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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Filed pursuant to Section 13 or 15(d) of
THE SECURITIES EXCHANGE ACT OF 1934
September 12, 1997 (September 10, 1997)
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Date of Report (Date of earliest event reported)
PHYSICIAN COMPUTER NETWORK, INC.
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(Exact name of registrant as specified in charter)
New Jersey
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(State or other jurisdiction of incorporation)
0-19666
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(Commission File Number)
22-2485688
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(IRS Employer Identification No.)
1200 The American Road
Morris Plains, New Jersey 07950
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(Address of principal executive officers)
(201) 490-3100
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(Registrant's telephone number, including area code)<PAGE>
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ITEM 5. Other Events
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On September 10, 1997, the Registrant entered into a
Credit Agreement (the "Agreement") with Lehman Commercial Paper
Inc., as the arranger and syndication agent, Fleet Bank, N.A., as
the administrative agent, and a group of banks and financial
institutions pursuant to which it established a senior secured
revolving credit facility of $110,000,000. The term of such
revolving credit facility is four years. The facility is
available to provide financing for acquisitions, working capital
and general corporate purposes.
(c) Exhibits.
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Exhibit 1 -- Press Release dated September 11, 1997.
Exhibit 2 -- Credit Agreement dated as of September 10,
1997, among Physician Computer Network, Inc., Lehman Commercial
Paper Inc., as Arranger and Syndication Agent, Fleet Bank, N.A.,
as administrative agent, and the several lenders from time to
time parties thereto.
Exhibit 3 -- Guarantee and Collateral Agreement dated
as of September 10, 1997, among Physician Computer Network, Inc.
and certain of its Subsidiaries in favor of Fleet Bank, N.A., as
Administrative Agent.
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SIGNATURE
Pursuant to the requirements 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.
PHYSICIAN COMPUTER NETWORK, INC.
(REGISTRANT)
Date: September 11, 1997 By: /s/ John F. Mortell
John F. Mortell
Executive Vice President
and Chief Operating Officer
For Immediate Release
PHYSICIAN COMPUTER NETWORK, INC.
SIGNS $110 MILLION CREDIT AGREEMENT
FINANCING AVAILABLE FOR ACQUISITION STRATEGY
Morris Plains, N.J. (September 11, 1997) - Physician Computer
Network, Inc. (NASDAQ: PCNI) announced today that the company has
established a revolving credit facility of $110,000,000 with a
group of banks and financial institutions. The term of the
agreement is four years.
The facility is available to provide financing for acquisitions,
working capital and general corporate purposes. Lehman
Commercial Paper, Inc. is the arranger and syndication agent, and
Fleet Bank, N.A. is the administrative agent for the facility.
Jack Mortell, Executive Vice President and Chief Operating
Officer of PCN stated, "We are pleased that based on our
financial profile, which is virtually debt-free, we are able to
have this $110 million facility made available to us. We plan to
continue our successful acquisition strategy, which has resulted
in ten (10) acquisitions over the last four years.
Physician Computer Network is a leader in developing, marketing
and supporting practice management software products for
physicians. The software is designed to link its current
installed base of approximately 98,000 office-based physicians
with hospitals, clinical laboratories, managed care providers,
Blue Cross/Blue Shield and Medicare and Medicaid intermediaries.
CREDIT AGREEMENT, dated as of September 10, 1997, among
Physician Computer Network, Inc., a New Jersey corporation (the
"Borrower"), the several banks and other financial institutions
or entities from time to time parties to this Agreement (the
"Lenders"), LEHMAN COMMERCIAL PAPER INC., as arranger (in such
capacity, the "Arranger") and as syndication agent (in such
capacity, the "Syndication Agent"), and Fleet Bank, N.A., as
administrative agent.
W I T N E S S E T H:
WHEREAS, the Borrower wishes to establish a revolving
credit facility to provide financing for certain acquisitions and
other working capital and general corporate purposes;
WHEREAS, the Lenders are willing to make such credit
facilities available upon and subject to the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and
the agreements hereinafter set forth, the parties hereto hereby
agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
terms listed in this Section 1.1 shall have the respective
meanings set forth in this Section 1.1.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": Fleet Bank, N.A., together
with its affiliates, as the administrative agent for the
Lenders under this Agreement and the other Loan Documents,
together with any of its successors.
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes
of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of
the securities having ordinary voting power for the election
of directors (or persons performing similar functions) of
such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract
or otherwise.
"Agents": the collective reference to the Arranger,
the Administrative Agent and the Syndication Agent.
"Agreement": this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable Margin": for Base Rate Loans, the rate of
1.00% per annum, and for Eurodollar Loans, the rate of 2.00%
per annum; provided, that on and after the first Adjustment
Date occurring after the date that is six months following
the Closing Date, the Applicable Margin will be determined
pursuant to the Pricing Grid.
"Application": an application, in such form as the
Issuing Lender may specify from time to time, requesting the
Issuing Lender to open a Letter of Credit.
"Assignee": as defined in Section 10.6(c).
"Assignor": as defined in Section 10.6(c).
"Available Revolving Credit Commitment": as to any
Lender at any time, an amount equal to the excess, if any,
of (a) such Lender's Revolving Credit Commitment over (b)
such Lender's Revolving Extensions of Credit.
"Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the
greatest of (a) the Prime Rate in effect on such day, (b)
the Base CD Rate in effect on such day plus 1% and (c) the
Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to
time by the Reference Lender as its prime rate in effect at
its principal office in New York City (the Prime Rate not
being intended to be the lowest rate of interest charged by
the Reference Lender in connection with extensions of credit
to debtors); "Base CD Rate" shall mean the sum of (a) the
product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator
of which is one minus the C/D Reserve Percentage and (b) the
C/D Assessment Rate; and "Three-Month Secondary CD Rate"
shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in
effect on such day (or, if such day shall not be a Business
Day, the next preceding Business Day) by the Board through
the public information telephone line of the Federal Reserve
Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of
deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on
such day (or, if such day shall not be a Business Day, on
the next preceding Business Day) by the Reference Lender
from three New York City negotiable certificate of deposit
dealers of recognized standing selected by it. Any change
in the Base Rate due to a change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Rate, the Three-Month Secondary
CD Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans the rate of interest
applicable to which is based upon the Base Rate.
"Board": the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Borrowing Date": any Business Day specified by the
Borrower as a date on which the Borrower requests the
relevant Lenders to make Loans hereunder.
"Business": as defined in Section 4.17.
"Business Day": (i) for all purposes other than as
covered by clause (ii) below, a day other than a Saturday,
Sunday or other day on which commercial banks in New York
City are authorized or required by law to close and (ii)
with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar
Loans, any day which is a Business Day described in clause
(i) and which is also a day for trading by and between banks
in Dollar deposits in the interbank eurodollar market.
"Capital Expenditures": for any period, with respect
to any Person, the aggregate of all expenditures by such
Person and its Subsidiaries for the acquisition or leasing
(pursuant to a capital lease) of fixed or capital assets or
additions to equipment (including replacements, capitalized
repairs and improvements during such period) which should be
capitalized under GAAP on a consolidated balance sheet of
such Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, the
obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right
to use) real or personal property, or a combination thereof,
which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such
Person under GAAP and, for the purposes of this Agreement,
the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any
of the foregoing.
"Cash Equivalents": (a) marketable direct obligations
issued by, or unconditionally guaranteed by, the United
States Government or issued by any agency thereof and backed
by the full faith and credit of the United States, in each
case maturing within one year from the date of acquisition;
(b) certificates of deposit, time deposits, eurodollar time
deposits or overnight bank deposits having maturities of six
months or less from the date of acquisition issued by any
Lender or by any commercial bank organized under the laws of
the United States of America or any state thereof having
combined capital and surplus of not less than $500,000,000;
(c) commercial paper of an issuer rated at least A-2 by
Standard & Poor's Ratings Services ("S&P") or P-2 by Moody's
Investors Service, Inc. ("Moody's"), or carrying an
equivalent rating by a nationally recognized rating agency,
if both of the two named rating agencies cease publishing
ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial
bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured
by the United States government; (e) securities with
maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or
territory of the United states, by any political subdivision
or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of
which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be)
are rated at least A by S&P or A by Moody's; (f) securities
with maturities of six months or less from the date of
acquisition backed by standby letters of credit issued by
any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition; or (g) shares
of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition.
"C/D Assessment Rate": for any day as applied to any
Base Rate Loan, the annual assessment rate in effect on such
day which is payable by a member of the Bank Insurance Fund
maintained by the Federal Deposit Insurance Corporation (the
"FDIC") classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor
assessment risk classification) within the meaning of 12
C.F.R. 327.4 (or any successor provision) to the FDIC (or
any successor) for the FDIC's (or such successor's) insuring
time deposits at offices of such institution in the United
States.
"C/D Reserve Percentage": for any day as applied to
any Base Rate Loan, that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board,
for determining the maximum reserve requirement for a
Depositary Institution (as defined in Regulation D of the
Board as in effect from time to time) in respect of new
non-personal time deposits in Dollars having a maturity of
30 days or more.
"Closing Date": the date on which the conditions
precedent set forth in Section 5.1 shall have been
satisfied, which date is September 10, 1997.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral": all Property of the Loan Parties, now
owned or hereafter acquired, upon which a Lien is purported
to be created by any Security Document.
"Commitment Fee Rate": 0.375% per annum; provided,
that on and after the first Adjustment Date occurring after
the date that is six months following the Closing Date, the
Commitment Fee Rate will be determined pursuant to the
Pricing Grid.
"Commonly Controlled Entity": an entity, whether or
not incorporated, which is under common control with the
Borrower within the meaning of Section 4001 of ERISA or is
part of a group which includes the Borrower and which is
treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed
by a Responsible Officer substantially in the form of
Exhibit B.
"Confidential Information Memorandum": the
Confidential Information Memorandum dated August 1997 and
furnished to the Lenders.
"Consolidated EBITDA": for any period, Consolidated
Net Income for such period plus, without duplication and to
the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a)
total income tax expense, (b) interest expense, amortization
or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated
with Indebtedness (including the Loans), (c) depreciation
and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization
costs, (e) any extraordinary or non-recurring expenses or
losses (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net
Income for such period, losses on sales of assets outside of
the ordinary course of business) and (f) any other non-cash
charges (including non-recurring charges directly related to
the consummation of any Permitted Acquisition, such as
write-off of research and development in process assumed in
any such Permitted Acquisition), and minus, to the extent
included in the statement of such Consolidated Net Income
for such period, the sum of (a) interest income, (b) any
extraordinary or non-recurring income or gains (including,
whether or not otherwise includable as a separate item in
the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary
course of business) and (c) any other non-cash income, all
as determined on a consolidated basis.
"Consolidated Interest Coverage Ratio": for any
period, the ratio of (a) Consolidated EBITDA for such period
to (b) Consolidated Interest Expense for such period.
"Consolidated Interest Expense": for any period, the
sum of (i) total interest expense (including that
attributable to Capital Lease Obligations) of the Borrower
and its Subsidiaries for such period with respect to all
outstanding Indebtedness of the Borrower and its
Subsidiaries (including, without limitation, all
commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance
financing and net costs under Interest Rate Protection
Agreements to the extent such net costs are allocable to
such period in accordance with GAAP) and (ii) the aggregate
amount of dividends paid in respect of Specified Preferred
Stock during such period.
"Consolidated Net Income": for any period, the
consolidated net income (or loss) of the Borrower and its
Subsidiaries, determined on a consolidated basis in
accordance with GAAP; provided that there shall be excluded
(a) the income (or deficit) of any Person accrued prior to
the date it becomes a Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any of its
Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary of the Borrower) in which the
Borrower or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is
actually received by the Borrower or such Subsidiary in the
form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of the Borrower to
the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Requirement of Law
applicable to such Subsidiary.
"Consolidated Net Worth": at any date, all amounts
which would, in conformity with GAAP, be included on a
consolidated balance sheet of the Borrower and its
Subsidiaries under stockholders' equity at such date.
"Consolidated Senior Debt": all Consolidated Total
Debt other than Subordinated Debt.
"Consolidated Senior Leverage Ratio": as of the last
day of any period of four consecutive fiscal quarters, the
ratio of (a) Consolidated Senior Debt on such day to (b)
Consolidated EBITDA for such period; provided that for
purposes of calculating Consolidated EBITDA of the Borrower
and its Subsidiaries for any period, the Consolidated EBITDA
of any Person acquired by the Borrower or its Subsidiaries
during such period shall be included on a pro forma basis
for such period (assuming the consummation of each such
acquisition and the incurrence or assumption of any
Indebtedness in connection therewith occurred on the first
day of such period) if the consolidated balance sheet of
such acquired Person and its consolidated Subsidiaries as at
the end of the period preceding the acquisition of such
Person and the related consolidated statements of income and
stockholders' equity and of cash flows for the period in
respect of which Consolidated EBITDA is to be calculated
(i) have been previously provided to the Administrative
Agent, the Syndication Agent and the Lenders and (ii) in the
case of any such acquisition the aggregate consideration for
which is $5,000,000 or more, have been reported on without a
qualification arising out of the scope of the audit (other
than a "going concern" or like qualification or exception)
by independent certified public accountants of nationally
recognized standing.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Funded Debt of the Borrower and its
Subsidiaries at such date, determined on a consolidated
basis in accordance with GAAP.
"Consolidated Total Leverage Ratio": as at the last
day of any period of four consecutive fiscal quarters, the
ratio of (a) Consolidated Total Debt on such day to (b)
Consolidated EBITDA for such period; provided that for
purposes of calculating Consolidated EBITDA of the Borrower
and its Subsidiaries for any period, the Consolidated EBITDA
of any Person acquired by the Borrower or its Subsidiaries
during such period shall be included on a pro forma basis
for such period (assuming the consummation of each such
acquisition and the incurrence or assumption of any
Indebtedness in connection therewith occurred on the first
day of such period) if the consolidated balance sheet of
such acquired Person and its consolidated Subsidiaries as at
the end of the period preceding the acquisition of such
Person and the related consolidated statements of income and
stockholders' equity and of cash flows for the period in
respect of which Consolidated EBITDA is to be calculated
(i) have been previously provided to the Administrative
Agent, the Syndication Agent and the Lenders and (ii) in the
case of any such acquisition the aggregate consideration for
which is $5,000,000 or more, have been reported on without a
qualification arising out of the scope of the audit (other
than a "going concern" or like qualification or exception)
by independent certified public accountants of nationally
recognized standing.
"Continuing Directors": the directors of the Borrower
on the Closing Date, and each other director, if, in each
case, such other director's nomination for election to the
board of directors of the Borrower is recommended by at
least 66-2/3% of the then Continuing Directors.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such
Person is a party or by which it or any of its Property is
bound.
"Default": any of the events specified in Section 8,
whether or not any requirement for the giving of notice, the
lapse of time, or both, has been satisfied.
"Defaulting Lender": any Lender with respect to which
a Lender Default is in effect.
"Disposition": with respect to any Property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer
or other disposition thereof; and the terms "Dispose" and
"Disposed of" shall have correlative meanings.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the
United States of America.
"Environmental Laws": any and all foreign, Federal,
state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of
human health or the environment, as now or may at any time
hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as
applied to a Eurodollar Loan, the aggregate (without
duplication) of the maximum rates (expressed as a decimal
fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental,
marginal and emergency reserves under any regulations of the
Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of the Board)
maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day
during each Interest Period pertaining to a Eurodollar Loan,
the rate per annum determined on the basis of the rate for
deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Telerate screen as of 11:00
A.M., London time, two Business Days prior to the beginning
of such Interest Period. In the event that such rate does
not appear on Page 3750 of the Telerate Service (or
otherwise on such service), the "Eurodollar Base Rate" for
purposes of this definition shall be determined by reference
to such other comparable publicly available service for
displaying eurodollar rates as may be selected by the
Administrative Agent or, in the absence of such
availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about
11:00 A.M., New York City time, two Business Days prior to
the beginning of such Interest Period in the interbank
eurodollar market where its eurodollar and foreign currency
and exchange operations are then being conducted for
delivery on the first day of such Interest Period for the
number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, a rate
per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to
Eurodollar Loans the then current Interest Periods with
respect to all of which begin on the same date and end on
the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default": any of the events specified in
Section 8, provided that any requirement for the giving of
notice, the lapse of time, or both, has been satisfied.
"Excluded Foreign Subsidiaries": any Foreign
Subsidiary the pledge of all of whose Capital Stock as
Collateral would, in the good faith judgment of the
Borrower, result in adverse tax consequences to the
Borrower.
"Existing Credit Facility": the Loan Agreement, dated
as of June 4, 1997, between the Borrower and Fleet Bank,
N.A..
"Federal Funds Effective Rate": for any day, the
weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for
the day of such transactions received by the Reference
Lender from three federal funds brokers of recognized
standing selected by it.
"Foreign Subsidiary": any Subsidiary of the Borrower
that is not a Domestic Subsidiary.
"Funded Debt": as to any Person, (i) all Indebtedness
of such Person that matures more than one year from the date
of its creation or matures within one year from such date
but is renewable or extendible, at the option of such
Person, to a date more than one year from such date or
arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a
period of more than one year from such date, including,
without limitation, all current maturities and current
sinking fund payments in respect of such Indebtedness
whether or not required to be paid within one year from the
date of its creation and, in the case of the Borrower,
Indebtedness in respect of the Loans, and (ii) all Specified
Preferred Stock, calculated as the aggregate liquidation
preference amount thereof.
"Funding Office": the office of the Administrative
Agent set forth in Section 9.2 or such other office
specified from time to time by the Administrative Agent as
its funding office by notice to the Borrower and the
Lenders.
"GAAP": generally accepted accounting principles in
the United States of America as in effect from time to time
set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board
and the rules and regulations of the Securities and Exchange
Commission, or in such other statements by such other entity
as may be in general use by significant segments of the
accounting profession, which are applicable to the
circumstances of the Borrower as of the date of
determination, except that for purposes of Section 7.1, GAAP
shall be determined on the basis of such principles in
effect on the date hereof and consistent with those used in
the preparation of the most recent audited financial
statements delivered pursuant to Section 4.1(b). In the
event that any "Accounting Change" (as defined below) shall
occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in
this Agreement, then the Borrower, the Administrative Agent
and the Syndication Agent agree to enter into negotiations
in order to amend such provisions of this Agreement so as to
equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating the Borrower's
financial condition shall be the same after such Accounting
Changes as if such Accounting Changes had not been made.
Until such time as such an amendment shall have been
executed and delivered by the Borrower, the Administrative
Agent, the Syndication Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement
shall continue to be calculated or construed as if such
Accounting Changes had not occurred. "Accounting Changes"
refers to changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or
opinion by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants or, if
applicable, the Securities and Exchange Commission (or
successors thereto or agencies with similar functions).
"Governmental Authority": any nation or government,
any state or other political subdivision thereof and any
entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government (including, without limitation, the National
Association of Insurance Commissioners).
"Guarantee and Collateral Agreement": the Guarantee
and Collateral Agreement to be executed and delivered by the
Borrower and each Subsidiary Guarantor, substantially in the
form of Exhibit A, as the same may be amended, supplemented
or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the
"guaranteeing person"), any obligation of (a) the
guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other
obligations (the "primary obligations") of any other third
Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or
any Property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency
of the primary obligor, (iii) to purchase Property,
securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business.
The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is
made and (b) the maximum amount for which such guaranteeing
person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.
"HealthPoint": HealthPoint G.P., a New York general
partnership.
"HealthPoint Agreement": the Partnership Agreement,
dated as of January 25, 1996, between Intelligent Medical
Systems, Inc., a wholly owned subsidiary of Glaxo Wellcome
Inc., and PCN HP Venture Corp., a wholly owned subsidiary of
the Borrower.
"Incur": as defined in Section 7.2.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for
borrowed money, (b) all obligations of such Person for the
deferred purchase price of Property or services (other than
current trade payables incurred in the ordinary course of
such Person's business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under
any conditional sale or other title retention agreement with
respect to Property acquired by such Person (even though the
rights and remedies of the seller or lender under such
agreement in the event of default are limited to
repossession or sale of such Property), (e) all Capital
Lease Obligations of such Person, (f) all obligations of
such Person, contingent or otherwise, as an account party
under acceptance, letter of credit or similar facilities,
(g) all obligations of such Person, contingent or otherwise,
to purchase, redeem, retire or otherwise acquire for value
any Capital Stock (other than common stock) of such Person,
(h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through
(g) above; (i) all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the
holder of such obligation has an existing right, contingent
or otherwise, to be secured by) any Lien on Property
(including, without limitation, accounts and contract
rights) owned by such Person, whether or not such Person has
assumed or become liable for the payment of such obligation,
and (j) for the purposes of Section 8(e) only, all
obligations of such Person in respect of Interest Rate
Protection Agreements.
"Insolvency": with respect to any Multiemployer Plan,
the condition that such Plan is insolvent within the meaning
of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to
all rights, priorities and privileges relating to
intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including,
without limitation, copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark licenses, technology,
know-how and processes, and all rights to sue at law or in
equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages
therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan,
the last day of each March, June, September and December to
occur while such Loan is outstanding and the final maturity
date of such Loan, (b) as to any Eurodollar Loan having an
Interest Period of three months or less, the last day of
such Interest Period, (c) as to any Eurodollar Loan having
an Interest Period longer than three months, each day which
is three months, or a whole multiple thereof, after the
first day of such Interest Period and the last day of such
Interest Period and (d) as to any Loan (other than any Base
Rate Loan), the date of any repayment or prepayment made in
respect thereof.
"Interest Period": as to any Eurodollar Loan, (a)
initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six or (if
available to all Lenders) twelve months thereafter, as
selected by the Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect
thereto; and (b) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six or
(if available to all Lenders) twelve months thereafter, as
selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior
to the last day of the then current Interest Period with
respect thereto; provided that, all of the foregoing
provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period would otherwise end on
a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry
such Interest Period into another calendar month in
which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) any Interest Period that would otherwise
extend beyond the Revolving Credit Termination Date
shall end on the Revolving Credit Termination Date;
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the
calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month;
and
(iv) the Borrower shall select Interest Periods so
as not to require a payment or prepayment of any
Eurodollar Loan during an Interest Period for such
Loan.
"Interest Rate Protection Agreement": any interest
rate protection agreement, interest rate futures contract,
interest rate option, interest rate cap or other interest
rate hedge arrangement, to or under which the Borrower or
any of its Subsidiaries is a party or a beneficiary on the
date hereof or becomes a party or a beneficiary after the
date hereof.
"Issuing Lender": Fleet Bank, N.A., in its capacity as
issuer of any Letter of Credit.
"L/C Commitment": $10,000,000.
"L/C Fee Payment Date": the last day of each March,
June, September and December and the last day of the
Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the
sum of (a) the aggregate then undrawn and unexpired amount
of the then outstanding Letters of Credit and (b) the
aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": the collective reference to all
the Lenders other than the Issuing Lender.
"Lender Default": (a) the refusal (which has not been
retracted) of a Lender to make available its portions of any
borrowing or to fund its portion of any unreimbursed payment
under Section 3.5 or (b) a Lender having notified the
Administrative Agent and/or the Borrower that it does not
intend to comply with its obligations under Section 2.1 or
under Section 3.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien
(statutory or other), charge or other security interest or
any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or
other title retention agreement and any capital lease having
substantially the same economic effect as any of the
foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Security
Documents and the Notes.
"Loan Parties": The Borrower and each Subsidiary of
the Borrower which is a party to a Loan Document.
"Mandatory Payment Preferred Stock": Specified
Preferred Stock that has any terms requiring retirement,
repayment, repurchase, redemption, distribution (other than
ordinary scheduled dividends) or sinking fund payment
(including any requirement that the issuer thereof offer to
take any of the foregoing actions).
"Material Adverse Effect": a material adverse effect
on (a) the business, assets, property, condition (financial
or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Agents or the
Lenders hereunder or thereunder, taken as a whole.
"Material Environmental Amount": an amount payable by
the Borrower and/or its Subsidiaries in excess of $1,000,000
for remedial costs, compliance costs, compensatory damages,
punitive damages, fines, penalties or any combination
thereof.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or
under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Multiemployer Plan": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Net Proceeds": in connection with any Specified
Disposition, an amount equal to the proceeds thereof net of
attorneys' fees, accountants' fees, investment banking fees,
amounts required to be applied to the repayment of
Indebtedness secured by a Lien expressly permitted hereunder
on any asset which is the subject of such Specified
Disposition (other than any Lien pursuant to a Security
Document) and other customary fees and expenses actually
incurred in connection therewith and net of taxes paid or
reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or
deductions and any tax sharing arrangements).
"Non-Excluded Taxes": as defined in Section 2.14(a).
"Non-U.S. Lender": as defined in Section 2.14(d).
"Notes": the collective reference to any promissory
note evidencing Loans.
"Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the
maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all
other obligations and liabilities of the Borrower to the
Administrative Agent, any other Agent or to any Lender (or,
in the case of Interest Rate Protection Agreements, any
affiliate of any Lender), whether direct or indirect,
absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Loan
Document, the Letters of Credit, any Interest Rate
Protection Agreement entered into with any Lender or any
affiliate of any Lender or any other document made,
delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees, charges and disbursements of
counsel to the Administrative Agent, any other Agent or to
any Lender that are required to be paid by the Borrower
pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of,
or otherwise with respect to, this Agreement.
