National Director of Sales to insure the
implementation of consistent and effective sales activities nationwide. The
sales and marketing staff also includes Directors of Marketing and Managed Care.
In 1999, the Company added four positions to the marketing department: two
product development managers, a sales analyst, and a marketing coordinator, all
of whom report directly to the Director of Marketing. The Director of Managed
Care directs regional managed care specialists in negotiating additional
contracts. In
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1999, the Company added two positions to its Managed Care Department. The
Director of Managed Care Sales will oversee the department's efforts with
national contracts, and the Manager of Contract Administration who will ensure
adherence to contract terms and conditions.
NATIONAL CLINICAL LABORATORY MARKETING. The national clinical
laboratories, principally the two major ones, Quest and Laboratory Corporation
of America Holdings ("LabCorp") contract with managed care organizations to
provide clinical laboratory services, as well as anatomic pathology and cytology
services. Their contracts with managed care organizations are typically
capitated. Nine Practices have exclusive subcontracts with one of the two
national clinical laboratories to provide anatomic pathology and cytology
services. Under these contracts, which typically run from one to three years
with automatic renewals unless terminated earlier, the Practices bill the
national clinical laboratories on a discounted fee-for-service basis. The
reduced fee is offset by the national clinical laboratories provision of courier
services, supplies, and reduced billing costs and lower bad debts, since the
national clinical labs bear the capitation risk. The Company is directing its
marketing efforts to national clinical laboratories to expand these contracts on
a regional basis to additional practices as well as to enter into new contracts.
At the same time the Company is seeking to secure new contracts and expand
existing provider contracts with managed care organizations for the provision of
anatomic pathology services directly to their members and is prepared to
negotiate flexible arrangements with managed care organizations, including
discounted fee-for-service or capitated contracts. There can be no assurance
that the Company's efforts to contract directly with managed care organizations
will not adversely affect the Company's relationship with the national clinical
laboratories.
In February 1999, SmithKline announced the sale of its clinical
laboratories unit to Quest, which gave Quest the leading position in the $30
billion clinical laboratory testing industry. At the time, the Company had
contracts with both SmithKline and Quest, often in areas where the two were not
in direct competition. It is too soon to assess the impact of the acquisition on
the Company's operations or contracts with Quest. However, all indications are
that the combined entity will maintain its relationship with pathology service
providers, and may consolidate the number of providers it uses. Since AmeriPath
is one of their largest providers of pathology services, it places AmeriPath's
pathologists in a very competitive position. However, there is no assurance that
we will maintain these relationships in the future.
CLIENT AND PAYOR RELATIONSHIPS
The Practices also provide services to a wide variety of other
healthcare providers and payors including physicians, government programs,
indemnity insurance companies, managed care organizations and national clinical
laboratories. Fees for anatomic pathology services rendered to physicians are
billed either to the physicians, the patient or to the patient's third party
payor.
CONTRACTS AND RELATIONSHIPS WITH AFFILIATED PHYSICIANS
The Company employs pathologists, or manages the PA Contractors who
employ pathologists, to provide medical services in hospitals and in other
inpatient and outpatient laboratories. Pathologist employment agreements
typically have terms of three to five years and generally can be terminated at
any time upon 60 to 180 days notice. The pathologists generally receive a base
salary, fringe benefits, and may include an incentive performance bonus. In
addition to compensation, the Company provides its pathologists with uniform
benefit plans, such as disability, supplemental retirement, life and group
health insurance and medical malpractice insurance. The pathologists are
required to hold a valid license to practice medicine in the jurisdiction in
which they practice and, with respect to inpatient or hospital services, to
become a member of the medical staff at the contracting hospital with privileges
in pathology. The Company is responsible for billing patients, physicians and
third party payors for services rendered by the pathologists. Most of the
agreements prohibit the physician from competing with the Company within a
defined geographic area and prohibit solicitation of pathologists, other
employees or clients of the Company for a period of one to two years after
termination of employment.
The Company's business is dependent upon the recruitment and retention
of pathologists, particularly those with subspecialties, such as
dermatopathology. While the Company has been able to recruit (principally
through practice acquisitions) and retain pathologists, no assurance can be
given that the Company will be able to continue to do so successfully or on
terms similar to its current arrangements. The relationship between the
Company's pathologists and their respective local medical communities is
important to the operation and continued profitability of the Practices. In the
event that a significant number of pathologists terminate their relationships
with the Company or become unable or unwilling to continue their employment, the
Company's business could be materially and adversely affected.
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The experience and specialized certifications of the Company's
affiliated physicians provide opportunities for immediate consultation in
complex cases among the internal network of affiliated physicians. Pathology is
a specialized field of medicine and is a core requirement in a dermatologist's
training. Through teaching at medical institutions, the Company's affiliated
physicians have an opportunity to develop a reputation and following among
residents and practicing physicians. Several affiliated physicians have teaching
positions with universities or affiliations with other educational institutions
for the training and continuing medical education of physicians, particularly
dermatologists.
GOVERNMENT REGULATION
The Company's business is subject to a myriad of governmental and
regulatory requirements relating to healthcare matters as well as laws and
regulations that relate to business corporations in general. The Company
believes that it exercises care to structure its practices and arrangements with
hospitals and physicians to comply with relevant federal and state law and
believes that such current arrangements and practices do comply with applicable
statutes and regulations. However, there can be no assurance that none of the
Company's current or prior practices or arrangements could be found to be in
noncompliance with law, or that such occurrence could not result in a material
adverse effect on the Company.
The Company derived approximately 22% and 20% of its collections for
the years ended December 31, 1998 and 1999, respectively, from payments made by
government sponsored healthcare programs (principally Medicare and Medicaid).
The decrease in the percentage of collections attributable to government
sponsored healthcare programs resulted primarily from the acquisition of
practices outside Florida, with smaller Medicare populations. These programs are
subject to substantial regulation by the federal and state governments. Any
change in reimbursement regulations, policies, practices, interpretations or
statutes that places limitations on reimbursement amounts, or changes in
reimbursement coding, or practices could materially and adversely affect the
Company's financial condition and results of operations. Increasing budgetary
pressures at both the federal and state level and concerns over escalating costs
of healthcare have led, and may continue to lead, to significant reductions in
health care reimbursements. State concerns over the growth in Medicaid also
could result in payment reductions. Although governmental payment reductions
have not materially affected the Company in the past, it is possible that such
changes in the future could have a material adverse effect on the Company's
financial condition and results of operations. In addition, Medicare, Medicaid
and other government sponsored healthcare programs are increasingly shifting to
some form of managed care. Some states have recently enacted legislation to
require that all Medicaid patients be converted to managed care organizations,
and similar legislation may be enacted in other states, which could result in
reduced payments to the Company for such patients. In addition, a
state-legislated shift in a Medicaid plan to managed care could cause the loss
of some, or all, Medicaid business for the Company in that state if the Company
were not selected as a participating provider. Additionally, funds received
under all health care reimbursement programs are subject to audit with respect
to the proper billing for physician services and, accordingly, retroactive
adjustments of revenue from these programs could occur. The Company expects that
there will continue to be proposals to reduce or limit Medicare and Medicaid
reimbursements.
In connection with practice acquisitions, the Company performs certain
due diligence investigations with respect to the potential liabilities of
acquired practices and obtains indemnification with respect to certain
liabilities from the sellers of such practices. Nevertheless, there can be
undiscovered claims which subsequently can arise and there can be no assurance
that any liabilities for which the Company becomes responsible (despite such
indemnification) will not be material or will not exceed either the limitations
of any applicable indemnification provisions or the financial resources of the
indemnifying parties. Furthermore, the Company, through its Corporate Compliance
Program, regularly reviews the Practices' compliance with federal and state
healthcare laws and regulations and revises as appropriate the operations,
policies and procedures of its Practices to conform with the Company's policies
and procedures and applicable law. While the Company believes that the
operations of the Practices prior to their acquisition were generally in
compliance with such laws and regulations, there can be no assurance that the
prior operations of the Practices were in full compliance with such laws, as
such laws may ultimately be interpreted. Moreover, although the Company
maintains an active compliance program, it is possible that the government might
challenge some of the current practices of the Company as not being in full
compliance with such laws. A violation of such laws by a practice could result
in civil and criminal penalties, exclusion of the physician, the practice or the
Company from participation in Medicare and Medicaid programs and/or loss of a
physician's license to practice medicine.
FRAUD AND ABUSE. Federal anti-kickback laws and regulations prohibit
any knowing and willful offer, payment, solicitation or receipt of any form of
remuneration, either directly or indirectly, in return for, or to induce: (i)
the referral of an individual for a service for which payment may be made by
Medicare and Medicaid or certain other federal healthcare programs;
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or (ii) the purchasing, leasing, ordering or arranging for, or recommending the
purchase, lease or order of, any service or item for which payment may be made
by Medicare, Medicaid or certain other federal healthcare programs. Violations
of federal anti-kickback rules are punishable by monetary fines, civil and
criminal penalties and exclusion from participation in Medicare and Medicaid
programs. Several states have laws that are similar.
SAFE HARBORS. The federal government has published regulations that
provide "safe-harbors" for certain business transactions that would otherwise
violate the anti-kickback statute. While arrangements between the Company,
physicians and third parties may not satisfy applicable requirements under these
safe harbors, the Company believes its operations are in material compliance
with applicable Medicare and fraud and abuse laws. There is a risk however, that
the Office of the Inspector General ("OIG") might investigate arrangements which
do not satisfy the safe harbors. If the Company's arrangements were found to be
illegal, the Company, the physician groups and/or the individual physicians
would be subject to civil and criminal penalties, including exclusion from the
participation in government reimbursement programs, which could materially
adversely affect the Company.
ADVISORY OPINIONS. The Department of Health and Human Services Office
of Inspector General issue advisory opinions that provide advice on whether
proposed business arrangements violate the anti-kickback law. In Advisory
Opinion 99-13, the OIG opined when prices for laboratory services for
non-governmental patients are discounted below Medicare reimbursable rate, the
anti-kickback statute may be implicated. The OIG found prices discounted below
the laboratory supplier's costs to be particularly problematic. In the same
opinion, OIG suggests that a laboratory may be excluded from federal health care
programs if it charges Medicare or Medicaid amounts substantially in excess of
discounted charges to the physician. In the OIG's opinion, charges are likely
excessive if the profit margin for Medicare business exceeds profit margin for
non-federally reimbursed business. The OIG also has addressed physician practice
management arrangements in an advisory opinion. In Advisory Opinion 98-4, the
OIG found that management fees based on a percentage of practice revenues may
violate the anti-kickback statute. Although these advisory opinions are limited
to the parties who request them, in the event the Company has arrangements that
are inconsistent with the OIG's opinions, the OIG might take the position that
the arrangements violate the anti-kickback law. Any such finding could have a
material adverse impact on the Company.
SELF-REFERRAL AND FINANCIAL INDUCEMENT LAWS. The Company is also
subject to federal and state statutes and regulations banning payments for
referral of patients and referrals by physicians to healthcare providers with
whom the physicians have a financial relationship. The federal Stark Bill
applies to Medicare and Medicaid. State statutes and regulations generally apply
to services reimbursed by both governmental and private payors. Violations of
these laws may result in prohibition of payment for services rendered, loss of
licenses as well as fines and criminal penalties. State statutes and regulations
affecting the referral of patients to healthcare providers range from statutes
and regulations that are substantially the same as the federal laws and the safe
harbor regulations to a simple requirement that physicians or other healthcare
professionals disclose to patients any financial relationship the physicians or
healthcare professionals have with a healthcare provider that is being
recommended to the patients. These laws and regulations vary significantly from
state to state, are often vague and, in many cases, have not been interpreted by
courts or regulatory agencies. Adverse judicial or administrative
interpretations of any of these laws could have a material adverse effect on the
operating results and financial condition of the Company. In addition, expansion
of the Company's operations to new jurisdictions, or new interpretations of laws
in existing jurisdictions, could require structural and organizational
modifications of the Company's relationships with physicians to comply with that
jurisdiction's laws. Such structural and organizational modifications could have
a material adverse effect on the operating results and financial condition of
the Company.
Physicians affiliated with the Company may have financial relationships
with the Company, as defined by Stark, in the form of compensation arrangements,
ownership of Company shares, contingent promissory notes with the Company, or a
combination of the above. With respect to compensation arrangements, the Company
believes that existing arrangements are structured to comply with an applicable
exception. With respect to the ownership of shares, the Company believes that
the ownership of Company shares by physicians should fall within the publicly
traded stock exception to the Stark law's definition of financial relationship.
However, certain physician-owned shares do have a transfer restriction and, as a
result, the government could take the position that the exception is not met.
The contingent notes held by some physicians do not meet an exception to the
Stark law's definition of financial relationship. In either case, however, the
Company believes that its current operations comply with the Stark law because
physicians affiliated with the Company ordinarily do not make referrals and in
any event have been instructed, and are believed to be following such
instructions, not to make referrals to the Company. To the extent physicians
affiliated with the Company may make a referral to the Company and a financial
relationship exists between the Company and the referring physician through
either the ownership of Company shares or contingent notes, the government might
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take the position that the arrangement does not comply with the Stark Bill. Any
such finding could have a material adverse impact on the Company.
GOVERNMENT INVESTIGATIONS OF HOSPITALS AND HOSPITAL LABORATORIES.
Significant media and public attention has been focused on the health care
industry due to ongoing federal and state investigations reportedly related to
certain referral and billing practices, laboratory and home healthcare services
and physician ownership and joint ventures involving hospitals. Most notably,
Columbia is under investigation with respect to such practices. The Company
operates laboratories on behalf of and has numerous contractual agreements with
hospitals, including 27 pathology service contracts with Columbia hospitals as
of December 31, 1999. The government's ongoing investigation of Columbia could
result in a governmental investigation of one or more of the Company's
operations that have arrangements with Columbia. In addition, the Office of the
Inspector General and the Department of Justice have initiated hospital
laboratory billing review projects in certain states and are expected to extend
such projects to additional states, including states in which the Company
operates hospital laboratories. These projects increase the likelihood of
governmental investigations of laboratories owned and operated by the Company.
Although the Company monitors its billing practices and hospital arrangements
for compliance with prevailing industry practices under applicable laws, such
laws are complex and constantly evolving and there can be no assurance that
governmental investigators will not take positions that are inconsistent with
the Company's or industry practices. The government's investigations of entities
with which the Company contracts may have other effects which could materially
and adversely affect the Company, including termination or amendment of one or
more of the Company's contracts or the sale of hospitals potentially disrupting
the performance of services under such contracts.
CORPORATE PRACTICE OF MEDICINE. The Company is not licensed to practice
medicine. The practice of medicine is conducted solely by its licensed
pathologists. The manner in which licensed physicians can be organized to
perform and bill for medical services is governed by the laws of the state in
which medical services are provided and by the medical boards or other entities
authorized by such states to oversee the practice of medicine. Business
corporations are generally not permitted under certain state laws to exercise
control over the medical judgments or decisions of physicians, or engage in
certain practices such as fee-splitting with physicians. In states where the
Company is not permitted to directly own a medical practice, the Company
performs only non-medical and administrative and support services, does not
represent to the public or its clients that it offers medical services and does
not exercise influence or control over the practice of medicine. See discussion
"AmeriPath Corporate Structure; Owned and Affiliated Practices; Hospital
Contracts and Laboratories", above.
Based on the advice of the Company's general counsel and health care
regulatory counsel, the Company believes that it currently is in material
compliance with the corporate practice laws in the states in which it operates.
There can be no assurance that regulatory authorities or other parties will not
assert that the Company is engaged in the corporate practice of medicine. If
such a claim were successfully asserted in any jurisdiction, the Company, and
its pathologists could be subject to civil and criminal penalties under such
jurisdiction's laws and could be required to restructure their contractual and
other arrangements. Alternatively, some of the Company's existing contracts
could be found to be illegal and unenforceable. In addition, expansion of the
operations of the Company to other "corporate practice" states may require
structural and organizational modification of the Company's form of relationship
with physicians, PA Contractors or hospitals. Such results or the inability to
successfully restructure contractual arrangements could have a material adverse
effect on the Company's financial condition and results of operations.
MEDICARE FEE SCHEDULE PAYMENT FOR CLINICAL DIAGNOSTIC LABORATORY
TESTING. Medicare reimburses hospitals based on locality-specific fee schedules
on the basis of a reimbursement methodology with Consumer Price Index ("CPI")
related adjustments. Medicare includes payment for services performed for
clinical diagnostic laboratory inpatients within the prospectively determined
Diagnosis Related Group rate paid to the hospital. Additionally, state Medicaid
programs may pay no more than the Medicare fee schedule amount. Congress also
has implemented a national cap on Medicare clinical diagnostic laboratory fee
schedules. This national cap has been lowered nearly every year and now is 74%
of the national median. In addition, Congress frequently has either limited or
eliminated the annual CPI adjustments of the Medicare clinical diagnostic
laboratory fee schedules. The Omnibus Budget Reconciliation Act of 1993
eliminated the adjustment for the years 1994 and 1995. In 1996 and 1997,
however, the fee schedule adjustments were 3.2% and 2.7%, respectively. Even
these modest increases were reduced in some areas due to a recalculation of
national medians and by conversion in some carrier areas to a single statewide
fee schedule. In the Balanced Budget Act of 1997 ("BBA"), Congress again
eliminated the annual adjustments, this time for the years 1998 through 2002.
The adjustment limitations and changes in the national cap made to date have not
had, and are not expected by the Company to have, a material adverse effect on
the Company's results of operations. Any further significant decrease in such
fee schedules could have a material adverse effect on the Company.
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Due to uncertainty regarding the implementation of the above-described
Medicare developments, the Company currently is unable to predict their ultimate
impact on the laboratory industry generally or on the Company in particular.
Reforms may also occur at the state level (and other reforms may occur at the
federal level) and, as a result of market pressures, changes are occurring in
the marketplace as the number of patients covered by some form of managed care
continues to increase. In the past, the Company has offset a substantial portion
of the impact of price decreases and coverage changes through the achievement of
economies of scale, more favorable purchase contracts and greater operational
efficiencies. However, if further substantial price decreases or coverage
changes were to occur, or if the government were to seek any substantial
repayments or penalties from the Company, such developments would likely have an
adverse impact on gross profits from the Company's testing services unless
management had an opportunity to mitigate such impact.
REEVALUATIONS AND EXAMINATION OF BILLING. Payors periodically
reevaluate the services they reimburse. In some cases, government payors such as
Medicare also may seek to recoup payments previously made for services
determined not to be reimbursable. Any such action by payors would have an
adverse affect on the Company's revenues and earnings.
Moreover, in recent months the federal government has become more
aggressive in examining laboratory billing and seeking repayments and penalties
as the result of improper billing for services (e.g., the billing codes used),
regardless of whether carriers had furnished clear guidance on this subject. The
primary focus of this initiative has been on hospital laboratories and on
routine clinical chemistry tests which comprise only a small part of the
Company's revenues. Although the scope of this initiative could expand, it is
not possible to predict whether or in what direction the expansion might occur.
The Company believes its practices are proper and do not include any allegedly
improper practices now being examined. However, no assurance can be given that
the government will not broaden its initiative to focus on the type of services
furnished by the Company or, if this were to happen, on how much money, if any,
the Company might be required to repay.
Furthermore, the Health Insurance Portability and Accountability Act of
1996 ("HIPAA") and Operation Restore Trust have strengthened the powers of the
OIG and increased the funding for Medicare and Medicaid audits and
investigations. As a result, the OIG is currently expanding the scope of its
healthcare audits and investigations. Federal and state audits and inspections,
whether on a scheduled or unannounced basis, are conducted from time to time at
the Company's facilities.
An inspection was conducted in April 1997 at the Company's laboratory
facility in Fort Lauderdale, Florida by representatives of federal and state
agencies (Medicare (Florida) Program Safeguards ("MPS")) under
Operation Restore Trust, regarding the Company's 1996 Medicare billing
practices. As a result of the 1997 inspection, in 1998 MPS attempted a
recoupment of $2.95 million in alleged Medicare overpayments for use of an
inappropriate procedure code. The government alleged that many of the skin
biopsies performed by the Company should have been coded as an 88304, rather
than the 88305 code used by the Company. The Company mounted a vigorous protest
and defense and argued that its coding practice and procedure codes were
accurate and consistent with accepted CPT code assignment guidelines in effect
since 1992. As support for its position, the Company provided MPS with the
reports of reputable coding experts that independently concluded that the
Company's coding practices were in conformity with accepted CPT assignment
guidelines. After review of the Company's position and the studies presented by
the Company, MPS determined that $204.05 was due as a result of improper
documentation. MPS concluded that no fraud or intentional abuse was
demonstrated. AmeriPath promptly paid the $204.05 and resolved the matter.
Due to the uncertain nature of coding for pathology services, the
Company cannot assure that issues such as those addressed in the 1997 Operation
Restore Trust investigation will not arise again. If a negative finding is made
as a result of such an investigation, the Company could be required to change
coding practices or repay amounts paid for incorrect practices either of which
could have a materially adverse effect on the operating results and financial
condition of the Company.
BBA ADDITIONS TO COVERAGE. The BBA added coverage for an annual
screening pap smear for Medicare beneficiaries who are at high risk of
developing cervical or vaginal cancer and for beneficiaries of childbearing age
effective January 1, 1998, as well as coverage for annual prostate cancer
screening, including a prostate-specific antigen blood test, for beneficiaries
over age 50, effective January 1, 2000. Although most women of childbearing age
and men under age 65 are not Medicare beneficiaries, the addition of Medicare
coverage for these tests could provide additional revenues for the Company. With
the BBA, Congress merged the three existing conversion factors into one for all
types of services provided resulting in a single conversion factor for 1998 of
$36.69. These changes effectively provided for an 8.3% increase in reimbursement
in 1998. The conversion factor was reduced by 5% in 1999 to $34.73.
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LABORATORY COMPLIANCE PLAN. In February 1997, OIG released a model
compliance plan for laboratories that is based largely on the corporate
integrity agreements negotiated with the laboratories which settled a number of
government enforcement actions against laboratories under Operation Restore
Trust, initiated in 1995. The Company adopted and maintains a compliance plan,
which includes components of OIG's model compliance plan, as the Company deemed
appropriate to the conduct of its business. The Company's Vice President of
Human Resources serves as the Company's Compliance Officer and reports directly
to the Board of Directors. One key aspect of the corporate integrity agreements
and the model compliance plan is an emphasis on the responsibilities of
laboratories to notify physicians that Medicare covers only medically necessary
services. Although these requirements focus on chemistry tests, especially
routine tests, rather than on anatomic pathology services or the non-automated
tests which make up the majority of the Company's business, they could affect
physician test ordering habits more broadly. The Company is unable to predict
whether or to what extent these developments may have an impact on the
utilization of the Company's services.
ANTITRUST LAWS. In connection with the corporate practice of medicine
laws discussed above, the physician practices with which the Company is
affiliated in some states are organized as separate legal entities. As such, the
physician practice entities may be deemed to be persons separate both from the
Company and from each other under the antitrust laws and, accordingly, subject
to a wide range of laws that prohibit anti-competitive conduct among separate
legal entities. In addition, the Company also is seeking to acquire or affiliate
with established and reputable practices in its target geographic markets. The
Company believes it is in compliance with these laws and intends to comply with
any state and federal laws that may affect its development of integrated
healthcare delivery networks. There can be no assurance, however, that a review
of the Company's business by courts or regulatory authorities would not
adversely affect the operations of the Company and its affiliated physician
groups.
HIPPA CRIMINAL PENALTIES. HIPAA created criminal provisions, which
impose criminal penalties for fraud against any health care benefit program for
theft or embezzlement involving health care and for false statements in
connection with the payment of any health benefits. HIPAA also provided broad
prosecutorial subpoena authority and authorized property forfeiture upon
conviction of a federal health care offense. Significantly, the HIPAA provisions
apply not only to federal programs, but also to private health benefit programs
as well. HIPAA also broadened the authority of the OIG to exclude participants
from federal health care programs. Because of the uncertainties as to how the
HIPAA provisions will be enforced, the Company currently is unable to predict
their ultimate impact on the Company. If the government were to seek any
substantial penalties against the Company, this could have a material adverse
effect on the Company.
LICENSING. CLIA extends federal oversight to virtually all clinical
laboratories by requiring that laboratories be certified by the government. Many
laboratories must also meet governmental quality and personnel standards,
undergo proficiency testing and be subject to biennial inspection. Rather than
focusing on location, size or type of laboratory, this extended oversight is
based on the complexity of the test performed by the laboratory. The CLIA
quality standards regulations divide all tests into three categories (wavered,
moderate complexity and high complexity) and establish varying requirements
depending upon the complexity of the test performed. The Company's outpatient
laboratories are licensed by CLIA to perform high complexity testing. Generally,
the HHS regulations require laboratories that perform high complexity or
moderate complexity tests to implement systems that ensure the accurate
performance and reporting of tests results, establish quality control systems,
have proficiency testing conducted by approved agencies and have biennial
inspections. The Company is also subject to state regulation. CLIA provides that
a state may adopt more stringent regulations than federal law. For example, some
state laws require that laboratory personnel meet certain qualifications,
specify certain quality controls, maintain certain records and undergo
proficiency testing.
OTHER REGULATIONS. In addition, the Company is subject to licensing and
regulation under federal, state and local laws relating to the handling and
disposal of medical specimens, infectious and hazardous waste and radioactive
materials as well as the safety and health of laboratory employees. All Company
laboratories are operated in a manner designed to comply with applicable federal
and state laws and regulations relating to the generation, storage, treatment
and disposal of all laboratory specimens and other biohazardous waste. The
Company utilizes licensed vendors for the disposal of such specimen and waste.
In addition to its comprehensive regulation of safety in the workplace,
the federal Occupational Safety and Health Administration ("OSHA") has
established extensive requirements relating to workplace safety for healthcare
employees, including clinical laboratories, whose workers may be exposed to
blood-borne pathogens, such as HIV and the hepatitis B virus. These regulations
require work practice controls, protective clothing and equipment, training,
medical follow-up, vaccinations and other measures designed to minimize exposure
to, and transmission of, blood-borne pathogens. Regulations of the
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<PAGE>
Department of Transportation, the Public Health Services and the U.S. Postal
Service also apply to the transportation of laboratory specimens.
HIPAA MEDICAL RECORD CONFIDENTIALITY REQUIREMENTS. Among other things,
HIPAA established several requirements regarding the confidentiality of medical
records. HCFA is in the process of establishing regulations that explain the
application of such requirements. It is unclear whether these requirements will
result in additional financial obligations for the Company or pose increased
regulatory risk.
INSURANCE
The Company's business entails an inherent risk of claims of physician
professional liability for acts or omissions of its physicians and laboratory
personnel. The Company and its physicians periodically become involved as
defendants in medical malpractice lawsuits, some of which are currently ongoing,
and are subject to the attendant risk of substantial damage awards. The Company
has consolidated its physician professional liability insurance coverages with
the St. Paul Fire and Marine Insurance Company, whereby each of the pathologists
is insured under claims-made policies with primary limits of $1.0 million per
occurrence and $5.0 million in the annual aggregate, and share with the Company
in surplus coverage of up to $20.0 million in the aggregate. The Company's
coverage until July 1999 was with Steadfast Insurance Company (Zurich-American).
The policy also provides "prior acts" coverage for each of the physicians with
respect to the practices prior to their acquisition by the Company. Further, the
Company has provided reserves for incurred but not reported claims in connection
with its claims-made policies. The terms of the purchase agreements relating to
each practice acquisition contain certain limited rights of indemnification from
the sellers of the practices. The Company also maintains property and umbrella
liability insurance policies. While the Company believes it has adequate
professional liability insurance coverage for itself, and physicians, there can
be no assurance that a future claim or claims will not be successful and, if
successful, will not exceed the limits of available insurance coverage or that
such coverage will continue to be available at acceptable costs or on favorable
terms. In addition, the Company's insurance does not cover all potential
liabilities arising from governmental fines and penalties, indemnification
agreements and certain other uninsurable losses. A malpractice claim asserted
against the Company, a Management or Practice Subsidiary, a PA Contractor or an
affiliated physician could, in the event of an adverse outcome exceeding limits
of available insurance coverage, have a material adverse effect on the Company's
financial condition and results of operations.
COMPETITION
The markets for the services provided by the Company, its Practices and
pathologists are in the provision of physician practice management services to
pathology practices and the provision of pathology and cytology diagnostic
services. Competition may result from other anatomic pathology practices,
companies in other healthcare industry segments, such as other hospital-based
specialties, national clinical laboratories, large physician group practices or
pathology physician practice management companies that may enter the Company's
markets, some of which may have greater financial and other resources than the
Company.
With respect to physician practice management services, the Company
believes that the principal competitive factors are the Company's pathologist
leadership, and single specialty focus, sales and marketing expertise, its
administrative support capabilities (billing, collections, accounting and
financial reporting, information systems, and human resources). The Company
believes that the infrastructure it is building provides a competitive advantage
in such markets. To date, the Company has not experienced significant
competition in its primary market areas. However, it does compete with several
other companies, and such competition can reasonably be expected to increase. In
addition, companies in other healthcare segments, such as hospitals, national
clinical laboratories, third party payors, and HMO's, many of which have greater
financial resources may become competition in the employment and managers of
pathology practices. The Company competes for acquisitions and affiliations on
the basis of its reputation, management experience, status and resources as a
public company and its single focus on anatomic pathology. There can be no
assurance that the Company will be able to compete effectively or that
additional competitors will not enter the Company's markets or make it more
difficult for the Company to acquire or affiliate with practices on favorable
terms.
SERVICE MARKS
The Company has registered the service mark "AmeriPath" and the
AmeriPath logo with the United States Patent and Trademark Office.
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EMPLOYEES
At December 31, 1999, the Company's employees totaled 1,595, including
297 physicians. In addition to physicians, the Company's employees include 497
laboratory technicians, 99 couriers and 702 billing, marketing, transcription
and administrative staff, of which 87 personnel are located at the Company's
executive offices. None of the Company's employees or prospective employees is
subject to collective bargaining agreements.
ITEM 2. PROPERTIES
The Company leases its executive offices located in Riviera Beach,
Florida (approximately 12,000 square feet) and its centralized billing office in
Fort Lauderdale, Florida (approximately 13,000 square feet) and leases 48 other
facilities: 25 in Florida, two in Alabama, two in Kentucky, three in Ohio, eight
in Texas, three in Pennsylvania, and one in North Carolina, Indiana, New York,
Mississippi and Wisconsin. These facilities are used for laboratory operations,
administrative and billing and collections operations and storage space. The 50
facilities encompass an aggregate of approximately 206,000 square feet, have an
aggregate annual rent of approximately $2.3 million and have lease terms
expiring from 2000 to 2009. As laboratory leases are scheduled to expire, the
Company will consider whether to extend or renegotiate the existing lease or
move the facility to another location within the defined geographic area of the
Practice.
ITEM 3. LEGAL PROCEEDINGS
During the ordinary course of business, the Company has become and may
in the future become subject to pending and threatened legal actions and
proceedings. The Company may have liability with respect to its employees and
its pathologists as well as with respect to hospital employees who are under the
supervision of the hospital based pathologists. The majority of the pending
legal proceedings involve claims of medical malpractice. Most of these relate to
cytology services. These claims are generally covered by insurance. Based upon
investigations conducted to date, the Company believes the outcome of such
pending legal actions and proceedings, individually or in the aggregate, will
not have a material adverse effect on the Company's financial condition, results
of operations or liquidity. If the Company is ultimately found liable under
these medical malpractice claims, there can be no assurance that the Company's
medical malpractice insurance coverage will be adequate to cover any such
liability. The Company may also, from time to time, be involved with legal
actions related to the acquisition of and affiliation with physician practices,
the prior conduct of such practices, or the employment (and restriction on
competition of) physicians. There can be no assurance any costs or liabilities
for which the Company becomes responsible in connection with such claims or
actions will not be material or will not exceed the limitations of any
applicable indemnification provisions or the financial resources of the
indemnifying parties.
As further described above under "Government Regulation -Reevaluations
and Examination of Billing", in November 1998 AmeriPath received (and publicly
announced that it received) a request for a refund of $2.95 million from the
MPS, and the Company also announced that it was vigorously contesting the
Medicare repayment. Following that announcement, seven class action lawsuits
were filed against the Company and certain officers and directors on behalf of
AmeriPath stockholders alleging, among other things, that the Company had
violated securities laws because the Company allegedly had previously failed to
properly disclose the use of improper billing procedures. Then in December 1998,
the Company announced that Medicare, after further consideration of the
Company's position, agreed with the Company and was withdrawing its request for
the $2.95 million refund. As a result, AmeriPath insisted that all the
plaintiff's dismiss their lawsuits against the Company without any payment from
AmeriPath and that all class action plaintiffs publish notice to the class that
they sought to represent that Medicare had withdrawn its refund claim and the
plaintiffs would no longer be pursuing their actions against AmeriPath either on
their own behalf or on behalf of any other shareholder. As of January 8, 1999,
all seven of the class action lawsuits had been dismissed and the requested
notices had been published.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matter was submitted to a vote of security holders during the fiscal
quarter ended December 31, 1999.
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PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
AmeriPath's Common Stock, is listed for quotation on the NASDAQ National
Market System under the symbol "PATH". The following table sets forth, the high
and low closing sales prices for the Common Stock, as reported on the NASDAQ
National Market System during the Company's fiscal quarters indicated below. The
Common Stock first began trading on October 21, 1997. As of March 10, 2000,
there were approximately 222 shareholders of record and over 1,800 beneficial
owners.
HIGH LOW
---- ---
First Quarter 1998 $ 18 3/4 $ 14
Second Quarter 1998 $ 18 13/16 $ 11 13/16
Third Quarter 1998 $ 14 7/8 $ 10
Fourth Quarter 1998 $ 14 5/8 $ 4 1/16
First Quarter 1999 $ 12 9/16 $ 7 1/2
Second Quarter 1999 $ 9 5/8 $ 7 1/2
Third Quarter 1999 $ 10 1/8 $ 8 3/32
Fourth Quarter 1999 $ 10 $ 7 7/16
The Company presently has no plans to pay any dividends on its common
stock. All earnings will be retained for the foreseeable future to support
operations and to finance the growth and development of the Company's business.
The payment of future cash dividends, if any, will be at the discretion of the
Board of Directors of the Company and will depend upon, among other things,
future earnings, capital requirements, the Company's financial condition, any
applicable restrictions under credit agreements existing from time to time and
on such other factors as the Board of Directors may consider relevant. The terms
of the Company's existing credit facility prohibit the payment of dividends
without the lenders' consent.
RECENT SALES OF UNREGISTERED SECURITIES
There were no shares of Common Stock issued in the fourth quarter of
1999 or through the date of this report.
ITEM 6. SELECTED FINANCIAL DATA
The selected Consolidated Financial Data set forth below have been
derived from the Company's consolidated financial statements and should be read
in conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations," the Consolidated Financial Statements and the
related Notes thereto and the other financial information included elsewhere in
this Annual Report on Form 10-K.
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<PAGE>
CONSOLIDATED STATEMENT OF OPERATIONS DATA:
YEAR ENDED DECEMBER 31,
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
1995 1996 1997 1998 1999
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Net revenue $ 16,024 $ 42,558 $ 108,406 $ 177,304 $ 232,753
--------- --------- --------- --------- ---------
Operating costs:
Cost of services 8,517 20,106 48,833 78,460 108,177
Selling, general and administrative
expense 2,644 8,483 19,929 29,731 37,590
Provision for doubtful accounts 1,161 3,576 10,892 18,698 25,262
Amortization expense 678 1,958 5,762 9,461 12,453
Loss on cessation of clinical lab
operations (1) -- 910 -- -- --
--------- --------- --------- --------- ---------
Total 13,000 35,033 85,416 136,350 183,482
--------- --------- --------- --------- ---------
Income from operations 3,024 7,525 22,990 40,954 49,271
Interest expense (1,504) (3,540) (8,763) (8,201) (9,299)
Nonrecurring charge (2) -- -- (1,289) -- --
Other (expense) income, net (46) (431) (96) 10 114
--------- --------- --------- --------- ---------
Income before income taxes 1,474 3,554 12,842 32,763 40,086
Provision for income taxes 572 1,528 5,522 14,124 17,117
--------- --------- --------- --------- ---------
Net income $ 902 $ 2,026 $ 7,320 $ 18,639 $ 22,969
========= ========= ========= ========= =========
Earnings per share data (3)
Basic earnings per common share $ 0.39 $ 0.53 $ 0.80 $ 0.92 $ 1.08
========= ========= ========= ========= =========
Diluted earnings per common share $ 0.13 $ 0.22 $ 0.53 $ 0.89 $ 1.05
========= ========= ========= ========= =========
Basic weighted average shares outstanding 1,426 3,115 8,773 20,339 21,296
========= ========= ========= ========= =========
Diluted weighted average shares outstanding 7,200 9,014 13,879 21,038 21,828
========= ========= ========= ========= =========
CONSOLIDATED BALANCE SHEET DATA:
DECEMBER 31,
(IN THOUSANDS)
1995 1996 1997 1998 1999
--------- --------- --------- --------- ---------
Cash and cash equivalents $ 58 $ 2,262 $ 397 $ 458 $ 620
Total assets 20,034 157,854 269,227 361,947 450,146
Long term debt, including current
portion 15,146 97,239 75,074 123,508 164,616
Redeemable equity securities (4) 6,085 18,427 -- -- --
Stockholders' equity (deficit) (2,224) 12,693 144,817 177,824 204,042
</TABLE>
- ---------
(1) In connection with the closing of a clinical operation in May 1996, the
Company recorded a nonrecurring charge to operations aggregating
$910,000, which included severance payments, write-downs of property,
equipment and other assets to estimated realizable values, and the
write-off of the unamortized balances of intangible assets associated
with the clinical operations.
(2) In the year ended December 31, 1997, the Company recorded a
nonrecurring charge of $1.3 million, primarily professional fees and
printing costs, as a result of the postponement of the Company's
planned initial public offering of Common Stock. See Note 18 to the
Consolidated Financial Statements.
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(3) Earnings per share for all periods are computed and presented in
accordance with Statement of Financial Accounting Standards ("SFAS")
No. 128, "Earnings Per Share". Basic earnings per share excludes
dilution and is computed by dividing income attributable to common
stockholders by the weighted-average number of common shares
outstanding for the period. Diluted earnings per share reflects the
potential dilution that could occur if securities or other contracts to
issue common stock were exercised or converted into common stock or
resulted in the issuance of common stock that then shared in the
earnings of the entity. Prior reported earnings per share data have
been restated in accordance with SFAS No. 128.
(4) For December 31, 1995 and 1996 amounts include Convertible Preferred
Stock of $5.2 million plus accrued and unpaid dividends and at December
31, 1996 $12.2 million of Redeemable Common Stock.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion of the Company's results of operations and
financial condition should be read together with the consolidated financial
statements and other financial information included elsewhere in this Report.
GENERAL
AmeriPath operates in a single operating segment as the nation's
leading integrated physician group practice and laboratory management company
focused on providing anatomic pathology diagnostic services. The Company
operates as a large group practice of pathologists in both hospital inpatient
laboratories and outpatient independent laboratories.
The pathologists provide diagnostic anatomic pathology and related
histologic services with particular emphasis on dermatopathology (study of
diseases of the skin), hematopathology (study of diseases of the blood), and
cytopathology (study of abnormalities of the cells), as well as surgical
pathology (diagnostic services in connection with surgical procedures).
Outpatient pathology services are performed in licensed freestanding,
independent pathology laboratories owned and operated by the Company. Services
performed are billed to patients, Medicare, Medicaid, other third party payors,
national clinical laboratories and attending physicians primarily on a
fee-for-service basis, which cover both the professional and technical
components of such services.
Inpatient pathology services are performed under exclusive contractual
arrangements with hospitals. Net revenue for inpatient pathology services is
dependent in large part on the level of inpatient admissions and outpatient
surgeries performed at the hospitals. Such arrangements typically provide that a
pathologist will provide diagnostic pathology services for the hospital's staff
physicians and serve as the Medical Director of the hospital's laboratories with
responsibility for the clinical laboratory and histology departments, as well as
the hospital's blood banking and microbiology services.
Achieving growth through acquisitions is one of the Company's principal
business strategies. The following table depicts the Company's growth through
acquisition activity:
YEAR ENDED DECEMBER 31,
-----------------------
1996 1997 1998 1999
---- ---- ---- ----
Number of practices acquired 11 5 15 10
Pathologists, added 79 45 93 71
Outpatient laboratories, added 10 3 5 8
Hospital contracts, added 47 28 47 39
At December 31, 1999, the Company operated in thirteen states, with 297
pathologists providing services in 164 hospitals and 29 outpatient laboratories.
The Company focuses on developing regional networks, such as in the state of
Florida, and expanding the practices through its internal marketing efforts. The
Company plans to pursue additional acquisitions of inpatient and outpatient
pathology practices in the foreseeable future, which represents a significant
portion of its growth strategy. The Company is also considering starting its own
outpatient laboratories in target market areas and providing esoteric testing
services.
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<PAGE>
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, certain
consolidated financial data as a percentage of net revenue (billings net of
contractual and other allowances).
PERCENTAGE OF NET REVENUE YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
----- ----- -----
Net revenue 100.0% 100.0% 100.0%
----- ----- -----
Operating costs:
Cost of services 45.0 44.3 46.5
Selling, general and administrative expense 18.5 16.8 16.1
Provision for doubtful accounts 10.0 10.5 10.9
Amortization expense 5.3 5.3 5.3
----- ----- -----
Total operating costs and expenses 78.8 76.9 78.8
----- ----- -----
Income from operations 21.2 23.1 21.2
Interest expense (8.1) (4.6) (4.0)
Nonrecurring charge (1.2) -- --
----- ----- -----
Income before income taxes 11.9 18.5 17.2
Provision for income taxes 5.1 8.0 7.3
----- ----- -----
Net income 6.8% 10.5% 9.9%
===== ===== =====
The Company completed the acquisition of ten Practices in 1999, fifteen
Practices in 1998 and five Practices in 1997, the results of which are included
in the Company's operating results from the date of acquisition. Changes in
operations between years were primarily due to these acquisitions.
NET REVENUES
The Company derives its net revenue from the net revenue of the
Practices it owns or manages. The majority of services furnished by the
Company's pathologists are anatomic pathology diagnostic services. Medicare
reimbursement for these services represented approximately 22% and 20% of the
Company's cash collections in 1998 and 1999, respectively. The Company typically
bills government programs (principally Medicare and Medicaid), indemnity
insurance companies, managed care organizations, national clinical laboratories,
physicians and patients. Net revenue differs from amounts billed for services
due to:
/bullet/ Medicare and Medicaid reimbursements at annually established rates;
/bullet/ payments from managed care organizations at discounted fee-for-service
rates;
/bullet/ negotiated reimbursement rates with other third party payors;
/bullet/ rates negotiated under sub-contracts with national clinical
laboratories for the provision of anatomic pathology services; and
/bullet/ other discounts and allowances.
In recent years, there has been a shift away from traditional indemnity
insurance plans to managed care as employers and other payors move their
participants into lower cost plans. The Company benefits more from patients
covered by Medicare and traditional indemnity insurance than managed care
organizations and national clinical laboratories, which contract directly under
capitated agreements with managed care organizations to provide clinical as well
as anatomic pathology services. The Company also contracts with national
clinical laboratories and is attempting to increase the number of such contracts
to increase test volume. Since the majority of the Company's operating costs --
principally the compensation of physicians and non-physician technical personnel
- -- are relatively fixed, increases in volume, whether from indemnity or
non-indemnity plans, enhance the Company's profitability. Historically, net
revenue from capitated contracts has represented an insignificant amount of
total net revenue.
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Virtually all of the Company's net revenue is derived from the
Practices' charging for services on a fee-for-service basis. Accordingly, the
Company assumes the financial risk related to collection, including potential
uncollectability of accounts, long collection cycles for accounts receivable and
delays in reimbursement by third party payors, such as governmental programs,
private insurance plans and managed care organizations. Increases in write-offs
of doubtful accounts, delays in receiving payments or potential retroactive
adjustments and penalties resulting from audits by payors may require the
Company to borrow funds to meet its current obligations or may otherwise have a
material adverse effect on the Company's financial condition and results of
operations. In addition to services billed on a fee-for-service basis, the
hospital-based pathologists have supervision and oversight responsibility for
their roles as Medical Directors of the hospitals' clinical, microbiology and
blood banking operations. For this role, the Company bills non-Medicare patients
according to a fee schedule for what is referred to as clinical professional
component charges. For Medicare patients, the pathologist is typically paid a
Director's fee or "Part A" fee by the hospital. For the year ended December 31,
1999, the Company recorded approximately $7.0 million of revenue from director
fees. For the year 2000, the Company estimates that director fees will be
approximately $8.2 million. The year 2000 estimate reflects the loss of
approximately $1.0 million of fees from existing contracts. Hospitals and
third-party payors are continuing to increase pressure to reduce the payment of
these clinical component billing charges and "Part A" fees, and in the future
the Company may sustain substantial decreases in these payments.
Effective January 1, 1992, Medicare began reimbursing all physician
services, including anatomic pathology services, based on a methodology known as
the resource-based relative value system ("RBRVS"), which was to be fully phased
in by 1996. Overall, anatomic pathology reimbursement rates declined during the
fee schedule phase-in period, despite an increase in payment rates for certain
pathology services performed by the Company.
The Medicare Part B fee schedule payment for each service is determined
by multiplying the total relative value units ("RVUs") established for the
service by a Geographic Practice Cost Index (GPCI). The sum of this value is
multiplied by a statutory conversion factor. The number of RVUs assigned to each
service is in turn calculated by adding three separate components: work RVU
(intensity of work), practice expense RVU (expense related to performing the
service) and malpractice RVU (malpractice costs associated with the service).
In 1996, the Health Care Financing Administration ("HCFA") completed a
five-year review of the work value component and, as a result, revised the work
value amount assigned to many physician services. In addition, based on a
default formula established by statute, the 1997 conversion factor for
non-surgical services dropped 0.8% to $33.85. As part of its five-year review of
the RBRVS system, HCFA recalculated all of the RBRVS weights. These revisions
generally resulted in a further reduction in Medicare reimbursement. HCFA also
reduced the number of physician fee schedule payment localities from 210 to 89,
effective January 1, 1997. Because of all these changes, there was an overall
decrease in reimbursement rates for pathology services of approximately 5.3%
beginning January 1, 1997.
BBA added coverage for an annual screening pap smear for Medicare
beneficiaries who are at high risk of developing cervical or vaginal cancer and
for beneficiaries of childbearing age effective January 1, 1998, as well as
coverage for annual prostate cancer screening, including a prostate-specific
antigen blood test, for beneficiaries over age 50, effective January 1, 2000.
Although most women of childbearing age and men under age 65 are not Medicare
beneficiaries, the addition of Medicare coverage for these tests could provide
additional revenues for the Company. With the BBA, Congress merged the three
existing conversion factors into one for all types of services provided
resulting in a single conversion factor for 1998 of $36.69. These changes
effectively provided for an 8.3% increase in reimbursement in 1998.
In 1997, HCFA published regulations that recalculated a key component
of the RBRVS fee schedule. This recalculation modified the practice overhead
expense RVUs to reflect resource consumption, rather than the historical charge
data used to establish the original practice expense. The implementation of
resource based practice expense RVUs began in 1999, and will be phased in over
the period 1999-2002. Also, in 1999 the physician fee schedule conversion factor
was reduced by 5% from $36.69 in 1998 to $34.73 for 1999. The law provides that
if adjustments to RVUs cause the total physician fee schedule payments to differ
by $20 million from the amount of expenditures that would have been made if such
adjustments had not been made, HCFA must make adjustments to the conversion
factors to preserve budget neutrality. The conversion factor was also affected
by the elimination of the separate 0.917 budget-neutrality adjustment to the
work relative value units and the adjustments made to the practice expense and
malpractice relative value units to ensure that percentages of fee schedule
allowed charges for work, practice expense and malpractice premiums equal the
new percentages that those
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<PAGE>
categories represent in the revised Medicare Economic Index ("MEI") weights. The
MEI measures the weighted-average annual price change for various inputs needed
to produce physician's services.
HCFA also provided for a separate pap smear interpretation to be made
for all smears that require interpretation by a pathologist beginning January 1,
1999. The amount of this reimbursement will be approximately $36.00 adjusted for
the payor locality.
In July 1999, HCFA announced several proposed rule changes, and issued
a final rule on November 2, 1999 that impacts payment for pathology services.
The changes include: (a) the implementation of resource-based malpractice RVUs,
which should not significantly change reimbursement; and (b) as noted above, the
1997 regulations required HCFA to develop a methodology for resource-based
practice expense RVUs for each physician service beginning in 1998. The BBA of
1997 provided for a four-year transition period. HCFA has established, and is
proposing, a new methodology for computing resource-based practice expense that
uses available practice expense data. In the November 2, 1998 final rule, an
interim solution was developed which created a separate practice expense pool
for all services with zero work RVUs. As published in the November 2, 1999 final
rule, certain reimbursement codes were removed from the zero work RVU pool. The
impact of these procedures from the zero work pool varies by procedure and
geographic region. The impact of the changes for pathology revenue were
estimated by HCFA to be 8%, however, the magnitude of the impact that Medicare
has on AmeriPath depends upon the mix of Medicare and non-Medicare services. For
those outpatient facilities that AmeriPath bills globally, the average
percentage increase is 16.6% for a common CPT code 88305. In addition, HCFA
announced that it will cease the direct payment by Medicare for the technical
component of inpatient physician pathology services to an outside independent
laboratory on the basis that it believes that the cost of the technical
component for inpatient services is already included in the payment to hospitals
under the hospital inpatient prospective payment system. Implementation of this
change will commence January 1, 2001 in order to allow independent laboratories
and hospitals sufficient time to negotiate arrangements. Where one of the
Company's facilities is providing technical component for inpatient services, it
will now be required to seek reimbursement directly from the hospital. HCFA also
announced that the physician fee schedule conversion factor will increase from
$34.73 to $36.61 in 2000.
Management continuously monitors changes in legislation impacting
reimbursement. The impact of the legislative changes on the Company's results of
operations will depend upon several factors, including comments on proposed
rules, the mix of inpatient and outpatient pathology services furnished by the
Company, the amount of Medicare business and conversion factors (budget
neutrality adjustments) which are published in November of each year.
In prior years, the Company has been able to mitigate the impact of
reduced Medicare reimbursement rates for anatomic pathology services through the
achievement of economies of scale and the introduction of alternative
technologies that are not dependent upon reimbursement through the RBRVS system.
Despite any offsets, the recent substantial modifications to the physician fee
schedule, along with additional adjustments by Medicare, could have a negative
effect on the Company's average unit reimbursement in the future. In addition,
other third-party payors could adjust their reimbursement based on changes to
the Medicare fee schedule. Any reductions made by other payors could have a
negative impact on the average unit reimbursement.
Net revenue for 1999 increased by $55.5 million, or 31.3%, from $177.3
million for the year ended December 31, 1998, to $232.8 million for the year
ended December 31, 1999. Of this increase, $49.0 million was attributable to the
acquisitions the Company completed during 1998 and 1999. Same practice net
revenue for 1999 increased by $6.5 million, or 4%. Same practice hospital net
revenue increased $3.1 million, or 2% and same practice outpatient net revenue
increased $4.2 million, or 3%. These increase were offset by a 1% Medicare
reimbursement decrease, which was effective January 1, 1999. Reference to same
practice means practices at which the Company provided services for the entire
period for which the amount is calculated and the entire prior comparable
period, including acquired hospital contracts and expanded ancillary testing
services added to existing practices.
During 1999, approximately $21.7 million, or 9%, of the Company's net
revenue was from contracts with national labs including Quest and LabCorp.
Although the Company has had these national lab contracts for a number of years,
the decision by Quest and/or LabCorp to discontinue using the Company for
pathology services, at any or all of its practices, could have a material
adverse effect on the Company's financial position and results of operations. In
addition, approximately 17% of the Company's net revenue comes from 27 Columbia
hospitals. Generally, these contracts and other hospital contracts have
remaining terms of less than five years and contain renewal provisions. Some of
the contracts also
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contain clauses that allow for termination by either party with relatively short
notice. Columbia has been under government investigation for some time and is
evaluating its operating strategies; including the sale, spin-off or closure of
certain hospitals. During 1999, Columbia closed one hospital and sold another
hospital where the Company provided pathology services. The estimated net
revenue from the loss of these contracts is less than 1% of consolidated net
revenue, however, there can be no assurance that the Company will be able to
make proportionate reductions in operating costs to offset the decrease in net
revenue. In addition, further closures and\or sales of Columbia hospitals could
have a material adverse effect on the Company's financial position and results
of operations. Although the Company, through its acquisitions, has had
relationships with these hospitals for extended periods of time, the termination
of one or more of these contracts could have a material adverse effect on the
Company's financial position and results of operations.
