Exhibit 10.2


Published CUSIP Number:  74834QAF6  


BRIDGE CREDIT AGREEMENT,


DATED AS OF MAY 31, 2007


among


QUEST DIAGNOSTICS INCORPORATED
as Borrower,


AND


CERTAIN SUBSIDIARIES OF THE BORROWER
as Guarantors,


AND


THE LENDERS IDENTIFIED HEREIN,


AND


BANK OF AMERICA, N.A.,
as Administrative Agent


AND


MORGAN STANLEY SENIOR FUNDING, INC.
as Syndication Agent


AND


BARCLAYS BANK PLC,

JPMORGAN CHASE BANK, N.A.,

MERRILL LYNCH BANK, USA
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents


MORGAN STANLEY SENIOR FUNDING, INC.

and

BANC OF AMERICA SECURITIES LLC
as Joint Lead Arrangers and Joint Book
Runners






TABLE OF CONTENTS


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	
 

	



	
 

	
 

	
 

	
 

	
 


	
SECTION 1

	
 

	
      DEFINITIONS
  AND ACCOUNTING TERMS

	
2


	
 

	
1.1

	
 

	
Definitions

	
2


	
 

	
1.2

	
 

	
Other
  Interpretive Provisions

	
25


	
 

	
1.3

	
 

	
Accounting
  Terms/Calculation of Financial Covenants

	
25


	
 

	
1.4

	
 

	
Time

	
26


	
 

	
1.5

	
 

	
Rounding

	
26


	
 

	
1.6

	
 

	
References
  to Agreements and Laws

	
26


	
SECTION 2

	
 

	
      CREDIT
  FACILITIES

	
26


	
 

	
2.1

	
 

	
Bridge Loans

	
26


	
 

	
2.2

	
 

	
Continuations
  and Conversions

	
28


	
 

	
2.3

	
 

	
Minimum
  Amounts

	
28


	
SECTION 3

	
 

	
      GENERAL
  PROVISIONS APPLICABLE TO LOANS

	
29


	
 

	
3.1

	
 

	
Interest

	
29


	
 

	
3.2

	
 

	
Place and
  Manner of Payments

	
29


	
 

	
3.3

	
 

	
Prepayments

	
30


	
 

	
3.4

	
 

	
Fees

	
30


	
 

	
3.5

	
 

	
Payment in
  full at Maturity

	
31


	
 

	
3.6

	
 

	
Computations
  of Interest and Fees

	
31


	
 

	
3.7

	
 

	
Pro Rata
  Treatment

	
32


	
 

	
3.8

	
 

	
Sharing of
  Payments

	
32


	
 

	
3.9

	
 

	
Capital
  Adequacy/Regulation D

	
33


	
 

	
3.10

	
 

	
Inability To
  Determine Interest Rate

	
33


	
 

	
3.11

	
 

	
Illegality

	
34


	
 

	
3.12

	
 

	
Requirements
  of Law

	
34


	
 

	
3.13

	
 

	
Taxes

	
34


	
 

	
3.14

	
 

	
Compensation

	
38


	
 

	
3.15

	
 

	
Determination
  and Survival of Provisions

	
38


	
 

	
3.16

	
 

	
Notification
  by Lenders

	
38


	
 

	
3.17

	
 

	
Mitigation;
  Mandatory Assignment

	
39


	
SECTION 4

	
 

	
      GUARANTY

	
39


	
 

	
4.1

	
 

	
Guaranty of
  Payment

	
39


	
 

	
4.2

	
 

	
Obligations
  Unconditional

	
39


	
 

	
4.3

	
 

	
Modifications

	
40


	
 

	
4.4

	
 

	
Waiver of
  Rights

	
41


	
 

	
4.5

	
 

	
Reinstatement

	
41


	
 

	
4.6

	
 

	
Remedies

	
41


	
 

	
4.7

	
 

	
Limitation
  of Guaranty

	
41


	
 

	
4.8

	
 

	
Rights of
  Contribution

	
42


	
 

	
4.9

	
 

	
Release of
  Guarantors

	
42


	
SECTION 5

	
 

	
      CONDITIONS
  PRECEDENT

	
42


	
 

	
5.1

	
 

	
Closing
  Conditions to Extensions of Credit Made on the Closing Date

	
42


	
 

	
5.2

	
 

	
Conditions
  to All Other Extensions of Credit

	
44





i






TABLE OF CONTENTS
(continued)


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	
 

	



	
 

	
 

	
 

	
 

	
 


	
SECTION 6

	
 

	
      REPRESENTATIONS
  AND WARRANTIES

	
45


	
 

	
6.1

	
 

	
Organization
  and Good Standing

	
45


	
 

	
6.2

	
 

	
Due
  Authorization

	
45


	
 

	
6.3

	
 

	
Enforceable
  Obligations

	
46


	
 

	
6.4

	
 

	
No Conflicts

	
46


	
 

	
6.5

	
 

	
Consents

	
46


	
 

	
6.6

	
 

	
Financial
  Condition

	
46


	
 

	
6.7

	
 

	
Intentionally
  Omitted

	
47


	
 

	
6.8

	
 

	
Disclosure

	
47


	
 

	
6.9

	
 

	
No Default

	
47


	
 

	
6.10

	
 

	
Litigation

	
47


	
 

	
6.11

	
 

	
Taxes

	
47


	
 

	
6.12

	
 

	
Compliance
  with Law

	
47


	
 

	
6.13

	
 

	
Licensing
  and Accreditation

	
48


	
 

	
6.14

	
 

	
Title to
  Properties, Liens

	
48


	
 

	
6.15

	
 

	
Insurance

	
48


	
 

	
6.16

	
 

	
Use of
  Proceeds

	
49


	
 

	
6.17

	
 

	
Government
  Regulation

	
49


	
 

	
6.18

	
 

	
ERISA

	
49


	
 

	
6.19

	
 

	
Environmental
  Matters

	
50


	
 

	
6.20

	
 

	
Intellectual
  Property

	
51


	
 

	
6.21

	
 

	
Subsidiaries

	
52


	
 

	
6.22

	
 

	
Solvency

	
52


	
 

	
6.23

	
 

	
Taxpayer
  Identification Number

	
52


	
SECTION 7

	
 

	
      AFFIRMATIVE
  COVENANTS

	
52


	
 

	
7.1

	
 

	
Information
  Covenants

	
52


	
 

	
7.2

	
 

	
Financial
  Covenants

	
56


	
 

	
7.3

	
 

	
Preservation
  of Existence and Franchises

	
56


	
 

	
7.4

	
 

	
Books and
  Records

	
56


	
 

	
7.5

	
 

	
Compliance
  with Law

	
56


	
 

	
7.6

	
 

	
Payment of
  Taxes and Other Indebtedness

	
57


	
 

	
7.7

	
 

	
Insurance

	
57


	
 

	
7.8

	
 

	
Maintenance
  of Property

	
57


	
 

	
7.9

	
 

	
Performance
  of Obligations

	
58


	
 

	
7.10

	
 

	
Use of
  Proceeds

	
58


	
 

	
7.11

	
 

	
Audits/Inspections

	
58


	
 

	
7.12

	
 

	
Additional
  Credit Parties

	
59


	
 

	
7.13

	
 

	
Compliance
  Program

	
59


	
SECTION 8

	
 

	
      NEGATIVE
  COVENANTS

	
59


	
 

	
8.1

	
 

	
Indebtedness

	
60


	
 

	
8.2

	
 

	
Liens

	
61


	
 

	
8.3

	
 

	
Nature of
  Business

	
61


	
 

	
8.4

	
 

	
Consolidation
  and Merger

	
61





ii






TABLE OF CONTENTS
(continued)


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	
 

	



	
 

	
 

	
 

	
 

	
 


	
 

	
8.5

	
 

	
Sale or
  Lease of Assets

	
61


	
 

	
8.6

	
 

	
Investments

	
62


	
 

	
8.7

	
 

	
Transactions
  with Affiliates

	
62


	
 

	
8.8

	
 

	
Fiscal Year;
  Accounting; Organizational Documents

	
62


	
 

	
8.9

	
 

	
Stock
  Repurchases

	
63


	
 

	
8.10

	
 

	
Sale/Leasebacks

	
63


	
SECTION 9

	
 

	
      EVENTS OF
  DEFAULT

	
64


	
 

	
9.1

	
 

	
Events of
  Default

	
64


	
 

	
9.2

	
 

	
Acceleration;
  Remedies

	
66


	
 

	
9.3

	
 

	
Allocation
  of Payments After Event of Default

	
67


	
SECTION 10

	
 

	
      AGENCY
  PROVISIONS

	
68


	
 

	
10.1

	
 

	
Appointment

	
68


	
 

	
10.2

	
 

	
Delegation of
  Duties

	
68


	
 

	
10.3

	
 

	
Exculpatory
  Provisions

	
69


	
 

	
10.4

	
 

	
Reliance on
  Communications

	
69


	
 

	
10.5

	
 

	
Notice of
  Default

	
70


	
 

	
10.6

	
 

	
Non-Reliance
  on Administrative Agent and Other Lenders

	
70


	
 

	
10.7

	
 

	
Indemnification

	
71


	
 

	
10.8

	
 

	
Administrative
  Agent in Its Individual Capacity

	
71


	
 

	
10.9

	
 

	
Successor
  Agent

	
71


	
 

	
10.10

	
 

	
Agent May
  File Proofs of Claim

	
72


	
SECTION 11

	
 

	
      MISCELLANEOUS

	
73


	
 

	
11.1

	
 

	
Notices, Etc

	
73


	
 

	
11.2

	
 

	
Right of
  Set-Off

	
75


	
 

	
11.3

	
 

	
Benefit of
  Agreement

	
76


	
 

	
11.4

	
 

	
No Waiver;
  Remedies Cumulative

	
80


	
 

	
11.5

	
 

	
Payment of Expenses;
  Indemnification

	
80


	
 

	
11.6

	
 

	
Amendments,
  Waivers and Consents

	
82


	
 

	
11.7

	
 

	
Counterparts

	
83


	
 

	
11.8

	
 

	
Headings

	
83


	
 

	
11.9

	
 

	
Defaulting
  Lender

	
83


	
 

	
11.10

	
 

	
Survival of
  Indemnification

	
83


	
 

	
11.11

	
 

	
Governing
  Law; Venue; Jurisdiction

	
84


	
 

	
11.12

	
 

	
Waiver of
  Jury Trial; Waiver of Consequential Damages

	
84


	
 

	
11.13

	
 

	
Severability

	
85


	
 

	
11.14

	
 

	
Further
  Assurances

	
85


	
 

	
11.15

	
 

	
Confidentiality

	
85


	
 

	
11.16

	
 

	
Entirety

	
86


	
 

	
11.17

	
 

	
Binding
  Effect; Continuing Agreement

	
86


	
 

	
11.18

	
 

	
USA Patriot
  Act Notice

	
87


	
 

	
11.19

	
 

	
No Advisory
  or Fiduciary Responsibility

	
87





iii







	
 

	
 


	
SCHEDULES

	
 


	
 

	
 


	
Schedule
  1.1(a)

	
Commitment
  Percentages/Lending Offices


	
Schedule
  6.10

	
Litigation


	
Schedule
  6.21

	
Subsidiaries


	
Schedule
  6.23

	
Taxpayer
  Identification Number


	
Schedule 8.1

	
Indebtedness


	
Schedule 8.2

	
Liens


	
Schedule 8.6

	
Investments


	
Schedule 8.7

	
Affiliate
  Transactions


	
Schedule
  11.1

	
Notices


	
 

	
 


	
EXHIBITS

	
 


	
 

	
 


	
Exhibit
  2.1(b)

	
Form of
  Notice of Borrowing


	
Exhibit
  2.1(d)

	
Form of
  Bridge Note


	
Exhibit 2.2

	
Form of
  Notice of Continuation/Conversion


	
Exhibit
  5.1(e)

	
Form of
  5.1(e) Certificate


	
Exhibit 7.12

	
Form of
  Joinder Agreement


	
Exhibit
  11.3(b)

	
Form of
  Assignment and Assumption





i







BRIDGE CREDIT AGREEMENT


          THIS
BRIDGE CREDIT AGREEMENT (this “Credit Agreement”), is entered into as of
May 31, 2007 among QUEST DIAGNOSTICS INCORPORATED, a Delaware corporation (the
“Borrower”), certain of the Subsidiaries of the Borrower (individually a
“Guarantor” and collectively the “Guarantors”), the various
financial institutions and other Persons from time to time parties hereto (the
“Lenders”), BANK OF AMERICA, N.A., as administrative agent (in such
capacity, the “Administrative Agent”) for the Lenders, MORGAN STANLEY
SENIOR FUNDING, INC. (“Morgan Stanley”) as syndication agent (in such
capacity, the “Syndication Agent”), for the Lenders, Barclays Bank PLC,
JPMorgan Chase Bank, N.A., Merrill Lynch Bank, USA and Wachovia Bank, National
Association, as the co-documentation agents for the Lenders (in such
capacities, the “Co-Documentation Agents”) for the Lenders and Morgan
Stanley and Banc of America Securities LLC, as the joint lead arrangers and
joint lead bookrunners (in such capacities, the “Lead Arrangers”).