"Participant": as defined in Section 10.6(b).
"Payment Office": the office of the Administrative
Agent set forth in Section 9.2 or such office specified from
time to time by the Administrative Agent as its payment
office by notice to the Borrower and the Lenders.
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or
any successor).
"Permitted Acquisition": any acquisition by the
Borrower or any of its Subsidiaries of Capital Stock of a
Person or of assets constituting a business unit or a
material part of a business unit (any of the foregoing, an
"Acquired Entity"), or investment in any of the foregoing,
in each case in businesses related to the business of the
Borrower and its Subsidiaries (or any business or activity
that is a reasonable extension, development or expansion
thereof); provided that the board of directors (or its
equivalent, in the case of any entity other than a
corporation) of the Acquired Entity shall have approved such
acquisition on or prior to the execution of definitive
purchase, merger or similar documentation in respect
thereof; provided further that the Borrower shall have
obtained the prior written consent of the Supermajority
Lenders in respect of:
(a) any such acquisition or investment (other than any
acquisition of assets other than Capital Stock that
results in such assets being owned by the Borrower or
any Wholly Owned Subsidiary Guarantor) resulting in the
direct or indirect ownership by the Borrower and its
Subsidiaries of 80% or less of the Capital Stock of the
Acquired Entity if, after giving effect thereto, the
aggregate amount of consideration (including cash,
Indebtedness assumed or incurred and equity and assets
contributed or invested) provided by the Borrower and
its Subsidiaries in respect of all such acquisitions
and investments described in this clause (a) would
exceed $35,000,000;
(b) any such acquisition or investment (other than any
acquisition of assets other than Capital Stock that
results in such assets being owned by the Borrower or
any Wholly Owned Subsidiary Guarantor) resulting in the
direct or indirect ownership by the Borrower and its
Subsidiaries of more than 80% but less that 100% of the
Capital Stock of the Acquired Entity if, after giving
effect thereto, the aggregate amount of consideration
(including cash, Indebtedness assumed or incurred and
equity and assets contributed or invested) provided by
the Borrower and its Subsidiaries in respect of all
such acquisitions and investments described in this
clause (b) would exceed $50,000,000;
(c) any such acquisition or investment (i) involving an
aggregate amount of consideration provided by the
Borrower and its Subsidiaries in the form of cash and
Indebtedness assumed or incurred of $35,000,000 or more
for any single such acquisition or investment, (ii) if,
after giving effect thereto, the aggregate amount of
consideration (including cash, Indebtedness assumed or
incurred and equity or assets contributed or invested)
provided by the Borrower and its Subsidiaries during
any fiscal year of the Borrower for all such
acquisitions and investments would exceed $100,000,000
or (iii) if, after giving effect thereto, the aggregate
amount of consideration provided by the Borrower and
its Subsidiaries constituting cash or Indebtedness
assumed or incurred during any fiscal year of the
Borrower for all such acquisitions and investments
would exceed $70,000,000; and
(d) any such acquisition or investment involving an
aggregate amount of consideration (including cash,
Indebtedness assumed or incurred and equity or assets
contributed or invested) provided by the Borrower and
its Subsidiaries in excess of $70,000,000 if (i) the
Consolidated Total Leverage Ratio would be greater than
3.0 to 1.0 or (ii) the Consolidated Interest Coverage
Ratio would be less than (A) 3.0 to 1.0, in the case of
any such acquisition or investment consummated prior to
January 1, 1999, (B) 3.25 to 1.0, in the case of any
such acquisition or investment consummated during the
1999 calendar year, or (C) 3.5 to 1.0, in the case of
any such acquisition or investment consummated
thereafter, in each case determined on a pro forma
basis after giving effect to such acquisition or
investment for the period of four consecutive fiscal
quarters ending on the last day of the most recent
fiscal quarter prior to the consummation of such
acquisition or investment for which financial
statements have been delivered pursuant to subsection
6.1, assuming for the purposes of such pro forma
determination that such acquisition or investment had
been consummated on the first day of such four-quarter
period.
"Person": an individual, partnership, corporation,
limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit
plan which is covered by ERISA and in respect of which the
Borrower or a Commonly Controlled Entity is (or, if such
plan were terminated at such time, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pricing Grid": the pricing grid attached hereto as
Annex A.
"Pro Forma Balance Sheet": as defined in Section
4.1(a).
"Projections": as defined in Section 6.2(c).
"Properties": as defined in Section 4.17.
"Property": any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible, including, without
limitation, Capital Stock.
"Reference Lender": Fleet Bank, N.A.
"Register": as defined in Section 10.6(d).
"Regulation G": Regulation G of the Board as in effect
from time to time.
"Regulation U": Regulation U of the Board as in effect
from time to time.
"Reimbursement Obligation": the obligation of the
Borrower to reimburse the Issuing Lender pursuant to Section
3.5 for amounts drawn under Letters of Credit.
"Related Party": with respect to Jeffry M. Picower,
(i) any spouse or immediate family member of Jeffry M.
Picower or (ii) any trust, corporation, partnership or other
entity, the beneficiaries, stockholders, partners, owners or
Persons beneficially holding (directly or through one or
more Subsidiaries) an 80% or more controlling interest of
which consist of Jeffry M. Picower and/or such other Persons
referred to in the immediately preceding clause (i).
"Reorganization": with respect to any Multiemployer
Plan, the condition that such plan is in reorganization
within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in
Section 4043(b) of ERISA, other than those events as to
which the thirty day notice period is waived under
subsection .13, .14, .16, .18, .19 or .20 of PBGC Reg.
2615.
"Required Lenders": at any time, the holders (other
than Defaulting Lenders at such time) of more than 50% of
the Total Revolving Credit Commitments or, if the Revolving
Credit Commitments have been terminated, the Total Revolving
Extensions of Credit, provided that for the purposes of this
definition, Total Revolving Credit Commitments and Total
Revolving Extensions of Credit shall be deemed not to
include the Revolving Credit Commitments or Revolving
Extensions of Credit of Defaulting Lenders at such time.
"Requirement of Law": as to any Person, the
Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any
of its Property or to which such Person or any of its
Property is subject.
"Responsible Officer": the chief executive officer,
president or chief financial officer of the Borrower, but in
any event, with respect to financial matters, the chief
financial officer of the Borrower.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender, if any, to make Revolving Credit
Loans and participate in Letters of Credit, in an aggregate
principal and/or face amount not to exceed the amount set
forth opposite such Lender's name on Schedule 1.1A, as the
same may be changed from time to time pursuant to the terms
hereof. The original amount of the Total Revolving Credit
Commitments is $100,000,000.
"Revolving Credit Commitment Period": the period from
and including the Closing Date to the Revolving Credit
Termination Date.
"Revolving Credit Loans": as defined in Section 2.1.
"Revolving Credit Percentage": as to any Lender at any
time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the Total Revolving Credit
Commitments (or, at any time after the Revolving Credit
Commitments shall have expired or terminated, the percentage
which the aggregate principal amount of such Lender's
Revolving Credit Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Credit Loans
then outstanding).
"Revolving Credit Termination Date": September 30,
2001.
"Revolving Extensions of Credit": as to any Lender at
any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Credit Loans made by such
Lender then outstanding and (b) such Lender's Revolving
Credit Percentage of the L/C Obligations then outstanding.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement and all other security
documents hereafter delivered to the Administrative Agent
granting a Lien on any Property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan
Document.
"Single Employer Plan": any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means
that, as of any date of determination, (a) the amount of the
"present fair saleable value" of the assets of such Person
will, as of such date, exceed the amount of all "liabilities
of such Person, contingent or otherwise", as of such date,
as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations
of the insolvency of debtors, (b) the present fair saleable
value of the assets of such Person will, as of such date, be
greater than the amount that will be required to pay the
liability of such Person on its debts as such debts become
absolute and matured, (c) such Person will not have, as of
such date, an unreasonably small amount of capital with
which to conduct its business, and (d) such Person will be
able to pay its debts as they mature. For purposes of this
definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not
such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured
or (y) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced
to judgment, fixed, contingent, matured or unmatured,
disputed, undisputed, secured or unsecured.
"Specified Dispositions": the Disposition by the
Borrower or any Subsidiary of the Borrower of any one or
more of: (i) the assets used or usable by the Borrower and
its Subsidiaries in connection with the business of selling,
licensing or providing integrated information systems, and
the maintenance and support of such systems, to customers
not engaged in the health care industry (whether such assets
are currently owned by the Borrower or one or more of its
Subsidiaries or subsequently acquired by the Borrower or one
or more of its Subsidiaries as part of a Permitted
Acquisition), including, without limitation, the
construction, timber, fuel oil and publishing businesses
(sales to which businesses, collectively, are commonly
referred to by the Borrower as "Commercial Business"); (ii)
the assets used or usable by the Borrower and its
Subsidiaries in connection with the business of selling,
licensing or providing practice management software and
systems, and maintenance and support of such systems, to
dentists, dental practices, chiropractors and chiropractic
practices and similar health care professionals (other than
physicians), including, without limitation, the Borrower's
maintenance and support agreements with, and customer lists
of, such dentists, dental practices, chiropractors,
chiropractic practices and such other health care
professions; (iii) all of the Capital Stock of any
Subsidiary of the Borrower substantially all of whose
business consists of the businesses referred to in clauses
(i) and/or (ii) above; (iv) the assets or capital stock of
Integrated Health Systems, Inc., a Subsidiary of the
Borrower engaged in the business of providing information
systems and software products to hospitals, clinics or the
like; and (v) the real property located in Mead, Washington
which is owned by the Borrower's Subsidiary, Wismer-Martin
Corp.
"Specified Preferred Stock": Capital Stock issued by
the Borrower constituting preferred stock that (i) has no
terms requiring retirement, repayment, repurchase,
redemption, distribution or sinking fund payment (including
any requirement that the issuer thereof offer to take any of
the foregoing actions) prior to the date that is one year
after the Revolving Credit Termination Date and (ii) has
terms material to the interests of the Lenders, including,
without limitation, the amount and terms of any dividends
payable thereon and any material voting or director
designation rights, that are satisfactory to the Required
Lenders, provided that the aggregate liquidation preference
amount of all such Specified Preference Stock does not
exceed, when added to the aggregate amount of Subordinated
Indebtedness outstanding at such time, $25,000,000 at any
time.
"Subordinated Indebtedness": unsecured Indebtedness of
the Borrower or its Subsidiaries that is (i) stated to be
fully subordinated in payment or priority to the Obligations
and any part thereof, (ii) has no terms requiring or
permitting any interim or final maturity or repayment,
repurchase, redemption or sinking fund payment (including
any requirement that the issuer thereof offer to take any of
the foregoing actions) prior to the date that is one year
after the Revolving Credit Termination Date and (iii) has
terms material to the interests of the Lenders that are
satisfactory to the Required Lenders.
"Subsidiary": as to any Person, a corporation,
partnership, limited liability company or other entity of
which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board
of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to
a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of the
Borrower other than any Excluded Foreign Subsidiary.
"Supermajority Lenders": at any time, the holders
(other than Defaulting Lenders at such time) of at least 70%
of the Total Revolving Credit Commitments or, if the
Revolving Credit Commitments have been terminated, the Total
Revolving Extensions of Credit; provided that for purposes
of this definition, Total Revolving Credit Commitments and
Total Revolving Extensions of Credit shall be deemed not to
include the Revolving Credit Commitments or Revolving
Extensions of Credit of Defaulting Lenders at such time.
"Total Revolving Credit Commitments": at any time, the
aggregate amount of the Revolving Credit Commitments at such
time.
"Total Revolving Extensions of Credit": at any time,
the aggregate amount of the Revolving Extensions of Credit
of the Lenders at such time.
"Transferee": as defined in Section 10.15.
"Type": as to any Loan, its nature as a Base Rate Loan
or a Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice
for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, as the same may be
amended from time to time.
"Versyss": Versyss Incorporated, a Delaware
corporation.
"V Holding": V Holding Corp., a Delaware corporation.
"Wholly Owned Subsidiary": as to any Person, any other
Person all of the Capital Stock of which (other than
directors' qualifying shares required by law) is owned by
such Person directly and/or through other Wholly Owned
Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary
Guarantor that is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in the other Loan
Documents or any certificate or other document made or delivered
pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents,
and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the Borrower and
its Subsidiaries not defined in Section 1.1 and accounting terms
partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision
of this Agreement, and Section, Schedule and Exhibit references
are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of
such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Borrower
from time to time during the Revolving Credit Commitment Period
in an aggregate principal amount at any one time outstanding
which, when added to such Lender's Revolving Credit Percentage of
the L/C Obligations then outstanding, does not exceed the amount
of such Lender's Revolving Credit Commitment. During the
Revolving Credit Commitment Period the Borrower may use the
Revolving Credit Commitments by borrowing, prepaying the
Revolving Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof. The
Revolving Credit Loans may from time to time be Eurodollar Loans
or Base Rate Loans, as determined by the Borrower and notified to
the Administrative Agent in accordance with Sections 2.2 and 2.7,
provided that no Revolving Credit Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the
Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding Revolving
Credit Loans on the Revolving Credit Termination Date.
2.2 Procedure for Revolving Credit Borrowing. The
Borrower may borrow under the Revolving Credit Commitments during
the Revolving Credit Commitment Period on any Business Day,
provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, (a)
three Business Days prior to the requested Borrowing Date, in the
case of Eurodollar Loans, or (b) one Business Day prior to the
requested Borrowing Date, in the case of Base Rate Loans),
specifying (i) the amount and Type of Revolving Credit Loans to
be borrowed, (ii) the requested Borrowing Date and (iii) in the
case of Eurodollar Loans, the respective amounts of each such
Type of Loan and the respective lengths of the initial Interest
Period therefor. Any Revolving Credit Loans made on the Closing
Date shall initially be Base Rate Loans. Each borrowing under
the Revolving Credit Commitments shall be in an amount equal to
(x) in the case of Base Rate Loans, $1,000,000 or a whole
multiple of $500,000 in excess thereof (or, if the then aggregate
Available Revolving Credit Commitments are less than $1,000,000,
such lesser amount) and (y) in the case of Eurodollar Loans,
$3,000,000 or a whole multiple of $500,000 in excess thereof.
Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof.
Each Lender will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the account
of the Borrower at the Funding Office prior to 12:00 Noon, New
York City time, on the Borrowing Date requested by the Borrower
in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the
books of the Funding Office with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and in
like funds as received by the Administrative Agent.
2.3 Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the appropriate Lender
the then unpaid principal amount of each Revolving Credit Loan of
such Lender on the Revolving Credit Termination Date (or such
earlier date on which the Loans become due and payable pursuant
to Section 8). The Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Loans from time to
time outstanding from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in
Section 2.9.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of
the Borrower to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent, on behalf of the
Borrower, shall maintain the Register pursuant to Section
10.6(e), and a subaccount therein for each Lender, in which shall
be recorded (i) the amount of each Loan made hereunder and any
Note evidencing such Loan, the Type thereof and each Interest
Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) both the amount of
any sum received by the Administrative Agent hereunder from the
Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts
of each Lender maintained pursuant to Section 2.3(b) shall, to
the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the obligations of the Borrower
therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable
interest) the Loans made to such Borrower by such Lender in
accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and
deliver to such Lender (i) a promissory note of the Borrower
evidencing any Revolving Credit Loans of such Lender,
substantially in the form of Exhibit F, with appropriate
insertions as to date and principal amount.
2.4 Commitment Fees, etc. (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Lender a
commitment fee for the period from and including the Closing Date
to the last day of the Revolving Credit Commitment Period,
computed at the Commitment Fee Rate on the average daily amount
of the Available Revolving Credit Commitment of such Lender
during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and
December and on the Revolving Credit Termination Date, commencing
on the first of such dates to occur after the date hereof.
(b) The Borrower agrees to pay to the Arranger the
fees in the amounts and on the dates previously agreed to in
writing by the Borrower and the Arranger.
(c) The Borrower agrees to pay to the Administrative
Agent the fees in the amounts and on the dates from time to time
agreed to in writing by the Borrower, the Syndication Agent and
the Administrative Agent.
2.5 Termination or Reduction of Revolving Credit
Commitments. (a) The Borrower shall have the right, upon not
less than three Business Days' notice to the Administrative
Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the amount of the Revolving Credit
Commitments; provided that no such termination or reduction of
Revolving Credit Commitments shall be permitted if, after giving
effect thereto and to any prepayments of the Revolving Credit
Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Credit
Commitments. Any such reduction shall be in an amount equal to
$1,000,000, or a whole multiple thereof, and shall reduce
permanently the Revolving Credit Commitments then in effect.
(b) In the event that the Borrower or any of its
Subsidiaries shall receive Net Proceeds from any Specified
Disposition and all or any portion of such Net Proceeds shall not
have been applied within 365 days after such receipt thereof to
reinvestment in the business of the Borrower and its
Subsidiaries, such amount of Net Proceeds not so applied shall,
on such 365th day, immediately be applied to reduce permanently
the Revolving Credit Commitments by an amount equal to such
amount of Net Proceeds not so applied. Any such reduction of the
Revolving Credit Commitments shall be accompanied by prepayment
of the Revolving Credit Loans to the extent, if any, that the
Total Revolving Extensions of Credit exceed the amount of the
Total Revolving Credit Commitments as so reduced, provided that
if the aggregate principal amount of Revolving Credit Loans then
outstanding is less than the amount of such excess (because L/C
Obligations constitute a portion thereof), the Borrower shall, to
the extent of the balance of such excess, replace outstanding
Letters of Credit and/or deposit an amount in cash in a cash
collateral account established with the Administrative Agent for
the benefit of the Lenders on terms and conditions satisfactory
to the Agents.
2.6 Optional Prepayments. The Borrower may at any
time and from time to time prepay the Loans, in whole or in part,
without premium or penalty, upon irrevocable notice delivered to
the Administrative Agent at least three Business Days prior
thereto in the case of Eurodollar Loans and at least one Business
Day prior thereto in the case of Base Rate Loans, which notice
shall specify the date and amount of prepayment and whether the
prepayment is of Eurodollar Loans or Base Rate Loans; provided,
that if a Eurodollar Loan is prepaid on any day other than the
last day of the Interest Period applicable thereto, the Borrower
shall also pay any amounts owing pursuant to Section 2.15. Upon
receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof. If any such notice
is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in
the case of Base Rate Loans) accrued interest to such date on the
amount prepaid. Partial prepayments of Revolving Credit Loans
shall be in an aggregate principal amount of $500,000 or a whole
multiple thereof.
2.7 Conversion and Continuation Options. (a) The
Borrower may elect from time to time to convert Eurodollar Loans
to Base Rate Loans by giving the Administrative Agent at least
two Business Days' prior irrevocable notice of such election,
provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto.
The Borrower may elect from time to time to convert Base Rate
Loans to Eurodollar Loans by giving the Administrative Agent at
least three Business Days' prior irrevocable notice of such
election (which notice shall specify the length of the initial
Interest Period therefor), provided that no Base Rate Loan may be
converted into a Eurodollar Loan (i) when any Event of Default
has occurred and is continuing and the Administrative Agent and
the Syndication Agent or the Required Lenders have determined in
their sole discretion not to permit such conversions or (ii)
after the date that is one month prior to the final scheduled
termination of the Revolving Credit Commitments. Upon receipt of
any such notice the Administrative Agent shall promptly notify
each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon
the expiration of the then current Interest Period with respect
thereto by the Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in Section
1.1, of the length of the next Interest Period to be applicable
to such Loans, provided that no Eurodollar Loan may be continued
as such (i) when any Event of Default has occurred and is
continuing and the Administrative Agent and the Syndication Agent
or the Required Lenders have determined in its or their sole
discretion not to permit such continuations or (ii) after the
date that is one month prior to the final scheduled termination
of the Revolving Credit Commitments, and provided, further, that
if the Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not
permitted pursuant to the preceding proviso such Loans shall be
automatically converted to Base Rate Loans on the last day of
such then expiring Interest Period. Upon receipt of any such
notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
2.8 Minimum Amounts and Maximum Number of Eurodollar
Tranches. Notwithstanding anything to the contrary in this
Agreement, all borrowings, conversions, continuations and
optional prepayments of Eurodollar Loans hereunder and all
selections of Interest Periods hereunder shall be in such amounts
and be made pursuant to such elections so that, (a) after giving
effect thereto, the aggregate principal amount of the Eurodollar
Loans comprising each Eurodollar Tranche shall be equal to
$3,000,000 or a whole multiple of $500,000 in excess thereof and
(b) no more than eight Eurodollar Tranches shall be outstanding
at any one time.
2.9 Interest Rates and Payment Dates. (a) Each
Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to
the Eurodollar Rate determined for such day plus the Applicable
Margin.
(b) Each Base Rate Loan shall bear interest at a rate
per annum equal to the Base Rate plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of
any Loan or Reimbursement Obligation shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise),
all outstanding Loans and Reimbursement Obligations (whether or
not overdue) shall bear interest at a rate per annum which is
equal to (x) in the case of the Loans, the rate that would
otherwise be applicable thereto pursuant to the foregoing
provisions of this Section 2.9 plus 2% or (y) in the case of
Reimbursement Obligations, the rate applicable to Base Rate Loans
plus 2%, and (ii) if all or a portion of any interest payable on
any Loan or Reimbursement Obligation or any commitment fee or
other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal
to the rate applicable to Base Rate Loans plus 2% (or, in the
case of any such other amounts, the Base Rate plus 4%), in each
case, with respect to clauses (i) and (ii) above, from the date
of such non-payment until such amount is paid in full (as well
after as before judgment).
(d) Interest shall be payable in arrears on each
Interest Payment Date, provided that interest accruing pursuant
to paragraph (c) of this Section 2.9 shall be payable from time
to time on demand.
2.10 Computation of Interest and Fees. (a) Interest,
fees and commissions payable pursuant hereto shall be calculated
on the basis of a 360-day year for the actual days elapsed,
except that, with respect to Base Rate Loans the rate of interest
on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed.
The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the Base Rate or the Eurocurrency
Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement
shall be conclusive and binding on the Borrower and the Lenders
in the absence of manifest error. The Administrative Agent
shall, at the request of the Borrower, deliver to the Borrower a
statement showing the quotations used by the Administrative Agent
in determining any interest rate pursuant to Section 2.10(a).
2.11 Inability to Determine Interest Rate. If prior
to the first day of any Interest Period:
(a) the Administrative Agent and the Syndication Agent
shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received
notice from the Required Lenders that the Eurodollar Rate
determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest
Period,
the Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the relevant Lenders as soon as
practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (y) any Loans
that were to have been converted on the first day of such
Interest Period to Eurodollar Loans shall be continued as Base
Rate Loans and (z) any outstanding Eurodollar Loans shall be
converted, on the first day of such Interest Period, to Base Rate
Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made
or continued as such, nor shall the Borrower have the right to
convert Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments. (a) Each
borrowing by the Borrower from the Lenders hereunder, each
payment by the Borrower on account of any commitment fee and any
reduction of the Revolving Credit Commitments of the Lenders
shall be made pro rata according to the respective Revolving
Credit Percentages, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Revolving
Credit Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Credit Loans then
held by the Lenders.
(c) All payments (including prepayments) to be made by
the Borrower hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 Noon, New York City
time, on the due date thereof to the Administrative Agent, for
the account of the Lenders, at the Payment Office, in Dollars and
in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in
like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a
day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. If any payment on a Eurodollar
Loan becomes due and payable on a day other than a Business Day,
the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to
extend such payment into another calendar month, in which event
such payment shall be made on the immediately preceding Business
Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall
be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such
Lender will not make the amount that would constitute its share
of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such
amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount
is not made available to the Administrative Agent by the required
time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest
thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate
of the Administrative Agent submitted to any Lender with respect
to any amounts owing under this Section 2.12(d) shall be
conclusive in the absence of manifest error. If such Lender's
share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of
such Borrowing Date, the Administrative Agent shall also be
entitled to recover such amount with interest thereon at the rate
per annum applicable to Base Rate Loans, on demand, from the
Borrower.
(e) Unless the Administrative Agent shall have been
notified in writing by the Borrower prior to the date of any
payment being made hereunder that the Borrower will not make such
payment to the Administrative Agent, the Administrative Agent may
assume that the Borrower is making such payment, and the
Administrative Agent may, but shall not be required to, in
reliance upon such assumption, make available to the Lenders
their respective pro rata shares of a corresponding amount. If
such payment is not made to the Administrative Agent by the
Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand,
from each Lender to which any amount which was made available
pursuant to the preceding sentence, such amount with interest
thereon at the rate per annum equal to the daily average Federal
Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the
Borrower.