Net revenue for 1998 increased by $68.9 million, or 63.6%, from $108.4
million for the year ended December 31, 1997, to $177.3 million for the year
ended December 31, 1998. Of this increase, $59.4 million was attributable to the
acquisitions the Company completed during 1997 and 1998. Same practice net
revenue for 1998 increased by $9.5 million, or 10%. Same practice inpatient net
revenue was relatively flat, while the same practice outpatient net revenue
increased approximately 8%. In addition, the Medicare reimbursement increase,
which was effective January 1, 1998, resulted in a 2% increase in same practice
net revenue. During 1998, approximately $14 million, or 8%, of the Company's net
revenue was from contracts with national labs. In addition, approximately 18% of
the Company's net revenue came from 29 Columbia hospitals.
The percent of the Company's net revenue from outpatient and inpatient
pathology services is presented below. The type and mix of business of the
Company's Practices, inpatient or outpatient, which changes as a result of new
acquisitions, and may affect the changes in the Company's operating costs,
specifically the provision for doubtful accounts, as noted in the sections that
follow.
YEAR ENDED DECEMBER 31,
-----------------------
REVENUE TYPE 1997 1998 1999
---- ---- ----
Inpatient 45% 52% 57%
Outpatient 55% 48% 43%
COST OF SERVICES
Cost of services consists principally of the compensation and fringe
benefits of pathologists, licensed technicians and support personnel, laboratory
supplies, shipping and distribution costs and facility costs. Cost of services
for 1999 increased by $29.7 million, or 37.9%, from $78.5 million for the year
ended December 31, 1998, to $108.2 million for the year ended December 31, 1999.
Cost of services, as a percentage of net revenues, increased from 44.3% in 1998
to 46.5% in 1999. Gross margin decreased from approximately 55.7% in 1998 to
53.5% in 1999. A portion of the decline is related to the decrease in Medicare
reimbursement rates. In addition, the Company incurred expenses related to the
start-up of a de novo outpatient dermatopathology laboratory in New York. This
facility commenced operations in late July 1999. Excluding the results of
operations for the New York start up, the Company's gross margin would have been
approximately 54% in 1999.
Cost of services for 1998 increased by $29.7 million, or 60.7%, from
$48.8 million for the year ended December 31, 1997, to $78.5 million for the
year ended December 31, 1998. Of this increase, $24.6 million was attributable
to the acquisitions the Company completed during 1997 and 1998, and $5.0 million
was in same practice costs. Cost of services, as a percentage of net revenues,
decreased from 45.0% in 1997 to 44.3% in 1998 due in part to cost and
operational efficiencies and the Medicare price increase which went into effect
January 1, 1998.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSE
The cost of corporate support, sales and marketing, and billing and
collections comprise the majority of what is classified as selling, general and
administrative expense. Selling, general and administrative expense, as a
percentage of net revenues decreased from 16.8% in 1998 to 16.1% in 1999, as the
Company imposed measures to control the growth in these costs and continued to
spread these costs over a larger revenue base. An objective of the Company is to
decrease these costs as a percentage of net revenues, however, these costs, as a
percentage of net revenue, may increase as the Company continues to invest
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in marketing, information systems and billing operations. In addition, the
relocation of CAD to Orlando may result in additional selling, general and
administrative costs.
Selling, general and administrative expense for 1999 increased by $7.9
million, or 26.4%, from $29.7 million for the year ended December 31, 1998, to
$37.6 million for the year ended December 31, 1999. Of this increase, $1.7
million, or 21.5%, was attributable to the acquisitions the Company completed
during 1998 and 1999. The remaining increase was due to increased staffing
levels in marketing, billing, human resources and accounting and costs incurred
to expand the Company's administrative support infrastructure and to upgrade
information systems.
Selling, general and administrative expense for 1998 increased by $9.8
million, or 49.2%, from $19.9 million for the year ended December 31, 1997, to
$29.7 million for the year ended December 31, 1998. Of this increase, $6.7
million, or 69%, was attributable to the acquisitions the Company completed
during 1997 and 1998. The remaining increase was due to increased staffing
levels in marketing, billing, human resources and accounting and costs incurred
to expand the Company's administrative support infrastructure and to upgrade
information systems.
PROVISION FOR DOUBTFUL ACCOUNTS
The provision for doubtful accounts increased by $6.6 million, or
35.1%, from $18.7 million for the year ended December 31, 1998, to $25.3 million
for the same period in 1999. The dollar increase is primarily due to the
increase in net revenues and accounts receivable from the acquisitions completed
during 1998 and 1999. The provision for doubtful accounts as a percentage of net
revenues was 10.5% and 10.9% for the year ended December 31, 1998 and 1999,
respectively. The increase in the percentage of net revenue was primarily
attributable to an overall increase in hospital based revenues. Net revenue from
hospital inpatient services increased as a percentage of consolidated net
revenue from 52% in 1998 to 57% in 1999. The provision for doubtful accounts as
a percentage of net revenue is higher for inpatient (hospital) services than for
outpatient services due primarily to a larger concentration of indigent and
private pay patients, more difficulties gathering complete and accurate billing
information, and longer billing and collection cycles for inpatient services.
The provision for doubtful accounts increased by $7.8 million, or
71.7%, from $10.9 million for the year ended December 31, 1997, to $18.7 million
for the year ended December 31, 1998. The provision for doubtful accounts, as a
percentage of net revenue, was 10.0% and 10.5% for the years ended December 31,
1997 and 1998, respectively. This increase in the percentage of net revenue was
primarily attributable to the acquisitions, principally the acquisition of
inpatient hospital based practices, the Company completed during 1997 and 1998.
Net revenue from inpatient services increased as a percentage of consolidated
net revenue from 45% in 1997 to 52% in 1998. As stated above, the provision for
doubtful accounts as a percentage of net revenue is higher for inpatient
services than for outpatient services.
AMORTIZATION EXPENSE
The Company's acquisitions completed in 1996, 1997, 1998 and 1999
resulted in significant increases in net identifiable intangible assets and
goodwill. Net identifiable intangible assets and goodwill, which include
hospital contracts, physician client lists and laboratory contracts acquired in
the acquisitions were approximately $305.4 million and $378.4 million at
December 31, 1998 and 1999, respectively, representing approximately 84.4% and
84.1%, respectively, of the Company's total assets. Net identifiable intangible
assets are recorded at fair value on the date of acquisition and are amortized
over periods ranging from 10 to 40 years, with a weighted average of 30.0 years
as of December 31, 1999. The Company amortizes goodwill on a straight-line basis
over periods ranging from 10 to 35 years, with a weighted average of 31.8 years
as of December 31, 1999. There can be no assurance that the value of intangible
assets will ever be realized by the Company. The Company continually evaluates
whether events or circumstances have occurred that may warrant revisions to the
carrying values of its goodwill and other identifiable intangible assets, or to
the estimated useful lives assigned to such assets. Any significant impairment
recorded on the carrying values of the Company's goodwill or other identifiable
intangible assets could have a material adverse effect on the Company's
consolidated financial position and results of operations. Such impairment would
be recorded as a charge to operating profit and reduction in intangible assets.
See the discussion of possible impairment below regarding contracts with Primary
Health Systems.
During the first quarter of 2000, the Company received information that
Primary Health Systems ("PHS"), a regional hospital network in Cleveland, Ohio
(the "City") that the Company provides services to, began implementing its plan
of
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reorganization it filed under Chapter 11 with the U.S. Bankruptcy Court for the
District of Delaware. One of the Company's practices provides services at four
PHS hospitals and an ambulatory care facility. The Company acquired the affected
practice during the fourth quarter of 1998. Information received to date
indicates that PHS, in accordance with its bankruptcy plan, plans to sell two
hospitals and the ambulatory care facility to the Cleveland Clinic Foundation
(the "Foundation"). However, several parties, including the City, are contesting
the bankruptcy plan and sale to the Foundation. Management and the practice's
Managing Director are actively planning to retain the outpatient business and
combine it with the Company's other operations near the City. At this time, we
are still uncertain as to the future operations or cash flows from this
practice. If the final reorganization of PHS results in a reduction of cash flow
and the Company is unable to sufficiently reduce the corresponding operating
costs, an impairment of the intangible assets of this practice may occur. If
impairment were to occur, the maximum non-cash charge would be approximately
$4.7 million offset by a deferred tax benefit of approximately $1.1 million. Net
revenues of this AmeriPath practice were approximately $2.5 million in 1999.
There can be no assurance this practice will continue to derive any revenues
from PHS due to the events described above. The Company will continue to monitor
the status of the reorganization and the effect on cash flows and the carrying
values of the related intangibles on a quarterly basis.
Amortization expense increased by $3.0 million, or 31.6%, from $9.5
million for the year ended December 31, 1998, to $12.5 million for the year
ended December 31, 1999. This increase is attributable to the amortization of
goodwill and net identifiable intangible assets from the acquisitions the
Company completed during 1999 and a full year of amortization from the
acquisitions the Company completed during 1998. Amortization expense is expected
to increase on an annual basis as a result of identifiable intangible assets and
goodwill arising from acquisitions, and any contingent payments required to be
made pursuant to the contingent notes issued in connection therewith.
Amortization expense, as a percentage of net revenues, was 5.3% in 1998 and
1999.
Amortization expense increased by $3.7 million, or 64.1%, from $5.8
million for the year ended December 31, 1997, to $9.5 million for the year ended
December 31, 1998. This increase is attributable to the amortization of goodwill
and net identifiable intangible assets from the acquisitions the Company
completed during 1998 and a full year of amortization from the acquisitions the
Company completed during 1997. Amortization expense, as a percentage of net
revenues, was 5.3% in 1997 and 1998.
NONRECURRING CHARGE
During the year ended December 31, 1997, the Company wrote-off certain
deferred offering costs aggregating $1.3 million, primarily consisting of
professional fees and printing costs related to a registration statement
(relating to an intended initial public offering of shares of common stock)
filed by the Company with the Securities and Exchange Commission that was
withdrawn in May 1997.
INTEREST EXPENSE AND OTHER EXPENSE, NET
Interest expense increased by $1.1 million, or 13.4%, from $8.2 million
for the year ended December 31, 1998, to $9.3 million for the year ended
December 31, 1999. The increase was due in part to an increase in the average
indebtedness outstanding. In 1999, average indebtedness outstanding was $139.4
million, compared to average indebtedness of $101.3 million outstanding in 1998.
This increase in average indebtedness was offset by a reduction in the effective
interest rate from 8.0% to 6.7% primarily due to the interest rate swap that was
in effect for all of 1999. This interest rate swap was entered into in October
1998.
Interest expense decreased by $600,000, or 6.4%, from $8.8 million for
the year ended December 31, 1997, to $8.2 million for the year ended December
31, 1998. The decrease was due in part to a reduction in the average
indebtedness outstanding. In 1998 average indebtedness outstanding was $101.3
million, compared to average indebtedness of $103.5 million outstanding in 1997.
In addition, the effective interest rate declined from 8.5% to 8.0% due to the
reduction in the prime and LIBOR borrowing rates.
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<PAGE>
INCOME TAX RATE
The effective income tax rate was approximately 43.0% for the years
ended December 31, 1997 and 1998, and approximately 42.7% for the year ended
December 31, 1999. The effective tax rate is higher than the Company's statutory
rates primarily due to the non-deductibility of the goodwill amortization
related to the Company's acquisitions.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 1999, the Company had working capital of $35.2 million,
an increase of $6.6 million from the working capital of $28.6 million at
December 31, 1998. The increase in working capital was due to increases in net
accounts receivable of $9.9 million partially offset by an increase in accounts
payable and accrued expenses of $2.4 million and a decrease in prepaid taxes of
$2.8 million. The majority of these changes resulted from the acquisitions the
Company completed during 1999. The Company manages its cash balances against
amounts available under its revolving credit facility. Cash balances, for the
most part, are managed on a zero-balance basis and all available cash flows are
used to reduce outstanding debt in order to minimize interest cost.
For the years ended December 31, 1998 and 1999, cash provided by
operations was $21.7 million and $35.1 million, respectively. For the year ended
December 31, 1999, cash flow from operations and borrowings under the Company's
credit facility were used: (i) for capital expenditures aggregating $8.1
million; (ii) to fund the $49.2 million cash portion of the acquisitions the
Company completed during 1999; (iii) to make additional payments of $20.4
million in connection with the Company's acquisition activities, including
contingent note payments of $17.4 million; (iv) to pay $1.2 million of costs
associated with amending the Company's credit facility; and (v) to make $1.3
million in principal payments on long-term debt.
During October 1997, the Company completed an initial public offering
and issued 5,835,457 shares of common stock at $16 per share resulting in
proceeds, net of underwriter commissions and offering costs, of approximately
$84.7 million. The Company used the proceeds from the offering to repay $11.1
million of outstanding principal and interest on Junior Notes and Senior Notes,
$1.3 million of accrued dividends on the Convertible Preferred Stock, and $72.3
million of indebtedness outstanding under the Company's credit facility.
During 1999, the Company acquired 10 anatomic pathology practices.
Total consideration in connection with these acquisitions included cash of $49.2
million and approximately 487,000 shares of common stock. Generally, the shares
of common stock are restricted as to transfer, which restrictions lapse over
three to five years, based solely on the passage of time.
At December 31, 1999, the Company had $66.7 million available under its
credit facility with a syndicate of banks led by BankBoston, N.A., as agent. The
amended facility provides for borrowings of up to $230 million in the form of a
revolving loan that may be used for working capital purposes and to fund
acquisitions to the extent not otherwise used for working capital purposes. As
of December 31, 1999, $163.3 million was outstanding under the revolving loan
with an annual effective interest rate of 7.79%. In October 1998, the Company
entered into two, two year, interest rate swap transactions which involves the
exchange of floating for fixed rate interest payments over the life of the
agreement without the exchange of the underlying principal amounts. The
differential to be paid or received is accrued and is recognized as an
adjustment to interest expense. The agreements are with notional amounts of $75
million and $30 million. Under the $75 and $30 million agreements, the Company
receives interest on the notional amounts if the 30 day LIBOR exceeds 4.675% and
5.425%, respectively, and pays interest on the notional amounts if the 30 day
LIBOR is less than the foregoing rates. These derivative financial instruments
are being used by the Company to reduce interest rate volatility and associated
risks arising from the floating rate structure of its credit facility and is not
held or issued for trading purposes. The Company is required by the terms of its
credit facility to keep these interest swap agreements in place. The Company is
currently evaluating additional interest rate protection arrangements including,
the replacement of these contracts when they expire in October 2000, new types
of protection and increasing the notional amounts. Changes to the Company's
interest rate protections and the recent increases in the prime rate and
potential further tightening of interest rates by the Federal Reserve Bank will
result in an increase in the Company's overall interest cost. At December 31,
1999, the Company believes that it is in compliance with the covenants of the
credit facility. See Note 8 to the consolidated financial statements.
In connection with the Company's acquisitions, the Company agreed to
pay a minimum purchase price and to pay additional purchase price consideration
to the sellers of the Practices in proportion to their respective ownership
interest in each Practice. The additional payments are generally contingent upon
the achievement of stipulated levels of operating earnings (as
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<PAGE>
defined) by each of the Practices over periods of three to five years from the
date of the acquisition as set forth in the respective agreements, and are not
contingent on the continued employment of the sellers of the Practices. In
certain cases, the payments are contingent upon other factors such as the
retention of certain hospital contracts for periods ranging from three to five
years. The amount of the payments cannot be determined until the achievement of
the operating earnings levels or other factors during the terms of the
respective agreements. If the maximum specified levels of operating earnings for
each Practice are achieved, the Company would make aggregate maximum payments,
including principal and interest, of approximately $191.2 million over the next
three to five years. At the mid-point level, the aggregate principal and
interest would be approximately $95.6 million over the next three to five years.
A lesser amount or no payments at all would be made if the stipulated levels of
operating earnings specified in each agreement are not met. Through December 31,
1999, the Company made contingent note and interest payments aggregating $26.8
million which amounts represent 60% of the maximum amount available. See Note 3
to the consolidated financial statements.
Historically, the Company's capital expenditures have been primarily
for laboratory equipment, management information systems and leasehold
improvements. Total capital expenditures were $3.2 million, $3.6 million and $
8.1 million in 1997, 1998 and 1999, respectively. During 1999, capital
expenditures included approximately $1.4 million related to information systems,
$1.4 million for laboratory equipment, $1.7 million for leasehold improvements,
$1.5 million for the construction of the New York lab and $1.2 million for the
new billing system at the consolidated billing office in Fort Lauderdale. During
1998, capital expenditures included approximately $1.5 million related to
information systems, $1.0 million for laboratory equipment and $258,000 for
leasehold improvements. During 1997, the Company spent approximately $600,000
for equipment and leasehold improvements to the Orlando facility to accommodate
the expansion of its contract to provide anatomic pathology services to Quest
which commenced in May 1997. The contract provides that the Company will
maintain the appropriate personnel staffing levels to handle the estimated
workload. The Company assesses and will continue to assess the capabilities of
the various information systems acquired in connection with each of its
acquisitions, and is in the process of replacing, upgrading and integrating
certain of the systems into a single network. Planned capital expenditures for
2000 are estimated to be $6.5 million to $7.5 million, with priority being given
to the new billing system at the consolidated billing office in Fort Lauderdale
and enhancements in financial and lab information systems. Historically, the
Company has funded its capital expenditures with cash flows from operations. For
the years ended December 31, 1997, 1998 and 1999, capital expenditures were
approximately 2.9%, 2.1% and 3.5% of net revenue, respectively. The Company is
consolidating and integrating its financial information, billing and collection
systems, which may result in an increase in capital expenditures as a percentage
of net revenue. The Company believes, however, that such information systems
enhancements will result in cost savings that may enable the Company to continue
to fund its capital expenditures with cash flows from operations.
The Company expects to continue to use the credit facility to fund
acquisitions. The Company anticipates that funds generated by operations and
funds available under the credit facility will be sufficient to meet working
capital requirements and contingent note obligations, and to finance capital
expenditures, and acquisitions over the next 12 months. Further, in the event
payments under the contingent notes issued in connection with acquisitions
become due, the Company believes that the incremental cash generated from
operations would exceed the cash required to satisfy the Company's payment, if
any, of the contingent obligations in any one year period. Such payments, if
any, will result in a corresponding increase in goodwill and the related amount
of amortization thereof in periods following the payment. Funds generated from
operations and funds available under the credit facility may not be sufficient
to implement the Company's longer-term growth strategy. The Company may be
required to seek additional financing through additional increases in the credit
facility, to negotiate credit facilities with other banks or institutions or to
seek additional capital through private placements or public offerings of equity
or debt securities. No assurances can be given that the Company will be able to
extend or increase the existing credit facility, secure additional bank
borrowings or complete additional debt or equity financings on terms favorable
to the Company or at all.
YEAR 2000 ISSUES
The Year 2000 issue was a result of computer programs or chipsets being
written using two digits rather than four to define the applicable year.
Computer programs that have time sensitive software may recognize a date using
"00" as the year 1900 rather than the year 2000. This could have resulted in a
system failure or miscalculation causing disruptions of operations, including,
among other things, a temporary inability to process transactions, send invoices
or engage in similar activities.
During 1999, the Company worked to resolve the potential risks and
concerns of the Year 2000 issue before the end of 1999. The Company also
assessed the risks and contingencies for third-party payors, strategic partners,
vendors, contracted
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hospitals, large commercial payors (e.g. Medicare, Blue Cross/Blue Shield and
Cigna) and facility safety systems. The Company initiated dialogue with its key
vendors and customers, including hospitals and third-party payors, to determine
the extent of any exposure that the Company may have had with respect to failure
on the part of such third parties to become Year 2000 compliant. The Company
worked directly with strategic partners and third-parties to avoid business
interruptions in the year 2000.
The majority of the Company's costs to correct the Year 2000 issue
stemmed from professional services and hardware and software replacements. The
cost of new hardware or software purchased in this regard was capitalized and
all other costs associated with such remedial actions were expensed as incurred.
The total cost associated with the Company's Year 2000 project were under $1.0
million, which were funded by cash flow generated by operations and the
Company's credit facility.
The Company believed that the most likely worst risk scenario relating
to the Year 2000 would have impacted diagnosis reporting or bill generation
causing strategic partners, payors and patients from receiving medical and
billing information in a timely matter. The worst case scenarios could have
resulted in such things as decreased cash flows, claims rejection and untimely
diagnostic reporting. The Company developed contingency plans (i.e. identified
alternate systems and processing capabilities) for any internal Company systems
which were mission critical or business critical systems, if Year 2000
compliance was not achieved. The Year 2000 costs included the contingency plans
and workarounds.
The Company dedicated significant resources to fix any problems before
the end of 1999, and it successfully transitioned from 1999 to 2000 without any
significant issues arising in its business processes. Through the first two
months of the Year 2000, the Company's operations are fully functioning and have
not experienced any significant problems associated with the Year 2000 issue. We
are pleased by the results of our Year 2000 efforts, and that of our third-party
payors, strategic partners, vendors, contracted hospitals, large commercial
payors and facility safety systems, thus far. However the Company remains
vigilant in its testing and preparations for any follow-up Year 2000 issues that
may arise. There can be no assurance that all systems, including those of
planned acquisitions, will be compliant in the future. Specific factors that
might cause material differences in actual results include, but are not limited
to, the availability and cost of qualified personnel and other required
resources, the ability to identify and correct all relevant computer codes, and
similar uncertainties.
QUALIFICATION OF FORWARD LOOKING STATEMENTS
Certain statements contained in this Annual Report on Form 10-K that
are not purely historical are (or contain) forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934, including without limitation statements
regarding the Company's expectations, beliefs, intentions, plans or strategies
regarding the future. All forward-looking statements included in this document
are based on information available to the Company on the date hereof, and the
Company assumes no obligation to update any such forward-looking statements. The
forward-looking statements involve known and unknown risks, uncertainties and
other factors which may cause actual results, experience and effects, and the
performance or achievements of the Company, to be materially different from
those anticipated, expressed or implied by the forward-looking statements. In
evaluating the Company's business, the following factors, in addition to the
other information set forth in this Report, should be carefully considered:
competition; success of the Company's operating initiatives and growth strategy;
healthcare regulation; payment and reimbursement rates under government
sponsored healthcare programs; changes in coding; dependence upon pathologists;
labor and technology costs; general economic conditions; advertising and
promotional efforts; availability, location and terms of additional practice
acquisitions, affiliations and/or development and the success of the Company's
acquisition strategy. In addition, the Company's strategy to penetrate and
develop new markets involves a number of risks and challenges and there can be
no assurance that the healthcare regulations of the new states in which the
Company enters and other factors will not have a material adverse effect on the
Company. The factors which may influence the Company's success in each targeted
market in connection with this strategy include: the selection of appropriate
qualified practices; negotiation and execution of definitive acquisition,
management, affiliation and/or employment agreements; the economic stability of
each targeted market; compliance with the healthcare and/or other laws and
regulations in each targeted market, including the regulation of the healthcare
industry in each targeted market on a national, regional and local basis
(including health, safety, waste disposal and zoning laws); compliance with
applicable licensing approval procedures; restrictions on labor and employment
matters, especially non-competition covenants; access to affordable capital;
governmental reimbursement and assistance programs; tax laws and the
availability of appropriate media for marketing efforts. Certain of the risks,
uncertainties and other factors discussed or noted above are more fully
described elsewhere in this Report, including under (Item 1) "GENERAL BUSINESS
- -- Anatomic Pathology; Industry Overview", "-- Contracts and Relationships with
Affiliated
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Physicians", "-- Government Regulation", "-- Insurance", and "-- Competition";
(Item 3) "LEGAL PROCEEDINGS"; and (this Item 7) "MANAGEMENT'S DISCUSSION AND
ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS".
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is subject to market risk associated principally with
changes in interest rates. Interest rate exposure is principally limited to
$164.6 million of long term debt of the Company at December 31, 1999.
In October 1998, the Company entered into two, two year, interest rate
swap transactions which involved the exchange of floating for fixed rate
interest payments over the life of the agreement without the exchange of the
underlying principal amounts. The differential to be paid or received is accrued
and is recognized as an adjustment to interest expense. The agreements are with
notional amounts of $75 million and $30 million. Under the $75 and $30 million
agreements, the Company receives interest on the notional amounts if the 30 day
LIBOR exceeds 4.675% and 5.425%, respectively, and pays interest on the notional
amounts if the 30 day LIBOR is less than the foregoing rates. These derivative
financial instruments are being used by the Company to reduce interest rate
volatility and associated risks arising from the floating rate structure of its
Credit Facility and are not held or issued for trading purposes.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA; INDEX TO CONSOLIDATED
FINANCIAL STATEMENTS
The Company's consolidated financial statements and financial statement
schedule and independent auditors' report thereon appear beginning on page F-2.
See index to such consolidated financial statements and schedules and reports on
page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
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PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF REGISTRANT
The information required by this Item 10 will be contained in the
Company's definitive proxy materials to be filed with the Securities and
Exchange Commission and is incorporated in this Annual Report on Form 10-K by
this reference.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item 11 will be contained in the
Company's definitive proxy materials to be filed with the Securities and
Exchange Commission and is incorporated in this Annual Report on Form 10-K by
this reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this Item 12 will be contained in the
Company's definitive proxy materials to be filed with the Securities and
Exchange Commission and is incorporated in this Annual Report on Form 10-K by
this reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item 13 will be contained in the
Company's definitive proxy materials to be filed with the Securities and
Exchange Commission and is incorporated in this Annual Report on Form 10-K by
this reference.
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PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) 1. FINANCIAL STATEMENTS:
Reference is made to the index set forth on page F-1 of this
Annual Report on Form 10-K.
2. FINANCIAL STATEMENT SCHEDULES:
Reference is made to the index set forth on page F-1 of this
Annual Report on Form 10-K.
3. EXHIBITS:
EXHIBIT NO. DESCRIPTION
- ----------- -----------
2.1 Asset Purchase Agreement, dated February 13, 1998, by and among
AmeriPath, Inc., Anatomic Pathology Associates, LLP, Robert P.
Hooker, M.D., Ralph F. Winkler, M.D., Steven A. Clark, M.D.,
Edward R. Wills, M.D. Robin A. Helmuth, M.D., Garry A. Bolinger,
M.D., T. Max Warner II, M.D., F. Donald McGovern Jr., M.D.,
Richard O. McClure, M.D., Ann Moriarty, M.D., Janis K. Fitzharris,
M.D., Ph. D., James E. McDermott III, M.D., Robert A. Quirey,
M.D., Isabelle A. Buehl, M.D.(1)
3.1 AmeriPath's Amended and Restated Bylaws (2)
3.2 Certificate of Designations of Series A Junior Participating
Preferred Stock (8)
3.3 AmeriPath's Certificate of Amendment to the Amended and Restated
Certificate of Incorporation (2)
4.1 Rights Agreement, dated as of April 8, 1999, between the
Registrant and American Stock Transfer & Trust Company, as Rights
Agent including the form of Certificate of Designations of Series
A Junior Participating Preferred Stock, the form of Rights
Certificate, and the form of Summary of Rights (8)
10.1 Amended and Restated 1996 Stock Option Plan (5)
10.2 Employment Agreement, dated as of October 24, 1995, between
AmeriPath and James C. New (2)
10.3 Employment Agreement, dated as of August 2, 1993, as amended,
between ALA and Robert P. Wynn (2)
10.5 Employment Agreement, dated June 30, 1996, between AmeriPath and
Alan Levin, M.D. (2)
10.6 Employment Agreement, dated as of September 30, 1996, between
AmeriPath Florida and Alan Levin, M.D., as amended (2)
10.7 Employment Agreement, dated as of June 30, 1996, between AmeriPath
Florida and Timothy Kilpatrick, M.D. (2)
10.8 Employment Agreement, dated as of June 30, 1996, between AmeriPath
Florida and Les Rosen, M.D. (2)
10.9 Credit Agreement originally dated as of May 29, 1996 and amended
and restated as of June 27, 1997, among AmeriPath, Inc., the
subsidiaries of AmeriPath, Inc. from time to time party thereto,
the lenders from time to time party thereto and Bank of Boston,
N.A. (2)
10.10 Amended and Restated Credit Agreement dated as of April 28,1998,
among AmeriPath, Inc., certain of its subsidiaries, BankBoston
N.A. and certain other lenders (4)
31
<PAGE>
10.11 Management Agreement by and between AmeriPath APA, L.L.C. and
AmeriPath Indiana, Inc., dated February 1, 1998 (1)
10.12 Stock Purchase Agreement, dated as of May 23, 1996, among
AmeriPath, Inc., Derrick & Associates and the shareholders of
Derrick & Associates (2)
10.13 Stock Purchase Agreement, dated as of September 30, 1996, by and
among AmeriPath, Inc., David R. Barron, M.D., Inc., Ruth S.
Kleier, M.D. and David R. Barron, M.D. (2)
10.14 Stock Purchase Agreement, dated as of October 31, 1996 among
AmeriPath, Inc., Gulf Coast Pathology Associates, Inc., Richard
Fernandez, M.D., and George Kalemeris, M.D. (2)
10.15 Form of Stock Rights Surrender & Restricted Stock Grant Agreement.
(2)
10.16 1996 Director Stock Option Plan (2)
10.17 American Laboratory Associates, Inc. Series A Preferred Stock,
Common Stock and Junior Subordinated Note Purchase Agreement,
dated as of January 1, 1994 (2)
10.18 Letter Agreement, dated September 18, 1996, between Acquisition
Management Services, Inc. and AmeriPath, Inc. (2)
10.19 AmeriPath Management Agreement by and between AmeriPath
Cincinnati, Inc. and AmeriPath Ohio, Inc., dated September 30,
1996 (2)
10.20 Management Agreement by and between Beno Michel, M.D., Inc. and
AmeriPath, Inc., dated October 15, 1996 (2)
10.21 Management Agreement by and between Clay J. Cockerell, M.D., P.A.
and AmeriPath Texas, Inc., dated September 30, 1996, as amended
January 16, 1997 (2)
10.22 Agreement for Professional Pathology Services between SmithKline
Beecham Clinical Laboratories, Inc. and Derrick and Associates
Pathology, P.A., dated April 1, 1992 (2)
10.23 Agreement for Medical Directorship between SmithKline Beecham
Clinical Laboratories, Inc. and Derrick and Associates Pathology,
P.A., dated April 1, 1992 (2)
10.24 Agreement for Professional Pathology Services between SmithKline
Beecham Clinical Laboratories, Inc. and AmeriPath Florida, Inc.,
dated November 1, 1996 (2)
10.25 Share Exchange Agreement, dated as of February 15, 1996, by and
among American Laboratory Associates, Inc., AmeriPath, Inc. and
the holders of common and convertible preferred stock of American
Laboratory Associates, Inc. (2)
10.26 Trust Agreement, dated as of October 15, 1996, between AmeriPath,
Inc. and Beno Michel, as trustee (2)
10.27 Trust Agreement, dated as of September 30, 1996, between
AmeriPath, Inc. and David R. Barron, M.D. as trustee (2)
10.28 Form of Nonqualified Stock Option Agreement (2)
10.29 Stock Purchase Agreement, dated as of October 15, 1996, by and
among AmeriPath, Inc., Beno Michel, M.D., Inc. and Beno Michel,
M.D. (2)
32
<PAGE>
10.30 Stock Purchase Agreement, dated as of October 10, 1996, by and
among AmeriPath, Inc., Drs. Seidenstein, Levine and Associates,
Inc., Seidenstein, Levine Real Estate Partnership, Lawrence
Seidenstein, M.D., Steven E. Levine, M.D. and David M. Reardon,
M.D. (2)
10.31 Stock Issuance Agreement, dated as of June 26, 1996, among
AmeriPath, Inc., The First National Bank of Boston, FSC Corp.,
NationsBank, N.A. (South) and Atlantic Equity Corporation (2)
10.32 Stock Issuance Agreement, dated as of August 29, 1996, among
AmeriPath, Inc., The First National Bank of Boston, FSC Corp.,
NationsBank, N.A. (South) and Atlantic Equity Corporation (2)
10.33 Stock Issuance Agreement, dated as of November 4, 1996, among
AmeriPath, Inc., The First National Bank of Boston and FSC Corp.
(2)
10.34 Stock Purchase Agreement, dated August 21, 1997, by and among
AmeriPath, Inc., J. Sloan Leonard, M.D., Joseph A. Sonnier, M.D.,
Van Q. Telford, M.D., William C. Burton, M.D., James Scot
Milvenan, M.D., Leslie L. Walters, M.D., Thomas M. James, M.D.,
Stephen W. Aldred, M.D., John E. McDonald, M.D. and Barbara A.
Shinn, M.D. (2)
10.35 Stock Purchase Agreement, dated August 15, 1997, by and among
AmeriPath, Inc., Colab Incorporated Professional Corporation,
Anatomical Pathology Services, P.C., Microdiagnostics, P.C. and
the sellers set forth therein (2)
10.36 Lease effective June 1, 1995 by and between Dallas Pathology
Leasing and Unipath, Ltd. (2)
10.37 Trust Agreement, dated August 29, 1997, between AmeriPath, Inc.
and Jeffery A. Mossler, M.D. (2)
10.38 Management Agreement, by and between Colab, Inc. and AmeriPath
Indianapolis, L.L.C., effective September 1, 1997 (2)
10.39 Management Agreement by and between AmeriPath Texas, Inc. and DFW
5.01, effective September 1, 1997 (2)
10.40 Form of Executive Retention Agreement dated August 12, 1999,
between AmeriPath and each of James C. New, Alan Levin, M.D. and
Robert P. Wynn. (6)
10.41 Letter Agreement dated November 1, 1999 between AmeriPath, Inc.
and James C. New. (7)
10.42 Consulting and Non-competition Agreement dated November 1, 1999
between AmeriPath, Inc. and James C. New. (7)
10.43 Amended and Restated Credit Agreement dated as of December
16,1999, among AmeriPath, Inc., certain of its subsidiaries,
BankBoston N.A. and certain other lenders (3)
21.1 Subsidiaries of AmeriPath (3)
23.2 Independent Auditors' Consent of Deloitte & Touche LLP (3)
27.1 Financial Data Schedule for 12 months ended December 31, 1999 (for
SEC use only.) (3)
- ----------------------------
(1) Incorporated by reference and filed with the AmeriPath Form 8-K, dated
February 13, 1998.
(2) Incorporated by reference to the exhibit referenced and filed with the
AmeriPath Form S-1 (File No. 333-34265), effective October 21, 1997,
and the AmeriPath Form 8-A (File No. 000-22313), filed September 8,
1997.
(3) Filed herewith.
33
<PAGE>
(4) Incorporated by reference to the exhibit referenced and filed with
AmeriPath Form 10-Q for the quarter ended June 30, 1998 dated August
14, 1998.
(5) Incorporated by reference to the Company's Proxy Statement for its 1999
Annual Meeting of Shareholders.
(6) Incorporated by reference to the exhibit referenced and filed with
AmeriPath Form 10-Q for the quarter ended June 30, 1999 dated August
16, 1999.
(7) Incorporated by reference to the exhibit referenced and filed with
AmeriPath Form 10-Q for the quarter ended September 30, 1999 dated
November 15, 1999.
(8) Incorporated by reference to the exhibit referenced and filed with
AmeriPath Form 8-K, dated April 8, 1999.
(b) REPORTS ON FORM 8-K
None
34
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Report to be signed on
its behalf by the undersigned, thereunto duly authorized, in Riviera Beach,
Florida, on March 27, 2000.
AMERIPATH, INC.
/s/ JAMES C. NEW
--------------------------------
James C. New,
CHAIRMAN, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Exchange Act of 1934,
this Report has been signed by the following persons on behalf of the Registrant
in the capacities and on the date indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ JAMES C. NEW Chairman, President, March 27, 2000
- ------------------------------- and Chief Executive Officer
James C. New
/s/ ROBERT P. WYNN Executive Vice President, March 27, 2000
- ------------------------------- Chief Financial Officer
Robert P. Wynn and Secretary
/s/ ALAN LEVIN, M.D. Chief Operating Officer March 27, 2000
- ------------------------------- and Director
Alan Levin, M.D.
/s/ THOMAS S. ROBERTS Director March 27, 2000
- -------------------------------
Thomas S. Roberts
/s/ E. ROE STAMPS, IV Director March 27, 2000
- -------------------------------
E. Roe Stamps, IV
/s/ C. ARNOLD RENSCHLER, M.D. Director March 27, 2000
- -------------------------------
C. Arnold Renschler, M.D.
/s/ TIMOTHY M. KILPATRICK, M.D. Director March 27, 2000
- -------------------------------
Timothy M. Kilpatrick, M.D.
35
<PAGE>
AMERIPATH, INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
AND FINANCIAL STATEMENT SCHEDULE
PAGE
----
Independent Auditors' Report F-2
Consolidated Balance Sheets as of December 31, 1998 and 1999 F-3 to F-4
Consolidated Statements of Operations for the years ended
December 31, 1997, 1998 and 1999 F-5
Consolidated Statements of Convertible Preferred Stock and
Common Stockholders' Equity for the years ended
December 31, 1997, 1998 and 1999 F-6
Consolidated Statements of Cash Flows for the years ended
December 31, 1997, 1998 and 1999 F-7
Notes to Consolidated Financial Statements F-8 to F-23
Schedules:
Schedule II - Valuation and Qualifying Accounts S-1
All other schedules called for by Regulation S-X have been omitted because they
are not applicable or because the required information is included in the
financial statements or the notes thereto.
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of AmeriPath, Inc.:
We have audited the accompanying consolidated balance sheets of AmeriPath, Inc.
and Subsidiaries (the "Company") as of December 31, 1998 and 1999 and the
related consolidated statements of operations, convertible preferred and
redeemable common stock and common stockholders' equity, and cash flows for each
of the three years in the period ended December 31, 1999. Our audits also
included the financial statement schedule listed on the index on page F-1. The
consolidated financial statements and financial statement schedule are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these consolidated financial statements and financial statement
schedule based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audits to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of the Company as of December 31, 1998
and 1999 and the results of its operations and its cash flows for each of the
three years in the period ended December 31, 1999 in conformity with accounting
principles generally accepted in the United States of America. Also, in our
opinion, such financial statement schedule, when considered in relation to the
basic consolidated financial statements taken as a whole, presents fairly in all
material respects the information set forth therein.
/s/ DELOITTE & TOUCHE LLP
Certified Public Accountants
Fort Lauderdale, Florida
February 22, 2000
F-2
<PAGE>
AMERIPATH, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
DECEMBER 31,
1998 1999
-------- --------
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 458 $ 620
Accounts receivable, net 36,090 45,969
Inventories 526 482
Deferred tax asset 4,409 5,142
Prepaid income taxes 2,764 --
Other current assets 1,787 2,002
-------- --------
Total current assets 46,034 54,215
-------- --------
PROPERTY AND EQUIPMENT, NET 8,584 14,129
-------- --------
OTHER ASSETS:
Goodwill, net 112,388 142,767
Identifiable intangibles, net 193,078 235,668
Other 1,863 3,367
-------- --------
Total other assets 307,329 381,802
-------- --------
TOTAL ASSETS $361,947 $450,146
======== ========
See accompanying notes to consolidated financial statements.
F-3
<PAGE>
AMERIPATH, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
DECEMBER 31,
1998 1999
-------- --------
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable and accrued expenses $ 16,127 $ 18,508
Current portion of long-term debt 1,315 539
-------- --------
Total current liabilities 17,442 19,047
LONG-TERM LIABILITIES:
Revolving loan 121,087 163,300
Subordinated notes 1,106 777
Deferred tax liability 44,488 62,980
-------- --------
Total liabilities 184,123 246,104
-------- --------
COMMITMENTS AND CONTINGENCIES (Notes 3, 10 and 13)
COMMON STOCKHOLDERS' EQUITY
Common stock, $.01 par value, 30,000 shares
authorized, 21,062 and 21,581 shares issued and
outstanding at December 31, 1998 and 1999,
respectively 211 216
Additional paid-in capital 148,943 152,187
Retained earnings 28,670 51,639
-------- --------
Total common stockholders' equity 177,824 204,042
-------- --------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $361,947 $450,146
======== ========
See accompanying notes to consolidated financial statements.
F-4
<PAGE>
AMERIPATH, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
1997 1998 1999
--------- --------- ---------
<S> <C> <C> <C>
NET REVENUE $ 108,406 $ 177,304 $ 232,753
--------- --------- ---------
OPERATING COSTS:
Cost of services 48,833 78,460 108,177
Selling, general and administrative expense 19,929 29,731 37,590
Provision for doubtful accounts 10,892 18,698 25,262
Amortization expense 5,762 9,461 12,453
--------- --------- ---------
Total operating costs 85,416 136,350 183,482
--------- --------- ---------
INCOME FROM OPERATIONS 22,990 40,954 49,271
Interest expense (8,763) (8,201) (9,299)
Nonrecurring charge (1,289) -- --
Other (expense) income, net (96) 10 114
--------- --------- ---------
Income before income taxes 12,842 32,763 40,086
Provision for income taxes 5,522 14,124 17,117
--------- --------- ---------
NET INCOME $ 7,320 $ 18,639 $ 22,969
========= ========= =========
Basic Earnings Per Common Share:
Basic weighted average shares outstanding 8,773 20,339 21,296
========= ========= =========
Basic earnings per common share $ 0.80 $ 0.92 $ 1.08
========= ========= =========
Diluted Earnings Per Common Share:
Diluted weighted average shares outstanding 13,879 21,038 21,828
========= ========= =========
Diluted earnings per common share $ 0.53 $ 0.89 $ 1.05
========= ========= =========
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE>
AMERIPATH, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CONVERTIBLE PREFERRED AND REDEEMABLE
COMMON STOCK AND COMMON STOCKHOLDERS' EQUITY
(IN THOUSANDS)
<TABLE>
<CAPTION>
CONVERTIBLE REDEEMABLE
PREFERRED STOCK COMMON STOCK COMMON STOCK ADDITIONAL
-------------------- -------------------- ------------------- PAID - IN RETAINED
SHARES AMOUNT SHARES AMOUNT SHARES AMOUNT CAPITAL EARNINGS
-------- -------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BALANCE, DECEMBER 31, 1996 3,088 $ 6,217 1,494 $ 12,210 4,299 $ 43 $ 9,898 $ 3,022
Accrued dividends on
convertible preferred stock -- 311 -- -- -- -- -- (311)
Dividends paid on convertible
preferred stock -- (1,330) -- -- -- -- -- --
Conversion of convertible
preferred stock to common stock (3,088) (5,198) -- -- 5,559 56 5,143 --
Common stock issued in initial
public offering -- -- -- -- 5,835 59 83,388 --
Conversion of redeemable common
stock to common stock -- -- (1,494) (12,210) 1,494 15 12,195 --
Stock issued in connection with
acquisitions -- -- -- -- 2,341 23 23,941 --
Exercise of options -- -- -- -- 23 -- 25 --
Net income -- -- -- -- -- -- -- 7,320
-------- -------- -------- -------- -------- -------- -------- --------
BALANCE, DECEMBER 31, 1997 -- -- -- -- 19,551 196 134,590 10,031
Stock issued in connection with
acquisitions -- -- -- -- 1,484 15 13,981 --
Exercise of options -- -- -- -- 27 -- 263 --
Tax benefit from stock options -- -- -- -- -- -- 109 --
Net income -- -- -- -- -- -- -- 18,639
-------- -------- -------- -------- -------- -------- -------- --------
BALANCE, DECEMBER 31, 1998 -- -- -- -- 21,062 211 148,943 28,670
Stock issued in connection with
acquisitions -- -- -- -- 511 5 3,144 --
Exercise of options -- -- -- -- 8 -- 9 --
Tax benefit from stock options -- -- -- -- -- -- 91 --
Net income -- -- -- -- -- -- -- 22,969
-------- -------- -------- -------- -------- -------- -------- --------
BALANCE, DECEMBER 31, 1999 -- $ -- -- $ -- 21,581 $ 216 $152,187 $ 51,639
======== ======== ======== ======== ======== ======== ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE>
AMERIPATH, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------
1997 1998 1999
-------- -------- --------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 7,320 $ 18,639 $ 22,969
Adjustments to reconcile net income to net
cash flows provided by operating activities:
Depreciation and amortization 7,589 12,070 15,707
(Gain) loss on disposal of assets (17) -- --
Deferred income taxes (2,474) (3,395) (2,364)
Provision for doubtful accounts 10,892 18,698 25,262
Non-recurring charge 1,289 -- --
Changes in assets and liabilities (net of effects of acquisitions):
Increase in accounts receivable (12,194) (23,009) (29,675)
Decrease (increase) in inventories 1 (258) 44
(Increase) decrease in other current assets (93) (3,430) 2,549
Decrease (increase) in other assets 563 296 (731)
(Decrease) increase in accounts payable and
accrued expenses (206) 2,131 1,308
-------- -------- --------
Net cash flows provided by operating
activities 12,670 21,742 35,069
-------- -------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition of property and equipment (3,190) (3,639) (8,120)
Cash paid for acquisitions and acquisition costs, net of cash acquired (68,824) (58,311) (49,229)
Payments of contingent notes (1,523) (7,789) (17,440)
-------- -------- --------
Net cash flows used in investing activities (73,537) (69,739) (74,789)
-------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of common stock 86,831 -- --
Principal repayment on junior notes (7,500) -- --
Principal repayment on senior notes (3,500) -- --
Debt issuance costs (1,080) (294) (1,168)
Offering costs (3,548) -- --
Principal payments on long-term debt (1,118) (1,504) (1,263)
Net borrowings (payments) under revolving loan (75,048) 49,484 42,213
Borrowing under term loan 65,000 -- --
Note receivable from officer 270 -- --
Dividends paid to convertible preferred stockholders (1,330) -- --
Tax benefit from stock options -- 109 91
Issuance of common stock under stock option plan 25 263 9
-------- -------- --------
Net cash flows provided by financing activities 59,002 48,058 39,882
-------- -------- --------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (1,865) 61 162
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 2,262 397 458
-------- -------- --------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 397 $ 458 $ 620
======== ======== ========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest $ 9,027 $ 7,759 $ 8,957
Income taxes $ 7,713 $ 17,830 $ 15,890
</TABLE>
See accompanying notes to consolidated financial statements.
F-7
<PAGE>
AMERIPATH, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
1. BUSINESS AND ORGANIZATION
AmeriPath, Inc. ("AmeriPath" or "The Company") was incorporated in February 1996
to be the largest integrated physician group practice focused on anatomic
pathology diagnostic services, based on an analysis of geographic breadth,
number of physicians, number of hospital contracts, number of practices and net
revenues. Since inception, the Company acquired or affiliated with 44 physician
practices located in thirteen states. The 297 pathologists employed by the
Company provide medical diagnostic services in 29 outpatient laboratories owned
and operated by the Company, and in 164 hospitals and associated outpatient
surgery centers.
Anatomic and clinical pathology diagnostic services are provided under
contractual arrangements with hospitals and in free-standing, independent
laboratory settings. The contractual arrangements with hospitals vary, but
essentially provide that, in exchange for physician representatives of the
Company serving as the medical director of a hospital's anatomic and clinical
laboratory operations, the Company is able to bill and collect the professional
component of the charges for medical services rendered by the Company's
pathologists. In some cases, the Company is also paid an annual fee for
providing the medical director for the hospital's clinical laboratory. The
Company also owns and operates outpatient pathology laboratories, for which it
bills patients and third party payors, principally on a fee-for-service basis,
covering both the professional and technical components of such services. In
addition, the Company contracts directly with national clinical laboratories,
principally on a fee-for-service basis.
On January 13, 1997, the Company effected a 1.8 for 1 stock split for its common
stock in the form of a stock dividend. The effect of such stock split is
reflected in all common share amounts.
On April 30, 1997, the authorized shares of common stock were increased to
30,000,000. In October 1997, the Company completed its initial public offering
whereby 6,440,000 shares of common stock were sold, 604,543 of which were sold
by selling shareholders of the Company. The offering resulted in net cash
proceeds to the Company of $84,732, which was principally used to repay
outstanding indebtedness.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
A summary of significant accounting policies followed by the Company are as
follows:
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements of the Company include the accounts of
AmeriPath, Inc., its wholly-owned subsidiaries, and companies in which the
Company has the controlling financial interest by means other than the direct
record ownership of voting stock, as discussed in Note 3. All significant
intercompany accounts and transactions have been eliminated.
ACCOUNTING ESTIMATES
The preparation of consolidated financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets, liabilities, revenue
and expenses. Because of the inherent uncertainties in this process, actual
results could differ from those estimates.
FAIR VALUE OF FINANCIAL INSTRUMENTS
The Company's financial instruments consist mainly of cash and cash equivalents,
accounts receivable, accounts payable and the credit facility. The carrying
amounts of the Company's cash and cash equivalents, accounts receivable and
accounts payable approximate fair value due to the short-term nature of these
instruments. Approximately $58,000 of the credit facility bears interest at a
variable market rate, and thus has a carrying amount that approximates fair
value. The remaining $105,000 of the credit facility was subject to interest
rate swaps as described in Note 8. The estimated fair value of the interest rate
swaps was
F-8
<PAGE>
approximately $227 and $1,100 as of December 31, 1998 and 1999, respectively.
The estimated fair value of the Company's interest rate swaps was obtained from
outside sources.
CASH AND CASH EQUIVALENTS
Cash equivalents consist of highly liquid instruments with maturities at the
time of purchase of three months or less.
INVENTORIES
Inventories, consisting primarily of laboratory supplies, are stated at the
lower of cost, determined on a first-in-first-out basis, or market.
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost. Routine maintenance and repairs are
charged to expense as incurred, while cost of betterments and renewals are
capitalized.
Depreciation and amortization are calculated on a straight-line basis and
accelerated methods, over the estimated useful lives of the respective assets
which lives range from 3 to 7 years. Leasehold improvements are amortized over
the shorter of the term of the related lease, including renewal options, or the
useful life of the asset.
INTANGIBLE ASSETS
The allocation of the purchase price of the 1999 acquisitions is preliminary,
while the Company continues to obtain the information necessary to determine the
fair value of the assets acquired and liabilities assumed. When the Company
obtains final information, management believes that adjustments, if any, will
not be material in relation to the consolidated financial statements.
Identifiable intangible assets include hospital contracts, physician referral
lists and laboratory contracts acquired in connection with acquisitions. Such
assets are recorded at fair value on the date of acquisition as determined by
management based on independent consultants' reports performed to assist
management in this determination and are being amortized over the estimated
periods to be benefited, ranging from 10 to 40 years. In determining these lives
the Company considered each practice's operating history, contract renewals,
stability of physician referral lists and industry statistics.
Goodwill relates to the excess of cost over the fair value of net assets of the
businesses acquired. The amortization periods for goodwill were determined by
the Company with consideration given to the lives assigned to the identifiable
intangibles, the reputation of the practice, the length of the practice's
operating history, and the potential of the market in which the acquired
practice is located. Amortization is calculated on a straight line basis over
periods ranging from 10 to 35 years.
Management assesses on an ongoing basis if there has been an impairment in the
carrying value of its intangible assets. If the undiscounted future cash flows
over the remaining amortization period of the respective intangible asset
indicates that the value assigned to the intangible asset may not be
recoverable, the carrying value of the respective intangible asset will be
reduced. The amount of any such impairment would be determined by comparing
anticipated discounted future cash flows from acquired businesses with the
carrying value of the related assets. In performing this analysis, management
considers such factors as current results, trends and future prospects, in
addition to other relevant factors.
DEFERRED DEBT ISSUANCE COSTS
The Company incurred costs in connection with bank financing. These costs have
been capitalized and are being amortized on a straight-line basis, which
approximates the interest method, over the five year term. Such amounts are
included in other assets in the consolidated balance sheet. Prior to 1998 the
Company had deferred debt issuance costs in connection with other debt. These
costs were written off in conjunction with the initial public offering in 1997.
F-9
<PAGE>
REVENUE RECOGNITION
The Company recognizes revenue at the time services are performed. Unbilled
receivables are recorded for services rendered during, but billed subsequent to,
the reporting period. Net revenue is reported at the estimated realizable
amounts from patients, third-party payors and others for services rendered.
Revenue under certain third-party payor agreements is subject to audit and
retroactive adjustments. Provision for estimated third-party payor settlements
and adjustments are estimated in the period the related services are rendered
and adjusted in future periods as final settlements are determined. The
provision and the related allowance are adjusted periodically, based upon an
evaluation of historical collection experience with specific payors for
particular services, anticipated collection levels with specific payors for new
services, industry reimbursement trends, and other relevant factors.
Unbilled receivables, net of allowances, as of December 31, 1998 and 1999
amounted to approximately $3,296 and $5,200, respectively.
INCOME TAXES
The Company's provision for income taxes includes federal and state income taxes
currently payable and changes in deferred tax assets and liabilities, excluding
the establishment of deferred tax assets and liabilities related to
acquisitions. Deferred income taxes are accounted for in accordance with
Statement of Financial Accounting Standards ("SFAS") No. 109, ACCOUNTING FOR
INCOME TAXES and represent the estimated future tax effects resulting from
temporary differences between financial and tax reporting bases of assets and
liabilities.