RECITALS


          WHEREAS,
the Borrower, Ace Acquisition Sub, Inc., a Delaware corporation and
wholly-owned subsidiary of the Borrower (“Merger Sub”) and Ameripath
Group Holdings, Inc. (“Ameripath) have entered into that certain Agreement
and Plan of Merger, dated as of April 15, 2007 (as it may be amended from time
to time in accordance with its terms, the “Merger Agreement”), pursuant
to which, among other things, (i) the Borrower will acquire Ameripath by means
of a merger (the “Merger”) of Merger Sub and Ameripath (the “Ameripath
Acquisition”), with Ameripath being the surviving company of the Merger and
the Borrower being the 100% owner of all Capital Securities of Ameripath
immediately upon the effectiveness of the Merger and (ii) in connection with
the Ameripath Acquisition, the Borrower will repay (or cause to be repaid) (a)
certain Indebtedness of Ameripath and its Subsidiaries (the “Ameripath
Refinancing”) and (b) certain Indebtedness of the Borrower and its
Subsidiaries (the “Borrower Refinancing” and, together with Ameripath
Refinancing, the “Refinancing”);


          WHEREAS,
for purposes of consummating the Ameripath Acquisition, the Refinancing, paying
related fees, costs and expenses, and providing financing for the post-Merger
working capital and general corporate needs of the Borrower and its
Subsidiaries, including acquisitions (collectively, the “Transaction”),
the Borrower has requested the following financing facilities:


                    (i)
(a) a $1,600,000,000 term loan facility (the “Term Loan Facility”) and
(b) a $750,000,000 revolving credit facility (the “Revolving Credit Facility”);
and


                    (ii)
a $1,000,000,000 bridge loan facility (the “Bridge Loan Facility”); and


          WHEREAS,
the Lenders are willing, on the terms and subject to the conditions hereinafter
set forth, to provide the Bridge Loan Facility;


          NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:






SECTION 1


DEFINITIONS AND ACCOUNTING TERMS


                    1.1
Definitions.


          As
used herein, the following terms shall have the meanings herein specified
unless the context otherwise requires. Defined terms herein shall include in
the singular number the plural and in the plural the singular:


          “Acquisition”
means the acquisition by any Person of (a) more than 50% of the Capital Stock
of another Person, (b) all or substantially all of the assets of another Person
or (c) all or substantially all of a line of business of another Person, in
each case whether or not involving a merger or consolidation with such other
Person.


          “Additional
Credit Party” means each Person that becomes a Guarantor after the Closing
Date, as provided in Section 7.12 or otherwise.


          “Administrative
Agent” means Bank of America, N.A. (or any successor thereto) or any
successor administrative agent appointed pursuant to Section 10.9.


          “Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Administrative Agent.


          “Affiliate”
means, with respect to any Person, any other Person directly or indirectly
controlling (including but not limited to all directors and officers of such
Person), controlled by or under direct or indirect common control with such
Person. A Person shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power (a) to vote 10% or more of the
securities having ordinary voting power for the election of directors of such
corporation or (b) to direct or cause direction of the management and policies
of such corporation, whether through the ownership of voting securities, by
contract or otherwise.


          “Affiliated
Practice” means any physician-owned professional organization, association
or corporation that employs or contracts with physicians engaged in a pathology
or other medical practice and has entered into a Management Services Agreement
with the Borrower or any of its Subsidiaries.


          “Agency
Services Address” means Bank of America, N.A., NC1-001-04-39, 101 North
Tryon Street, Charlotte, North Carolina 28255, Attn: Agency Services, Attn:
Credit Services, or such other address as may be identified by written notice
from the Administrative Agent to the Borrower.


          “Agent-Related
Person” means the Administrative Agent (including any successor
administrative agent), together with its Affiliates (including, in the case of
Bank of America in its capacity as the Administrative Agent, BAS), and their
respective officers, directors, employees, agents, counsel and
attorneys-in-fact.


2






          “Agents”
means Bank of America N.A., in its capacity as Administrative Agent, Morgan
Stanley Senior Funding, Inc., in its capacity as Syndication Agent, Barclays
Bank PLC, in its capacity as Co-Documentation Agent, JPMorgan Chase Bank, N.A.,
, in its capacity as Co-Documentation Agent, Merrill Lynch Bank, USA , in its
capacity as Co-Documentation Agent, and Wachovia Bank, National Association in
its capacity as Co-Documentation Agent.


          “Ameripath
Acquisition” has the meaning given to it in the first recital.


          “Ameripath
Refinancing” has the meaning given to it in the first recital.


          “Applicable
Percentage” means the appropriate applicable percentages corresponding to
the Debt Rating of the Borrower in effect from time to time as described below:


	
 

	
 

	
 

	
 

	
 

	
 


	
Pricing
Level

	
Debt Rating

	
Applicable
Percentage for
Eurodollar
  Loans

	
Applicable
Percentage for
Commitment Fee


	


	


	


	



	
I

	
3 BBB+ from S&P/

  3 Baa1 from Moody’s

	
.400

	
%

	
.080

	
%


	
II

	
3BBB but < BBB+ from S&P/

  3Baa2 but <Baa1 from Moody’s

	
.500

	
%

	
.100

	
%


	
III

	
3BBB- but <BBB from S&P/

  3Baa3 but <Baa2 from Moody’s

	
.625

	
%

	
.125

	
%


	
IV

	
3BB+ but < BBB- from S&P/

  3Ba1 but <Baa3 from Moody’s

	
.750

	
%

	
.175

	
%


	
V

	
<BB+ or unrated by S&P/

  <Ba1 or unrated by Moody’s

	
1.250

	
%

	
.250

	
%





The Applicable
Percentage for the Eurodollar Loans shall be determined and adjusted on the
date (each a “Calculation Date”) one Business Day after the date on
which the Borrower’s Debt Rating is upgraded or downgraded in a manner which
requires a change in the then applicable Pricing Level set forth above. If at
any time there is a split in the Borrower’s Debt Ratings between S&P and
Moody’s, the Applicable Percentages shall be determined by the higher of the
two Debt Ratings (i.e. the lower pricing); provided that if the two Debt
Ratings are more than one level apart, the Applicable Percentage shall be based
on the Debt Rating which is one level higher than the lower rating. Each
Applicable Percentage shall be effective from one Calculation Date until the
next Calculation Date. Any adjustment in the Applicable Percentage shall be
applicable to all existing Eurodollar Loans as well as any new Eurodollar Loans
made.


          “Approved
Fund” means any Fund that is administered or managed by (i) a
Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an
entity that administers or manages a Lender.


          “Assignee
Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.


          “Assignment
and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit 11.3(b).


3






          “Attorney
Costs” means all reasonable fees and disbursements of any law firm or other
external counsel and the reasonable allocated cost of internal legal services
and all disbursements of internal counsel.


          “Attributable
Debt” means, with respect to a Sale and Leaseback
Transaction, an amount equal to the lesser of: (a) the fair market value of the
Principal Property (as determined in good faith by the Borrower’s board of
directors); and (b) the present value of the total net amount of rent payments
to be made under the lease during its remaining term, discounted at the rate of
interest set forth or implicit in the terms of the lease, compounded
semi-annually.


          “Authorized Officer” means any of the
chief executive officer,
president, chief financial officer, corporate controller, treasurer or
assistant treasurer of the Borrower.


          “Bank of
America” means Bank of America, N.A. or any successor
thereto.


          “Bankruptcy
Code” means the Bankruptcy Code in Title 11 of the United States Code, as
amended, modified, succeeded or replaced from time to time.


          “BAS”
means Banc of America Securities LLC.


          “Base
Rate” means, for any day, the rate per annum equal to the greater of (a)
the Federal Funds Rate in effect on such day plus 1⁄2 of 1% or (b) the
Prime Rate in effect on such day. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable after due inquiry to ascertain the Federal Funds Rate
for any reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms hereof, the Base
Rate shall be determined without regard to clause (a) of the first sentence of
this definition until the circumstances giving rise to such inability no longer
exist. Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective at the opening of business on the day
specified in the public announcement of such change.


          “Base
Rate Loan” means any Loan bearing interest at a rate determined by
reference to the Base Rate.


          “BBA
LIBOR” is defined within the definition of “London Interbank Offered Rate”.


          “Borrower”
means Quest Diagnostics Incorporated, a Delaware corporation, together with any
successors and permitted assigns.


          “Borrower
Materials” has the meaning set forth in Section 7.1(i).


          “Borrower
Refinancing” has the meaning given to it in the first recital.


          “Bridge
Loan Committed Amount” means ONE BILLION DOLLARS ($1,000,000,000); provided,
however, that not more than $500,000,000 in the aggregate


4






of the Bridge
Loan Committed Amount shall be available for Delayed Draw Bridge Loans (such
amount being the “Delayed Draw Committed Amount”).


          “Bridge
Loan Commitment Percentage” means, for each Lender, the percentage
identified as its Bridge Loan Commitment Percentage on Schedule 1.1(a), as such
percentage may be modified in connection with any assignment made in accordance
with the provisions of Section 11.3.


          “Bridge
Loan Facility” has the meaning given to it in the second recital.


          “Bridge
Loans” means the Bridge Loans made to the Borrower pursuant to Section 2.1.


          “Bridge
Notes” means the promissory notes of the Borrower in favor of each of the
Lenders evidencing the Bridge Loans provided pursuant to Section 2.1,
individually or collectively, as appropriate, as such promissory notes may be
amended, modified, supplemented, extended, renewed or replaced from time to
time and as evidenced in the form of Exhibit 2.1(d).


          “Business
Day” means any day other than a Saturday, a Sunday, a legal holiday or a
day on which banking institutions are authorized or required by law or other
governmental action to close in New York, New York or Charlotte, North
Carolina; provided that in the case of Eurodollar Loans, such day is also a day
on which dealings between banks are carried on in U.S. dollar deposits in the
London interbank market..


          “Businesses”
has the meaning set forth in Section 6.19(a)(i).


          “Calculation
Date” has the meaning set forth in the definition of Applicable Percentage.


          “CAP”
means the College of American Pathologists.


          “Capital
Lease” means, as applied to any Person, any lease of any Property (whether
real, personal or mixed) by that Person as lessee which, in accordance with
GAAP, is or should be accounted for as a capital lease on the balance sheet of
that Person and the amount of such obligation shall be the capitalized amount
thereof determined in accordance with GAAP.


          “Capital
Stock” means (a) in the case of a corporation, all classes of capital stock
of such corporation, (b) in the case of a partnership, partnership interests
(whether general or limited), (c) in the case of a limited liability company,
membership interests and (d) any other interest or participation that confers
on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.