2.13 Requirements of Law. (a) If the adoption of or
any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request
or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of
Credit, any Application or any Eurodollar Loan made by it,
or change the basis of taxation of payments to such Lender
in respect thereof (except for Non-Excluded Taxes covered by
Section 2.14 and changes in the rate of tax on the overall
net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of
funds by, any office of such Lender which is not otherwise
included in the determination of the Eurodollar Rate
hereunder; or
(iii shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to
such Lender, by an amount which such Lender deems to be material,
of making, converting into, continuing or maintaining Eurodollar
Loans or issuing or participating in Letters of Credit, or to
reduce any amount receivable hereunder in respect thereof, then,
in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate
such Lender for such increased cost or reduced amount receivable.
If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 2.13, it shall promptly notify the
Borrower (with a copy to the Administrative Agent) of the event
by reason of which it has become so entitled.
(b) If any Lender shall have determined that the
adoption of or any change in any Requirement of Law regarding
capital adequacy or in the interpretation or application thereof
or compliance by such Lender or any corporation controlling such
Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the
effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a
level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent)
of a written request therefor, the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such
Lender for such reduction.
(c) A certificate as to any additional amounts payable
pursuant to this Section 2.13 submitted by any Lender to the
Borrower (with a copy to the Administrative Agent) shall be
conclusive in the absence of manifest error. The obligations of
the Borrower pursuant to this Section 2.13 shall survive the
termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
2.14 Taxes. (a) All payments made by the Borrower
under this Agreement shall be made free and clear of, and without
deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise
taxes (imposed in lieu of net income taxes) imposed on any Agent
or any Lender as a result of a present or former connection
between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than
any such connection arising solely from such Agent or such Lender
having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded
Taxes") or Other Taxes are required to be withheld from any amounts payable
to any Agent or any Lender hereunder, the amounts so payable to such Agent
or such Lender shall be increased to the extent necessary to yield to such
Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates
or in the amounts specified in this Agreement, provided, however,
that the Borrower shall not be required to increase any such
amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to
comply with the requirements of paragraph (d) or (e) of this
subsection or (ii) that are United States withholding taxes
imposed on amounts payable to such Lender at the time the Lender
becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with
respect to such Non-Excluded Taxes pursuant to Section 2.14(a).
(b) In addition, the Borrower shall pay any Other
Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are
payable by the Borrower, as promptly as possible thereafter the
Borrower shall send to the Administrative Agent for the account
of the relevant Agent or Lender, as the case may be, a certified
copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes
or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Agents the required receipts or other required documentary
evidence, the Borrower shall indemnify the Agents and the Lenders for any
incremental taxes, interest or penalties that may become payable by any
Agent or any Lender as a result of any such failure. The agreements in this
Section 2.14 shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen
or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under the
laws of the United States of America (or any jurisdiction
thereof), or any estate or trust that is subject to federal
income taxation regardless of the source of its income (a
"Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the
Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender
claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest" a statement substantially in the form of
Exhibit G and a Form W-8, or any subsequent versions thereof or
successors thereto properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or a reduced
rate of, U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such
forms shall be delivered by each Non-U.S. Lender on or before the
date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the
related participation). In addition, each Non-U.S. Lender shall
deliver such forms promptly upon the obsolescence or invalidity
of any form previously delivered by such Non-U.S. Lender. Each
Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other
form of certification adopted by the U.S. taxing authorities for
such purpose). Notwithstanding any other provision of this
Section 2.14(b), a Non-U.S. Lender shall not be required to
deliver any form pursuant to this Section 2.14(d) that such
Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the
jurisdiction in which the Borrower is located, or any treaty to
which such jurisdiction is a party, with respect to payments
under this Agreement shall deliver to the Borrower (with a copy
to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such
documentation and in such Lender's reasonable judgment such
completion, execution or submission would not materially
prejudice the legal position of such Lender.
2.15 Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense
which such Lender may sustain or incur as a consequence of
(a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in
making any prepayment after the Borrower has given a notice
thereof in accordance with the provisions of this Agreement or
(c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto.
Such indemnification may include an amount equal to the excess,
if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of
such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the
applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin included therein, if
any) over (ii) the amount of interest (as reasonably determined
by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period
with leading banks in the interbank eurodollar market. A
certificate as to any amounts payable pursuant to this Section
2.15 submitted to the Borrower by any Lender shall be conclusive
in the absence of manifest error. This covenant shall survive
the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.
2.16 Change of Lending Office. Each Lender agrees
that, upon the occurrence of any event giving rise to the
operation of Section 2.13 or 2.14(a) with respect to such Lender,
it will, if requested by the Borrower, use reasonable efforts
(subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event;
provided, that such designation is made on terms that, in the
sole judgment of such Lender, cause such Lender and its lending
office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section
2.16 shall affect or postpone any of the obligations of any
Borrower or the rights of any Lender pursuant to Section 2.13 or
2.14(a).
2.17 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as
contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted
automatically to Base Rate Loans on the respective last days of
the then current Interest Periods with respect to such Loans or
within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the
last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if
any, as may be required pursuant to subsection 2.15.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and
conditions hereof, the Issuing Lender, in reliance on the
agreements of the other Lenders set forth in Section 3.4(a),
agrees to issue letters of credit ("Letters of Credit") for the
account of the Borrower on any Business Day during the Revolving
Credit Commitment Period in such form as may be approved from
time to time by the Issuing Lender; provided that the Issuing
Lender shall have no obligation to issue any Letter of Credit if,
after giving effect to such issuance, (i) the L/C Obligations
would exceed the L/C Commitment or (ii) the aggregate amount of
the Available Revolving Credit Commitments would be less than
zero. Each Letter of Credit shall (i) be denominated in Dollars
and (ii) expire no later than the earlier of (x) the first
anniversary of its date of issuance and (y) the date which is
five Business Days prior to the Revolving Credit Termination
Date, provided that any Letter of Credit with a one-year term may
provide for the renewal thereof for additional one-year periods
(which shall in no event extend beyond the date referred to in
clause (y) above).
(b) Each Letter of Credit shall be subject to the
Uniform Customs and, to the extent not inconsistent therewith,
the laws of the State of New York.
(c) The Issuing Lender shall not at any time be
obligated to issue any Letter of Credit hereunder if such
issuance would conflict with, or cause the Issuing Lender or any
L/C Participant to exceed any limits imposed by, any applicable
Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The
Borrower may from time to time request that the Issuing Lender
issue a Letter of Credit by delivering to the Issuing Lender at
its address for notices specified herein an Application therefor,
completed to the satisfaction of the Issuing Lender, and such
other certificates, documents and other papers and information as
the Issuing Lender may request. Upon receipt of any Application,
the Issuing Lender will process such Application and the
certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing
Lender be required to issue any Letter of Credit earlier than
three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such
Letter of Credit to the beneficiary thereof or as otherwise may
be agreed to by the Issuing Lender and the Borrower. The Issuing
Lender shall furnish a copy of such Letter of Credit to the
Borrower promptly following the issuance thereof. The Issuing
Lender shall promptly furnish to the Administrative Agent, which
shall in turn promptly furnish to the Lenders, notice of the
issuance of each Letter of Credit (including the amount thereof).
3.3 Commissions, Fees and Other Charges. (a) The
Borrower will pay a commission on all outstanding Letters of
Credit at a per annum rate equal to the Applicable Margin then in
effect with respect to Eurodollar Loans minus the fronting fee
referred to below, shared ratably among the Lenders and payable
quarterly in arrears on each L/C Fee Payment Date after the
issuance date. In addition, the Borrower shall pay to the
Issuing Lender for its own account a fronting fee of 1/4 of 1%
per annum, payable quarterly in arrears on each L/C Fee Payment
Date after the Issuance Date.
(b) In addition to the foregoing fees and commissions,
the Borrower shall pay or reimburse the Issuing Lender for such
normal and customary costs and expenses as are incurred or
charged by the Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of
Credit.
3.4 L/C Participations. (a) The Issuing Lender
irrevocably agrees to grant and hereby grants to each L/C
Participant, and, to induce the Issuing Lender to issue Letters
of Credit hereunder, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from the
Issuing Lender, on the terms and conditions hereinafter stated,
for such L/C Participant's own account and risk an undivided
interest equal to such L/C Participant's Revolving Credit
Percentage in the Issuing Lender's obligations and rights under
each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with the
Issuing Lender that, if a draft is paid under any Letter of
Credit for which the Issuing Lender is not reimbursed in full by
the Borrower in accordance with the terms of this Agreement, such
L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an
amount equal to such L/C Participant's Revolving Credit
Percentage of the amount of such draft, or any part thereof,
which is not so reimbursed.
(b) If any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in
respect of any unreimbursed portion of any payment made by the
Issuing Lender under any Letter of Credit is paid to the Issuing
Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on
demand an amount equal to the product of (i) such amount, times
(ii) the daily average Federal Funds Effective Rate during the
period from and including the date such payment is required to
the date on which such payment is immediately available to the
Issuing Lender, times (iii) a fraction the numerator of which is
the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be
paid by any L/C Participant pursuant to Section 3.4(a) is not
made available to the Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due,
the Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to
Base Rate Loans. A certificate of the Issuing Lender submitted
to any L/C Participant with respect to any amounts owing under
this Section shall be conclusive in the absence of manifest
error.
(c) Whenever, at any time after the Issuing Lender has
made payment under any Letter of Credit and has received from any
L/C Participant its pro rata share of such payment in accordance
with Section 3.4(a), the Issuing Lender receives any payment
related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied
thereto by the Issuing Lender), or any payment of interest on
account thereof, the Issuing Lender will distribute to such L/C
Participant its pro rata share thereof; provided, however, that
in the event that any such payment received by the Issuing Lender
shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The
Borrower agrees to reimburse the Issuing Lender on each date on
which the Issuing Lender notifies the Borrower of the date and
amount of a draft presented under any Letter of Credit and paid
by the Issuing Lender for the amount of (a) such draft so paid
and (b) any taxes, fees, charges or other costs or expenses
incurred by the Issuing Lender in connection with such payment.
Each such payment shall be made to the Issuing Lender at its
address for notices specified herein in lawful money of the
United States of America and in immediately available funds.
Interest shall be payable on any and all amounts remaining unpaid
by the Borrower under this Section from the date such amounts
become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate set forth in Section
2.9(c). Each drawing under any Letter of Credit shall (unless an
event of the type described in clause (i) or (ii) of Section 8(f)
shall have occurred and be continuing with respect to the
Borrower, in which case the procedures specified in Section 3.4
for funding by L/C Participants shall apply) constitute a request
by the Borrower to the Administrative Agent for a borrowing
pursuant to Section 2.2 of Base Rate Loans in the amount of such
drawing. The Borrowing Date with respect to such borrowing shall
be the date of such drawing.
3.6 Obligations Absolute. The Borrower's obligations
under this Section 3 shall be absolute and unconditional under
any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower may have or
have had against the Issuing Lender, any beneficiary of a Letter
of Credit or any other Person. The Borrower also agrees with the
Issuing Lender that the Issuing Lender shall not be responsible
for, and the Borrower's Reimbursement Obligations under Section
3.5 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even
though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the
Borrower and any beneficiary of any Letter of Credit or any other
party to which such Letter of Credit may be transferred or any
claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee. The Issuing Lender
shall not be liable for any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions found by a final and
nonappealable decision of a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of
the Issuing Lender. The Borrower agrees that any action taken or
omitted by the Issuing Lender under or in connection with any
Letter of Credit or the related drafts or documents, if done in
the absence of gross negligence or willful misconduct and in
accordance with the standards or care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing
Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the Issuing
Lender shall promptly notify the Borrower of the date and amount
thereof. The responsibility of the Issuing Lender to the
Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered
under such Letter of Credit in connection with such presentment
are substantially in conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of
any Application related to any Letter of Credit is inconsistent
with the provisions of this Section 3, the provisions of this
Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the
Letters of Credit, the Borrower hereby represents and warrants to
each Agent and each Lender that:
4.1 Financial Condition. (a) The unaudited pro forma
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at March 31, 1997 (including the notes thereto)
(the "Pro Forma Balance Sheet"), copies of which have heretofore
been furnished to each Lender, has been prepared giving effect
(as if such events had occurred on such date) to (i) the
consummation the Loans to be made on the Closing Date and the use
of proceeds thereof and (ii) the payment of fees and expenses in
connection with the foregoing. The Pro Forma Balance Sheet has
been prepared based on the best information available to the
Borrower as of the date of delivery thereof, and presents fairly
on a pro forma basis the estimated financial position of Borrower
and its consolidated Subsidiaries as at March 31, 1997, assuming
that the events specified in the preceding sentence had actually
occurred at such date.
(b) The audited consolidated balance sheets of the
Borrower and its consolidated Subsidiaries as at December 31,
1994, December 31, 1995, and December 31, 1996, and the related
consolidated statements of income and of cash flows for the
fiscal years ended on such dates, reported on by and accompanied
by an unqualified report from KPMG Peat Marwick LLP present
fairly the consolidated financial condition of the Borrower as at
such date, and the consolidated results of its operations and its
consolidated cash flows for the respective fiscal years then
ended. The unaudited consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at June 30, 1997, and the
related unaudited consolidated statements of income and cash
flows for the six-month period ended on such date, present fairly
the consolidated financial condition of the Borrower as at such
date, and the consolidated results of its operations and its
consolidated cash flows for the six-month period then ended
(subject to normal year-end audit adjustments). All such
financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved
by the aforementioned firm of accountants and disclosed therein).
The Borrower and its Subsidiaries do not have any material
Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term
commitments, including, without limitation, any interest rate or
foreign currency swap or exchange transaction or other obligation
in respect of derivatives, which are not reflected in the most
recent financial statements referred to in this paragraph (b).
During the period from December 31, 1996, to and including the
date hereof there has been no Disposition by the Borrower of any
material part of its business or Property and no material
distribution or dividend by the Borrower in respect of its
Capital Stock.
4.2 No Change. Since December 31, 1996, there has
been no development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of
the Borrower and its Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its organization, (b) has the corporate power and authority,
and the legal right, to own and operate its Property, to lease
the Property it operates as lessee and to conduct the business in
which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of Property
or the conduct of its business requires such qualification and
(d) is in compliance with all Requirements of Law, except, in the
case of clauses (c) and (d), to the extent that the failure to be
so qualified or to comply therewith, as the case may be, could
not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable
Obligations. Each Loan Party has the corporate power and
authority, and the legal right, to make, deliver and perform the
Loan Documents to which it is a party and, in the case of the
Borrower, to borrow hereunder. Each Loan Party has taken all
necessary corporate action to authorize the execution, delivery
and performance of the Loan Documents to which it is a party and,
in the case of the Borrower, to authorize the borrowings on the
terms and conditions of this Agreement. No consent or
authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of
this Agreement or any of the Loan Documents, except the filings
referred to in Section 4.19(b). Each Loan Document has been duly
executed and delivered on behalf of each Loan Party party
thereto. This Agreement constitutes, and each other Loan
Document upon execution will constitute, a legal, valid and
binding obligation of each Loan Party party thereto, enforceable
against each such Loan Party in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by
proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and
performance of this Agreement and the other Loan Documents, the
issuance of Letters of Credit, the borrowings hereunder and the
use of the proceeds thereof will not violate any Requirement of
Law or any Contractual Obligation of the Borrower or any of its
Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the
Security Documents). No Requirement of Law or Contractual
Obligation applicable to the Borrower or any of its Subsidiaries
could reasonably be expected to have a Material Adverse Effect.
4.6 No Material Litigation. No litigation,
investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of their respective properties or
revenues (a) with respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby, or (b) which
could reasonably be expected to have a Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be
expected to have a Material Adverse Effect. No Default or Event
of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the
Borrower and its Subsidiaries has title in fee simple to, or a
valid leasehold interest in, all its real property, and good
title to, or a valid leasehold interest in, all its other
Property, and none of such Property is subject to any Lien except
as permitted by Section 7.3.
4.9 Intellectual Property. The Borrower and each of
its Subsidiaries owns, or is licensed to use, all Intellectual
Property necessary for the conduct of its business as currently
conducted. No material claim has been asserted and is pending by
any Person challenging or questioning the use of any Intellectual
Property or the validity or effectiveness of any Intellectual
Property, nor does the Borrower know of any valid basis for any
such claim. The use by the Borrower and its Subsidiaries of
Intellectual Property material to the conduct of its business as
currently conducted does not infringe on the rights of any Person
in any material respect.
4.10 Taxes. Each of the Borrower and each of its
Subsidiaries has filed or caused to be filed all Federal, state
and other material tax returns which are required to be filed and
has paid all taxes shown to be due and payable on said returns or
on any assessments made against it or any of its Property and all
other taxes, fees or other charges imposed on it or any of its
Property by any Governmental Authority (other than any the amount
or validity of which are currently being contested in good faith
by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the
Borrower or its Subsidiaries, as the case may be); no tax Lien
has been filed, and, to the knowledge of the Borrower, no claim
is being asserted, with respect to any such tax, fee or other
charge.
4.11 Federal Regulations. No part of the proceeds of
any Loans will be used for "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms
under Regulation G or Regulation U as now and from time to time
hereafter in effect or for any purpose which violates the
provisions of the Regulations of the Board. If requested by any
Lender, the Administrative Agent or the Syndication Agent, the
Borrower will furnish to the Administrative Agent and each Lender
a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1 referred to in
Regulation G or Regulation U, as the case may be.
4.12 Labor Matters. There are no strikes or other
labor disputes against the Borrower or any of its Subsidiaries
pending or, to the knowledge of the Borrower, threatened that
(individually or in the aggregate) could reasonably be expected
to have a Material Adverse Effect. Hours worked by and payment
made to employees of the Borrower and its Subsidiaries have not
been in violation of the Fair Labor Standards Act or any other
applicable Requirement of Law dealing with such matters that
(individually or in the aggregate) could reasonably be expected
to have a Material Adverse Effect. All payments due from the
Borrower or any of its Subsidiaries on account of employee health
and welfare insurance that (individually or in the aggregate)
could reasonably be expected to have a Material Adverse Effect if
not paid have been paid or accrued as a liability on the books of
the Borrower or the relevant Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of
Section 412 of the Code or Section 302 of ERISA) has occurred
during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan,
and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code. No termination of a
Single Employer Plan has occurred, and no Lien in favor of the
PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did
not, as of the last annual valuation date prior to the date on
which this representation is made or deemed made, exceed the
value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan which has resulted or
could reasonably be expected to result in a material liability
under ERISA, and neither the Borrower nor any Commonly Controlled
Entity would become subject to any material liability under ERISA
if the Borrower or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer
Plan is in Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No
Loan Party is an "investment company", or a company "controlled"
by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended. No Loan Party is subject to
regulation under any Requirement of Law (other than Regulation X
of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries. The Subsidiaries listed on
Schedule 4.15 constitute all the Subsidiaries of the Borrower at
the date hereof.
4.16 Use of Proceeds. The proceeds of the Revolving
Credit Loans and the Letters of Credit, shall be used for working
capital and general corporate purposes, (which general corporate
purposes may include financing Permitted Acquisitions in
accordance with the other provisions hereof).
4.17 Environmental Matters.
(a) The facilities and properties owned, leased or
operated by the Borrower or any of its Subsidiaries (the
"Properties") do not contain, and have not previously contained,
any Materials of Environmental Concern in amounts or
concentrations or under circumstances which (i) constitute or
constituted a violation of, or (ii) could give rise to liability
under, any Environmental Law, except in either case insofar as
such violation or liability, or any aggregation thereof, could
not reasonably be expected to result in the payment of a Material
Environmental Amount.
(b) The Properties and all operations at the
Properties are in material compliance, and have in the last five
years (or, with respect to any of such Properties, such shorter
period during which the Borrower or any Subsidiary as owned,
operated or leased such Properties) been in material compliance,
with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties or violation of
any Environmental Law with respect to the Properties or the
business operated by the Borrower or any of its Subsidiaries (the
"Business") which could materially interfere with the continued
operation of the Properties or materially impair the value
thereof for use by the Borrower and its Subsidiaries in its
normal business as currently conducted with respect thereto.
Neither the Borrower nor any of its Subsidiaries has assumed any
liability of any other Person under Environmental Laws.
(c) Neither the Borrower nor any of its Subsidiaries
has received or is aware of any notice of violation, alleged
violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental
Laws with regard to any of the Properties or the Business, nor
does the Borrower have knowledge or reason to believe that any
such notice will be received or is being threatened, except
insofar as such notice or threatened notice, or any aggregation
thereof, does not involve a matter or matters that could
reasonably be expected to result in the payment of a Material
Environmental Amount.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of,
or in a manner or to a location which could give rise to
liability under, any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed
of at, on or under any of the Properties in violation of, or in a
manner that could give rise to liability under, any applicable
Environmental Law, except insofar as any such violation or
liability referred to in this paragraph, or any aggregation
thereof, could not reasonably be expected to result in the
payment of a Material Environmental Amount.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the
Borrower, threatened, under any Environmental Law to which the
Borrower or any Subsidiary is or will be named as a party with
respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect
to the Properties or the Business, except insofar as such
proceeding, action, decree, order or other requirement, or any
aggregation thereof, could not reasonably be expected to result
in the payment of a Material Environmental Amount.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of the Borrower or any
Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in
a manner that could give rise to liability under Environmental
Laws, except insofar as any such violation or liability referred
to in this paragraph, or any aggregation thereof, could not
reasonably be expected to result in the payment of a Material
Environmental Amount.
4.18 Accuracy of Information, etc. No statement or
information contained in this Agreement, any other Loan Document,
the Confidential Information Memorandum or any other document,
certificate or statement furnished to the Agents or the Lenders
or any of them, by or on behalf of any Loan Party for use in
connection with the transactions contemplated by this Agreement
or the other Loan Documents, contained as of the date such
statement, information, document or certificate was so furnished
(or, in the case of the Confidential Information Memorandum, as
of the date of this Agreement), any untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements contained herein or therein not
misleading. The projections and pro forma financial information
contained in the materials referenced above are based upon good
faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized
by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results
during the period or periods covered by such financial
information may differ from the projected results set forth
therein by a material amount. There is no fact known to any Loan
Party that could reasonably be expected to have a Material
Adverse Effect that has not been expressly disclosed herein, in
the other Loan Documents, in the Confidential Information
Memorandum or in any other documents, certificates and statements
furnished to the Agents and the Lenders for use in connection
with the transactions contemplated hereby and by the other Loan
Documents.
4.19 Security Documents. The Guarantee and Collateral
Agreement is effective to create in favor of the Administrative
Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral described therein
and proceeds thereof. In the case of the Pledged Stock described
in the Guarantee and Collateral Agreement, when stock
certificates representing such Pledged Stock are delivered to the
Administrative Agent, and in the case of the other Collateral
described in the Guarantee and Collateral Agreement, when
financing statements in appropriate form are filed in the offices
specified on Schedule 4.19(a), the Guarantee and Collateral
Agreement shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan
Parties in such Collateral and the proceeds thereof, as security
for the Obligations (as defined in the Guarantee and Collateral
Agreement), in each case prior and superior in right to any other
Person.
4.20 Solvency. Each Loan Party is, and after giving
effect to the incurrence of all Indebtedness and obligations
being incurred in connection herewith will be and will continue
to be, Solvent.
4.21 Regulation H. No mortgage or deed of trust, if
any, constituting a Security Document after the Closing Date
encumbers improved real property which is located in an area that
has been identified by the Secretary of Housing and Urban
Development as an area having special flood hazards and in which
flood insurance has been made available under the National Flood
Insurance Act of 1968.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The
agreement of each Lender to make the initial extension of credit
requested to be made by it is subject to the satisfaction, prior
to or concurrently with the making of such extension of credit on
the Closing Date, of the following conditions precedent:
(a) Loan Documents. The Agents shall have received
(i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, (ii) the Guarantee and
Collateral Agreement, executed and delivered by a duly
authorized officer of the Borrower and each Subsidiary
Guarantor, and (iii) for the account of each relevant Lender
that has requested a Note in accordance herewith, Notes
conforming to the requirements hereof and executed and
delivered by a duly authorized officer of the Borrower.
(b) Pro Forma Balance Sheet; Financial Statements.
The Lenders shall have received (i) the Pro Forma Balance
Sheet, (ii) audited consolidated financial statements of the
Borrower for the 1995 and 1996 fiscal years and (iii)
unaudited interim consolidated financial statements of the
Borrower for each quarterly period ended subsequent to the
date of the latest applicable financial statements delivered
pursuant to clause (ii) of this paragraph as to which such
financial statements are available, and such financial
statements shall not, in the reasonable judgment of the
Lenders, reflect any material adverse change in the
consolidated financial condition of the Borrower as
reflected in the financial statements or projections
contained in the Confidential Information Memorandum.
(c) Approvals. All governmental and third party
approvals (including such landlords' consents previously
requested by the Arranger to the extent such consents are
reasonably available) necessary in connection with the
continuing operations of the Borrower and its Subsidiaries
and the transactions contemplated hereby shall have been
obtained and be in full force and effect, and all applicable
waiting periods shall have expired without any action being
taken or threatened by any competent authority which would
restrain, prevent or otherwise impose adverse conditions on
the financing contemplated hereby.
(d) Termination of Existing Credit Facilities. The
Agents shall have received evidence satisfactory to them
that the Existing Credit Facilities shall be simultaneously
terminated, all amounts thereunder shall be simultaneously
paid in full and arrangements satisfactory to the Agents
shall have been made for the termination of Liens and
security interests granted in connection therewith.