SEGMENT REPORTING
The Financial Accounting Standards Board ("FASB") issued SFAS No. 131,
DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED INFORMATION effective
for fiscal years beginning after December 15, 1997. The Company has only one
discernable reportable segment, based upon management reporting and the
consolidated reporting structure.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1998, the FASB issued SFAS No. 133, ACCOUNTING FOR DERIVATIVE
INSTRUMENTS AND HEDGING ACTIVITIES. SFAS No. 133 modifies the accounting for
derivatives and hedging activities and is effective for fiscal years beginning
after June 15, 2000. SFAS No. 133 establishes accounting and reporting standards
for derivative instruments, including certain derivative instruments embedded in
other contracts, (collectively referred to as derivatives) and for hedging
activities. It requires that an entity recognize all derivatives as either
assets or liabilities in the statement of financial position and measure those
instruments at fair value. The Company plans to adopt the provisions of this
Statement in the first quarter of fiscal year 2001. Management is currently
analyzing the impact of adopting this Statement on the Company's financial
position and results of operations.
RECLASSIFICATIONS
Certain prior year amounts have been reclassified to conform to the 1999
presentation.
3. ACQUISITIONS
During 1999, the Company acquired ten anatomic pathology practices. The total
consideration paid by the Company in connection with these acquisitions included
cash of $49,332 and 486,796 shares of common stock (aggregate value of $2,954).
In addition, the Company issued additional purchase price consideration in the
form of contingent notes. During 1998, the Company acquired fifteen anatomic
pathology practices. The total consideration paid by the Company in connection
with these acquisitions included cash of $55,333 and 1,483,848 shares of common
stock (aggregate value of $13,996). In addition, the Company issued additional
purchase price consideration in the form of contingent notes. During the year
ended December 31, 1999, the Company issued an additional 23,930 shares of
common stock, valued at $195, and made contingent note payments of $17,440 and
other purchase price adjustments of $2,965 in connection with certain
post-closing adjustments and acquisition costs. During the year ended December
31, 1998, the Company made contingent note payments of $7,789 and other purchase
price adjustments of approximately $3,767 in connection with certain
post-closing adjustments and acquisition costs.
F-10
<PAGE>
The acquisitions have been accounted for using the purchase method of
accounting. The aggregate consideration paid, and to be paid, is based on a
number of factors, including each practice's demographics, size, local
prominence, position in the marketplace and historical cash flows from
operations. Assessment of these and other factors, including uncertainties
regarding the health care environment, resulted in the sellers of each of the
practices and the Company being unable to reach agreement on the final purchase
price. The Company agreed to pay a minimum purchase price and to pay additional
purchase price consideration to the sellers of the practices in proportion to
their respective ownership interest in each practice. The additional payments
are contingent upon the achievement of stipulated levels of operating earnings
(as defined) by each of the practices over periods of three to five years from
the date of the acquisition as set forth in the respective agreements, and are
not contingent on the continued employment of the sellers of the practices. In
certain cases, the payments are contingent upon other factors such as the
retention of certain hospital contracts for periods ranging from three to five
years. The amount of the payments cannot be determined until the achievement of
the operating earnings levels or other factors during the terms of the
respective agreements. If the maximum specified levels of operating earnings for
each practice are achieved, the Company would make aggregate maximum payments,
including principal and interest, of approximately $191,204 over the next three
to five years. At the mid-point level, the aggregate principal and interest
would be approximately $95,604 over the next three to five years. A lesser
amount or no payments at all would be made if the maximum levels of operating
earnings specified in each agreement are not met. Through December 31, 1999, the
Company made contingent note payments aggregating $26,752, which represent 60%
of the maximum amount available. Additional payments are accounted for as
additional purchase price, which increases the recorded goodwill.
The Company does not have technical majority ownership of the common stock of
the practices in North Carolina, Ohio, Indiana, Texas, New York, Michigan,
Wisconsin and Pennsylvania. All of the common stock of the Ohio and Indiana PA
Contractors is held in trust. AmeriPath is the sole beneficiary of each trust
and receives all income from the trusts. The Company, at its sole discretion,
can replace the trustees, withdraw any asset from the trusts, modify the terms
of the trust agreements, or terminate the trusts, and direct the trustees to
distribute income and any asset from the trusts. No assets of the trusts can be
sold or otherwise disposed of without AmeriPath's consent.
In Pennsylvania, North Carolina, Wisconsin, New York and Michigan the
shareholder of the practice is a physician affiliated with AmeriPath, who has
entered into a shareholders' agreement restricting the transfer or other
disposition of such shares by the shareholder, and granting the Company an
exclusive and irrevocable option to require the shareholder to sell the shares
for nominal consideration. Additionally, wholly-owned subsidiaries of the
Company entered into 40-year management agreements with each of these practices,
under which such subsidiaries provide all management and other non-medical
services to these practices for a fee equal to the practice's net revenue less
practice expenses, including physician salaries, which are fixed by employment
agreements, and related professional expenses. Therefore, the Company is
entitled to all of the net income of these practices.
Based on the provisions of the purchase agreements, trust agreements and
management agreements, consolidation of the practices in North Carolina, Ohio,
Indiana, Wisconsin, New York, Michigan and Pennsylvania is required to present
the Company's financial position and results of operations in conformity with
generally accepted accounting principles because the Company has the controlling
financial interest in these practices by means other than direct record
ownership of voting stock. Accordingly, these acquisitions are accounted for as
purchase business combinations and included in the consolidated financial
statements.
In connection with the acquisitions in Texas, a wholly-owned subsidiary of the
Company (the "Texas subsidiary") acquired all of the laboratory facilities,
testing equipment and other assets used in connection with the pathology
services performed by the Texas physicians. The Texas subsidiary employs all of
the technical and non-technical administrative and support personnel. The Texas
subsidiary has also entered into 40-year management services agreements with the
Texas 5.01(a) non-profit corporations, under which it provides, on an exclusive
basis, the technical laboratory services, management and all other non-medical
practice services to its Texas 5.01(a) non-profit corporations which employ all
of the physicians who are solely responsible for the provision of medical
services. The Company is the sole member and appoints the members of the Board
of Directors of the Texas 5.01(a) corporations. The Company has direct voting
control over the 5.01(a) corporations and they are included in the consolidated
financial statements.
The Texas 5.01(a) corporations' payments to the Company under the management
service agreements are comprised of the reimbursement of the costs and expenses
for providing services, a base fee and a performance fee based on the
achievement of goals and objectives established annually. Assuming the Texas
5.01(a) corporations achieve their goals and objectives, such fees will result
in the Company receiving substantially all net revenue less practice expenses of
the Texas 5.01(a) corporations.
F-11
<PAGE>
Practice expenses include physician salaries which are fixed by employment
agreement and related professional expenses. Therefore, the Company is the
direct beneficiary of substantially all of the net income of the 5.01(a)
corporations which is reported in the consolidated statement of operations.
The accompanying consolidated financial statements include the results of
operations of the acquisitions from the date acquired through December 31, 1999.
The following unaudited pro forma information presents the consolidated results
of the Company's operations and the results of operations of the 1998 and 1999
acquisitions for the years ended December 31, 1998 and 1999 after giving effect
to amortization of goodwill and identifiable intangible assets, interest expense
on long-term debt incurred in connection with these acquisitions, and the
reduced level of certain specific operating expenses (primarily compensation and
related expenses attributable to former owners) as if the acquisitions had been
consummated on January 1, 1998. Such unaudited pro forma information is based on
historical financial information with respect to the 1998 and 1999 acquisitions
and does not include operational or other changes which might have been effected
by the Company.
The unaudited pro forma information for the years ended December 31, 1998 and
1999 presented below is for illustrative information purposes only and is not
necessarily indicative of results which would have been achieved or results
which may be achieved in the future:
PRO FORMA
DECEMBER 31,
------------
1998 1999
--------- ---------
Net revenue $ 242,077 $ 256,407
========= =========
Net income $ 24,878 $ 25,171
========= =========
Net income per share (diluted) $ 1.12 $ 1.14
========= =========
4. ACCOUNTS RECEIVABLE AND NET REVENUE
Accounts receivable are recorded at net realizable value. The allowance for
contractual and other adjustments and uncollectible accounts is based on
historical experience and judgments about future events. Accordingly, the actual
amounts experienced could vary significantly from the recorded allowances.
DECEMBER 31,
------------
Accounts receivable consisted of the following: 1998 1999
--------- ---------
Gross accounts receivable $ 79,738 $ 100,978
Less: Allowance for contractual
and other adjustments (23,334) (32,052)
Allowance for uncollectible accounts (20,314) (22,957)
--------- ---------
Accounts receivable, net $ 36,090 $ 45,969
========= =========
F-12
<PAGE>
The Company grants credit without collateral to individual patients, most of
whom are insured under third party payor agreements. The estimated mix of
receivables from patients and third-party payors are as follows:
DECEMBER 31,
------------
1998 1999
------ ------
Government programs 19.9% 17.8%
Third-party payors 45.9 50.4
Private pay patients 26.6 25.3
Other 7.6 6.5
------ ------
100.0% 100.0%
====== ======
YEARS ENDED DECEMBER 31,
------------------------
Net revenue consisted of the following: 1997 1998 1999
--------- --------- ---------
Gross revenue $ 148,698 $ 257,968 $ 360,879
Less contractual and other adjustments (40,292) (80,664) (128,126)
--------- --------- ---------
Net revenue $ 108,406 $ 177,304 $ 232,753
========= ========= =========
A significant portion of the Company's net revenue is generated by the
hospital-based practices through contracts with 75, 125 and 164 hospitals as of
December 31, 1997, 1998 and 1999, respectively. Columbia / HCA Healthcare
Corporation ("Columbia") owned 25, 29 and 27 of these hospitals as of December
31, 1997, 1998 and 1999, respectively. For the years ended December 31, 1997,
1998 and 1999, approximately 27%, 18% and 17%, respectively of net revenue was
generated directly from contracts with hospitals owned by Columbia. Generally,
these contracts and other hospital contracts have remaining terms of less than
five years and contain renewal provisions. Some of the contracts also contain
clauses that allow for termination by either party with relatively short notice.
Columbia has been under government investigation for some time and is evaluating
its operating strategies; including the sale, spin-off or closure of certain
hospitals. Although the Company, through its acquisitions, has had relationships
with these hospitals and national labs for extended periods of time, the
termination of one or more of these contracts could have a material adverse
effect on the Company's financial position and results of operations. The
Company from time to time evaluates the carrying values of identified
intangibles and goodwill and the related useful lives assigned to such assets
and has concluded that no adjustments are necessary at this time.
5. PROPERTY AND EQUIPMENT
Property and equipment consisted of the following:
ESTIMATED
USEFUL LIFE DECEMBER 31,
(YEARS) 1998 1999
-------- -------- --------
Laboratory, office and data
processing equipment 3-5 $ 12,665 $ 16,103
Construction in progress -- 2,693
Leasehold improvements 5-10 1,788 3,349
Furniture and fixtures 7 1,720 2,070
Mobile lab units 3 204 175
Automotive vehicles 3 921 988
-------- --------
17,298 25,378
Less accumulated depreciation (8,714) (11,249)
-------- --------
Property and equipment, net $ 8,584 $ 14,129
======== ========
Depreciation expense was $1,543, $2,292 and $2,877 for the years ended December
31, 1997, 1998 and 1999, respectively.
F-13
<PAGE>
6. INTANGIBLE ASSETS
Intangible assets and the related accumulated amortization and amortization
periods are as follows:
AMORTIZATION PERIODS
(YEARS)
DECEMBER 31, -------
------------ WEIGHTED
1998 1999 RANGE AVERAGE
--------- --------- ------- ---------
Hospital contracts $ 150,076 $ 191,524 25-40 33.3
Physician client lists 50,701 54,558 10-30 21.0
Laboratory contracts 1,800 7,317 10 10.0
Management agreements 2,481 2,478 25 25.0
--------- ---------
205,058 255,877
Accumulated amortization (11,980) (20,209)
--------- ---------
Balance, net $ 193,078 $ 235,668
========= =========
Goodwill $ 118,523 $ 153,128 10-35 31.8
Accumulated amortization (6,135) (10,361)
--------- ---------
Balance, net $ 112,388 $ 142,767
========= =========
The amortization periods for the identifiable intangible assets were determined
by the Company based on reports of independent consultants, performed to assist
management in this determination. In determining these lives, the Company
considered each practice's operating history, contract renewals, stability of
physician referral lists and industry statistics.
The amortization periods for goodwill were determined by the Company with
consideration given to the lives assigned to the identifiable intangibles, the
reputation of the practice, the length of the practice's operating history, and
the potential of the market in which the acquired practice is located.
The weighted average amortization period for identifiable intangible assets and
goodwill is 30.6 years.
During the first quarter of 2000, the Company received information that Primary
Health Systems ("PHS"), a regional hospital network in Cleveland, Ohio (the
"City") that the Company provides services to, began implementing its plan of
reorganization it filed under Chapter 11 with the U.S. Bankruptcy Court for the
District of Delaware. One of the Company's practices provides services at four
PHS hospitals and an ambulatory care facility. The Company acquired the affected
practice during the fourth quarter of 1998. Information received to date
indicates that PHS, in accordance with its bankruptcy plan, plans to sell two
hospitals and the ambulatory care facility to the Cleveland Clinic Foundation
(the "Foundation"). However, several parties, including the City, are contesting
the bankruptcy plan and sale to the Foundation. Management and the practice's
Managing Director are actively planning to retain the outpatient business and
combine it with the Company's other operations near the City. At this time, we
are still uncertain as to the future operations or cash flows from this
practice. If the final reorganization of PHS results in a reduction of cash flow
and the Company is unable to sufficiently reduce the corresponding operating
costs, an impairment of the intangible assets of this practice may occur. If
impairment were to occur, the maximum non-cash charge would be approximately
$4,700 offset by a deferred tax benefit of approximately $1,100. Net revenues of
this AmeriPath practice were approximately $2,500 in 1999. There can be no
assurance this practice will continue to derive any revenues from PHS due to the
events described above. The Company will continue to monitor the status of the
reorganization and the effect on cash flows and the carrying values of the
related intangibles on a quarterly basis.
F-14
<PAGE>
7. ACCOUNTS PAYABLE AND ACCRUED EXPENSES
Accounts payable and accrued expenses consisted of the following:
DECEMBER 31,
------------
1998 1999
------- -------
Accounts payable $ 2,195 $ 3,066
Accrued compensation 4,582 6,913
Accrued acquisition costs 1,645 1,739
Accrued interest 862 828
Income taxes payable 2,109 942
Other accrued expenses 4,734 5,020
------- -------
$16,127 $18,508
======= =======
8. LONG-TERM DEBT
Long-term debt consisted of the following:
DECEMBER 31,
------------
1998 1999
--------- ---------
Revolving loan $ 121,087 $ 163,300
Capitalized lease obligations 118 259
Subordinated notes issued and assumed in
connection with acquisitions, payable
in varying amounts through 2001,
with interest at rates of 7% and 8% 2,303 1,057
--------- ---------
$ 123,508 $ 164,616
Less current portion (1,315) (539)
--------- ---------
Long term debt, net of current portion $ 122,193 $ 164,077
========= =========
At December 31, 1999 maturities of long term debt were as follows:
2000 $ 539
2001 648
2002 81
2003 163,348
--------
Total $164,616
========
On June 26, 1997, the Company replaced its line of credit with a new revolving
line of credit and term loan agreement (the "Credit Facility") with a syndicate
of banks led by BankBoston N.A., as lender and agent (the "Agent"), which
provided for borrowings of up to $150,000 in the form of: (i) a term loan of
$65,000; and (ii) a revolving loan of up to $85,000 that may be used for working
capital purposes (in an amount limited to 80% of the Company's eligible
receivables), and to fund acquisitions if not otherwise used for working capital
purposes.
On April 28, 1998, the Company amended its Credit Facility. The amended facility
provides for borrowings of up to $200,000 in the form of a revolving loan that
may be used for working capital purposes (in an amount limited to 75% of the
Company's net accounts receivable, as reflected on the Company's quarterly
consolidated balance sheet) and to fund acquisitions to the extent not otherwise
used for working capital purposes.
On December 16, 1999, the Company again amended its Credit Facility. The amended
facility provides for borrowings of up to $230,000 in the form of a revolving
loan that may be used for working capital purposes and to fund acquisitions to
the extent not otherwise used for working capital purposes. The Company must
comply with certain requirements as defined in the credit agreement to utilize
the Credit Facility to fund acquisitions.
All outstanding advances under the Credit Facility are due and payable on April
30, 2003. Interest is payable monthly at variable rates which are based, at the
Company's option, on the Agents' base rate (8.75% at December 31, 1999) or the
Eurodollar rate plus a premium that is based on the Company's quarterly ratio of
total debt to cash flow. The amended Credit
F-15
<PAGE>
Facility also requires a commitment fee to be paid quarterly equal to 0.375% of
the annualized unused portion of the total commitment. The Company has used a
portion of the funds available under the amended Credit Facility to refinance
previously outstanding indebtedness, to fund acquisitions and for working
capital purposes. The Company intends to use the remaining availability for its
acquisition program.
In October 1998, the Company entered into two, two year, interest rate swap
transactions which involved the exchange of floating for fixed rate interest
payments over the life of the agreement without the exchange of the underlying
principal amounts. The differential to be paid or received is accrued and is
recognized as an adjustment to interest expense. The agreements have notional
amounts of $75,000 and $30,000. Under the $75,000 and $30,000 agreements, the
Company receives interest on the notional amounts if the 30 day LIBOR exceeds
4.675% and 5.425%, respectively, and pays interest on the notional amounts if
the 30 day LIBOR is less than the foregoing rates. These derivative financial
instruments are being used by the Company to reduce interest rate volatility and
associated risks arising from the floating rate structure of its Credit Facility
and are not held or issued for trading purposes.
The amended Credit Facility contains covenants which, among other things,
require the Company to maintain certain financial operating ratios and impose
certain limitations or prohibitions on the Company with respect to the
incidence, guaranty or assumption of indebtedness, the payment of dividends,
cash distributions, new debt issuance, sale of assets, leasing commitments and
annual capital expenditures, and contains provisions which preclude mergers and
acquisitions under certain circumstances. All of the Company's assets are
pledged as collateral under the Credit Facility. The Company believes that it is
in compliance with all of the covenants at December 31, 1999.
9. CONVERTIBLE PREFERRED STOCK
The Convertible Preferred Stock had an annual dividend rate of 6% of the
original purchase price and such dividends were cumulative from the date of
original issuance and payable when and as declared by the Company's Board of
Directors. In connection with the Company's initial public offering in October
1997, the shares of Convertible Preferred Stock were converted into shares of
common stock at a conversion rate of 1.8 shares of common stock for each
preferred share. Upon conversion, all accumulated and unpaid dividends, up to
the date of conversion were paid in cash.
During the year ended December 31, 1996 the Company paid accrued dividends in
the amount of $32 with respect to the 120,004 shares of Convertible Preferred
Stock that were converted into 216,007 shares of common stock by the holders of
the Convertible Preferred Stock in their sale of shares of common stock to the
Company's President and Chief Executive Officer (See Note 14). During the year
ended December 31, 1997, the Company paid accrued dividends of $1,330.
10. LEASE COMMITMENTS
The Company leases various office and laboratory space, and certain equipment
pursuant to operating lease agreements. The following information includes the
related party leases discussed in Note 14. Future minimum lease commitments
consisted of the following at December 31, 1999:
2000 $ 2,338
2001 2,044
2002 1,759
2003 1,402
2004 821
Thereafter 3,902
-------
$12,266
=======
Rent expense under operating leases for the years ended December 31, 1997, 1998
and 1999 was $1,093, $1,412, and $1,733 respectively.
F-16
<PAGE>
11. OPTION PLAN
The Company's Stock Option Plan (the "Option Plan") provides for the grant of
options to purchase shares of common stock to key employees and others. The plan
provides that the option price shall not be less than the fair market value of
the shares on the date of the grant. At December 31, 1999, 2,322,040 shares of
common stock are reserved for issuance pursuant to options granted under the
Option Plan. All options granted have 10 year terms and vest and become
exercisable at the rate of 20% a year, following the date of grant.
The Company's Director Option Plan provides for the grant of options to purchase
shares of common stock to Directors who are not employees of the Company. All
options granted under the Director Option Plan have 10 year terms and are
exercisable during the period specified in the agreement evidencing the grant of
such Director Option. At December 31, 1999, 5,000 options have been granted
under the Director Option Plan.
The Company has elected to follow Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees" ("APB 25"), and the related
interpretations in accounting for its employee stock options because, as
discussed below, the alternative fair value accounting provided for under SFAS
No. 123, "Accounting for Stock-Based Compensation," requires use of option
valuation models that were not developed for use in valuing employee stock
options. Under APB 25, because the exercise price of the Company's employee
stock options approximates the fair value of the underlying stock on the date of
grant, no compensation expense is recognized.
Pro forma information regarding net income and earnings per share is required by
SFAS No. 123, and has been determined as if the Company had accounted for its
employee stock options under the fair value method of that Statement. The fair
value for these options was estimated at the date of grant using the
Black-Scholes Option Pricing Model with the following weighted-average
assumptions for 1997, 1998 and 1999:
1997 1998 1999
------ ------ ------
Risk free interest rate 6.5% 6.5% 6.5%
Dividend yield -- -- --
Volatility factors 47.0% 107.0% 120.0%
Weighted average life (years) 4.1 4.1 4.1
Using the Black-Scholes Option Pricing Model, the estimated weighted-average
fair value per option granted in 1997, 1998 and 1999 were $7.08, $10.65 and
$6.28 respectively
The pro forma net income assuming the amortization of the estimated fair values
over the option vesting period and diluted earnings per common share, had the
fair value method of accounting for stock options been used, would have been as
follows:
1998 1999
--------- ----------
Pro forma net income $ 17,225 $ 20,001
Pro forma diluted earnings per share $ 0.82 $ 0.92
The Black-Scholes Option Pricing Model was developed for use in estimating the
fair value of traded options which have no vesting restrictions and are fully
transferable. In addition, option valuation models require highly subjective
assumptions including the expected stock price volatility. Because the Company's
employee stock options have characteristics significantly different than those
of traded options, and because changes in the assumptions can materially affect
the fair value estimate, in management's opinion, the existing models may not
necessarily provide a reliable single measure of the fair value of its employee
stock options.
F-17
<PAGE>
A summary of the status of the option plans as of and for the changes during
each of the three years in the period ended December 31, 1999 is presented
below:
<TABLE>
<CAPTION>
OPTION PRICE PER SHARE
NUMBER ----------------------
OF SHARES LOW HIGH WEIGHTED
--------- --- ---- --------
<S> <C> <C> <C> <C>
Outstanding December 31, 1996 970,211 $ 1.11 $10.00 $ 4.12
Granted in 1997 258,000 10.00 10.00 10.00
Granted in 1997 48,000 16.75 16.75 16.75
Cancelled in 1997 (41,400) 8.33 8.33 8.33
Exercised in 1997 (22,400) 1.11 1.11 1.11
---------
Outstanding December 31, 1997 1,212,411 1.11 16.75 5.78
Granted in 1998 254,050 14.06 14.06 14.06
Granted in 1998 2,000 16.13 16.13 16.13
Granted in 1998 1,000 11.38 11.38 11.38
Cancelled in 1998 (12,900) 8.33 16.75 11.45
Exercised in 1998 (27,560) 8.33 10.00 8.98
---------
Outstanding December 31, 1998 1,429,001 1.11 16.75 7.16
Granted in 1999 26,000 9.31 9.31 9.31
Granted in 1999 259,500 7.63 7.63 7.63
Granted in 1999 5,000 9.56 9.56 9.56
Granted in 1999 2,000 9.16 9.16 9.16
Granted in 1999 2,000 9.06 9.06 9.06
Granted in 1999 9,000 7.75 7.75 7.75
Cancelled in 1999 (41,800) 8.33 8.33 8.33
Exercised in 1999 (8,000) 1.11 1.11 1.11
---------
Outstanding December 31, 1999 1,682,701 $1.11 $16.75 $7.23
=========
</TABLE>
The following table summarizes the information about options outstanding at
December 31, 1999:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING OPTIONS EXERCISABLE
--------------------------------------------------------------- --------------------------
WEIGHTED
AVERAGE WEIGHTED WEIGHTED
REMAINING AVERAGE AVERAGE
RANGE OF NUMBER CONTRACTUAL LIFE EXERCISE NUMBER EXERCISE
EXERCISE PRICES OUTSTANDING (IN YEARS) PRICE EXERCISABLE PRICE
--------------- ----------- ---------- ----- ----------- -----
<S> <C> <C> <C> <C> <C>
$ 1.11 203,600 4.6 $ 1.11 203,600 $ 1.11
$ 1.67 378,011 6.1 $ 1.67 230,407 $ 1.67
$ 7.63 244,500 9.3 $ 7.63 -- --
$ 7.75 9,000 9.9 $ 7.75 -- --
$ 8.33 230,040 6.6 $ 8.33 136,440 $ 8.33
$ 9.06 2,000 9.9 $ 9.06 -- --
$ 9.16 2,000 9.7 $ 9.16 -- --
$ 9.31 26,000 9.2 $ 9.31 -- --
$ 9.56 5,000 9.6 $ 9.56 -- --
$10.00 292,000 7.5 $ 10.00 119,000 $ 10.00
$11.65 1,000 8.5 $ 11.65 200 $ 11.65
$14.06 238,050 8.4 $ 14.06 47,610 $ 14.06
$16.13 2,000 8.4 $ 16.13 400 $ 16.13
$16.63 6,000 7.9 $ 16.63 2,400 $ 16.63
$16.75 43,500 7.9 $ 16.75 17,400 $ 16.75
--------- -------
$1.11 - $16.75 1,682,701 7.2 $ 7.23 757,457 $ 5.21
========= =======
</TABLE>
As of December 31, 1997 and 1998 exercisable options were 263,442 and 469,064,
respectively.
F-18
<PAGE>
12. EMPLOYEE BENEFIT PLANS
Effective July 1, 1997, the Company consolidated its previous 401(k) plans into
a new qualified 401(k) retirement plan (the "401(k) Plan") covering
substantially all eligible employees as defined in the 401(k) plan. The new 401
(k) Plan requires employer matching contributions equal to 25% of the employees'
contributions up to a maximum of one thousand dollars per employee. The Company
expensed matching contributions aggregating $219, $379 and $451 to the new plan
in 1997, 1998 and 1999, respectively. Also, in connection with acquisitions, the
Company assumes the obligations under certain defined contribution plans which
cover substantially all eligible employees of the acquired practices. The
Company has not made any contributions from the dates of acquisition through
December 31, 1999.
During 1999, the Company introduced a Supplemental Employee Retirement Plan
("SERP") which covers only selected employees. The SERP is a non-qualified
deferred compensation plan which was established to aid in the retention of the
non-selling physicians and other key employees. In 1999, the eligible
participants were allowed to defer up to ten thousand dollars of compensation
and/or eligible bonuses. If the subscription to the plan fell below an
established deferral range, the participating individuals were allowed to defer
additional funds. The Company may also make discretionary contributions to the
SERP. Employee and employer contributions to the SERP for the year ended
December 31, 1999, were $428 and $20, respectively.
13. COMMITMENTS AND CONTINGENCIES
LIABILITY INSURANCE -- The Company is insured with respect to general liability
on an occurrence basis and medical malpractice risks on a claims made basis. The
Company records an estimate of its liabilities for claims incurred but not
reported. Such liabilities are not discounted. Effective July 1, 1999, the
Company changed its medical malpractice carrier. At December 31, 1999, the
Company is in dispute with its former insurance carrier on an issue related to
applicability of the insurance coverage. The Company believes that an
unfavorable resolution, if any, of such dispute will not have a material adverse
effect on the Company's financial position and results of operations.
HEALTHCARE REGULATORY ENVIRONMENT AND RELIANCE ON GOVERNMENT PROGRAMS -- The
healthcare industry in general, and the services that the Company provides are
subject to extensive federal and state laws and regulations. Additionally, a
significant portion of the Company's net revenue is from payments by
government-sponsored health care programs, principally Medicare and Medicaid,
and is subject to audit and adjustments by applicable regulatory agencies.
Failure to comply with any of these laws or regulations, the results of
increased regulatory audits and adjustments, or changes in the interpretation of
the coding of services or the amounts payable for the Company's services under
these programs could have a material adverse effect on the Company's financial
position and results of operations.
INTERNAL REVENUE SERVICE EXAMINATIONS -- The Internal Revenue Service ("IRS") is
conducting an examination of the Company's federal income tax return for the tax
years ended December 31, 1997 and 1996. The examination is continuing and the
IRS has not issued any notice of proposed adjustments, and the amount of any
payments required as a result thereof cannot presently be determined. Although
the Company believes it is in compliance with all applicable IRS rules and
regulations, if the IRS should determine the Company is not in compliance, it
could have a material adverse effect on the Company's financial position and
results of operations.
MEDICARE PROGRAM SAFEGUARDS -- An inspection was conducted in April 1997 at the
Company's laboratory facility in Fort Lauderdale, Florida by representatives of
federal and state agencies (Medicare (Florida) Program Safeguards ("MPS")) under
Operation Restore Trust, regarding the Company's 1996 Medicare billing
practices. As the result of the 1997 inspection, in 1998 MPS attempted to recoup
$2,950 on in alleged Medicare overpayments for the use of an improper procedure
code. The government alleged that many of the skin biopsies performed by the
Company should have been coded as an 88304, rather than the 88305 code used by
the Company. The Company mounted a vigorous protest and defense and argued that
its coding practice and procedure codes were accurate and consistent with
accepted CPT code assignment guidelines. As support for its position, the
Company provided MPS with the reports of two reputable coding experts who
independently concluded that the Company's coding practices were in conformity
with accepted CPT assignment guidelines. After review of the Company's position
and the studies presented by the Company, MPS determined that $204.05 was due as
a result of improper documentation. MPS concluded that no fraud or intentional
abuse was demonstrated. AmeriPath promptly paid the $204.05 to resolve the
matter.
Due to the uncertain nature of coding for pathology services, the Company cannot
assure that issues such as those addressed in the 1997 Operation Restore Trust
inspection will not arise again. If negative findings are made as a result of
such an investigation,
F-19
<PAGE>
the Company could be required to change coding practices or repay amounts paid
for incorrect practices either of which could have a materially adverse effect
on the operating results and financial condition of the Company.
14. RELATED PARTY TRANSACTIONS
OPERATING LEASES -- The Company leases laboratory and administrative facilities
used in the operations of eight practices from entities beneficially owned by
some of the Company's common stockholders. The terms of the leases expire from
1999 to 2003 and some contain options to renew for additional periods. Lease
payments made under leases with related parties were $439, $453 and $502 in
1997, 1998 and 1999, respectively.
NOTE RECEIVABLE FROM OFFICER -- In connection with the employment of the
Company's President and Chief Executive Officer, the Company provided financing
of $270 to facilitate the purchase of 216,007 shares of the Company's issued and
outstanding stock from certain holders of the Convertible Preferred Stock. The
note was repaid in full in 1997.
15. INCOME TAXES
The provision for income taxes for the years ended December 31, 1997, 1998 and
1999 consists of the following:
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
-------- -------- --------
Current:
Federal $ 6,828 $ 15,152 $ 17,465
State 1,168 2,367 2,016
-------- -------- --------
Total current provision 7,996 17,519 19,481
-------- -------- --------
Deferred:
Federal (2,113) (3,044) (2,119)
State (361) (351) (245)
-------- -------- --------
Total deferred benefit (2,474) (3,395) (2,364)
-------- -------- --------
Total provision for income taxes $ 5,522 $ 14,124 $ 17,117
======== ======== ========
The effective tax rate on income before income taxes is reconciled to the
statutory federal income tax rate as follows:
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
------ ------ ------
Statutory federal rate 35.0% 35.0% 35.0%
State income taxes, net of federal
income tax benefit 3.9 4.0 4.0
Non-deductible items, primarily amortization
of goodwill 4.9 2.8 3.3
Other (0.8) 1.3 0.4
------ ------ ------
43.0% 43.1% 42.7%
====== ====== ======
F-20
<PAGE>
The following is a summary of the deferred income tax assets and liabilities as
of December 31, 1998 and 1999:
DECEMBER 31,
------------
1998 1999
-------- --------
Deferred tax assets (short term):
Allowance for doubtful accounts $ 6,316 $ 6,093
Accrued liabilities 586 620
-------- --------
Deferred tax assets (short term) 6,902 6,713
-------- --------
Deferred tax liabilities (short term):
481 (a) adjustment (2,333) (1,570)
Other (160) (1)
-------- --------
Deferred tax liabilities (short term) (2,493) (1,571)
-------- --------
Net short term deferred tax assets 4,409 5,142
-------- --------
Deferred tax liabilities (long term):
Change from cash to accrual basis of accounting
by the acquisitions (1,580) (1,355)
Intangible assets acquired (42,663) (61,238)
Property and equipment (245) (387)
-------- --------
Deferred tax liabilities (long term) (44,488) (62,980)
-------- --------
Net long term deferred tax liability (44,488) (62,980)
-------- --------
Net deferred tax assets / (liabilities) $(40,079) $(57,838)
======== ========
16. EARNINGS PER SHARE
Earnings per share are computed and presented in accordance with SFAS No. 128,
EARNINGS PER SHARE, which the Company adopted in the fourth quarter of 1997.
Basic earnings per share excludes dilution and is computed by dividing income or
loss attributable to common stockholders by the weighted-average number of
common shares outstanding for the period. Diluted earnings per share reflects
the potential dilution that could occur if securities or other contracts to
issue common stock were exercised or converted into common stock or resulted in
the issuance of common stock that then shared in the earnings of the entity. The
effects of Convertible Preferred Stock are calculated using the as if converted
method and the effects of stock options are calculated using the treasury stock
method. All prior reported earnings per share data has been restated in
accordance with SFAS No. 128.
YEARS ENDED DECEMBER 31,
------------------------
1997 1998 1999
-------- -------- --------
Basic Earnings Per Common Share:
Net income $ 7,320 $ 18,639 $ 22,969
Preferred stock dividends (311) -- --
-------- -------- --------
Income attributable to common stockholders $ 7,009 $ 18,639 $ 22,969
======== ======== ========
Basic weighted average shares outstanding 8,773 20,339 21,296
-------- -------- --------
Basic earnings per common share $ 0.80 $ 0.92 $ 1.08
======== ======== ========
Diluted Earnings Per Common Share:
Net income $ 7,320 $ 18,639 $ 22,969
======== ======== ========
Weighted average shares outstanding 8,773 20,339 21,296
Effects of Convertible Preferred Stock
and Stock Options 5,106 699 532
-------- -------- --------
Diluted weighted average shares outstanding 13,879 21,038 21,828
======== ======== ========
Diluted earnings per common share $ 0.53 $ 0.89 $ 1.05
======== ======== ========
Options to purchase 617,550 shares of common stock at prices between $9.06 and
$16.75 per share which were outstanding at December 31, 1999 have been excluded
from the calculation of diluted earnings per share for the year ended December
31, 1999 because their effect would be anti-dilutive. Options to purchase
303,050 shares of common stock at prices between $14.06 and $16.75 per share
which were outstanding at December 31, 1998 have been excluded from the
calculation of diluted earnings per share for the year ended December 31, 1998
because their effect would be anti-dilutive.
F-21
<PAGE>
17. SUPPLEMENTAL CASH FLOW INFORMATION
The following supplemental information presents the non-cash impact on the
balance sheet of assets acquired and liabilities assumed in connection with
acquisitions consummated during the years ended December 31, 1998 and 1999:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
------------------------
1998 1999
-------- --------
<S> <C> <C>
Assets acquired $ 82,418 $ 72,174
Liabilities assumed (13,089) (19,693)
Common stock issued (13,996) (3,149)
-------- --------
Cash paid for acquisitions 55,333 49,332
Less cash acquired (789) (1,541)
-------- --------
Net cash paid for acquisitions 54,544 47,791
Costs related to completed and pending acquisitions 3,767 1,438
-------- --------
Cash paid for acquisitions and acquisition costs, net of cash acquired $ 58,311 $ 49,229
======== ========
</TABLE>
18. NONRECURRING CHARGE
In May 1997, the Company withdrew its registration statement filed with the
Securities and Exchange Commission and postponed its planned initial public
offering of common stock. During the year ended December 31, 1997, the Company
recorded a nonrecurring charge of $1,289, primarily professional fees and
printing costs, which represented offering costs incurred prior to the
postponement that did not have continuing benefit after the postponement.
19. PREFERRED SHARE PURCHASE RIGHTS PLAN
On April 8, 1999, the Board of Directors of the Company adopted a Preferred
Share Purchase Rights Plan (the "Rights Plan") and, in connection therewith,
declared a dividend distribution of one preferred share purchase right ("Right")
on each outstanding share of the Company's common stock to shareholders of
record at the close of business on April 19, 1999. The Rights will expire on
April 8, 2009. The adoption of the Rights Plan and the distribution of the
Rights is not dilutive, does not affect reported earnings per share, and is not
taxable to shareholders.
Subject to the terms of the Rights Plan, each Right entitles the registered
holder to purchase from the Company one one-thousandth of a share of the
Company's Series A Junior Participating Preferred Stock (the "Preferred
Shares"). Each Right has an initial exercise price of $45.00 for one
one-thousandth of a Preferred Share (subject to adjustment). The Rights will be
exercisable only if a person or group acquires 15% or more of the Company's
common stock or announces a tender or exchange offer the consummation of which
would result in ownership by a person or group of 15% or more of the common
stock. Upon any such occurrence, each Right will entitle its holder (other than
such person or group of affiliated or associated persons) to purchase, at the
Right's then current exercise price, a number of the Company's common shares
having a market value of twice such price.
20. SUBSEQUENT EVENTS
CONTINGENT NOTE PAYMENTS -- Subsequent to December 31, 1999, the Company paid
approximately $9,081 on contingent notes issued in connection with acquisitions.
F-22
<PAGE>
21. QUARTERLY RESULTS OF OPERATIONS (UNAUDITED)
The following table presents certain unaudited quarterly financial data for each
of the quarters in the years ended December 31, 1998 and 1999. This information
has been prepared on the same basis as the Consolidated Financial Statements and
includes, in the opinion of the Company, all adjustments (consisting of only
normal recurring adjustments) necessary to present fairly the quarterly results
when read in conjunction with the Consolidated Financial Statements and related
Notes thereto. The operating results for any quarter are not necessarily
indicative of results for any future period or for the full year.
UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
1998 CALENDAR QUARTERS 1999 CALENDAR QUARTERS
---------------------- ----------------------
FIRST SECOND THIRD FOURTH FIRST SECOND THIRD FOURTH
-------- -------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net revenue $ 37,991 $ 40,826 $ 47,005 $ 51,482 $ 52,336 $ 55,406 $ 59,866 $ 65,145
-------- -------- -------- -------- -------- -------- -------- --------
Operating costs:
Cost of services 17,188 18,024 20,677 22,571 23,747 24,912 27,931 31,587
Selling, general and
administrative expense 6,190 6,598 8,093 8,850 8,785 8,941 9,790 10,074
Provision for doubtful accounts 3,932 4,112 4,843 5,811 5,963 6,578 6,005 6,716
Amortization expense 2,051 2,274 2,507 2,629 2,684 2,845 3,317 3,607
-------- -------- -------- -------- -------- -------- -------- --------
Total 29,361 31,008 36,120 39,861 41,179 43,276 47,043 51,984
-------- -------- -------- -------- -------- -------- -------- --------
Income from operations 8,630 9,818 10,885 11,621 11,157 12,130 12,823 13,161
Interest expense (1,820) (1,929) (2,167) (2,285) (1,922) (2,118) (2,528) (2,731)
Other income (expense), net 13 (49) 83 (37) 6 (1) 50 59
-------- -------- -------- -------- -------- -------- -------- --------
Income before income taxes 6,823 7,840 8,801 9,299 9,241 10,011 10,345 10,489
Provision for income taxes 3,036 3,342 3,793 3,953 3,974 4,304 4,448 4,391
-------- -------- -------- -------- -------- -------- -------- --------
Net income $ 3,787 $ 4,498 $ 5,008 $ 5,346 $ 5,267 $ 5,707 $ 5,897 $ 6,098
======== ======== ======== ======== ======== ======== ======== ========
Per share data:
Basic earnings per common share $ .19 $ .23 $ .24 $ .26 $ .25 $ .27 $ .28 $ .28
======== ======== ======== ======== ======== ======== ======== ========
Diluted earnings per common share $ .19 $ .22 $ .23 $ .25 $ .24 $ .26 $ .27 $ .28
======== ======== ======== ======== ======== ======== ======== ========
</TABLE>
Certain reclassifications have been made to the quarterly consolidated
statements of operations to conform to the annual presentations.
F-23
<PAGE>
AMERIPATH, INC. AND SUBSIDIARIES
SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
YEARS ENDED DECEMBER 31, 1997, 1998 AND 1999
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
CHARGED TO WRITE-OFFS
STATEMENT OTHER AND
BEGINNING OF INCREASES OTHER ENDING
DESCRIPTION BALANCE OPERATIONS (1) ADJUSTMENTS BALANCE
----------- ------- ---------- --- ----------- -------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1997:
Allowances for contractual, other
adjustments and uncollectible
accounts $16,150 $51,184 $ 9,331 $(50,142) $26,523
======= ======= ======= ======== =======
Year ended December 31, 1998:
Allowances for contractual, other
adjustments and uncollectible
accounts $26,523 $99,362 $14,852 $(97,089) $43,648
======= ======= ======= ======== =======
Year ended December 31, 1999:
Allowances for contractual, other
adjustments and uncollectible
accounts $43,648 $153,388 $12,103 $(154,130) $55,009
======= ======== ======= ========== =======
</TABLE>
- ---------------
(1) Represents the allowances for contractual, other adjustments and
uncollectible accounts related to the 1997, 1998, and 1999 acquisitions.
S-1
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
----------- -----------
10.43 Amended and Restated Credit Agreement dated as of December
16,1999, among AmeriPath, Inc., certain of its subsidiaries,
BankBoston N.A. and certain other lenders
21.1 Subsidiaries of AmeriPath
23.2 Independent Auditors' Consent of Deloitte & Touche LLP
27.1 Financial Data Schedule for 12 months ended December 31, 1999
EXHIBIT 10.43
EXECUTION COPY
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMERIPATH, INC.
CREDIT AGREEMENT
Originally Dated as of May 29, 1996
Amended and Restated as of December 16, 1999
BANKBOSTON, N.A.,
Administrative Agent
BANK OF AMERICA, N.A.
d/b/a NationsBank, N.A.,
Syndication Agent
BANK ONE, NA,
Co-Agent
FIRST UNION NATIONAL BANK,
Co-Agent
BANCBOSTON ROBERTSON STEPHENS INC.,
Arranger
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
----
1. Restatement; Definitions...........................................-1-
1.1. Restatement...............................................-1-
1.2. Definitions; Certain Rules of Construction................-1-
2. The Credits.......................................................-23-
2.1. Revolving Credit.........................................-24-
2.1.1. Revolving Loan..................................-24-
2.1.2. Maximum Amount of Revolving Credit..............-24-
2.1.3. Borrowing Requests..............................-24-
2.1.4. Loan Account; Notes.............................-25-
2.2. Swingline Credit.........................................-25-
2.2.1. Swingline Loan..................................-25-
2.2.2. Borrowing Requests..............................-25-
2.2.3. Swingline Loan Account; Swingline Notes.........-25-
2.2.4. Conversion of Swingline Loan into Revolving
Loan............................................-26-
2.3. Letters of Credit........................................-27-
2.3.1. Issuance of Letters of Credit...................-27-
2.3.2. Requests for Letters of Credit..................-27-
2.3.3. Form and Expiration of Letters of Credit........-27-
2.3.4. Lenders' Participation in Letters of Credit.....-27-
2.3.5. Presentation....................................-28-
2.3.6. Payment of Drafts...............................-28-
2.3.7. Uniform Customs and Practice....................-28-
2.3.8. Subrogation.....................................-29-
2.3.9. Modification, Consent, etc......................-30-
2.4. Application of Proceeds..................................-30-
2.4.1. Revolving Loan..................................-30-
2.4.2. Swingline Loan..................................-30-
2.4.3. Letters of Credit...............................-30-
2.4.4. Specifically Prohibited Applications............-30-
2.5. Nature of Obligations of Lenders to Make Extensions
of Credit................................................-30-
3. Interest; LIBOR Pricing Options; Fees.............................-31-
3.1. Interest.................................................-31-
3.2. LIBOR Pricing Options....................................-31-
3.2.1. Election of LIBOR Pricing Options...............-31-
3.2.2. Notice to Lenders and the Borrower..............-32-
3.2.3. Selection of LIBOR Interest Periods.............-32-
3.2.4. Additional Interest.............................-32-
-i-
<PAGE>
PAGE
----
3.2.5. Violation of Legal Requirements.................-33-
3.2.6. Funding Procedure...............................-33-
3.4. Commitment Fees..........................................-34-
3.5. Letter of Credit Fees....................................-34-
3.6. Changes in Circumstances; Yield Protection...............-34-
3.6.1. Reserve Requirements, etc.......................-34-
3.6.2. Taxes...........................................-35-
3.6.3. Capital Adequacy................................-35-
3.6.4. Regulatory Changes..............................-35-
3.6.5. Compensation Claims.............................-36-
3.7. Computations of Interest and Fees........................-36-
4. Payment...........................................................-36-
4.1. Payment at Maturity......................................-36-
4.2. Contingent Required Prepayments..........................-36-
4.2.1. Excess Credit Exposure..........................-37-
4.2.2. Letter of Credit Exposure.......................-37-
4.2.3. Net Equity Proceeds.............................-37-
4.3. Voluntary Prepayments....................................-37-
4.4. Letters of Credit........................................-37-
4.5. Reborrowing; Application of Payments, etc................-38-
5. Conditions to Extending Credit....................................-38-
5.1. Conditions on Initial Closing Date.......................-38-
5.1.1. Notes...........................................-38-
5.1.2. Perfection of Security..........................-38-
5.1.3. Legal Opinions..................................-38-
5.1.4. Payment of Fee..................................-39-
5.1.5. Adverse Market Change...........................-39-
5.2. Conditions to Each Extension of Credit...................-39-
5.2.1. Officer's Certificate...........................-39-
5.2.2. Legality, etc...................................-39-
5.2.3. Proper Proceedings..............................-40-
5.2.4. Conditions to Making Each Permitted
Acquisition Advance.............................-40-
5.2.5. General.........................................-40-
6. General Covenants.................................................-40-
6.1. Taxes and Other Charges; Accounts Payable................-40-
6.1.1. Taxes and Other Charges.........................-40-
6.1.2. Accounts Payable................................-41-
6.2. Conduct of Business, etc.................................-41-
-ii-
<PAGE>
PAGE
----
6.2.1. Types of Business...............................-41-
6.2.2. Maintenance of Properties.......................-41-
6.2.3. Statutory Compliance............................-41-
6.2.4. No Subsidiaries.................................-42-
6.2.5. Compliance with Material Agreements.............-42-
6.3. Insurance................................................-42-
6.3.1. Property Insurance..............................-42-
6.3.2. Liability Insurance.............................-42-
6.3.3. Key Executive Life .............................-43-
6.3.4. Flood Insurance.................................-43-
6.4. Financial Statements and Reports.........................-43-
6.4.1. Annual Reports..................................-43-
6.4.2. Quarterly Reports...............................-44-
6.4.3. Other Reports...................................-45-
6.4.4. Notice of Litigation, Defaults, etc.............-46-
6.4.5. ERISA Reports...................................-46-
6.4.6. Other Information; Audit........................-47-
6.5. Certain Financial Tests..................................-47-
6.5.1. Consolidated Total Debt Coverage................-47-
6.5.2. Consolidated Interest Expense...................-48-
6.5.3. Consolidated Operating Cash Flow................-48-
6.6. Indebtedness.............................................-48-
6.7. Guarantees; Letters of Credit............................-49-
6.8. Liens....................................................-49-
6.9. Investments and Permitted Acquisitions...................-51-
6.10. Distributions............................................-51-
6.11. Asset Dispositions and Mergers...........................-52-
6.12. Lease Obligations........................................-52-
6.13. Issuance of Stock by Subsidiaries; Subsidiary
Distributions............................................-52-
6.13.1. Issuance of Stock by Subsidiaries of
the Company....................................-52-
6.13.2. No Restrictions on Subsidiary
Distributions..................................-53-
6.14. Voluntary Prepayments of Other Indebtedness..............-53-
6.15. Derivative Contracts.....................................-53-
6.16. Negative Pledge Clauses..................................-53-
6.17. ERISA, etc...............................................-54-
6.18. Transactions with Affiliates.............................-54-
6.19. Interest Rate Protection.................................-54-
6.20. Environmental Laws.......................................-54-
6.20.1. Compliance with Law and Permits................-54-
6.20.2. Notice of Claims, etc..........................-55-
6.21. Permitted Acquisitions; General..........................-55-
-iii-
<PAGE>
PAGE
----
6.22. Year 2000 Compliant......................................-57-
7. Representations and Warranties....................................-57-
7.1. Organization and Business................................-57-
7.1.1. The Borrower....................................-57-
7.1.2. Subsidiaries....................................-58-
7.1.3. Qualification...................................-58-
7.1.4. Capitalization..................................-58-
7.2. Financial Statements and Other Information;
Material Agreements......................................-59-
7.2.1. Financial Statements and Other Information......-59-
7.2.2. Material Agreements.............................-60-
7.3. Agreements Relating to Financing Debt,
Investments, etc.........................................-60-
7.4. Changes in Condition.....................................-60-
7.5. Title to Assets..........................................-60-
7.6. Operations in Conformity With Law, etc...................-60-
7.7. Litigation...............................................-60-
7.8. Authorization and Enforceability.........................-61-
7.9. No Legal Obstacle to Agreements..........................-61-
7.10. Defaults.................................................-62-
7.11. Licenses, etc............................................-62-
7.12. Tax Returns..............................................-62-
7.13. Certain Business Representations.........................-62-
7.13.1. Labor Relations................................-62-
7.13.2. Antitrust......................................-63-
7.13.3. Consumer Protection............................-63-
7.13.4. Burdensome Obligations.........................-63-
7.13.5. Future Expenditures............................-63-
7.14. Environmental Regulations................................-63-
7.14.1. Environmental Compliance.......................-63-
7.14.2. Environmental Litigation.......................-64-
7.14.3. Environmental Condition of Properties..........-64-
7.15. Pension Plans............................................-64-
7.16. Acquisition Agreement, etc...............................-64-
7.17. Foreign Trade Regulations; Government Regulation;
Margin Stock.............................................-65-
7.17.1. Foreign Trade Regulations......................-65-
7.17.2. Government Regulation..........................-65-
7.17.3. Margin Stock...................................-65-
7.18. Disclosure...............................................-65-
8. Defaults..........................................................-66-
8.1. Events of Default........................................-66-
-iv-
<PAGE>
PAGE
----
8.1.1. Payment........................................-66-
8.1.2. Specified Covenants............................-66-
8.1.3. Other Covenants................................-66-
8.1.4. Representations and Warranties.................-67-
8.1.5. Cross Default, etc.............................-67-
8.1.6. Ownership; Liquidation; etc....................-67-
8.1.7. Enforceability, etc............................-68-
8.1.8. Judgments......................................-68-
8.1.9. ERISA..........................................-68-
8.1.10. Bankruptcy, etc................................-68-
8.1.11. Acquisitions...................................-69-
8.2. Certain Actions Following an Event of Default............-69-
8.2.1. Terminate Obligation to Extend Credit..........-69-
8.2.2. Specific Performance; Exercise of Rights.......-69-
8.2.3. Acceleration...................................-70-
8.2.4. Enforcement of Payment; Credit Security;
Setoff.........................................-70-
8.2.5. Cumulative Remedies............................-70-
8.2.6. Exercise of Call Right.........................-70-
8.3. Annulment of Defaults....................................-71-
8.4. Waivers..................................................-71-
9. Guarantees........................................................-71-
9.1. Guarantees of Credit Obligations.........................-72-
9.2. Continuing Obligation....................................-72-
9.3. Waivers with Respect to Credit Obligations...............-73-
9.4. Lenders' Power to Waive, etc.............................-74-
9.5. Information Regarding the Borrower, etc..................-75-
9.6. Certain Guarantor Representations........................-75-
9.7. Subrogation..............................................-76-
9.8. Subordination............................................-76-
9.9. Further Assurances.......................................-76-
10. Security..........................................................-77-
10.1. Credit Security..........................................-77-
10.1.1. Tangible Personal Property.....................-77-
10.1.2. Rights to Payment of Money.....................-77-
10.1.3. Intangibles....................................-77-
10.1.4. Pledged Stock..................................-77-
10.1.5. Pledged Rights.................................-78-
10.1.6. Pledged Indebtedness...........................-78-
10.1.7. Chattel Paper, Instruments and
Documents......................................-78-
-v-
<PAGE>
PAGE
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10.1.8. Leases.........................................-78-
10.1.9. Deposit Accounts...............................-78-
10.1.10. Collateral.....................................-78-
10.1.11. Books and Records..............................-78-
10.1.12. Insurance......................................-78-
10.1.13. Investment Property............................-79-
10.1.14. All Other Property.............................-79-
10.1.15. Proceeds and Products..........................-79-
10.1.16. Excluded Property..............................-79-
10.2. Additional Credit Security...............................-79-
10.2.1. Real Property..................................-80-
10.2.2. Motor Vehicles and Aircraft....................-80-
10.3. Representations, Warranties and Covenants with
Respect to Credit Security...............................-80-
10.3.1. Pledged Stock..................................-80-
10.3.2. Accounts and Pledged Indebtedness..............-80-
10.3.3. No Liens or Restrictions on Transfer or
Change of Control..............................-81-
10.3.4. Location of Credit Security....................-81-
10.3.5. Trade Names....................................-81-
10.3.6. Insurance......................................-81-
10.3.7. Modifications to Credit Security...............-82-
10.3.8. Delivery of Documents..........................-82-
10.3.9. Perfection of Credit Security..................-82-
10.4. Administration of Credit Security........................-83-
10.4.1. Use of Credit Security.........................-83-
10.4.2. Deposits; Accounts.............................-83-
10.4.3. Pledged Securities.............................-84-
10.5. Right to Realize upon Credit Security....................-84-
10.5.1. Assembly of Credit Security; Receiver..........-84-
10.5.2. General Authority..............................-85-
10.5.3. Marshaling, etc................................-85-
10.5.4. Sales of Credit Security.......................-86-
10.5.5. Sale without Registration......................-87-
10.5.6. Application of Proceeds........................-87-
10.6. Custody of Credit Security...............................-88-
11. Expenses; Indemnity...............................................-88-
11.1. Expenses.................................................-88-
11.2. General Indemnity........................................-89-
11.3. Indemnity With Respect to Letters of Credit..............-89-
-vi-
<PAGE>
PAGE
----
12. Operations; Agent..................................................-89-
12.1. Interests in Credits......................................-89-
12.2. Agent's Authority to Act, etc.............................-90-
12.3. Borrower to Pay Agent, etc................................-90-
12.4. Lender Operations for Advances, Letters of Credit, etc....-90-
12.4.1. Advances........................................-90-
12.4.2. Letters of Credit...............................-90-
12.4.3. Agent to Allocate Payments, etc.................-91-
12.4.4. Delinquent Lenders; Nonperforming Lenders.......-91-
12.5. Sharing of Payments, etc..................................-92-
12.6. Actions by Agent, Amendments, Consents, Waivers, etc......-93-
12.7. Agent's Resignation.......................................-94-
12.8. Concerning the Agent......................................-94-
12.8.1. Action in Good Faith, etc.......................-94-
12.8.2. No Implied Duties, etc..........................-94-
12.8.3. Validity, etc...................................-95-
12.8.4. Compliance......................................-95-
12.8.5. Employment of Agents and Counsel................-95-
12.8.6. Reliance on Documents and Counsel...............-95-
12.8.7. Agent's Reimbursement...........................-96-
12.8.8. Conveying Reports to Lenders....................-96-
12.9. Rights as a Lender........................................-96-
12.10. Independent Credit Decision...............................-96-
12.11. Indemnification...........................................-97-
13. Successors and Assigns; Lender Assignments and Participations......-97-
13.1. Assignments by Lenders....................................-97-
13.1.1. Assignees and Assignment Procedures.............-97-
13.1.2. Terms of Assignment and Acceptance..............-98-
13.1.3. Register........................................-99-
13.1.4. Acceptance of Assignment and Assumption.........-99-
13.1.5. Federal Reserve Bank...........................-100-
13.1.6. Further Assurances.............................-100-
13.2. Credit Participants......................................-100-
13.3. Replacement of Lender....................................-101-
13.4. Foreign Lenders..........................................-102-
14. Confidentiality...................................................-103-
15. Acknowledgments and Consents......................................-103-
-vii-
<PAGE>
PAGE
----
16. Notices...........................................................-103-
17. Course of Dealing; Amendments and Waivers.........................-104-
18. Defeasance........................................................-104-
19. Venue; Service of Process.........................................-105-
20. WAIVER OF JURY TRIAL..............................................-105-
21. No Strict Construction............................................-106-
22. General...........................................................-106-
-viii-
<PAGE>
EXHIBITS
1 - Applicable Interest Rates
2.1.4 - Revolving Note
2.2.3 - Swingline Note
5.2.1 - Officer's Certificate
6.6 - Existing Indebtedness
6.8 - Existing Liens
6.11 - Asset Dispositions and Mergers
6.18 - Transactions with Affiliates
6.21.1(a) - Subordination Agreement
6.21.1(b) - Joinder Agreement
6.21.1(f) - 6.21.1 Permitted Acquisition Compliance Certificate
6.21.2(d) - 6.21.2 Permitted Acquisition Compliance Certificate
7.1 - Company and its Subsidiaries
7.1.4 - Stockholders of the Company
7.2.2 - Material Agreements
7.3 - Financing Debt, Certain Investments, etc.