          “Cash
Equivalents” means (a) securities issued or directly and fully guaranteed
or insured by the United States of America or any agency or instrumentality
thereof having maturities of not more than eighteen months from the date of
acquisition, (b) Dollar denominated time and demand deposits, certificates of
deposit and banker’s acceptances of


5






 (i) any Lender, (ii) any
domestic commercial bank having capital and surplus in excess of $500,000,000
or (iii) any bank whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the
equivalent thereof (any such bank being an “Approved Bank”), in each
case with maturities of not more than 270 days from the date of acquisition,
(c) commercial paper and variable or fixed rate notes issued by any Approved
Bank (or by the parent company thereof) or any variable rate notes issued by,
or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof)
or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s
and maturing within six months of the date of acquisition, (d) repurchase
agreements with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States of America in which the Borrower shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations, (e) Investments in tax-exempt municipal bonds rated A
(or the equivalent thereof) or better by S&P or MIG2 (or the equivalent
thereof) or better by Moody’s, (f) auction rate securities rated AA or better
by S&P or Moody’s, in either case with a reset of no longer than 90 days
and (g) Investments, classified in accordance with GAAP as current assets, in
money market investment programs registered under the Investment Company Act of
1940, as amended, which are administered by reputable financial institutions
having capital of at least $500,000,000 and the portfolios of which are limited
to Investments of the character described in the foregoing subdivisions (a)
through (f).


          “Cash
Interest Expenses” means all Interest Expense actually paid in cash by the
Borrower and its Subsidiaries.


          “CHAMPUS”
means the United States Department of Defense Civilian Health and Medical
Program of the United States or any successor thereto including, without
limitation, TRICARE.


          “Change
of Control” means either of the following events:


          (a)
any “person” or “group” (within the meaning of Section 13(d) or 14(d) of the
Exchange Act) has become, directly or indirectly, the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), by way of merger,
consolidation or otherwise of 35% or more of the Voting Stock of the Borrower
on a fully-diluted basis, after giving effect to the conversion and exercise of
all outstanding warrants, options and other securities of the Borrower
convertible into or exercisable for Voting Stock of the Borrower (whether or
not such securities are then currently convertible or exercisable); or


          (b)
during any period of twelve calendar months, individuals who at the beginning
of such period constituted the board of directors of the Borrower together with
any new members of such board of directors whose elections by such board or
board of directors or whose nomination for election by the stockholders of the
Borrower was approved by a vote of a majority of the members of such board of
directors then still in office who either were directors at


6






the beginning
of such period or whose election or nomination for election was previously so
approved cease for any reason to constitute a majority of the directors of the
Borrower then in office.


          “CLIA”
means the Clinical Laboratory Improvement Amendment as set forth at 42 U.S.C.
263a and the regulations promulgated thereunder, as amended.


          “Closing
Date” means the date on which the conditions set forth in Section 5.1 shall
have been fulfilled (or waived in the sole discretion of the Lenders) and on
which the initial Loans shall have been made.


          “CMS”
means the Centers for Medicare and Medicaid Services of HHS, any successor
thereof and any predecessor thereof, including the HCFA.


          “Co-Documentation
Agents” has the meaning given to it in the preamble.


          “Code”
means the Internal Revenue Code of 1986 and the rules and regulations
promulgated thereunder, as amended, modified, succeeded or replaced from time
to time.


          “Commitment
Fee” means the fees payable pursuant to Section 3.4(a).


          “Commitments”
means the commitment of each Lender with respect to the Bridge Loan Committed
Amount.


          “Company”
has the meaning given to it in the preamble.


          “Credit
Agreement” has the meaning given to it in the preamble.


          “Credit
Documents” means this Credit Agreement, the Notes, any Joinder Agreement
and any Notice of Borrowing.


          “Credit
Exposure” has the meaning set forth in the definition of Required Lenders
in this Section 1.1.


          “Credit
Parties” means the Borrower and the Guarantors and “Credit Party”
means any one of them.


          “Credit
Party Obligations” means, without duplication, all of the obligations of
the Credit Parties to the Lenders and the Administrative Agent, whenever
arising, under this Credit Agreement, the Notes, or any of the other Credit
Documents.


          “Debt
Issuance” means the issuance after the Closing Date of any Indebtedness


          for
borrowed money by the Borrower, other than (a) extensions of credit under the
Five-Year Credit Agreement, (b) Indebtedness incurred solely for the
acquisition of an asset or property, (c) Indebtedness incurred after the
Closing Date in connection with the acquisition of a Person or Property as long
as such Indebtedness existed prior to such acquisition and was not created in
anticipation thereof, (d) Indebtedness incurred by the


7






Borrower
arising from Permitted Receivables Financings or (e) Indebtedness issued to a
Credit Party or any of its Subsidiaries.


          “Debt
Rating” means the long-term senior unsecured, non-credit enhanced debt
rating of the Borrower from S&P and Moody’s.


          “Default”
means any event, act or condition which with notice or lapse of time, or both,
would constitute an Event of Default.


          “Defaulting
Lender” means, at any time, any Lender that, (a) has failed to make a Loan
or purchase a Participation Interest required pursuant to the terms of this
Credit Agreement (but only for so long as such Loan is not made or such
Participation Interest is not purchased), (b) has failed to pay to the
Administrative Agent or any Lender an amount owed by such Lender pursuant to
the terms of this Credit Agreement (but only for so long as such amount has not
been repaid) or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or similar
official.


          “Delayed
Draw Bridge Loans” means a portion of the Bridge Loans made after the
Closing Date in an aggregate amount not to exceed the Delayed Draw Committed
Amount.


          “Delayed
Draw Borrowing Date” has the meaning given to it in Section 2.1(a).


          “Delayed
Draw Committed Amount” has the meaning given to it in the proviso of the
definition of “Bridge Loan Committed Amount”.


          “Delayed
Draw Commitment Termination Date” has the meaning given to it in Section
2.1(a).


          “Dividends”
means any payment of dividends or any other distribution upon any shares of any
class of Capital Stock of the Borrower.


          “Dollars”
and “$” means dollars in lawful currency of the United States of
America.


          “Domestic
Subsidiary” means each direct and indirect Subsidiary of the Borrower that
is domiciled or organized under the laws of any State of the United States or
the District of Columbia.


          “EBITDA”
means, for any period, with respect to the Borrower and its Subsidiaries on a
consolidated basis, (a) Net Income for such period (excluding the effect of any
extraordinary or other non-recurring gains and losses (including any gain or
loss from the sale of Property)) plus (b) an amount which, in the determination
of Net Income for such period, has been deducted for (i) Interest Expense for
such period, (ii) total Federal, state, foreign or other income or franchise
taxes for such period, (iii) all depreciation and amortization for such period,
(iv) other items of expense during such period that do not involve a cash
payment at any time (other than the provision for bad 


8






debt in
connection with uncollectible accounts receivable), (v) cash charges during
such period for which the Borrower and its Subsidiaries are reimbursed by a
third party during such period, (vi) special or restructuring items during any
such period included in Net Income that do not involve a cash payment during
such period (collectively, “Non-Cash Items”) and (vii) expenses charged pursuant
to FAS 123(R), as promulgated in accordance with GAAP, during such period minus
(c) any actual cash payments during the applicable period related to Non-Cash
Items expensed or reserved under clauses (v) and (vi) above plus (d)
Tender Costs during such period; provided that, for purposes of
calculating the Leverage Ratio and the Interest Coverage Ratio hereunder,
EBITDA shall be calculated as if Ameripath and its Subsidiaries were
Subsidiaries of the Borrower on the Closing Date and during the twelve-month
period preceding such date unless, in the case of any Subsidiary of Ameripath
which has not been a Subsidiary for the entire twelve-month period preceding
the Closing Date, such lesser period of time.


          “Eligible
Assets” means any assets or any business (or any substantial part thereof)
used or useful in the same or a similar line of business as the Borrower and
its Subsidiaries are engaged on the date hereof or other healthcare-related
businesses or businesses reasonably related thereto.


          
“Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund and (d) any other Person approved by the Administrative
Agent and the Borrower (such approval not to be unreasonably withheld or
delayed); provided that (i) the Borrower’s consent is not required
during the existence and continuation of a Default or an Event of Default, (ii)
approval by the Borrower shall be deemed given if no objection is received by
the assigning Lender and the Administrative Agent from the Borrower within five
Business Days after notice of such proposed assignment has been delivered to
the Borrower; (iii) neither the Borrower nor an Affiliate of the Borrower shall
qualify as an Eligible Assignee; and (iv) no competitor of the Borrower shall
qualify as an Eligible Assignee.


          “EMU
Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European
currency.


          “Environmental
Laws” means any current or future legally enforceable requirement of any
Governmental Authority pertaining to (a) the protection of the indoor or
outdoor environment, (b) the conservation, management, or use of natural
resources and wildlife, (c) the protection or use of surface water and
groundwater or (d) the management, manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure to, any
hazardous or toxic substance or material or (e) pollution (including any
release to land surface water and groundwater) and includes, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and
Solid Waste Amendments of 1984, 42 USC 6901 et seq., Federal Water Pollution Control
Act, as amended by the Clean Water Act of 1977, 33 USC 1251 et seq.,
Clean Air Act of 1966,


9






as amended, 42
USC 7401 et
seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq.,
Hazardous Materials Transportation Act, 49 USC App. 1801 et seq., Occupational Safety
and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act
of 1990, 33 USC 2701 et seq., Emergency Planning and Community
Right-to-Know Act of 1986, 42 USC 11001 et seq., National Environmental Policy Act
of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974,
as amended, 42 USC 300(f) et seq., any analogous implementing or
successor law, and any amendment, rule, regulation, order, or directive issued
thereunder.


          “Equity
Issuance” means any issuance by the Borrower to any Person (other than a
Credit Party or any of its Subsidiaries) of shares of its Capital Stock or
other equity interests other than equity issued to employees pursuant to
benefit plans in the ordinary course.


          “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
thereunder, all as the same may be in effect from time to time. References to
sections of ERISA shall be construed also to refer to any successor sections.


          “ERISA
Affiliate” means an entity, whether or not incorporated, which is treated
as a single employer with the Borrower or any Subsidiary of the Borrower under
Sections 414(b) or (c) of the Code and solely for purposes of Section 412 of
the Code under Section 414(m) of the Code.


          “ERISA
Event” means (a) with respect to any Single Employer or Multiple Employer
Plan, the occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA); (b) the withdrawal
of the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or the
termination of a Multiple Employer Plan; (c) the distribution of a notice of
intent to terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA; (d) the institution of proceedings to terminate
or the actual termination of any Plan by the PBGC under Section 4042 of ERISA;
(e) any event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer,
any Plan; (f) the complete or partial withdrawal of the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (g) the conditions
for imposition of a lien under Section 302(f) of ERISA exist with respect to
any Plan; or (h) the adoption of an amendment to any Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA.


          “Eurodollar
Loan” means a Loan bearing interest based at a rate determined by reference
to the Eurodollar Rate.


          “Eurodollar
Rate” means, for the Interest Period for each Eurodollar Loan comprising
part of the same borrowing (including conversions, extensions and renewals), a
per annum interest rate equal to the London Interbank Offered Rate.


10






          “Eurodollar
Reserve Percentage” means, with respect to each Lender, the percentage (expressed
as a decimal) applicable to such Lender which is in effect from time to time
under Regulation D as the reserve requirement (including, without limitation,
any basic, supplemental, emergency, special, or marginal reserves) applicable
with respect to its Eurocurrency liabilities, as that term is defined in
Regulation D (or against any other category of liabilities that includes
deposits by reference to which the interest rate of Eurodollar Loans is
determined). Eurodollar Loans made by a Lender shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed subject to reserve
requirements, if applicable, without benefits of credits for proration,
exceptions or offsets that may be available from time to time to such Lender.


          “Event
of Default” means any of the events or circumstances specified in Section
9.1.


          “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder, as amended, modified, succeeded or
replaced from time to time.


          “Extension
of Credit” means, as to any Lender, the making of a Loan by such Lender (or
a participation therein by a Lender).


          “Federal
Funds Rate” means for any day the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business
Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day and (b) if no such rate is so published on such next
preceding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.


          “Fee
Letter” means that certain letter agreement dated as of April 23, 2007
among the Borrower, BAS, Bank of America and Morgan Stanley.


          “Five-Year
Credit Agreement” means the Credit Agreement, dated as of the date hereof,
among the Borrower, the lenders party thereto and the Agents.


          “Foreign
Subsidiary” means each direct and indirect Subsidiary of the Borrower that
is not a Domestic Subsidiary.


          “Fund”
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.