(e) Fees. The Lenders and the Agents shall have
received all fees required to be paid, and all expenses for
which invoices have been presented, on or before the Closing
Date.
(f) Business Plan. The Lenders shall have received a
satisfactory business plan for fiscal years 1997-2001 and a
satisfactory written analysis of the business and prospects
of the Borrower and its Subsidiaries for the period from the
Closing Date through the Revolving Credit Termination Date.
(g) Lien Searches. The Agents shall have received the
results of a recent lien search in each of the jurisdictions
where material assets of the Loan Parties are located, and
such search shall reveal no liens on any of the assets of
the Borrower or its Subsidiaries except for liens permitted
by Section 7.3.
(h) Acquisitions. The Agents shall have received such
information with respect to any recent or pending
acquisitions by the Borrower or its Subsidiaries as
reasonably requested by the Agents.
(i) Closing Certificate. The Agents shall have
received, with a counterpart for each Lender, a certificate
of each Loan Party, dated the Closing Date, substantially in
the form of Exhibit C, with appropriate insertions and
attachments.
(j) Legal Opinions. The Agents shall have received
the following executed legal opinions:
(i the legal opinion of Gordon Altman Butowsky
Weitzen Shalov & Wein, counsel to the Borrower and its
Subsidiaries, substantially in the form of Exhibit E;
and
(ii the legal opinion of local counsel in each
of New Jersey, California and Massachusetts, and of
such other special and local counsel as may be required
by the Agents.
Each such legal opinion shall cover such other matters
incident to the transactions contemplated by this Agreement
as the Agents may reasonably require.
(k) Pledged Stock; Stock Powers. The Agents shall
have received the certificates representing the shares of
Capital Stock pledged pursuant to the Guarantee and
Collateral Agreement, together with an undated stock power
for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof.
(l) Filings, Registrations and Recordings. Each
document (including, without limitation, any Uniform
Commercial Code financing statement) required by the
Security Documents or under law or reasonably requested by
the Agents to be filed, registered or recorded in order to
create in favor of the Administrative Agent, for the benefit
of the Lenders, a perfected Lien on the Collateral described
therein, prior and superior in right to any other Person
(other than with respect to Liens expressly permitted by
Section 7.3), shall be in proper form for filing,
registration or recordation.
5.2 Conditions to Each Extension of Credit. The
agreement of each Lender to make any extension of credit
requested to be made by it on any date (including, without
limitation, its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or
pursuant to the Loan Documents shall be true and correct on
and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving
effect to the extensions of credit requested to be made on
such date.
Each borrowing by and issuance of a Letter of Credit on behalf of
the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such extension of
credit that the conditions contained in this Section 5.2 have
been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the
Revolving Credit Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing
to any Lender or any Agent hereunder, the Borrower shall and
shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to each Agent and
each Lender):
(a) as soon as available, but in any event within
90 days after the end of each fiscal year of the Borrower, a
copy of the audited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of
such year and the related audited consolidated statements of
income and of cash flows for such year, setting forth in
each case in comparative form the figures for the previous
year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of
the scope of the audit, by KPMG Peat Marwick LLP or other
independent certified public accountants of nationally
recognized standing;
(b) as soon as available, but in any event not later
than 45 days after the end of each of the first three
quarterly periods of each fiscal year of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such quarter and
the related unaudited consolidated statements of income and
of cash flows for such quarter and the portion of the fiscal
year through the end of such quarter, setting forth in each
case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in
all material respects (subject to normal year-end audit
adjustments); and
all such financial statements shall be complete and correct in
all material respects and shall be prepared in reasonable detail
and in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and
disclosed therein).
6.2 Certificates; Other Information. Furnish to each
Agent and each Lender, or, in the case of clause (g), to the
relevant Lender:
(a) concurrently with the delivery of the financial
statements referred to in Section 6.1(a), a certificate of
the independent certified public accountants reporting on
such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of any financial
statements pursuant to Section 6.1, (i) a certificate of a
Responsible Officer stating that, to the best of each such
Responsible Officer's knowledge, each Loan Party during such
period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained
in this Agreement and the other Loan Documents to which it
is a party to be observed, performed or satisfied by it, and
that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such
certificate and (ii) in the case of quarterly or annual
financial statements, (x) a Compliance Certificate
containing all information necessary for determining
compliance by the Borrower and its Subsidiaries with the
provisions of this Agreement referred to therein as of the
last day of the fiscal quarter or fiscal year of the
Borrower, as the case may be, and (y) to the extent not
previously disclosed to the Agents, a listing of any county
or state within the United States where any Loan Party keeps
inventory or equipment and of any Intellectual Property
acquired by any Loan Party since the date of the most recent
list delivered pursuant to this clause (y) (or, in the case
of the first such list so delivered, since the Closing
Date);
(c) as soon as available, and in any event no later
than 45 days after the end of each fiscal year of the
Borrower, a detailed consolidated budget for the following
fiscal year (including a projected consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of
the following fiscal year, and the related consolidated
statements of projected cash flow, projected changes in
financial position and projected income), and, as soon as
available, significant revisions, if any, of such budget and
projections with respect to such fiscal year (collectively,
the "Projections"), which Projections shall in each case be
accompanied by a certificate of a Responsible Officer
stating that such Projections are based on reasonable
estimates, information and assumptions and that such
Responsible Officer has no reason to believe that such
Projections are incorrect or misleading in any material
respect;
(d) within 45 days after the end of each fiscal
quarter of the Borrower, a narrative discussion and analysis
of the financial condition and results of operations of the
Borrower and its Subsidiaries for such fiscal quarter and
for the period from the beginning of the then current fiscal
year to the end of such fiscal quarter, as compared to the
comparable periods of the previous year;
(e) at least 30 days prior to the consummation of any
Permitted Acquisition with respect to any Acquired Entity
(as defined in the definition of Permitted Acquisition) or,
in the case of an Permitted Acquisition not requiring the
consent of any Lenders pursuant to the terms of the
definition thereof, at least 10 days (or, in the case of the
contemplated acquisition of Printed Products, Inc. (d/b/a
Solion), five days) prior to the consummation thereof, (i) a
copy of the consolidated balance sheet of such Acquired
Entity as at the end of the most recently ended fiscal year
of such Acquired Entity for which such balance sheet is
available and the related consolidated statements of income
and of cash flows for such year, (ii) the consolidated
balance sheet of such Acquired Entity as at the end of the
most recently ended fiscal quarter of such Acquired Entity
for which such balance sheet is available and the related
consolidated statements of income and of cash flows for such
quarter and the portion of the fiscal year through the end
of such quarter, and (iii) a pro forma consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as
at the end of the most recently ended fiscal quarter for
which financial statements have been delivered pursuant to
Section 6.1, and the related pro forma consolidated
statements of income and of cash flows for the four-quarter
period then ended, set forth on a pro forma basis after
giving effect to such Permitted Acquisition assuming for the
purposes of thereof that such Permitted Acquisition had been
consummated on the first day of such four-quarter period,
and certified by a Responsible Officer; and
(f) within five days after the same are sent, copies
of (i) all financial statements and reports which the
Borrower sends to the holders of any class of its debt
securities or public equity securities, (ii) within five
days after the same are filed, copies of all financial
statements and reports which the Borrower may make to, or
file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority and (iii)
promptly after public release thereof, copies of all
material press releases related to the Borrower and its
Subsidiaries; and
(g) promptly, such additional financial and other
information as any Lender may from time to time reasonably
request.
6.3 Payment of Obligations. Pay, discharge or
otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its material obligations of
whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of the Borrower or its
Subsidiaries, as the case may be.
6.4 Conduct of Business and Maintenance of Existence,
etc. (a) (i) Continue to engage in business of the same
general type as now conducted by it, (ii) preserve, renew and
keep in full force and effect its corporate existence and (iii)
take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its
business, except, in each case, as otherwise permitted by Section
7.4 or, pursuant to a Specified Disposition, Section 7.5, to the
extent applicable, and except, in the case of clause (iii) above,
to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (b) comply with
all Contractual Obligations and Requirements of Law except to the
extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all
Property useful and necessary in its business in good working
order and condition, ordinary wear and tear excepted and
(b) maintain with financially sound and reputable insurance
companies insurance on all its Property in at least such amounts
and against at least such risks (but including in any event
public liability, product liability and business interruption) as
are usually insured against in the same general area by companies
engaged in the same or a similar business.
6.6 Inspection of Property; Books and Records;
Discussions. (a) Keep proper books of records and account in
which full, true and correct entries in conformity with GAAP and
all Requirements of Law shall be made of all dealings and
transactions in relation to its business and activities and (b)
permit representatives of any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its
books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations,
properties and financial and other condition of the Borrower and
its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and with its independent certified public
accountants.
6.7 Notices. Promptly give notice to the Agents and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its
Subsidiaries or (ii) litigation, investigation or proceeding
which may exist at any time between the Borrower or any of
its Subsidiaries and any Governmental Authority, which in
either case, if not cured or if adversely determined, as the
case may be, could reasonably be expected to have a Material
Adverse Effect;
(c) any litigation or proceeding affecting the
Borrower or any of its Subsidiaries in which the amount
involved is $1,000,000 or more and not covered by insurance
or in which injunctive or similar relief is sought;
(d) the following events, as soon as possible and in
any event within 30 days after the Borrower knows or has
reason to know thereof: (i) the occurrence of any
Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from,
or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Borrower
or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan; and
(e) any development or event which has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by
a statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the
Borrower or the relevant Subsidiary proposes to take with respect
thereto.
6.8 Environmental Laws. (a) Comply in all material
respects with, and ensure compliance in all material respects by
all tenants and subtenants, if any, with, all applicable
Environmental Laws, and obtain and comply in all material
respects with and maintain, and ensure that all tenants and
subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental
Laws.
(b) Conduct and complete all material investigations,
studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws and promptly
comply in all material respects with all material lawful orders
and directives of all Governmental Authorities regarding
Environmental Laws.
6.9 Additional Collateral, etc. (a) With respect to
any Property acquired after the Closing Date by the Borrower or
any of its Subsidiaries (other than (x) any Property described in
paragraph (b), (c) or (d) below and (y) any Property subject to a
Lien expressly permitted by Section 7.3(g) or 7.3(h), in each
case to the extent covered by such Lien or to the extent
compliance with this Section 6.9(a) would otherwise be expressly
prohibited by the terms of such Lien) as to which the
Administrative Agent, for the benefit of the Lenders, does not
have a perfected Lien, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and
Collateral Agreement or such other documents as the Agents deem
necessary or advisable in order to grant to the Administrative
Agent, for the benefit of the Lenders, a security interest in
such Property and (ii) take all actions necessary or advisable to
grant to the Administrative Agent, for the benefit of the
Lenders, a perfected first priority security interest in such
Property, including without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may
be required by the Guarantee and Collateral Agreement or by law
or as may be requested by the Agents.
(b) With respect to any fee interest in any real
estate having a value (together with improvements thereof) of at
least $1,000,000 acquired after the Closing Date by the Borrower
or any of its Subsidiaries (other than any such real estate
subject to a Lien expressly permitted by Section 7.3(g) or
7.3(h), in each case to the extent covered by such Lien or to the
extent compliance with this Section 6.9(b) would otherwise be
expressly prohibited by the terms of such Lien), promptly (i)
execute and deliver a first priority mortgage or deed of trust,
as the case may be, in favor of the Administrative Agent, for the
benefit of the Lenders, covering such real estate, in form and
substance reasonably satisfactory to the Agents, (ii) if
requested by the Agents, provide the Lenders with (x) title and
extended coverage insurance covering such real estate in an
amount at least equal to the purchase price of such real estate
(or such other amount as shall be reasonably specified by the
Agents) as well as a current ALTA survey thereof, together with a
surveyor's certificate and (y) any consents or estoppels
reasonably deemed necessary or advisable by the Agents in
connection with such mortgage or deed of trust, each of the
foregoing in form and substance reasonably satisfactory to the
Agents and (iii) if requested by the Agents, deliver to the
Agents legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Agents; provided that in the event
that, after giving effect to any acquisition by the Borrower or
any of its Subsidiaries of any such interest in real estate, the
aggregate value of all such real estate interests with respect to
which the requirements of clauses (i), (ii) and (iii) above have
not been satisfied would exceed $3,000,000, then the Borrower
shall promptly cause such requirements to be satisfied with
respect to such number of such real estate interests sufficient
to cause such aggregate value not to exceed $3,000,000.
(c) With respect to any new Subsidiary (other than an
Excluded Foreign Subsidiary) created or acquired after the
Closing Date by the Borrower or any of its Subsidiaries (which,
for the purposes of this paragraph (c), shall include any
existing Subsidiary that ceases to be an Excluded Foreign
Subsidiary), promptly (i) execute and deliver to the Agents such
amendments to the Guarantee and Collateral Agreement as the
Agents deem necessary or advisable in order to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected
first priority security interest in the Capital Stock of such new
Subsidiary which is owned by the Borrower or any of its
Subsidiaries, (ii) deliver to the Administrative Agent the
certificates representing such Capital Stock, together with
undated stock powers, in blank, executed and delivered by a duly
authorized officer of the Borrower or such Subsidiary, as the
case may be, (iii) cause such new Subsidiary (A) to become a
party to the Guarantee and Collateral Agreement and (B) to take
such actions necessary or advisable to grant to the
Administrative Agent for the benefit of the Lenders a perfected
first priority security interest in the Collateral described in
the Guarantee and Collateral Agreement with respect to such new
Subsidiary, including, without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may
be required by the Guarantee and Collateral Agreement or by law
or as may be requested by the Agents, and (iv) if requested by
the Agents, deliver to the Agents legal opinions relating to the
matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the
Agents.
(d) With respect to any new Excluded Foreign
Subsidiary created or acquired after the Closing Date by the
Borrower or any of its Subsidiaries, promptly (i) execute and
deliver to the Agents such amendments to the Guarantee and
Collateral Agreement as the Agents deem necessary or advisable in
order to grant to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest in the
Capital Stock of such new Subsidiary which is owned by the
Borrower or any of its Subsidiaries (provided that in no event
shall more than 65% of the total outstanding Capital Stock of any
such new Subsidiary be required to be so pledged), (ii) deliver
to the Administrative Agent the certificates representing such
Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the
Borrower or such Subsidiary, as the case may be and (iii) if
requested by the Agents, deliver to the Agents legal opinions
relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory
to the Agents.
(e) With respect to the Capital Stock of Versyss and V
Holding, satisfy the requirements of clauses (a), (b) and (c)
above (to the same extent as if such provisions referred to
Versyss and V Holding and their respective Property rather than
to Persons or Property created or acquired after the Closing
Date) promptly following repayment of the Indebtedness listed on
Schedule 7.2(e) secured by Capital Stock and assets of Versyss
and V Holding.
(f) With respect to the Property of Versyss and V
Holding (other than Capital Stock of Versyss and V Holding
covered by clause (e) above), promptly following the repayment of
the Indebtedness listed on Schedule 7.2(e) secured by the Capital
Stock and assets of Versyss, take all actions necessary or
advisable (including, without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may
be required by the Guarantee and Collateral Agreement or by law
or as may be requested by the Agents) to convert the second
priority security interest in such Property granted to the
Administrative Agent, for the benefit of the Lenders, into a
perfected first priority security interest in such Property in
favor of the Administrative Agent, for the benefit of the
Lenders.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the
Revolving Credit Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing
to any Lender or any Agent hereunder, the Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or
indirectly:
7.1 Financial Condition Covenants.
(a) Consolidated Total Leverage Ratio. Permit the
Consolidated Total Leverage Ratio as at the last day of any
period of four consecutive fiscal quarters of the Borrower (or,
if less, the number of full fiscal quarters subsequent to the
Closing Date) ending during any of the calendar years set forth
below to exceed the ratio set forth below opposite such year:
<TABLE>
<CAPTION>
Consolidated Total
Fiscal Quarter Leverage Ratio
-------------- ------------------
<C> <C>
1997 3.75:1.00
1998 3.50:1.00
1999 3.25:1.00
2000 and thereafter 3.00:1.00
</TABLE>
(b) Consolidated Senior Leverage Ratio. Permit the
Consolidated Senior Leverage Ratio as at the last day of any
period of four consecutive fiscal quarters of the Borrower (or,
if less, the number of full fiscal quarters subsequent to the
Closing Date) ending during any of the calendar years set forth
below to exceed the ratio set forth below opposite such year:
<TABLE>
<CAPTION>
Consolidated Senior
Fiscal Quarter Leverage Ratio
-------------- -------------------
<C> <C>
1997 2.50:1.00
1998 2.25:1.00
1999 2.00:1.00
2000 and thereafter 1.75:1.00
</TABLE>
(c) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four
consecutive fiscal quarters of the Borrower (or, if less, the
number of full fiscal quarters subsequent to the Closing Date)
ending during any of the calendar years set forth below to be
less than the ratio set forth below opposite such year:
<TABLE>
<CAPTION>
Consolidated Interest
Fiscal Quarter Coverage Ratio
-------------- ---------------------
<C> <C>
1997 2.75:1.00
1998 3.00:1.00
1999 3.25:1.00
2000 and thereafter 3.50:1.00
</TABLE>
(d) Maintenance of Net Worth. Permit Consolidated Net
Worth as of the last day of any fiscal quarter of the Borrower
ending during any calendar year set forth below to be less than
the amount set forth below opposite such fiscal year:
<TABLE>
<CAPTION>
Consolidated
Year Net Worth
---- ------------
<C> <C>
1997 $100,000,000
1998 $115,000,000
1999 $130,000,000
2000 and thereafter $145,000,000
</TABLE>
7.2 Limitation on Indebtedness. Create, incur, assume
or suffer to exist (in each case, to "Incur") any Indebtedness,
except:
(a) Indebtedness of any Loan Party pursuant to any
Loan Document;
(b) Indebtedness of the Borrower to any Subsidiary and
of any Wholly Owned Subsidiary Guarantor to the Borrower or
any other Subsidiary;
(c) Indebtedness secured by Liens permitted by Section
7.3(g) in an aggregate principal amount not to exceed
$1,000,000 at any one time outstanding;
(d) Capital Lease Obligations in an aggregate
principal amount not to exceed $2,000,000 at any one time
outstanding;
(e) Indebtedness outstanding on the date hereof and
listed on Schedule 7.2(e) and any refinancings, refundings,
renewals or extensions thereof (without any increase in the
principal amount thereof);
(f) guarantees made in the ordinary course of business
by the Borrower or any of its Subsidiaries of obligations of
any Wholly Owned Subsidiary Guarantor;
(g) Indebtedness assumed in connection with Permitted
Acquisitions in an aggregate principal amount not to exceed
$5,000,000 at any time outstanding, provided that such
Indebtedness existed prior to the consummation of such
Permitted Acquisition and was not incurred in contemplation
thereof;
(h) Indebtedness incurred as part of the consideration
for one or more Permitted Acquisitions, and payable to the
seller in connection therewith, in an aggregate principal
amount not to exceed $10,000,000 at any time outstanding;
and
(i) Subordinated Indebtedness in an aggregate
principal amount not to exceed, when added to the aggregate
liquidation preference amount of all outstanding Specified
Preferred Stock at such time, $25,000,000 at any time
outstanding.
7.3 Limitation on Liens. Create, incur, assume or
suffer to exist any Lien upon any of its Property or revenues,
whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained
on the books of the Borrower or its Subsidiaries, as the
case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in
the ordinary course of business which are not overdue for a
period of more than 30 days or which are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social
security legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from
the value of the Property subject thereto or materially
interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on
Schedule 7.3(f), securing Indebtedness permitted by Section
7.2(e), provided that no such Lien is spread to cover any
additional Property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower or any
Subsidiary incurred pursuant to Section 7.2(c) to finance
the acquisition of fixed or capital assets, provided that
(i) such Liens were created substantially simultaneously
with the acquisition of such fixed or capital assets, (ii)
such Liens do not at any time encumber any Property other
than the Property financed by such Indebtedness and (iii)
the amount of Indebtedness secured thereby is not increased;
(h) Liens securing Indebtedness of the Borrower or any
Subsidiary permitted pursuant to Section 7.2(g), provided
that (i) such Liens existed prior to the consummation of the
Permitted Acquisition in connection with which such
Indebtedness is assumed and were not incurred in
contemplation thereof, (ii) such Liens do not at any time
encumber any Property other than the Property financed by
such Indebtedness and (iii) the amount of Indebtedness
secured thereby is not increased;
(i) Liens securing an aggregate principal amount of
Indebtedness permitted pursuant to Section 7.2(h) not
exceeding $5,000,000 at any time outstanding, provided that
(i) no such Lien is spread to cover any additional Property
after the initial issuance of the Indebtedness which it
secures, (ii) the amount of Indebtedness initially secured
thereby is not increased and (iii) the aggregate fair market
value of all Property subject to Liens pursuant to this
Section 7.3(i) shall at not at any time exceed $5,000,000;
(j) Liens created pursuant to the Security Documents;
and
(k) any interest or title of a lessor under any lease
entered into by the Borrower or any other Subsidiary in the
ordinary course of its business and covering only the assets
so leased.
7.4 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or
Dispose of, all or substantially all of its Property or business,
or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the
Borrower shall be the continuing or surviving corporation)
or with or into any Wholly Owned Subsidiary Guarantor
(provided that the Wholly Owned Subsidiary Guarantor shall
be the continuing or surviving corporation); and
(b) any Subsidiary of the Borrower may Dispose of any
or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any Wholly Owned Subsidiary
Guarantor.
7.5 Limitation on Sale of Assets. Dispose of any of
its Property or business (including, without limitation,
receivables and leasehold interests), whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person,
except:
(a) the Disposition of obsolete or worn out property
in the ordinary course of business;
(b) the sale of inventory in the ordinary course of
business;
(c) Dispositions permitted by Section 7.4(b);
(d) the sale or issuance of any Subsidiary's Capital
Stock to the Borrower or any Wholly Owned Subsidiary
Guarantor;
(e) Specified Dispositions, provided that (i) the
requirements of Section 2.5(b) are satisfied with respect
thereto and (ii) no Default or Event of Default has occurred
and is continuing at the time of the consummation thereof or
would result therefrom; and
(f) the sale of other assets having a fair market
value not to exceed $1,000,000 in the aggregate for any
fiscal year of the Borrower.
7.6 Limitation on Dividends. Declare or pay any
dividend (other than dividends payable solely in common stock of
the Person making such dividend) on, or make any payment on
account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any shares of any class of Capital Stock of
the Borrower or any Subsidiary or any warrants or options to
purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in
obligations of the Borrower or any Subsidiary (collectively,
"Restricted Payments"), except that (a) any Subsidiary may make
Restricted Payments to the Borrower or any Wholly Owned
Subsidiary Guarantor and (b) so long as no Default or Event of
Default has occurred and is continuing, the Borrower may declare
and pay ordinary scheduled dividends on its Specified Preferred
Stock.
7.7 Limitation on Capital Expenditures. Make or
commit to make (by way of the acquisition of securities of a
Person or otherwise) any Capital Expenditure, except Capital
Expenditures of the Borrower and its Subsidiaries in the ordinary
course of business not exceeding $10,000,000 in any fiscal year;
provided, that (i) up to $2,500,000 of any such amount referred
to above, if not so expended in the fiscal year for which it is
permitted, may be carried over for expenditure in the next
succeeding fiscal year and (ii) Capital Expenditures made during
any fiscal year shall be deemed made, first, in respect of
amounts carried over from the prior fiscal year pursuant to
clause (i) above and, second, in respect of amounts permitted for
such fiscal year as provided above.
7.8 Limitation on Investments, Loans and Advances.
Make any advance, loan, extension of credit (by way of guaranty
or otherwise) or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets
constituting all or a material part of a business unit of, or
make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course
of business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees of the Borrower or
its Subsidiaries in the ordinary course of business
(including, without limitation, for travel, entertainment
and relocation expenses) in an aggregate amount for the
Borrower and its Subsidiaries not to exceed $500,000 at any
one time outstanding;
(e) investments by the Borrower or any of its
Subsidiaries in the Borrower or any Person that, prior to
such investment, is a Wholly Owned Subsidiary Guarantor;
(f) so long as no Default or Event of Default has
occurred and is continuing at the time of the consummation
thereof or would result therefrom, Permitted Acquisitions;
(g) so long as no Default or Event of Default has
occurred and is continuing at the time of the consummation
thereof or would result therefrom, loans and advances to any
Person that the Borrower anticipates will be acquired
pursuant to a Permitted Acquisition, provided that (i) such
loan or advance is not outstanding for a period prior to
consummation of such Permitted Acquisition longer than 180
days, (ii) the aggregate amount of such loans and advances
shall not exceed $3,000,000 at any time and (iii) upon the
consummation of any such Permitted Acquisition, the amount
of such loans and advances related thereto shall be deemed
to constitute a portion of the consideration paid in
connection therewith for the purposes of the provisions of
the definition of Permitted Acquisition; and
(h) so long as (i) no Default or Event of Default has
occurred and is continuing at the time of the consummation
thereof or would result therefrom and (ii) a Wholly Owned
Subsidiary Guarantor of the Borrower remains general partner
of HealthPoint with at least a 50% economic interest therein
pursuant to the HealthPoint Agreement before and after
giving effect thereto, investments in or capital
contributions to HealthPoint, provided that all such
investments and contributions shall be deemed to be
investments constituting Permitted Acquisitions and shall be
subject to, and included in the calculations under, the
limitations set forth in the definition of Permitted
Acquisition.