7.4 - Changes in Condition
7.7 - Litigation
7.14 - Environmental
7.15 - Multi-employer and Defined Benefit Plans
10.4.2 - Depository Institutions
12.1 - Interests in Credits
13.1.1 - Assignment and Acceptance
-ix-
<PAGE>
AMERIPATH, INC.
CREDIT AGREEMENT
This Agreement, originally dated as of May 29, 1996 and amended and
restated as of December 16, 1999, is among AmeriPath, Inc., a Delaware
corporation, certain Subsidiaries of AmeriPath, Inc. from time to time party
hereto, the Lenders from time to time party hereto and BankBoston, both in its
capacity as a Lender and in its capacity as administrative agent for itself and
the other Lenders. The parties agree as follows:
1. RESTATEMENT; DEFINITIONS.
1.1. RESTATEMENT. Effective as of the Initial Closing Date, this
Agreement amends and restates in its entirety the Credit Agreement dated as of
May 29, 1996, as previously amended and in effect on the date hereof, among the
Company, its Subsidiaries and a group of lenders for which BankBoston is acting
as agent. Amounts in respect of interest, commitment fees, Letter of Credit fees
and other amounts payable hereunder shall be payable in accordance with the
terms of this Agreement as in effect prior to the amendment and restatement on
the Initial Closing Date for periods prior to the Initial Closing Date and in
accordance with this Agreement as amended and restated hereby for periods from
and after the Initial Closing Date.
1.2. DEFINITIONS; CERTAIN RULES OF CONSTRUCTION. Certain capitalized
terms are used in this Agreement and in the other Credit Documents with the
specific meanings defined below in this Section 1. Except as otherwise
explicitly specified to the contrary or unless the context clearly requires
otherwise, (a) the capitalized term "Section" refers to sections of this
Agreement, (b) the capitalized term "Exhibit" refers to exhibits to this
Agreement, (c) references to a particular Section include all subsections
thereof, (d) the word "including" shall be construed as "including without
limitation", (e) accounting terms not otherwise defined herein have the meaning
provided under GAAP, (f) terms defined in the UCC and not otherwise defined
herein have the meaning provided under the UCC, (g) references to a particular
statute or regulation include all rules and regulations thereunder and any
successor statute, regulation or rules, in each case as from time to time in
effect and (h) references to a particular Person include such Person's
successors and assigns to the extent not prohibited by this Agreement and the
other Credit Documents. References to "the date hereof" mean December [16],
1999.
"ACCOUNTS" is defined in Section 10.1.2.
"ACCUMULATED BENEFIT OBLIGATIONS" means the actuarial present value of
the accumulated benefit obligations under any Plan, calculated in accordance
with Statement No. 87 of the Financial Accounting Standards Board.
<PAGE>
"ACQUIRED PARTY" shall mean any Person, 100% of the outstanding capital
stock or beneficial interests or substantially all of the assets of which are
acquired by the Borrower in connection with a Permitted Acquisition.
"ACQUIRED PARTY EBITDA ADJUSTMENT" means (a) for any calculation made
with respect to Sections 6.5.1 or 6.21 of this Agreement in which six or less
full months of the Net Income of an Acquired Party have been included, and only
to the extent not already included in, Consolidated Net Income, an amount equal
to the product of (i) the number of months in the applicable period in which
none of the Net Income of such Acquired Party was included in Consolidated Net
Income, multiplied by (ii) one-twelfth of Pro Forma EBITDA of such Acquired
Party as of the date of the Acquisition of such Acquired Party or (b) for any
calculation made with respect to Section 6.5.1 or 6.21 of this Agreement in
which more than six months but less than one full year of the Net Income of an
Acquired Party have been included, and only to the extent not already included
in, Consolidated Net Income, an amount equal to the product of (X) the number of
months in the applicable period in which none of the Net Income of such Acquired
Party was included in Consolidated Net Income, MULTIPLIED BY (Y) the amount of
actual EBITDA of such Acquired Party for each full month following its
Acquisition by the Borrower, DIVIDED BY (Z) the number of full months for which
EBITDA of the Acquired Party was included in Consolidated Net Income.
"ACQUISITION AGREEMENT" means the documentation pursuant to which the
Borrower commits itself to make a Permitted Acquisition.
"ACQUISITION CLOSING DATE" is defined in Section 6.21.1(a).
"AFFECTED LENDER" is defined in Section 13.3.
"AFFILIATE" means, with respect to the Borrower (or any other specified
Person), any other Person directly or indirectly controlling, controlled by or
under direct or indirect common control with the Borrower (or such specified
Person), and shall include (a) any officer or director or general partner of the
Borrower (or such specified Person) and (b) any Person of which the Borrower (or
such specified Person) or any Affiliate (as defined in clause (a) above) of the
Borrower (or such specified Person) shall, directly or indirectly, beneficially
own either (i) at least 5% of the outstanding equity securities having the
general power to vote or (ii) at least 5% of all equity interests.
"AGENT" means BankBoston in its capacity as administrative agent for
the Lenders hereunder, as well as its successors and assigns in such capacity
pursuant to Section 12.7.
"AGGREGATE PERCENTAGE INTEREST" means, with respect to the Loan, the
ratio that the respective Commitments of the Lenders bear to the total
Commitments of all Lenders as from time to time in effect and reflected in the
Register.
-2-
<PAGE>
"AGREEMENT" means this Agreement as from time to time amended, modified
and in effect.
"APPLICABLE COMMITMENT FEE RATE" means (a) through the date on which
the financial statements for the fiscal year of the Borrower ending December 31,
1999 are delivered to the Agent in accordance with Section 6.4.1, the rate for
applicable commitment fees set forth opposite Level II in the Pricing Grid and
(b) at any date thereafter, the rate shown on the Pricing Grid that corresponds
to the ratio of Consolidated Total Debt to Consolidated Adjusted EBITDA for the
most recently completed period of four consecutive fiscal quarters
(notwithstanding any subsequent change in such ratio on any Closing Date due to
the occurrence of a Permitted Acquisition and the resulting inclusion of an
Acquired Party's Pro Forma EBITDA in Consolidated Adjusted EBITDA and additional
Financing Debt in Consolidated Total Debt). Changes in the Applicable Rate shall
occur on each Pricing Reset Date; PROVIDED, HOWEVER, that in the event that the
financial statements required to be delivered pursuant to Section 6.4.1 or
6.4.2, as applicable, are not delivered by the latest date permissible under
Section 6.4.1 or 6.4.2, as the case may be (the "LATE DELIVERY DATE"), and if,
upon delivery of such financial statements, it is determined that delivery of
such financial statements on the Late Delivery Date would have resulted in an
increase in the Applicable Margin on the first Pricing Reset Date after the Late
Delivery Date (the "LATE PRICING RESET DATE"), such increase will be deemed
effective as of the Late Pricing Reset Date.
"APPLICABLE RATE" means (a) through the date on which the financial
statements for the fiscal year of the Borrower ending December 31, 1999 are
delivered to the Agent in accordance with Section 6.4.1, the rate set forth
opposite Level II in the Pricing Grid and (b) at any date thereafter, the sum
of:
(x) the rate shown on the Pricing Grid that corresponds to the
current ratio of Consolidated Total Debt to Consolidated
Adjusted EBITDA for the most recently completed period of four
consecutive fiscal quarters (notwithstanding any subsequent
change in such ratio on any Closing Date due to the occurrence
of a Permitted Acquisition and the resulting inclusion of an
Acquired Party's Pro Forma EBITDA in Consolidated Adjusted
EBITDA and additional Financing Debt in Consolidated Total
Debt);
PLUS (y) an additional 3.00% effective on the day the Agent
notifies the Company that the interest rates hereunder are
increasing as a result of the occurrence and continuance of an
Event of Default until the earlier of such time as (i) such
Event of Default is no longer continuing or (ii) such Event of
Default is deemed no longer to exist, in each case pursuant to
Section 8.3.
Changes in the Applicable Rate shall occur on each Pricing
Reset Date; PROVIDED, HOWEVER, that in the event that the
financial statements required to be delivered pursuant to
Section 6.4.1 or 6.4.2, as applicable, are not
-3-
<PAGE>
delivered by the Late Delivery Date and, if upon delivery of
such financial statements, it is determined that delivery of
such financial statements on the Late Delivery Date would have
resulted in an increase in the Applicable Margin on the Late
Pricing Reset Date such increase will be deemed effective as
of the Late Pricing Reset Date.
"ARRANGER" means BancBoston Robertson Stephens Inc.
"ASSIGNEE" is defined in Section 13.1.1.
"ASSIGNMENT AND ACCEPTANCE" is defined in Section 13.1.1.
"BANKBOSTON" means BankBoston, N.A., a national banking association.
"BANKING DAY" means any day other than Saturday, Sunday or a day on
which banks in Boston, Massachusetts are authorized or required by law or other
governmental action to close and, if such term is used with reference to a LIBOR
Pricing Option, any day on which dealings are effected by first-class banks in
the inter-bank LIBOR markets in London, England.
"BANKRUPTCY CODE" means Title 11 of the United States Code.
"BANKRUPTCY DEFAULT" means an Event of Default referred to in Section
8.1.10.
"BASE RATE" means, on any date, the greater of (a) the rate of interest
announced by BankBoston at the Boston Office as its Base Rate or (b) the sum of
1/2% PLUS the Federal Funds Rate.
"BORROWER" means the Company.
"BOSTON OFFICE" means the principal banking office of BankBoston in
Boston, Massachusetts.
"BY-LAWS" means all written by-laws, rules, regulations and all other
documents relating to the management, governance or internal regulation of any
Person other than an individual, or interpretive of the Charter of such Person,
all as from time to time in effect.
"CAPITAL EXPENDITURES" means, for any period, amounts added or required
to be added to the property, plant and equipment or other fixed assets account
on the Consolidated balance sheet of the Company and its Subsidiaries, prepared
in accordance with GAAP, in respect of (a) the acquisition, construction,
improvement or replacement of land, buildings, machinery, equipment, leaseholds
and any other real or personal property, (b) to the extent not included in
clause (a) above, materials, contract labor and direct labor relating thereto
-4-
<PAGE>
(excluding amounts properly expensed as repairs and maintenance in accordance
with GAAP) and (c) software development costs to the extent not expensed.
"CAPITALIZED LEASE" means any lease which is required to be capitalized
on the balance sheet of the lessee in accordance with GAAP, including Statement
Nos. 13 and 98 of the Financial Accounting Standards Board.
"CAPITALIZED LEASE OBLIGATIONS" means the amount of the liability
reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with GAAP, including Statement Nos.
13 and 98 of the Financial Accounting Standards Board.
"CASH EQUIVALENTS" means:
(a) negotiable certificates of deposit time deposits
(including sweep accounts), demand deposits and bankers' acceptances
having a maturity of nine months or less and issued by any United
States financial institution having capital and surplus and undivided
profits aggregating at least $100,000,000 and rated at least Prime-1 by
Moody's Investors Service, Inc. or A-1 by Standard & Poor's Ratings
Group or issued by any Lender;
(b) corporate obligations having a maturity of nine months or
less and rated at least Prime-1 by Moody's Investors Service, Inc. or
A-1 by Standard & Poor's Ratings Group or issued by any Lender;
(c) any direct obligation of the United States of America or
any agency or instrumentality thereof, or of any state or municipality
thereof, (i) which has a remaining maturity at the time of purchase of
not more than one year or which is subject to a repurchase agreement
with any Lender (or any other financial institution referred to in
clause (a) above) exercisable within one year from the time of purchase
and (ii) which, in the case of obligations of any state or
municipality, is rated at least Aa by Moody's Investors Service, Inc.
or AA by Standard & Poor's Ratings Group; and
(d) any mutual fund or other pooled investment vehicle rated
at least Aa by Moody's Investors Service, Inc. or AA by Standard &
Poor's Ratings Group which invests principally in obligations described
above.
"CASH PURCHASE PRICE" means the portion of consideration for any
Permitted Acquisition that constitutes the sum of (i) cash or Cash Equivalents
PLUS (ii) any Financing Debt of the Acquired Party that the Borrower or one of
its subsidiaries assumes (except Financing Debt permitted by Section 6.6) MINUS
(iii) cash or Cash Equivalents acquired in such acquisition.
-5-
<PAGE>
"CERCLA" means the federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
"CERCLIS" means the federal Comprehensive Environmental Response
Compensation Liability Information System List (or any successor document)
promulgated under CERCLA.
"CHANGE OF CONTROL" means (i) the acquisition by any Person or group of
Persons acting as a group of beneficial ownership (within the meaning of the
Securities Exchange Act of 1934, as amended), directly or indirectly, of
thirty-five percent (35%) or more of the voting capital stock of the Borrower,
(ii) the board of directors of the Borrower ceasing to consist of at least a
majority of (x) directors of the Borrower in office on the Initial Closing Date
PLUS (y) directors elected since the Initial Closing Date by a majority of
directors in office on the Initial Closing Date or (iii) the President or Chief
Financial Officer who were holding such offices as of the Initial Closing Date
shall cease for any reason to hold such offices and replacements reasonably
satisfactory to the Required Lenders shall not have been elected by the board
within 180 days.
"CHARTER" means the articles of organization, certificate of
incorporation, statute, constitution, joint venture agreement, partnership
agreement, trust indenture, limited liability company agreement or other charter
document of any Person other than an individual, each as from time to time in
effect.
"CLOSING DATE" means the Initial Closing Date and each other date on
which any extension of credit is made pursuant to Sections 2.1, 2.2 or 2.3.
"CODE" means the federal Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENT" means, with respect to any Lender, such Lender's
obligations to extend the credits contemplated by the Credit Documents; the
original Commitments being set forth in Section 12.1 and the current Commitments
being recorded from time to time in the Register.
"COMPANY" means AmeriPath, Inc., a Delaware corporation.
"COMPUTATION COVENANTS" means Sections 6.5, 6.6.7, 6.6.11, 6.9.5, 6.10,
6.11, 6.12, 6.17 and 6.21.
"CONSOLIDATED" and "CONSOLIDATING", when used with reference to any
term, mean that term as applied to the accounts of the Company (or other
specified Person) and all of its Subsidiaries (or other specified group of
Persons), or such of its Subsidiaries as may be specified, consolidated (or
combined) or consolidating (or combining), as the case may be, in
-6-
<PAGE>
accordance with GAAP and with appropriate deductions for minority interests in
Subsidiaries.
"CONSOLIDATED ADJUSTED EBITDA" means, for any period, an amount equal
to the sum of (a) Consolidated Net Income of the Company and its Subsidiaries
for such period PLUS (b) all amounts deducted in computing such Consolidated Net
Income in respect of (i) taxes based upon or measured by income, (ii)
Consolidated Interest Expense and (iii) depreciation and amortization expense
PLUS (c) any Acquired Party EBITDA Adjustment.
"CONSOLIDATED EBITDA" means, for any period, an amount equal to the sum
of (a) Consolidated Net Income of the Company and its Subsidiaries for such
period PLUS (b) all amounts deducted in computing such Consolidated Net Income
in respect of (i) taxes based upon or measured by income, (ii) Consolidated
Interest Expense and (iii) depreciation and amortization.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the Interest
Expense paid and accrued by the Company and its Subsidiaries on a Consolidated
basis.
"CONSOLIDATED NET INCOME" means, for any period, the net income (or
loss) of the Company and its Subsidiaries, determined in accordance with GAAP on
a Consolidated basis; PROVIDED, HOWEVER, that Consolidated Net Income shall not
include the net amount after taxes of:
(a) the income (or loss) of any other Person accrued prior to
the date such other Person becomes a Subsidiary or is merged into or
consolidated with such Person;
(b) the income (or loss) of any other Person (other than a
Subsidiary) in which such Person has an ownership interest; PROVIDED,
HOWEVER, that (i) Net Income shall include amounts in respect of the
income of such other Person when actually received in cash by such
Person in the form of dividends or similar Distributions and (ii) Net
Income shall be reduced by the aggregate amount of all Investments,
regardless of the form thereof, made by such Person in such other
Person for the purpose of funding any deficit or loss of such other
Person;
(c) all amounts included in computing such net income (or
loss) in respect of the write-up of any asset or the retirement of any
Indebtedness or equity at less than face value after any acquisition;
(d) extraordinary and nonrecurring gains;
(e) the income of any Subsidiary to the extent the payment of
such income in the form of a Distribution or repayment of Indebtedness
to such Person is not permitted, whether on account of any Charter or
By-law restriction, any agreement,
-7-
<PAGE>
instrument, deed or lease or any law, statute, judgment, decree or
governmental order, rule or regulation applicable to such Subsidiary;
and
(f) any after-tax gains or losses attributable to returned
surplus assets of any Plan.
"CONSOLIDATED OPERATING CASH FLOW" means, for any period, the total of
(i) Consolidated EBITDA MINUS (ii) taxes, based upon or measured by net taxable
income, paid in cash by the Company and its Subsidiaries MINUS (iii) Capital
Expenditures.
"CONSOLIDATED SENIOR DEBT" means all Financing Debt of the Company and
the Subsidiaries on a Consolidated basis other than in respect of Subordinated
Indebtedness.
"CONSOLIDATED TOTAL DEBT" means, at any date, all Financing Debt of the
Company and its Subsidiaries on a Consolidated basis.
"CONSOLIDATED TOTAL DEBT SERVICE" means, for any period, the sum of (i)
Consolidated Interest Expense PLUS (ii) the aggregate amount of all mandatory
scheduled payments, prepayments and sinking fund payments paid or accrued by the
Company and its Subsidiaries during such period with respect to Financing Debt,
including contingent obligations under agreements relating to Permitted
Acquisitions (made before or after the date of this Agreement) or with respect
to principal paid or accrued by the Company in respect of Subordinated
Indebtedness and Contingent Notes.
"CONSOLIDATED TOTAL LIABILITIES" means, at any date, all Indebtedness
of the Company and its Subsidiaries on a Consolidated basis.
"CONTINGENT NOTES" means the contingent promissory notes constituting
Subordinated Indebtedness issued to the Sellers in connection with a Permitted
Acquisition made hereunder or under this Agreement prior to its amendment and
restatement on the Initial Closing Date.
"CREDIT DOCUMENTS" means:
(a) this Agreement, the Notes, each Letter of Credit,
each draft presented or accepted under a Letter of Credit, each
Interest Rate Protection Agreement provided by a Lender (or an
Affiliate of a Lender) to the Borrower or any of its Subsidiaries and
the Subordination Agreement, each as from time to time in effect;
(b) all financial statements, reports, notices,
mortgages, assignments, UCC financing statements or certificates
delivered to the Agent or any of the Lenders by the Company, any of its
Subsidiaries or any other Obligor in connection herewith or therewith;
and
-8-
<PAGE>
(c) any other present or future agreement or instrument
from time to time entered into among the Company, any of its
Subsidiaries or any other Obligor, on one hand, and the Agent, any
Letter of Credit Issuer or all the Lenders, on the other hand, relating
to, amending or modifying this Agreement or any other Credit Document
referred to above or which is stated to be a Credit Document, each as
from time to time in effect.
"CREDIT OBLIGATIONS" means all present and future liabilities,
obligations and Indebtedness of the Company, any of its Subsidiaries or any
other Obligor owing to the Agent or any Lender under or in connection with this
Agreement or any other Credit Document, including obligations in respect of
principal, interest, reimbursement obligations under Letters of Credit and
Interest Rate Protection Agreements provided by a Lender (or an affiliate of a
Lender), commitment fees, Letter of Credit fees, amounts provided for in
Sections 3.2.4, 3.5 and 11 and other fees, charges, indemnities and expenses
from time to time owing hereunder or under any other Credit Document (whether
accruing before or after a Bankruptcy Default).
"CREDIT PARTICIPANT" is defined in Section 13.2.
"CREDIT SECURITY" means all assets now or from time to time hereafter
subjected to a security interest, mortgage or charge (or intended or required so
to be subjected pursuant to this Agreement or any other Credit Document) to
secure the payment or performance of any of the Credit Obligations, including
the assets described in Section 10.1.
"DEFAULT" means any Event of Default and any event or condition which
with the passage of time or giving of notice, or both, would become an Event of
Default and the filing against the Company, any of its Subsidiaries or any other
Obligor of a petition commencing an involuntary case under the Bankruptcy Code.
"DELINQUENCY PERIOD" is defined in Section 12.4.4.
"DELINQUENT LENDER" is defined in Section 12.4.4.
"DELINQUENT PAYMENT" is defined in Section 12.4.4.
"DISTRIBUTION" means, with respect to the Company (or other specified
Person):
(a) the declaration or payment of any dividend or
distribution, including dividends payable in shares of capital stock of
or other equity interests in the Company (or such specified Person), on
or in respect of any shares of any class of capital stock of or other
equity interests in the Company (or such specified Person);
(b) the purchase or redemption of any shares of any class
of capital stock of or other equity interest in the Company (or such
specified Person) or of options,
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warrants or other rights for the purchase of such shares, directly,
indirectly through a Subsidiary or otherwise;
(c) any other distribution on or in respect of any shares
of any class of capital stock of or equity or other beneficial interest
in the Company (or such specified Person);
(d) any payment of principal or interest with respect to,
or any purchase, redemption or defeasance of, any Indebtedness of the
Company (or such specified Person) which by its terms or the terms of
any agreement is subordinated to the payment of the Credit Obligations;
and
(e) any payment, loan or advance by the Company (or such
specified Person) to, or any other Investment by the Company (or such
specified Person) in, the holder of any shares of any class of capital
stock of or equity interest in the Company (or such specified Person),
or any Affiliate of such holder;
PROVIDED, HOWEVER, that the term "Distribution" shall not include (i)
dividends payable in perpetual common stock of or other similar equity
interests in the Company (or such specified Person) or (ii) payments in
the ordinary course of business in respect of (A) reasonable
compensation paid to employees, officers and directors, (B) advances to
employees for travel expenses, drawing accounts and similar
expenditures, or (C) rent paid to, or accounts payable for services
rendered or goods sold by, non-Affiliates that own capital stock of or
other equity interests in the Company (or such specified Person).
"EBITDA" means, for any period, an amount equal to the sum of (a) the
Net Income (or loss) of any Person for such period PLUS (b) all amounts deducted
in computing such Net Income in respect of (i) taxes based upon or measured by
income, (ii) Interest Expense and (iii) depreciation and amortization.
"ENVIRONMENTAL LAWS" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment, including OSHA.
"EQUITY TRANSACTION" means any issuance or sale by the Company or any
of its Subsidiaries of any shares of capital stock, other equity interests or
options, warrants or other purchase rights to acquire such capital stock or
other equity interests, of the Company or any of its Subsidiaries, to any
Person; PROVIDED, HOWEVER, that the term "Equity Transaction" shall not include
such issuances or sales (i) to any of the Obligors or their officers, employees
and directors, (ii) to any Person pursuant to the Company's Amended and Restated
1996 Stock Option Plan or 1996 Director Stock Option Plan or (iii) that comprise
a portion of the Purchase Price in any Permitted Acquisition.
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"ERISA" means the federal Employee Retirement Income Security Act of
1974.
"ERISA GROUP PERSON" means the Company, any Subsidiary of the Company
and any Person which is a member of the controlled group or under common control
with the Company or any Subsidiary within the meaning of section 414 of the Code
or section 4001(a)(14) of ERISA.
"EVENT OF DEFAULT" is defined in Section 8.1.
"EXCHANGE ACT" means the federal Securities Exchange Act of 1934.
"FEDERAL FUNDS RATE" means, for any day, the rate equal to the weighted
average (rounded upward to the nearest 1/8%) of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, (a) as such weighted average is published for such day
(or, if such day is not a Banking Day, for the immediately preceding Banking
Day) by the Federal Reserve Bank of New York or (b) if such rate is not so
published for such Banking Day, as determined by the Agent using any reasonable
means of determination. Each determination by the Agent of the Federal Funds
Rate shall, in the absence of manifest error, be conclusive.
"FINAL MATURITY DATE" means the fifth anniversary of the date hereof.
"FINANCIAL OFFICER" of the Company (or other specified Person) means
its chief executive officer, chief financial officer, chief operating officer,
chairman, president, treasurer or any of its vice presidents whose primary
responsibility is for its financial affairs, all of whose incumbency and
signatures have been certified to the Agent by the secretary or other
appropriate attesting officer of the Company (or such specified Person).
"FINANCING DEBT" means each of the items described in clauses (a)
through (e) of the definition of the term "Indebtedness."
"FOREIGN TRADE REGULATIONS" means (a) any act that prohibits or
restricts, or empowers the President or any executive agency of the United
States of America to prohibit or restrict, exports to or financial transactions
with any foreign country or foreign national, (b) the regulations with respect
to certain prohibited foreign trade transactions set forth at 22 C.F.R. Parts
120-130 and 31 C.F.R. Parts 500-590 and (c) any order, regulation, ruling,
interpretation, direction, instruction or notice relating to any of the
foregoing.
(g) "FRIENDLY ACQUISTION" means any acquisition which has
received the prior approval of the board of directors of the Person
being acquired.
"FUNDING LIABILITY" means (a) any LIBOR deposit which was used (or
deemed by Section 3.2.6 to have been used) to fund any portion of the Loan
subject to a LIBOR Pricing
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Option, and (b) any portion of the Loan subject to a LIBOR Pricing Option funded
(or deemed by Section 3.2.6 to have been funded) with the proceeds of any such
LIBOR deposit.
"GAAP" means generally accepted accounting principles as from time to
time in effect, including the statements and interpretations of the United
States Financial Accounting Standards Board.
"GUARANTEE" means, with respect to the Company (or other specified
Person):
(a) any guarantee by the Company (or such specified
Person) of the payment or performance of, or any contingent obligation
by the Company (or such specified Person) in respect of, any
Indebtedness or other obligation of any primary obligor;
(b) any other arrangement whereby credit is extended to a
primary obligor on the basis of any promise or undertaking of the
Company (or such specified Person), including any binding "comfort
letter" or "keep well agreement" written by the Company (or such
specified Person), to a creditor or prospective creditor of such
primary obligor, to (i) pay the Indebtedness of such primary obligor,
(ii) purchase an obligation owed by such primary obligor, (iii) pay for
the purchase or lease of assets or services regardless of the actual
delivery thereof or (iv) maintain the capital, working capital,
solvency or general financial condition of such primary obligor;
(c) any liability of the Company (or such specified
Person), as a general partner of a partnership in respect of
Indebtedness or other obligations of such partnership;
(d) any liability of the Company (or such specified
Person) as a joint venturer of a joint venture in respect of
Indebtedness or other obligations of such joint venture;
(e) any liability of the Company (or such specified
Person) with respect to the tax liability of others as a member of a
group that is consolidated for tax purposes; and
(f) reimbursement obligations, whether contingent or
matured, of the Company (or such specified Person) with respect to
letters of credit, bankers acceptances, surety bonds, other financial
guarantees and Interest Rate Protection Agreements,
whether or not any of the foregoing are reflected on the balance sheet
of the Company (or such specified Person) or in a footnote thereto;
PROVIDED, HOWEVER, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of
business. The amount of any Guarantee and the amount of Indebtedness
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resulting from such Guarantee shall be the maximum amount that the
guarantor may become obligated to pay in respect of the obligations
(whether or not such obligations are outstanding at the time of
computation).
"GUARANTOR" means each Subsidiary of the Borrower listed on the
signature page hereto or which subsequently becomes party to this Agreement as a
Guarantor.
"HAZARDOUS MATERIAL" means any pollutant, toxic or hazardous material
or waste, including any "hazardous substance" or "pollutant" or "contaminant" as
defined in section 101(14) of CERCLA or any other Environmental Law or regulated
as toxic or hazardous under RCRA or any other Environmental Law.
"HISTORICAL AVERAGE PAYMENT" means, on any date, with respect to any
Contingent Notes or Restructured Seller Notes, the quotient of (x) the sum of
the amount of principal payments actually made on such notes in respect of all
fiscal years completed before such date and (y) the number of such completed
fiscal years; provided, HOWEVER, that on any date on or prior to the end of the
second full fiscal year completed after the issuance of such notes, the
Historical Average Payment for such notes shall be deemed to be $0.
"IMPERMISSIBLE REFERENCE" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which expresses concern about whether or not such Obligor
will be able to meet its obligations as such become due, or otherwise
will be able to operate or conduct its business in the future;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement;
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause there to be a Default under Sections 6.5 through
6.23; or
(d) which, in the reasonable judgment of the Required Lenders,
is not acceptable.
"INDEBTEDNESS" means all obligations, contingent or otherwise, which in
accordance with GAAP are required to be reported upon the balance sheet of the
Company (or other specified Person) as liabilities, but in any event including
(without duplication):
(a) borrowed money;
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(b) indebtedness evidenced by notes, debentures or similar
instruments, including Contingent Notes and Restructured Seller Notes;
(c) Capitalized Lease Obligations;
(d) obligations, whether contingent or matured, with respect
to letters of credit, bankers acceptances, surety bonds, other
financial guarantees and Interest Rate Protection Agreements (without
duplication of other Indebtedness supported or guaranteed thereby);
(e) unfunded pension liabilities;
(f) mandatory redemption or dividend rights on capital stock
(or other equity);
(h) obligations (other than Contingent Notes or Restructured
Seller Notes) that are immediately and directly due and payable out of
the proceeds of or production from property;
(i) liabilities secured by any Lien existing on property owned
or acquired by the Company (or such specified Person), whether or not
the liability secured thereby shall have been assumed; and
(j) all Guarantees in respect of Indebtedness of others.
"INDEMNIFIED PARTY" is defined in Section 11.2.
"INITIAL CLOSING DATE" means the first date on or prior to December 31,
1999, on which all the conditions set forth in Section 5.1 have been satisfied.
"INTEREST EXPENSE" means, for any period, the aggregate amount of
interest, including commitment fees and payments in the nature of interest under
Capitalized Leases and Interest Rate Protection Agreements (whether such
interest is reflected as an item of expense or capitalized), paid or accrued by
any Person in accordance with GAAP.
"INTEREST RATE PROTECTION AGREEMENT" means any interest rate swap,
interest rate cap, interest rate hedge or other contractual arrangement that
converts variable interest rates into fixed interest rates, fixed interest rates
into variable interest rates or other similar arrangements.
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"INVESTMENT" means, with respect to the Borrower (or other specified
Person):
(a) any share of capital stock, partnership or other
equity interest, evidence of Indebtedness or other security issued by
any other Person;
(b) any loan, advance or extension of credit to, or
contribution to the capital of, any other Person;
(c) any Guarantee of the Indebtedness of any other Person;
(d) any acquisition of all or any part of the business of any
other Person or the assets comprising such business or part thereof;
and
(e) any other similar investment.
The investments described in the foregoing clauses (a) through
(e) shall be included in the term "Investment" whether they are made or
acquired by purchase, exchange, issuance of stock or other securities,
merger, reorganization or any other method; PROVIDED, HOWEVER, that the
term "Investment" shall not include (i) trade and customer accounts
receivable for property leased, goods furnished or services rendered in
the ordinary course of business and payable in accordance with
customary trade terms, (ii) advances and prepayments to suppliers for
property leased, goods furnished and services rendered in the ordinary
course of business, (iii) advances to employees for travel expenses,
drawing accounts and similar expenditures, (iv) stock or other
securities acquired in connection with the satisfaction or enforcement
of Indebtedness or claims due to the Company (or such specified Person)
or as security for any such Indebtedness or claim or (v) demand
deposits in banks or similar financial institutions.
In determining the amount of outstanding Investments:
(A) the amount of any Investment shall be the cost
thereof MINUS any returns of capital in cash on such
Investment (determined in accordance with GAAP without regard
to amounts realized as income on such Investment);
(B) the amount of any Investment in respect of a
purchase described in clause (d) above shall include the
amount of any Financing Debt assumed in connection with such
purchase or secured by any asset acquired in such purchase
(whether or not any Financing Debt is assumed) or for which
any Person that becomes a Subsidiary is liable on the date on
which the securities of such Person are acquired; and
(C) no Investment shall be increased as the result of
an increase in the undistributed retained earnings of the
Person in which the Investment was
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made or decreased as a result of an equity interest in the
losses of such Person.
"LATE DELIVERY DATE" is defined in the definition of Applicable
Commitment Fee Rate.
"LATE PRICING RESET DATE" is defined in the definition of Applicable
Commitment Fee Rate.
"LEGAL REQUIREMENT" means any present or future requirement imposed
upon any of the Lenders or the Company and its Subsidiaries by any law, statute,
rule, regulation, directive, order, decree, guideline (or any interpretation
thereof by courts or of administrative bodies) of the United States of America,
or any jurisdiction in which any LIBOR Office is located or any state or
political subdivision of any of the foregoing, or by any board, governmental or
administrative agency, central bank or monetary authority of the United States
of America, any jurisdiction in which any LIBOR Office is located, or any
political subdivision of any of the foregoing. Any such requirement imposed on
any of the Lenders which such Lender reasonably believes has the force of law
shall be deemed to be a Legal Requirement.
"LENDER" means each of the Persons listed as lenders on the signature
page hereto, including BankBoston in its capacity as a Lender and such other
Persons who may from time to time own an Aggregate Percentage Interest in the
Loan, but the term "Lender" shall not include any Credit Participant.
"LENDING OFFICER" means such individuals whom the Agent may designate
by notice to the Company from time to time as an officer who may receive
telephone requests for borrowings under Section 2.1.3.
"LETTER OF CREDIT" is defined in Section 2.3.1.
"LETTER OF CREDIT EXPOSURE" means, at any date, the sum of (a) the
aggregate face amount of all drafts that may then or thereafter be presented by
beneficiaries under all Letters of Credit then outstanding, PLUS (b) the
aggregate face amount of all drafts that the Letter of Credit Issuer has
previously accepted under Letters of Credit but has not paid.
"LETTER OF CREDIT ISSUER" means, for any Letter of Credit, BankBoston
or, in the event BankBoston does not for any reason issue a requested Letter of
Credit, another Lender with a Percentage Interest in the Revolving Loan willing
to issue such Letter of Credit in accordance with Section 2.3 and who is
reasonably acceptable to the Agent.
"LIBOR BASE RATE" means, for any LIBOR Interest Period, the average
(rounded upward to the nearest whole multiple of one sixteenth of one percent
(1/16 of 1%)) of the rate of interest per annum at which deposits in United
States Dollars in a principal amount approximately equal to the principal amount
of the portion of the Loan to be subject to such
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Interest Period would be quoted on Telerate page 3750 (or such other page as may
replace the 3750 page on the Telerate Service or such other service or services
as may be nominated by the British Bankers' Association for United States Dollar
deposits) as of 11:00 A.M., London time, at least two London banking days prior
to the first day of the LIBOR Interest Period, the determination of which by the
Agent shall, in the absence of manifest error, be conclusive.
"LIBOR INTEREST PERIOD" means any period, selected as provided in
Section 3.2.1, of one, two, three or six months, commencing on any Banking Day
and ending on the corresponding date in the subsequent calendar month so
indicated (or, if such subsequent calendar month has no corresponding date, on
the last day of such subsequent calendar month); PROVIDED, HOWEVER, that subject
to Section 3.2.3, if any LIBOR Interest Period so selected would otherwise begin
or end on a date that is not a Banking Day, such LIBOR Interest Period shall
instead begin or end, as the case may be, on the immediately preceding or
succeeding Banking Day as determined by the Agent in accordance with the then
current banking practice in the inter-bank LIBOR market with respect to LIBOR
deposits at the applicable LIBOR Office, which determination by the Agent shall,
in the absence of manifest error, be conclusive.
"LIBOR OFFICE" means such non-United States office or international
banking facility of the Agent as the Agent may from time to time select.
"LIBOR PRICING OPTIONS" means the options granted pursuant to Section
3.2.1 to have the interest on any portion of the Loan computed on the basis of a
LIBOR Rate.
"LIBOR RATE" for any LIBOR Interest Period means the rate, rounded
upward to the nearest 1/100%, obtained by dividing (a) the LIBOR Base Rate for
such LIBOR Interest Period by (b) an amount equal to 1 MINUS the LIBOR Reserve
Rate; PROVIDED, HOWEVER, that if at any time during such LIBOR Interest Period
the LIBOR Reserve Rate applicable to any outstanding LIBOR Pricing Option
changes, the LIBOR Rate for such LIBOR Interest Period shall automatically be
adjusted to reflect such change, effective as of the date of such change.
"LIBOR RESERVE RATE" means the stated maximum rate (expressed as a
decimal) of all reserves (including any basic, supplemental, marginal or
emergency reserve or any reserve asset), if any, as from time to time in effect,
required by any Legal Requirement to be maintained by any Lender against (a)
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System applicable to LIBOR Pricing Options, (b)
any other category of liabilities that includes LIBOR deposits by reference to
which the interest rate on portions of the Loan subject to LIBOR Pricing Options
is determined, (c) the principal amount of or interest on any portion of the
Loan subject to a LIBOR Pricing Option or (d) any other category of extensions
of credit, or other assets, that includes loans subject to a LIBOR Pricing
Option by a non-United States office of any of the Lenders to United States
residents, in each case without the benefits of credits for prorations,
exceptions or offsets that may be available to a Lender.
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"LIEN" means, with respect to the Company (or any other specified
Person):
(a) any lien, encumbrance, mortgage, pledge, charge or
security interest of any kind upon any property or assets of the
Company (or such specified Person), whether now owned or hereafter
acquired, or upon the income or profits therefrom;
(b) the acquisition of, or the agreement to acquire, any
property or asset upon conditional sale or subject to any other title
retention agreement, device or arrangement (including a Capitalized
Lease);
(c) the sale, assignment, pledge or transfer for security of
any accounts, general intangibles or chattel paper of the Company (or
such specified Person), with or without recourse;
(d) the transfer of any tangible property or assets for the
purpose of subjecting such items to the payment of previously
outstanding Indebtedness in priority to payment of the general
creditors of the Company (or such specified Person); and
(e) the existence for a period of more than 120 consecutive
days of any Indebtedness against the Company (or such specified Person)
which if unpaid would by law or upon a Bankruptcy Default be given any
priority over general creditors.
"LOAN" means the Revolving Loan.
"LOAN ACCOUNT" is defined in Section 2.1.4.
"MANAGEMENT SERVICES AGREEMENTS" shall mean the agreements entered into
by the Company or any of its Subsidiaries, on the one hand, and a professional
association or corporation which employs physicians engaged in a pathology
practice, on the other hand, for the long-term management of such physician
practice.
"MANDATORY BORROWING" is defined in Section 2.2.4.
"MARGIN STOCK" means "margin stock" within the meaning of Regulations
T, U or X of the Board of Governors of the Federal Reserve System.
"MATERIAL ADVERSE CHANGE" means, since any specified date or from the
circumstances existing immediately prior to the happening of any specified
event, a material adverse change in (a) the business, assets, financial
condition, income or prospects of the Company (on an individual basis) or the
Company and its Subsidiaries (on a Consolidated basis), whether as a result of
(i) general economic conditions affecting the industry in which the Company and
its Subsidiaries are engaged, (ii) difficulties in obtaining supplies and raw
materials, (iii) fire, flood or other natural calamities, (iv) environmental
pollution, (v) regulatory changes,
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judicial decisions, war or other governmental action or (vi) any other event or
development, whether or not related to those enumerated above or (b) the ability
of the Obligors to perform their obligations under the Credit Documents or (c)
the rights and remedies of the Agent and the Lenders under the Credit Documents.
"MATERIAL AGREEMENTS" is defined in Section 7.2.2.
"MATERIAL PLAN" means any Plan or Plans, collectively, as to which (a)
the excess of (i) the aggregate Accumulated Benefit Obligations under such Plan
or Plans over (ii) the aggregate fair market value of the assets of such Plan or
Plans allocable to such benefits, all determined as of the then most recent
valuation date or dates for such Plan or Plans, is greater than (b) $500,000.
"MAXIMUM AMOUNT OF REVOLVING CREDIT" is defined in Section 2.1.2.
"MULTIEMPLOYER PLAN" means any Plan that is a "multiemployer plan" as
defined in section 4001(a)(3) of ERISA.
"NET EQUITY PROCEEDS" means the cash proceeds received by the Company
or any of its Subsidiaries in connection with any Equity Transaction (net of
related actual out-of-pocket fees and expenses incurred by the Company in the
exercise of the reasonable business judgment of its officers).
"NET INCOME" means, for any period, the net income (or loss) of any
Person, determined in accordance with GAAP; PROVIDED, HOWEVER, that Net Income
shall not include:
(a) all amounts included in computing such net income (or
loss) in respect of the write-up of any asset or the retirement of any
Indebtedness or equity at less than face value after any acquisition;
(b) extraordinary and nonrecurring gains;
(c) any after-tax gains or losses attributable to returned
surplus assets of any Plan.
"NONPERFORMING LENDER" is defined in Section 12.4.4.
"NOTES" means each of the Revolving Notes.
"OBLIGORS" means the Company and each Guarantor, each individually an
"OBLIGOR".
"OPERATING EARNINGS" means, with respect to any Person, the sum of (a)
the Net Income of such Person plus (b) all amounts deducted in computing such
Net Income in respect of (i) taxes based upon or measured by income, (ii)
Interest Expense, (iii) normalized
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salaries, benefits, and other compensation to be paid to physicians employed by,
or serving as consultants or independent contractors to, such Person plus (c) in
the case of subsidiaries that are not required to pay 100% of Operating Earnings
under a Management Services Agreement, any other amounts paid to physicians
employed by, or serving as consultants or independent contractors to, such
Person.
"OSHA" means the federal Occupational Health and Safety Act.
"OVERDUE REIMBURSEMENT RATE" means, at any date, the highest Applicable
Rate then in effect.
"PAYMENT DATE" means the first Banking Day of each month, commencing
with the first such date after the Initial Closing Date.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
entity.
"PERCENTAGE INTEREST" means, with respect to the Revolving Loan or
Letter of Credit Exposure, the ratio that the respective Commitments of the
Lenders with respect to such portion of the Loan (or Letter of Credit Exposure)
bear to the total Commitments in respect of such portion of the Loan (or Letter
of Credit Exposure) of all Lenders as from time to time in effect and reflected
in the Register.
"PERFORMING LENDER" is defined in Section 12.4.4.
"PERMITTED ACQUISITION" means an Investment by the Borrower permitted
under Section 6.9.5.
"PERSON" means any present or future natural person or any corporation,
association, partnership, joint venture, limited liability, joint stock or other
company, business trust, trust, organization, business or government or any
governmental agency or political subdivision thereof.
"PLAN" means, at any date, any pension benefit plan subject to Title IV
of ERISA maintained, or to which contributions have been made or are required to
be made, by any ERISA Group Person within six years prior to such date.
"PLEDGED INDEBTEDNESS" is defined in Section 10.1.6.
"PLEDGED RIGHTS" is defined in Section 10.1.5.
"PLEDGED SECURITIES" means the Pledged Stock, the Pledged Rights and
the Pledged Indebtedness, collectively.
"PLEDGED STOCK" is defined in Section 10.1.4.
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"PRICING GRID" means the pricing grid matrix set forth on Exhibit 1.
"PRICING RESET DATE" means the first Banking Day after annual or
quarterly financial statements have been furnished to the Lenders in accordance
with Sections 6.4.1 and 6.4.2 from time to time.
"PRO FORMA EBITDA" shall mean, for any period, an amount calculated on
a pro forma basis taking into account the Permitted Acquisition equal to (a) the
historical EBITDA of the Acquired Party and (b) any non-GAAP adjustment to Net
Income to the extent that such adjustment is approved by the Required Lenders.
"PURCHASE PRICE" means the amount of the consideration, including, but
not limited to, cash or Cash Equivalents, capital stock, assets, debt, including
contingent or other promissory notes, and any other form of payment, for any
Permitted Acquisition; PROVIDED, HOWEVER, that the amount of any Contingent Note
included in this definition of Purchase Price shall be one-half of the maximum
principal amount of such Contingent Note.
"RCRA" means the federal Resource Conservation and Recovery Act, 42
U.S.C.ss.690, ET SEQ.
"REGISTER" is defined in Section 13.1.3.
"REPLACEMENT LENDER" is defined in Section 13.3.
"RESTRUCTURED SELLER NOTES" means notes issued in exchange for
Contingent Notes or existing Restructured Seller Notes; PROVIDED, HOWEVER, that,
(a) The Company and the holders of such new notes shall, on or prior to
the date of exchange, have executed and delivered a Subordination Agreement in
the form attached hereto as Exhibit 6.21.1(a), pursuant to which the obligations
of the Company and its Subsidiaries to the holders of the new notes are
subordinated to the Credit Obligations;
(b) The weighted average life to maturity of such new notes shall be
equal to or greater than the weighted average life to maturity of the
outstanding principal of the old notes, in each case calculated as if the
maximum outstanding principal amount were paid;
(c) Immediately before and after such exchange, no Default shall exist;
and
(d) such new notes are either:
(i) new contingent notes for which:
(1) all payments of principal of the new notes are
contingent on the Net Income of a Subsidiary of the
Borrower (or a division thereof);
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(2) The aggregate maximum principal amount does not
exceed the aggregate maximum outstanding principal
amount of old notes; and
(3) The "Minimum Target" for each year (as defined in
such new notes) is greater than or equal to such
target for such year in the old notes; PROVIDED,
HOWEVER, that if the old notes being exchanged have
different "Minimum Targets", or dates therefor, then
the "Minimum Targets" for each year in the new notes
shall not be less than the sum of the "Minimum
Targets" for such year under the terms of the old
notes; or
(ii) new non-contingent notes for which the aggregate
principal amount does not exceed the greater of (x) one-half
the remaining aggregate maximum principal amount of old notes
for which payments of principal were contingent on the Net
Income of a Subsidiary of the Company (or a division thereof)
or (y) the Historical Average Payment on the old notes
multiplied by the number of years remaining.
"REQUIRED LENDERS" means, with respect to any approval, consent,
modification, waiver or other action to be taken by the Agent or the Lenders
under the Credit Documents which require action by the Required Lenders, any two
or more Lenders that own at least a majority of the Aggregate Percentage
Interests in the Loan; PROVIDED, HOWEVER, that with respect to any matters
referred to in the proviso to Section 12.6, Required Lenders means such Lenders
that own at least the respective portions of the Aggregate Percentage Interests
in the Loan required by such proviso.
"REVOLVING LOAN" is defined in Section 2.1.4.
"REVOLVING NOTES" is defined in Section 2.1.4.
"SECURITIES ACT" means the federal Securities Act of 1933.
"SELLERS" means the Person or Persons selling or otherwise transferring
the capital stock, partnership or other equity interest or assets of the
Acquired Party to the Borrower pursuant to a Permitted Acquisition.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Borrower which is
subordinated to the Credit Obligations pursuant to a Subordination Agreement or
on terms approved by the Required Lenders in writing.
"SUBORDINATION AGREEMENT" shall be an agreement in form and substance
substantially similar to Exhibit 6.21.1(a).
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"SUBSIDIARY" means any Person of which the Company (or other specified
Person) shall at the time, directly or indirectly through one or more of its
Subsidiaries, or through a trust or similar entity controlled by the Company (or
other specified Person) or a Subsidiary, (a) owns at least 50% of the
outstanding capital stock (or other shares of beneficial interest) entitled to
vote generally, (b) holds at least 50% of the partnership, joint venture or
similar interests, (c) is a general partner or joint venturer or (d) with which
the Company or one or more of its Subsidiaries has entered into a Management
Services Agreement.
"SWINGLINE BORROWER" means the Borrower.
"SWINGLINE LENDER" means BankBoston, in its capacity as swingline
lender hereunder.
"SWINGLINE LOAN" is defined in Section 2.2.3.
"SWINGLINE LOAN ACCOUNT" is defined in Section 2.2.3.
"SWINGLINE NOTE" is defined in Section 2.2.3.
"SWINGLINE RATE" means the rate equal to the sum of (a) the Base Rate,
PLUS (b) an additional 3% per annum effective on the Banking Day the Agent
notifies the Company that the interest rates hereunder are increasing as a
result of the occurrence and continuance of an Event of Default until the
earlier of such time as (i) such Event of Default is no longer continuing or
(ii) such Event of Default is deemed no longer to exist, in each case pursuant
to Section 8.3.