          “Funded
Debt” means, without duplication, the sum of (a) all Indebtedness of the
Borrower and its Subsidiaries for borrowed money, (b) all purchase money
Indebtedness


11






of the
Borrower and its Subsidiaries, (c) the principal portion of all obligations of
the Borrower and its Subsidiaries under Capital Leases, (d) all drawn but
unreimbursed amounts under all letters of credit (other than letters of credit
supporting trade payables in the ordinary course of business) issued for the
account of the Borrower or any of its Subsidiaries, (e) all Funded Debt of
another Person secured by a Lien on any Property of the Borrower and its
Subsidiaries whether or not such Funded Debt has been assumed by a Borrower or
any of its Subsidiaries, (f) all Funded Debt of any partnership or
unincorporated joint venture to the extent the Borrower or one of its
Subsidiaries is legally obligated with respect thereto and (g) the amount of
principal attributable under any outstanding Synthetic Lease. It is understood
and agreed that Indebtedness incurred pursuant to Hedging Agreements is not
Funded Debt.


          “GAAP”
means generally accepted accounting principles in the United States applied on
a consistent basis and subject to Section 1.3.


          “Government
Acts” has the meaning set forth in Section 2.3(j)(i).


          “Governmental
Authority” means any, Federal, state, local, provincial or foreign court or
governmental agency, authority (including executive authority), instrumentality
or regulatory body.


          “Granting
Lender” has the meaning set forth in Section 11.3(g).


          “Guarantor”
means each of the Material Domestic Subsidiaries of the Borrower, any other
Subsidiary of the Borrower that guaranties any Pari Passu Debt or the Five-Year
Credit Agreement and each Additional Credit Party, together with their
successors and assigns.


          “Guaranty”
means the guaranty of the Credit Party Obligations provided by the Guarantors
pursuant to Section 4.


          “Guaranty
Obligations” means, with respect to any Person, without duplication, any
obligations (other than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) guaranteeing any Indebtedness
of any other Person in any manner, whether direct or indirect, and including
without limitation any obligation, whether or not contingent, (a) to purchase
any such Indebtedness or other obligation or any Property constituting security
therefor, (b) to advance or provide funds or other support for the payment or
purchase of such Indebtedness or obligation or to maintain working capital,
solvency or other balance sheet condition of such other Person (including,
without limitation, maintenance agreements, comfort letters, take or pay
arrangements, put agreements or similar agreements or arrangements) for the
benefit of the holder of Indebtedness of such other Person, (c) to lease or
purchase Property, securities or services primarily for the purpose of assuring
the owner of such Indebtedness or (d) to otherwise assure or hold harmless the
owner of such Indebtedness or obligation against loss in respect thereof. The
amount of any Guaranty Obligation hereunder shall (subject to any limitations
set forth therein) be deemed to be an amount


12






 equal to the outstanding principal amount (or
maximum principal amount, if larger) of the Indebtedness in respect of which
such Guaranty Obligation is made.


          “Hazardous
Materials” means any substance, material or waste defined in or regulated
under any Environmental Laws.


          “HCFA”
means the United States Health Care Financing Administration and any successor
thereto, including CMS.


          “Hedging
Agreements” means, collectively, interest rate protection agreements,
foreign currency exchange agreements, commodity purchase or option agreements
or other interest or exchange rate or commodity price hedging agreements, in
each case, entered into or purchased by a Credit Party.


          “HHS”
means the United States Department of Health and Human Services and any
successor thereof.


          “HIPAA”
means the Health Insurance Portability and Accountability Act of 1996, Pub. L.
104-191, Aug. 21, 1996, 110 Stat. 1936 and regulations promulgated thereunder,
as amended from time to time.


          “Indebtedness”
of any Person means, without duplication, (a) all obligations of such Person
for borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, or upon which interest payments are
customarily made, (c) all obligations of such Person under conditional sale or
other title retention agreements relating to Property purchased by such Person
to the extent of the value of such Property (other than customary reservations
or retentions of title under agreements with suppliers entered into in the
ordinary course of business), (d) all obligations, other than intercompany
items, of such Person issued or assumed as the deferred purchase price of
property or services purchased by such Person which would appear as liabilities
on a balance sheet of such Person, (e) all Indebtedness of others secured by
(or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on, or payable out of the proceeds of
production from, property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (f) all Guaranty Obligations of
such Person, (g) the principal portion of all obligations of such Person under
(i) Capital Leases and (ii) any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product of such
Person where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with GAAP, (h)
all obligations of such Person to repurchase any securities which repurchase
obligation is related to the issuance thereof, including, without limitation,
obligations commonly known as residual equity appreciation potential shares,
(i) all net obligations of such Person in respect of Hedging Agreements, (j)
the maximum amount of all performance and standby letters of credit issued or
bankers’ acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent unreimbursed),
and (k) the aggregate amount of uncollected accounts receivable of such Person
subject at such time to a sale of receivables (or similar 


13







transaction)
regardless of whether such transaction is effected without recourse to such
Person or in a manner that would not be reflected on the balance sheet of such
Person in accordance with GAAP. The Indebtedness of any Person shall include
the Indebtedness of any partnership or unincorporated joint venture in which
such Person is legally obligated.


          “Indemnified
Liabilities” has the meaning set forth in Section 11.5(b)(i).


          “Indemnitees”
has the meaning set forth in Section 11.5(b)(i).


          “Intellectual
Property” has the meaning set forth in Section 6.20.


          “Information”
is defined in Section 11.15.


          “Interest
Coverage Ratio” means, as of the last day of each fiscal quarter, the ratio
of (a) EBITDA for the twelve month period ending on such date to
(b) Cash Interest Expense for the twelve month period ending on such date.


          “Interest
Expense” means, with respect to the Borrower and its Subsidiaries on a
consolidated basis for any period, all interest expense, including, without
duplication, the interest component under Capital Leases, as determined in
accordance with GAAP.


          “Interest
Payment Date” means (a) as to Base Rate Loans, the last day of each
calendar quarter and the Maturity Date and (b) as to Eurodollar Loans, the last
day of each applicable Interest Period and the Maturity Date and in addition,
where the applicable Interest Period for a Eurodollar Loan is greater than
three months, then also the date three months from the beginning of the
Interest Period and each three months thereafter. If an Interest Payment Date
falls on a date which is not a Business Day, such Interest Payment Date shall
be deemed to be the next succeeding Business Day, except that in the case of
Eurodollar Loans where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day.


          “Interest
Period” means as to Eurodollar Loans, a period of one, two, three or six
months’ duration, as the Borrower may elect, commencing, in each case, on the
date of the borrowing (including continuations and conversions thereof); provided,
however, (i) if any Interest Period would end on a day which is not
a Business Day, such Interest Period shall be extended to the next succeeding
Business Day (except that where the next succeeding Business Day falls in the
next succeeding calendar month, then on the next preceding Business Day),
(ii) no Interest Period shall extend beyond the Maturity Date and
(iii) where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest
Period is to end, such Interest Period shall end on the last Business Day of
such calendar month.


          “Investment”
in any Person means (a) the acquisition (whether for cash, property, services,
assumption of Indebtedness, securities or otherwise) of assets, shares of
Capital Stock, bonds, notes, debentures, partnership, joint ventures or other
ownership interests or other securities of such other Person or (b) any deposit
with, or advance, loan or other extension of credit to, such Person (other than
deposits or advances made in connection


14






with the
purchase of equipment or other assets or services in the ordinary course of
business) or (c) any other capital contribution to or investment in such
Person, including, without limitation, any Guaranty Obligation (including any
support for a letter of credit issued on behalf of such Person) incurred for
the benefit of such Person.


          “Joinder
Agreement” means a Joinder Agreement substantially in the form of Exhibit
7.12.


          “Laws”
means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.


          “Lead
Arrangers” has the meaning given to it in the preamble.


          “Lender”
means any of the Persons identified as a “Lender” on the signature pages
hereto, and any Eligible Assignee which may become a Lender by way of
assignment in accordance with the terms hereof, together with their successors
and permitted assigns.


          “Lending
Office” means, as to any Lender, the office or offices of such Lender
described as such on Schedule 1.1(a), or such other office or
offices as a Lender may from time notify to the Borrower and the Administrative
Agent.


          “Leverage
Ratio” means, as of the last day of each fiscal quarter, the ratio of
(a) Funded Debt on such date to (b) EBITDA for the twelve month
period ending on such date.


          “Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
security interest, encumbrance, lien (statutory or otherwise), preference,
priority or charge of any kind, including, without limitation, any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement, and any lease in the nature thereof (other than operating leases).


          “Loan”
or “Loans” means the Bridge Loans, individually or collectively, as
appropriate.


          “Loan
Participant” has the meaning set forth in Section 11.3(d).


          “London
Interbank Offered Rate” means for any Interest Period with respect to any
Eurodollar Loan, the rate per annum equal to the British Bankers Association
LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for
Dollar deposits (for delivery on the first day 


15






of such
Interest Period) with a term equivalent to such Interest Period. If such rate
is not available at such time for any reason, then the “London Interbank
Offered Rate” for such Interest Period shall be the rate per annum determined
by the Administrative Agent to be the rate at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Eurodollar Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period would be offered
by Bank of America’s London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London time)
two Business Days prior to the commencement of such Interest Period.


          “Management
Services Agreement” means a written management agreement entered into by
the Borrower or any of its Subsidiaries in connection with an Affiliated
Practice, which agreement has been approved in accordance with the Borrower’s
customary policies and procedures (as then in effect) for similar contracts and
agreements.


          “Material
Adverse Effect” means a material adverse effect on (a) the business,
operations or financial condition of the Borrower and its Subsidiaries taken as
a whole, (b) the ability of a Credit Party to perform its obligations under
this Credit Agreement or any of the other Credit Documents, or (c) the validity
or enforceability of this Credit Agreement, any of the other Credit Documents,
or the rights and remedies of the Lenders hereunder or thereunder taken as a
whole.


          “Material
Domestic Subsidiary” means any wholly-owned Domestic Subsidiary of the
Borrower that, directly or indirectly, (a) owns assets in excess of $20,000,000
or (b) has annual revenues, as of the most recently ended fiscal year of the
Borrower, in excess of two percent (2%) of the total revenues of the Borrower
and its Subsidiaries on a consolidated basis; provided that neither
Quest Receivables nor any Affiliated Practice shall be deemed to be a Material
Domestic Subsidiary; and provided further that neither Ameripath
nor any of its wholly-owned Domestic Subsidiaries that would otherwise qualify
as a Material Domestic Subsidiary on the date hereof shall be deemed to be a
Material Domestic Subsidiary for purposes of Section 7.12(a) hereof until the
date that the 101⁄2% Subordinated Note Tender Offer shall have been consummated.


          “Maturity
Date” means the date that is 364 days after the Closing Date.


          “Medicaid”
shall mean that entitlement program under Title XIX of the Social Security Act
that provides federal grants to states for medical assistance based on specific
eligibility criteria.


          
“Medicaid Provider Agreement” means an agreement entered into between a
state agency or other such entity administering the Medicaid program and a
health care provider or supplier under which the health care provider or
supplier agrees to provide services for Medicaid patients in accordance with
the terms of the agreement and Medicaid Regulations.


16






          “Medicaid
Regulations” means, collectively, (a) all federal statutes (whether set
forth in Title XIX of the Social Security Act or elsewhere) affecting Medicaid
and any statutes succeeding thereto; (b) all applicable provisions of all
federal rules, regulations, manuals and orders and administrative,
reimbursement and other guidelines having the force of law of all Governmental
Authorities promulgated pursuant to or in connection with the statutes
described in clause (a) above; (c) all state statutes and plans for medical
assistance enacted in connection with the statutes and provisions described in
clauses (a) and (b) above; and (d) all applicable provisions of all rules,
regulations, manuals and orders and administrative, reimbursement and other
guidelines having the force of law of all Governmental Authorities promulgated
pursuant to or in connection with the statutes described in clause (c) above
and all state administrative, reimbursement and other guidelines of all
Governmental Authorities having the force of law promulgated pursuant to or in
connection with the statutes described in clause (b) above, in each case as may
be amended, supplemented or otherwise modified from time to time.


          “Medical
Reimbursement Programs” shall mean the Medicare, Medicaid, CHAMPUS and
TRICARE programs and any other healthcare program operated by or financed in
whole or in part by any foreign, domestic, federal, state or local government
and any other non-government funded third party payor programs.