7.9 Limitation on Optional Payments and Modifications
of Debt Instruments, etc. (a) Make or offer to make any
payment, prepayment, repurchase or redemption of or otherwise
defease or segregate funds with respect to any Subordinated Debt,
if any (other than scheduled interest payments required to be
made in cash), or (b) amend, modify, waive or otherwise change,
or consent or agree to any amendment, modification, waiver or
other change to, any of the terms of any Subordinated Debt, if
any (other than any such amendment, modification, waiver or other
change which (i) would extend the maturity or reduce the amount
of any payment of principal thereof or which would reduce the
rate or extend the date for payment of interest thereon and (ii)
does not involve the payment of a consent fee).
(b) Amend or modify the terms of the Indebtedness listed on
Schedule 7.2(e) related to the acquisition of Versyss, Inc. if
the effect thereof would be to extend the final date of repayment
in full of such Indebtedness beyond the date thereof provided in
such terms as of the Closing Date.
7.10 Limitation on Transactions with Affiliates.
Enter into any transaction, including, without limitation, any
purchase, sale, lease or exchange of Property, the rendering of
any service or the payment of any management, advisory or similar
fees, with any Affiliate (other than the Borrower or any Wholly
Owned Subsidiary Guarantor) unless such transaction is
(a) otherwise permitted under this Agreement, (b) in the ordinary
course of business of the Borrower or such Subsidiary, as the
case may be, and (c) upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary, as the case may be,
than it would obtain in a comparable arm's length transaction
with a Person which is not an Affiliate.
7.11 Limitation on Sales and Leasebacks. Enter into
any arrangement with any Person providing for the leasing by the
Borrower or any Subsidiary of real or personal property which has
been or is to be sold or transferred by the Borrower or such
Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of
such property or rental obligations of the Borrower or such
Subsidiary.
7.12 Limitation on Changes in Fiscal Periods. Permit
the fiscal year of the Borrower to end on a day other than
December 31 or change the Borrower's method of determining fiscal
quarters.
7.13 Limitation on Negative Pledge Clauses. Enter
into or suffer to exist or become effective any agreement which
prohibits or limits the ability of the Borrower or any of its
Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its Property or revenues, whether now owned or
hereafter acquired, other than (a) this Agreement and the other
Loan Documents and (b) any agreements governing any purchase
money Liens or Capital Lease Obligations otherwise permitted
hereby (in which case, any prohibition or limitation shall only
be effective against the assets financed thereby).
7.14 Limitation on Restrictions on Subsidiary
Distributions. Enter into or suffer to exist or become effective
any consensual encumbrance or restriction on the ability of any
Subsidiary of the Borrower to (a) pay dividends or make any other
distributions in respect of any Capital Stock of such Subsidiary
held by, or pay any Indebtedness owed to, the Borrower or any
other Subsidiary of the Borrower, (b) make loans or advances to
the Borrower or any other Subsidiary of the Borrower or (c)
transfer any of its assets to the Borrower or any other
Subsidiary of the Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) any restrictions
existing under the Loan Documents and (ii) any restrictions with
respect to a Subsidiary imposed pursuant to an agreement which
has been entered into in connection with the Disposition of all
or substantially all of the Capital Stock or assets of such
Subsidiary.
7.15 Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary, except for
those businesses in which the Borrower and its Subsidiaries are
primarily engaged on the date of this Agreement or which are
reasonably related thereto, or any business activity that is a
reasonable extension, development or expansion thereof.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of
any Loan or Reimbursement Obligation when due in accordance
with the terms hereof; or the Borrower shall fail to pay any
interest on any Loan or Reimbursement Obligation, or any
other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other
amount becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made
by any Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial
or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; or
(c) Any Loan Party shall default in the observance or
performance of any agreement contained in clause (i) or (ii)
of Section 6.4(a) (with respect to the Borrower only),
Section 6.7(a), Section 7, or Section 5 of the Guarantee and
Collateral Agreement; or
(d) any Loan Party shall default in the observance or
performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided
in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days
after notice to the Borrower from any Agent or the Required
Lenders; or
(e) the Borrower or any of its Subsidiaries shall (i)
default in making any payment of any principal of any
Indebtedness (including, without limitation, any Guarantee
Obligation, but excluding the Loans) on the scheduled or
original due date with respect thereto; or (ii) default in
making any payment of any interest on any such Indebtedness
beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was
created; or (iii) default in the observance or performance
of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default
or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or
agent on behalf of such holder or beneficiary) to cause,
with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation)
to become payable; provided, that a default, event or
condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not at any time constitute an Event of
Default under this Agreement unless, at such time, one or
more defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (e) shall have
occurred and be continuing with respect to Indebtedness the
outstanding principal amount of which exceeds in the
aggregate $1,000,000; or
(f) (i) the Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or
the Borrower or any of its Subsidiaries shall make a general
assignment for the benefit of its creditors; or (ii) there
shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be
commenced against the Borrower or any of its Subsidiaries
any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets
which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof;
or (iv) the Borrower or any of its Subsidiaries shall take
any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) the Borrower or
any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay
its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan, (ii) any
"accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect
to any Plan or any Lien in favor of the PBGC or a Plan shall
arise on the assets of the Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or
to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan
for purposes of Title IV of ERISA, (iv) any Single Employer
Plan shall terminate for purposes of Title IV of ERISA,
(v) the Borrower or any Commonly Controlled Entity shall, or
in the reasonable opinion of the Required Lenders is likely
to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition
shall occur or exist with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or
condition, together with all other such events or
conditions, if any, could, in the sole judgment of the
Required Lenders, reasonably be expected to have a Material
Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving in
the aggregate a liability (not paid or fully covered by
insurance as to which the relevant insurance company has
acknowledged coverage) of $1,000,000 or more, and all such
judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days
from the entry thereof; or
(i) Any of the Security Documents shall cease, for any
reason, to be in full force and effect, or any Loan Party or
any Affiliate of any Loan Party shall so assert, or any Lien
created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to
be created thereby; or
(j) The guarantee contained in Section 2 of the
Guarantee and Collateral Agreement shall cease, for any
reason, to be in full force and effect or any Loan Party or
any Affiliate of any Loan Party shall so assert; or
(k) (i) any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), excluding the
Jeffry M. Picower and any Related Party, shall become, or
obtain rights (whether by means or warrants, options or
otherwise) to become, the "beneficial owner" (as defined in
Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly
or indirectly, of more than 30% of the outstanding common
stock of the Borrower; or (ii) the board of directors of the
Borrower shall cease to consist of a majority of Continuing
Directors; or
(l) Any Subordinated Indebtedness or any guarantees
thereof shall cease, for any reason, to be validly
subordinated to the Obligations or the obligations of the
Subsidiary Guarantors under the Guarantee and Collateral
Agreement, as the case may be, as provided in documentation
in respect of such Subordinated Indebtedness, or any Loan
Party, any Affiliate of any Loan Party, any trustee in
respect of such Subordinated Indebtedness or the holders of
at least 25% in aggregate principal amount of such
Subordinated Indebtedness shall so assert;
then, and in any such event, (A) if such event is an Event of
Default specified in clause (i) or (ii) of paragraph (f) above
with respect to the Borrower, automatically the Revolving Credit
Commitments shall immediately terminate and the Loans hereunder
(with accrued interest thereon) and all other amounts owing under
this Agreement and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any
other Event of Default, either or both of the following actions
may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the
Borrower declare the Revolving Credit Commitments to be
terminated forthwith, whereupon the Revolving Credit Commitments
shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall,
by notice to the Borrower, declare the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become
due and payable. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the
Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of
Credit. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or
been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan
Documents. After all such Letters of Credit shall have expired
or been fully drawn upon, all Reimbursement Obligations shall
have been satisfied and all other obligations of the Borrower
hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account
shall be returned to the Borrower (or such other Person as may be
lawfully entitled thereto).
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably
designates and appoints the Agents as the agents of such Lender
under this Agreement and the other Loan Documents, and each such
Lender irrevocably authorizes each Agent, in such capacity, to
take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the
such Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, no Agent shall have any
duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
any other Loan Document or otherwise exist against any Agent.
9.2 Delegation of Duties. Each Agent may execute any
of its duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such
duties. No Agent shall be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any
of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any other Loan
Document (except to the extent that any of the foregoing are
found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from its or such Person's
own gross negligence or willful misconduct) or (ii) responsible
in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Loan Party or any
officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the
Agents under or in connection with, this Agreement or any other
Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party a
party thereto to perform its obligations hereunder or thereunder.
The Agents shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party.
9.4 Reliance by Agents. Each Agent shall be entitled
to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it
to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by
Agents. The Agents may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed
with the Administrative Agent. Each Agent shall be fully
justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders (or,
if so specified by this Agreement, all Lenders) as it deems
appropriate or it shall first be indemnified to its satisfaction
by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take
any such action. Each Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this
Agreement and the other Loan Documents in accordance with a
request of the Required Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
9.5 Notice of Default. No Agent shall be deemed to
have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless such Agent has received notice
from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by
the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may
(but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the
Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each
Lender expressly acknowledges that neither the Agents nor any of
their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates have made any representations or
warranties to it and that no act by any Agent hereinafter taken,
including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each
Lender represents to the Agents that it has, independently and
without reliance upon any Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business,
operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and
made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will,
independently and without reliance upon any Agent or any other
Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to
the business, operations, property, financial and other condition
and creditworthiness of the Loan Parties and their affiliates.
Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative
Agent hereunder, no Agent shall have any duty or responsibility
to provide any Lender with any credit or other information
concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any
Loan Party or any affiliate of a Loan Party which may come into
the possession of such Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify
each Agent in its capacity as such (to the extent not reimbursed
by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective
Revolving Credit Percentages in effect on the date on which
indemnification is sought under this Section 9.7 (or, if
indemnification is sought after the date upon which the Revolving
Credit Commitments shall have terminated and the Loans shall have
been paid in full, ratably in accordance with such Percentages
immediately prior to such date), 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 (including, without limitation,
at any time following the payment of the Loans) be imposed on,
incurred by or asserted against such Agent in any way relating to
or arising out of, the Revolving Credit Commitments, this
Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken
or omitted by such Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements which are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted
from such Agent's gross negligence or willful misconduct. The
agreements in this Section 9.7 shall survive the payment of the
Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and
its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with any Loan Party as
though such Agent was not an Agent. With respect to its Loans
made or renewed by it and with respect to any Letter of Credit
issued or participated in by it, each Agent shall have the same
rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it
were not an Agent, and the terms "Lender" and "Lenders" shall
include each Agent in its individual capacity.
9.9 Successor Administrative Agents. The
Administrative Agent may resign as Administrative Agent upon 10
days' notice to the Lenders and the Borrower. If the
Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required
Lenders shall appoint from among the Lenders a successor agent
for the Lenders, which successor agent shall (unless an Event of
Default under Section 8(a) or Section 8(f) with respect to the
Borrower shall have occurred and be continuing) be approved by
the Borrower (which approval shall not be unreasonably withheld
or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall mean such successor agent
effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative
Agent or any of the parties to this Agreement or any holders of
the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a
retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. Each of the Syndication
Agent and the Arranger may, at any time, by notice to the Lenders
and the Administrative Agent, resign as Arranger or Syndication
Agent, as applicable, hereunder, whereupon the duties, rights,
obligations and responsibilities hereunder shall automatically be
assumed by, and inure to the benefit of, the Administrative
Agent, without any further act by the Arranger, the Syndication
Agent, the Administrative Agent or any Lender. After any
retiring Agent's resignation as Agent, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement
and the other Loan Documents.
9.10 Authorization to Release Liens. The
Administrative Agent is hereby irrevocably authorized by each of
the Lenders to release any Lien covering any Property of the
Borrower or any of its Subsidiaries that is the subject of a
Disposition which is permitted by this Agreement or which has
been consented to in accordance with Section 10.1.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement,
any other Loan Document, nor any terms hereof or thereof may be
amended, supplemented or modified except in accordance with the
provisions of this Section 10.1. The Required Lenders and each
Loan Party party to the relevant Loan Document may, or (with the
written consent of the Required Lenders) the Agents and each Loan
Party party to the relevant Loan Document may, from time to time,
(a) enter into written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of adding
any provisions to this Agreement or the other Loan Documents or
changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders, or the Agents, as the case
may be, may specify in such instrument, any of the requirements
of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification
shall (i) forgive the principal amount or extend the final
scheduled date of maturity of any Loan, reduce the stated rate of
any interest, fee or letter of credit commission payable
hereunder or extend the scheduled date of any payment thereof, or
increase the amount or extend the expiration date of any Lender's
Revolving Credit Commitment, in each case without the consent of
each Lender directly affected thereby; (ii) amend, modify or
waive any provision of this Section 10.1 or reduce any percentage
specified in the definition of Required Lenders or Supermajority
Lenders, consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement and the
other Loan Documents, release all or substantially all of the
Collateral or release all or substantially all of the Subsidiary
Guarantors from their obligations under the Guarantee and
Collateral Agreement, in each case without the written consent of
all Lenders; (iii) without the consent of the Supermajority
Lenders, amend the provisions of the definition of "Permitted
Acquisition" if such amendment would have the effect of requiring
less than the consent of the Supermajority Lenders in respect of
acquisitions or investments in circumstances that require the
consent of Supermajority Lenders under such provisions as in
effect on the date hereof, (iv) amend, modify or waive any
condition precedent to any extension of credit set forth in
Section 5.2 (including, without limitation, in connection with
any waiver of an existing Default or Event of Default) without
the written consent of the Required Lenders; (v) amend, modify or
waive any provision of Section 9 without the written consent of
the Agents; or (vi) amend, modify or waive any provision of
Section 3 without the written consent of the Issuing Lender. Any
such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Administrative Agent and
all future holders of the Loans. In the case of any waiver, the
Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or
Event of Default, or impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in
writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made
when delivered, or three Business Days after being deposited in
the mail, postage prepaid, or, in the case of telecopy notice,
when received, addressed as follows in the case of the Borrower
and the Administrative Agent, and as set forth in an
administrative questionnaire delivered to the Administrative
Agent in the case of the Lenders, or to such other address as may
be hereafter notified by the respective parties hereto:
The Borrower: Physician Computer Network, Inc.
1200 The American Road
Morris Plains, New Jersey 07950
Attention:
Telecopy:
The Arranger and the
Syndication Agent: Lehman Commercial Paper Inc.
3 World Financial Center
New York, New York 10285
Attention: Michele Swanson
Telecopy: (212) 528-0819
Telephone: (212) 526-0330
The Administrative Agent: Fleet Bank, N.A.
208 Harristown Road
Glen Rock, NJ 07452
Attention: D. Nicholas Miceli
Telecopy: (201) 251-5388
Telephone: (201) 251-5373
provided that any notice, request or demand to or upon the either
Agent or the Lenders shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the either
Agent or any Lender, any right, remedy, power or privilege
hereunder or under the other Loan Documents shall operate as a
waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of
any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan
Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the
Loans hereunder.
10.5 Payment of Expenses. The Borrower agrees (a) to
pay or reimburse the Agents for all their reasonable
out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of counsel to
the Agents, (b) to pay or reimburse each Lender and the Agents
for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement,
the other Loan Documents and any such other documents, including,
without limitation, the fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel)
to each Lender and of counsel to the Agents, (c) to pay,
indemnify, and hold each Lender and the Agents harmless from, any
and all recording and filing fees or any amendment, supplement or
modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and
the Agents and their respective officers, directors, employees,
affiliates, agents and controlling persons (each, an
"indemnitee") harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement,
the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or
liability under, any Environmental Law applicable to the
operations of the Borrower any of its Subsidiaries or any of the
Properties (all the foregoing in this clause (d), collectively,
the "indemnified liabilities"), provided, that the Borrower shall
have no obligation hereunder to any indemnitee with respect to
indemnified liabilities to the extent such indemnified
liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such indemnitee. The
agreements in this Section 10.5 shall survive repayment of the
Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure
to the benefit of the Borrower, the Lenders, the Agents, all
future holders of the Loans and their respective successors and
assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the
prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the
Borrower, in accordance with applicable law, at any time sell to
one or more banks, financial institutions or other entities
(each, a "Participant") participating interests in any Loan owing
to such Lender, any Revolving Credit Commitment of such Lender or
any other interest of such Lender hereunder and under the other
Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's
obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain
the holder of any such Loan for all purposes under this Agreement
and the other Loan Documents, and the Borrower and the Agents
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any
Participant under any such participation have any right to
approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party
therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Loans
or any fees payable hereunder, or postpone the date of the final
maturity of the Loans, in each case to the extent subject to such
participation. The Borrower agrees that if amounts outstanding
under this Agreement and the Loans are due or unpaid, or shall
have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the
maximum extent permitted by applicable law, be deemed to have the
right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as
a Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided
in Section 10.7(a) as fully as if it were a Lender hereunder.
The Borrower also agrees that each Participant shall be entitled
to the benefits of Sections 2.13, 2.14 and 2.15 with respect to
its participation in the Revolving Credit Commitments and the
Loans outstanding from time to time as if it was a Lender;
provided that, in the case of Section 2.14, such Participant
shall have complied with the requirements of said Section and
provided, further, that no Participant shall be entitled to
receive any greater amount pursuant to any such Section than the
transferor Lender would have been entitled to receive in respect
of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with
applicable law, at any time and from time to time assign to any
Lender or any affiliate thereof or, with the consent of the
Borrower and the Agents (which, in each case, shall not be
unreasonably withheld or delayed) (provided (x) that no such
consent need be obtained by Lehman Commercial Paper Inc. for a
period of 180 days following the Closing Date), to an additional
bank, financial institution or other entity (an "Assignee") all
or any part of its rights and obligations under this Agreement
pursuant to an Assignment and Acceptance, substantially in the
form of Exhibit D, executed by such Assignee, such Assignor, the
Agents (and, where the consent of the Borrower is required
pursuant to the foregoing provisions, by the Borrower) and
delivered to the Administrative Agent for its acceptance and
recording in the Register; provided that no such assignment to an
Assignee (other than any Lender or any affiliate thereof) shall
be in an aggregate principal amount of less than $5,000,000
(other than in the case of an assignment of all of a Lender's
interests under this Agreement), unless otherwise agreed by the
Borrower and the Agents. Any such assignment need not be ratable
as among the Facilities. Upon such execution, delivery,
acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Revolving Credit
Commitment and/or Loans as set forth therein, and (y) the
Assignor thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance
covering all of an Assignor's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party
hereto). Notwithstanding any provision of this Section 11.6, the
consent of the Borrower shall not be required for any assignment
which occurs at any time when any of the events described in
Section 8(f) shall have occurred and be continuing.
(d) The Administrative Agent shall maintain at its
address referred to in Section 10.2 a copy of each Assignment and
Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the
Revolving Credit Commitment of, and principal amount of the Loans
owing to, each Lender from time to time and any Notes evidencing
such Loans. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register as the owner of the Loan
and any Note evidencing such Loan recorded therein for all
purposes of this Agreement. Any assignment of any Loan whether
or not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the
Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a
Note shall be registered on the Register only upon surrender for
registration of assignment or transfer of the Note evidencing
such Loan, accompanied by a duly executed Assignment and
Acceptance, and thereupon one or more new Notes in the same
aggregate principal amount shall be issued to the designated
Assignee and the old Notes shall be returned by the
Administrative Agent to the Borrower marked "cancelled". 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.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case
of an Assignee that is not then a Lender or an affiliate thereof
or a Person under common management with such Lender, by the
Borrower, the Administrative Agent, the Arranger and the Issuing
Lender) together with payment to the Administrative Agent of a
registration and processing fee of $3,500 (except that no such
registration and processing fee shall be payable (y) in
connection with an assignment by Lehman Commercial Paper Inc. or
(z) in the case of an Assignee which is already a Lender or is an
affiliate of a Lender or a Person under common management with a
Lender), the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and
recordation to the Lenders and the Borrower. On or prior to such
effective date, the Borrower, at its own expense, upon request,
shall execute and deliver to the Administrative Agent (in
exchange for the Revolving Credit Note of the assigning Lender) a
new Revolving Credit Note to the order of such Assignee in an
amount equal to the Revolving Credit Commitment assumed or
acquired by it pursuant to such Assignment and Acceptance and, if
the assigning Lender has retained a Revolving Credit Commitment,
upon request, a new Revolving Credit Note to the order of the
assigning Lender in an amount equal to the Revolving Credit
Commitment retained by it hereunder. Such new Notes shall be
dated the Closing Date and shall otherwise be in the form of the
Note replaced thereby.
(f) For avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this Section 10.6
concerning assignments of Loans and Notes relate only to absolute
assignments and that such provisions do not prohibit assignments
creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
10.7 Adjustments; Set-off. (a) If any Lender (a
"Benefitted Lender") shall at any time receive any payment of all
or part of its Loans or the Reimbursement Obligations owing to
it, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in
Section 8(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if
any, in respect of such other Lender's Loans or the Reimbursement
Obligations owing to such other Lender, or interest thereon, such
Benefitted Lender shall purchase for cash from the other Lenders
a participating interest in such portion of each such other
Lender's Loan and/or of the Reimbursement Obligations owing to
each such other Lender, or shall provide such other Lenders with
the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such Benefitted Lender to share the
excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right,
without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise) to set off and appropriate and apply
against such amount any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured
or unmatured, at any time held or owing by such Lender or any
branch or agency thereof to or for the credit or the account of
the Borrower. Each Lender agrees promptly to notify the Borrower
and the Administrative Agent after any such setoff and
application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such setoff and
application.
10.8 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and
the Administrative Agent.
10.9 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrower, the Agents and
the Lenders with respect to the subject matter hereof, and there
are no promises, undertakings, representations or warranties by
any Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan
Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. The
Borrower hereby agrees irrevocably and unconditionally:
(a) submits for itself and its Property in any legal
action or proceeding relating to this Agreement and the
other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the
United States of America for the Southern District of
New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(c) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar
form of mail), postage prepaid, to the Borrower at its
address set forth in Section 10.2 or at such other address
of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted
by law or shall limit the right to sue in any other
jurisdiction; and
(e) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section 10.12 any
special, exemplary, punitive or consequential damages.
10.13 Acknowledgements. The Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan
Documents;
(b) neither any Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or
in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Agents and
Lenders, on one hand, and the Borrower, on the other hand,
in connection herewith or therewith is solely that of debtor
and creditor; and
(c) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among
the Borrower and the Lenders.
10.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
10.15 Confidentiality. Each of the Agents and each
Lender agrees to keep confidential all non-public information
provided to it by any Loan Party pursuant to this Agreement that
is designated by such Loan Party as confidential; provided that
nothing herein shall prevent any Agent or any Lender from
disclosing any such information (a) to the Agents, any other
Lender or any affiliate of any Lender, (b) to any Participant or
Assignee (each, a "Transferee") or prospective Transferee which
agrees to comply with the provisions of this Section 10.15, (c)
to the employees, directors, agents, attorneys, accountants and
other professional advisors of such Lender or its affiliates, (d)
upon the request or demand of any Governmental Authority having
jurisdiction over the such Agent or such Lender, (e) in response
to any order of any court or other Governmental Authority or as
may otherwise be required pursuant to any Requirement of Law, (f)
if requested or required to do so in connection with any
litigation or similar proceeding, (g) which has been publicly
disclosed other than in breach of this Section 10.15, (h) to the
National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that
requires access to information about a Lender's investment
portfolio in connection with ratings issued with respect to such
Lender, or (i) in connection with the exercise of any remedy
hereunder or under any other Loan Document.
10.16 Enforceability; Usury. In no event shall any
provision of this Agreement, the Notes, or any other instrument
evidencing or securing the indebtedness of the Borrower hereunder
ever obligate the Borrower to pay or allow any Lender to collect
interest on the Notes or any other indebtedness of the Borrower
hereunder at a rate greater than the maximum non-usurious rate
permitted by applicable law (herein referred to as the "Highest
Lawful Rate"), or obligate the Borrower to pay any taxes,
assessments, charges, insurance premiums or other amounts to the
extent that such payments, when added to the interest payable on
the Notes, would be held to constitute the payment by the
Borrower of interest at a rate greater than the Highest Lawful
Rate; and this provision shall control over any provision to the
contrary.