"TAX" means any present or future tax, levy, duty, impost, deduction,
withholding or other charges of whatever nature at any time required by any
Legal Requirement (a) to be paid by any Lender or (b) to be withheld or deducted
from any payment otherwise required hereby to be made to any Lender, in each
case on or with respect to its obligations hereunder, the Loan, any payment in
respect of the Credit Obligations or any Funding Liability not included in the
foregoing; PROVIDED, HOWEVER, that the term "Tax" shall not include taxes
imposed upon or measured by the net income of such Lender (other than
withholding taxes) or franchise taxes.
"UCC" means the Uniform Commercial Code as in effect in Massachusetts
on the date hereof; PROVIDED, HOWEVER, that with respect to the perfection of
the Agent's Lien in the Credit Security and the effect of nonperfection thereof,
the term "UCC" means the Uniform Commercial Code as in effect in any
jurisdiction the laws of which are made applicable by Section 9-103 of the
Uniform Commercial Code as in effect in Massachusetts.
"UNIFORM CUSTOMS AND PRACTICE" is defined in Section 2.3.7.
"UNITED STATES FUNDS" means such coin or currency of the United States
of America as at the time shall be legal tender therein for the payment of
public and private debts.
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"WHOLLY OWNED SUBSIDIARY" means any Subsidiary of which all of the
outstanding capital stock (or other shares of beneficial interest) entitled to
vote generally (other than directors' qualifying shares) is owned by the Company
(or other specified Person) directly, or indirectly through one or more Wholly
Owned Subsidiaries.
"YEAR 2000 COMPLIANT" means, with regard to any entity, that all
software, embedded microchips, and other processing capabilities utilized by,
and material to the business operations or financial condition of such entity,
are able to interpret and manipulate data involving all calendar dates correctly
and without causing and abnormal ending scenario, including dates in and after
the year 2000.
2. THE CREDITS.
2.1. REVOLVING CREDIT.
2.1.1. REVOLVING LOAN. Subject to all the terms and conditions
of this Agreement and so long as no Default then exists, from time to
time on and after the Initial Closing Date and prior to the Final
Maturity Date the Lenders will, severally in accordance with their
respective Percentage Interests in the Revolving Loan, make loans to
the Borrower in such amounts as may be requested by the Borrower in
accordance with Section 2.1.3. The sum of the aggregate principal
amount of loans made under this Section 2.1.1 at any one time
outstanding PLUS the Swingline Loan, PLUS the Letter of Credit Exposure
shall in no event exceed the Maximum Amount of Revolving Credit. In no
event will the principal amount of loans at any one time outstanding
made by any Lender pursuant to this Section 2.1 exceed such Lender's
Commitment.
2.1.2. MAXIMUM AMOUNT OF REVOLVING CREDIT. The term "MAXIMUM
AMOUNT OF REVOLVING CREDIT" means on any date, the lesser of (a)
$230,000,000 or such higher amount up to $300,000,000 as equals the
aggregate amount of the Commitments then in effect, or (b) the amount
(in an integral multiple of $1,000,000) to which the then applicable
amount shall have been irrevocably reduced from time to time by notice
from the Company to the Agent.
2.1.3. BORROWING REQUESTS. The Borrower may from time to time
request a loan under Section 2.1.1 by providing to the Agent a notice
(which may be given by a telephone call received by a Lending Officer
if promptly confirmed in writing). Such notice must be not later than
noon (Boston time) on the first Banking Day (third Banking Day if any
portion of such loan will be subject to a LIBOR Pricing Option on the
requested Closing Date) prior to the requested Closing Date for such
loan. If such notice requested that a loan, or any portion thereof, be
made subject to a LIBOR Pricing Option, and the Agent shall have
notified the Borrower pursuant to Section 3.2.2 that such election did
not become effective, the notice shall be deemed
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to have been made for a loan at the Base Rate. The notice must specify
(a) the amount of the requested loan (which shall be not less than
$100,000 and an integral multiple of $50,000), (b) the requested
Closing Date therefor (which shall be a Banking Day) and (c) the
portion of the requested loan that is to be used for working capital.
Upon receipt of such notice, the Agent will promptly inform each other
Lender with Percentage Interests in the Revolving Loan (by telephone or
otherwise). Each such loan will be made at the Boston Office by
depositing the amount thereof to the general account of the Borrower
with the Agent. In connection with each such loan, the Borrower shall
furnish to the Agent a certificate in substantially the form of Exhibit
5.2.1.
2.1.4. LOAN ACCOUNT; NOTES. The Agent will establish on its
books a loan account for the Borrower (the "LOAN ACCOUNT"), which the
Agent shall administer as follows: (a) the Agent shall add to the Loan
Account, and the Loan Account shall evidence, the principal amount of
all loans from time to time made by the Lenders to the Borrower
pursuant to Section 2.1.1 and (b) the Agent shall reduce the Loan
Account by the amount of all payments made on account of the
Indebtedness evidenced by the Loan Account. The aggregate principal
amount of the Indebtedness evidenced by the Loan Account is referred to
as the "REVOLVING LOAN". The Revolving Loan shall be deemed owed to
each Lender severally in accordance with such Lender's Percentage
Interest in the Revolving Loan, and all payments credited to the Loan
Account shall be for the account of each Lender in accordance with its
Percentage Interest in the Revolving Loan. The Borrower's obligations
to pay each Lender's Percentage Interest in the Revolving Loan shall be
evidenced by a separate note of such Borrower in substantially the form
of Exhibit 2.1.4 (the "REVOLVING NOTES"), payable to each Lender in
maximum principal amount equal to such Lender's Percentage Interest in
the Revolving Loan.
2.2. SWINGLINE CREDIT.
2.2.1. SWINGLINE LOAN. Subject to all the terms and conditions
of this Agreement and so long as no Default exists, from time to time
on and after the Initial Closing Date and prior to the Final Maturity
Date, the Swingline Lender will make loans to the Borrower in such
amounts as may be requested by the Borrower in accordance with Section
2.2.2. The sum of the aggregate principal amount of loans made under
this Section 2.2 at any one time outstanding PLUS the Revolving Loan
PLUS the Letter of Credit Exposure shall in no event exceed the Maximum
Amount of Revolving Credit. In no event will the principal amount of
loans made pursuant to this Section 2.2 at any one time outstanding
exceed $10,000,000.
2.2.2. BORROWING REQUESTS. The Borrower may from time to time
request a loan under Section 2.2.1 by providing to the Swingline Lender
a notice (which may be given by a telephone call received by a Lending
Officer of the Swingline Lender). Such notice must be not later than
2:00 P.M. (Boston time) on the requested Closing
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Date (which must be a Banking Day) for such loan. The notice must
specify the amount of the requested loan. Each such loan will be made
at the Boston office by depositing the amount thereof to the general
account of the Borrower with the Swingline Lender. In connection with
each such loan, the Borrower shall furnish to the Swingline Lender a
certificate in substantially the form of Exhibit 5.2.1.
2.2.3. SWINGLINE LOAN ACCOUNT; SWINGLINE NOTES. The Swingline
Lender will establish on its books a loan account for the Borrower (the
"SWINGLINE LOAN ACCOUNT") which the Swingline Lender shall administer
as follows: (a) the Swingline Lender shall add to the Swingline Loan
Account, and the Swingline Loan Account shall evidence, the principal
amount of all loans from time to time made by the Swingline Lender to
the Borrower pursuant to Section 2.2.1 and (b) the Swingline Lender
shall reduce the Swingline Loan Account by the amount of all payments
made on account of the Indebtedness evidenced by the Swingline Loan
Account. The aggregate principal amount of the Indebtedness evidenced
by the Swingline Loan Account is referred to as the "SWINGLINE LOAN".
The Company's obligation to pay the Swingline Loan shall be evidenced
by a note of the Company in substantially the form of Exhibit 2.2.3
(the "SWINGLINE NOTE"), payable to the Swingline Lender in maximum
principal amount equal to the Swingline Loan.
2.2.4. CONVERSION OF SWINGLINE LOAN INTO REVOLVING LOAN. On
any Banking Day after the occurrence and during the continuance of an
Event of Default, the Swingline Lender may, in its sole discretion,
give notice to the other Lenders and the Borrower that the Swingline
Loan shall be paid in full with a special mandatory borrowing under the
Revolving Loan (the "MANDATORY BORROWING"). Such a notice of a
Mandatory Borrowing shall be deemed to have been automatically given
upon a Bankruptcy Default or upon the exercise of any of the remedies
provided in Section 8.2. Upon the giving of any such notice or deemed
notice, a Mandatory Borrowing under the Revolving Loan in the amount of
the Swingline Loan shall be made on the next Banking Day from all
Lenders in accordance with their respective Percentage Interests in the
Revolving Loan, the proceeds thereof shall be applied to the Swingline
Lender as a repayment of the Swingline Loan and the Revolving Loan
resulting from such Mandatory Borrowing shall bear interest at the
rates applicable to Revolving Loans. Each Lender irrevocably agrees to
make such loan pursuant to each such Mandatory Borrowing notice in the
amount and in the manner specified above in this Section 2.2.4,
notwithstanding (a) whether any conditions specified in Section 5 have
been satisfied, (b) that a Default or an Event of Default has occurred
and is continuing or (c) the date of such Mandatory Borrowing. In the
event that any Mandatory Borrowing cannot for any reason be made on the
date required above (including as a result of the commencement of a
proceeding under the Bankruptcy Code), each Lender shall promptly
purchase from the Swingline Lender as of the date the Mandatory
Borrowing otherwise would have occurred such participation in the
Swingline Loan as shall be necessary to cause the Lenders to share in
the Swingline Loan ratably based upon their respective Percentage
Interests in the Revolving Loan.
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In the event of such participations, all interest payable on the
Swingline Loan shall be for the account of the Swingline Lender until
the date on which the participations are required to be purchased and,
to the extent attributable to the purchased participations, shall be
payable to the participants from and after such date. At the time any
such purchase of participations is actually made, the purchasing Lender
shall pay the Swingline Lender interest on the principal amount of the
participation purchased at the overnight Federal Funds Rate for each
day, commencing with the date the Mandatory Borrowing otherwise would
have occurred to the date of payment for such participation. In no
event shall any Lender be required to make any Revolving Loan,
including, pursuant to a Mandatory Borrowing, if the making of such
Revolving Loan would cause the outstanding principal amount of such
Lender's Revolving Loan to exceed such Lender's Commitment.
2.3. LETTERS OF CREDIT.
2.3.1. ISSUANCE OF LETTERS OF CREDIT. Subject to all the terms
and conditions of this Agreement and so long as no Default then exists,
from time to time on and after the Initial Closing Date and prior to
the Final Maturity Date, the Letter of Credit Issuer will issue for the
account of the Borrower one or more irrevocable documentary or standby
letters of credit (the "LETTERS OF CREDIT"). Letter of Credit Exposure
shall in no event exceed $10,000,000.
2.3.2. REQUESTS FOR LETTERS OF CREDIT. The Borrower may from
time to time request a Letter of Credit to be issued by providing to
the Letter of Credit Issuer (and the Agent if the Letter of Credit
Issuer is not the Agent) a notice which is actually received not less
than five Banking Days prior to the requested Closing Date for such
Letter of Credit specifying (a) the amount of the requested Letter of
Credit, (b) the beneficiary thereof, (c) the requested Closing Date and
(d) the principal terms of the text for such Letter of Credit. Each
Letter of Credit will be issued by forwarding it to the Borrower or to
such other Person as directed in writing by the Borrower. In connection
with the issuance of any Letter of Credit, the Borrower shall furnish
to the Letter of Credit Issuer (and the Agent if the Letter of Credit
Issuer is not the Agent) a certificate in substantially the form of
Exhibit 5.2.1 and any customary application forms required by the
Letter of Credit Issuer.
2.3.3. FORM AND EXPIRATION OF LETTERS OF CREDIT. Each Letter
of Credit issued under this Section 2.3 and each draft accepted or paid
under such a Letter of Credit shall be issued, accepted or paid, as the
case may be, by the Letter of Credit Issuer at its principal office. No
Letter of Credit shall provide for the payment of drafts drawn
thereunder, and no draft shall be payable, at a date which is later
than the earlier of (a) the date 12 months after the date of issuance
of such Letter of Credit or (b) the Final Maturity Date. Each Letter of
Credit and each draft accepted under a Letter of Credit shall be in
such form and minimum amount, and shall contain such terms, as the
Letter of Credit Issuer and the Borrower may agree upon at the time
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such Letter of Credit is issued, including a requirement of not less
than three Banking Days after presentation of a draft before payment
must be made thereunder.
2.3.4. LENDERS' PARTICIPATION IN LETTERS OF CREDIT. Upon the
issuance of any Letter of Credit, a participation therein, in an amount
equal to each Lender's Percentage Interest in the Revolving Loan, shall
automatically be deemed granted by the Letter of Credit Issuer to each
Lender with a Percentage Interest in the Revolving Loan on the date of
such issuance and the Lenders shall automatically be obligated, as set
forth in Section 12.4, to reimburse the Letter of Credit Issuer to the
extent of their respective Percentage Interests in the Revolving Loan
for all obligations incurred by the Letter of Credit Issuer to third
parties in respect of such Letter of Credit not reimbursed by the
Company. The Letter of Credit Issuer will send to each Lender with a
Percentage Interest in the Revolving Loan (and the Agent if the Letter
of Credit Issuer is not the Agent) a confirmation regarding the
participations in Letters of Credit outstanding during such month.
2.3.5. PRESENTATION. The Letter of Credit Issuer may accept or
pay any draft presented to it, regardless of when drawn and whether or
not negotiated, if such draft, the other required documents and any
transmittal advice are presented to the Letter of Credit Issuer and
dated on or before the expiration date of the Letter of Credit under
which such draft is drawn. Except insofar as instructions actually
received may be given by the Borrower in writing expressly to the
contrary with regard to, and prior to, the Letter of Credit Issuer's
issuance of any Letter of Credit for the account of the Borrower and
such contrary instructions are reflected in such Letter of Credit, the
Letter of Credit Issuer may honor as complying with the terms of the
Letter of Credit and with this Agreement any drafts or other documents
otherwise in order signed or issued by an administrator, executor,
conservator, trustee in bankruptcy, debtor in possession, assignee for
benefit of creditors, liquidator, receiver or other legal
representative of the party authorized under such Letter of Credit to
draw or issue such drafts or other documents.
2.3.6. PAYMENT OF DRAFTS. At such time as a Letter of Credit
Issuer makes any payment on a draft presented or accepted under a
Letter of Credit, the Borrower will on demand pay to such Letter of
Credit Issuer in immediately available funds the amount of such
payment. Unless the Borrower shall otherwise pay to the Letter of
Credit Issuer the amount required by the foregoing sentence, such
amount shall be considered a loan under Section 2.1.1 to the Borrower
and part of the Revolving Loan.
2.3.7. UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and
Practice for Documentary Credits (1993 Revision), International Chamber
of Commerce Publication No. 500, and any subsequent revisions thereof
approved by a Congress of the International Chamber of Commerce and
adhered to by the Letter of Credit Issuer (the "UNIFORM CUSTOMS AND
PRACTICE"), shall be binding on the Company and the
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Letter of Credit Issuer except to the extent otherwise provided herein,
in any Letter of Credit or in any other Credit Document. Anything in
the Uniform Customs and Practice to the contrary notwithstanding:
(a) Neither the Borrower nor any beneficiary of any Letter of
Credit shall be deemed an agent of any Letter of Credit Issuer.
(b) With respect to each Letter of Credit, neither the Letter
of Credit Issuer nor its correspondents shall be responsible for or
shall have any duty to ascertain:
(i) the genuineness of any signature;
(ii) the validity, form, sufficiency, accuracy,
genuineness or legal effect of any endorsements;
(iii) delay in giving, or failure to give, notice of
arrival, notice of refusal of documents or of discrepancies in
respect of which any Letter of Credit Issuer refuses the
documents or any other notice, demand or protest;
(iv) the performance by any beneficiary under any
Letter of Credit of such beneficiary's obligations to the
Borrower;
(v) inaccuracy in any notice received by the Letter
of Credit Issuer; or
(vi) the validity, form, sufficiency, accuracy,
genuineness or legal effect of any instrument, draft,
certificate or other document required by such Letter of
Credit to be presented before payment of a draft, or the
office held by or the authority of any Person signing any of
the same.
(c) The occurrence of any of the events referred to in the
Uniform Customs and Practice or in the preceding clauses of this
Section 2.3.7 shall not affect or prevent the vesting of any of the
Letter of Credit Issuer's rights or powers hereunder or the Borrower's
obligation to make reimbursement of amounts paid under any Letter of
Credit or any draft accepted thereunder.
(d) The Borrower will promptly examine (i) each Letter of
Credit (and any amendments thereof) sent to it by the Letter of Credit
Issuer and (ii) all instruments and documents delivered to it from time
to time by the Letter of Credit Issuer. The Borrower will notify the
Letter of Credit Issuer of any claim of noncompliance by notice
actually received within three Banking Days after receipt of any of the
foregoing documents, the Borrower being conclusively deemed to have
waived any such claim against such Letter of Credit Issuer and its
correspondents unless such notice is given. The Letter of Credit Issuer
shall have no obligation or responsibility
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to send any such Letter of Credit or any such instrument or document to
the Borrower.
(e) In the event of any conflict between the provisions of
this Agreement and the Uniform Customs and Practice, the provisions of
this Agreement shall govern.
2.3.8. SUBROGATION. Upon any payment by a Letter of Credit
Issuer under any Letter of Credit and until the reimbursement of such
Letter of Credit Issuer by the Borrower with respect to such payment,
the Letter of Credit Issuer shall be entitled to be subrogated to, and
to acquire and retain, the rights which the Person to whom such payment
is made may have against the Borrower, all for the benefit of the
Lenders.
2.3.9. MODIFICATION, CONSENT, ETC. If the Borrower requests or
consents in writing to any modification or extension of any Letter of
Credit, or waives any failure of any draft, certificate or other
document to comply with the terms of such Letter of Credit, and if the
Letter of Credit Issuer consents thereto, the Letter of Credit Issuer
shall be entitled to rely on such request, consent or waiver. This
Agreement shall be binding upon the Borrower with respect to such
Letter of Credit as so modified or extended, and with respect to any
action taken or omitted by such Letter of Credit Issuer pursuant to any
such request, consent or waiver.
2.4. APPLICATION OF PROCEEDS.
2.4.1. REVOLVING LOAN. Subject to Section 2.4.4, the Borrower
will apply the proceeds of the Revolving Loan (a) to fund Permitted
Acquisitions, (b) to refinance existing indebtedness, and (c) for
working capital to the extent of the Borrowing Base.
2.4.2. SWINGLINE LOAN. Subject to Section 2.4.4, the Borrower
will apply the proceeds of the Swingline Loan for working capital and
other lawful corporate purposes.
2.4.3. LETTERS OF CREDIT. Letters of Credit shall be issued
only for such lawful corporate purposes as the Borrower has requested
in writing and to which the Letter of Credit Issuer agrees.
2.4.4. SPECIFICALLY PROHIBITED APPLICATIONS. The Borrower will
not, directly or indirectly, apply any part of the proceeds of any
extension of credit made pursuant to the Credit Documents to purchase
or to carry Margin Stock or to any transaction prohibited by the
Foreign Trade Regulations, by other Legal Requirements applicable to
the Lenders or by the Credit Documents.
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2.5. NATURE OF OBLIGATIONS OF LENDERS TO MAKE EXTENSIONS OF CREDIT. The
Lenders' obligations to extend credit under this Agreement are several and are
not joint or joint and several. If on any Closing Date any Lender shall fail to
perform its obligations under this Agreement, the aggregate amount of
Commitments to make the extensions of credit under this Agreement shall be
reduced by the amount of unborrowed Commitment of the Lender so failing to
perform and the Percentage Interests in the portion of the Loan to which such
Commitment relates shall be appropriately adjusted. Lenders that have not failed
to perform their obligations to make the extensions of credit contemplated by
Section 2 may, if any such Lender so desires, assume, in such proportions as the
Required Lenders may agree, the obligations of any Lender who has so failed and
the Percentage Interests in the portion of the Loan to which such obligations
relate shall be appropriately adjusted. The provisions of this Section 2.5 shall
not affect the rights of the Borrower against any Lender failing to perform its
obligations hereunder. The obligation to make a Swingline Loan shall be an
obligation solely of the Swingline Lender.
3. INTEREST; LIBOR PRICING OPTIONS; FEES.
3.1. INTEREST. The Loan shall accrue and bear interest at a rate per
annum which shall at all times equal the Applicable Rate. Prior to any stated or
accelerated maturity of any portion of the Loan, the Borrower will, on each
Payment Date, pay the accrued and unpaid interest on the portions of the Loan
which were not subject to a LIBOR Pricing Option. On the last day of each LIBOR
Interest Period or on any earlier termination of any LIBOR Pricing Option, the
Borrower will pay the accrued and unpaid interest on the portions of the Loan
that were subject to the LIBOR Pricing Option, which expired or terminated on
such date. In the case of any LIBOR Interest Period longer than three months,
the Borrower will also pay the accrued and unpaid interest on the portion of the
Loan subject to the LIBOR Pricing Option having such LIBOR Interest Period at
three-month intervals, the first such payment to be made on the last Banking Day
of the three-month period that begins on the first day of such LIBOR Interest
Period. On the stated or any accelerated maturity of the Loan, the Borrower will
pay all accrued and unpaid interest on the portion of the Loan evidenced by its
Loan Account, including any accrued and unpaid interest on any portion of such
Loan which is subject to a LIBOR Pricing Option. Upon the occurrence and during
the continuance of an Event of Default, the Required Lenders may require accrued
interest to be payable on demand or at regular intervals more frequent than each
Payment Date. All payments of interest hereunder for each portion of the Loan
shall be made to the Agent for the account of each Lender in accordance with
such Lender's Percentage Interest in such portion of the Loan.
3.2. LIBOR PRICING OPTIONS.
3.2.1. ELECTION OF LIBOR PRICING OPTIONS. Subject to all of
the terms and conditions hereof and so long as no Default exists, the
Borrower may from time to time, by irrevocable notice to the Agent
actually received not less than three Banking
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Days prior to the commencement of the LIBOR Interest Period selected in
such notice, elect to have such portion of the Loan as the Borrower may
specify in such notice accrue and bear interest during the LIBOR
Interest Period so selected at the Applicable Rate computed on the
basis of the LIBOR Rate. No such election shall become effective:
(a) if, prior to the commencement of any such LIBOR Interest
Period, the Agent determines that (i) the electing or granting of the
LIBOR Pricing Option in question would violate a Legal Requirement,
(ii) LIBOR deposits in an amount comparable to the principal amount of
the Loan as to which such LIBOR Pricing Option has been elected and
which have a term corresponding to the proposed LIBOR Interest Period
are not readily available in the inter-bank LIBOR market, or (iii) by
reason of circumstances affecting the inter-bank LIBOR market, adequate
and reasonable methods do not exist for ascertaining the interest rate
applicable to such deposits for the proposed LIBOR Interest Period; or
(b) if any Lender shall have advised the Agent by telephone or
otherwise at or prior to noon (Boston time) on the second Banking Day
prior to the commencement of such proposed LIBOR Interest Period (and
shall have subsequently confirmed in writing) that, after reasonable
efforts to determine the availability of such LIBOR deposits, such
Lender reasonably anticipates that LIBOR deposits in an amount equal to
the Percentage Interest of such Lender in the portion of the Loan as to
which such LIBOR Pricing Option has been elected and which have a term
corresponding to the LIBOR Interest Period in question will not be
offered in the LIBOR market to such Lender at a rate of interest that
does not exceed the anticipated LIBOR Base Rate.
3.2.2. NOTICE TO LENDERS AND THE BORROWER. The Agent will
promptly inform each Lender (by telephone or otherwise) of each notice
received by it from the Borrower pursuant to Section 3.2.1 and of the
LIBOR Interest Period specified in such notice. Upon determination by
the Agent of the LIBOR Rate for such LIBOR Interest Period or in the
event such election shall not become effective, the Agent will promptly
notify the Borrower and each Lender (by telephone or otherwise) of the
LIBOR Rate so determined or why such election did not become effective,
as the case may be.
3.2.3. SELECTION OF LIBOR INTEREST PERIODS. LIBOR Interest
Periods shall be selected so that:
(a) the minimum portion of the Loan subject to any LIBOR
Pricing Option shall be $500,000 and an integral multiple of $100,000;
(b) no more than 6 LIBOR Pricing Options shall be outstanding
at any one time;
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(c) no LIBOR Interest Period with respect to any part of the
Loan subject to a LIBOR Pricing Option shall expire later than the
Final Maturity Date.
3.2.4. ADDITIONAL INTEREST. If any portion of the Loan subject
to a LIBOR Pricing Option is repaid, or any LIBOR Pricing Option is
terminated for any reason (including acceleration of maturity), on a
date which is prior to the last Banking Day of the LIBOR Interest
Period applicable to such LIBOR Pricing Option, the Borrower will pay
to the Agent for the account of each Lender in accordance with such
Lender's Percentage Interest in such portion of the Loan, in addition
to any amounts of interest otherwise payable hereunder, an amount equal
to the present value (calculated in accordance with this Section 3.2.4)
of interest for the unexpired portion of such LIBOR Interest Period on
the portion of the Loan so repaid, or as to which a LIBOR Pricing
Option was so terminated, at a per annum rate equal to the excess, if
any, of (a) the LIBOR Rate applicable to such LIBOR Pricing Option
MINUS (b) the lowest rate of interest obtainable by the Agent upon the
purchase of debt securities customarily issued by the Treasury of the
United States of America which have a maturity date approximating the
last Banking Day of such LIBOR Interest Period. The present value of
such additional interest shall be calculated by discounting the amount
of such interest for each day in the unexpired portion of such LIBOR
Interest Period from such day to the date of such repayment or
termination at a per annum interest rate equal to the interest rate
determined pursuant to clause (b) of the preceding sentence, and by
adding all such amounts for all such days during such period. The
determination by the Agent of such amount of interest shall, in the
absence of manifest error, be conclusive. For purposes of this Section
3.2.4, if any portion of the Loan which was to have been subject to a
LIBOR Pricing Option is not outstanding on the first day of the LIBOR
Interest Period applicable to such LIBOR Pricing Option other than for
reasons described in Section 3.2.1, the Borrower shall be deemed to
have terminated such LIBOR Pricing Option.
3.2.5. VIOLATION OF LEGAL REQUIREMENTS. If any Legal
Requirement shall prevent any Lender from funding or maintaining
through the purchase of deposits in the interbank LIBOR market any
portion of the Loan subject to a LIBOR Pricing Option or otherwise from
giving effect to such Lender's obligations as contemplated by Section
3.2, (a) the Agent may by notice to the Borrower terminate all of the
affected LIBOR Pricing Options, (b) the portion of the Loan subject to
such terminated LIBOR Pricing Options shall immediately bear interest
thereafter at the Applicable Rate computed on the basis of the Base
Rate and (c) the Borrower shall make any payment required by Section
3.2.4.
3.2.6. FUNDING PROCEDURE. The Lenders may fund any portion of
the Loan subject to a LIBOR Pricing Option out of any funds available
to the Lenders. Regardless of the source of the funds actually used by
any of the Lenders to fund any portion of the Loan subject to a LIBOR
Pricing Option, however, all amounts payable
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hereunder, including the interest rate applicable to any such portion
of the Loan and the amounts payable under Sections 3.2.4 or 3.5, shall
be computed as if each Lender had actually funded such Lender's
Percentage Interest in such portion of the Loan through the purchase of
deposits in such amount of the type by which the LIBOR Base Rate was
determined with a maturity the same as the applicable LIBOR Interest
Period relating thereto and through the transfer of such deposits from
an office of the Lender having the same location as the applicable
LIBOR Office to one of such Lender's offices in the United States of
America.
3.3 INTEREST ON SWINGLINE LOAN. The Swingline Loan shall accrue and
bear interest at a rate per annum which shall at all times equal the Swingline
Rate. Interest on the Swingline Loan shall be calculated on a daily basis and on
the basis of a year of 360 days. Prior to any stated or accelerated maturity of
the Swingline Loan, the Swingline Borrower will on each Payment Date, beginning
on the first Payment Date after the Initial Closing Date, pay the accrued and
unpaid interest on such Indebtedness. On any stated or accelerated maturity of
the Swingline Loan all accrued and unpaid interest thereon shall be forthwith
due and payable. All payments of interest hereunder in respect of the Swingline
Loan shall be made by the Swingline Borrower to the Agent for the account of the
Swingline Lender.
3.4. COMMITMENT FEES. In consideration of the Lenders' commitments to
make the extensions of credit provided for in Section 2.1, while such
commitments are outstanding, the Borrower will pay to the Agent for the account
of the Lenders in accordance with the Lenders' respective Percentage Interests
in the Revolving Loan, on the first Banking Day of each fiscal quarter, an
amount equal to interest computed at the Applicable Commitment Fee Rate on the
amount by which (a) the average daily Maximum Amount of Revolving Credit during
the fiscal quarter or portion thereof most recently ended exceeded (b) the sum
of (i) the average daily Revolving Loan during such period or portion thereof
PLUS (ii) the average daily Letter of Credit Exposure during such period or
portion thereof.
3.5. LETTER OF CREDIT FEES. The Borrower will pay to the Agent for the
account of each of the Lenders, in accordance with the Lenders' respective
Percentage Interests, on each Payment Date, a Letter of Credit fee equal to
interest at a rate per annum equal to the applicable margin added to the LIBOR
Rate indicated on Exhibit 1 applicable to a Revolving Loan on the average daily
Letter of Credit exposure during the monthly period or portion thereof ending on
such Payment Date. In addition, the Borrower will pay to the Letter of Credit
Issuer (a) on each Payment Date a fronting fee equal to interest at a rate per
annum of 0.125% on the aggregate face amount of each Letter of Credit
outstanding during the three-month period or portion thereof ending on such
Payment Date; and (b) customary service charges and expenses for its services in
connection with the Letters of Credit at the times and in the amounts from time
to time in effect in accordance with its general rate structure, including
reasonable fees and expenses relating to issuance, amendment, negotiation,
cancellation and similar operations.
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3.6. CHANGES IN CIRCUMSTANCES; YIELD PROTECTION.
3.6.1. RESERVE REQUIREMENTS, ETC. If any Legal Requirement
shall (a) impose, modify, increase or deem applicable any insurance
assessment, reserve, special deposit or similar requirement against any
Funding Liability or the Letters of Credit, (b) impose, modify,
increase or deem applicable any other requirement or condition with
respect to any Funding Liability or the Letters of Credit, or (c)
change the basis of taxation of Funding Liabilities or payments in
respect of any Letter of Credit (other than changes in the rate of
taxes measured by the overall net income of such Lender) and the effect
of any of the foregoing shall be to increase the cost to any Lender of
issuing, making, funding or maintaining its respective Percentage
Interest in any portion of the Loan subject to a LIBOR Pricing Option
or any Letter of Credit, to reduce the amounts received or receivable
by such Lender under this Agreement or to require such Lender to make
any payment or forego any amounts otherwise payable to such Lender
under this Agreement, then, the Lender may claim compensation under
Section 3.6.5; PROVIDED, HOWEVER, that the foregoing provisions shall
not apply to any Tax or to any reserves which are included in computing
the LIBOR Reserve Rate.
3.6.2. TAXES. All payments of the Credit Obligations shall be
made without set-off or counterclaim and free and clear of any
deductions, including deductions for Taxes, unless the Borrower is
required by law to make such deductions. If (a) any Lender shall be
subject to any Tax with respect to any payment of the Credit
Obligations or its obligations hereunder or (b) the Borrower shall be
required to withhold or deduct any Tax on any payment on the Credit
Obligations, then, the Lender may claim compensation under Section
3.6.5. Whenever Taxes must be withheld by the Borrower with respect to
any payments of the Credit Obligations, the Borrower shall promptly
furnish to the Agent for the account of the applicable Lender official
receipts (to the extent that the relevant governmental authority
delivers such receipts) evidencing payment of any such Taxes so
withheld. If the Borrower fails to pay any such Taxes when due or fails
to remit to the Agent for the account of the applicable Lender the
required receipts evidencing payment of any such Taxes so withheld or
deducted, the Borrower shall indemnify the affected Lender for any
incremental Taxes and interest or penalties that may become payable by
such Lender as a result of any such failure.
3.6.3. CAPITAL ADEQUACY. If any Lender shall determine that
compliance by such Lender with any Legal Requirement regarding capital
adequacy of banks or bank holding companies has or would have the
effect of reducing the rate of return on the capital of such Lender and
its Affiliates as a consequence of such Lender's commitment to make the
extensions of credit contemplated hereby, or such Lender's maintenance
of the extensions of credit contemplated hereby, to a level below that
which such Lender could have achieved but for such compliance (taking
into consideration the policies of such Lender and its Affiliates with
respect to capital
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adequacy immediately before such compliance and assuming that the
capital of such Lender and its Affiliates was fully utilized prior to
such compliance) by an amount deemed by such Lender to be material,
then, the Lender may claim compensation under Section 3.6.5.
3.6.4. REGULATORY CHANGES. If any Lender shall determine that
(a) any change in any Legal Requirement (including any new Legal
Requirement) after the date hereof shall directly or indirectly (i)
reduce the amount of any sum received or receivable by such Lender with
respect to the Loan or the Letters of Credit or the return to be earned
by such Lender on the Loan or the Letters of Credit, (ii) impose a cost
on such Lender or any Affiliate of such Lender that is attributable to
the making or maintaining of, or such Lender's commitment to make, its
portion of the Loan or the Letters of Credit, or (iii) require such
Lender or any Affiliate of such Lender to make any payment on, or
calculated by reference to, the gross amount of any amount received by
such Lender under any Credit Document, and (b) such reduction,
increased cost or payment shall not be fully compensated for by an
adjustment in the Applicable Rate or the Letter of Credit fees, then,
the Lender may claim compensation under Section 3.6.5.
3.6.5. COMPENSATION CLAIMS. If a Lender makes a determination
that it will seek compensation pursuant to any of Sections 3.6.1,
3.6.2, 3.6.3 and 3.6.4, such Lender shall promptly thereafter give
notice thereof to the Company. Promptly after the receipt by the
Company of any such notice, the Company and the Lender shall attempt to
negotiate in good faith an adjustment to the amount payable by the
Borrower to the Lender under the relevant Section, which amount shall
be sufficient to compensate the Lender for such reduced return. If the
Company and the Lender are unable to agree to such adjustment within
thirty days of the date upon which the Company receives such notice,
then the Borrower will, on demand by the Lender, pay to the Lender such
additional amount as shall be sufficient, in the Lender's reasonable
determination, to compensate the Lender for such reduced return,
together with interest at the Overdue Reimbursement Rate from the 30th
day until payment in full thereof. The determination by such Lender of
the amount to be paid to it and the basis for computation thereof
shall, in the absence of manifest error, be conclusive. In determining
such amount, such Lender may use any reasonable averaging, allocation
and attribution methods. The Borrower shall be entitled to replace any
such Lender in accordance with Section 13.3.
3.7. COMPUTATIONS OF INTEREST AND FEES. For purposes of this Agreement,
interest, commitment fees and Letter of Credit fees (and any other amount
expressed as interest or such fees) shall be computed on the basis of a 360-day
year for actual days elapsed. If any payment required by this Agreement becomes
due on any day that is not a Banking Day, such payment shall, except as
otherwise provided in the LIBOR Interest Period, be made on the next succeeding
Banking Day. If the due date for any payment of principal is extended as a
result of the immediately preceding sentence, interest shall be payable for the
time
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during which payment is extended at the Applicable Rate or the applicable
commitment fee or letter of credit fee rate.
4. PAYMENT.
4.1. PAYMENT AT MATURITY. On the Final Maturity Date or any accelerated
maturity of the Loan, the Borrower will pay to the Agent for the account of the
Lenders an amount equal to the portion of the Loan then due, together with all
accrued and unpaid interest thereon and all other Credit Obligations then
outstanding.
4.2. CONTINGENT REQUIRED PREPAYMENTS.
4.2.1. EXCESS CREDIT EXPOSURE. If at any time the Revolving
Loan exceeds the limits set forth in Section 2.1, the Borrower shall
within three Banking Days pay the amount of such excess to the Agent
for the account of the Lenders.
4.2.2. LETTER OF CREDIT EXPOSURE. If at any time the Letter of
Credit Exposure exceeds the limits set forth in Section 2.3, the
Borrower shall within three Banking Days pay the amount of such excess
to the Agent for the account of the Lenders to be applied as provided
in Section 4.5.
4.2.3. NET EQUITY PROCEEDS. Within three Banking Days after
the receipt of Net Equity Proceeds, the Borrower shall pay to the Agent
as a prepayment of the Loan, to be applied as provided in Section 4.5,
the lesser of (a) the amount of Net Equity Proceeds or (b) the amount
of the Loan. The Company shall give the Agent at least five Banking
Days' prior notice of its intention to prepay the Loans, or any portion
thereof, under this Section 4.3.3.
4.3. VOLUNTARY PREPAYMENTS. In addition to the prepayments required by
Section 4.2, the Borrower may from time to time prepay all or any portion of the
Loan (in a minimum amount of $100,000 and an integral multiple of $100,000),
without premium or penalty of any type (except as provided in Section 3.2.4 with
respect to the early termination of LIBOR Pricing Options). The Borrower shall
give the Agent at least one Banking Day prior notice of its intention to prepay,
specifying the date of payment, the total amount of the Loan to be paid on such
date and the amount of interest to be paid with such prepayment. At any time or
from time to time upon telephone notice to the Swingline Lender, given not later
than 3:00 P.M. (Boston time) on any Banking Day, the Swingline Borrower shall
have the right to prepay, without premium or penalty of any type, all or any
part of the outstanding principal amount of its Swingline Loan in such amounts
as are not less than $100,000 and in integral multiples of $50,000, unless such
payment is equal to the entire outstanding principal amount of the Swingline
Loan.
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4.4. LETTERS OF CREDIT. If on the stated or any accelerated maturity of
the Credit Obligations the Lenders shall be obligated in respect of a Letter of
Credit or a draft accepted under a Letter of Credit, the Borrower will either:
(a) prepay such obligation by depositing with the Agent an
amount of cash, or
(b) deliver to the Agent a standby letter of credit
(designating the Agent as beneficiary and issued by a bank and on terms
reasonably acceptable to the Agent),
in each case in an amount equal to the portion of the then Letter of Credit
Exposure issued for the account of the Borrower. Any such cash so deposited and
the cash proceeds of any draw under any standby letter of credit so furnished,
including any interest thereon, shall be returned by the Agent to the Borrower
only when, and to the extent that, the amount of such cash held by the Agent
exceeds the Letter of Credit Exposure at a time when no Default exists;
PROVIDED, HOWEVER, that if an Event of Default occurs and the Credit Obligations
become or are declared immediately due and payable, the Agent may apply such
cash, including any interest thereon, to the payment of any of the Credit
Obligations as provided in Section 10.5.6.
4.5. REBORROWING; APPLICATION OF PAYMENTS, ETC. The amounts of the
Revolving Loan prepaid pursuant to Section 4.4 may be reborrowed from time to
time prior to the Final Maturity Date in accordance with Section 2.1, subject to
the limits set forth therein. Any prepayment of a portion of the Loan shall be
applied first to the portion of the Loan not then subject to LIBOR Pricing
Options, then the balance of any such prepayment shall be applied to the portion
of the Loan then subject to LIBOR Pricing Options, in the chronological order of
the respective maturities thereof, together with any payments required by
Section 3.2.4. All payments of principal of a portion of the Loan shall be made
to the Agent for the account of the Lenders in accordance with the Lenders'
respective Percentage Interests in such portion of the Loan.
5. CONDITIONS TO EXTENDING CREDIT.
5.1. CONDITIONS ON INITIAL CLOSING DATE. The obligations of the Lenders
to make any extension of credit pursuant to Section 2 shall be subject to the
satisfaction, on or before the Initial Closing Date, of the conditions set forth
in this Section 5.1 as well as the further conditions in Section 5.2. If the
conditions set forth in this Section 5.1 and 5.2 are not met on or prior to the
Initial Closing Date, the Lenders shall have no obligation to make any
extensions of credit hereunder.
5.1.1. NOTES. The Borrower shall have duly executed and
delivered to the Agent a Revolving Note for each Lender.
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5.1.2. PERFECTION OF SECURITY. Each Obligor shall have duly
authorized, executed, acknowledged, delivered, filed, registered and
recorded such security agreements, notices, financing statements and
other instruments as the Agent may have requested in order to perfect
the Liens contemplated pursuant to the Credit Documents to be created
in the Credit Security. To the extent requested by the Agent, each
Obligor shall have duly authorized, executed, acknowledged and
delivered to the Agent a mortgage on each parcel of real property owned
by such Obligor in form and substance satisfactory to the Agent,
together with, for each such parcel of real property: (a) mortgage
title insurance with such insurer, in such amount, in such form and
with such exceptions as are reasonably satisfactory to the Agent and
(b) an environmental site assessment report in such form, with such
conclusions and from such environmental engineering firm as are
reasonably satisfactory to the Agent.
5.1.3. LEGAL OPINIONS. On the Initial Closing Date, the
Lenders shall have received from the following counsel their respective
opinions with respect to the transactions contemplated by the Credit
Documents, which opinions shall be in form and substance satisfactory
to the Required Lenders:
(a) Greenberg Traurig, P.A., special counsel for the Obligors.
(b) Ropes & Gray, special counsel for the Agent.
The Obligors authorize and direct their counsel to furnish the
foregoing opinions.
5.1.4. PAYMENT OF FEE. The Borrower shall have paid to the
Agent (a) for the Lenders' accounts a facility fee in accordance with
the separate letter agreements with the Lenders and (b) the reasonable
fees and disbursements of the Agent's special counsel for which
statements have been rendered on or prior to the Initial Closing Date.
5.1.5. ADVERSE MARKET CHANGE. Since September 29, 1999, no
material adverse change shall have occurred in the syndication markets
for credit facilities similar in nature to this Agreement, and no
material disruption for or material adverse change in the financial,
banking or capital markets that would have an adverse effect on such
syndication market shall have occurred, in each case as determined by
the Agent and the Arranger in their sole discretion.
5.2. CONDITIONS TO EACH EXTENSION OF CREDIT. The obligations of the
Lenders to make any extension of credit pursuant to Section 2 shall be subject
to the satisfaction, on or before the Closing Date for such extension of credit,
of the following conditions:
5.2.1. OFFICER'S CERTIFICATE. The representations and
warranties contained in Sections 7 and 10.3 shall be true and correct
on and as of such Closing Date with the
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same force and effect as though made on and as of such date (except as
to any representation or warranty which refers to a specific earlier
date); no Default shall exist on such Closing Date prior to or
immediately after giving effect to the requested extension of credit;
no Material Adverse Change shall have occurred since December 31, 1998
or the date of the most recent audited financial statements provided
pursuant to Section 6.4.1; and the Borrower shall have furnished to the
Agent in connection with the requested extension of credit a
certificate to these effects, in substantially the form of EXHIBIT
5.2.1, signed by a Financial Officer.
5.2.2. LEGALITY, ETC. The making of the requested extension of
credit shall not (a) subject any Lender to any penalty or special tax
(other than a Tax for which the Borrower is required to reimburse the
Lenders under Section 3.5.2, (b) be prohibited by any Legal Requirement
or (c) violate any credit restraint program of the executive branch of
the government of the United States of America, the Board of Governors
of the Federal Reserve System or any other governmental or
administrative agency so long as any Lender reasonably believes that
compliance is required by law.
5.2.3. PROPER PROCEEDINGS. This Agreement, each other Credit
Document and the transactions contemplated hereby and thereby shall
have been authorized by all necessary corporate or other proceedings of
the Obligors. All necessary consents, approvals and authorizations of
any governmental or administrative agency or any other Person of any of
the transactions contemplated hereby or by any other Credit Document
shall have been obtained and shall be in full force and effect.
5.2.4. CONDITIONS TO MAKING EACH PERMITTED ACQUISITION
ADVANCE. In the case of any loan contemplated by Section 2.1 to fund a
Permitted Acquisition, the Borrower shall have complied with all of the
requirements of Section 6.21 with respect to the Permitted Acquisition.
5.2.5. GENERAL. All legal and corporate proceedings in
connection with the transactions contemplated by this Agreement shall
be satisfactory in form and substance to the Agent and the Agent shall
have received copies of all documents, including certified copies of
the Charter and By-Laws of the Borrower and the other Obligors, records
of corporate proceedings, certificates as to signatures and incumbency
of officers and opinions of counsel, which the Agent may have
reasonably requested in connection therewith, such documents where
appropriate to be certified by proper corporate or governmental
authorities.
6. GENERAL COVENANTS. Each of the Borrower and the Guarantors covenants that,
until all of the Credit Obligations shall have been paid in full and until the
Lenders' commitments to extend credit under this Agreement and any other Credit
Document shall have been irrevocably terminated, it will comply, and will cause
its Subsidiaries (including such Subsidiaries as are not Guarantors) to comply,
with the following provisions:
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6.1. TAXES AND OTHER CHARGES; ACCOUNTS PAYABLE.
6.1.1. TAXES AND OTHER CHARGES. Each of the Borrower and its
Subsidiaries shall duly pay and discharge, or cause to be paid and
discharged, before the same become in arrears, all taxes, assessments
and other governmental charges imposed upon such Person and its
properties, sales or activities, or upon the income or profits
therefrom, as well as all claims for labor, materials or supplies which
if unpaid might by law become a Lien upon any of its property;
PROVIDED, HOWEVER, that any such tax, assessment, charge or claim need
not be paid if the validity or amount thereof shall at the time be
contested in good faith by appropriate proceedings and if such Person
shall, in accordance with GAAP, have set aside on its books adequate
reserves with respect thereto; and PROVIDED, FURTHER, that each of the
Borrower and its Subsidiaries shall pay or bond, or cause to be paid or
bonded, all such taxes, assessments, charges or other governmental
claims immediately upon the commencement of proceedings to foreclose
any Lien which may have attached as security therefor (except to the
extent such proceedings have been dismissed or stayed).
6.1.2. ACCOUNTS PAYABLE. Each of the Borrower and its
Subsidiaries shall promptly pay when due, or in conformity with
customary trade terms, all other Indebtedness, including accounts
payable, incident to the operations of such Person not referred to in
Section 6.1.1; PROVIDED, HOWEVER, that any such Indebtedness need not
be paid if the validity or amount thereof shall at the time be
contested in good faith and if such Person shall, in accordance with
GAAP, have set aside on its books adequate reserves with respect
thereto.
6.2. CONDUCT OF BUSINESS, ETC.
6.2.1. TYPES OF BUSINESS. The Borrower and its Subsidiaries
shall engage only in the business of (a) providing pathology services,
laboratory services (including full service clinical and anatomical
pathology laboratory services) and (b) other activities and services
incident thereto.
6.2.2. MAINTENANCE OF PROPERTIES. Each of the Borrower and its
Subsidiaries:
(a) shall keep its properties in such repair, working order
and condition, and shall from time to time make such repairs,
replacements, additions and improvements thereto as are necessary for
the efficient operation of its businesses and shall comply at all times
in all material respects with all franchises, licenses, leases and
other material agreements to which it is party so as to prevent any
loss or forfeiture thereof or thereunder, except where (i) compliance
is at the time being contested in good faith by appropriate proceedings
or (ii) failure to comply with the provisions being contested has not
resulted, or does not create a material risk of resulting, in the
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aggregate in any Material Adverse Change; PROVIDED, HOWEVER, that this
Section 6.2.2(a) shall not apply to assets or entities disposed of in
transactions permitted by Section 6.11; and
(b) shall do all things necessary to preserve, renew and keep
in full force and effect and in good standing its legal existence and
authority necessary to continue its business; PROVIDED, HOWEVER, that
this Section 6.2.2(b) shall not prevent the merger, consolidation or
liquidation of Subsidiaries permitted by Section 6.11.
6.2.3. STATUTORY COMPLIANCE. Each of the Borrower and its
Subsidiaries shall comply in all material respects with all valid and
applicable statutes, laws, ordinances, zoning and building codes and
other rules and regulations of the United States of America, of the
states and territories thereof and their counties, municipalities and
other subdivisions and of any foreign country or other jurisdictions
applicable to such Person, except where (a) compliance therewith shall
at the time be contested in good faith by appropriate proceedings or
(b) failure so to comply with the provisions being contested has not
resulted, or does not create a material risk of resulting, in the
aggregate in any Material Adverse Change.
6.2.4. NO SUBSIDIARIES. The Borrower shall not form or suffer
to exist any Subsidiary, except for such Subsidiaries as shall have
executed and delivered to the Agent either (a) this Agreement and each
other applicable Credit Document as of the Initial Closing Date or (b)
a Joinder Agreement in the form of Exhibit 6.21.1(b) pursuant to which
such Subsidiary shall have become a Guarantor hereunder; provided,
HOWEVER, that in the event that applicable state law or regulation
prohibits any Subsidiary of the Company from guaranteeing the Credit
Obligations, such Subsidiary shall not be required to execute this
Agreement or such a Joinder Agreement.
6.2.5. COMPLIANCE WITH MATERIAL AGREEMENTS. Each of the
Borrower and its Subsidiaries shall comply in all material respects
with the Material Agreements (to the extent not in violation of the
other provisions of this Agreement or any other Credit Document).
Except with respect to Acquisition Agreements, without the prior
written consent of the Required Lenders, which consent shall not be
unreasonably withheld, no Material Agreement shall be amended,
modified, waived or terminated in any manner that would have in any
material respect an adverse effect on the interests of the Lenders.
6.3. INSURANCE.
6.3.1. PROPERTY INSURANCE. Each of the Borrower and its
Subsidiaries shall keep its assets which are of an insurable character
insured by financially sound and reputable insurers against theft and
fraud and against loss or damage by fire, explosion and hazards and
such other extended coverage risks insured against by
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extended coverage to the extent, in amounts and with deductibles at
least as favorable as those generally maintained by businesses of
similar size engaged in similar activities in similar localities.
6.3.2. LIABILITY INSURANCE. Each of the Borrower and its
Subsidiaries shall maintain with financially sound and reputable
insurers insurance against liability for hazards, risks and liability
to persons (for both death and bodily injury) and property, including
product liability insurance and medical malpractice insurance, to the
extent, in amounts and with deductibles at least as favorable as those
generally maintained by businesses of similar size engaged in similar
activities in similar localities; PROVIDED, HOWEVER, that it may affect
workers' compensation insurance or similar coverage with respect to
operations in any particular state or other jurisdiction through an
insurance fund operated by such state or jurisdiction or by meeting the
self-insurance requirements of such state or jurisdiction.
6.3.3. KEY EXECUTIVE LIFE INSURANCE. The Borrower and its
Subsidiaries shall collaterally assign to the Agent for the benefit of
the Lenders all life insurance policies for which any of the Borrower
and its Subsidiaries are the beneficiary, on each officer or doctor
employed by the Borrower or any of its Subsidiaries.
6.3.4. FLOOD INSURANCE. Each of the Borrower and its
Subsidiaries shall at all times keep each parcel of real property owned
or leased by it which is (a) included in the Credit Security, (b) in an
area determined by the Director of the Federal Emergency Management
Agency to be subject to special flood hazard and (c) in a community
participating in the National Flood Insurance Program, insured against
such special flood hazards in an amount equal to the maximum limit of
coverage available for the particular type of property under the
federal National Flood Insurance Act of 1968.
6.4. FINANCIAL STATEMENTS AND REPORTS. Each of the Borrower and its
Subsidiaries shall maintain a system of accounting in which correct entries
shall be made of all transactions in relation to their business and affairs in
accordance with generally accepted accounting practice. The fiscal year of the
Borrower and its Subsidiaries shall end on December 31 in each year and the
fiscal quarters of such Persons shall end on March 31, June 30, September 30 and
December 31 in each year.
6.4.1. ANNUAL REPORTS. The Borrower shall furnish to the Agent
as soon as available, and in any event within 95 days after the end of
each fiscal year, the Form 10-K of the Borrower for such year. The
Borrower shall furnish to the Agent as soon as available, and in any
event within 120 days after the end of each fiscal year, the
Consolidated and Consolidating balance sheets of the Obligors as at the
end of such fiscal year, the Consolidated and Consolidating statements
of income and Consolidated statements of changes in shareholders'
equity and of cash flows of the Obligors for such fiscal year (all in
reasonable detail) and together, in the case of
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Consolidated financial statements, with comparative figures for the
immediately preceding fiscal year, all accompanied by:
(a) Unqualified reports of independent certified public
accountants of recognized national standing reasonably satisfactory to
the Agent, containing no material uncertainty and without any
Impermissible Reference, to the effect that they have audited the
foregoing Consolidated financial statements in accordance with
generally accepted auditing standards and that such Consolidated
financial statements present fairly, in all material respects, the
financial position of the Obligors covered thereby at the dates thereof
and the results of their operations for the periods covered thereby in
conformity with GAAP.