          “Medicare”
shall mean that government-sponsored entitlement program under Title XVIII of
the Social Security Act that provides for a health insurance system for
eligible elderly and disabled individuals.


          “Medicare
Provider Agreement” means an agreement entered into between CMS or other
such entity administering the Medicare program on behalf of CMS, and a health
care provider or supplier under which the health care provider or supplier
agrees to provide services for Medicare patients in accordance with the terms
of the agreement and Medicare Regulations.


          “Medicare
Regulations” shall mean, collectively, all federal statutes (whether set
forth in Title XVIII of the Social Security Act or elsewhere) affecting the
health insurance program for the aged and disabled established by Title XVIII
of the Social Security Act and any statutes succeeding thereto; together with
all applicable provisions of all rules, regulations, manuals and orders and
administrative, reimbursement and other guidelines having the force of law of
all Governmental Authorities (including, without limitation, the HHS, CMS, the
OIG, or any person succeeding to the functions of any of the foregoing)
promulgated pursuant to or in connection with any of the foregoing having the
force of law, as each may be amended, supplemented or otherwise modified from
time to time.


          “Merger”
has the meaning given to it in the first recital.


          “Merger
Agreement” has the meaning given to it in the first recital.


          “Merger
Sub” has the meaning given to it in the first recital.


17






          “Moody’s”
means Moody’s Investors Service, Inc., or any successor or assignee of the
business of such company in the business of rating securities.


          “Morgan
Stanley” has the meaning given to it in the preamble.


          “Multiemployer
Plan” means a Plan which is a multiemployer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA.


          “Multiple
Employer Plan” means a Plan covered by Title IV of ERISA (other than a
Multiemployer Plan) in which the Borrower, any Subsidiary of the Borrower or
any ERISA Affiliate and at least one employer other than the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate are contributing sponsors.


          
“Net Income” means, for any period, the net income after taxes for such
period of the Borrower and its Subsidiaries on a consolidated basis, determined
in accordance with GAAP and without duplication.


          “Non-Cash
Items” has the meaning set forth in the definition of EBITDA in
Section 1.1.


          “Non-Consenting
Lender” has the meaning set forth in Section 11.6.


          “Non-Material
Domestic Subsidiary” means any wholly-owned Domestic Subsidiary that is not
a Guarantor other than Quest Receivables and any Affiliated Practice.


          “Note”
or “Notes” means the Bridge Notes, individually or collectively, as
appropriate.


          “Notice
of Borrowing” means a request by the Borrower for a Loan, in the form of Exhibit
2.1(b).


          “Notice
of Continuation/Conversion” means a request by the Borrower to continue an
existing Eurodollar Loan to a new Interest Period or to convert a Eurodollar
Loan to a Base Rate Loan or a Base Rate Loan to a Eurodollar Loan, in the form
of Exhibit 2.2.


          “OIG”
means the Office of Inspector General of HHS and any successor thereof.


          “Other
Taxes” has the meaning given to it in Section 3.13(b).


          “Pari
Passu Debt” means all unsecured indebtedness of the Borrower.


          “Participating
Member State” means each state so described in any EMU Legislation.


          “Participation
Interest” means the Extension of Credit by a Lender by way of a purchase of
a participation in any Loans as provided in Section 3.8.


18






          “Patriot
Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)), as amended and supplemented from time to time.


          “Patriot
Act Disclosures” means all documentation and other information available to
the Borrower or its Subsidiaries which a Lender, if subject to the Patriot Act,
is required to provide pursuant to the applicable section of the Patriot Act
and which required documentation and information the Administrative Agent or
any Lender reasonably requests in order to comply with their ongoing obligations
under applicable “know your customer” and anti-money laundering rules and
regulations, including the Patriot Act.


          “PBGC”
means the Pension Benefit Guaranty Corporation established pursuant to Subtitle
A of Title IV of ERISA and any successor thereto.


          “Permitted
Acquisition” means an Acquisition by the Borrower or any of its
Subsidiaries; provided that (a) substantially all of the Property
acquired (or the Property of the Person acquired) in such Acquisition
constitutes Eligible Assets (or goodwill associated therewith), (b) in the
case of an Acquisition of the Capital Stock of another Person, the board of
directors (or other comparable governing body) of such other Person or its
parent shall have duly approved such Acquisition, (c) on the date of such
Acquisition no Event of Default exists, (d) after giving effect to such
Acquisition, no Default or Event of Default shall exist, (e) if such
Acquisition involves the formation of a new Subsidiary of the Borrower, such
Subsidiary complies with Section 7.12, (f) such Acquisition is undertaken in
accordance with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees and awards to which any party to such Acquisition may be
subject and (g) the Borrower shall have delivered to the Administrative Agent a
compliance certificate for the period of four full fiscal quarters immediately
preceding such acquisition (prepared in good faith and in a manner and using
such methodology which is consistent with the most recent financial statements
delivered pursuant to Section 7.1) giving pro forma effect to the consummation
of such acquisition and evidence compliance with the covenants set forth in
Section 7.2.


          “Permitted
Investments” means Investments which constitute the following:
(a) cash or Cash Equivalents, (b) trade accounts receivable created,
acquired or made in the ordinary course of business, (c) inventory, raw
materials, general intangibles and other current assets acquired in the
ordinary course of business, (d) Investments by the Borrower or one of its
Subsidiaries in each other, (e) Permitted Acquisitions, (f) advances
to management personnel and employees in the ordinary course of business,
(g) Investments existing as of the date hereof; provided that any
such Investment in excess of $2,000,000 is set forth on Schedule 8.6,
(h) Investments consisting of non-cash consideration received in the form
of securities, notes or similar obligations in connection with any conveyance,
sale, lease, assignment, transfer or other disposition of any Property by the
Borrower or one of its Subsidiaries to any Person, and which are permitted
hereunder, and (i) any other Investment as long as(i) on the date of such
Investment, no Event of Default exists and (ii) after giving effect to such
Investment no Default or Event of Default shall exist.


19






          “Permitted
Liens” means (a) Liens securing Credit Party Obligations, if any,
(b) Liens for taxes not yet due or Liens for taxes being contested in good
faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the Property
subject to any such Lien is not yet subject to foreclosure, sale, collection,
levy or loss on account thereof), (c) Liens in respect of Property imposed
by law arising in the ordinary course of business such as materialmen’s,
mechanics’, warehousemen’s, carrier’s, landlords’ and other nonconsensual
statutory Liens which are not yet due and payable or which are being contested
in good faith by appropriate proceedings for which adequate reserves determined
in accordance with GAAP have been established (and as to which the Property
subject to any such Lien is not yet subject to foreclosure, sale or loss on
account thereof), (d) Liens (other than Liens imposed under ERISA)
consisting of pledges or deposits made in the ordinary course of business to
secure payment of worker’s compensation insurance, unemployment insurance,
pensions or social security programs, (e) Liens arising from good faith
deposits in connection with or to secure performance of tenders, bids, leases,
government contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (other than obligations
in respect of the payment of borrowed money), (f) Liens arising from good
faith deposits in connection with or to secure performance of statutory
obligations and surety and appeal bonds, (g) easements, rights-of-way,
restrictions (including zoning restrictions), matters of plat, minor defects or
irregularities in title and other similar charges or encumbrances not, in any
material respect, impairing the use of the encumbered Property for its intended
purposes, (h) judgment Liens that would not constitute an Event of Default,
(i) Liens in connection with Indebtedness of the type permitted by Section
8.1(e) incurred by any Subsidiary, (j) Liens arising by virtue of any
statutory or common law provision relating to banker’s liens, rights of setoff
or similar rights as to deposit accounts or other funds maintained with a
creditor depository institution, (k) Liens existing on the date hereof and
identified on Schedule 8.2, (l) Liens upon Property acquired
(or the Property of a Subsidiary that is acquired) after the Closing Date by
the Borrower or its Subsidiaries, which Liens either (i) existed on such
Property before the time of such acquisition and was not created in
anticipation thereof or (ii) were created solely for the purpose of securing
Indebtedness representing, or incurred to finance or refinance, the cost of
such Property or improvements thereon; provided, however; that
(A) no such Lien shall extend to or cover any Property of any Credit Party
other than the Property so acquired and improvements thereon and proceeds thereof,
(B) the principal amount of Indebtedness secured by any such Lien shall at
no time exceed 100% of the fair market value of such Property at the time it
was acquired or constructed and (C) the Indebtedness secured by any such
Lien is permitted hereunder; provided that (x) no such Lien shall
extend to any Property other than the Property subject thereto on the closing
date of such acquisition and (y) the principal amount of the Indebtedness
secured by such Liens shall not be increased, (m) Liens in connection with
Permitted Receivables Financing, (n) Liens with respect to lease filings for
notice purposes only, (o) Liens on purchase money Indebtedness incurred by
the Borrower in an amount not to exceed, in the aggregate, $100,000,000 less
Indebtedness incurred by Subsidiaries of the Borrower pursuant to
Section 8.1(e), (p) Liens on Property of non-wholly owned Subsidiaries of
the Borrower incurred to finance working capital, (q) Liens 


20






on Property of
Foreign Subsidiaries securing Indebtedness of the type permitted by Section
8.1(k) incurred by Foreign Subsidiaries, and (r) renewals and extensions of the
foregoing so long as such Lien (i) does not cover any additional Property, (ii)
does not secure additional Indebtedness and (iii) is not otherwise prohibited
by this Credit Agreement.


          “Permitted
Receivables Financing” means any transaction entered into pursuant to
documentation reasonably acceptable to the Administrative Agent in which (a)
one or more Credit Parties sells, conveys or otherwise transfers to Quest
Receivables and (b) Quest Receivables sells, conveys or otherwise transfers to
any other Person or grants a security interest to any Person in, any
Receivables (whether now existing or hereafter acquired) of a Credit Party, and
any assets related thereto including all collateral securing such Receivables,
all contracts and all Guaranty Obligations or other obligations in respect of
such Receivables, all proceeds of such Receivables and all other assets that
are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving Receivables.


          “Person”
means any individual, partnership, joint venture, firm, corporation, limited
liability company, association, trust or other enterprise (whether or not
incorporated), or any Governmental Authority.


          “Plan”
means any employee benefit plan (as defined in Section 3(3) of ERISA) which is
covered by ERISA and with respect to which the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an “employer” within
the meaning of Section 3(5) of ERISA.


          “Platform”
has the meaning given thereto in Section 7.1(i).


          “Prime
Rate” means the per annum rate of interest established from time to time by
the Administrative Agent at its principal office in Charlotte, North Carolina
(or such other principal office of the Administrative Agent as communicated in
writing to the Borrower and the Lenders) as its Prime Rate. Any change in the
interest rate resulting from a change in the Prime Rate shall become effective
as of 12:01 a.m. of the Business Day on which each change in the Prime Rate is announced
by the Administrative Agent. The Prime Rate is a reference rate used by the
Administrative Agent in determining interest rates on some loans which may be
priced at, above or below such announced rate and is not intended to be the
lowest rate of interest charged on any extension of credit to any debtor.


          “Principal
Property” means any real property and any related buildings, fixtures or
other improvements located in the United States owned by the Borrower or its
Subsidiaries (a) on or in which one of its 30 largest domestic clinical
laboratories conducts operations, as determined by net revenues for the four
most recent fiscal quarters for which financial statements have been filed with
the Securities and Exchange Commission, or (b) the net book value of which
at the time of the determination exceeds 1% of Total Assets.


21






          “Projections”
has the meaning given thereto in Section 5.1(j).


          “Property”
means any right, title or interest in or to any property or asset of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.


          “Public
Lender” has the meaning given thereto in Section 7.1(i).


          “Quest
Receivables” means Quest Diagnostics Receivables Incorporated, a Delaware
corporation, a wholly-owned, bankruptcy-remote, special purpose Subsidiary of
the Borrower.


          “Real
Properties” has the meaning given thereto in Section 6.19.