Without limiting the generality of the foregoing, in
the event the maturity of all or any part of the principal amount
of the indebtedness of the Borrower hereunder shall be
accelerated for any reason, then such principal amount so
accelerated shall be credited with any interest theretofore paid
thereon in advance and remaining unearned at the time of such
acceleration. If, pursuant to the terms of this Agreement or the
Notes, any funds are applied to the payment of any part of the
principal amount of the indebtedness of the Borrower hereunder
prior to the maturity thereof, then (a) any interest which would
otherwise thereafter accrue on the principal amount so paid by
such application shall be canceled, and (b) the indebtedness of
the Borrower hereunder remaining unpaid after such application
shall be credited with the amount of all interest, if any,
theretofore collected on the principal amount so paid by such
application and remaining unearned at the date of said
application; and if the funds so applied shall be sufficient to
pay in full all the indebtedness of the Borrower hereunder, then
the Lenders shall refund to the Borrower all interest theretofore
paid thereon in advance and remaining unearned at the time of
such acceleration. Regardless of any other provision in this
Agreement, or in any of the written evidences of the indebtedness
of the Borrower hereunder, the Borrower shall never be required
to pay any unearned interest on such indebtedness or any portion
thereof, and shall never be required to pay interest thereon at a
rate in excess of the Highest Lawful Rate construed by courts
having competent jurisdiction thereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
PHYSICIAN COMPUTER NETWORK, INC.
By: /s/ John Mortell
------------------------------
Name: John Mortell
Title: Executive Vice President
<PAGE>
LEHMAN COMMERCIAL PAPER INC., as
Arranger, as Syndication Agent and as
a Lender
By: /s/ Dennis Dee
------------------------------
Name: Dennis Dee
Title: Authorized Signatory
<PAGE>
FLEET BANK, N.A., as
Administrative Agent and as a Lender
By: /s/ D. Nicholas Micelli
------------------------------
Name: D. Nicholas Micelli
Title: Vice President
<PAGE>
BANK OF MONTREAL
By: /s/ Thomas H. Peer
------------------------------
Name: Thomas H. Peer
Title: Director
<PAGE>
SKANDINAVISKA ENSKILDA BANKEN AB
(PUBLIC) NEW YORK BRANCH
By: /s/ P. Montemurro
------------------------------
Name: P. Montemurro
Title: Vice President
By: /s/ J. Prenata
------------------------------
Name: J. Prenata
Title: Vice President
<PAGE>
FIRST UNION NATIONAL BANK
By: /s/ Joseph H. Towell
------------------------------
Name: Joseph H. Towell
Title: Senior Vice President
<PAGE>
IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION
By: /s/ Steven K. Johnson
------------------------------
Name: Steven K. Johnson
Title: Senior Vice President
<PAGE>
SOCIETE GENERALE
By: /s/ Sedare Coradin
------------------------------
Name: Sedare Coradin
Title: Vice President
<PAGE>
SUMMIT BANK
By: /s/ David J. Bardwill
------------------------------
Name: David J. Bardwill
Title: Vice President
<PAGE>
=================================================================
$110,000,000
CREDIT AGREEMENT
among
PHYSICIAN COMPUTER NETWORK, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
LEHMAN COMMERCIAL PAPER INC.,
as Arranger and Syndication Agent
and
FLEET BANK, N.A.,
as Administrative Agent
Dated as of September 10, 1997
=================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . 20
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS. . . . . . . . . . 21
2.1 Revolving Credit Commitments. . . . . . . . . . . . . 21
2.2 Procedure for Revolving Credit Borrowing. . . . . . . 21
2.3 Repayment of Loans; Evidence of Debt. . . . . . . . . 22
2.4 Commitment Fees, etc. . . . . . . . . . . . . . . . . 23
2.5 Termination or Reduction of Revolving Credit
Commitments . . . . . . . . . . . . . . . . . . . . . 23
2.6 Optional Prepayments. . . . . . . . . . . . . . . . . 23
2.7 Conversion and Continuation Options . . . . . . . . . 24
2.8 Minimum Amounts and Maximum Number of Eurodollar
Tranches. . . . . . . . . . . . . . . . . . . . . . . 24
2.9 Interest Rates and Payment Dates. . . . . . . . . . . 25
2.10 Computation of Interest and Fees . . . . . . . . . . 25
2.11 Inability to Determine Interest Rate . . . . . . . . 25
2.12 Pro Rata Treatment and Payments. . . . . . . . . . . 26
2.13 Requirements of Law. . . . . . . . . . . . . . . . . 27
2.14 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 28
2.15 Indemnity. . . . . . . . . . . . . . . . . . . . . . 30
2.16 Change of Lending Office . . . . . . . . . . . . . . 30
2.17 Illegality . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3. LETTERS OF CREDIT. . . . . . . . . . . . . . . . . 31
3.1 L/C Commitment. . . . . . . . . . . . . . . . . . . . 31
3.2 Procedure for Issuance of Letter of Credit. . . . . . 31
3.3 Commissions, Fees and Other Charges . . . . . . . . . 32
3.4 L/C Participations. . . . . . . . . . . . . . . . . . 32
3.5 Reimbursement Obligation of the Borrower. . . . . . . 33
3.6 Obligations Absolute. . . . . . . . . . . . . . . . . 33
3.7 Letter of Credit Payments . . . . . . . . . . . . . . 34
3.8 Applications. . . . . . . . . . . . . . . . . . . . . 34
SECTION 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 34
4.1 Financial Condition . . . . . . . . . . . . . . . . . 34
4.2 No Change . . . . . . . . . . . . . . . . . . . . . . 35
4.3 Corporate Existence; Compliance with Law. . . . . . . 35
4.4 Corporate Power; Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . . . . . 35
4.5 No Legal Bar. . . . . . . . . . . . . . . . . . . . . 35
4.6 No Material Litigation. . . . . . . . . . . . . . . . 36
4.7 No Default. . . . . . . . . . . . . . . . . . . . . . 36
4.8 Ownership of Property; Liens. . . . . . . . . . . . . 36
4.9 Intellectual Property . . . . . . . . . . . . . . . . 36
4.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 36
4.11 Federal Regulations. . . . . . . . . . . . . . . . . 36
4.12 Labor Matters. . . . . . . . . . . . . . . . . . . . 37
4.13 ERISA. . . . . . . . . . . . . . . . . . . . . . . . 37
4.14 Investment Company Act; Other Regulations. . . . . . 37
4.15 Subsidiaries . . . . . . . . . . . . . . . . . . . . 37
4.16 Use of Proceeds. . . . . . . . . . . . . . . . . . . 38
4.17 Environmental Matters. . . . . . . . . . . . . . . . 38
4.18 Accuracy of Information, etc . . . . . . . . . . . . 39
4.19 Security Documents . . . . . . . . . . . . . . . . . 39
4.20 Solvency . . . . . . . . . . . . . . . . . . . . . . 40
4.21 Regulation H . . . . . . . . . . . . . . . . . . . . 40
SECTION 5. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . 40
5.1 Conditions to Initial Extension of Credit . . . . . . 40
5.2 Conditions to Each Extension of Credit. . . . . . . . 42
SECTION 6. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . 42
6.1 Financial Statements. . . . . . . . . . . . . . . . . 42
6.2 Certificates; Other Information . . . . . . . . . . . 43
6.3 Payment of Obligations. . . . . . . . . . . . . . . . 44
6.4 Conduct of Business and Maintenance of Existence,
etc. . . . . . . . . . . . . . . . . . . . . . . . . 45
6.5 Maintenance of Property; Insurance. . . . . . . . . . 45
6.6 Inspection of Property; Books and Records;
Discussions . . . . . . . . . . . . . . . . . . . . . 45
6.7 Notices . . . . . . . . . . . . . . . . . . . . . . . 45
6.8 Environmental Laws. . . . . . . . . . . . . . . . . . 46
6.9 Additional Collateral, etc. . . . . . . . . . . . . . 46
SECTION 7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . 48
7.1 Financial Condition Covenants . . . . . . . . . . . . 48
7.2 Limitation on Indebtedness. . . . . . . . . . . . . . 49
7.3 Limitation on Liens . . . . . . . . . . . . . . . . . 50
7.4 Limitation on Fundamental Changes . . . . . . . . . . 51
7.5 Limitation on Sale of Assets. . . . . . . . . . . . . 52
7.6 Limitation on Dividends . . . . . . . . . . . . . . . 52
7.7 Limitation on Capital Expenditures. . . . . . . . . . 53
7.8 Limitation on Investments, Loans and Advances . . . . 53
7.9 Limitation on Optional Payments and Modifications
of Debt Instruments, etc. . . . . . . . . . . . . . . 54
7.10 Limitation on Transactions with Affiliates . . . . . 54
7.11 Limitation on Sales and Leasebacks . . . . . . . . . 54
7.12 Limitation on Changes in Fiscal Periods. . . . . . . 54
7.13 Limitation on Negative Pledge Clauses. . . . . . . . 54
7.14 Limitation on Restrictions on Subsidiary
Distributions . . . . . . . . . . . . . . . . . . . . 55
7.15 Limitation on Lines of Business. . . . . . . . . . . 55
SECTION 8. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . 55
SECTION 9. THE AGENTS . . . . . . . . . . . . . . . . . . . . 58
9.1 Appointment . . . . . . . . . . . . . . . . . . . . . 58
9.2 Delegation of Duties. . . . . . . . . . . . . . . . . 59
9.3 Exculpatory Provisions. . . . . . . . . . . . . . . . 59
9.4 Reliance by Agent . . . . . . . . . . . . . . . . . . 59
9.5 Notice of Default . . . . . . . . . . . . . . . . . . 60
9.6 Non-Reliance on Agents and Other Lenders. . . . . . . 60
9.7 Indemnification . . . . . . . . . . . . . . . . . . . 60
9.8 Agent in Its Individual Capacity. . . . . . . . . . . 61
9.9 Successor Administrative Agent. . . . . . . . . . . . 61
9.10 Authorization to Release Liens . . . . . . . . . . . 62
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . 62
10.1 Amendments and Waivers . . . . . . . . . . . . . . . 62
10.2 Notices. . . . . . . . . . . . . . . . . . . . . . . 63
10.3 No Waiver; Cumulative Remedies . . . . . . . . . . . 63
10.4 Survival of Representations and Warranties . . . . . 64
10.5 Payment of Expenses. . . . . . . . . . . . . . . . . 64
10.6 Successors and Assigns; Participations and
Assignments . . . . . . . . . . . . . . . . . . . . . 64
10.7 Adjustments; Set-off . . . . . . . . . . . . . . . . 67
10.8 Counterparts . . . . . . . . . . . . . . . . . . . . 67
10.9 Severability . . . . . . . . . . . . . . . . . . . . 67
10.10 Integration . . . . . . . . . . . . . . . . . . . . 68
10.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . 68
10.12 Submission To Jurisdiction; Waivers . . . . . . . . 68
10.13 Acknowledgements. . . . . . . . . . . . . . . . . . 68
10.14 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . 69
10.15 Confidentiality . . . . . . . . . . . . . . . . . . 69
10.16 Enforceability; Usury . . . . . . . . . . . . . . . 69
<PAGE>
ANNEXES:
A Pricing Grid
SCHEDULES:
1.1A Revolving Credit Commitments
4.15 Subsidiaries
4.19(a) UCC Filing Jurisdictions
7.2(e) Existing Indebtedness
7.3(f) Existing Liens
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Assignment and Acceptance
E Form of Legal Opinion of Borrower's Counsel
F Form of Revolving Credit Note
G Form of Exemption Certificate
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of
September 10, 1997, made by each of the signatories hereto
(together with any other entity that may become a party hereto as
provided herein, the "Grantors"), in favor of Fleet Bank, N.A.,
as Administrative Agent (in such capacity, the "Administrative
Agent") for the banks and other financial institutions or
entities (the "Lenders") from time to time parties to the Credit
Agreement, dated as of September 10, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement"), among PHYSICIAN COMPUTER NETWORK, INC. (the
"Borrower"), the Lenders, LEHMAN COMMERCIAL PAPER INC., as
Arranger and as Syndication Agent and the Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders
have severally agreed to make extensions of credit to the
Borrower upon the terms and subject to the conditions set forth
therein;
WHEREAS, the Borrower is a member of an affiliated
group of companies that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under
the Credit Agreement will be used in part to enable the Borrower
to make valuable transfers to one or more of the other Grantors
in connection with the operation of their respective businesses;
WHEREAS, the Borrower and the other Grantors are
engaged in related businesses, and each Grantor will derive
substantial direct and indirect benefit from the making of the
extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation
of the Lenders to make their respective extensions of credit to
the Borrower under the Credit Agreement that the Grantors shall
have executed and delivered this Agreement to the Administrative
Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to
induce the Administrative Agent and the Lenders to enter into the
Credit Agreement and to induce the Lenders to make their
respective extensions of credit to the Borrower thereunder, each
Grantor hereby agrees with the Administrative Agent, for the
ratable benefit of the Lenders, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement,
and the following terms which are defined in the Uniform
Commercial Code in effect in the State of New York on the date
hereof are used herein as so defined: Accounts, Chattel Paper,
Documents, Equipment, Farm Products, Instruments and Inventory.
(b) The following terms shall have the following
meanings:
"Agreement": this Guarantee and Collateral Agreement,
as the same may be amended, supplemented or otherwise
modified from time to time.
"Borrower Obligations": the collective reference to
the unpaid principal of and interest on the Loans and
Reimbursement Obligations and all other obligations and
liabilities of the Borrower (including, without limitation,
interest accruing at the then applicable rate provided in
the Credit Agreement after the maturity of the Loans and
Reimbursement Obligations and interest accruing at the then
applicable rate provided in the Credit Agreement after the
filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to the
Administrative Agent or any Lender (or, in the case of any
Hedge Agreement referred to below, any Affiliate of any
Lender), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, the
Credit Agreement, this Agreement, the other Loan Documents,
any Letter of Credit or any Hedge Agreement entered into by
the Borrower with any Lender (or any Affiliate of any
Lender) or any other document made, delivered or given in
connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including,
without limitation, all fees and disbursements of counsel to
the Administrative Agent or to the Lenders that are required
to be paid by the Borrower pursuant to the terms of any of
the foregoing agreements).
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account
established by the Administrative Agent as provided in
Section 6.1 or 6.4.
"Contracts": the contracts and agreements listed in
Schedule 7 and, to the extent assignment thereof is not
expressly prohibited, all other contracts and agreements to
which any Loan Party is a party or under which any Loan
Party is a beneficiary or has any rights, in each case as
the same may be amended, supplemented or otherwise modified
from time to time, including, without limitation, (i) all
rights of any Grantor to receive moneys due and to become
due to it thereunder or in connection therewith, (ii) all
rights of any Grantor to damages arising thereunder and
(iii) all rights of any Grantor to perform and to exercise
all remedies thereunder.
"Copyrights": (i) all copyrights arising under the
laws of the United States, any other country or any
political subdivision thereof, whether registered or
unregistered and whether published or unpublished
(including, without limitation, those listed in Schedule 6),
all registrations and recordings thereof, and all
applications in connection therewith, including, without
limitation, all registrations, recordings and applications
in the United States Copyright Office, and (ii) the right to
obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any
Grantor as licensor or licensee (including, without
limitation, those listed in Schedule 6), granting any right
under any Copyright, including, without limitation, the
grant of rights to manufacture, distribute, exploit and sell
materials derived from any Copyright.
"General Intangibles": all "general intangibles" as
such term is defined in Section 9-106 of the Uniform
Commercial Code in effect in the State of New York on the
date hereof and, in any event, including, without
limitation, with respect to any Grantor, all contracts,
agreements, instruments and indentures in any form, and
portions thereof, to which such Grantor is a party or under
which such Grantor has any right, title or interest or to
which such Grantor or any property of such Grantor is
subject, as the same may from time to time be amended,
supplemented or otherwise modified, including, without
limitation, (i) all rights of such Grantor to receive moneys
due and to become due to it thereunder or in connection
therewith, (ii) all rights of such Grantor to damages
arising thereunder and (iii) all rights of such Grantor to
perform and to exercise all remedies thereunder, in each
case to the extent the grant by such Grantor of a security
interest pursuant to this Agreement in its right, title and
interest in such contract, agreement, instrument or
indenture is not prohibited by such contract, agreement,
instrument or indenture without the consent of any other
party thereto, would not give any other party to such
contract, agreement, instrument or indenture the right to
terminate its obligations thereunder, or is permitted with
consent if all necessary consents to such grant of a
security interest have been obtained from the other parties
thereto (it being understood that the foregoing shall not be
deemed to obligate such Grantor to obtain such consents);
provided, that the foregoing limitation shall not affect,
limit, restrict or impair the grant by such Grantor of a
security interest pursuant to this Agreement in any
Receivable or any money or other amounts due or to become
due under any such contract, agreement, instrument or
indenture.
"Guarantor Obligations": with respect to any
Guarantor, the collective reference to (i) the Borrower
Obligations and (ii) all obligations and liabilities of such
Guarantor which may arise under or in connection with this
Agreement or any other Loan Document to which such Guarantor
is a party, in each case whether on account of guarantee
obligations, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to the Administrative
Agent or to the Lenders that are required to be paid by such
Guarantor pursuant to the terms of this Agreement or any
other Loan Document).
"Guarantors": the collective reference to each Grantor
other than the Borrower.
"Hedge Agreements": as to any Person, all interest
rate swaps, caps or collar agreements or similar
arrangements entered into by such Person providing for
protection against fluctuations in interest rates or
currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific
contingencies.
"Intellectual Property": the collective reference to
all rights, priorities and privileges relating to
intellectual property, whether arising under United States,
multinational or foreign laws or otherwise, including,
without limitation, the Copyrights, the Copyright Licenses,
the Patents, the Patent Licenses, the Trademarks and the
Trademark Licenses, and all rights to sue at law or in
equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages
therefrom.
"Intercompany Note": any promissory note evidencing
loans made by any Grantor to any of its Subsidiaries.
"Issuers": the collective reference to each issuer of
a Pledged Security.
"New York UCC": the Uniform Commercial Code as from
time to time in effect in the State of New York.
"Obligations": (i) in the case of the Borrower, the
Borrower Obligations, and (ii) in the case of each
Guarantor, its Guarantor Obligations.
"Patents": (i) all letters patent of the United
States, any other country or any political subdivision
thereof, all reissues and extensions thereof and all
goodwill associated therewith, including, without
limitation, any of the foregoing referred to in Schedule 6,
(ii) all applications for letters patent of the United
States or any other country and all divisions, continuations
and continuations-in-part thereof, including, without
limitation, any of the foregoing referred to in Schedule 6,
and (iii) all rights to obtain any reissues or extensions of
the foregoing.
"Patent License": all agreements, whether written or
oral, providing for the grant by or to any Grantor of any
right to manufacture, use or sell any invention covered in
whole or in part by a Patent, including, without limitation,
any of the foregoing referred to in Schedule 6.
"Pledged Notes": all promissory notes listed on
Schedule 2, all Intercompany Notes at any time issued to any
Grantor and all other promissory notes issued to or held by
any Grantor (other than promissory notes issued in
connection with extensions of trade credit by any Grantor in
the ordinary course of business).
"Pledged Securities": the collective reference to the
Pledged Notes and the Pledged Stock.
"Pledged Stock": the shares of Capital Stock listed on
Schedule 2, together with any other shares, stock
certificates, options or rights of any nature whatsoever in
respect of the Capital Stock of any Person that may be
issued or granted to, or held by, any Grantor while this
Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in
Section 9-306(1) of the Uniform Commercial Code in effect in
the State of New York on the date hereof and, in any event,
shall include, without limitation, all dividends or other
income from the Pledged Securities, collections thereon or
distributions or payments with respect thereto.
"Receivable": any right to payment for goods sold or
leased or for services rendered, whether or not such right
is evidenced by an Instrument or Chattel Paper and whether
or not it has been earned by performance (including, without
limitation, any Account).
"Securities Act": the Securities Act of 1933, as
amended.
"Trademarks": (i) all trademarks, trade names,
corporate names, company names, business names, fictitious
business names, trade styles, service marks, logos and other
source or business identifiers, and all goodwill associated
therewith, now existing or hereafter adopted or acquired,
all registrations and recordings thereof, and all
applications in connection therewith, whether in the United
States Patent and Trademark Office or in any similar office
or agency of the United States, any State thereof or any
other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto,
including, without limitation, any of the foregoing referred
to in Schedule 6, and (ii) the right to obtain all renewals
thereof.
"Trademark License": any agreement, whether written or
oral, providing for the grant by or to any Grantor of any
right to use any Trademark, including, without limitation,
any of the foregoing referred to in Schedule 6.
1.2 Other Definitional Provisions. (a) The words
"hereof," "herein", "hereto" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement,
and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of
such terms.
(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a
Grantor, shall refer to such Grantor's Collateral or the relevant
part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. (a) Each of the Guarantors hereby,
jointly and severally, unconditionally and irrevocably,
guarantees to the Administrative Agent, for the ratable benefit
of the Lenders and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Borrower
Obligations.
(b) Anything herein or in any other Loan Document to
the contrary notwithstanding, the maximum liability of each
Guarantor hereunder and under the other Loan Documents shall in
no event exceed the amount which can be guaranteed by such
Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of
contribution established in Section 2.2).
(c) Each Guarantor agrees that the Borrower
Obligations may at any time and from time to time exceed the
amount of the liability of such Guarantor hereunder without
impairing the guarantee contained in this Section 2 or affecting
the rights and remedies of the Administrative Agent or any Lender
hereunder.
(d) The guarantee contained in this Section 2 shall
remain in full force and effect until all the Borrower
Obligations and the obligations of each Guarantor under the
guarantee contained in this Section 2 shall have been satisfied
by payment in full, no Letter of Credit shall be outstanding and
the Revolving Credit Commitments shall be terminated,
notwithstanding that from time to time during the term of the
Credit Agreement the Borrower may be free from any Borrower
Obligations.
(e) No payment made by the Borrower, any of the
Guarantors, any other guarantor or any other Person or received
or collected by the Administrative Agent or any Lender from the
Borrower, any of the Guarantors, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations shall be
deemed to modify, reduce, release or otherwise affect the
liability of any Guarantor hereunder which shall, notwithstanding
any such payment (other than any payment made by such Guarantor
in respect of the Borrower Obligations or any payment received or
collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to
the maximum liability of such Guarantor hereunder until the
Borrower Obligations are paid in full, no Letter of Credit shall
be outstanding and the Revolving Credit Commitments are
terminated.
2.2 Right of Contribution. Each Guarantor hereby
agrees that to the extent that a Guarantor shall have paid more
than its proportionate share of any payment made hereunder, such
Guarantor shall be entitled to seek and receive contribution from
and against any other Guarantor hereunder which has not paid its
proportionate share of such payment. Each Guarantor's right of
contribution shall be subject to the terms and conditions of
Section 2.3. The provisions of this Section 2.2 shall in no
respect limit the obligations and liabilities of any Guarantor to
the Administrative Agent and the Lenders, and each Guarantor
shall remain liable to the Administrative Agent and the Lenders
for the full amount guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made
by any Guarantor hereunder or any set-off or application of funds
of any Guarantor by the Administrative Agent or any Lender, no
Guarantor shall be entitled to be subrogated to any of the rights
of the Administrative Agent or any Lender against the Borrower or
any other Guarantor or any collateral security or guarantee or
right of offset held by the Administrative Agent or any Lender
for the payment of the Borrower Obligations, nor shall any
Guarantor seek or be entitled to seek any contribution or
reimbursement from the Borrower or any other Guarantor in respect
of payments made by such Guarantor hereunder, until all amounts
owing to the Administrative Agent and the Lenders by the Borrower
on account of the Borrower Obligations are paid in full, no
Letter of Credit shall be outstanding and the Revolving Credit
Commitments are terminated. If any amount shall be paid to any
Guarantor on account of such subrogation rights at any time when
all of the Borrower Obligations shall not have been paid in full,
such amount shall be held by such Guarantor in trust for the
Administrative Agent and the Lenders, segregated from other funds
of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Administrative Agent in the
exact form received by such Guarantor (duly indorsed by such
Guarantor to the Administrative Agent, if required), to be
applied against the Borrower Obligations, whether matured or
unmatured, in such order as the Administrative Agent may
determine.