(b) The statement of such accountants that they have caused
this Agreement to be reviewed and that in the course of their audit of
the Borrower and its Subsidiaries no facts have come to their attention
that cause them to believe that any Default exists and in particular
that they have no knowledge of any Default under Sections 6.5 through
6.23 or, if such is not the case, specifying such Default and the
nature thereof. This statement is furnished by such accountants with
the understanding that the examination of such accountants cannot be
relied upon to give such accountants knowledge of any such Default
except as it relates to accounting or auditing matters within the scope
of their audit.
(c) A certificate of the Borrower signed by a Financial
Officer to the effect that such officer has caused this Agreement to be
reviewed and has no knowledge of any Default, or if such officer has
such knowledge, specifying such Default and the nature thereof, and
what action the Borrower has taken, is taking or proposes to take with
respect thereto.
(d) Computations by the Borrower comparing the financial
statements referred to above with the most recent budget for such
fiscal year furnished to the Agent in accordance with Section 6.4.3.
(e) Computations by the Borrower demonstrating, as of the end
of such fiscal year, compliance with the Computation Covenants,
certified by a Financial Officer.
(f) Calculations, as at the end of such fiscal year, of (i)
the Accumulated Benefit Obligations for each Plan covered by Title IV
of ERISA (other than Multiemployer Plans) and (ii) the fair market
value of the assets of such Plan allocable to such benefits.
(g) Supplements to Exhibits 7.1, 7.3 and 10.4.2 showing any
changes in the information set forth in such Exhibits not previously
furnished to the Agent in writing, as well as any changes in the
Charter, Bylaws or incumbency of officers of the Obligors from those
previously certified to the Agent.
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(h) In the event of a change in GAAP after the Initial Closing
Date, computations by the Borrower, certified by a Financial Officer,
reconciling the financial statements referred to above with financial
statements prepared in accordance with GAAP as applied to the other
covenants in Section 6 and related definitions.
6.4.2. QUARTERLY REPORTS. The Borrower shall furnish to the
Agent as soon as available and, in any event, within 45 days after the
end of each of the first three fiscal quarters of the Borrower, the
internally prepared Consolidated and Consolidating balance sheets of
the Obligors as of the end of such fiscal quarter, the Consolidated and
Consolidating statements of income and Consolidated statements of
changes in shareholders' equity and of cash flows of the Obligors for
such fiscal quarter and for the portion of the fiscal year then ended
(all in reasonable detail) and together, in the case of Consolidated
statements, with comparative figures for the same period in the
preceding fiscal year, all accompanied by:
(a) A certificate of the Borrower signed by a Financial
Officer to the effect that such financial statements have been prepared
in accordance with GAAP and present fairly, in all material respects,
the financial position of the Obligors covered thereby at the dates
thereof and the results of their operations for the periods covered
thereby, subject only to normal year-end audit adjustments and the
addition of footnotes.
(b) A certificate of the Borrower signed by a Financial
Officer to the effect that such officer has caused this Agreement to be
reviewed and has no knowledge of any Default, or if such officer has
such knowledge, specifying such Default and the nature thereof and what
action the Borrower has taken, is taking or proposes to take with
respect thereto.
(c) Computations by the Borrower comparing the financial
statements referred to above with the most recent budget for the period
covered thereby furnished to the Agent in accordance with Section
6.4.3.
(d) Computations by the Borrower demonstrating, as of the end
of such quarter, compliance with the Computation Covenants, certified
by a Financial Officer.
(e) Supplements to Exhibits 7.1, 7.3 and 10.4.2 showing any
changes in the information set forth in such Exhibits not previously
furnished to the Agent in writing, as well as any changes in the
Charter, Bylaws or incumbency of officers of the Borrower or its
Subsidiaries from those previously certified to the Agent.
(f) In the event of a change in GAAP after the Initial Closing
Date, computations by the Borrower, certified by a Financial Officer,
reconciling the
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financial statements referred to above with financial statements
prepared in accordance with GAAP as applied to the other covenants in
Section 6 and related definitions.
6.4.3. OTHER REPORTS. The Borrower shall promptly furnish to
the Agent:
(a) As soon as prepared and in any event prior to the
beginning of each fiscal year, an annual budget and operating
projections for such fiscal year of the Borrower and its Subsidiaries,
prepared in a manner consistent with the manner in which the financial
projections described in Section 7.2.1 were prepared.
(b) Any material updates of such budget and projections.
(c) Any management letters furnished to the Borrower or any of
its Subsidiaries by the Company's auditors.
(d) All budgets, projections, statements of operations and
other reports furnished generally to the shareholders of the Borrower.
(e) As soon as practicable but, in any event, within 20
Banking Days after the filing thereof, such registration statements,
proxy statements and reports, including, to the extent applicable,
Forms S-1, S-2, S-3, S-4, 10-K, 10-Q and 8-K, as may be filed by the
Borrower or any of its Subsidiaries with the Securities and Exchange
Commission.
(f) Any 90-day letter or 30-day letter from the federal
Internal Revenue Service (or the equivalent notice received from state
or other taxing authorities) asserting tax deficiencies against the
Borrower or any of its Subsidiaries.
(g) Any material information relating to (i) a material audit
or investigation of the Borrower or any of its Subsidiaries in its
capacity as a Medicare or Medicaid provider by a governmental or
administrative agency, (ii) any claim against the Borrower or any of
its Subsidiaries under the Federal False Claims Act, (iii) any self
reporting of any violation by the Borrower or any of its Subsidiaries
and (iv) any request by the Borrower or any of its Subsidiaries for an
Advisory Opinion from the Office of the Inspector General of the
Department of Health and Human Services.
(h) The financial and operational projections for the Obligors
on a Consolidated and Consolidating basis.
6.4.4. NOTICE OF LITIGATION, DEFAULTS, ETC. Each of the
Borrower and its Subsidiaries shall promptly furnish to the Agent
notice of any litigation or any administrative or arbitration
proceeding including the impanneling of a grand jury, (a) which creates
a material risk of resulting, after giving effect to any applicable
insurance, in the payment by the Borrower or any of its Subsidiaries of
more than
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$100,000 or (b) which results, or creates a material risk of resulting,
in a Material Adverse Change. Within five Banking Days after acquiring
knowledge thereof, the Borrower shall notify the Lenders of the
existence of any Default or Material Adverse Change, specifying the
nature thereof and what action the Borrower or such Subsidiary has
taken, is taking or proposes to take with respect thereto.
6.4.5. ERISA REPORTS. Each of the Borrower and its
Subsidiaries shall furnish to the Agent promptly after the same shall
become available the following items with respect to any Plan:
(a) any request for a waiver of the funding standards or an
extension of the amortization period,
(b) any reportable event (as defined in section 4043 of
ERISA), unless the notice requirement with respect thereto has been
waived by regulation,
(c) any notice received by any ERISA Group Person that the
PBGC has instituted or intends to institute proceedings to terminate
any Plan, or that any Multiemployer Plan is insolvent or in
reorganization,
(d) notice of the possibility of the termination of any Plan
by its administrator pursuant to section 4041 of ERISA, and
(e) notice of the intention of any ERISA Group Person to
withdraw, in whole or in part, from any Multiemployer Plan.
6.4.6. OTHER INFORMATION; AUDIT. From time to time at
reasonable intervals upon request of any authorized officer of the
Agent or any Lender, each of the Borrower and its Subsidiaries shall
furnish to the Agent or such Lender such other information regarding
the business, assets, financial condition, income or prospects of the
Borrower and its Subsidiaries as such officer may reasonably request,
including copies of all tax returns, licenses, agreements, leases and
instruments to which any of the Borrower and its Subsidiaries is party.
The Agent's, or such Lender's authorized officers and representatives
shall have the right during normal business hours upon reasonable
notice and at reasonable intervals to examine the books and records of
the Borrower and its Subsidiaries, to make copies and notes therefrom
for the purpose of ascertaining compliance with or obtaining
enforcement of this Agreement or any other Credit Document. Any Lender
requesting any such information or examination shall coordinate with
the Agent the frequency and timing of such requests and examinations so
as to reasonably minimize the burden imposed on the Borrower and its
Subsidiaries. The Agent, upon reasonable advance notice, may undertake
to have the Borrower and its Subsidiaries reviewed by the Agent's
commercial financial examiners and fixed asset appraisers. The Borrower
shall bear the reasonable expenses related to one such review annually
unless an Event of Default has occurred
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and is continuing in which event the Borrower shall bear all reasonable
expenses of any reasonable number of reviews.
6.5. CERTAIN FINANCIAL TESTS.
6.5.1. CONSOLIDATED TOTAL DEBT COVERAGE. At all times, the
amount of (a) Consolidated Total Debt minus (b) that portion of the
outstanding principal amount of any Contingent Notes and Restructured
Seller Notes to the extent that such portion is not required to be
reflected on the financial statements of the Borrower in accordance
with GAAP, shall not exceed 300% of the Consolidated Adjusted EBITDA
for the period of four consecutive fiscal quarters most recently ended.
6.5.2. CONSOLIDATED INTEREST EXPENSE. On the last day of each
fiscal quarter of the Borrower, Consolidated EBITDA for the period of
four consecutive fiscal quarters then ending shall be at least 250% of
the Consolidated Interest Expense for such period.
6.5.3. CONSOLIDATED OPERATING CASH FLOW. On the last day of
each fiscal quarter of the Borrower, Consolidated Operating Cash Flow
for the period of four consecutive fiscal quarters then ending shall be
at least 125% of the sum of (i) Consolidated Total Debt Service for
such period MINUS (ii) voluntary prepayments of the Loan.
6.6. INDEBTEDNESS. Neither the Borrower nor any of its Subsidiaries
shall create, incur, assume or otherwise become or remain liable with respect to
any Indebtedness except the following:
6.6.1. Indebtedness in respect of the Credit Obligations.
6.6.2. Guarantees permitted by Section 6.7.
6.6.3. Current liabilities, other than Financing Debt,
incurred in the ordinary course of business.
6.6.4. To the extent that payment thereof shall not at the
time be required by Section 6.1, Indebtedness in respect of taxes,
assessments, governmental charges and claims for labor, materials and
supplies.
6.6.5. Indebtedness secured by Liens of carriers, warehouses,
mechanics and landlords permitted by Sections 6.8.5 and 6.8.6.
6.6.6. Indebtedness in respect of judgments or awards (a)
which have been in force for less than the applicable appeal period or
(b) in respect of which the Borrower or any of its Subsidiaries shall
at the time in good faith be prosecuting an
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appeal or proceedings for review and, in the case of each of clauses
(a) and (b), the Borrower or such Subsidiary shall have taken
appropriate reserves therefor in accordance with GAAP and execution of
such judgment or award shall not be levied.
6.6.7. To the extent permitted by Section 6.8.9, Indebtedness
in respect of Capitalized Lease Obligations or secured by purchase
money security interests; PROVIDED, HOWEVER, that the aggregate
principal amount of all Indebtedness permitted by this Section 6.6.7 at
any one time outstanding shall not exceed $1,000,000.
6.6.8. Indebtedness with respect to deferred compensation in
the ordinary course of business and Indebtedness with respect to
employee benefit programs (including liabilities in respect of deferred
compensation, pension or severance benefits, early termination
benefits, disability benefits, vacation benefits and tuition benefits)
incurred in the ordinary course of business so long as the Borrower and
its Subsidiaries is in compliance with Section 6.17.
6.6.9. Indebtedness in respect of customer advances and
deposits, deferred income, deferred taxes and other deferred credits
arising in the ordinary course of business.
6.6.10. Indebtedness relating to deferred gains and deferred
taxes arising in connection with sale of assets permitted under Section
6.11.
6.6.11. Indebtedness in respect of inter-company loans and
advances among the Borrower and its Subsidiaries which are not
prohibited by Section 6.9.
6.6.12. Contingent Notes and Restructured Seller Notes.
6.6.13. Indebtedness to the extent set forth on EXHIBIT 6.6.
6.7. GUARANTEES; LETTERS OF CREDIT. Neither the Borrower nor any of its
Subsidiaries, shall become or remain liable with respect to any Guarantee,
including reimbursement obligations, whether contingent or matured, under
letters of credit or other financial guarantees by third parties, except the
following:
6.7.1. Letters of Credit and Guarantees of the Credit
Obligations.
6.7.2. Guarantees by the Borrower of Indebtedness incurred by
its Subsidiaries and permitted by Section 6.6.
6.7.3. Guarantees by the Borrower of the obligations of its
Subsidiaries under employment agreements between such Subsidiary and
its employees.
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6.8. LIENS. Neither the Borrower nor any of its Subsidiaries shall
create, incur or enter into, or suffer to be created or incurred or to exist,
any Lien, except the following:
6.8.1. Liens on the Credit Security that secure the Credit
Obligations.
6.8.2. Liens to secure taxes, assessments and other
governmental charges, to the extent that payment thereof shall not at
the time be required by Section 6.1.
6.8.3. Deposits or pledges made (a) in connection with, or to
secure payment of, workers' compensation, unemployment insurance, old
age pensions or other social security, (b) in connection with casualty
insurance maintained in accordance with Section 6.3, (c) to secure the
performance of bids, tenders, contracts (other than contracts relating
to Financing Debt) or leases, (d) to secure statutory obligations or
surety or appeal bonds, (e) to secure indemnity, performance or other
similar bonds in the ordinary course of business or (f) in connection
with contested amounts to the extent that payment thereof shall not at
that time be required by Section 6.1.
6.8.4. Liens in respect of judgments or awards, to the extent
that such judgments or awards are permitted by Section 6.6.6.
6.8.5. Liens of carriers, warehouses, mechanics and similar
Liens, in each case (a) in existence less than 120 days from the date
of creation thereof or (b) being contested in good faith by the
Borrower or any Subsidiary in appropriate proceedings (so long as the
Borrower or such Subsidiary shall, in accordance with GAAP, have set
aside on its books adequate reserves with respect thereto).
6.8.6. Encumbrances in the nature of (a) zoning restrictions,
(b) easements, (c) restrictions of record on the use of real property,
(d) landlords' and lessors' Liens on rented premises and (e)
restrictions on transfers or assignment of leases, which in each case
do not materially detract from the value of the encumbered property or
impair the use thereof in the business of the Borrower or any
Subsidiary.
6.8.7. Restrictions under federal and state securities laws on
the transfer of securities.
6.8.8. Restrictions under Foreign Trade Regulations on the
transfer or licensing of certain assets of the Borrower and its
Subsidiaries.
6.8.9. Liens constituting (a) purchase money security
interests (including mortgages, conditional sales, Capitalized Leases
and any other title retention or deferred purchase devices) in real
property, interests in leases or tangible personal property (other than
inventory) existing or created on the date on which such property is
acquired, and (b) the renewal, extension or refunding of any security
interest referred to in the foregoing clause (a) in an amount not to
exceed the amount thereof
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remaining unpaid immediately prior to such renewal, extension or
refunding; PROVIDED, HOWEVER, that (i) each such security interest
shall attach solely to the particular item of property so acquired, and
the principal amount of Indebtedness (including Indebtedness in respect
of Capitalized Lease Obligations) secured thereby shall not exceed the
cost (including all such Indebtedness secured thereby, whether or not
assumed) of such item of property, and (ii) the aggregate principal
amount of all Indebtedness secured by Liens permitted by this Section
6.8.9 shall not exceed the amount permitted by Section 6.6.7.
6.8.10. Other Liens and Capitalized Lease Obligations on the
property secured by such Liens or the subject of such Capitalized Lease
as set forth on EXHIBIT 6.8 and any renewals thereof, but not any
increase in the amount thereof.
6.9. INVESTMENTS AND PERMITTED ACQUISITIONS. Neither the Borrower nor
any of its Subsidiaries shall have outstanding, acquire, commit itself to
acquire or hold any Investment (including any Investment consisting of the
Permitted Acquisition of any business) except for the following:
6.9.1. Cash Investments of the Borrower in its Subsidiaries.
6.9.2. Intercompany loans and advances from the Borrower and
its Subsidiaries to any Subsidiary but in each case only to the extent
reasonably necessary for Consolidated tax planning and working capital
management.
6.9.3. Investments in Cash Equivalents.
6.9.4. Guarantees permitted by Section 6.7.
6.9.5. Acquisitions permitted by Section 6.21 (each a
"Permitted Acquisition").
6.9.6. Investments representing Indebtedness of any Person
owing as a result of the sale by the Borrower in the ordinary course of
business to such Person of products, services or tangible property no
longer required in the Borrower's business.
6.9.7. Promissory Note payable to the Borrower issued in
March, 1999 by Dr. A. Bernard Ackerman, M.D. in the amount of $600,000
at an annual interest rate of 6%, due March, 2003.
6.10. DISTRIBUTIONS. Neither the Borrower nor any of its Subsidiaries
shall make any Distribution except for the following:
6.10.1. Subsidiaries of the Borrower may make Distributions to
the Borrower or any other Subsidiary of the Borrower.
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6.10.2. Distributions consisting of Investments permitted by
Sections 6.9.1 and 6.9.2.
6.10.3. Distributions in respect of the redemption of capital
stock of the Company from employees of the Borrower or any of its
Subsidiaries; PROVIDED, HOWEVER, that the amount of all such
Distributions shall not exceed $50,000 in the aggregate in any fiscal
year.
6.10.4. Distributions on Subordinated Indebtedness to the
extent permitted by a Subordination Agreement or such other
documentation relating to Subordinated Indebtedness that has been
approved by the Required Lenders.
6.11. ASSET DISPOSITIONS AND MERGERS. Except as otherwise set forth in
EXHIBIT 6.11, neither the Borrower nor any of its Subsidiaries shall merge or
enter into a consolidation or sell, lease, sell and lease back, sublease or
otherwise dispose of any of its assets, except the following:
6.11.1. So long as immediately prior to and after giving
effect thereto there shall exist no Default, the Borrower and any of
its Subsidiaries may sell or otherwise dispose of: (a) inventory in the
ordinary course of business; (b) tangible assets to be replaced in the
ordinary course of business within 12 months by other assets of equal
or greater value; and (c) tangible assets no longer used or useful in
the business of the Borrower or such Subsidiary; PROVIDED, HOWEVER,
that the aggregate fair market value (or book value, if greater) of the
assets sold or disposed of pursuant to this clause (c) shall not exceed
$500,000 in any fiscal year.
6.11.2. Any Subsidiary may merge or be liquidated into the
Borrower or any other Subsidiary of the Borrower so long as after
giving effect to any such merger to which an Obligor is a party, an
Obligor shall be the surviving or resulting Person.
6.12. LEASE OBLIGATIONS. Neither the Borrower nor any of its
Subsidiaries shall be or become obligated as lessee under any lease except:
6.12.1. Capitalized Leases permitted by Sections 6.6.7 and
6.8.9.
6.12.2. Leases other than Capitalized Leases; PROVIDED,
HOWEVER, that the aggregate fixed rental obligations for any year
(excluding payments required to be made by the lessee in respect of
taxes and insurance whether or not denominated as rent) shall not
exceed $5,000,000.
6.13. ISSUANCE OF STOCK BY SUBSIDIARIES; SUBSIDIARY DISTRIBUTIONS.
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6.13.1. ISSUANCE OF STOCK BY SUBSIDIARIES OF THE COMPANY. No
Subsidiary shall issue or sell any shares of its capital stock or other
evidence of beneficial ownership to any Person other than the Borrower
or any other Wholly-Owned Subsidiary of the Borrower, which shares
shall have been pledged to the Agent as part of the Credit Security;
PROVIDED, HOWEVER, that (i) in the event that applicable state law or
regulation prohibits the Company from directly holding the capital
stock of a medical practice that is a Subsidiary of the Company, such
shares may be issued or sold to a trust or similar entity controlled
solely by the Borrower or a Wholly-Owned Subsidiary of the Borrower,
(ii) James E. Dunnington, M.D. may hold one share of AmeriPath
Kentucky, Inc., so long as the Shareholders' Agreement among James E.
Dunnington, M.D., the Company and AmeriPath Kentucky, Inc. remains in
full force and effect, (iii) Alan Levin, M.D. may hold all the issued
and outstanding Shares of AmeriPath Pittsburgh, P.C. so long as the
Shareholder's Agreement among Alan Levin, M.D., the Company and
AmeriPath Pittsburgh, P.C. remains in full force and effect, (iv) H.
Michael Jones, M.D. may hold all the issued and outstanding Shares of
AmeriPath Consulting Pathology Services, P.A. so long as the
Shareholders' Agreement among H. Michael Jones, M.D., the Company and
AmeriPath Consulting Pathology Services, P.A. remains in full force and
effect, (v) Alan Levin, M.D. may hold all the issued and outstanding
Shares of Consulting Pathologists of Pennsylvania, P.C. so long as the
Shareholders' Agreement among Alan Levin, M.D., the Company and
Consulting Pathologists of Pennsylvania, P.C. remains in full force and
effect, (vi) Winston N. Hollister, M.D. may hold all the issued and
outstanding Shares of AmeriPath Milwaukee, S.C. so long as the
Shareholders' Agreement among Winston N. Hollister, M.D., the company
and AmeriPath Milwaukee, S.C. remains in full force and effect, and
(vii) Alan Levin, M.D. may hold all the issued and outstanding Shares
of JJ Humes M.D. and Associates/AmeriPath, P.C. so long as the
Shareholders' Agreement among Alan Levin, M.D., the Company and JJ
Humes M.D. and Associates/AmeriPath, P.C. remains in full force and
effect.
6.13.2. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS. Except
for this Agreement and the Credit Documents, neither the Borrower nor
any of its Subsidiaries shall enter into or be bound by any agreement
(including covenants requiring the maintenance of specified amounts of
net worth or working capital) restricting the right of any Subsidiary
to make Distributions or extensions of credit to the Borrower (directly
or indirectly through another Subsidiary).
6.14. VOLUNTARY PREPAYMENTS OF OTHER INDEBTEDNESS. Neither the Borrower
nor any of its Subsidiaries shall make any voluntary prepayment of principal of
or interest on any Financing Debt (other than the Credit Obligations) or make
any voluntary redemptions or repurchases of Financing Debt (other than the
Credit Obligations) without the prior written consent of the Required Lenders.
6.15. DERIVATIVE CONTRACTS. Neither the Borrower nor any of its
Subsidiaries shall enter into any Interest Rate Protection Agreement, foreign
currency exchange contract or
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other financial or commodity derivative contracts except (i) to provide hedge
protection for an underlying economic transaction in the ordinary course of
business, or (ii) as required by Section 6.19.
6.16. NEGATIVE PLEDGE CLAUSES. Neither the Borrower nor any of its
Subsidiaries shall enter into any agreement, instrument, deed or lease which
prohibits or limits the ability of such Person to create, incur, assume or
suffer to exist any Lien upon any of their respective properties, assets or
revenues, whether now owned or hereafter acquired, or which requires the grant
of any collateral for such obligation if collateral is granted for another
obligation, except the following:
6.16.1. This Agreement and the other Credit Documents.
6.16.2. Covenants in documents creating Liens permitted by
Section 6.8 prohibiting further Liens on the assets encumbered thereby.
6.17. ERISA, ETC. Each of the Borrower and its Subsidiaries shall
comply, and shall cause all ERISA Group Persons to comply, in all material
respects, with the provisions of ERISA and the Code applicable to each Plan.
Each of the Borrower and its Subsidiaries shall meet, and shall cause all ERISA
Group Persons to meet, all minimum funding requirements applicable to them with
respect to any Plan pursuant to section 302 of ERISA or section 412 of the Code,
without giving effect to any waivers of such requirements or extensions of the
related amortization periods which may be granted. At no time shall the
Accumulated Benefit Obligations under any Plan that is not a Multiemployer Plan
exceed the fair market value of the assets of such Plan allocable to such
benefits by more than $250,000. The Borrower and its Subsidiaries shall not
withdraw, and shall cause all other ERISA Group Persons not to withdraw, in
whole or in part, from any Multiemployer Plan so as to give rise to withdrawal
liability exceeding $250,000 in the aggregate. At no time shall the actuarial
present value of unfunded liabilities for post-employment health care benefits,
whether or not provided under a Plan, calculated in a manner consistent with
Statement No. 106 of the Financial Accounting Standards Board, exceed $500,000.
6.18. TRANSACTIONS WITH AFFILIATES. Except with respect to Management
Services Agreements and transactions set forth on EXHIBIT 6.18, neither the
Borrower nor any of its Subsidiaries shall effect any transaction with any of
their respective Affiliates (except for the Borrower and its Subsidiaries) on a
basis less favorable to the Borrower and its Subsidiaries than would be the case
if such transaction had been effected with a non-Affiliate. 1.1.
6.19. INTEREST RATE PROTECTION. The Borrower shall keep in effect the
existing Interest Rate Protection Agreements.
6.20. ENVIRONMENTAL LAWS.
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6.20.1. COMPLIANCE WITH LAW AND PERMITS. Each of the Borrower
and its Subsidiaries shall use and operate all of their respective
facilities and properties in material compliance with all Environmental
Laws, keep all necessary permits, approvals, certificates, licenses and
other authorizations relating to environmental matters in effect and
remain in material compliance therewith, and handle all Hazardous
Materials in material compliance with all applicable Environmental
Laws.
6.20.2. NOTICE OF CLAIMS, ETC. Each of the Borrower and its
Subsidiaries shall immediately notify the Agent, and provide copies
upon receipt, of all written claims, complaints, notices or inquiries
from governmental authorities relating to the condition of its
facilities and properties or compliance with Environmental Laws, and
shall promptly cure and have dismissed with prejudice to the
satisfaction of the Agent any actions and proceedings relating to
compliance with Environmental Laws.
6.21. PERMITTED ACQUISITIONS; GENERAL. Any Obligor may make any
acquisition of all of the capital stock, equity, partnership interests, limited
liability company membership or other beneficial interests in, or a purchase of
substantially all of the assets of any Person if (a) that acquisition is a
Friendly Acquisition and (b) that Person derives substantially all of its
revenues from, a business that the Borrower would be permitted to engage in
under Section 6.2.1; PROVIDED, HOWEVER, that
6.21.1. In the case of any such acquisition for which the
Purchase Price is less than $5,000,000:
(a) SUBORDINATION AGREEMENT. If any Person is being issued a
Contingent Note in connection with the acquisition, no later than the
closing date of such acquisition (the "Acquisition Closing Date"), the
Borrower and any such Person shall execute and deliver to the Agent a
subordination agreement substantially in the form of EXHIBIT 6.21.1(A);
(b) JOINDER AGREEMENT AND CORPORATE DOCUMENTS. Not later than
five days after the Acquisition Closing Date the Borrower and the
Guarantors shall (A) execute and deliver a Joinder Agreement
substantially in the form of EXHIBIT 6.21.1(B), making any new
subsidiary created or acquired in connection with such acquisition a
Guarantor under this Agreement and (B) deliver to the Agent a
certificate of the Secretary of any new Subsidiary with respect to the
incumbency of the officers of the new Subsidiary, the Charter and
By-laws of such new Subsidiary, and the votes taken by such Subsidiary
to authorize its joinder to this Agreement;
(c) CREDIT SECURITY. Not later than five days after the
Acquisition Closing Date, the Borrower shall (A) deliver to the Agent
such financing statements, mortgages and other documentation as the
Agent shall request to attach a security interest to the assets of such
new Subsidiary and to perfect such security interests and (B) deliver
to the Agent all of the capital stock of such new Subsidiary (or make
other
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arrangement reasonably satisfactory to the Agent to perfect the
security interest of the Lenders in any equity interest in such new
Subsidiary). The failure of the Borrower to comply with this Section
6.21.1(c) shall constitute an Event of Default; and
(d) NO DEFAULT. Immediately before and after giving effect to
such acquisition, no Default shall exist.
(e) MANAGEMENT SERVICES AGREEMENT. The Management Services
Agreement, if any, executed and delivered in connection with such
acquisition shall provide that 100% of Operating Earnings of a
physician practice be payable to the Borrower or a Guarantor.
(f) ACQUISITION COMPLIANCE CERTIFICATE. The Borrower provides
to the Agent, not later than 5 days after the Acquisition Closing Date,
a certificate in the form of EXHIBIT 6.21.1(F) certifying compliance
with this Section 6.21.1.
6.21.2. In the case of any such acquisition for which the
Purchase Price is greater than or equal to $5,000,000 and the Cash
Purchase Price is less than $20,000,000, the Borrower shall comply with
all the requirements of Section 6.21.1, with the exception of
6.21.1(f), and:
(a) PURCHASE PRICE LIMITATION. The Financing Debt component of
the consideration for such acquisition shall not exceed the sum of 450%
of the Pro Forma EBITDA of the Acquired Party for the most recently
completed period of four consecutive fiscal quarters plus the cash and
Cash Equivalents of the Acquired Party that are being purchased;
(b) ACQUISITION DOCUMENTS. The Borrower shall provide to the
Agent:
(i) not later than five days prior to the Acquisition
Closing Date, a copy of the due diligence report provided to
the board of directors of the Company with respect to such
acquisition;
(ii) not later than three days prior to the
Acquisition Closing Date, a copy of a draft of the Acquisition
Agreement, together with all amendments, exhibits and
schedules thereto, for such acquisition; and from such time
until the Acquisition Closing Date, the Borrower shall provide
to the Agent all changes and additions to the foregoing;
(iii) not later than five days after the Acquisition
Closing Date, a final executed copy of the Acquisition
Agreement and all exhibits and schedules thereto.
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(c) PRO FORMA COVENANT COMPLIANCE. Not later than five Banking
Days before the Acquisition Closing Date, the Borrower shall provide to
the Agent, a computation, certified by a Financial Officer of the
Borrower, showing pro forma compliance as of the date of such
acquisition with the financial tests set forth in Section 6.5, after
giving effect to any increases in Financing Debt incurred in connection
with such acquisition and adding to the financial statements most
recently delivered to the Agent the Pro Forma EBITDA of the Acquired
Party for the most recently completed period of four consecutive fiscal
quarters;
Each Lender shall be deemed to have approved any non-GAAP adjustments
used in such certified calculation of the Pro Forma EBITDA (as shown in
the due diligence report sent to the Lenders) unless, within five
Banking Days after the Company (via the Agent) gives notice to such
Lender of the proposed Pro Forma EBITDA calculations showing such
non-GAAP adjustments, such Lender has given notice to the Company and
the Agent of its objection to such non-GAAP adjustments.
(d) ACQUISITION COMPLIANCE CERTIFICATE. The Borrower provides
to the Agent, not later than 5 days after the Acquisition Closing Date,
a certificate in the form of EXHIBIT 6.21.2(D) certifying compliance
with Section 6.21.1 and Section 6.21.2 hereof, and further certifying
that (a) the Acquisition has been consummated, (b) the representations
and warranties of the Sellers were true and correct as of the
Acquisition Closing Date and (c) any material consent, authorization,
order or approval of any Person required in connection with the
transactions contemplated by the Acquisition Agreement has been
obtained and is in full force and effect.
6.21.3. In the case of any such acquisition for which the Cash
Purchase Price is equal to or exceeds $20,000,000, in addition to
meeting the requirements of Sections 6.21.1 and 6.21.2 the Borrower
shall receive prior written consent of the Required Lenders and provide
all further documentation and meet all further requirements reasonably
requested by the Agent.
6.22. YEAR 2000 COMPLIANT. In a timely manner, but not later than the
Initial Closing Date, the Borrower shall certify to the Agent in writing that
its and its Subsidiaries' material critical systems are Year 2000 Compliant.
7. REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders to extend
credit to the Borrower hereunder, each of the Obligors jointly and severally
represents and warrants as follows:
7.1. ORGANIZATION AND BUSINESS.
7.1.1. THE BORROWER. The Borrower is a duly organized and
validly existing corporation, in good standing under the laws of
Delaware with all power and authority, corporate or otherwise,
necessary to (a) enter into and perform this
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Agreement and each other Credit Document to which it is party, (b)
grant the Agent for the benefit of the Lenders the security interests
in the Credit Security owned by it to secure the Credit Obligations and
(c) own its properties and carry on the business now conducted or
proposed to be conducted by it. Certified copies of the Charter and
By-laws of the Borrower have been previously delivered to the Agent and
are correct and complete. Exhibit 7.1, as from time to time hereafter
supplemented in accordance with Sections 6.4.1 and 6.4.2, sets forth,
as of the later of the date hereof or as of the end of the most recent
fiscal quarter for which financial statements are required to be
furnished in accordance with such Sections, (i) the jurisdiction of
incorporation of the Borrower, (ii) the address of the Borrower's
principal executive office and chief place of business, (iii) each
name, including any trade name, under which the Borrower conducts its
business and (iv) the jurisdictions in which the Borrower keeps
tangible personal property.
7.1.2. SUBSIDIARIES. Each Subsidiary of the Borrower is duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized, with all power and authority,
corporate or otherwise, necessary to (a) enter into and perform this
Agreement and each other Credit Document to which it is party, (b)
guarantee the Credit Obligations, (c) grant the Lenders the security
interest in the Credit Security owned by such Subsidiary to secure the
Credit Obligations and (d) own its properties and carry on the business
now conducted or proposed to be conducted by it; PROVIDED, HOWEVER,
that the foregoing clauses (a), (b) and (c) shall not apply to any such
Subsidiary that is not a Guarantor. Certified copies of the Charter and
By-laws of each Subsidiary of the Borrower have been previously
delivered to the Agent and are correct and complete. Exhibit 7.1, as
from time to time hereafter supplemented in accordance with Sections
6.4.1 and 6.4.2, sets forth, as of the later of the date hereof or as
of the end of the most recent fiscal quarter for which financial
statements are required to be furnished in accordance with such
Sections, (i) the name and jurisdiction of organization of each
Subsidiary of the Borrower, (ii) the address of the chief executive
office and principal place of business of each such Subsidiary, (iii)
each name under which each such Subsidiary conducts its business; (iv)
each jurisdiction in which each such Subsidiary keeps tangible personal
property, and (v) the number of authorized and issued shares and
ownership of each such Subsidiary.
7.1.3. QUALIFICATION. Each of the Borrower and its
Subsidiaries is duly and legally qualified to do business as a foreign
corporation or other entity and is in good standing in each state or
jurisdiction in which such qualification is required and is duly
authorized, qualified and licensed under all laws, regulations,
ordinances or orders of public authorities, or otherwise, to carry on
its business in the places and in the manner in which it is conducted,
except for failures to be so qualified, authorized or licensed which
would not in the aggregate result, or create a material risk of
resulting, in any Material Adverse Change.
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7.1.4. CAPITALIZATION. No options, warrants, conversion
rights, preemptive rights or other statutory or contractual rights to
purchase shares of capital stock or other securities of any Subsidiary
now exist, nor has any Subsidiary authorized any such right, nor is any
Subsidiary obligated in any other manner to issue shares of its capital
stock or other securities. Attached as Exhibit 7.1.4. is a list of all
Persons who, together with such Person's Affiliates, hold greater than
5% of the outstanding capital stock of the Borrower, together with the
number of shares held by each such Person.
7.2. FINANCIAL STATEMENTS AND OTHER INFORMATION; MATERIAL AGREEMENTS.
7.2.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower has previously furnished to the Lenders copies of the
following:
(a) The audited Consolidated balance sheets of the Obligors as
of December 31, 1998 and the audited statements of income, of changes
in shareholders' equity and of cash flows of the Obligors for the
fiscal year of the Borrower then ended.
(b) The unaudited balance sheets of the Obligors on a
Consolidated basis as of September 30, 1999 and the unaudited
statements of income, of changes in shareholders' equity and of cash
flows of the Company and its Subsidiaries on a Consolidated basis for
the portion of the fiscal year then ended.
(c) Calculations demonstrating pro forma compliance with the
Computation Covenants as of the end of the most recent quarter, as
applicable, preceding the date hereof.
(d) The three-year financial and operational projections for
the Borrower and its Subsidiaries provided in the Confidential
Information Memorandum dated September 1999.
The audited financial statements (including the notes thereto)
referred to in clause (a) above were prepared in accordance with GAAP
and fairly present the financial position of the Borrower and its
Subsidiaries on a Consolidated basis at the date thereof and the
results of their operations for the periods covered thereby. The
unaudited financial statements referred to in clause (b) above were
prepared in accordance with GAAP and fairly present the financial
position of the Borrower and its Subsidiaries on a Consolidated basis
at the respective dates thereof and the results of their operations for
the periods covered thereby, subject to normal year-end audit
adjustment and the addition of footnotes in the case of interim
financial statements. Neither the Borrower nor any of its Subsidiaries
has any known contingent liability material to the Borrower and its
Subsidiaries on a Consolidated basis which is not
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reflected in the balance sheets referred to in clauses (a) or (b) above
(or delivered pursuant to Sections 6.4.1 or 6.4.2) or in the notes
thereto.
In the Borrower's judgment, the financial and operational
projections referred to in clause (d) above constitute a reasonable
basis as of the Initial Closing Date for the assessment of the future
performance of the Borrower and its Subsidiaries during the periods
indicated therein, it being understood that any projected financial
information represents an estimate, based on various assumptions, of
future results of operations which may or may not in fact occur.
7.2.2. MATERIAL AGREEMENTS. The Borrower has previously
furnished to the Lenders correct and complete copies, including all
exhibits, schedules and amendments thereto, of the agreements, each as
in effect on the date hereof, listed in EXHIBIT 7.2.2 (the "MATERIAL
AGREEMENTS").
7.3. AGREEMENTS RELATING TO FINANCING DEBT, INVESTMENTS, ETC. EXHIBIT
7.3, as from time to time hereafter supplemented in accordance with Sections
6.4.1 and 6.4.2, sets forth (a) the amounts (as of the dates indicated in
EXHIBIT 7.3, as so supplemented) of all Financing Debt of the Borrower and its
Subsidiaries and all agreements which relate to such Financing Debt, (b) all
Liens and Guarantees with respect to such Financing Debt and (c) all agreements
which directly or indirectly require the Borrower or any Subsidiary to make any
Investment. The Borrower has furnished the Lenders with correct and complete
copies of any agreements described in clauses (a), (b) and (c) above requested
by the Required Lenders.
7.4. CHANGES IN CONDITION. Since December 31, 1998 no Material Adverse
Change has occurred and since such date, except as set forth in EXHIBIT 7.4,
neither the Borrower nor any of its Subsidiaries has entered into any material
transaction outside the ordinary course of business except for the transactions
contemplated by or otherwise permitted or authorized pursuant to this Agreement
and the Material Agreements.
7.5. TITLE TO ASSETS. The Borrower and its Subsidiaries have good and
marketable title to, or rights to use under lease all assets necessary for or
used in the operations of their business as now conducted by them and reflected
in the most recent balance sheet referred to in Section 7.2.1 (or the balance
sheet most recently furnished to the Lenders pursuant to Sections 6.4.1 or
6.4.2), and to all assets acquired subsequent to the date of such balance sheet,
subject to no Liens except for Liens permitted by Section 6.8 and except for
assets disposed of as permitted by Section 6.11.
7.6. OPERATIONS IN CONFORMITY WITH LAW, ETC. The operations of the
Borrower and its Subsidiaries as now conducted or proposed to be conducted are
not in violation of, nor is the Borrower or any of its Subsidiaries in default
under, any Legal Requirement presently in effect, except for such violations and
defaults as do not and will not, in the aggregate, result, or create a material
risk of resulting, in any Material Adverse Change. Neither the Borrower
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nor any of its Subsidiaries has received notice of any such violation or default
or has knowledge of any basis on which the operations of the Borrower or its
Subsidiaries, as now conducted and as currently proposed to be conducted after
the date hereof, would be held so as to violate or to give rise to any such
violation or default.
7.7. LITIGATION. Except as otherwise set forth in EXHIBIT 7.7, no
litigation, at law or in equity, or any proceeding before any court, board or
other governmental or administrative agency or any arbitrator is pending or, to
the knowledge of the Borrower or any of its Subsidiaries, threatened which may
involve any material risk of any final judgment, order or liability which, after
giving effect to any applicable insurance, has resulted, or creates a material
risk of resulting, in any Material Adverse Change or which seeks to enjoin the
consummation, or which questions the validity, of any of the transactions
contemplated by this Agreement or any other Credit Document. No judgment, decree
or order of any court, board or other governmental or administrative agency or
any arbitrator has been issued against or binds the Borrower or any of
Subsidiaries which has resulted, or creates a material risk of resulting, in any
Material Adverse Change.
7.8. AUTHORIZATION AND ENFORCEABILITY. Each of the Obligors has taken
all corporate action required to execute, deliver and perform this Agreement and
each other Credit Document to which it is party. No consent of stockholders of
any Obligor is necessary in order to authorize the execution, delivery or
performance of this Agreement or any other Credit Document to which such Obligor
is party. Each of this Agreement and each other Credit Document constitutes the
legal, valid and binding obligation of each Obligor party thereto and is
enforceable against such Obligor in accordance with its terms.
7.9. NO LEGAL OBSTACLE TO AGREEMENTS. Neither the execution and
delivery of this Agreement or any other Credit Document, nor the making of any
borrowings hereunder, nor the guaranteeing of the Credit Obligations, nor the
securing of the Credit Obligations with the Credit Security, nor the
consummation of any transaction referred to in or contemplated by this Agreement
or any other Credit Document, nor the fulfillment of the terms hereof or thereof
or of any other agreement, instrument, deed or lease contemplated by this
Agreement or any other Credit Document, has constituted or resulted in or will
constitute or result in:
(a) any breach or termination of the provisions of any
agreement, instrument, deed or lease to which the Borrower, any of its
Subsidiaries or any other Obligor is a party or by which it is bound,
or of the Charter or By-laws of the Borrower, any of its Subsidiaries
or any other Obligor;
(b) the violation of any law, statute, judgment, decree or
governmental order, rule or regulation applicable to the Borrower, any
of its Subsidiaries or any other Obligor;
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(c) the creation under any agreement, instrument, deed or
lease of any Lien (other than Liens on the Credit Security which secure
the Credit Obligations) upon any of the assets of the Borrower, any of
its Subsidiaries or any other Obligor; or
(d) any redemption, retirement or other repurchase obligation
of the Borrower, any of its Subsidiaries or any other Obligor under any
Charter, By-law, agreement, instrument, deed or lease.
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made by the Borrower, any of its Subsidiaries or any other
Obligor in connection with the execution, delivery and performance of this
Agreement, the Notes or any other Credit Document, the transactions contemplated
hereby or thereby, the making of any borrowing hereunder, the guaranteeing of
the Credit Obligations or the securing of the Credit Obligations with the Credit
Security.
7.10. DEFAULTS. Neither the Borrower nor any of its Subsidiaries is in
default under any provision of its Charter or By-laws or of this Agreement or
any other Credit Document. Neither the Borrower nor any of its Subsidiaries is
in default under any provision of any agreement, instrument, deed or lease to
which it is party or by which it or its property is bound. Neither the Borrower
nor any of its Subsidiaries has violated any law, judgment, decree or
governmental order, rule or regulation, in each case so as to result, or create
a material risk of resulting, in any Material Adverse Change.
7.11. LICENSES, ETC. The Borrower and its Subsidiaries have all
patents, patent applications, patent licenses, patent rights, trademarks,
trademark rights, trade names, trade name rights, copyrights, licenses,
franchises, permits, authorizations and other rights as are necessary for the
conduct of the business of the Borrower and its Subsidiaries as now conducted by
them. All of the foregoing are in full force and effect in all material
respects, and each of the Borrower and its Subsidiaries is in substantial
compliance with the foregoing without any known conflict with the valid rights
of others which has resulted, or creates a material risk of resulting, in any
Material Adverse Change. No event has occurred which permits, or after notice or
lapse of time or both would permit, the revocation or termination of any such
license, franchise or other right or which affects the rights of any of the
Borrower and its Subsidiaries thereunder so as to result, or to create a
material risk of resulting, in any Material Adverse Change. No litigation or
other proceeding or dispute exists with respect to the validity or, where
applicable, the extension or renewal, of any of the foregoing which has
resulted, or creates a material risk of resulting, in any Material Adverse
Change.
7.12. TAX RETURNS. Each of the Borrower and its Subsidiaries has filed
all material tax and information returns which are required to be filed by it
and has paid, or made adequate provision for the payment of, all taxes which
have or may become due pursuant to such returns or to any assessment received by
it. Neither the Borrower nor any of its
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Subsidiaries knows of any material additional assessments or any basis therefor.
Neither the Borrower nor any of its Subsidiaries reasonably believes that the
charges, accruals and reserves on the books of the Borrower and its Subsidiaries
in respect of taxes or other governmental charges are adequate.
7.13. CERTAIN BUSINESS REPRESENTATIONS.
7.13.1. LABOR RELATIONS. No dispute or controversy between the
Borrower or any of its Subsidiaries and any of their respective
employees has resulted, or is reasonably likely to result, in any
Material Adverse Change, and neither the Borrower nor any of its
Subsidiaries anticipates that its relationships with its unions or
employees will result, or are reasonably likely to result, in any
Material Adverse Change. Each of the Borrower and its Subsidiaries is
in compliance in all material respects with all federal and state laws
with respect to (a) non-discrimination in employment with which the
failure to comply, in the aggregate, has resulted, or creates a
material risk of resulting, in a Material Adverse Change and (b) the
payment of wages.
7.13.2. ANTITRUST. Each of the Borrower and its Subsidiaries
is in compliance in all material respects with all federal and state
antitrust laws relating to its business and the geographic
concentration of its business.
7.13.3. CONSUMER PROTECTION. Neither the Borrower nor any of
its Subsidiaries is in violation of any rule, regulation, order, or
interpretation of any rule, regulation or order of the Federal Trade
Commission (including truth-in-lending), with which the failure to
comply, in the aggregate, has resulted, or creates a material risk of
resulting, in a Material Adverse Change.
7.13.4. BURDENSOME OBLIGATIONS. Neither the Borrower nor any
of its Subsidiaries is party to or bound by any agreement, instrument,
deed or lease or is subject to any Charter, By-law or other
restriction, commitment or requirement which, in the opinion of the
management of such Person, is so unusual or burdensome as in the
foreseeable future to result, or create a material risk of resulting,
in a Material Adverse Change.
7.13.5. FUTURE EXPENDITURES. Neither the Borrower nor any of
its Subsidiaries anticipate that the future expenditures, if any, by
the Borrower and its Subsidiaries needed to meet the provisions of any
federal, state or foreign governmental statutes, orders, rules or
regulations will be so burdensome as to result, or create a material
risk of resulting, in any Material Adverse Change.
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7.14. ENVIRONMENTAL REGULATIONS.
7.14.1. ENVIRONMENTAL COMPLIANCE. Each of the Borrower and its
Subsidiaries is in compliance in all material respects with the Clean
Air Act, the Federal Water Pollution Control Act, the Marine Protection
Research and Sanctuaries Act, RCRA, CERCLA and any other Environmental
Law in effect in any jurisdiction in which any properties of the
Borrower and its Subsidiaries are located or where any of them conducts
its business, and with all applicable published rules and regulations
(and applicable standards and requirements) of the federal
Environmental Protection Agency and of any similar agencies in states
or foreign countries in which the Borrower and its Subsidiaries conduct
their businesses other than those which in the aggregate have not
resulted, and do not create a material risk of resulting, in a Material
Adverse Change.
7.14.2. ENVIRONMENTAL LITIGATION. No suit, claim, action or
proceeding of which any Obligor has been given notice or otherwise has
knowledge is now pending before any court, governmental agency or board
or other forum, or to the knowledge of any of the Borrower and its
Subsidiaries, threatened by any Person (nor to the knowledge of any of
the Borrower and its Subsidiaries, does any factual basis exist
therefor) for, and none of the Borrower and its Subsidiaries have
received written correspondence from any federal, state or local
governmental authority with respect to:
(a) noncompliance by the Borrower or any Subsidiary thereof
with any Environmental Law;
(b) personal injury, wrongful death or other tortious conduct
relating to materials, commodities or products used, generated, sold,
transferred or manufactured by the Borrower or any Subsidiary thereof
(including products made of, containing or incorporating asbestos, lead
or other hazardous materials, commodities or toxic substances); or
(c) the release into the environment by the Borrower or any
Subsidiary thereof of any Hazardous Material generated by the Borrower
or any Subsidiary thereof whether or not occurring at or on a site
owned, leased or operated by the Borrower or any Subsidiary thereof.
7.14.3. ENVIRONMENTAL CONDITION OF PROPERTIES. None of the
properties owned or leased by the Borrower or any Subsidiary thereof
has been used as a treatment, storage or disposal site, other than as
disclosed in EXHIBIT 7.14. No Hazardous Material is present in any real
property currently or formerly owned or operated by the Borrower or any
Subsidiary thereof except that which has not resulted, and does not
create a material risk of resulting, in a Material Adverse Change.
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7.15. PENSION PLANS. Each Plan (other than a Multiemployer Plan) and,
to the knowledge of each of the Borrower and its Subsidiaries, each
Multiemployer Plan is in material compliance with the applicable provisions of
ERISA and the Code. Each Multiemployer Plan and each Plan that constitutes a
"defined benefit plan" (as defined in ERISA) are set forth in EXHIBIT 7.15. Each
ERISA Group Person has met all of the funding standards applicable to all Plans
that are not Multiemployer Plans, and no condition exists which would permit the
institution of proceedings to terminate any Plan that is not a Multiemployer
Plan under section 4042 of ERISA. To the best knowledge of the Borrower and each
of its Subsidiaries, no Plan that is a Multiemployer Plan is currently insolvent
or in reorganization or has been terminated within the meaning of ERISA.
7.16. ACQUISITION AGREEMENT, ETC. Each Acquisition Agreement is a valid
and binding contract as to the Borrower and each Subsidiary party thereto and,
to the best of the Borrower's knowledge, as to the Sellers party thereto. The
Borrower and its Subsidiaries are not in default in any material respect of its
obligations under any Acquisition Agreement and, to the best of the Borrower's
knowledge, the Sellers party thereto are not in default in any material respect
of any of their obligations thereunder. The representations and warranties of
the Borrower set forth in each Acquisition Agreement are true and correct in all
material respect as of the date hereof with the same force and effect as though
made on and as of the date hereof. To the best of the Borrower's knowledge all
of the representations and warranties of the Sellers set forth in each
Acquisition Agreement are true and correct in all material respects as of the
date hereof with the same force and effect as though made on and as of the date
hereof.
7.17. FOREIGN TRADE REGULATIONS; GOVERNMENT REGULATION; MARGIN STOCK.
7.17.1. FOREIGN TRADE REGULATIONS. Neither the execution and
delivery of this Agreement or any other Credit Document, nor the making
by the Borrower of any borrowings hereunder, nor the guaranteeing of
the Credit Obligations by any Guarantor, nor the securing of the Credit
Obligations with the Credit Security, has constituted or resulted in or
will constitute or result in the violation of any Foreign Trade
Regulation.
7.17.2. GOVERNMENT REGULATION. Neither the Borrower nor any
Subsidiary, nor any Person controlling the Borrower or any of its
Subsidiaries or under common control with the Borrower or any of its
Subsidiaries, is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Investment Company Act,
the Interstate Commerce Act or any statute or regulation which
regulates the incurring by the Borrower or any of its Subsidiaries of
Financing Debt as contemplated by this Agreement and the other Credit
Documents.
7.17.3. MARGIN STOCK. Neither the Borrower nor any of its
Subsidiaries owns any Margin Stock.
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7.18. DISCLOSURE. Neither this Agreement nor any other Credit Document
to be furnished to the Lenders by or on behalf of the Borrower or any of its
Subsidiaries in connection with the transactions contemplated hereby or by such
Credit Document contains any untrue statement of material fact or omits to state
a material fact necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances under which they were made.
No fact is actually known to Borrower or any of its Subsidiaries which has
resulted, or in the future (so far as the Borrower or any of its Subsidiaries
can reasonably foresee) will result, or creates a material risk of resulting, in
any Material Adverse Change, except to the extent that present or future general
economic conditions may result in a Material Adverse Change.
7.19. YEAR 2000 COMPLIANCE.
7.19.1. Borrower and its Subsidiaries have (i) undertaken a
detailed inventory, review and assessment of all areas within its
business and operations that could be adversely affected by the failure
of the Borrower or its Subsidiaries to be Year 2000 Compliant on a
timely basis, (ii) developed a detailed plan and timeline for becoming
Year 2000 Compliant on a timely basis, and (iii) implemented that plan
in accordance with that timetable in all material respects.
7.19.2. Borrower and its Subsidiaries have developed a plan
and timeline for making written inquiry of their key suppliers, vendors
and customers as to whether such persons will be Year 2000 Compliant in
all material respects and have materially implemented that plan in
accordance with that timetable. For purposes hereof, "key suppliers,
vendors and customers" refers to those suppliers, vendors and customers
of Borrower and its Subsidiaries whose business failure or significant
disruption would, with reasonable probability, result in a material
adverse change in the business, properties or financial condition of
the Borrower or its Subsidiaries.