          “Receivable”
means the indebtedness and payment obligations of any Person to any Credit
Party or acquired by any Credit Party (including obligations constituting an
account or general intangible or evidenced by a note, instrument, contract,
security agreement, chattel paper or other evidence of indebtedness or
security) arising from a sale of merchandise or the provision of services in
the ordinary course of business by such Credit Party or the Person from which
such indebtedness and payment obligation were acquired by any Credit Party,
including (a) any right to payment for goods sold or for services rendered and
(b) the right to payment of any interest, sales taxes, finance charges,
returned check or late charges and other obligations of such Person with
respect thereto.


          “Refinancing”
has the meaning given to it in the first recital.


          
“Register” has the meaning given to it in Section 11.3(c).


          “Regulation
T, U or X” means Regulation T, U or X, respectively, of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.


          “Reportable
Event” means any of the events set forth in Section 4043(c) of ERISA, other
than those events as to which the notice requirement has been waived by
regulation or by the PBGC.


          “Required
Lenders” means Lenders whose aggregate Credit Exposure (as hereinafter
defined) constitutes more than 50% of the Credit Exposure of all Lenders at
such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time then there shall be excluded from the
determination of Required Lenders the aggregate principal amount of Credit
Exposure of such Lender at such time. For purposes hereof, the term “Credit
Exposure” as applied to each Lender shall mean the principal balance of the
outstanding Loans of such Lender.


          “Requirement
of Law” means, as to any Person, the articles or certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or final, non-appealable
determination of


22






an arbitrator
or a court or other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material Property is subject.


          “S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. or any successor or assignee of the business of such division
in the business of rating securities.


          “Sale
and Leaseback Transaction” means any arrangement with any Person providing
for the leasing by the Borrower or one of its Subsidiaries of any Principal
Property that has been or is to be sold or transferred by the Borrower or any
Guarantor to such Person, as the case may be.


          “Same
Day Funds” means with respect to disbursements and payments in Dollars,
immediately available funds.


          “Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, as amended, modified, succeeded or replaced
from time to time.


          “Single
Employer Plan” means any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan or a Multiple Employer Plan.


          “Social
Security Act” means the Social Security Act as set forth in Title 42 of the
United States Code, as amended, and any successor statute thereto, as
interpreted by the rules and regulations issued thereunder, in each case as in
effect from time to time. References to sections of the Social Security Act
shall be construed also to refer to any successor sections.


          “Solvent”
means, with respect to any Person as of a particular date, that on such date
(a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the normal course of
business, (b) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person’s ability to pay as such
debts and liabilities mature in their ordinary course, (c) such Person is not
engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person’s assets would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged or is to engage, (d)
the fair value of the assets of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person and (e) the present fair saleable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured. In computing the
amount of contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability reduced by the amount of
any contribution or indemnity that can reasonably be expected to be received.


          “SPC”
has the meaning set forth in Section 11.3(g).


23






          “Stock
Repurchase” has the meaning set forth in Section 8.9.


          “Strategic
Investment Portfolio” means all Investments in Persons in which the
Borrower and its Subsidiaries own less than 50% of the Voting Stock of such
Person.


          “Subsidiary”
means, as to any Person, (a) any corporation more than 50% of whose stock of
any class or classes having by the terms thereof ordinary voting power to elect
a majority of the directors of such corporation (irrespective of whether or not
at the time, any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture or other entity in which such person
directly or indirectly through Subsidiaries has more than a 50% equity interest
at any time.


          “Syndication
Agent” has the meaning given to it in the preamble.


          “Synthetic
Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product where
such transaction is considered borrowed money indebtedness for tax purposes but
is classified as an operating lease in accordance with GAAP.


          “Taxes”
has the meaning given to it in Section 3.13(a).


          “101⁄2%
Subordinated Note Tender Offer” has the meaning given to it in Section
5.1(f).


          “Tender
Costs” means the costs incurred by the Borrower in connection with any
tender for outstanding indebtedness of the Borrower, and the termination of the
interest rate swap contracts related thereto in an aggregate amount not to
exceed $50,000,000 during the term of this Credit Agreement.


          “Termination
Date” means the date on which the Merger Agreement is terminated pursuant
to Section 10.1 of the Merger Agreement (as in effect on the date hereof).


          “Total
Assets” means all items that in accordance with GAAP would be classified as
assets of the Borrower and its Subsidiaries on a consolidated basis.


          “Transaction”
has the meaning given to it in the second recital.


          “TRICARE”
means the United States Department of Defense health care program for service
families including, but not limited to, TRICARE Prime, TRICARE Extra and
TRICARE Standard, and any successor to or predecessor thereof (including,
without limitation, CHAMPUS).


          “Voting
Stock” means all classes of the Capital Stock of such Person then
outstanding and normally entitled to vote in the election of directors (or
similar governing authority).


24







                    1.2
Other Interpretive Provisions.  


          With
reference to this Credit Agreement and each other Credit Document, unless
otherwise specified herein or in such other Credit Document: 


	
 

	
 

	
 


	
 

	
          (a)
  The meanings of defined terms are equally applicable to the singular and
  plural forms of the defined terms. 


	
 

	
 

	
 


	
 

	
          (b)
  (i) The words “herein”, “hereto”, “hereof” and “hereunder”
  and words of similar import when used in any Credit Document shall refer to
  such Credit Document as a whole and not to any particular provisions thereof.
  


	
 

	
 

	
 


	
 

	
 

	
      (ii)
  Article, Section, Exhibit and Schedule references are to the Credit Document
  in which such reference appears. 


	
 

	
 

	
 


	
 

	
 

	
      (iii)
  The term “including” is by way of example and not limitation.


	
 

	
 

	
 


	
 

	
 

	
      (iv)
  the term “documents” includes any and all instruments, documents,
  agreements, certificates, notices, reports, financial statements and other
  writings, however evidenced, whether in physical or electronic form.


	
 

	
 

	
 


	
 

	
          (c)
  In the computation of periods of time from a specified date to a later
  specified date, the word “from” means “from and including”; the
  words “to” and “until” each mean “to but excluding”; and
  the word “through” means “to and including”. 


	
 

	
 

	
 


	
 

	
          (d)
  Section headings herein and in the other Credit Documents are included for
  convenience of reference only and shall not affect the interpretation of this
  Credit Agreement or any other Credit Document. 





                    1.3
Accounting Terms/Calculation of Financial Covenants.  


	
 

	
 


	
 

	
          (a)
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein)
be made by application of GAAP applied on a basis consistent with the most
recent annual or quarterly financial statements delivered pursuant to Section
7.1 (or, prior to the delivery of the first financial statements pursuant to
Section 7.1, consistent with the financial statements delivered to the
Lenders prior to the Closing Date); provided, however, if (a) the Borrower
shall object to determining such compliance on such basis at the time of
delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Administrative Agent or the
Required Lenders shall so object in writing within 30 days after delivery of
such financial statements, then such calculations shall be made on a basis
consistent with GAAP as in effect as of the date of the most recent financial
statements delivered by the Borrower to the Lenders to which no such
objection shall have been made.  





25






	
 

	
 


	
 

	
          (b)
  Notwithstanding anything herein to the contrary, for the purposes of
  calculating the financial covenants set forth in Section 7.2, (i) income
  statement items (positive or negative) attributable to any Person or Property
  acquired in a Permitted Acquisition and Indebtedness incurred in connection
  with such Permitted Acquisition shall, without duplication, be treated as if
  such Person or Property was acquired or such Indebtedness incurred as of the
  first day of the twelve month period ending as of the most recently
  completely fiscal quarter of the Borrower and (ii) income statement items
  (positive or negative) attributable to Property disposed of in any asset sale
  permitted by Section 8.5(g) and Indebtedness retired in connection with such
  sale shall, without duplication, be treated as if such sale occurred as of
  the first day of the twelve month period ending as of the most recently
  completed fiscal quarter of the Borrower. 


	
 

	
 


	
 

	
          1.4 Time.





                    All
references to time herein shall be references to Eastern Standard Time or
Eastern Daylight Time, as the case may be, unless specified otherwise. 


                    1.5
Rounding.  


                    Any
financial ratios required to be maintained by the Borrower pursuant to this
Credit Agreement shall be calculated by dividing the appropriate component by
the other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number). 


                    1.6
References to Agreements and Laws.  


                    Unless
otherwise expressly provided herein, (a) references to organization documents,
agreements (including the Credit Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are
not prohibited by any Credit Document and (b) references to any law shall
include all statutory and regulatory provisions (having the force of law)
consolidating, amending, replacing, supplementing or interpreting such law. 


SECTION 2


CREDIT FACILITIES


                    2.1
Bridge Loans.  


                    (a)
Bridge Loan Commitment. Subject to the terms and conditions set forth
herein, on the Closing Date and on each Delayed Draw Borrowing Date, each
Lender severally agrees to make bridge loans (collectively the “Bridge Loans”
or “Loans”) to the Borrower, in Dollars, in an amount equal to such
Lender’s Bridge Loan Commitment Percentage of the Bridge Loan Committed Amount;
provided, however, that (i) the aggregate amount of such Bridge
Loans made shall not exceed the Bridge Loan Committed Amount; (ii) no Bridge
Loans shall be made hereunder unless, prior to or simultaneously with such
Bridge Loans being made, the initial 


26






Term Loans (as
defined in the Five-Year Credit Agreement) have been made, (iii) the borrowing,
on up to two separate dates (each of which shall be a Business Day) following
the Closing Date, of Delayed Draw Bridge Loans (each a “Delayed Draw
Borrowing Date”), if any, shall have occurred on or prior to the 90th
day following the Closing Date or such later date as mutually agreed upon by
the Borrower and the Administrative Agent (the “Delayed Draw Commitment
Termination Date”) and (iv) the aggregate amount of such Delayed Draw
Bridge Loans shall not exceed the Delayed Draw Committed Amount. Once repaid or
prepaid, Bridge Loans cannot be reborrowed. 



                    (b)
Method for Borrowing Bridge Loans. By no later than 11:00 a.m. (i) on
the date of the requested borrowing of Bridge Loans that will be made as Base
Rate Loans or (ii) three Business Days prior to the date of the requested
borrowing of Bridge Loans that will be made as Eurodollar Loans denominated in
Dollars, the Borrower shall provide telephonic notice to the Administrative
Agent, followed promptly by a written Notice of Borrowing in the form of Exhibit
2.1(b) (which may be submitted by telecopy), each of such telephonic
notice and such written Notice of Borrowing setting forth (A) the amount
requested, (B) whether such Bridge Loans shall accrue interest at the Base Rate
or the Eurodollar Rate, (C) with respect to Bridge Loans that will be
Eurodollar Loans, the Interest Period applicable thereto and (D) certification
that the Borrower has complied in all respects with Sections 5.1 and 5.2 as
applicable. Each such notice must be received by the Administrative Agent not later
than (i) three Business Days prior to the requested date of any borrowing of,
conversion to or continuation of Eurodollar Loans or of any conversion of
Eurodollar Loans to Base Rate Loans and (ii) on the requested date of any
borrowing of Base Rate Loans; provided, however, that if the Borrower
wishes to request Eurodollar Loans having an Interest Period other than one,
two, three or six months in duration as provided in the definition of “Interest
Period,” the applicable notice must be received by the Administrative Agent not
later than 11:00 a.m. four Business Days prior to the requested date of such
borrowing, conversion or continuation of Eurodollar Loans, whereupon the
Administrative Agent shall give prompt notice to the Lenders of such request and
determine whether the requested Interest Period is acceptable to all of them.
Not later than 11:00 a.m. three Business days before the requested date of such
borrowing, conversion or continuation of Eurodollar Loans, the Administrative
Agent shall notify the Borrower (which notice may be by telephone) whether or
not the requested Interest Period has been consented to by all the Lenders.  