2.4 Amendments, etc. with respect to the Borrower
Obligations. Each Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against
any Guarantor and without notice to or further assent by any
Guarantor, any demand for payment of any of the Borrower
Obligations made by the Administrative Agent or any Lender may be
rescinded by the Administrative Agent or such Lender and any of
the Borrower Obligations continued, and the Borrower Obligations,
or the liability of any other Person upon or for any part
thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the
Administrative Agent or any Lender, and the Credit Agreement and
the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the
Administrative Agent (or the Required Lenders or all Lenders, as
the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time
held by the Administrative Agent or any Lender for the payment of
the Borrower Obligations may be sold, exchanged, waived,
surrendered or released. Neither the Administrative Agent nor
any Lender shall have any obligation to protect, secure, perfect
or insure any Lien at any time held by it as security for the
Borrower Obligations or for the guarantee contained in this
Section 2 or any property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each
Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Borrower Obligations and
notice of or proof of reliance by the Administrative Agent or any
Lender upon the guarantee contained in this Section 2 or
acceptance of the guarantee contained in this Section 2; the
Borrower Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the
Borrower and any of the Guarantors, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. Each
Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the
Borrower or any of the Guarantors with respect to the Borrower
Obligations. Each Guarantor understands and agrees that the
guarantee contained in this Section 2 shall be construed as a
continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of the
Credit Agreement or any other Loan Document, any of the Borrower
Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender,
(b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or
be asserted by the Borrower or any other Person against the
Administrative Agent or any Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the
Borrower or such Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the
Borrower for the Borrower Obligations, or of such Guarantor under
the guarantee contained in this Section 2, in bankruptcy or in
any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any
Guarantor, the Administrative Agent or any Lender may, but shall
be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against the
Borrower, any other Guarantor or any other Person or against any
collateral security or guarantee for the Borrower Obligations or
any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to make any such demand, to
pursue such other rights or remedies or to collect any payments
from the Borrower, any other Guarantor or any other Person or to
realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the
Borrower, any other Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not
relieve any Guarantor of any obligation or liability hereunder,
and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the
Administrative Agent or any Lender against any Guarantor. For
the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this
Section 2 shall continue to be effective, or be reinstated, as
the case may be, if at any time payment, or any part thereof, of
any of the Borrower Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender
upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or any Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower
or any Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that
payments hereunder will be paid to the Administrative Agent
without set-off or counterclaim in Dollars at the office of the
Administrative Agent located at 208 Harristown Road, Glen Rock,
New Jersey 07452.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the
Administrative Agent, and hereby grants to the Administrative
Agent, for the ratable benefit of the Lenders, a security
interest in, all of the following property now owned or at any
time hereafter acquired by such Grantor or in which such Grantor
now has or at any time in the future may acquire any right, title
or interest (collectively, the "Collateral"), as collateral
security for the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or
otherwise) of such Grantor's Obligations,:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Contracts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Pledged Securities;
(k) all books and records pertaining to the
Collateral; and
(l) to the extent not otherwise included, all Proceeds
and products of any and all of the foregoing and all
collateral security and guarantees given by any Person with
respect to any of the foregoing.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to
enter into the Credit Agreement and to induce the Lenders to make
their respective extensions of credit to the Borrower thereunder,
each Grantor hereby represents and warrants to the Administrative
Agent and each Lender that:
4.1 Representations in Credit Agreement. In the case
of each Guarantor, the representations and warranties set forth
in Section 4 of the Credit Agreement as they relate to such
Guarantor or to the Loan Documents to which such Guarantor is a
party, each of which is hereby incorporated herein by reference,
are true and correct, and the Administrative Agent and each
Lender shall be entitled to rely on each of them as if they were
fully set forth herein, provided that each reference in each such
representation and warranty to the Borrower's knowledge shall,
for the purposes of this Section 4.1, be deemed to be a reference
to such Guarantor's knowledge.
4.2 Title; No Other Liens. Except for the security
interest granted to the Administrative Agent for the ratable
benefit of the Lenders pursuant to this Agreement and the other
Liens permitted to exist on the Collateral by the Credit
Agreement, such Grantor owns each item of the Collateral free and
clear of any and all Liens or claims of others. No financing
statement or other public notice with respect to all or any part
of the Collateral is on file or of record in any public office,
except such as have been filed in favor of the Administrative
Agent, for the ratable benefit of the Lenders, pursuant to this
Agreement or as are permitted by the Credit Agreement.
4.3 Perfected First Priority Liens. The security
interests granted pursuant to this Agreement (a) upon completion
of the filings and other actions specified on Schedule 3 (which,
in the case of all filings and other documents referred to on
said Schedule, have been delivered to the Administrative Agent in
completed and duly executed form) will constitute valid perfected
security interests in all of the Collateral in favor of the
Administrative Agent, for the ratable benefit of the Lenders, as
collateral security for such Grantor's Obligations, enforceable
in accordance with the terms hereof against all creditors of such
Grantor and any Persons purporting to purchase any Collateral
from such Grantor and (b) are prior to all other Liens on the
Collateral in existence on the date hereof except for (i)
unrecorded Liens permitted by the Credit Agreement which have
priority over the Liens on the Collateral by operation of law and
(ii) other Liens permitted by the Credit Agreement.
4.4 Chief Executive Office. On the date hereof, such
Grantor's jurisdiction of organization and the location of such
Grantor's chief executive office or sole place of business are
specified on Schedule 4.
4.5 Inventory and Equipment. On the date hereof, the
Inventory and the Equipment (other than mobile goods) are kept at
the locations listed on Schedule 5.
4.6 Farm Products. None of the Collateral
constitutes, or is the Proceeds of, Farm Products.
4.7 Pledged Securities. (a) The shares of Pledged
Stock pledged by such Grantor hereunder constitute all the issued
and outstanding shares of all classes of the Capital Stock of
each Issuer owned by such Grantor.
(b) All the shares of the Pledged Stock have been duly
and validly issued and are fully paid and nonassessable.
(c) Each of the Pledged Notes constitutes the legal,
valid and binding obligation of the obligor with respect thereto,
enforceable in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(d) Such Grantor is the record and beneficial owner
of, and has good and marketable title to, the Pledged Securities
pledged by it hereunder, free of any and all Liens or options in
favor of, or claims of, any other Person, except the security
interest created by this Agreement.
4.8 Receivables. (a) No amount payable to such
Grantor under or in connection with any Receivable is evidenced
by any Instrument or Chattel Paper which has not been delivered
to the Administrative Agent.
(b) None of the obligors on any Receivables is a
Governmental Authority.
(c) The amounts represented by such Grantor to the
Lenders from time to time as owing to such Grantor in respect of
the Receivables will at such times be accurate.
4.9 Contracts. (a) No consent of any party (other
than such Grantor) to any Contract is required, or purports to be
required, in connection with the execution, delivery and
performance of this Agreement.
(b) Each Contract is in full force and effect and
constitutes a valid and legally enforceable obligation of the
parties thereto, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(c) No consent or authorization of, filing with or
other act by or in respect of any Governmental Authority is
required in connection with the execution, delivery, performance,
validity or enforceability of any of the Contracts by any party
thereto other than those which have been duly obtained, made or
performed, are in full force and effect and do not subject the
scope of any such Contract to any material adverse limitation,
either specific or general in nature.
(d) Neither such Grantor nor (to the best of such
Grantor's knowledge) any of the other parties to the Contracts is
in default in the performance or observance of any of the terms
thereof in any manner that, in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(e) The right, title and interest of such Grantor in,
to and under the Contracts are not subject to any defenses,
offsets, counterclaims or claims that, in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(f) Such Grantor has delivered to the Administrative
Agent a complete and correct copy of each Contract, including all
amendments, supplements and other modifications thereto.
(g) No amount payable to such Grantor under or in
connection with any Contract is evidenced by any Instrument or
Chattel Paper which has not been delivered to the Administrative
Agent.
(h) None of the parties to any Contract is a
Governmental Authority.
4.10 Intellectual Property. (a) Schedule 6 lists all
Intellectual Property owned by such Grantor in its own name on
the date hereof.
(b) On the date hereof, all material Intellectual
Property is valid, subsisting, unexpired and enforceable, has not
been abandoned and does not infringe the intellectual property
rights of any other Person, except to the extent that could not
reasonably be expected to have a Material Adverse Effect.
(c) Except as set forth in Schedule 6, on the date
hereof, none of the Intellectual Property is the subject of any
licensing or franchise agreement pursuant to which such Grantor
is the licensor or franchisor, other than pursuant to any
licensing or reseller agreements entered into by such Grantor in
the ordinary course of business consistent with its past
practice.
(d) No holding, decision or judgment has been rendered
by any Governmental Authority which would limit, cancel or
question the validity of, or such Grantor's rights in, any
Intellectual Property in any respect that could reasonably be
expected to have a Material Adverse Effect.
(e) No action or proceeding is pending, or, to the
knowledge of such Grantor, threatened, on the date hereof (i)
seeking to limit, cancel or question the validity of any
Intellectual Property or such Grantor's ownership interest
therein, or (ii) which, if adversely determined, would have a
material adverse effect on the value of any Intellectual
Property.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the
Administrative Agent and the Lenders that, from and after the
date of this Agreement until the Obligations shall have been paid
in full, no Letter of Credit shall be outstanding and the
Revolving Credit Commitments shall have terminated:
5.1 Covenants in Credit Agreement. In the case of
each Guarantor, such Guarantor shall take, or shall refrain from
taking, as the case may be, each action that is necessary to be
taken or not taken, as the case may be, so that no Default or
Event of Default is caused by the failure to take such action or
to refrain from taking such action by such Guarantor or any of
its Subsidiaries.
5.2 Delivery of Instruments and Chattel Paper. If any
amount payable under or in connection with any of the Collateral
shall be or become evidenced by any Instrument or Chattel Paper,
such Instrument or Chattel Paper shall be immediately delivered
to the Administrative Agent, duly indorsed in a manner
satisfactory to the Administrative Agent, to be held as
Collateral pursuant to this Agreement.
5.3 Maintenance of Insurance. (a) Such Grantor will
maintain, with financially sound and reputable companies,
insurance policies (i) insuring the Inventory and Equipment
against loss by fire, explosion, theft and such other casualties
as may be reasonably satisfactory to the Administrative Agent and
(ii) to the extent requested by the Administrative Agent,
insuring such Grantor, the Administrative Agent and the Lenders
against liability for personal injury and property damage
relating to such Inventory and Equipment, such policies to be in
such form and amounts and having such coverage as may be
reasonably satisfactory to the Administrative Agent and the
Lenders.
(b) All such insurance shall (i) provide that no
cancellation, material reduction in amount or material change in
coverage thereof shall be effective until at least 30 days after
receipt by the Administrative Agent of written notice thereof,
(ii) name the Administrative Agent as insured party or loss
payee, (iii) if reasonably requested by the Administrative Agent,
include a breach of warranty clause and (iv) be reasonably
satisfactory in all other respects to the Administrative Agent.
(c) The Borrower shall deliver to the Administrative
Agent and the Lenders a report of a reputable insurance broker
with respect to such insurance during the month of April in each
calendar year and such supplemental reports with respect thereto
as the Administrative Agent may from time to time reasonably
request.
5.4 Payment of Obligations. Such Grantor will pay and
discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, all taxes,
assessments and governmental charges or levies imposed upon the
Collateral or in respect of income or profits therefrom, as well
as all claims of any kind (including, without limitation, claims
for labor, materials and supplies) against or with respect to the
Collateral, except that no such charge need be paid if the amount
or validity thereof is currently being contested in good faith by
appropriate proceedings, reserves in conformity with GAAP with
respect thereto have been provided on the books of such Grantor
and such proceedings could not reasonably be expected to result
in the sale, forfeiture or loss of any material portion of the
Collateral or any interest therein.
5.5 Maintenance of Perfected Security Interest;
Further Documentation. (a) Such Grantor shall maintain the
security interest created by this Agreement as a perfected
security interest having at least the priority described in
Section 4.3 and shall defend such security interest against the
claims and demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Administrative
Agent and the Lenders from time to time statements and schedules
further identifying and describing the Collateral and such other
reports in connection with the Collateral as the Administrative
Agent may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the
written request of the Administrative Agent, and at the sole
expense of such Grantor, such Grantor will promptly and duly
execute and deliver, and have recorded, such further instruments
and documents and take such further actions as the Administrative
Agent may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights
and powers herein granted, including, without limitation, the
filing of any financing or continuation statements under the
Uniform Commercial Code (or other similar laws) in effect in any
jurisdiction with respect to the security interests created
hereby.
5.6 Changes in Locations, Name, etc. Such Grantor
will not, except upon 15 days' prior written notice to the
Administrative Agent and delivery to the Administrative Agent of
(a) all additional executed financing statements and other
documents reasonably requested by the Administrative Agent to
maintain the validity, perfection and priority of the security
interests provided for herein and (b) if applicable, a written
supplement to Schedule 5 showing any additional location at which
Inventory or Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept
at a location other than those listed on Schedule 5;
(ii) change the location of its chief executive office
or sole place of business from that referred to in Section
4.4; or
(iii) change its name, identity or corporate structure
to such an extent that any financing statement filed by the
Administrative Agent in connection with this Agreement would
become misleading.
5.7 Notices. Such Grantor will advise the
Administrative Agent and the Lenders promptly, in reasonable
detail, of:
(a) any Lien (other than security interests created
hereby or Liens permitted under the Credit Agreement) on any of
the Collateral which would adversely affect the ability of the
Administrative Agent to exercise any of its remedies hereunder;
and
(b) of the occurrence of any other event which could
reasonably be expected to have a material adverse effect on the
aggregate value of the Collateral or on the security interests
created hereby.
5.8 Pledged Securities. (a) If such Grantor shall
become entitled to receive or shall receive any stock certificate
(including, without limitation, any certificate representing a
stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any
certificate issued in connection with any reorganization), option
or rights in respect of the Capital Stock of any Issuer, whether
in addition to, in substitution of, as a conversion of, or in
exchange for, any shares of the Pledged Stock, or otherwise in
respect thereof, such Grantor shall accept the same as the agent
of the Administrative Agent and the Lenders, hold the same in
trust for the Administrative Agent and the Lenders and deliver
the same forthwith to the Administrative Agent in the exact form
received, duly indorsed by such Grantor to the Administrative
Agent, if required, together with an undated stock power covering
such certificate duly executed in blank by such Grantor and with,
if the Administrative Agent so requests, signature guaranteed, to
be held by the Administrative Agent, subject to the terms hereof,
as additional collateral security for the Obligations. Any sums
paid upon or in respect of the Pledged Securities upon the
liquidation or dissolution of any Issuer shall be paid over to
the Administrative Agent to be held by it hereunder as additional
collateral security for the Obligations, and in case any
distribution of capital shall be made on or in respect of the
Pledged Securities or any property shall be distributed upon or
with respect to the Pledged Securities pursuant to the
recapitalization or reclassification of the capital of any Issuer
or pursuant to the reorganization thereof, the property so
distributed shall, unless otherwise subject to a perfected
security interest in favor of the Administrative Agent, be
delivered to the Administrative Agent to be held by it hereunder
as additional collateral security for the Obligations. If any
sums of money or property so paid or distributed in respect of
the Pledged Securities shall be received by such Grantor, such
Grantor shall, until such money or property is paid or delivered
to the Administrative Agent, hold such money or property in trust
for the Lenders, segregated from other funds of such Grantor, as
additional collateral security for the Obligations.
(b) Without the prior written consent of the
Administrative Agent, such Grantor will not (i) vote to enable,
or take any other action to permit, any Issuer to issue any stock
or other equity securities of any nature or to issue any other
securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature
of any Issuer, (ii) sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the
Pledged Securities or Proceeds thereof (except pursuant to a
transaction expressly permitted by the Credit Agreement), (iii)
create, incur or permit to exist any Lien or option in favor of,
or any claim of any Person with respect to, any of the Pledged
Securities or Proceeds thereof, or any interest therein, except
for the security interests created by this Agreement or (iv)
enter into any agreement or undertaking restricting the right or
ability of such Grantor or the Administrative Agent to sell,
assign or transfer any of the Pledged Securities or Proceeds
thereof.
(c) In the case of each Grantor which is an Issuer,
such Issuer agrees that (i) it will be bound by the terms of this
Agreement relating to the Pledged Securities issued by it and
will comply with such terms insofar as such terms are applicable
to it, (ii) it will notify the Administrative Agent promptly in
writing of the occurrence of any of the events described in
Section 5.8(a) with respect to the Pledged Securities issued by
it and (iii) the terms of Sections 6.3(c) and 6.7 shall apply to
it, mutatis mutandis, with respect to all actions that may be
required of it pursuant to Section 6.3(c) or 6.7 with respect to
the Pledged Securities issued by it.
5.9 Receivables. (a) Other than in the ordinary
course of business consistent with its past practice, such
Grantor will not (i) grant any extension of the time of payment
of any Receivable, (ii) compromise or settle any Receivable for
less than the full amount thereof, (iii) release, wholly or
partially, any Person liable for the payment of any Receivable,
(iv) allow any credit or discount whatsoever on any Receivable or
(v) amend, supplement or modify any Receivable in any manner that
could adversely affect the value thereof.
(b) Such Grantor will deliver to the Administrative
Agent a copy of each material demand, notice or document received
by it that questions or calls into doubt the validity or
enforceability of more than 5% of the aggregate amount of the
then outstanding Receivables.
5.10 Contracts. Except in the ordinary course of
business consistent with its past practice:
(a) Such Grantor will perform and comply in all
material respects with all its obligations under the Contracts.
(b) Such Grantor will not amend, modify, terminate or
waive any provision of any Contract in any manner which could
reasonably be expected to materially adversely affect the value
of such Contract as Collateral.
(c) Such Grantor will exercise promptly and diligently
each and every material right which it may have under each
Contract (other than any right of termination).
(d) Such Grantor will deliver to the Administrative
Agent a copy of each material demand, notice or document received
by it relating in any way to any Contract that questions the
validity or enforceability of such Contract.
5.11 Intellectual Property. (a) Such Grantor (either
itself or through licensees) will (i) continue to use each
material Trademark on each and every trademark class of goods
applicable to its current line as reflected in its current
catalogs, brochures and price lists in order to maintain such
Trademark in full force free from any claim of abandonment for
non-use, (ii) maintain as in the past the quality of products and
services offered under such Trademark, (iii) use such Trademark
with the appropriate notice of registration and all other notices
and legends required by applicable Requirements of Law, (iv) not
adopt or use any mark which is confusingly similar or a colorable
imitation of such Trademark unless the Administrative Agent, for
the ratable benefit of the Lenders, shall obtain a perfected
security interest in such mark pursuant to this Agreement, and
(v) not (and not permit any licensee or sublicensee thereof to)
do any act or knowingly omit to do any act whereby such Trademark
may become invalidated or impaired in any way.
(b) Except in the ordinary course of business
consistent with its past practice, such Grantor (either itself or
through licensees) will not do any act, or omit to do any act,
whereby any material Patent may become forfeited, abandoned or
dedicated to the public.
(c) Such Grantor (either itself or through licensees)
(i) will employ each material Copyright and (ii) will not (and
will not permit any licensee or sublicensee thereof to) do any
act or knowingly omit to do any act whereby any material portion
of the Copyrights may become invalidated or otherwise impaired.
Such Grantor will not (either itself or through licensees) do any
act whereby any material portion of the Copyrights may fall into
the public domain.
(d) Such Grantor (either itself or through licensees)
will not do any act that knowingly uses any material Intellectual
Property to infringe the intellectual property rights of any
other Person.
(e) Such Grantor will notify the Administrative Agent
and the Lenders immediately if it knows, or has reason to know,
that any application or registration relating to any material
Intellectual Property may become forfeited, abandoned or
dedicated to the public, or of any adverse determination or
development (including, without limitation, the institution of,
or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, the United States
Copyright Office or any court or tribunal in any country)
regarding such Grantor's ownership of, or the validity of, any
material Intellectual Property or such Grantor's right to
register the same or to own and maintain the same.
(f) Whenever such Grantor, either by itself or through
any agent, employee, licensee or designee, shall file an
application for the registration of any Intellectual Property
with the United States Patent and Trademark Office, the United
States Copyright Office or any similar office or agency in any
other country or any political subdivision thereof, such Grantor
shall report such filing to the Administrative Agent within five
Business Days after the last day of the fiscal quarter in which
such filing occurs. Upon request of the Administrative Agent,
such Grantor shall execute and deliver, and have recorded, any
and all agreements, instruments, documents, and papers as the
Administrative Agent may request to evidence the Administrative
Agent's and the Lenders' security interest in any Copyright,
Patent or Trademark and the goodwill and general intangibles of
such Grantor relating thereto or represented thereby.
(g) Such Grantor will take all reasonable and
necessary steps, including, without limitation, in any proceeding
before the United States Patent and Trademark Office, the United
States Copyright Office or any similar office or agency in any
other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant
registration) and to maintain each registration of the material
Intellectual Property, including, without limitation, filing of
applications for renewal, affidavits of use and affidavits of
incontestability.
(h) In the event that any material Intellectual
Property is infringed, misappropriated or diluted by a third
party, such Grantor shall (i) take such actions as such Grantor
shall reasonably deem appropriate under the circumstances to
protect such Intellectual Property and (ii) if such Intellectual
Property is of material economic value, promptly notify the
Administrative Agent after it learns thereof and sue for
infringement, misappropriation or dilution, to seek injunctive
relief where appropriate and to recover any and all damages for
such infringement, misappropriation or dilution.
SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) The
Administrative Agent shall have the right to make test
verifications of the Receivables in any manner and through any
medium that it reasonably considers advisable, and each Grantor
shall furnish all such assistance and information as the
Administrative Agent may require in connection with such test
verifications. At any time and from time to time, upon the
Administrative Agent's request and at the expense of the relevant
Grantor, such Grantor shall cause independent public accountants
or others satisfactory to the Administrative Agent to furnish to
the Administrative Agent reports showing reconciliations, aging
and test verifications of, and trial balances for, the
Receivables.
(b) The Administrative Agent hereby authorizes each
Grantor to collect such Grantor's Receivables, subject to the
Administrative Agent's direction and control, and the
Administrative Agent may curtail or terminate said authority at
any time after the occurrence and during the continuance of an
Event of Default. If required by the Administrative Agent at any
time after the occurrence and during the continuance of an Event
of Default, any payments of Receivables, when collected by any
Grantor, (i) shall be forthwith (and, in any event, within two
Business Days) deposited by such Grantor in the exact form
received, duly indorsed by such Grantor to the Administrative
Agent if required, in a Collateral Account maintained under the
sole dominion and control of the Administrative Agent, subject to
withdrawal by the Administrative Agent for the account of the
Lenders only as provided in Section 6.5, and (ii) until so turned
over, shall be held by such Grantor in trust for the
Administrative Agent and the Lenders, segregated from other funds
of such Grantor. Each such deposit of Proceeds of Receivables
shall be accompanied by a report identifying in reasonable detail
the nature and source of the payments included in the deposit.
(c) At the Administrative Agent's request, each
Grantor shall deliver to the Administrative Agent all original
and other documents evidencing, and relating to, the agreements
and transactions which gave rise to the Receivables, including,
without limitation, all original orders, invoices and shipping
receipts.
6.2 Communications with Obligors; Grantors Remain
Liable. (a) The Administrative Agent in its own name or in the
name of others may at any time after the occurrence and during
the continuance of an Event of Default communicate with obligors
under the Receivables and parties to the Contracts to verify with
them to the Administrative Agent's satisfaction the existence,
amount and terms of any Receivables or Contracts.
(b) Upon the request of the Administrative Agent at
any time after the occurrence and during the continuance of an
Event of Default, each Grantor shall notify obligors on the
Receivables and parties to the Contracts that the Receivables and
the Contracts have been assigned to the Administrative Agent for
the ratable benefit of the Lenders and that payments in respect
thereof shall be made directly to the Administrative Agent.
(c) Anything herein to the contrary notwithstanding,
each Grantor shall remain liable under each of the Receivables
and Contracts to observe and perform all the conditions and
obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise thereto.
Neither the Administrative Agent nor any Lender shall have any
obligation or liability under any Receivable (or any agreement
giving rise thereto) or Contract by reason of or arising out of
this Agreement or the receipt by the Administrative Agent or any
Lender of any payment relating thereto, nor shall the
Administrative Agent or any Lender be obligated in any manner to
perform any of the obligations of any Grantor under or pursuant
to any Receivable (or any agreement giving rise thereto) or
Contract, to make any payment, to make any inquiry as to the
nature or the sufficiency of any payment received by it or as to
the sufficiency of any performance by any party thereunder, to
present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may
have been assigned to it or to which it may be entitled at any
time or times.
6.3 Pledged Stock. (a) Unless an Event of Default
shall have occurred and be continuing and the Administrative
Agent shall have given notice to the relevant Grantor of the
Administrative Agent's intent to exercise its corresponding
rights pursuant to Section 6.3(b), each Grantor shall be
permitted to receive all cash dividends paid in respect of the
Pledged Stock and all payments made in respect of the Pledged
Notes, in each case paid in the normal course of business of the
relevant Issuer and consistent with past practice, to the extent
permitted in the Credit Agreement, and to exercise all voting and
corporate rights with respect to the Pledged Securities;
provided, however, that no vote shall be cast or corporate right
exercised or other action taken which, in the Administrative
Agent's reasonable judgment, would impair the Collateral or which
would be inconsistent with or result in any violation of any
provision of the Credit Agreement, this Agreement or any other
Loan Document.
(b) If an Event of Default shall occur and be
continuing and the Administrative Agent shall give notice of its
intent to exercise such rights to the relevant Grantor or
Grantors, (i) the Administrative Agent shall have the right to
receive any and all cash dividends, payments or other Proceeds
paid in respect of the Pledged Securities and make application
thereof to the Obligations in such order as the Administrative
Agent may determine, and (ii) any or all of the Pledged
Securities shall be registered in the name of the Administrative
Agent or its nominee, and the Administrative Agent or its nominee
may thereafter exercise (x) all voting, corporate and other
rights pertaining to such Pledged Securities at any meeting of
shareholders of the relevant Issuer or Issuers or otherwise and
(y) any and all rights of conversion, exchange and subscription
and any other rights, privileges or options pertaining to such
Pledged Securities as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its
discretion any and all of the Pledged Securities upon the merger,
consolidation, reorganization, recapitalization or other
fundamental change in the corporate structure of any Issuer, or
upon the exercise by any Grantor or the Administrative Agent of
any right, privilege or option pertaining to such Pledged
Securities, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Securities with any committee,
depositary, transfer agent, registrar or other designated agency
upon such terms and conditions as the Administrative Agent may
determine), all without liability except to account for property
actually received by it, but the Administrative Agent shall have
no duty to any Grantor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or
delay in so doing.