7.19.3. Based on the foregoing, Borrower reasonably believes
that its and its Subsidiaries' material critical systems are Year 2000
Compliant as of the Initial Closing Date.
8. DEFAULTS.
8.1. EVENTS OF DEFAULT. The following events are referred to as "EVENTS
OF DEFAULT":
8.1.1. PAYMENT. The Borrower shall fail to make any payment in
respect of: (a) any interest or any fee on or in respect of any of the
Credit Obligations owed by it as the same shall become due and payable,
and such failure shall continue for a period of three Banking Days, or
(b) any Credit Obligation with respect to payments made by any Letter
of Credit Issuer under any Letter of Credit or any draft drawn
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thereunder within three Banking Days after demand therefor by such
Letter of Credit Issuer or (c) principal of any of the Credit
Obligations owed by it as the same shall become due, whether at
maturity or by acceleration or otherwise.
8.1.2. SPECIFIED COVENANTS. The Borrower or any of its
Subsidiaries shall fail to perform or observe any of the provisions of
Section 6.4.5 or Sections 6.5 through 6.22.
8.1.3. OTHER COVENANTS. The Borrower, any of its Subsidiaries
or any other Obligor shall fail to perform or observe any other
covenant, agreement or provision to be performed or observed by it
under this Agreement or any other Credit Document, and such failure
shall not be rectified or cured to the written satisfaction of the
Required Lenders within 30 days after the earlier of (a) notice thereof
by the Agent to the Borrower or (b) a Financial Officer shall have
actual knowledge thereof.
8.1.4. REPRESENTATIONS AND WARRANTIES. Any representation or
warranty of or with respect to the Borrower or any of its Subsidiaries
or any other Obligor made to the Lenders or the Agent in, pursuant to
or in connection with this Agreement or any other Credit Document shall
be materially false on the date as of which it was made.
8.1.5. CROSS DEFAULT, ETC.
(a) The Borrower or any of Subsidiaries shall fail to make any
payment when due (after giving effect to any applicable grace periods)
in respect of any Capitalized Lease or in respect of any Financing Debt
(other than the Credit Obligations) outstanding in an aggregate amount
of principal (whether or not due) and accrued interest exceeding
$250,000;
(b) the Borrower or any of its Subsidiaries shall fail to
perform or observe the terms of any agreement or instrument relating to
any Capitalized Lease or any Financing Debt (other than the Credit
Obligations) outstanding in an aggregate amount of principal (whether
or not due) and accrued interest exceeding $250,000, and such failure
shall continue, without having been duly cured, waived or consented to,
beyond the period of grace, if any, specified in such agreement or
instrument, and such failure shall permit the acceleration of such
Financing Debt or Capitalized Lease;
(c) all or any part of any Financing Debt (other than the
Credit Obligations) outstanding in an aggregate amount of principal
(whether or not due) and accrued interest exceeding $250,000 of the
Borrower or any of its Subsidiaries shall be accelerated or shall
become due or payable prior to its stated maturity (except with respect
to voluntary prepayments thereof) for any reason whatsoever;
(d) any Lien on any property of the Borrower or any of its
Subsidiaries securing any Financing Debt (other than the Credit
Obligations) outstanding in an
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aggregate amount of principal (whether or not due) and accrued interest
exceeding $250,000 shall be enforced by foreclosure or similar action;
or
(e) any holder of any Financing Debt (other than the Credit
Obligations) outstanding in an aggregate amount of principal (whether
or not due) and accrued interest exceeding $250,000 shall exercise any
right of rescission or put right with respect thereto.
8.1.6. OWNERSHIP; LIQUIDATION; ETC. Except as permitted by
either Section 6.11 or Section 6.13:
(a) the Borrower shall cease to own, directly or indirectly,
all the capital stock or other beneficial interests of each of the
Guarantors;
(b) any Change of Control shall occur; or
(c) the Borrower, any of its Subsidiaries or any other Obligor
shall initiate any action to dissolve, liquidate or otherwise terminate
its existence.
8.1.7. ENFORCEABILITY, ETC. Any Credit Document shall cease
for any reason (other than the scheduled termination thereof in
accordance with its terms) to be enforceable in accordance with its
terms or in full force and effect; or the Borrower, any of its
Subsidiaries or any other Obligor in respect of any Credit Document
shall so assert in a judicial or similar proceeding; or the security
interests created by this Agreement or any other Credit Documents shall
cease to be enforceable and of the same effect and priority purported
to be created hereby.
8.1.8. JUDGMENTS. A final judgment (a) which, with other
outstanding final judgments against the Borrower or any of its
Subsidiaries, exceeds an aggregate of $250,000 in excess of applicable
insurance coverage shall be rendered against the Borrower or any of its
Subsidiaries, or (b) which grants injunctive relief that results, or
creates a material risk of resulting, in a Material Adverse Change and
in either case if, (i) within 60 days after entry thereof, such
judgment shall not have been discharged or execution thereof stayed
pending appeal or (ii) within 60 days after the expiration of any such
stay, such judgment shall not have been discharged.
8.1.9. ERISA. Any "reportable event" (as defined in section
4043 of ERISA) shall have occurred that reasonably could be expected to
result in termination of a Material Plan or the appointment by the
appropriate United States District Court of a trustee to administer any
Material Plan or the imposition of a Lien in favor of a Material Plan;
or any ERISA Group Person shall fail to pay when due amounts
aggregating in excess of $100,000 which it shall have become liable to
pay to the PBGC or to a Material Plan under Title IV of ERISA; or
notice of intent to terminate a Material Plan shall be filed under
Title IV of ERISA by any ERISA Group Person
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or administrator; or the PBGC shall institute proceedings under Title
IV of ERISA to terminate or to cause a trustee to be appointed to
administer any Material Plan or a proceeding shall be instituted by a
fiduciary of any Material Plan against any ERISA Group Person to
enforce section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within 30 days thereafter; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated.
8.1.10. BANKRUPTCY, ETC. The Borrower, any of its Subsidiaries
or any other Obligor shall:
(a) commence a voluntary case under the Bankruptcy Code or
authorize, by appropriate proceedings of its board of directors or
other governing body, the commencement of such a voluntary case;
(b) (i) have filed against it a petition commencing an
involuntary case under the Bankruptcy Code that shall not have been
dismissed within 60 days after the date on which such petition is
filed, or (ii) file an answer or other pleading within such 60-day
period admitting or failing to deny the material allegations of such a
petition or seeking, consenting to or acquiescing in the relief therein
provided, or (iii) have entered against it an order for relief in any
involuntary case commenced under the Bankruptcy Code;
(c) seek relief as a debtor under any applicable law, other
than the Bankruptcy Code, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or consent to or acquiesce in
such relief;
(d) have entered against it an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii) ordering
or approving its liquidation or reorganization as a debtor or any
modification or alteration of the rights of its creditors or (iii)
assuming custody of, or appointing a receiver or other custodian for,
all or a substantial portion of its property; or
(e) make an assignment for the benefit of, or enter into a
composition with, its creditors, or appoint, or consent to the
appointment of, or suffer to exist a receiver or other custodian for,
all or a substantial portion of its property.
8.1.11. ACQUISITIONS. The Borrower shall fail to comply with
the requirements of Section 6.21.1(c) with respect to any Permitted
Acquisition.
8.2. CERTAIN ACTIONS FOLLOWING AN EVENT OF DEFAULT. If any one or more
Events of Default shall occur and be continuing, then in each and every such
case:
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8.2.1. TERMINATE OBLIGATION TO EXTEND CREDIT. The Agent on
behalf of the Lenders may (and upon written request of the Required
Lenders the Agent shall) terminate the obligations of the Lenders to
make any further extensions of credit under the Credit Documents by
furnishing notice of such termination to the Borrower; PROVIDED,
HOWEVER, that if a Bankruptcy Default shall have occurred, the
obligations of the Lenders to make any further extensions of credit
under the Credit Documents shall immediately terminate..
8.2.2. SPECIFIC PERFORMANCE; EXERCISE OF RIGHTS. The Agent on
behalf of the Lenders may (and upon written request of the Required
Lenders the Agent shall) proceed to protect and enforce the Lenders'
rights by suit in equity, action at law and/or other appropriate
proceeding, either for specific performance of any covenant or
condition contained in this Agreement or any other Credit Document or
in any instrument or assignment delivered to the Lenders pursuant to
this Agreement or any other Credit Document, or in aid of the exercise
of any power granted in this Agreement or any other Credit Document or
any such instrument or assignment.
8.2.3. ACCELERATION. The Agent on behalf of the Lenders may
(and upon written request of the Required Lenders the Agent shall) by
notice in writing to the Borrower (a) declare all or any part of the
unpaid balance of the Credit Obligations then outstanding to be
immediately due and payable, and (b) require the Borrower immediately
to deposit with the Agent in cash an amount equal to the then Letter of
Credit Exposure (which cash shall be held and applied as provided in
Section 4.5), and thereupon such unpaid balance or part thereof and
such amount equal to the Letter of Credit Exposure shall become so due
and payable without presentation, protest or further demand or notice
of any kind, all of which are hereby expressly waived; PROVIDED,
HOWEVER, that if a Bankruptcy Default shall have occurred, the unpaid
balance of the Credit Obligations shall automatically become
immediately due and payable.
8.2.4. ENFORCEMENT OF PAYMENT; CREDIT SECURITY; SETOFF. The
Agent on behalf of the Lenders may (and upon written request of the
Required Lenders the Agent shall) proceed to enforce payment of the
Credit Obligations in such manner as it may elect, to cancel, or
instruct other Letter of Credit Issuers to cancel, any outstanding
Letters of Credit which permit the cancellation thereof and to realize
upon any and all rights in the Credit Security. The Lenders may offset
and apply toward the payment of the Credit Obligations (and/or toward
the curing of any Event of Default) any Indebtedness from the Lenders
to the respective Obligors, including any Indebtedness represented by
deposits in any account maintained with the Lenders, regardless of the
adequacy of any security for the Credit Obligations. The Lenders shall
have no duty to determine the adequacy of any such security in
connection with any such offset.
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8.2.5. CUMULATIVE REMEDIES. To the extent not prohibited by
applicable law which cannot be waived, all of the Lenders' rights
hereunder and under each other Credit Document shall be cumulative.
8.2.6. EXERCISE OF CALL RIGHT. The Company shall, upon the
reasonable request of the Agent, exercise its rights (i) to purchase
the share of stock of AmeriPath Kentucky, Inc. owned by James E.
Dunnington, M.D. pursuant to Section 3 of the Shareholders' Agreement
among AmeriPath Kentucky, Inc., James E. Dunnington, M.D. and the
Company, (ii) to purchase the shares of stock of AmeriPath Pittsburgh,
P.C. owned by Alan Levin, M.D. pursuant to the Shareholders Agreement
among AmeriPath Pittsburgh, P.C., Alan Levin, M.D. and the Company,
(iii) to purchase the shares of stock of AmeriPath Consulting Pathology
Services, P.A. owned by H. Michael Jones, M.D. pursuant tot he
Shareholders' Agreement among AmeriPath Consulting Pathology Services,
P.A., H. Michael Jones, M.D. and the Company, (iv) to purchase the
shares of consulting Pathologists of Pennsylvania, P.C. owned by Alan
Levin, M.D. pursuant to the Shareholders' Agreement among Consulting
Pathologists of Pennsylvania, P.C., Alan Levin, M.D. and the Company,
(v) to purchase the shares of stock of AmeriPath Milwaukee, S.C. owned
by Winston N. Hollister, M.D. pursuant to the Shareholders' Agreement
among AmeriPath Milwaukee, S.C., Winston N. Hollister, M.D. and the
Company, and (vi) to purchase the shares of stock of JJ Humes M.D. and
Associates/AmeriPath, P.C. owned by Alan Levin, M.D. pursuant to the
Shareholders' Agreement among JJ Humes M.D. and Associates/AmeriPath,
P.C., Alan Levin, M.D. and the Company
8.3. ANNULMENT OF DEFAULTS. Any Default or Event of Default shall be
deemed not to exist or to have occurred for any purpose of the Credit Documents
if the Required Lenders or the Agent (with the consent of the Required Lenders)
shall have waived such Default or Event of Default in writing, stated in writing
that the same has been cured to such Lenders' reasonable satisfaction or entered
into an amendment to this Agreement which by its express terms cures such Event
of Default, at which time such Event of Default shall no longer be deemed to
exist or to have continued. No such action by the Lenders or the Agent shall
extend to or affect any subsequent Event of Default or impair any rights of the
Lenders upon the occurrence thereof. The making of any extension of credit
during the existence of any Default or Event of Default shall not constitute a
waiver thereof.
8.4. WAIVERS. To the extent that such waiver is not prohibited by the
provisions of applicable law that cannot be waived, each of the Borrower and the
other Obligors waives:
(a) all presentments, demands for performance, notices of
nonperformance (except to the extent required by this Agreement or any
other Credit Document), protests, notices of protest and notices of
dishonor;
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(b) any requirement of diligence or promptness on the part of
any Lender in the enforcement of its rights under this Agreement, the
Notes or any other Credit Document;
(c) any and all notices of every kind and description which
may be required to be given by any statute or rule of law; and
(d) any defense (other than indefeasible payment in full),
which it may now or hereafter have with respect to its liability under
this Agreement, the Notes or any other Credit Document or with respect
to the Credit Obligations.
9. GUARANTEES.
9.1. GUARANTEES OF CREDIT OBLIGATIONS. Each Guarantor unconditionally
jointly and severally guarantees that the Credit Obligations will be performed
and will be paid in full in immediately available funds when due and payable,
whether at the stated or accelerated maturity thereof or otherwise, this
guarantee being a guarantee of payment and not of collectability and being
absolute and in no way conditional or contingent. In the event any part of the
Credit Obligations shall not have been so paid in full when due and payable,
each Guarantor will, immediately upon notice by the Agent or, without notice,
immediately upon the occurrence of a Bankruptcy Default, pay or cause to be paid
to the Agent for the account of each Lender in accordance with the Lenders'
respective Aggregate Percentage Interests in the Loan the amount of such Credit
Obligations which are then due and payable and unpaid. The obligations of each
Guarantor hereunder shall not be affected by the invalidity, unenforceability or
irrecoverability of any of the Credit Obligations as against any other Obligor,
any other guarantor thereof or any other Person. For purposes hereof, the Credit
Obligations shall be due and payable when and as the same shall be due and
payable under the terms of this Agreement or any other Credit Document
notwithstanding the fact that the collection or enforcement thereof may be
stayed or enjoined under the Bankruptcy Code or other applicable law.
9.2. CONTINUING OBLIGATION. Each Guarantor acknowledges that the
Lenders and the Agent have entered into this Agreement (and, to the extent that
the Lenders or the Agent may enter into any future Credit Document, will have
entered into such agreement) in reliance on this Section 9 being a continuing
irrevocable agreement, and such Guarantor agrees that its guarantee may not be
revoked in whole or in part. The obligations of the Guarantors hereunder shall
terminate when the commitment of the Lenders to extend credit under this
Agreement shall have terminated and all of the Credit Obligations have been
indefeasibly paid in full in immediately available funds and discharged;
PROVIDED, HOWEVER, that:
(a) if a claim is made upon the Lenders at any time for
repayment or recovery of any amounts or any property received by the
Lenders from any source on account of any of the Credit Obligations and
the Lenders repay or return any amounts or
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property so received (including interest thereon to the extent required
to be paid by the Lenders) or
(b) if the Lenders become liable for any part of such claim by
reason of (i) any judgment or order of any court or administrative
authority having competent jurisdiction, or (ii) any settlement or
compromise of any such claim,
then the Guarantors shall remain liable under this Agreement for the amounts so
repaid or property so returned or the amounts for which the Lenders become
liable (such amounts being deemed part of the Credit Obligations) to the same
extent as if such amounts or property had never been received by the Lenders,
notwithstanding any termination hereof or the cancellation of any instrument or
agreement evidencing any of the Credit Obligations. Not later than five days
after receipt of notice from the Agent, the Guarantors shall jointly and
severally pay to the Agent an amount equal to the amount of such repayment or
return for which the Lenders have so become liable. Payments hereunder by a
Guarantor may be required by the Agent on any number of occasions.
9.3. WAIVERS WITH RESPECT TO CREDIT OBLIGATIONS. Except to the extent
expressly required by this Agreement or any other Credit Document, each
Guarantor waives, to the fullest extent permitted by the provisions of
applicable law, all of the following (including all defenses, counterclaims and
other rights of any nature based upon any of the following):
(a) presentment, demand for payment and protest of nonpayment
of any of the Credit Obligations, and notice of protest, dishonor or
nonperformance;
(b) notice of acceptance of this guarantee and notice that
credit has been extended in reliance on the Guarantor's guarantee of
the Credit Obligations;
(c) notice of any Default or of any inability to enforce
performance of the obligations of the Company or any other Person with
respect to any Credit Document, or notice of any acceleration of
maturity of any Credit Obligations;
(d) demand for performance or observance of, and any
enforcement of any provision of, the Credit Obligations, this Agreement
or any other Credit Document or any pursuit or exhaustion of rights or
remedies with respect to any Credit Security or against the Company or
any other Person in respect of the Credit Obligations or any
requirement of diligence or promptness on the part of the Agent or the
Lenders in connection with any of the foregoing;
(e) any act or omission on the part of the Agent or the
Lenders which may impair or prejudice the rights of the Guarantor,
including rights to obtain subrogation, exoneration, contribution,
indemnification or any other reimbursement from the Company or any
other Person, or otherwise operate as a deemed release or discharge;
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(f) failure or delay to perfect or continue the perfection of
any security interest in any Credit Security or any other action which
harms or impairs the value of, or any failure to preserve or protect
the value of, any Credit Security;
(g) any statute of limitations or any statute or rule of law
which provides that the obligation of a surety must be neither larger
in amount nor in other respects more burdensome than the obligation of
the principal;
(h) any "single action" or "anti-deficiency" law which would
otherwise prevent the Lenders from bringing any action, including any
claim for a deficiency, against the Guarantor before or after the
Agent's or the Lenders' commencement or completion of any foreclosure
action, whether judicially, by exercise of power of sale or otherwise,
or any other law which would otherwise require any election of remedies
by the Agent or the Lenders;
(i) all demands and notices of every kind with respect to the
foregoing; and
(j) to the extent not referred to above, all defenses (other
than payment) which the Company may now or hereafter have to the
payment of the Credit Obligations, together with all suretyship
defenses, which could otherwise be asserted by such Guarantor.
Each Guarantor represents that it has obtained the advice of counsel as to the
extent to which suretyship and other defenses may be available to it with
respect to its obligations hereunder in the absence of the waivers contained in
this Section 9.3.
No delay or omission on the part of the Agent or the Lenders in
exercising any right under this Agreement or any other Credit Document or under
any guarantee of the Credit Obligations or with respect to the Credit Security
shall operate as a waiver or relinquishment of such right. No action which the
Agent or the Lenders or the Company may take or refrain from taking with respect
to the Credit Obligations, including any amendments thereto or modifications
thereof or waivers with respect thereto, shall affect the provisions of this
Agreement or the obligations of the Guarantor hereunder. None of the Lenders' or
the Agent's rights shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of any Obligor, or by any noncompliance by the
Company with the terms, provisions and covenants of this Agreement, regardless
of any knowledge thereof which the Agent or the Lenders may have or otherwise be
charged with.
9.4. LENDERS' POWER TO WAIVE, ETC. Each Guarantor grants to the Lenders
full power in their discretion, without notice to or consent of such Guarantor,
such notice and consent being expressly waived to the fullest extent permitted
by applicable law, and without in any way affecting the liability of the
Guarantor under its guarantee hereunder:
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(a) To waive compliance with, and any Default under, and to
consent to any amendment to or modification or termination of any terms
or provisions of, or to give any waiver in respect of, this Agreement,
any other Credit Document, the Credit Security, the Credit Obligations
or any guarantee thereof (each as from time to time in effect);
(b) To grant any extensions of the Credit Obligations (for any
duration), and any other indulgence with respect thereto, and to effect
any total or partial release (by operation of law or otherwise),
discharge, compromise or settlement with respect to the obligations of
the Obligors or any other Person in respect of the Credit Obligations,
whether or not rights against the Guarantor under this Agreement are
reserved in connection therewith;
(c) To take security in any form for the Credit Obligations,
and to consent to the addition to or the substitution, exchange,
release or other disposition of, or to deal in any other manner with,
any part of any property contained in the Credit Security whether or
not the property, if any, received upon the exercise of such power
shall be of a character or value the same as or different from the
character or value of any property disposed of, and to obtain, modify
or release any present or future guarantees of the Credit Obligations
and to proceed against any of the Credit Security or such guarantees in
any order;
(e) To collect or liquidate or realize upon any of the Credit
Obligations or the Credit Security in any manner or to refrain from
collecting or liquidating or realizing upon any of the Credit
Obligations or the Credit Security; and
(e) To extend credit under this Agreement, any other Credit
Document or otherwise in such amount as the Lenders may determine,
including increasing the amount of credit and the interest rate and
fees with respect thereto, even though the condition of the Obligors
(financial or otherwise on an individual or Consolidated basis) may
have deteriorated since the date hereof.
9.5. INFORMATION REGARDING THE BORROWER, ETC. Each Guarantor has made
such investigation as it deems desirable of the risks undertaken by it in
entering into this Agreement and is fully satisfied that it understands all such
risks. Each Guarantor waives any obligation which may now or hereafter exist on
the part of the Agent or the Lenders to inform it of the risks being undertaken
by entering into this Agreement or of any changes in such risks and, from and
after the date hereof, each Guarantor undertakes to keep itself informed of such
risks and any changes therein. Each Guarantor expressly waives any duty which
may now or hereafter exist on the part of the Agent or the Lenders to disclose
to the Guarantor any matter related to the business, operations, character,
collateral, credit, condition (financial or otherwise), income or prospects of
the Borrower or its Affiliates or their properties or management, whether now or
hereafter known by the Agent or the Lenders. Each Guarantor represents, warrants
and agrees that it assumes sole responsibility
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for obtaining from the Borrower all information concerning this Agreement and
all other Credit Documents and all other information as to the Borrower and its
Affiliates or their properties or management as such Guarantor deems necessary
or desirable.
9.6. CERTAIN GUARANTOR REPRESENTATIONS. Each Guarantor represents that:
(a) it is in its best interest and in pursuit of the purposes
for which it was organized as an integral part of the business
conducted and proposed to be conducted by the Borrower and its
Subsidiaries, and reasonably necessary and convenient in connection
with the conduct of the business conducted and proposed to be conducted
by them, to induce the Lenders to enter into this Agreement and to
extend credit to the Borrower by making the Guarantees contemplated by
this Section 9,
(b) the credit available hereunder will directly or indirectly
inure to its benefit,
(c) by virtue of the foregoing it is receiving at least
reasonably equivalent value from the Lenders for its Guarantee,
(d) it will not be rendered insolvent as a result of entering
into this Agreement,
(e) after giving effect to the transactions contemplated by
this Agreement, it will have assets having a fair saleable value in
excess of the amount required to pay its probable liability on its
existing debts as they become absolute and matured,
(f) it has, and will have, access to adequate capital for the
conduct of its business,
(g) it has the ability to pay its debts from time to time
incurred in connection with its business as such debts mature, and
(h) it has been advised by the Agent that the Lenders are
unwilling to enter into this Agreement unless the Guarantees
contemplated by this Section 9 are given by it.
9.7. SUBROGATION. Each Guarantor agrees that, until the Credit
Obligations are paid in full, it will not exercise any right of reimbursement,
subrogation, contribution, offset or other claims against the other Obligors
arising by contract or operation of law in connection with any payment made or
required to be made by such Guarantor under this Agreement. After the payment in
full of the Credit Obligations, each Guarantor shall be entitled to exercise
against the Borrower and the other Obligors all such rights of reimbursement,
subrogation, contribution and offset, and all such other claims, to the fullest
extent permitted by law.
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9.8. SUBORDINATION. Each Guarantor covenants and agrees that, after the
occurrence of an Event of Default, all Indebtedness, claims and liabilities then
or thereafter owing by the Borrower or any other Obligor to such Guarantor
whether arising hereunder or otherwise are subordinated to the prior payment in
full of the Credit Obligations and are so subordinated as a claim against such
Obligor or any of its assets, whether such claim be in the ordinary course of
business or in the event of voluntary or involuntary liquidation, dissolution,
insolvency or bankruptcy, so that no payment with respect to any such
Indebtedness, claim or liability will be made or received while any Event of
Default exists.
9.9. FURTHER ASSURANCES. Each Guarantor will, promptly upon the request
of the Agent from time to time, execute, acknowledge and deliver, and file and
record, all such instruments, and take all such action, as the Agent deems
necessary or advisable to carry out the intent and purposes of this Section 9.
10. SECURITY.
10.1. CREDIT SECURITY. As security for the payment and performance of
the Credit Obligations, each Obligor mortgages, pledges and collaterally grants
and assigns to the Agent for the benefit of the Lenders and the holders from
time to time of any Credit Obligation, and creates a security interest in favor
of the Agent for the benefit of the Lenders and such holders in, all of such
Obligor's right, title and interest in and to (but none of its obligations or
liabilities with respect to) the items and types of present and future property
described in Sections 10.1.1 through 10.1.15 (subject, however, to Section
10.1.16), whether now owned or hereafter acquired, all of which shall be
included in the term "CREDIT SECURITY":
10.1.1. TANGIBLE PERSONAL PROPERTY. All goods, machinery,
equipment, inventory and all other tangible personal property of any
nature whatsoever, wherever located, including raw materials, work in
process, finished parts and products, supplies, spare parts,
replacement parts, merchandise for resale, computers, tapes, disks and
computer equipment.
10.1.2. RIGHTS TO PAYMENT OF MONEY. All rights to receive the
payment of money, including accounts (as defined in the UCC) and
receivables, rights to receive the payment of money under contracts,
franchises, licenses, permits, subscriptions or other agreements
(whether or not earned by performance), and rights to receive payments
from any other source (all such rights, other than Financing Debt,
being referred to herein as "ACCOUNTS").
10.1.3. INTANGIBLES. All of the following (to the extent not
included in Section 10.1.2): (a) contracts (including the Management
Services Agreements), franchises, licenses, permits, subscriptions and
other agreements and all rights thereunder; (b) rights granted by
others which permit the Obligor to sell or market items of personal
property; (c) United States and foreign common law and statutory
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copyrights and rights in literary property and rights and licenses
thereunder; (d) trade names, United States and foreign trademarks,
service marks, any registrations thereof and any related good will; (e)
United States and foreign patents and patent applications; (f) computer
software, designs, models, know-how, trade secrets, rights in
proprietary information, formulae, customer lists, backlog, orders,
subscriptions, royalties, catalogues, sales material, documents, good
will, inventions and processes; (g) judgments, causes in action and
claims, whether or not inchoate, and (h) all other general intangibles
(as defined in the UCC) and intangible property and all rights
thereunder.
10.1.4. PLEDGED STOCK. (a) All shares of capital stock or
other evidence of beneficial interest in any corporation, business
trust or limited liability company, (b) all limited partnership
interests in any limited partnership, (c) all general partnership
interests in any general partnership, (d) all joint venture interests
in any joint venture and (e) all options, warrants and similar rights
to acquire such capital stock or such interests. All such capital
stock, interests, options, warrants and other rights are collectively
referred to as the "PLEDGED STOCK".
10.1.5. PLEDGED RIGHTS. All rights to receive profits or
surplus of, or other Distributions (including income, return of capital
and liquidating distributions) from, any partnership, limited liability
company or joint venture, including any distributions by any such
Person to partners or joint venturers. All such rights are collectively
referred to as the "PLEDGED RIGHTS".
10.1.6. PLEDGED INDEBTEDNESS. All Financing Debt from time to
time owing to such Obligor from any Person (all such Financing Debt
being referred to as the "PLEDGED INDEBTEDNESS").
10.1.7. CHATTEL PAPER, INSTRUMENTS AND DOCUMENTS. All chattel
paper (as defined in the UCC), non-negotiable instruments, negotiable
instruments (as defined in the UCC) and documents (as defined in the
UCC).
10.1.8. LEASES. All leases of personal property, whether the
Obligor is the lessor or the lessee thereunder.
10.1.9. DEPOSIT ACCOUNTS. All general or special deposit
accounts, including any demand, time, savings, passbook or similar
account maintained by the Obligor with any bank, trust company, savings
and loan association, credit union or similar organization, and all
money, cash and cash equivalents of the Obligor, whether or not
deposited in any such deposit account.
10.1.10. COLLATERAL. All collateral granted by third party
obligors to, or held by, the Obligor with respect to the Accounts,
Pledged Securities, chattel paper, instruments, leases and other items
of Credit Security.
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10.1.11. BOOKS AND RECORDS. All books and records, including
books of account and ledgers of every kind and nature, all
electronically recorded data (including all computer programs, disks,
tapes, electronic data processing media and software used in connection
with maintaining the Obligor's books and records), all files and
correspondence and all receptacles and containers for the foregoing.
10.1.12. INSURANCE. All insurance policies which insure
against any loss or damage to any other Credit Security and any key
executive life insurance policies.
10.1.13. INVESTMENT PROPERTY. All of the following (to the
extent not included in Sections 10.1.1 through 10.1.12): (i)
securities, whether certificated or uncertificated; (ii) security
entitlements; (iii) securities accounts; (iv) commodities contracts;
and (v) commodities accounts.
10.1.14. ALL OTHER PROPERTY. All other property, assets and
items of value of every kind and nature, tangible, or intangible,
absolute or contingent, legal or equitable, including the rights of any
Obligors under the Material Agreements set forth in Exhibit 7.2.2.
10.1.15. PROCEEDS AND PRODUCTS. All proceeds, including
insurance proceeds, and products of the items of Credit Security
described or referred to in Sections 10.1.1 through 10.1.14 and, to the
extent not included in the foregoing, all Distributions with respect to
the Pledged Securities.
10.1.16. EXCLUDED PROPERTY. Notwithstanding Sections 10.1.1
through 10.1.15, the payment and performance of the Credit Obligations
shall not be secured by:
(a) any rights arising under, and any property, tangible or
intangible, acquired under, any agreement which validly prohibits the
creation by such Obligor of a security interest in such rights or
property;
(b) any rights or property to the extent that any valid and
enforceable law or regulation applicable to such rights or property
prohibits the creation of a security interest therein;
(c) more than 66% of the outstanding stock or other equity in
any foreign Subsidiary; or
(d) the items described in Section 10.2 (but only in the event
and to the extent the Agent has not specified that such items be
included in the Credit Security pursuant thereto).
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In addition, in the event an Obligor disposes of assets to third
parties in a transaction permitted by Section 6.11, such assets, but not the
proceeds or products thereof, shall automatically be released from the Lien of
the Credit Security.
10.2. ADDITIONAL CREDIT SECURITY. As additional Credit Security, each
Obligor covenants that it will mortgage, pledge and collaterally grant and
assign to the Agent for the benefit of the Lenders and the holders from time to
time of any Credit Obligation, and will create a security interest in favor of
the Agent for the benefit of the Lenders and such holders in, all of its right,
title and interest in and to (but none of its obligations with respect to) such
of the following present or future items as the Agent may from time to time
specify by notice to the Borrower, whether now owned or hereafter acquired, and
the proceeds and products thereof, except to the extent consisting of rights or
property of the types referred to in Section 10.1.16(a) through (d), subject
only to Liens permitted by Section 10.3.4, all of which shall thereupon be
included in the term "CREDIT SECURITY".
10.2.1. REAL PROPERTY. All real property and immovable
property and fixtures, leasehold interests and easements, owned by any
Obligor, wherever located, together with any and all estates and
interests of the Obligor therein, including lands, buildings, stores,
manufacturing facilities and other structures erected on such property,
fixed plant, fixed equipment and all permits, rights, licenses,
benefits and other interests of any kind or nature whatsoever in
respect of such real and immovable property.
10.2.2. MOTOR VEHICLES AND AIRCRAFT. All motor vehicles and
aircraft.
10.3. REPRESENTATIONS, WARRANTIES AND COVENANTS WITH RESPECT TO CREDIT
SECURITY. Each Obligor represents, warrants and covenants that:
10.3.1. PLEDGED STOCK. All shares of capital stock, limited
partnership interests and similar securities included in the Pledged
Stock are and shall be at all times duly authorized, validly issued,
fully paid and (in the case of capital stock and limited partnership
interests) nonassessable. Each Obligor will deliver to the Agent
certificates representing the Pledged Stock, registered, if the Agent
so requests, in the name of the Agent or its nominee, as pledgee, or
accompanied by a stock transfer power executed in blank and, if the
Agent so requests, with the signature guaranteed, all in form and
manner satisfactory to the Agent. Pledged Stock that is not evidenced
by a certificate will be registered in the Agent's name as pledgee on
the issuer's records, all in form and substance satisfactory to the
Agent. The Agent may at any time following and during the continuation
of the occurrence of an Event of Default (but shall not be obligated
to) transfer into its name or the name of its nominee, as pledgee, any
Pledged Securities. In the event the Pledged Stock includes any Margin
Stock, the Obligors will furnish to the Lenders Federal Reserve Form
U-1 and take such other action as the Agent may request to ensure
compliance with applicable laws.
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10.3.2. ACCOUNTS AND PLEDGED INDEBTEDNESS. All Accounts and
Pledged Indebtedness owed by any Affiliate of the Obligors shall be on
open account and shall not be evidenced by any note or other
instrument; PROVIDED, HOWEVER, that all Pledged Indebtedness owed by
any Affiliate of any Obligor shall, if the Agent requests, be evidenced
by a promissory note, which note shall be delivered to the Agent after
having been endorsed in blank. Each Obligor will, immediately upon the
receipt thereof, deliver to the Agent any promissory note or similar
instrument representing any Pledged Indebtedness, after having endorsed
such promissory note or instrument in blank.
10.3.3. NO LIENS OR RESTRICTIONS ON TRANSFER OR CHANGE OF
CONTROL. All Credit Security shall be free and clear of any Liens and
restrictions on the transfer thereof, including contractual provisions
which prohibit the assignment of rights under contracts, except for
Liens permitted by Section 6.8 and except for restrictions on transfer
under the Securities Act and under applicable state securities laws.
Without limiting the generality of the foregoing, each Obligor will
exclude from contracts to which it becomes a party after the date
hereof provisions that would prevent such Obligor from creating a
security interest in such contract or any property acquired thereunder
as contemplated hereby. None of the Pledged Stock is subject to any
option to purchase or similar rights of any Person. Except with the
written consent of the Agent, no Obligor is, and none of them will be,
party to or bound by any agreement, instrument, deed or lease that
restricts the change of control or ownership, or the creation of a
security interest in the ownership, of the Company or any of its
Subsidiaries.
10.3.4. LOCATION OF CREDIT SECURITY. Each Obligor shall at all
times keep its records concerning the Accounts at its chief executive
office and principal place of business, which office and place of
business shall be set forth in Exhibit 7.1, or, so long as such Obligor
shall have taken all steps reasonably necessary to perfect the Lenders'
security interest in the Credit Security with respect to such new
address, at such other address as such Obligor may specify by notice
actually received by the Agent not less than 10 Banking Days prior to
such change of address. No Obligor shall at any time keep tangible
personal property of the type referred to in Section 10.1.1 in any
jurisdiction other than the jurisdictions specified in Exhibit 7.1, or,
so long as such Obligor shall have taken all steps reasonably necessary
to perfect the Lenders' security interest in the Credit Security with
respect to such other jurisdiction, other jurisdictions as such Obligor
may specify by notice actually received by the Agent not less than 10
days prior to moving such tangible personal property into such other
jurisdiction.
10.3.5. TRADE NAMES. No Obligor will adopt or do business
under any name other than its name or names designated in Exhibit 7.1
or any other name specified by notice actually received by the Agent
not less than 10 days prior to the conduct of
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business under such additional name. Since its incorporation, no
Obligor has changed its corporate name or adopted or conducted business
under any trade name other than a name specified on Exhibit 7.1.
10.3.6. INSURANCE. Each insurance policy included in, or
insuring against loss or damage to, the Credit Security shall name the
Agent as additional insured party or as loss payee. No such insurance
policy shall be cancelable or subject to termination or reduction in
amount or scope of coverage until after at least 30 days' prior written
notice from the insurer to the Agent. At least 10 days prior to the
expiration of any such insurance policy for any reason, each Obligor
shall furnish the Agent with a renewal or replacement policy and
evidence of payment of the premiums therefor when due. Each Obligor
grants to the Agent full power and authority as its attorney-in-fact,
effective upon notice to such Obligor after the occurrence of an Event
of Default to obtain, cancel, transfer, adjust and settle any such
insurance policy and to endorse any drafts thereon. Any amounts that
the Agent receives under any such policy (including return of unearned
premiums) insuring against loss or damage to the Credit Security prior
to the occurrence of an Event of Default shall be delivered to the
Obligors for the replacement, restoration and maintenance of the Credit
Security. Any such amounts that the Agent receives after the occurrence
of an Event of Default shall, at the Agent's option, be applied to
payment of the Credit Obligations or to the replacement, restoration
and maintenance of the Credit Security. If any Obligor fails to provide
insurance as required by this Agreement, the Agent may, at its option,
purchase such insurance, and such Obligor will on demand pay to the
Agent the amount of any payments made by the Agent or the Lenders for
such purpose, together with interest on the amounts so disbursed from
five Banking Days after the date demanded until payment in full thereof
at the Overdue Reimbursement Rate.
10.3.7. MODIFICATIONS TO CREDIT SECURITY. Except with the
prior written consent of the Required Lenders, no Obligor shall amend
or modify, or waive any of its rights under or with respect to, any
material Accounts, general intangibles, Pledged Securities or leases if
the effect of such amendment, modification or waiver would be to reduce
the amount of any such items or to extend the time of payment thereof,
to waive any default by any other party thereto, or to waive or impair
any remedies of the Obligors or the Lenders under or with respect to
any such Accounts, general intangibles, Pledged Securities or leases,
in each case other than consistent with past practice in the ordinary
course of business and on an arm's-length basis. Each Obligor will
promptly give the Agent written notice of any request by any Person for
any material credit or adjustment with respect to any Account, general
intangible, Pledged Securities or leases.
10.3.8. DELIVERY OF DOCUMENTS. At the Agent's request, each
Obligor shall deliver to the Agent, promptly upon such Obligor's
receipt thereof, copies of any agreements, instruments, documents or
invoices comprising or relating to the Credit
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Security. Pending such request, such Obligor shall keep such items at
its chief executive office and principal place of business (as
specified pursuant to Section 10.3.5).
10.3.9. PERFECTION OF CREDIT SECURITY. Upon the Agent's
request from time to time, the Obligors will execute and deliver, and
file and record in the proper filing and recording places, all such
instruments, including financing statements, collateral assignments of
copyrights, trademarks and patents, mortgages or deeds of trust, and
notations on certificates of title and will take all such other action,
as the Agent deems advisable for confirming to it the Credit Security
or to carry out any other purposes of this Agreement or any other
Credit Document.
10.4. ADMINISTRATION OF CREDIT SECURITY. The Credit Security shall be
administered as follows, and if an Event of Default shall have occurred, Section
10.5 shall also apply.
10.4.1. USE OF CREDIT SECURITY. Until the Agent provides
written notice to the contrary, each Obligor may use, commingle and
dispose of any part of the Credit Security in the ordinary course of
its business, all subject to Section 6.11.
10.4.2. DEPOSITS; ACCOUNTS.
(a) Unless the Agent shall otherwise consent in writing, which
consent shall not be unreasonably withheld, each Obligor shall keep all
its bank and deposit accounts only with the Agent, other Lenders,
financial institutions designated on EXHIBIT 10.4.2 or any financial
institution approved by the Agent.
(b) To the extent specified by prior written notice from the
Agent, whether prior to or after the occurrence of an Event of Default,
all sums collected or received and all property recovered or possessed
by any Obligor in connection with any Credit Security shall be received
and held by such Obligor in trust for and on the Lenders' behalf, shall
be segregated from the assets and funds of such Obligor, and shall be
delivered to the Agent for the benefit of the Lenders.
(c) In addition, the Obligors shall direct that all Accounts
payable by Medicare or Medicaid and all Accounts payable in an amount
greater than $50 be paid directly into a locked box account maintained
with any financial institution designated on Exhibit 10.4.2 or such
other financial institution as approved by the Agent (which, in the
event such financial institution is not a Lender, must be party to an
Assignment Agreement in form and substance satisfactory to the Agent).
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10.4.3. PLEDGED SECURITIES.
(a) DISTRIBUTIONS. (i) Until an Event of Default shall occur,
and thereafter once such Event of Default has ceased to exist,
the respective Obligors shall be entitled, to the extent
permitted by the Credit Documents, to receive all
Distributions on or with respect to the Pledged Securities
(other than Distributions constituting additional Pledged
Securities). All Distributions constituting additional Pledged
Securities will be retained by the Agent (or if received by
any Obligor shall be held by such Person in trust and shall be
immediately delivered by such Person to the Agent in the
original form received, endorsed in blank) and held by the
Agent as part of the Credit Security.
(ii) If an Event of Default shall have occurred and
be continuing, all Distributions on or with respect to the
Pledged Securities shall be retained by the Agent (or if
received by any Obligor shall be held by such Person in trust
and shall be immediately delivered by it to the Agent in the
original form received, endorsed in blank) and held by the
Agent as part of the Credit Security or applied by the Agent
to the payment of the Credit Obligations in accordance with
Section 10.5.6.
(b) VOTING. (i) Until an Event of Default shall occur, the
respective Obligors shall be entitled to vote or consent with
respect to the Pledged Securities in any manner not
inconsistent with the terms of any Credit Document, and the
Agent will, if so requested, execute appropriate revocable
proxies therefor.
(ii) If an Event of Default shall have occurred, if
and to the extent that the Agent shall so notify in writing
the Obligor pledging the Pledged Securities in question, only
the Agent shall be entitled to vote or consent or take any
other action with respect to the Pledged Securities (and any
Obligor will, if so requested, execute or cause to be executed
appropriate proxies therefor).
10.5. RIGHT TO REALIZE UPON CREDIT SECURITY. Except to the extent
prohibited by applicable law that cannot be waived, this Section 10.5 shall
govern the Lenders' right to realize upon the Credit Security if any Event of
Default shall have occurred and be continuing. The provisions of this Section
10.5 are in addition to any rights and remedies available at law or in equity
and in addition to the provisions of any other Credit Document. In the case of a
conflict between this Section 10.5 and any other Credit Document, this Section
10.5 shall govern. If any Event of Default shall have occurred and be
continuing:
10.5.1. ASSEMBLY OF CREDIT SECURITY; RECEIVER. Each of the
Obligors shall, upon the Agent's request, assemble the Credit Security
and otherwise make it available to the Agent. The Agent may have a
receiver appointed for all or any
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portion of the Obligor's assets or business which constitutes the
Credit Security in order to manage, protect, preserve, sell and
otherwise dispose of all or any portion of the Credit Security in
accordance with the terms of the Credit Documents, to continue the
operations of the Obligors and to collect all revenues and profits
therefrom to be applied to the payment of the Credit Obligations,
including the compensation and expenses of such receiver.
10.5.2. GENERAL AUTHORITY. To the extent specified in written
notice from the Agent to the Obligor in question, each Obligor grants
the Agent full and exclusive power and authority, subject to the other
terms hereof and applicable law, to take any of the following actions
(for the sole benefit of the Agent on behalf of the Lenders and the
holders from time to time of any Credit Obligations, but at the
Obligor's expense):
(a) To ask for, demand, take, collect, sue for and receive all
payments in respect of any Accounts, general intangibles, Pledged
Securities or leases which the Obligor could otherwise ask for, demand,
take, collect, sue for and receive for its own use.
(b) To extend the time of payment of any Accounts, general
intangibles, Pledged Securities or leases and to make any allowance or
other adjustment with respect thereto.
(c) To settle, compromise, prosecute or defend any action or
proceeding with respect to any Accounts, general intangibles, Pledged
Securities or leases and to enforce all rights and remedies thereunder
which the Obligor could otherwise enforce.
(d) To enforce the payment of any Accounts, general
intangibles, Pledged Securities or leases, either in the name of the
Obligor or in its own name, and to endorse the name of the Obligor on
all checks, drafts, money orders and other instruments tendered to or
received in payment of any Credit Security.
(e) To notify the third party payor with respect to any
Accounts, general intangibles, Pledged Securities or leases of the
existence of the security interest created hereby and to cause all
payments in respect thereof thereafter to be made directly to the
Agent; PROVIDED, HOWEVER, that whether or not the Agent shall have so
notified such payor, the Obligors will at their expense render all
reasonable assistance to the Agent in collecting such items and in
enforcing claims thereon.
(f) To sell, transfer, assign or otherwise deal in or with any
Credit Security or the proceeds thereof, as fully as any Obligor
otherwise could do.
10.5.3. MARSHALING, ETC. Neither the Agent nor the Lenders
shall be required to make any demand upon, or pursue or exhaust any of
their rights or
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remedies against, any Obligor or any other guarantor, pledgor or any
other Person with respect to the payment of the Credit Obligations or
to pursue or exhaust any of their rights or remedies with respect to
any collateral therefor or any direct or indirect guarantee thereof.
Neither the Agent nor the Lenders shall be required to marshal the
Credit Security or any guarantee of the Credit Obligations or to resort
to the Credit Security or any such guarantee in any particular order,
and all of its and their rights hereunder or under any other Credit
Document shall be cumulative. To the extent it may lawfully do so, each
of the Obligors absolutely and irrevocably waives and relinquishes the
benefit and advantage of, and covenants not to assert against the Agent
or the Lenders, any valuation, stay, appraisement, extension,
redemption or similar laws now or hereafter existing which, but for
this provision, might be applicable to the sale of any Credit Security
made under the judgment, order or decree of any court, or privately
under the power of sale conferred by this Agreement, or otherwise.
Without limiting the generality of the foregoing, each of the Obligors
(a) agrees that it will not invoke or utilize any law which might
prevent, cause a delay in or otherwise impede the enforcement of the
rights of the Agent or any Lender in the Credit Security, (b) waives
all such laws, and (c) agrees that it will not invoke or raise as a
defense to any enforcement by the Agent or any Lender of any rights and
remedies relating to the Credit Security or the Credit Obligations any
legal or contractual requirement with which the Agent or any Lender may
have in good faith failed to comply. In addition, each of the Obligors
waives any right to prior notice (except to the extent expressly
required by this Agreement) or judicial hearing in connection with
foreclosure on or disposition of any Credit Security, including any
such right which such Obligor would otherwise have under the
Constitution of the United States of America, any state or territory
thereof or any other jurisdiction.
10.5.4. SALES OF CREDIT SECURITY. All or any part of the
Credit Security may be sold for cash or other value in any number of
lots at public or private sale, without demand, advertisement or
notice; provided, HOWEVER, that unless the Credit Security to be sold
threatens to decline speedily in value or is of a type customarily sold
on a recognized market, the Agent shall give the Obligor granting the
security interest in such Credit Security 10 days' prior written notice
of the time and place of any public sale, or the time after which a
private sale may be made, which notice each of the Obligors and the
Lenders hereby agrees to be reasonable. At any sale or sales of Credit
Security, any Lender or any of its respective officers acting on its
behalf, or such Lender's assigns, may bid for and purchase all or any
part of the property and rights so sold, may use all or any portion of
the Credit Obligations owed to such Lender as payment for the property
or rights so purchased, and upon compliance with the terms of such sale
may hold and dispose of such property and rights without further
accountability to the respective Obligor, except for the proceeds of
such sale or sales pursuant to Section 10.5.6. The Obligors acknowledge
that any such sale will be made by the Agent on an "as is" basis with
disclaimers of all warranties, whether express or implied. The
respective Obligors will execute and deliver or
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cause to be executed and delivered such instruments, documents,
assignments, waivers, certificates and affidavits, will supply or cause
to be supplied such further information and will take such further
action as the Agent shall request in connection with any such sale.
10.5.5. SALE WITHOUT REGISTRATION. If, at any time when the
Agent shall determine to exercise its rights hereunder to sell all or
part of the securities included in the Credit Security, the securities
in question shall not be effectively registered under the Securities
Act (or other applicable law), the Agent may, in its sole discretion,
sell such securities by private or other sale not requiring such
registration in such manner and in such circumstances as the Agent may
deem necessary or advisable in order that such sale may be effected in
accordance with applicable securities laws without such registration
and the related delays, uncertainty and expense. Without limiting the
generality of the foregoing, in any event the Agent may, in its sole
discretion, (a) approach and negotiate with a single purchaser or one
or more possible purchasers to effect such sale, (b) restrict such sale
to one or more purchasers each of whom will represent and agree that
such purchaser is purchasing for its own account, for investment and
not with a view to the distribution or sale of such securities and (c)
cause to be placed on certificates representing the securities in
question a legend to the effect that such securities have not been
registered under the Securities Act (or other applicable law) and may
not be disposed of in violation of the provisions thereof. Each of the
Obligors agrees that such manner of disposition is commercially
reasonable, that it will upon the Agent's request give any such
purchaser access to such information regarding the issuer of the
securities in question as the Agent may reasonably request and that the
Agent and the Lenders shall not incur any responsibility for selling
all or part of the securities included in the Credit Security at any
private or other sale not requiring such registration, notwithstanding
the possibility that a substantially higher price might be realized if
the sale were deferred until after registration under the Securities
Act (or other applicable law) or until made in compliance with certain
other rules or exemptions from the registration provisions under the
Securities Act (or other applicable law). Each of the Obligors
acknowledges that no adequate remedy at law exists for breach by it of
this Section 10.5.5 and that such breach would not be adequately
compensable in damages and therefore agrees that this Section 10.5.5
may be specifically enforced.
10.5.6. APPLICATION OF PROCEEDS. The proceeds of all sales and
collections in respect of any Credit Security or other assets of any
Obligor, all funds collected from the Obligors and any cash contained
in the Credit Security, the application of which is not otherwise
specifically provided for herein, shall be applied as follows:
First, to the payment of the costs and expenses of such sales
and collections, the reasonable expenses of the Agent and the
reasonable fees and expenses of its special counsel;
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Second, any surplus then remaining to the payment of the
Credit Obligations in such order and manner as the Agent may in its
sole discretion determine; PROVIDED, HOWEVER, that any such payment of
Credit Obligations owed to all Lenders shall be pro rata in accordance
with the respective Aggregate Percentage Interests of the Lenders in
the Loan;
Third, any surplus then remaining shall be paid to the
Obligors, subject, however, to the rights of the holder of any then
existing Lien of which the Agent has actual notice.
10.6. CUSTODY OF CREDIT SECURITY. Except as provided by applicable law
that cannot be waived, the Agent will have no duty as to the custody and
protection of the Credit Security, the collection of any part thereof or of any
income thereon or the preservation or exercise of any rights pertaining thereto,
including rights against prior parties, except for the use of reasonable care in
the custody and physical preservation of any Credit Security in its possession.
The Lenders will not be liable or responsible for any loss or damage to any
Credit Security, or for any diminution in the value thereof, by reason of the
act or omission of any agent selected by the Agent acting in good faith.
11. EXPENSES; INDEMNITY.
11.1. EXPENSES. Whether or not the transactions contemplated hereby
shall be consummated, the Borrower will pay:
(a) all reasonable expenses of the Agent (including the
out-of-pocket expenses related to forming the group of Lenders and
reasonable fees and disbursements of the counsel to the Agent) in
connection with the preparation and duplication of this Agreement, each
other Credit Document, examinations by, and reports of, the Agent's
commercial financial examiners, environmental surveys, the transactions
contemplated hereby and thereby and amendments, waivers, consents and
other operations hereunder and thereunder;
(b) all recording and filing fees and transfer and documentary
stamp and similar taxes at any time payable in respect of this
Agreement, any other Credit Document, any Credit Security or the
incurrence of the Credit Obligations; and
(c) to the extent not prohibited by applicable law that cannot
be waived, after the occurrence and during the continuance of any
Default or Event of Default, all other reasonable expenses incurred by
the Lenders or the holder of any Credit Obligation in connection with
the enforcement of any rights hereunder or under any other Credit
Document, including costs of collection and reasonable attorneys' fees
(including a reasonable allowance for the hourly cost of attorneys
employed by the Lenders on a salaried basis) and expenses.