                    (c)
Funding of Bridge Loans. Each Lender shall make its Bridge Loan
Commitment Percentage of the Bridge Loan Committed Amount available to the
Administrative Agent by 1:00 p.m. on the Closing Date or the Delayed Draw
Borrowing Date, as applicable, by deposit, in Dollars, of immediately available
funds at the Agency Services Address. The amount of the Bridge Loans will then
be made available to the Borrower by the Administrative Agent as directed by
the Borrower, to the extent the amount of such Bridge Loans are made available
to the Administrative Agent. The obligations of the Lenders hereunder to make Bridge
Loans and to make payments pursuant to Section 10.7 are several and not joint.
No Lender shall be responsible for the failure or delay by any other Lender in
its obligation to make Bridge Loans hereunder; provided, however, that the
failure of any Lender to fulfill its obligations hereunder shall not relieve
any other Lender of its obligations hereunder. Unless the Administrative Agent
shall have been notified by any Lender prior to the date of any such Bridge
Loan that such Lender does not intend to make available to the Administrative
Agent its portion of the Bridge Loans to be made on such date, the
Administrative Agent may assume that such Lender has 


27






made such
amount available to the Administrative Agent on the date of such Bridge Loans,
and the Administrative Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the Borrower
a corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent, the Administrative Agent shall be able
to recover such corresponding amount from such Lender. If such Lender does not
pay such corresponding amount upon the Administrative Agent’s demand therefor,
the Administrative Agent will promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent.
The Administrative Agent shall also be entitled to recover from such Lender or
the Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to the Borrower to the date such corresponding
amount is recovered by the Administrative Agent at a per annum rate equal to
(i) from the Borrower at the Base Rate or (ii) from such Lender, at a rate per
annum equal to, during the period to but excluding the date two Business Days
after demand therefor, the Federal Funds Rate, and, thereafter, the Base Rate
plus two percent (2%) per annum. 


                    (d)
Bridge Notes. The Bridge Loans made by each Lender shall be evidenced by
a duly executed promissory note of the Borrower to each Lender that requests a
Bridge Note in substantially the form of Exhibit 2.1(d). 


                    2.2
Continuations and Conversions.  


          Subject
to the terms below, the Borrower shall have the option, on any Business Day, to
continue existing Eurodollar Loans for a subsequent Interest Period, to convert
Base Rate Loans into Eurodollar Loans or to convert Eurodollar Loans into Base
Rate Loans. By no later than 11:00 a.m. (a) on the date of the requested
conversion of a Eurodollar Loan denominated in Dollars to a Base Rate Loan or
(b) three Business Days prior to the date of the requested continuation of a Eurodollar
Loan denominated in Dollars or conversion of a Base Rate Loan to a Eurodollar
Loan, the Borrower shall provide telephonic notice to the Administrative Agent,
followed promptly by a written Notice of Continuation/Conversion, in the form
of Exhibit 2.2 setting forth (i) whether the Borrower wishes to continue
or convert such Loans and (ii) if the request is to continue a Eurodollar Loan
or convert a Base Rate Loan to a Eurodollar Loan, the Interest Period
applicable thereto. Notwithstanding anything herein to the contrary, (A) except
as provided in Section 3.11, Eurodollar Loans may only be continued or
converted into Base Rate Loans on the last day of the Interest Period
applicable thereto, (B) Eurodollar Loans may not be continued nor may Base Rate
Loans be converted into Eurodollar Loans during the existence and continuation
of a Default or an Event of Default, (C) any request to continue a Eurodollar
Loan that fails to comply with the terms hereof or any failure to request a
continuation of a Eurodollar Loan at the end of an Interest Period shall
constitute a conversion to a Base Rate Loan on the last day of the applicable
Interest Period and (D) any failure to state the Interest Period with respect
to the continuation of a Eurodollar Loan or the conversion of a Base Rate Loan
to a Eurodollar Loan shall constitute a request for a one month Interest
Period. 


                    2.3
Minimum Amounts.  


          Each
request for a conversion or continuation shall be subject to the requirements
that (a) each Eurodollar Loan shall be in a minimum amount of $10,000,000 and
in integral multiples 


28






of $1,000,000
in excess thereof, (b) each Base Rate Loan shall be in a minimum amount of
$5,000,000 (and in integral multiples of $1,000,000 in excess thereof) and (c)
no more than ten Eurodollar Loans shall be outstanding hereunder at any one
time. For the purposes of this Section 2.3, all Eurodollar Loans with the same
Interest Periods that begin and end on the same date shall be considered as one
Eurodollar Loan, but Eurodollar Loans with different Interest Periods, even if
they begin on the same date, shall be considered as separate Eurodollar Loans. 


SECTION 3


GENERAL PROVISIONS APPLICABLE

TO LOANS


                    3.1
Interest.  


	
 

	
 


	
 

	
          (a)
  Interest Rate. Subject to Section 3.1(b), (i) all Base Rate Loans
  shall accrue interest at the Base Rate and (ii) all Eurodollar Loans shall
  accrue interest at the Eurodollar Rate plus the Applicable Percentage. 


	
 

	
 


	
 

	
          (b)
  Default Rate of Interest. Upon the occurrence, and during the
  continuation, of an Event of Default pursuant to Sections 9.1(a) and (k), the
  principal of and, to the extent permitted by law, interest on the Loans and
  any other amounts owing hereunder or under the other Credit Documents (including
  without limitation fees and expenses) shall bear interest, payable on demand,
  at a per annum rate equal to 2% plus the rate which would otherwise be
  applicable (or if no rate is applicable, then the Base Rate plus two percent
  (2%) per annum). 


	
 

	
 


	
 

	
          (c)
  Interest Payments. Except as set forth in clause (b) above, interest
  on Loans shall be due and payable in arrears on each Interest Payment Date. 


	
 

	
 


	
 

	
          3.2 Place
  and Manner of Payments.  





          All
payments to be made by the Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Administrative Agent, for the account of the respective
Lenders to which such payment is owed, at the applicable Agency Services
Address in Dollars and in Same Day Funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each
Lender its pro rata share of such payment (based upon the applicable
Commitments of the Lenders) in like funds as received by wire transfer to such
Lender’s Lending Office. All payments received by the Administrative Agent
after 2:00 p.m., in the case of payments in Dollars shall be deemed received on
the next succeeding Business Day and any applicable interest or fee shall
continue to accrue. If any payment to be made by any Borrower shall come due on
a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be. 


29






                    3.3
Prepayments.  


	
 

	
 


	
 

	
          (a)
  Voluntary Prepayments. The Borrower shall have the right to prepay
  Loans in whole or in part from time to time without premium or penalty; provided, however, that (i) (A) Eurodollar Loans denominated in Dollars may only be
  prepaid on three Business Days’ prior written notice to the Administrative
  Agent and (B) Base Rate Loans may be prepaid on same-day prior written notice
  to the Administrative Agent and (ii) each such partial prepayment of
  Eurodollar Loans or Base Rate Loans shall be in the minimum principal amount
  of $5,000,000 and integral multiples of $1,000,000. Amounts prepaid pursuant
  to this Section 3.3(a) shall be applied in the manner set forth in Section
  3.3(c) below. 


	
 

	
 


	
 

	
          (b)
  Mandatory Prepayments. Within five (5) Business Days following receipt
  by a Credit Party or any of its Subsidiaries of proceeds from a Debt Issuance
  or an Equity Issuance, the Borrower shall prepay the Loans in an amount equal
  to 100% of the net cash proceeds of such Debt Issuance or Equity Issuance.
  All such prepayments hereunder shall be applied as set forth in Section
  3.3(c) below. 


	
 

	
 


	
 

	
          (c)
  Application of Prepayments. All amounts paid pursuant to Sections
  3.3(a) and 3.3(b)(i) shall be applied first to Base Rate Loans and then to
  Eurodollar Loans. All prepayments under this Section 3.3(c) shall be subject
  to Section 3.14. 


	
 

	
 


	
 

	
          3.4 Fees
  .


	
 

	
 


	
 

	
          (a)
  Commitment Fee. In consideration of the commitments under the Bridge
  Credit Facility being made available by the Lenders hereunder, the Borrower
  agrees to pay to the Administrative Agent a per annum fee (the “Commitment
  Fee”) for the pro rata benefit of each Lender (based upon such Lender’s
  pro rata committed portion of the Bridge Loan Committed Amount), which
  Commitment Fee shall be calculated by multiplying, at any time of
  determination, the Applicable Percentage then in effect for the Commitment
  Fee, by the daily average unused amount of the Bridge Loan Committed
  Amount during the fiscal quarter or other relevant period for which such
  Commitment Fee is being calculated. The Commitment Fee shall accrue from the
  Closing Date and shall be due and payable in arrears on the last day of each
  fiscal quarter of the Borrower and on the earliest of (i) the termination in
  full of the Bridge Loan Facility Commitments, (ii) the borrowing of all
  available amounts under the Bridge Loan Facility Commitments and (iii) the
  Delayed Draw Commitment Termination Date, with the first such payment to be
  made on the last day of the first full fiscal quarter following the Closing
  Date. 


	
 

	
 


	
 

	
          (b)
  Bridge Funding Fee. The Borrower agrees to pay to the Administrative
  Agent, for the pro rata benefit of each Lender, a fee equal to (i) 0.15%
  multiplied by the principal amount under the Bridge Loan Facility then
  outstanding which shall be payable on December 31, 2007 and (ii) 0.10%
  multiplied by the principal amount under the Bridge Loan Facility then
  outstanding which shall be payable on February 29, 2008. 





30






                    3.5
Payment in full at Maturity.  


          On
the Maturity Date, the entire outstanding principal balance of all Loans,
together with accrued but unpaid interest and all other sums owing with respect
thereto, shall be due and payable in full, unless accelerated sooner pursuant
to Section 9. 


	
 

	
 


	
 

	
          3.6 Computations
  of Interest and Fees.  


	
 

	
 


	
 

	
          (a)
  Except for Base Rate Loans that are based upon the Prime Rate, in which case
  interest shall be computed on the basis of the actual number of days elapsed
  over a year of 365 or 366 days, as the case may be, all computations of
  interest and fees hereunder shall be made on the basis of the actual number
  of days elapsed over a year of 360 days. Interest shall accrue from and
  include the date of borrowing (or continuation or conversion) but exclude the
  date of payment. 


	
 

	
 


	
 

	
          (b)
  It is the intent of the Lenders and the Credit Parties to conform to and
  contract in strict compliance with applicable usury law from time to time in
  effect. All agreements between the Lenders and the Credit Parties are hereby
  limited by the provisions of this paragraph which shall override and control
  all such agreements, whether now existing or hereafter arising and whether
  written or oral. In no way, nor in any event or contingency (including but
  not limited to prepayment or acceleration of the maturity of any obligation),
  shall the interest taken, reserved, contracted for, charged, or received
  under this Credit Agreement, under the Notes or otherwise, exceed the maximum
  nonusurious amount permissible under applicable law. If, from any possible
  construction of any of the Credit Documents or any other document, interest
  would otherwise be payable in excess of the maximum nonusurious amount, any
  such construction shall be subject to the provisions of this paragraph and
  such documents shall be automatically reduced to the maximum nonusurious
  amount permitted under applicable law, without the necessity of execution of
  any amendment or new document. If any Lender shall ever receive anything of
  value which is characterized as interest on the Loans under applicable law
  and which would, apart from this provision, be in excess of the maximum
  nonusurious amount, an amount equal to the amount which would have been
  excessive interest shall, without penalty, be applied to the reduction of the
  principal amount owing on the Loans and not to the payment of interest, or
  refunded to the Borrower or the other payor thereof if and to the extent such
  amount which would have been excessive exceeds such unpaid principal amount
  of the Loans. The right to demand payment of the Loans or any other
  Indebtedness evidenced by any of the Credit Documents does not include the
  right to accelerate the payment of any interest which has not otherwise
  accrued on the date of such demand, and the Lenders do not intend to charge
  or receive any unearned interest in the event of such demand. All interest
  paid or agreed to be paid to the Lenders with respect to the Loans shall, to
  the extent permitted by applicable law, be amortized, prorated, allocated,
  and spread throughout the full stated term (including any renewal or extension)
  of the Loans so that the amount of interest on account of such Indebtedness
  does not exceed the maximum nonusurious amount permitted by applicable law. 