(c) Each Grantor hereby authorizes and instructs each
Issuer of any Pledged Securities pledged by such Grantor
hereunder to (i) comply with any instruction received by it from
the Administrative Agent in writing that (x) states that an Event
of Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees
that each Issuer shall be fully protected in so complying, and
(ii) unless otherwise expressly permitted hereby, pay any
dividends or other payments with respect to the Pledged
Securities directly to the Administrative Agent.
6.4 Proceeds to be Turned Over To Administrative
Agent. In addition to the rights of the Administrative Agent and
the Lenders specified in Section 6.1 with respect to payments of
Receivables, if an Event of Default shall occur and be
continuing, all Proceeds received by any Grantor consisting of
cash, checks and other near-cash items shall be held by such
Grantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Grantor, and shall, forthwith
upon receipt by such Grantor, be turned over to the
Administrative Agent in the exact form received by such Grantor
(duly indorsed by such Grantor to the Administrative Agent, if
required). All Proceeds received by the Administrative Agent
hereunder shall be held by the Administrative Agent in a
Collateral Account maintained under its sole dominion and
control. All Proceeds while held by the Administrative Agent in
a Collateral Account (or by such Grantor in trust for the
Administrative Agent and the Lenders) shall continue to be held
as collateral security for all the Obligations and shall not
constitute payment thereof until applied as provided in Section
6.5.
6.5 Application of Proceeds. At such intervals as may
be agreed upon by the Borrower and the Administrative Agent, or,
if an Event of Default shall have occurred and be continuing, at
any time at the Administrative Agent's election, the
Administrative Agent may apply all or any part of Proceeds held
in any Collateral Account in payment of the Obligations in such
order as the Administrative Agent may elect, and any part of such
funds which the Administrative Agent elects not so to apply and
deems not required as collateral security for the Obligations
shall be paid over from time to time by the Administrative Agent
to the Borrower or to whomsoever may be lawfully entitled to
receive the same. Any balance of such Proceeds remaining after
the Obligations shall have been paid in full, no Letters of
Credit shall be outstanding and the Revolving Credit Commitments
shall have terminated shall be paid over to the Borrower or to
whomsoever may be lawfully entitled to receive the same.
6.6 Code and Other Remedies. If an Event of Default
shall occur and be continuing, the Administrative Agent, on
behalf of the Lenders, may exercise, in addition to all other
rights and remedies granted to them in this Agreement and in any
other instrument or agreement securing, evidencing or relating to
the Obligations, all rights and remedies of a secured party under
the New York UCC or any other applicable law. Without limiting
the generality of the foregoing, the Administrative Agent,
without demand of performance or other demand, presentment,
protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Grantor or any
other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize
upon the Collateral, or any part thereof, and/or may forthwith
sell, lease, assign, give option or options to purchase, or
otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more
parcels at public or private sale or sales, at any exchange,
broker's board or office of the Administrative Agent or any
Lender or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit
risk. The Administrative Agent or any Lender shall have the
right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of
any right or equity of redemption in any Grantor, which right or
equity is hereby waived and released. Each Grantor further
agrees, at the Administrative Agent's request, to assemble the
Collateral and make it available to the Administrative Agent at
places which the Administrative Agent shall reasonably select,
whether at such Grantor's premises or elsewhere. The
Administrative Agent shall apply the net proceeds of any action
taken by it pursuant to this Section 6.6, after deducting all
reasonable costs and expenses of every kind incurred in
connection therewith or incidental to the care or safekeeping of
any of the Collateral or in any way relating to the Collateral or
the rights of the Administrative Agent and the Lenders hereunder,
including, without limitation, reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the
Obligations, in such order as the Administrative Agent may elect,
and only after such application and after the payment by the
Administrative Agent of any other amount required by any
provision of law, including, without limitation, Section 9-504(1)(c) of the New
York UCC, need the Administrative Agent account for the surplus, if any, to
any Grantor. To the extent permitted by applicable law, each Grantor waives
all claims, damages and demands it may acquire against the Administrative
Agent or any Lender arising out of the exercise by them of any
rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least 10 days
before such sale or other disposition.
6.7 Registration Rights. (a) If the Administrative
Agent shall determine to exercise its right to sell any or all of
the Pledged Stock pursuant to Section 6.6, and if in the opinion
of the Administrative Agent it is necessary or advisable to have
the Pledged Stock, or that portion thereof to be sold, registered
under the provisions of the Securities Act, the relevant Grantor
will cause the Issuer thereof to (i) execute and deliver, and
cause the directors and officers of such Issuer to execute and
deliver, all such instruments and documents, and do or cause to
be done all such other acts as may be, in the opinion of the
Administrative Agent, necessary or advisable to register the
Pledged Stock, or that portion thereof to be sold, under the
provisions of the Securities Act, (ii) use its best efforts to
cause the registration statement relating thereto to become
effective and to remain effective for a period of one year from
the date of the first public offering of the Pledged Stock, or
that portion thereof to be sold, and (iii) make all amendments
thereto and/or to the related prospectus which, in the opinion of
the Administrative Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission
applicable thereto. Each Grantor agrees to cause such Issuer to
comply with the provisions of the securities or "Blue Sky" laws
of any and all jurisdictions which the Administrative Agent shall
designate and to make available to its security holders, as soon
as practicable, an earnings statement (which need not be audited)
which will satisfy the provisions of Section 11(a) of the
Securities Act.
(b) Each Grantor recognizes that the Administrative
Agent may be unable to effect a public sale of any or all the
Pledged Stock, by reason of certain prohibitions contained in the
Securities Act and applicable state securities laws or otherwise,
and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for
their own account for investment and not with a view to the
distribution or resale thereof. Each Grantor acknowledges and
agrees that any such private sale may result in prices and other
terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private
sale shall be deemed to have been made in a commercially
reasonable manner. The Administrative Agent shall be under no
obligation to delay a sale of any of the Pledged Stock for the
period of time necessary to permit the Issuer thereof to register
such securities for public sale under the Securities Act, or
under applicable state securities laws, even if such Issuer would
agree to do so.
(c) Each Grantor agrees to use its best efforts to do
or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Pledged
Stock pursuant to this Section 6.7 valid and binding and in
compliance with any and all other applicable Requirements of Law.
Each Grantor further agrees that a breach of any of the covenants
contained in this Section 6.7 will cause irreparable injury to
the Administrative Agent and the Lenders, that the Administrative
Agent and the Lenders have no adequate remedy at law in respect
of such breach and, as a consequence, that each and every
covenant contained in this Section 6.7 shall be specifically
enforceable against such Grantor, and such Grantor hereby waives
and agrees not to assert any defenses against an action for
specific performance of such covenants except for a defense that
no Event of Default has occurred under the Credit Agreement.
6.8 Waiver; Deficiency. Each Grantor waives and
agrees not to assert any rights or privileges which it may
acquire under Section 9-112 of the New York UCC. Each Grantor
shall remain liable for any deficiency if the proceeds of any
sale or other disposition of the Collateral are insufficient to
pay its Obligations and the fees and disbursements of any
attorneys employed by the Administrative Agent or any Lender to
collect such deficiency.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. (a)
Each Grantor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of such Grantor and in the name of such
Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this
Agreement, and, without limiting the generality of the foregoing,
each Grantor hereby gives the Administrative Agent the power and
right, on behalf of such Grantor, without notice to or assent by
such Grantor, to do any or all of the following:
(i) in the name of such Grantor or its own name, or
otherwise, take possession of and indorse and collect any
checks, drafts, notes, acceptances or other instruments for
the payment of moneys due under any Receivable or Contract
or with respect to any other Collateral and file any claim
or take any other action or proceeding in any court of law
or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any and
all such moneys due under any Receivable or Contract or with
respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute
and deliver, and have recorded, any and all agreements,
instruments, documents and papers as the Administrative
Agent may request to evidence the Administrative Agent's and
the Lenders' security interest in such Intellectual Property
and the goodwill and general intangibles of such Grantor
relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or
placed on or threatened against the Collateral, effect any
repairs or any insurance called for by the terms of this
Agreement and pay all or any part of the premiums therefor
and the costs thereof;
(iv) execute, in connection with any sale provided for
in Section 6.6 or 6.7, any indorsements, assignments or
other instruments of conveyance or transfer with respect to
the Collateral; and
(v) (1) direct any party liable for any payment under
any of the Collateral to make payment of any and all moneys
due or to become due thereunder directly to the
Administrative Agent or as the Administrative Agent shall
direct; (2) ask or demand for, collect, and receive payment
of and receipt for, any and all moneys, claims and other
amounts due or to become due at any time in respect of or
arising out of any Collateral; (3) sign and indorse any
invoices, freight or express bills, bills of lading, storage
or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection
with any of the Collateral; (4) commence and prosecute any
suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or
any portion thereof and to enforce any other right in
respect of any Collateral; (5) defend any suit, action or
proceeding brought against such Grantor with respect to any
Collateral; (6) settle, compromise or adjust any such suit,
action or proceeding and, in connection therewith, give such
discharges or releases as the Administrative Agent may deem
appropriate; (7) assign any Copyright, Patent or Trademark
(along with the goodwill of the business to which any such
Copyright, Patent or Trademark pertains), throughout the
world for such term or terms, on such conditions, and in
such manner, as the Administrative Agent shall in its sole
discretion determine; and (8) generally, sell, transfer,
pledge and make any agreement with respect to or otherwise
deal with any of the Collateral as fully and completely as
though the Administrative Agent were the absolute owner
thereof for all purposes, and do, at the Administrative
Agent's option and such Grantor's expense, at any time, or
from time to time, all acts and things which the
Administrative Agent deems necessary to protect, preserve or
realize upon the Collateral and the Administrative Agent's
and the Lenders' security interests therein and to effect
the intent of this Agreement, all as fully and effectively
as such Grantor might do.
Anything in this Section 7.1(a) to the contrary
notwithstanding, the Administrative Agent agrees that it will not
exercise any rights under the power of attorney provided for in
this Section 7.1(a) unless an Event of Default shall have
occurred and be continuing.
(b) If any Grantor fails to perform or comply with any
of its agreements contained herein, the Administrative Agent, at
its option, but without any obligation so to do, may perform or
comply, or otherwise cause performance or compliance, with such
agreement.
(c) The expenses of the Administrative Agent incurred
in connection with actions undertaken as provided in this Section
7.1, together with interest thereon at a rate per annum equal to
the rate per annum at which interest would then be payable on
past due Base Rate Loans under the Credit Agreement, from the
date of payment by the Administrative Agent to the date
reimbursed by the relevant Grantor, shall be payable by such
Grantor to the Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said
attorneys shall lawfully do or cause to be done by virtue hereof.
All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and are irrevocable until
this Agreement is terminated and the security interests created
hereby are released.
7.2 Duty of Administrative Agent. The Administrative
Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under
Section 9-207 of the New York UCC or otherwise, shall be to deal
with it in the same manner as the Administrative Agent deals with
similar property for its own account. Neither the Administrative
Agent, any Lender nor any of their respective officers,
directors, employees or agents shall be liable for failure to
demand, collect or realize upon any of the Collateral or for any
delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Collateral upon the request of any
Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
The powers conferred on the Administrative Agent and the Lenders
hereunder are solely to protect the Administrative Agent's and
the Lenders' interests in the Collateral and shall not impose any
duty upon the Administrative Agent or any Lender to exercise any
such powers. The Administrative Agent and the Lenders shall be
accountable only for amounts that they actually receive as a
result of the exercise of such powers, and neither they nor any
of their officers, directors, employees or agents shall be
responsible to any Grantor for any act or failure to act
hereunder, except for their own gross negligence or willful
misconduct.
7.3 Execution of Financing Statements. Pursuant to
Section 9-402 of the New York UCC and any other applicable law,
each Grantor authorizes the Administrative Agent to file or
record financing statements and other filing or recording
documents or instruments with respect to the Collateral without
the signature of such Grantor in such form and in such offices as
the Administrative Agent reasonably determines appropriate to
perfect the security interests of the Administrative Agent under
this Agreement. A photographic or other reproduction of this
Agreement shall be sufficient as a financing statement or other
filing or recording document or instrument for filing or
recording in any jurisdiction.
7.4 Authority of Administrative Agent. Each Grantor
acknowledges that the rights and responsibilities of the
Administrative Agent under this Agreement with respect to any
action taken by the Administrative Agent or the exercise or non-exercise by the
Administrative Agent of any option, voting right, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Administrative Agent and the Lenders, be
governed by the Credit Agreement and by such other agreements with respect
thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Grantors, the Administrative Agent
shall be conclusively presumed to be acting as agent for the
Lenders with full and valid authority so to act or refrain from
acting, and no Grantor shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or
provisions of this Agreement may be waived, amended, supplemented
or otherwise modified except in accordance with Section 10.1 of
the Credit Agreement.
8.2 Notices. All notices, requests and demands to or
upon the Administrative Agent or any Grantor hereunder shall be
effected in the manner provided for in Section 10.2 of the Credit
Agreement; provided that any such notice, request or demand to or
upon any Guarantor shall be addressed to such Guarantor at its
notice address set forth on Schedule 1.
8.3 No Waiver by Course of Conduct; Cumulative
Remedies. Neither the Administrative Agent nor any Lender shall
by any act (except by a written instrument pursuant to Section
8.1), delay, indulgence, omission or otherwise be deemed to have
waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of the Administrative Agent or
any Lender, any right, power or privilege hereunder shall operate
as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of
any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the
Administrative Agent or such Lender would otherwise have on any
future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification. (a) Each
Guarantor agrees to pay or reimburse each Lender and the
Administrative Agent for all its costs and expenses incurred in
collecting against such Guarantor under the guarantee contained
in Section 2 or otherwise enforcing or preserving any rights
under this Agreement and the other Loan Documents to which such
Guarantor is a party, including, without limitation, the fees and
disbursements of counsel (including the allocated fees and
expenses of in-house counsel) to each Lender and of counsel to
the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the
Administrative Agent and the Lenders harmless from, any and all
liabilities with respect to, or resulting from any delay in
paying, any and all stamp, excise, sales or other taxes which may
be payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions
contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the
Administrative Agent and the Lenders harmless from, any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to
the extent the Borrower would be required to do so pursuant to
Section 10.5 of the Credit Agreement.
(d) The agreements in this Section 8.4 shall survive
repayment of the Obligations and all other amounts payable under
the Credit Agreement and the other Loan Documents.
8.5 Successors and Assigns. This Agreement shall be
binding upon the successors and assigns of each Grantor and shall
inure to the benefit of the Administrative Agent and the Lenders
and their successors and assigns; provided that no Grantor may
assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the
Administrative Agent except as expressly permitted by Section
7.4(a) of the Credit Agreement.
8.6 Set-Off. Each Grantor hereby irrevocably
authorizes the Administrative Agent and each Lender at any time
and from time to time while an Event of Default pursuant to
subsection 8(a) of the Credit Agreement shall have occurred and
be continuing, without notice to such Grantor or any other
Grantor, any such notice being expressly waived by each Grantor,
to set-off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute
or contingent, matured or unmatured, at any time held or owing by
the Administrative Agent or such Lender to or for the credit or
the account of such Grantor, or any part thereof in such amounts
as the Administrative Agent or such Lender may elect, against and
on account of the obligations and liabilities of such Grantor to
the Administrative Agent or such Lender hereunder and claims of
every nature and description of the Administrative Agent or such
Lender against such Grantor, in any currency, whether arising
hereunder, under the Credit Agreement, any other Loan Document or
otherwise, as the Administrative Agent or such Lender may elect,
whether or not the Administrative Agent or any Lender has made
any demand for payment and although such obligations, liabilities
and claims may be contingent or unmatured. The Administrative
Agent and each Lender shall notify such Grantor promptly of any
such set-off and the application made by the Administrative Agent
or such Lender of the proceeds thereof, provided that the failure
to give such notice shall not affect the validity of such set-off
and application. The rights of the Administrative Agent and each
Lender under this Section 8.6 are in addition to other rights and
remedies (including, without limitation, other rights of set-off)
which the Administrative Agent or such Lender may have.
8.7 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and
the same instrument.
8.8 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
8.9 Section Headings. The Section headings used in
this Agreement are for convenience of reference only and are not
to affect the construction hereof or be taken into consideration
in the interpretation hereof.
8.10 Integration. This Agreement and the other Loan
Documents represent the agreement of the Grantors, the
Administrative Agent and the Lenders with respect to the subject
matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof and thereof
not expressly set forth or referred to herein or in the other
Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
8.12 Submission To Jurisdiction; Waivers. Each
Grantor hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the
other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the
United States of America for the Southern District of
New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
(c) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar
form of mail), postage prepaid, to such Grantor at its
address referred to in Section 8.2 or at such other address
of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted
by law or shall limit the right to sue in any other
jurisdiction; and
(e) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
8.13 Acknowledgments. Each Grantor hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan
Documents to which it is a party;
(b) neither the Administrative Agent nor any Lender
has any fiduciary relationship with or duty to any Grantor
arising out of or in connection with this Agreement or any
of the other Loan Documents, and the relationship between
the Grantors, on the one hand, and the Administrative Agent
and Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among
the Grantors and the Lenders.
8.14 WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.15 Additional Grantors. Each Subsidiary of the
Borrower that is required to become a party to this Agreement
pursuant to Section 6.9 of the Credit Agreement shall become a
Grantor for all purposes of this Agreement upon execution and
delivery by such Subsidiary of an Assumption Agreement in the
form of Annex 1 hereto.
8.16 Releases. (a) At such time as the Loans, the
Reimbursement Obligations and the other Obligations shall have
been paid in full, the Revolving Credit Commitments have been
terminated and no Letters of Credit shall be outstanding, the
Collateral shall be released from the Liens created hereby, and
this Agreement and all obligations (other than those expressly
stated to survive such termination) of the Administrative Agent
and each Grantor hereunder shall terminate, all without delivery
of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Grantors. At the
request and sole expense of any Grantor following any such
termination, the Administrative Agent shall deliver to such
Grantor any Collateral held by the Administrative Agent
hereunder, and execute and deliver to such Grantor such documents
as such Grantor shall reasonably request to evidence such
termination.
(b) If any of the Collateral shall be sold,
transferred or otherwise disposed of by any Grantor in a
transaction permitted by the Credit Agreement, then the
Administrative Agent, at the request and sole expense of such
Grantor, shall execute and deliver to such Grantor all releases
or other documents reasonably necessary or desirable for the
release of the Liens created hereby on such Collateral. At the
request and sole expense of the Borrower, a Guarantor shall be
released from its obligations hereunder in the event that all the
Capital Stock of such Guarantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit
Agreement; provided that the Borrower shall have delivered to the
Administrative Agent, at least ten Business Days prior to the
date of the proposed release, a written request for release
identifying the relevant Guarantor and the terms of the sale or
other disposition in reasonable detail, including the price
thereof and any expenses in connection therewith, together with a
certification by the Borrower stating that such transaction is in
compliance with the Credit Agreement and the other Loan
Documents.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused
this Guarantee and Collateral Agreement to be duly executed and
delivered as of the date first above written.
PHYSICIAN COMPUTER NETWORK, INC.
By: /s/John Mortell
-----------------------------------
Title: Executive Vice President
VERSYSS INCORPORATED
By: /s/John Mortell
-----------------------------------
Title: Executive Vice President
WISMER-MARTIN, INC.
By: /s/ John Mortell
-----------------------------------
Title: Executive Vice President
INTEGRATED HEALTH SYSTEMS, INC.
By: /s/ John Mortell
-----------------------------------
Title: Executive Vice President
PCN HP VENTURE CORP.
By: /s/ John Mortell
-----------------------------------
Title: Executive Vice President
PCN SERVICES CORP.
By: /s/ John Mortell
-----------------------------------
Title: Executive Vice President
V HOLDING CORP.
By: /s/ John Mortell
-----------------------------------
Title: Executive Vice President
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINED TERMS. . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions. . . . . . . . . . . . 5
SECTION 2. GUARANTEE. . . . . . . . . . . . . . . . . . . . . 5
2.1 Guarantee. . . . . . . . . . . . . . . . . . . . . . 5
2.2 Right of Contribution. . . . . . . . . . . . . . . . 6
2.3 No Subrogation . . . . . . . . . . . . . . . . . . . 6
2.4 Amendments, etc. with respect to the Borrower
Obligations. . . . . . . . . . . . . . . . . . . . . 6
2.5 Guarantee Absolute and Unconditional . . . . . . . . 7
2.6 Reinstatement. . . . . . . . . . . . . . . . . . . . 7
2.7 Payments . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3. GRANT OF SECURITY INTEREST . . . . . . . . . . . . 8
SECTION 4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 8
4.1 Representations in Credit Agreement. . . . . . . . . 9
4.2 Title; No Other Liens. . . . . . . . . . . . . . . . 9
4.3 Perfected First Priority Liens . . . . . . . . . . . 9
4.4 Chief Executive Office . . . . . . . . . . . . . . . 9
4.5 Inventory and Equipment. . . . . . . . . . . . . . . 9
4.6 Farm Products. . . . . . . . . . . . . . . . . . . . 9
4.7 Pledged Securities . . . . . . . . . . . . . . . . . 9
4.8 Receivables. . . . . . . . . . . . . . . . . . . . . 10
4.9 Contracts. . . . . . . . . . . . . . . . . . . . . . 10
4.10 Intellectual Property . . . . . . . . . . . . . . . 11
SECTION 5. COVENANTS. . . . . . . . . . . . . . . . . . . . . 11
5.1 Covenants in Credit Agreement. . . . . . . . . . . . 11
5.2 Delivery of Instruments and Chattel Paper. . . . . . 11
5.3 Maintenance of Insurance . . . . . . . . . . . . . . 12
5.4 Payment of Obligations . . . . . . . . . . . . . . . 12
5.5 Maintenance of Perfected Security Interest;
Further Documentation. . . . . . . . . . . . . . . . 12
5.6 Changes in Locations, Name, etc. . . . . . . . . . . 13
5.7 Notices. . . . . . . . . . . . . . . . . . . . . . . 13
5.8 Pledged Securities . . . . . . . . . . . . . . . . . 13
5.9 Receivables. . . . . . . . . . . . . . . . . . . . . 14
5.10 Contracts . . . . . . . . . . . . . . . . . . . . . 14
5.11 Intellectual Property . . . . . . . . . . . . . . . 15
SECTION 6. REMEDIAL PROVISIONS. . . . . . . . . . . . . . . . 16
6.1 Certain Matters Relating to Receivables. . . . . . . 16
6.2 Communications with Obligors; Grantors Remain
Liable . . . . . . . . . . . . . . . . . . . . . . . 16
6.3 Pledged Stock. . . . . . . . . . . . . . . . . . . . 17
6.4 Proceeds to be Turned Over To Administrative Agent . 18
6.5 Application of Proceeds. . . . . . . . . . . . . . . 18
6.6 Code and Other Remedies. . . . . . . . . . . . . . . 18
6.7 Registration Rights. . . . . . . . . . . . . . . . . 19
6.8 Waiver; Deficiency . . . . . . . . . . . . . . . . . 20
SECTION 7. THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . 20
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc 20
7.2 Duty of Administrative Agent . . . . . . . . . . . . 22
7.3 Execution of Financing Statements. . . . . . . . . . 22
7.4 Authority of Administrative Agent. . . . . . . . . . 22
SECTION 8. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . 22
8.1 Amendments in Writing. . . . . . . . . . . . . . . . 23
8.2 Notices. . . . . . . . . . . . . . . . . . . . . . . 23
8.3 No Waiver by Course of Conduct; Cumulative
Remedies . . . . . . . . . . . . . . . . . . . . . . 23
8.4 Enforcement Expenses; Indemnification. . . . . . . . 23
8.5 Successors and Assigns . . . . . . . . . . . . . . . 23
8.6 Set-Off. . . . . . . . . . . . . . . . . . . . . . . 24
8.7 Counterparts . . . . . . . . . . . . . . . . . . . . 24
8.8 Severability . . . . . . . . . . . . . . . . . . . . 24
8.9 Section Headings . . . . . . . . . . . . . . . . . . 24
8.10 Integration . . . . . . . . . . . . . . . . . . . . 24
8.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . 24
8.12 Submission To Jurisdiction; Waivers . . . . . . . . 25
8.13 Acknowledgments . . . . . . . . . . . . . . . . . . 25
8.14 WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . 25
8.15 Additional Grantors . . . . . . . . . . . . . . . . 25
8.16 Releases. . . . . . . . . . . . . . . . . . . . . . 26
<PAGE>
=================================================================
GUARANTEE AND COLLATERAL AGREEMENT
made by
PHYSICIAN COMPUTER NETWORK, INC.
and certain of its Subsidiaries
in favor of
Fleet Bank, N.A.,
as Administrative Agent
Dated as of September 10, 1997
=================================================================