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11.2. GENERAL INDEMNITY. The Borrower shall indemnify the Lenders and
the Agent and hold them harmless from any liability, loss or damage resulting
from the violation by the Company of Section 2.3. In addition, the Borrower
shall indemnify each Lender, the Agent, each of the Lenders' or the Agent's
directors, officers and employees, and each Person, if any, who controls any
Lender or the Agent (each Lender, the Agent and each of such directors,
officers, employees and control Persons is referred to as an "INDEMNIFIED
PARTY") and hold each of them harmless from and against any and all claims,
damages, liabilities and reasonable expenses (including reasonable fees and
disbursements of counsel with whom any Indemnified Party may consult in
connection therewith and all reasonable expenses of litigation or preparation
therefor) which any Indemnified Party may incur or which may be asserted against
any Indemnified Party in connection with (a) the Indemnified Party's compliance
with or contest of any subpoena or other process issued against it in any
proceeding involving any of the Obligors or their Affiliates, (b) any litigation
or investigation involving the Obligors or their Affiliates, or any officer,
director or employee thereof, (c) the existence or exercise of any security
rights with respect to the Credit Security in accordance with the Credit
Documents, (d) this Agreement, any other Credit Document or any transaction
contemplated hereby or thereby or (e) the use of or proposed use of proceeds
from this Credit Agreement; PROVIDED, HOWEVER, that the foregoing indemnity
shall not apply to (i) to the extent such loss resulted from the gross
negligence or willful misconduct of the Indemnified Party; or (ii) to litigation
commenced by the Borrower or any Obligor against the Lenders or the Agent which
seeks enforcement of any of the rights of the Borrower or such Obligor hereunder
or under any other Credit Document and is determined adversely to the Lenders or
the Agent in a final nonappealable judgment or to the extent such claims,
damages, liabilities and expenses result from a Lender's or the Agent's gross
negligence or willful misconduct.
11.3. INDEMNITY WITH RESPECT TO LETTERS OF CREDIT. The Borrower shall
indemnify each Letter of Credit Issuer and its correspondents and hold each of
them harmless from and against any and all claims, losses, liabilities, damages
and reasonable expenses (including reasonable attorneys' fees) arising from or
in connection with any Letter of Credit, including any such claim, loss,
liability, damage or expense arising out of any transfer, sale, delivery,
surrender or endorsement of any invoice, bill of lading, warehouse receipt or
other document at any time held by the Agent, any other Letter of Credit Issuer
or held for their respective accounts by any of their correspondents, in
connection with any Letter of Credit, except to the extent such claims, losses,
liabilities, damages and expenses result from gross negligence or willful
misconduct on the part of the Agent or any other Letter of Credit Issuer.
12. OPERATIONS; AGENT.
12.1. INTERESTS IN CREDITS. The Percentage Interest of each Lender in
the Loan, and the related Commitments, shall be computed based on the maximum
principal amount for each Lender as set forth on EXHIBIT 12.1. Upon the
consummation of any assignment pursuant to Section 13.1 or 13.3 or the addition
of any new Lender pursuant to Section 12.6(a), the Agent shall modify Exhibit
12.1 to reflect such assignment or addition.
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12.2. AGENT'S AUTHORITY TO ACT, ETC. Each of the Lenders appoints and
authorizes BankBoston to act for the Lenders as the Lenders' Agent in connection
with the transactions contemplated by this Agreement and the other Credit
Documents on the terms set forth herein. In acting hereunder, the Agent is
acting for the account of BankBoston to the extent of its Aggregate Percentage
Interest in the Loan and for the account of each other Lender to the extent of
the Lenders' respective Aggregate Percentage Interests in the Loan, and all
action in connection with the enforcement of, or the exercise of any remedies
(other than the Lenders' rights of set-off as provided in Section 8.2.4 or in
any Credit Document) in respect of the Credit Obligations and Credit Documents
shall be taken by the Agent.
12.3. BORROWER TO PAY AGENT, ETC. The Borrower and each Guarantor shall
be fully protected in making all payments in respect of the Credit Obligations
to the Agent, in relying upon consents, modifications and amendments executed by
the Agent purportedly on the Lenders' behalf, and in dealing with the Agent as
herein provided. The Agent may charge the account of the Borrower, on the dates
when the amounts thereof become due and payable, with the amounts of the
principal of and interest on the Loan, any amounts paid by the Letter of Credit
Issuers to third parties under Letters of Credit or drafts presented thereunder,
commitment fees, Letter of Credit fees and all other fees and amounts owing
under any Credit Document.
12.4. LENDER OPERATIONS FOR ADVANCES, LETTERS OF CREDIT, ETC.
12.4.1. ADVANCES. On each Closing Date, each Lender shall
advance to the Agent in immediately available funds such Lender's
Percentage Interest in the portion of the Loan advanced on such Closing
Date prior to 12:00 noon (Boston time). If such funds are not received
at such time, but all applicable conditions set forth in Section 5 have
been satisfied, each Lender authorizes and requests the Agent to
advance for the Lender's account, pursuant to the terms hereof, the
Lender's respective Percentage Interest in such portion of the Loan and
agrees to reimburse the Agent in immediately available funds for the
amount thereof prior to 3:00 p.m. (Boston time) on the day any portion
of the Loan is advanced hereunder; PROVIDED, HOWEVER, that the Agent is
not authorized to make any such advance for the account of any Lender
who has previously notified the Agent in writing that such Lender will
not be performing its obligations to make further advances hereunder;
and PROVIDED, FURTHER, that the Agent shall be under no obligation to
make any such advance.
12.4.2. LETTERS OF CREDIT. Each of the Lenders authorizes and
requests each Letter of Credit Issuer to issue the Letters of Credit
provided for in Section 2.2 and to grant each Lender a participation in
each of such Letters of Credit in an amount equal to its Percentage
Interest in the amount of each such Letter of Credit. Promptly upon the
request of the Letter of Credit Issuer, each Lender shall reimburse the
Letter of Credit Issuer in immediately available funds for such
Lender's Percentage Interest in the amount of all obligations to third
parties incurred by the Letter of Credit Issuer
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in respect of each Letter of Credit and each draft accepted under a
Letter of Credit to the extent not reimbursed by the Borrower. The
Letter of Credit Issuer will notify each Lender of the issuance of any
Letter of Credit, the amount and date of payment of any draft drawn or
accepted under a Letter of Credit and whether in connection with the
payment of any such draft the amount thereof was added to the Revolving
Loan or was reimbursed by the Borrower.
12.4.3. AGENT TO ALLOCATE PAYMENTS, ETC. All payments of
principal and interest in respect of the extensions of credit made
pursuant to this Agreement, reimbursement of amounts paid by any Letter
of Credit Issuer to third parties under Letters of Credit or drafts
presented thereunder, commitment fees, Letter of Credit fees and other
fees under this Agreement shall, as a matter of convenience, be made by
the Borrower and the Guarantors to the Agent in immediately available
funds. The share of each Lender shall be credited to such Lender by the
Agent in immediately available funds in such manner that the principal
amount of the Credit Obligations to be paid shall be paid
proportionately in accordance with the Lenders' respective Percentage
Interests in such Credit Obligations or portion of the Loan to which
such Credit Obligation relates, except as otherwise provided in this
Agreement. Under no circumstances shall any Lender be required to
produce or present its Notes as evidence of its interests in the Credit
Obligations in any action or proceeding relating to the Credit
Obligations.
12.4.4. DELINQUENT LENDERS; NONPERFORMING LENDERS. In the
event that any Lender fails to reimburse the Agent pursuant to Section
12.4.1 for the Percentage Interest of such lender (a "DELINQUENT
LENDER") in any credit advanced by the Agent pursuant hereto, overdue
amounts (the "DELINQUENT PAYMENT") due from the Delinquent Lender to
the Agent shall bear interest, payable by the Delinquent Lender on
demand, at a per annum rate equal to (a) the Federal Funds Rate for the
first three days overdue and (b) the sum of 2% PLUS the Federal Funds
Rate for any longer period. Such interest shall be payable to the Agent
for its own account for the period commencing on the date of the
Delinquent Payment and ending on the date the Delinquent Lender
reimburses the Agent on account of the Delinquent Payment (to the
extent not paid by the Company as provided below) and the accrued
interest thereon (the "DELINQUENCY PERIOD"), whether pursuant to the
assignments referred to below or otherwise. Upon notice by the Agent,
the Borrower will pay to the Agent the principal (but not the interest)
portion of the Delinquent Payment. During the Delinquency Period, in
order to make reimbursements for the Delinquent Payment and accrued
interest thereon, the Delinquent Lender shall be deemed to have
assigned to the Agent all interest, commitment fees and other payments
made by the Borrower under Section 3 that would have thereafter
otherwise been payable under the Credit Documents to the Delinquent
Lender. During any other period in which any Lender is not performing
its obligations to extend credit under Section 2 (a "NONPERFORMING
LENDER"), the Nonperforming Lender shall be deemed to have assigned to
each Lender that is not a Nonperforming Lender (a "PERFORMING LENDER")
all principal and
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other payments made by the Borrower under Section 4 that would have
thereafter otherwise been payable under the Credit Documents to the
Nonperforming Lender. The Agent shall credit a portion of such payments
to each Performing Lender in an amount equal to the Percentage Interest
of such Performing Lender in the portion of the Loan with respect to
which there is such nonperformance, in an amount equal to such
Percentage Interest of such Performing Lender divided by one MINUS the
Percentage Interest of the Nonperforming Lender in the portion of the
Loan with respect to which there is such nonperformance, until the
respective portions of such portion of the Loan owed to all the Lenders
are the same as the Percentage Interests of the Lenders in such portion
of the Loan immediately prior to the failure of the Nonperforming
Lender to perform its obligations under Section 2. The foregoing
provisions shall be in addition to any other remedies the Agent, the
Performing Lenders or the Borrower may have under law or equity against
the Delinquent Lender as a result of the Delinquent Payment or against
the Nonperforming Lender as a result of its failure to perform its
obligations under Section 2.
12.5. SHARING OF PAYMENTS, ETC. Each Lender agrees that (a) if by
exercising any right of set-off or counterclaim or otherwise, it shall receive
payment of (i) a proportion of the aggregate amount due with respect to its
Percentage Interest in a portion of the Loan and Letter of Credit Exposure which
is greater than (ii) the proportion received by any other Lender in respect of
the aggregate amount due with respect to such other Lender's Percentage Interest
in such portion of the Loan and Letter of Credit Exposure and (b) if such
inequality shall continue for more than 10 days, the Lender receiving such
proportionately greater payment shall purchase participations in the Percentage
Interests in the portions of the Loan and Letter of Credit Exposure held by the
other Lenders, and such other adjustments shall be made from time to time
(including rescission of such purchases of participations in the event the
unequal payment originally received is recovered from such Lender through
bankruptcy proceedings or otherwise), as may be required so that all such
payments of principal and interest with respect to the portion of the Loan and
Letter of Credit Exposure held by the Lenders shall be shared by the Lenders pro
rata in accordance with their respective Percentage Interests in the relevant
portion of the Loan; PROVIDED, HOWEVER, that this Section 12.5 shall not impair
the right of any Lender to exercise any right of set-off or counterclaim it may
have and to apply the amount subject to such exercise to the payment of
Indebtedness of any Obligor other than such Obligor's Indebtedness with respect
to the Loan and Letter of Credit Exposure. Each Lender that grants a
participation in the Credit Obligations to a Credit Participant shall require as
a condition to the granting of such participation that such Credit Participant
agree to share payments received in respect of the Credit Obligations as
provided in this Section 12.5. The provisions of this Section 12.5 are for the
sole and exclusive benefit of the Lenders and no failure of any Lender to comply
with the terms hereof shall be available to any Obligor as a defense to the
payment of the Credit Obligations.
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12.6. ACTIONS BY AGENT, AMENDMENTS, CONSENTS, WAIVERS, ETC. Except as
otherwise set forth in this Section 12.6, the Agent may (a) admit additional
Lenders who shall make Commitments for an Aggregate Percentage Interest in the
Loan; PROVIDED, HOWEVER, that without consent obtained in accordance with
Section 12.6.2(c) the aggregate Commitments shall not exceed $300,000,000 and
(b) (and upon the written request of the Required Lenders the Agent shall) take
or refrain from taking any action under this Agreement or any other Credit
Document, including giving its written consent to any modification of or
amendment to and waiving in writing compliance with any covenant or condition in
this Agreement or any other Credit Document or any Default or Event of Default,
all of which actions shall be binding upon all of the Lenders; PROVIDED,
HOWEVER, that:
12.6.1. Without the written consent of the Required Lenders
(other than Delinquent Lenders during the existence of a Delinquency
Period so long as such Delinquent Lender is treated the same as the
other Lenders with respect to any actions enumerated below), no written
modification of, amendment to, consent with respect to, waiver of
compliance with or waiver of a Default under any of the Credit
Documents (other than Interest Rate Protection Agreements) shall be
made.
12.6.2. Without the written consent of such Lenders as own
100% of the Aggregate Percentage Interests in the Loan (other than
Delinquent Lenders during the existence of a Delinquency Period so long
as such Delinquent Lender is treated the same as the other Lenders with
respect to any actions enumerated below):
(a) No reduction shall be made in (i) the amount of
principal of the Loan or reimbursement obligations for
payments made under Letters of Credit, (ii) the interest rate
on the Loan or the Swingline Loan or (iii) the Letter of
Credit fees or commitment fees.
(b) No change shall be made in the stated time of
payment of all or any portion of the Loan or interest thereon
or reimbursement of payments made under Letters of Credit or
fees relating to any of the foregoing payable to all of the
Lenders and no waiver shall be made of any Default under
Section 8.1.1.
(c) Except for additional Commitments from new
Lenders expressly contemplated by Section 12.6.1(a) hereof, no
increase shall be made in the amount, or extension of the
term, of the Commitments beyond that provided for under
Section 2.
(d) No alteration shall be made of the Lenders'
rights of set-off contained in Section 8.2.4.
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(e) No release of any Credit Security or of any
Guarantor shall be made (except that the Agent may release
particular items of Credit Security or particular Guarantors
in dispositions permitted by Section 6.11 and may release all
Credit Security pursuant to Section 18 upon payment in full of
the Credit Obligations and termination of the Commitments
without the written consent of the Lenders).
(f) No amendment to or modification of this Section
12.6 or of the definition of Required Lenders shall be made.
12.7. AGENT'S RESIGNATION. The Agent may resign at any time by giving
at least 60 days' prior written notice of its intention to do so to each other
of the Lenders and the Borrower and upon the appointment by the Required Lenders
of a successor Agent satisfactory to the Borrower. If no successor Agent shall
have been so appointed and shall have accepted such appointment within 45 days
after the retiring Agent's giving of such notice of resignation, then the
retiring Agent may with the consent of the Borrower, which shall not be
unreasonably withheld, appoint a successor Agent which shall be a bank or a
trust company organized under the laws of the United States of America or any
state thereof and having a combined capital, surplus and undivided profit of at
least $100,000,000; PROVIDED, HOWEVER, that any successor Agent appointed under
this sentence may be removed upon the written request of the Required Lenders,
which request shall also appoint a successor Agent satisfactory to the Borrower.
Upon the appointment of a new Agent hereunder, the term "Agent" shall for all
purposes of this Agreement thereafter mean such successor. After any retiring
Agent's resignation hereunder as Agent, or the removal hereunder of any
successor Agent, the provisions of this Agreement shall continue to inure to the
benefit of such Agent as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.
12.8. CONCERNING THE AGENT.
12.8.1. ACTION IN GOOD FAITH, ETC. The Agent and its officers,
directors, employees and agents shall be under no liability to any of
the Lenders or to any future holder of any interest in the Credit
Obligations for any action or failure to act taken or suffered in good
faith, and any action or failure to act in accordance with an opinion
of its counsel shall conclusively be deemed to be in good faith. The
Agent shall in all cases be entitled to rely, and shall be fully
protected in relying, on instructions given to the Agent by the
required holders of Credit Obligations as provided in this Agreement.
12.8.2. NO IMPLIED DUTIES, ETC. The Agent shall have and may
exercise such powers as are specifically delegated to the Agent under
this Agreement or any other Credit Document together with all other
powers incidental thereto. The Agent shall have no implied duties to
any Person or any obligation to take any action under this Agreement or
any other Credit Document except for action specifically provided for
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in this Agreement or any other Credit Document to be taken by the
Agent. Before taking any action under this Agreement or any other
Credit Document, the Agent may request an appropriate specific
indemnity satisfactory to it from each Lender in addition to the
general indemnity provided for in Section 12.11. Until the Agent has
received such specific indemnity, the Agent shall not be obligated to
take (although it may in its sole discretion take) any such action
under this Agreement or any other Credit Document. Each Lender confirms
that the Agent does not have a fiduciary relationship to it under the
Credit Documents. Each of the Obligors party hereto confirms that
neither the Agent nor any other Lender has a fiduciary relationship to
it under the Credit Documents.
12.8.3. VALIDITY, ETC. The Agent shall not be responsible to
any Lender or any future holder of any interest in the Credit
Obligations (a) for the legality, validity, enforceability or
effectiveness of this Agreement or any other Credit Document, (b) for
any recitals, reports, representations, warranties or statements
contained in or made in connection with this Agreement or any other
Credit Document, (c) for the existence or value of any assets included
in any security for the Credit Obligations, (d) for the effectiveness
of any Lien purported to be included in the Credit Security, (e) for
the specification or failure to specify any particular assets to be
included in the Credit Security, or (f) unless the Agent shall have
failed to comply with Section 12.8.1, for either the perfection of the
security interests in the Credit Security or for failure of the Agent
to its obligations under Section 12.8.8.
12.8.4. COMPLIANCE. The Agent shall not be obligated to
ascertain or inquire as to the performance or observance of any of the
terms of this Agreement or any other Credit Document; and in connection
with any extension of credit under this Agreement or any other Credit
Document, the Agent shall be fully protected in relying on a
certificate of the Borrower as to the fulfillment by the Borrower of
any conditions to such extension of credit.
12.8.5. EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may
execute any of its duties as Agent under this Agreement or any other
Credit Document by or through employees, agents and attorneys-in-fact
and shall not be responsible to any of the Lenders, the Borrower or any
other Obligor for the default or misconduct of any such agents or
attorneys-in-fact selected by the Agent acting in good faith. The Agent
shall be entitled to advice of counsel concerning all matters
pertaining to the agency hereby created and its duties hereunder or
under any other Credit Document.
12.8.6. RELIANCE ON DOCUMENTS AND COUNSEL. The Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
affidavit, certificate, cablegram, consent, instrument, letter, notice,
order, document, statement, telecopy, telegram, telex or teletype
message or writing reasonably believed in good faith by the Agent to be
genuine and correct and to have been signed, sent or made by the Person
in question, including any telephonic or oral statement made by such
Person, and, with
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respect to legal matters, upon an opinion or the advice of counsel
selected by the Agent.
12.8.7. AGENT'S REIMBURSEMENT. Each of the Lenders severally
agrees to reimburse the Agent, in the amount of such Lender's Aggregate
Percentage Interest in the Loan, for any reasonable expenses not
reimbursed by the Borrower or the Guarantors (without limiting the
obligation of the Borrower or the Guarantors to make such
reimbursement): (a) for which the Agent is entitled to reimbursement by
the Borrower or the Guarantors under this Agreement or any other Credit
Document, and (b) after the occurrence of a Default, for any other
reasonable expenses incurred by the Agent on the Lenders' behalf in
connection with the enforcement of the Lenders' rights under this
Agreement or any other Credit Document.
12.8.8. CONVEYING REPORTS TO LENDERS. The Agent shall provide
to each of the Lenders, in any reasonable form and reasonably promptly,
a copy of those communications received from the Company pursuant to
Sections 4.3.3, 5.2, 6.4 and 6.21.
12.9. RIGHTS AS A LENDER. With respect to any credit extended by it
hereunder, BankBoston shall have the same rights, obligations and powers
hereunder as any other Lender and may exercise such rights and powers as though
it were not the Agent, and unless the context otherwise specifies, BankBoston
shall be treated in its individual capacity as though it were not the Agent
hereunder. Without limiting the generality of the foregoing, the Percentage
Interest in any portion of the Loan, and the Aggregate Percentage Interest in
the Loan, of BankBoston shall be included in any computations of Percentage
Interests and Aggregate Percentage Interests in the Loan, respectively.
BankBoston and its Affiliates may accept deposits from, lend money to, act as
trustee for and generally engage in any kind of banking or trust business with
the Borrower, any of its Subsidiaries or any Affiliate of any of them and any
Person who may do business with or own an equity interest in the Borrower, any
of its Subsidiaries or any Affiliate of any of them, all as if BankBoston were
not the Agent and without any duty to account therefor to the other Lenders.
12.10. INDEPENDENT CREDIT DECISION. Each of the Lenders acknowledges
that it has independently and without reliance upon the Agent, based on the
financial statements and other documents referred to in Section 7.2, on the
other representations and warranties contained herein and on such other
information with respect to the Obligors as such Lender deemed appropriate, made
such Lender's own credit analysis and decision to enter into this Agreement and
to make the extensions of credit provided for hereunder. Each Lender represents
to the Agent that such Lender will continue to make its own independent credit
and other decisions in taking or not taking action under this Agreement or any
other Credit Document. Each Lender expressly acknowledges that neither the Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to such Lender, and no act
by the Agent taken under this Agreement or any other Credit Document, including
any review of the affairs of the
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Obligors, shall be deemed to constitute any representation or warranty by the
Agent. Except for notices, reports and other documents expressly required to be
furnished to each Lender by the Agent under this Agreement or any other Credit
Document, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition, financial or otherwise, or creditworthiness of any Obligor
which may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
12.11. INDEMNIFICATION. The holders of the Credit Obligations shall
indemnify the Agent and its officers, directors, employees and agents (to the
extent not reimbursed by the Obligors and without limiting the obligation of any
of the Obligors to do so), pro rata in accordance with their respective
Aggregate Percentage Interests in the Loan, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time be
imposed on, incurred by or asserted against the Agent or such Persons relating
to or arising out of this Agreement, any other Credit Document, the transactions
contemplated hereby or thereby, or any action taken or omitted by the Agent in
connection with any of the foregoing; PROVIDED, HOWEVER, that the foregoing
shall not extend to actions or omissions which are taken by the Agent with gross
negligence or willful misconduct.
13. SUCCESSORS AND ASSIGNS; LENDER ASSIGNMENTS AND PARTICIPATIONS. Any reference
in this Agreement to any of the parties hereto shall be deemed to include the
successors and assigns of such party, and all covenants and agreements by or on
behalf of the Obligors, the Guarantors, the Agent or the Lenders that are
contained in this Agreement or any other Credit Documents shall bind and inure
to the benefit of their respective successors and assigns; PROVIDED, HOWEVER,
that (a) the Obligors may not assign their rights or obligations under this
Agreement except for mergers or liquidations permitted by Section 6.11, and (b)
the Lenders shall be not entitled to assign their respective Percentage
Interests in portions of the Loan hereunder except as set forth below in this
Section 13.
13.1. ASSIGNMENTS BY LENDERS.
13.1.1. ASSIGNEES AND ASSIGNMENT PROCEDURES. Each Lender may
(a) without the consent of the Agent or the Borrower if the proposed
assignee is already a Lender hereunder or a Wholly Owned Subsidiary of
the same corporate parent of which the assigning Lender is a
Subsidiary, or (b) otherwise with the consents of the Agent and (so
long as no Event of Default has occurred and is continuing) the
Borrower (which consents will not be unreasonably withheld), in
compliance with applicable laws in connection with such assignment,
assign to one or more commercial banks or other financial institutions
(each, an "ASSIGNEE") all or a portion of its interests, rights and
obligations under this Agreement and the other Credit Documents,
including all or a portion, which need not be pro rata between the Loan
and the Letter of Credit Exposure, of its Commitment, the portion of
the Loan and Letter of Credit Exposure
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at the time owing to it and the Notes held by it, but excluding its
rights and obligations as a Letter of Credit Issuer; PROVIDED, HOWEVER,
that:
(i) the aggregate amount of the Commitment of the
assigning Lender subject to each such assignment to any
Assignee other than another Lender (determined as of the date
the Assignment and Acceptance with respect to such assignment
is delivered to the Agent) shall be not less than $5,000,000
and in increments of $1,000,000; and
(ii the parties to each such assignment shall execute
and deliver to the Agent an Assignment and Acceptance (the
"ASSIGNMENT AND ACCEPTANCE") substantially in the form of
EXHIBIT 13.1.1, together with the Note subject to such
assignment and a processing and recordation fee of $3,500
payable to the Agent by the assigning Lender or the Assignee.
Upon acceptance and recording pursuant to Section 13.1.4, from and
after the effective date specified in each Assignment and Acceptance
(which effective date shall be at least five Banking Days after the
execution thereof unless waived by the Agent):
(A) the Assignee shall be a party hereto and, to the
extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender under
this Agreement and
(B) the assigning Lender shall, to the extent provided in
such assignment, be released from its obligations
under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 3.2.4, 3.5 and
11, as well as to any fees accrued for its account
hereunder and not yet paid).
13.1.2. TERMS OF ASSIGNMENT AND ACCEPTANCE. By executing and
delivering an Assignment and Acceptance, the assigning Lender and
Assignee shall be deemed to confirm to and agree with each other and
the other parties hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement,
any other Credit Document or any other instrument or document furnished
pursuant hereto;
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(b) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of the Obligors or the performance or observance by any Obligor of any
of its obligations under this Agreement, any other Credit Document or
any other instrument or document furnished pursuant hereto;
(c) such Assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 7.2 or Section 6.4 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance;
(d) such Assignee will independently and without reliance upon
the Agent, such assigning Lender or any other Lender, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Agreement;
(e) such Assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and
(f) such Assignee agrees that it will perform in accordance
with the terms of this Agreement all the obligations which are required
to be performed by it as a Lender.
13.1.3. REGISTER. The Agent shall maintain at the Boston
Office a register (the "REGISTER") for the recordation of (a) the names
and addresses of the Lenders and the Assignees which assume rights and
obligations pursuant to an assignment under Section 13.1.1, (b) the
Percentage Interests of each such Lender in the Revolving Loan as set
forth in Section 12.1 and (c) the amount of the Loan and Letter of
Credit Exposure owing to each Lender from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and
the Borrower, the Agent and the Lenders may treat each Person whose
name is registered therein for all purposes as a party to this
Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
13.1.4. ACCEPTANCE OF ASSIGNMENT AND ASSUMPTION. Upon its
receipt of a completed Assignment and Acceptance executed by an
assigning Lender and an Assignee together with the Note or Notes
subject to such assignment, and the processing and recordation fee
referred to in Section 13.1.1, the Agent shall (a) accept such
Assignment and Acceptance, (b) record the information contained therein
in the Register and (c) give prompt notice thereof to the Borrower.
Within five
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Banking Days after receipt of notice, the Borrower, at their own
expense, shall execute and deliver to the Agent, in exchange for the
surrendered Note or Notes, a new Note or Notes to the order of such
Assignee in a principal amount equal to the applicable Commitment and
Loan assumed by it pursuant to such Assignment and Acceptance and, if
the assigning Lender has retained a Commitment and Loan, a new Note or
Notes to the order of such assigning Lender in a principal amount equal
to the applicable Commitment and Loan retained by it. Such new Note or
Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, respectively, and
shall be dated the date of the surrendered Notes which they replace.
13.1.5. FEDERAL RESERVE BANK. Notwithstanding the foregoing
provisions of this Section 13, any Lender may at any time pledge or
assign all or any portion of such Lender's rights under this Agreement
and the other Credit Documents to a Federal Reserve Bank; PROVIDED,
HOWEVER, that no such pledge or assignment shall release such Lender
from such Lender's obligations hereunder or under any other Credit
Document.
13.1.6. FURTHER ASSURANCES. The Obligors shall sign such
documents and take such other actions from time to time reasonably
requested by an Assignee to enable it to share in the benefits of the
rights created by the Credit Documents.
13.2. CREDIT PARTICIPANTS. Each Lender may, without the consent of the
Borrower or the Agent, in compliance with applicable laws in connection with
such participation, sell to one or more commercial banks or other financial
institutions (each a "CREDIT PARTICIPANT") participations, in all or a portion
of its interests, rights and obligations under this Agreement and the other
Credit Documents (including all or a portion of its Commitment, the Loan and
Letter of Credit Exposure owing to it and the Notes held by it); PROVIDED,
HOWEVER, that:
(a) such Lender's obligations under this Agreement shall
remain unchanged;
(b) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(c) the Credit Participant shall be entitled to the benefit of
the cost protection provisions contained in Sections 3.2.4, 3.5 and 11,
but shall not be entitled to receive any greater payment thereunder
than the selling Lender would have been entitled to receive with
respect to the interest so sold if such interest had not been sold; and
(d) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right as one of the Lenders to vote
with respect to the enforcement of the obligations of the Borrower
relating to the Loan and Letter of Credit Exposure and the approval of
any
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<PAGE>
amendment, modification or waiver of any provision of this Agreement
(other than amendments, modifications, consents or waivers described in
clause (c) of the proviso to Section 12.6).
Each Obligor agrees, to the fullest extent permitted by applicable law, that any
Credit Participant and any Lender purchasing a participation from another Lender
pursuant to Section 12.5 may exercise all rights of payment (including the right
of set-off), with respect to its participation as fully as if such Credit
Participant or such Lender were the direct creditor of the Obligors and a Lender
hereunder in the amount of such participation.
13.3. REPLACEMENT OF LENDER. In the event that any Lender or, to the
extent applicable, any Credit Participant (the "AFFECTED LENDER"):
(a) fails to perform its obligations to fund any portion of
the Loan or to issue any Letter of Credit on any Closing Date when
required to do so by the terms of the Credit Documents, or fails to
provide its portion of any LIBOR Pricing Option pursuant to Section
3.2.1 or on account of a Legal Requirement as contemplated by Section
3.2.5;
(b) demands payment under the Reserve provisions of Section
3.5.1, the Tax provisions of Section 3.5.2, the capital adequacy
provisions of Section 3.5.3 or the regulatory change provisions in
Section 3.5.4 in an amount the Company deems materially in excess of
the amounts with respect thereto demanded by the other Lenders; or
(c) refuses to consent to a proposed amendment, modification,
waiver or other action requiring consent of the holders of 100% of the
Aggregate Percentage Interests in the Loan under Section 12.6.1(c) that
is consented to by the other Lenders;
then, so long as no Event of Default exists and is continuing, the Borrower
shall have the right to seek a replacement lender which is reasonably
satisfactory to the Agent (the "REPLACEMENT LENDER"). The Replacement Lender
shall purchase the interests of the Affected Lender in the Loan, Letters of
Credit and its Commitment and shall assume the obligations of the Affected
Lender hereunder and under the other Credit Documents upon execution by the
Replacement Lender of an Assignment and Acceptance and the tender by it to the
Affected Lender of a purchase price agreed between it and the Affected Lender
(or, if they are unable to agree, a purchase price in the aggregate amount of
the Affected Lender's Percentage Interests in each portion of the Loan and
Letter of Credit Exposure, or appropriate credit support for contingent amounts
included therein, and all other outstanding Credit Obligations then owed to the
Affected Lender). Such assignment by the Affected Lender shall be deemed an
early termination of any LIBOR Pricing Option to the extent of the Affected
Lender's portion thereof, and the Borrower will pay to the Affected Lender any
resulting amounts due under Section 3.2.4. Upon consummation of such assignment,
the
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Replacement Lender shall become party to this Agreement as a signatory
hereto and shall have all the rights and obligations of the Affected Lender
under this Agreement and the other Credit Documents with a Percentage Interest
in each portion of the Loan equal to the Percentage Interest in such portion of
the Loan of the Affected Lender, the Affected Lender shall be released from its
obligations hereunder and under the other Credit Documents, and no further
consent or action by any party shall be required. Upon the consummation of such
assignment, the Borrower, the Agent and the Affected Lender shall make
appropriate arrangements so that a new Note is issued to the Replacement Lender
if it has acquired a portion of the Loan. The Borrower and the Guarantors shall
sign such documents and take such other actions reasonably requested by the
Replacement Lender to enable it to share in the benefits of the rights created
by the Credit Documents. Until the consummation of an assignment in accordance
with the foregoing provisions of this Section 13.3, the Borrower shall continue
to pay to the Affected Lender any Credit Obligations as they become due and
payable.
13.4. FOREIGN LENDERS. If any Lender is not incorporated or organized
under the laws of the United States of America or a state thereof, such Lender
shall deliver to the Borrower and the Agent the following:
(a) Two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor form, as the case may
be, certifying in each case that such Person is entitled to receive
payments under this Agreement, the Notes and reimbursement obligations
under Letters of Credit payable to it, without deduction or withholding
of any United States federal income taxes; and
(b) A duly completed Internal Revenue Service Form W-8 or W-9
or successor form, as the case may be, to establish an exemption from
United States backup withholding tax.
Each such Lender that delivers to the Borrower and the Agent a Form
1001 or 4224 and Form W-8 or W-9 pursuant to this Section 13 further undertakes
to deliver to the Borrower and the Agent two further copies of Form 1001 or 4224
and Form W-8 or W-9, or successor applicable form, or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Borrower and
the Agent. Such Forms 1001 or 4224 shall certify that such Lender is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes. The foregoing documents need not be
delivered in the event any change in treaty, law or regulation or official
interpretation thereof has occurred which renders all such forms inapplicable or
which would prevent such Lender from delivering any such form with respect to
it, or such Lender advises the Borrower that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax and, in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax. Until such time as the Borrower and the Agent
have received such
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<PAGE>
forms indicating that payments hereunder are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrower shall withhold taxes from such payments at the
applicable statutory rate without regard to Section 3.5.2.
14. CONFIDENTIALITY. Each Lender will make no disclosure of confidential
information furnished to it by any Obligor unless such information shall have
become public, except:
(a) in connection with operations under or the enforcement of
this Agreement or any other Credit Document;
(b) pursuant to any statutory or regulatory requirement or any
mandatory court order, subpoena or other legal process;
(c) to any parent or corporate Affiliate of such Lender or to
any Credit Participant, proposed Credit Participant or proposed
Assignee; PROVIDED, HOWEVER, that any such Person shall agree to comply
with the restrictions set forth in this Section 14 with respect to such
information;
(d) to its independent counsel, auditors and other
professional advisors with an instruction to such Person to keep such
information confidential; and
(e) with the prior written consent of the Borrower, to any
other Person.
15. ACKNOWLEDGMENTS AND CONSENTS. The Borrower and each Guarantor and each
Obligor, in their capacities as Borrower, as guarantors of the Credit
Obligations, grantors of security interests to secure the Credit Obligations
and/or holders of Subordinated Indebtedness, as the case may be, pursuant to the
Credit Agreement dated as of May 29, 1996, as amended and restated previously
and hereby and as in effect on the date hereof, hereby acknowledge and agree
that, as of the Initial Closing Date, (i) the Uniform Commercial Code Financing
Statements and other instruments previously filed in connection with the
perfection of the Liens created in the Credit Security pursuant to such Credit
Agreement shall be deemed to refer to the Credit Agreement as amended and
restated hereby and that the term "Credit Obligations" as used in such financing
statements and other instruments, shall be deemed to refer to the Credit
Obligations under the Credit Agreement as amended and restated hereby; and (ii)
such financing statements and other instruments are confirmed and ratified as
being in full force and effect.
16. NOTICES. Except as otherwise specified in this Agreement, any notice
required to be given pursuant to this Agreement shall be given in writing. Any
notice, consent, approval, demand or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if either (a) actually delivered in
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<PAGE>
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answerback) or (b) in the case of a letter, unless actual receipt
of the notice is required by any Credit Document five days shall have elapsed
after the same shall have been deposited in the United States mails, with
first-class postage prepaid and registered or certified.
If to the Borrower or its Subsidiaries, to it at its address set forth
in Exhibit 7.1 (as supplemented pursuant to Sections 6.4.1 and 6.4.2), to the
attention of the chief financial officer, with a copy to:
Summit Partners, L.P.
600 Atlantic Avenue, Suite 2800
Boston, MA 02110
Attn: Thomas S. Roberts
If to any Lender or the Agent, to it at its address set forth on the
signature pages of this Agreement or in the Register, with a copy to the Agent,
with a copy to:
Ropes & Gray
One International Place
Boston, MA 02110
Attn: David A. McKay
17. COURSE OF DEALING; AMENDMENTS AND WAIVERS. No course of dealing between any
Lender or the Agent, on one hand, and the Borrower or any other Obligor, on the
other hand, shall operate as a waiver of any of the Lenders' or the Agent's
rights under this Agreement or any other Credit Document or with respect to the
Credit Obligations. Each of the Borrower and the Guarantors acknowledges that if
the Lenders or the Agent, without being required to do so by this Agreement or
any other Credit Document, give any notice or information to, or obtain any
consent from, the Borrower or any other Obligor, the Lenders and the Agent shall
not by implication have amended, waived or modified any provision of this
Agreement or any other Credit Document, or created any duty to give any such
notice or information or to obtain any such consent on any future occasion. No
delay or omission on the part of any Lender of the Agent in exercising any right
under this Agreement or any other Credit Document or with respect to the Credit
Obligations shall operate as a waiver of such right or any other right hereunder
or thereunder. A waiver on any one occasion shall not be construed as a bar to
or waiver of any right or remedy on any future occasion. No waiver, consent or
amendment with respect to this Agreement or any other Credit Document shall be
binding unless it is in writing and signed by the Agent and the Required
Lenders.
18. DEFEASANCE. When all Credit Obligations have been paid, performed and
reasonably determined by the Lenders to have been indefeasibly discharged in
full, and if at the time no Lender continues to be committed to extend any
credit to the Borrower hereunder or under any other Credit Document, this
Agreement shall terminate and, at the Borrower's written request, accompanied by
such certificates and other items as the Agent shall reasonably deem
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<PAGE>
necessary, the Credit Security shall revert to the Obligors and the right, title
and interest of the Lenders therein shall terminate. Thereupon, on the Obligor's
demand and at their cost and expense, the Agent shall execute proper
instruments, acknowledging satisfaction of and discharging this Agreement, and
shall redeliver to the Obligors any Credit Security then in its possession;
PROVIDED, HOWEVER, that Sections 3.2.4, 3.5, 11, 12.8.7, 12.11, 14, 19 and 20
shall survive the termination of this Agreement.
19. VENUE; SERVICE OF PROCESS. Each of the Borrower and the other Obligors:
(a) Irrevocably submits to the nonexclusive jurisdiction of
the state courts of The Commonwealth of Massachusetts and to the
nonexclusive jurisdiction of the United States District Court for the
District of Massachusetts for the purpose of any suit, action or other
proceeding arising out of or based upon this Agreement or any other
Credit Document or the subject matter hereof or thereof.
(b) Waives to the extent not prohibited by applicable law that
cannot be waived, and agrees not to assert, by way of motion, as a
defense or otherwise, in any such proceeding brought in any of the
above-named courts, any claim that it is not subject personally to the
jurisdiction of such court, that its property is exempt or immune from
attachment or execution, that such proceeding is brought in an
inconvenient forum, that the venue of such proceeding is improper, or
that this Agreement or any other Credit Document, or the subject matter
hereof or thereof, may not be enforced in or by such court.
Each of the Borrower and the other Obligors consents to service of process in
any such proceeding in any manner at the time permitted by Chapter 223A of the
General Laws of The Commonwealth of Massachusetts and agrees that service of
process by registered or certified mail, return receipt requested, at its
address specified in or pursuant to Section 16 is reasonably calculated to give
actual notice.
20. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT
CANNOT BE WAIVED, EACH OF THE BORROWER, THE OTHER OBLIGORS, THE AGENT AND THE
LENDERS WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF
ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF OR ANY CREDIT OBLIGATION OR IN
ANY WAY CONNECTED WITH THE DEALINGS OF THE LENDERS, THE AGENT, THE BORROWER OR
ANY OTHER OBLIGOR IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE. Each
of the Borrower and the other Obligors acknowledges that it has been informed by
the Agent that the provisions of this Section 20 constitute a material
inducement upon which each of the Lenders has relied and will rely in
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entering into this Agreement and any other Credit Document, and that it has
reviewed the provisions of this Section 20 with its counsel. Any Lender, the
Agent, the Borrower or any other Obligor may file an original counterpart or a
copy of this Section 20 with any court as written evidence of the consent of the
Borrower, the other Obligors, the Agent and the Lenders to the waiver of their
rights to trial by jury.
21. NO STRICT CONSTRUCTION. The parties have participated jointly in the
negotiation and drafting of this Agreement and the other Credit Documents with
counsel sophisticated in financing transactions. In the event an ambiguity or
question of intent or interpretation arises, this Agreement and the other Credit
Documents shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement and the other
Credit Documents.
22. GENERAL. All covenants, agreements, representations and warranties made in
this Agreement or any other Credit Document or in certificates delivered
pursuant hereto or thereto shall be deemed to have been relied on by each
Lender, notwithstanding any investigation made by any Lender on its behalf, and
shall survive the execution and delivery to the Lenders hereof and thereof. The
invalidity or unenforceability of any provision hereof shall not affect the
validity or enforceability of any other provision hereof. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof. This Agreement and the other Credit Documents
(including any related fee agreements with the Agent or the Lenders) constitute
the entire understanding of the parties with respect to the subject matter
hereof and thereof and supersede all prior and contemporaneous understandings
and agreements, whether written or oral. This Agreement may be executed in any
number of counterparts which together shall constitute one instrument. This
Agreement shall be governed by and construed in accordance with the laws (other
than the conflict of laws rules) of The Commonwealth of Massachusetts, except as
may be required by the UCC with respect to matters involving the perfection of
the Agent's Lien on the Credit Security.
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<PAGE>
Agreement to be executed and delivered by its duly authorized officer
as an agreement under seal as of the date first above written.
THE COMPANY
AMERIPATH, INC.
By: /s/ Robert P. Wynn
----------------------------
Title:
[AmeriPath Credit Agreement #1]
<PAGE>
THE GUARANTORS
AMERIPATH ALABAMA, INC.
SHOALS PATHOLOGY ASSOCIATES, INC.
AMERIPATH FLORIDA, INC.
LABORATORY PHYSICIANS, JACKSONVILLE, INC.
PASADENA PATHOLOGY EDWARD K MILLER, M.D., INC.
SOUTH FLORIDA PATHOLOGY ASSOCIATES, INC.
HIALEAH PATHOLOGY ASSOCIATES, INC.
OCMULGEE MEDICAL PATHOLOGY ASSOCIATION, INC.
AMERIPATH INDIANA, INC.
AMERIPATH KENTUCKY, INC.
AMERIPATH MICHIGAN, INC.
AMERIPATH MISSISSIPPI, INC.
R.M.C. PATHOLOGY ASSOCIATES, INC.
AMERIPATH NEW YORK, INC.
AMERIPATH NORTH CAROLINA, INC.
AMERIPATH OHIO, INC.
AMERIPATH CINCINNATI, INC.
AMERIPATH CLEVELAND, INC.
AMERIPATH P.C.C., INC.
AMERIPATH YOUNGSTOWN, INC.
AMERIPATH YOUNGSTOWN LABS, INC.
AMERIPATH PENNSYLVANIA, INC.
AMERIPATH PHILADELPHIA, INC.
AMERIPATH 5.01(a) CORPORATION
DFW 5.01(a) CORPORATION
AMERIPATH SAN ANTONIO 5.01(a) CORPORATION
AMERIPATH LUBBOCK 5.01(a) CORPORATION
AMERIPATH TEXAS, INC.
AMERIPATH SHERMAN, INC.
PATHOLOGY AFFILIATED SERVICES, INC.
PLAZA PATHOLOGY, INC.
AMERIPATH PAT, INC.
AMERIPATH WISCONSIN, INC.
By: /s/ Robert P. Wynn
-------------------------------------------
Authorized officer of each of the foregoing
corporations
[AmeriPath Credit Agreement #2]
<PAGE>
BANKBOSTON, N.A., as Agent
By: /s/ James Lau
---------------------------------
Title: VP
BANKBOSTON, N.A., as Lender
By: /s/ James Lau
---------------------------------
Title: VP
[AmeriPath Credit Agreement #3]
<PAGE>
BANK OF AMERICA, N.A.
d/b/a NationsBank, N.A.,
as Lender and Syndication Agent
By: /s/ Cheryl R. Moncure
---------------------------------
Title: Senior Vice President
[AmeriPath Credit Agreement #4]
<PAGE>
BANK ONE, NA, as Lender and Co-Agent
By: /s/ Jason White
---------------------------------
Title: Assistant Vice President
[AmeriPath Credit Agreement #5]
<PAGE>
FIRST UNION NATIONAL BANK, as Lender and
Co-Agent
By: /s/ Joyce Barry
-------------------------------------
Title: SVP
[AmeriPath Credit Agreement #6]
<PAGE>
USTRUST
By: /s/ Errin Siagel
---------------------------------
Title: VP
[AmeriPath Credit Agreement #7]
<PAGE>
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By: /s/ Scott Kray
---------------------------------
Title: Vice President
By: /s/ Robert M. B.
---------------------------------
Title: Executive Vice President
[AmeriPath Credit Agreement #8]
<PAGE>
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By: /s/ W. David Wisdom
---------------------------------
Title: Vice President
[AmeriPath Credit Agreement #9]
<PAGE>
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Forrest Vollrath
---------------------------------
Title: Vice President
[AmeriPath Credit Agreement #10]
<PAGE>
AMSOUTH BANK
By: /s/ J. Kenneth F.
---------------------------------
Title: VP
[AmeriPath Credit Agreement #11]
<PAGE>
IMPERIAL BANK
By: /s/ Paula J. Barysauskas
---------------------------------
Title: First Vice President
[AmeriPath Credit Agreement #12]
<PAGE>
BANKATLANTIC
By: /s/ Ana C. Bolduc
---------------------------------
Title: Senior Vice President
[AmeriPath Credit Agreement #13]
<PAGE>
EXHIBIT 1
<TABLE>
<CAPTION>
- --------- ------------------------------------ -------------------------------- ----------------------------------- ------------
<S> <C> <C> <C> <C>
Ratio of Consolidated Total Debt to
Consolidated Adjusted EBITDA for the Interest Rate on Portions of Interest Rate on Portions of Applicable
most recently completed four fiscal Revolving Loan Subject to LIBOR Revolving Loan Not Subject to LIBOR Commitment
Levels quarters Pricing Option Pricing Option Fee Rate
- --------- ------------------------------------ -------------------------------- ----------------------------------- ------------
Level I Equal to or greater than 2.5 to 1 LIBOR Rate PLUS 2.25% Base Rate PLUS 1.00% 0.50%
- --------- ------------------------------------ -------------------------------- ----------------------------------- ------------
Level II Equal to or greater than 2.0 to 1
but less than or equal to 2.5 to 1 LIBOR Rate PLUS 2.00% Base Rate PLUS 0.75% 0.375%
- --------- ------------------------------------ -------------------------------- ----------------------------------- ------------
Level III Less than or equal to 2.0 to 1 LIBOR Rate PLUS 1.75% Base Rate PLUS 0.50% 0.375%
- --------- ------------------------------------ -------------------------------- ----------------------------------- ------------
</TABLE>
EXHIBIT 21.1
<TABLE>
<CAPTION>
DATE OF
SUBSIDIARIES INCORPORATION JURISDICTION
- ------------ ------------- ------------
<S> <C> <C>
AmeriPath Florida, Inc. f/k/a/ D & P Pathology, Inc. 2/13/96 Florida
d/b/a American Laboratory Associates
Derrick and Associates Pathology
D&P Pathology
Florida Pathology Associates
Gulf Coast Pathology Associates
Volusia Pathology Group
Seidenstein, Levine and Associates
Center for Advanced Diagnostics
Indian River Pathology
Medical Support Services
South Florida Pathology
AmeriPath Alabama, Inc. f/k/a SkinPath, P.C. 1/5/95 Alabama
d/b/a SkinPath
AmeriPath Kentucky, Inc. f/k/a Technical Pathology Services, Inc. 2/02/88 Kentucky
d/b/a Pathology Associates
AmeriPath Ohio, Inc. 10/1/96 Delaware
AmeriPath Cincinnati, Inc. f/k/a/ David R. Barron, M.D., Inc.* 1/1/68 Ohio
d/b/a Richfield Laboratory of Dermatopathology
AmeriPath Cleveland, Inc. f/k/a Beno Michel, M.D., Inc.* 4/15/76 Ohio
d/b/a Cutaneous Pathology & Immunofluorescence Laboratory
CPI Lab
CPI
AmeriPath Texas, Inc. f/k/a Freeman-Cockerell Laboratories, Inc. 3/2/94 Texas
d/b/a Cockerell and Associates Dermatopathology Laboratories
Severance & Associates
AmeriPath Mississippi, Inc. f/k/a Sturgis, Henderson & Proctor 12/30/70 Mississippi
Pathology Laboratory, P.A.
d/b/a Sturgis, Henderson & Proctor Pathology Laboratory
AmeriPath Indiana, Inc. f/k/a Colab, Inc. 11/28/94 Indiana
AmeriPath 5.01(a) Corporation** 2/7/97 Texas
d/b/a Cockerell and Associates Dermatopathology Laboratories
DFW 5.01(a) Corporation** 7/21/97 Texas
d/b/a AmeriPath - Dallas
Arlington-Mansfield Pathology Associates
Dallas Pathology Associates
Plano Pathology Associates
Unipath
AmeriPath Indianapolis, LLC* 8/26/97 Indiana
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
d/b/a Colab, Inc.
Shoals Pathology Associates, Inc. 1/2/76 Alabama
Pasadena Pathology Edward K. Miller, M.D., Inc. 12/17/84 Florida
R.M.C. Pathology Associates, Inc. 12/31/82 Missouri
AmeriPath New York, Inc. 3/9/98 Delaware
d/b/a East End Laboratories
Ackerman Academy of Dermatopathology
AmeriPath North Carolina, Inc. f/k/a H. Michael Jones M.D., P.A. 6/1/80 North Carolina
AmeriPath Consulting Pathology Services, P.A.*** 8/1/98 North Carolina
d/b/a H. Michael Jones
AmeriPath P.C.C., Inc. f/k/a Pathology Consultants of Cleveland 8/6/84 Ohio
d/b/a Pathology Consultants of Cleveland
AmeriPath Youngstown, Inc. f/k/a Consultant Pathology Associates 8/1/96 Ohio
d/b/a Consultant Pathology Associates
AmeriPath Youngstown Labs, Inc. f/k/a Mahoning Medical Laboratories 3/28/94 Ohio
d/b/a Mahoning Medical Laboratories
AmeriPath Pennsylvania, Inc. 5/22/92 Pennsylvania
d/b/a The Dermatopathology Laboratory
TDL
AmeriPath Pittsburgh, P.C. *** f/k/a Dermatopathology Laboratory 12/1/97 Pennsylvania
d/b/a The Dermatopathology Laboratory
TDL
AmeriPath San Antonio 5.01(a) Corporation** 7/8/98 Texas
d/b/a Severance & Associates
AmeriPath Lubbock 5.01(a) Corporation** 6/9/98 Texas
Pathology Affiliated Services, Inc. 12/31/97 Texas
AmeriPath Wisconsin, Inc. f/k/a Consultants Physicians 1/1/68 Wisconsin
in Pathology, S.C.
d/b/a Consultants Physicians in Pathology, S.C.
South Florida Pathology Associates, Inc. 3/9/83 Florida
Hialeah Pathology Associates, Inc. 1/3/80 Florida
Ocmulgee Medical Pathology Association, Inc. 7/30/76 Georgia
AmeriPath Michigan, Inc. f/k/a JJ Humes, MD & Associates, PC 1/2/69 Michigan
JJ Humes, MD and Associates/AmeriPath, PC *** 12/6/99 Michigan
AmeriPath Philadelphia, Inc. f/k/a Consulting Pathologists, PA 2/28/77 New Jersey
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Consulting Pathologists of Pennsylvania, PC *** 7/19/99 Pennsylvania
AmeriPath PAT, Inc. f/k/a Pathology Associates of Texas, PA 12/2/71 Texas
Plaza Pathology, Inc. 8/14/96 Texas
AmeriPath Milwaukee, SC *** f/k/a Associated Laboratory Physician 12/30/92 Wisconsin
Services, SC
- ---------------------------
* The record holder is a trust of which AmeriPath, Inc. is the grantor and the
sole beneficiary.
** Non-Profit Corporation of which AmeriPath, Inc. is the sole member.
*** These entities are controlled through a nominee stock agreement.
</TABLE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statements No.
333-48183 and No. 333-67303 of AmeriPath, Inc. on Form S-8 of our report dated
February 22, 2000 appearing in the Annual Report on Form 10-K of AmeriPath, Inc.
for the year ended December 31, 1999.
DELOITTE & TOUCHE LLP
Certified Public Accountants
Fort Lauderdale, Florida
March 27, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 620
<SECURITIES> 0
<RECEIVABLES> 100,978
<ALLOWANCES> 55,009
<INVENTORY> 482
<CURRENT-ASSETS> 7,144
<PP&E> 25,378
<DEPRECIATION> 11,249
<TOTAL-ASSETS> 450,146
<CURRENT-LIABILITIES> 19,047
<BONDS> 164,077
0
0
<COMMON> 216
<OTHER-SE> 203,826
<TOTAL-LIABILITY-AND-EQUITY> 450,146
<SALES> 0
<TOTAL-REVENUES> 232,753
<CGS> 0
<TOTAL-COSTS> 108,177
<OTHER-EXPENSES> 50,043
<LOSS-PROVISION> 25,262
<INTEREST-EXPENSE> 9,299
<INCOME-PRETAX> 40,086
<INCOME-TAX> 17,117
<INCOME-CONTINUING> 22,969
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 22,969
<EPS-BASIC> 1.08
<EPS-DILUTED> 1.05
</TABLE>