31






	
 

	
 


	
 

	
          3.7 Pro
  Rata Treatment.  


	
 

	
 


	
 

	
Except to
the extent otherwise provided herein, each Bridge Loan borrowing, each
payment or prepayment of principal of any Bridge Loan, each payment of fees
(other than the fees retained by the Administrative Agent for its own
account), and each conversion or continuation of any Bridge Loan, shall (except
as otherwise provided in Section 3.11) be allocated pro rata among the
relevant Lenders in accordance with the respective Bridge Loan Commitment
Percentages of such Lenders, as applicable, (or, if the Commitments of such
Lenders have expired or been terminated, in accordance with the respective
principal amounts of the outstanding Bridge Loans and Participation Interests
of such Lenders); provided that, if any Lender shall have failed to pay its
applicable pro rata share of any Bridge Loan, then any amount to which such
Lender would otherwise be entitled pursuant to this Section 3.7 shall instead
be payable to the Administrative Agent until the share of such Loan not
funded by such Lender has been repaid; provided
further, that in the
event any amount paid to any Lender pursuant to this Section 3.7 is rescinded
or must otherwise be returned by the Administrative Agent, each Lender shall,
upon the request of the Administrative Agent, repay to the Administrative
Agent the amount so paid to such Lender, with interest for the period
commencing on the date such payment is returned by the Administrative Agent
until the date the Administrative Agent receives such repayment at a rate per
annum equal to, during the period to but excluding the date two Business Days
after such request, the Federal Funds Rate, and thereafter, the Base Rate
plus two percent (2%) per annum.  


	
 

	
 


	
 

	
          3.8 Sharing
  of Payments.  


	
 

	
 


	
          The
  Lenders agree among themselves that, except to the extent otherwise provided
  herein, in the event that any Lender shall obtain payment in respect of any
  Loan or any other obligation owing to such Lender under this Credit Agreement
  through the exercise of a right of setoff, banker’s lien or counterclaim, or
  pursuant to a secured claim under Section 506 of the Bankruptcy Code or other
  security or interest arising from, or in lieu of, such secured claim,
  received by such Lender under any applicable bankruptcy, insolvency or other
  similar law or otherwise, or by any other means, in excess of its pro rata
  share of such payment as provided for in this Credit Agreement, such Lender
  shall promptly pay in cash or purchase from the other Lenders a participation
  in such Loans and other obligations in such amounts, and make such other
  adjustments from time to time, as shall be equitable to the end that all
  Lenders share such payment in accordance with their respective ratable shares
  as provided for in this Credit Agreement. The Lenders further agree among
  themselves that if payment to a Lender obtained by such Lender through the
  exercise of a right of setoff, banker’s lien, counterclaim or other event as
  aforesaid shall be rescinded or must otherwise be restored, each Lender which
  shall have shared the benefit of such payment shall, by payment in cash or a
  repurchase of a participation theretofore sold, return its share of that
  benefit (together with its share of any accrued interest payable with respect
  thereto) to each Lender whose payment shall have been rescinded or otherwise
  restored. The Borrower agrees that any Lender so purchasing such a
  participation may, to the fullest extent permitted by law, exercise all
  rights of payment, including setoff, banker’s lien or counterclaim, with
  respect to such participation as fully as if such Lender were a holder of
  such Loan or other obligation in the amount of such participation. Except as
  otherwise expressly provided in this Credit Agreement, if any Lender or the
  Administrative Agent shall fail to remit to any other Lender an amount
  payable by such Lender or the Administrative 





32






	
 

	
 


	
Agent to
  such other Lender pursuant to this Credit Agreement on the date when such
  amount is due, such payments shall be made together with interest thereon for
  each date from the date such amount is due until the date such amount is paid
  to the Administrative Agent or such other Lender at a rate per annum equal to
  the Federal Funds Rate. If under any applicable bankruptcy, insolvency or
  other similar law, any Lender receives a secured claim in lieu of a setoff to
  which this Section 3.8 applies, such Lender shall, to the extent practicable,
  exercise its rights in respect of such secured claim in a manner consistent
  with the rights of the Lenders under this Section 3.8 to share in the
  benefits of any recovery on such secured claim. 


	
 

	
 


	
 

	
          3.9 Capital
  Adequacy/Regulation D.  


	
 

	
 


	
 

	
          (a)
  If, after the date thereof, any Lender determines that the introduction after
  the Closing Date of any law, rule or regulation or other Requirement of Law
  regarding capital adequacy or any change therein or in the interpretation
  thereof, or compliance by such Lender (or its Lending Office) therewith, has
  or would have the effect of reducing the rate of return on the capital or
  assets of such Lender or any corporation controlling such Lender as a
  consequence of such Lender’s obligations hereunder (taking into consideration
  its policies with respect to capital adequacy and such Lender’s desired
  return on capital), then from time to time upon demand of such Lender (with a
  copy of such demand to the Administrative Agent), the Borrower shall pay to
  such Lender such additional amounts as will compensate such Lender for such
  reduction. 


	
 

	
 


	
 

	
          (b)
  The Borrower shall pay to each Lender, as long as such Lender shall be
  required under regulations of the Board of Governors of the Federal Reserve
  System of the United States of America to maintain reserves with respect to
  liabilities or assets consisting of or including Eurodollar funds or deposits
  (currently known as “Eurodollar Liabilities”), additional interest on
  the unpaid principal amount of each Eurodollar Loan equal to (i) (A) the
  applicable Eurodollar Rate divided by (B) one minus the Eurodollar Reserve
  Percentage minus (ii) the applicable Eurodollar Rate. Such additional
  interest shall be due and payable on each date on which interest is payable
  on such Loan; provided the Borrower shall have received at least five
  days’ prior notice (with a copy to the Administrative Agent) of such
  additional interest from such Lender. If a Lender fails to give notice five
  days prior to the relevant Interest Payment Date, such additional interest
  shall be due and payable five days from the receipt by the Borrower of such
  notice. 


	
 

	
 


	
 

	
          3.10 Inability
  To Determine Interest Rate.  





          If
the Administrative Agent determines (which determination shall be conclusive
and binding upon the Borrower) in connection with any request for a Eurodollar
Loan or a conversion to or continuation thereof that (a) Dollar deposits are
not being offered to banks in the applicable offshore Dollar market for the
applicable amount and Interest Period of such Eurodollar Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for such
Eurodollar Loan, or (c) the Eurodollar Rate for such Eurodollar Loan does not
adequately and fairly reflect the cost to the Lenders of funding such
Eurodollar Loan, the Administrative Agent will promptly notify the Borrower and
all the Lenders. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Loans shall be suspended until the Administrative Agent revokes 


33






such notice.
Upon receipt of such notice, the Borrower may revoke any pending Notice of
Borrowing or Notice of Continuation/Conversion with respect to Eurodollar Loans
or, failing that, will be deemed to have converted such request into a request
for a borrowing of or conversion into a Base Rate Loan in the amount specified
therein. 


                    3.11
Illegality.  


          If
any Lender determines that any Requirement of Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund Eurodollar Loans, or
materially restricts the authority of such Lender to purchase or sell, or to
take deposits of, Dollars in the applicable offshore Dollar market, or to
determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such Lender to make or continue Eurodollar Loans or to
convert Base Rate Loans to Eurodollar Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt
of such notice, the Borrower shall, upon demand from such Lender (with a copy
to the Administrative Agent), prepay or, if applicable, convert all Eurodollar
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period thereof, if such Lender may lawfully continue to maintain such
Eurodollar Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurodollar Loans. Upon any such prepayment or
conversion, the Borrower shall also pay interest on the amount so prepaid or
converted, together with any amounts due with respect thereto pursuant to
Section 3.14. Each Lender agrees to designate a different Lending Office if
such designation will avoid the need for such notice and will not, in the good
faith judgment of such Lender, otherwise be materially disadvantageous to such
Lender. 


                    3.12
Requirements of Law.  


          If
any Lender determines that as a result of the introduction of or any change in,
or in the interpretation of, any Requirement of Law, or such Lender’s
compliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining Eurodollar Loans or a
reduction in the amount received or receivable by such Lender in connection
with any of the foregoing (excluding for purposes of this subsection (a) any
such increased costs or reduction in amount resulting from (i) Taxes or Other
Taxes (as to which Section 3.13 shall govern) and (ii) reserve requirements
utilized in the determination of the Eurodollar Rate), then from time to time,
within 10 days of demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction in
yield. 


                    3.13
Taxes.  


	
 

	
 


	
 

	
          (a)
  Any and all payments by or on behalf of a Credit Party to or for the account
  of the Administrative Agent or any Lender under any Credit Document shall be
  made free and clear of and without deduction for any and all present or
  future income, stamp or other taxes, duties, levies, imposts, deductions,
  assessments, fees, withholdings or similar charges, and all liabilities with
  respect thereto, but excluding, in the case of the 





34









	
 

	
 


	
 

	
 Administrative
Agent and each Lender, any branch profit taxes or taxes imposed on or measured
by its net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains its Lending Office (all such non-excluded present or
future income, stamp or other taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and liabilities being
hereinafter referred to as “Taxes”). If a Credit Party shall be required
by any Requirement of Law to deduct any Taxes from or in respect of any sum
payable under any Credit Document to the Administrative Agent or any Lender,
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 3.13(a)), the Administrative Agent or such Lender, as the
case may be, receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Credit Party shall make such deductions,
(iii) such Credit Party shall pay the full amount deducted to the relevant
taxation authority or other Governmental Authority in accordance with
applicable Requirements of Law, and (iv) within 30 days after the date of such
payment, such Credit Party shall furnish to the Administrative Agent (which
shall forward the same to such Lender) the original or a certified copy of a
receipt evidencing payment thereof, to the extent such receipt is issued
therefor, or other written proof of payment thereof that is reasonably
satisfactory to the Administrative Agent. 


	
 


	
 

	
          (b)
In addition, each Credit Party agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Credit
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Credit Document (hereinafter
referred to as “Other Taxes”).


	
 


	
 

	
          (c)
If a Credit Party shall be required to deduct or pay any Taxes or Other Taxes
from or in respect of any sum payable under any Credit Document to the
Administrative Agent or any Lender, such Credit Party shall also pay to the
Administrative Agent (for the account of such Lender) or to such Lender, at the
time interest is paid, such additional amount that such Lender reasonably
specifies by written notice to such Credit Party as necessary to preserve the
after-tax yield (after factoring in all taxes, including taxes imposed on or
measured by net income) such Lender would have received if such Taxes or Other
Taxes had not been imposed; provided that if such Lender fails to
provide such notice to such Credit Party before the date which is five days
prior to the date such interest is paid, such Credit Party shall pay at the
time such interest is paid such amount as such Credit Party reasonably
estimates will preserve such Lender’s after-tax yield (after factoring in only
such Taxes or Other Taxes) and pay the balance within five days after receiving
such notice.


	
 


	
 

	
          (d)
Each Credit Party agrees to indemnify the Administrative Agent and each Lender
for (i) the full amount of Taxes and Other Taxes (including any Taxes or Other
Taxes imposed or asserted by any jurisdiction on amounts payable under this
Section 3.13(d)) paid by the Administrative Agent and such Lender, and (ii) any
liability (including penalties, interest and reasonable expenses) arising
therefrom or with respect thereto.









35








	
 

	
 


	
 

	
          (e)
  In the case of any payment hereunder or under any other Credit Document by or
  on behalf of a Credit Party through an account or branch outside the United
  States, or on behalf of a Credit Party by a payor that is not a United States
  person, if such Credit Party determines that no taxes are payable in respect
  thereof, such Credit Party shall furnish, or shall cause such payor to
  furnish, to the Administrative Agent, an opinion of counsel reasonably
  acceptable to the Administrative Agent stating that such payment is exempt
  from Taxes. For purposes of this subsection (e), the terms “United States”
  and “United States person” shall have the meanings specified in
  Section 7701 of the Code. 


	
 

	
 


	
 

	
          (f)
  Each Lender that is a foreign corporation, foreign partnership or foreign
  trust within the meaning of the Code shall deliver to the Administrative
  Agent, prior to receipt of any payment subject to withholding under the Code,
  two duly signed completed copies of either IRS Form W-8BEN or any successor
  thereto (relating to such Lender and entitling it to an exemption from, or
  reduction of, withholding tax on all payments to be made to such Lender by
  the Credit Parties pursuant to this Credit Agreement) or IRS Form W-8ECI or
  any successor thereto (relating to all payments to be made to such Lender by
  a Credit Party pursuant to this Credit Agreement), as appropriate, or such
  other evidence satisfactory to the Borrower and the Administrative Agent that
  such Lender is entitled to an exemption from, or reduction of, United States
  withholding tax. Upon the request of the Administrative Agent or the
  Borrower, each Lender that is a “United States person” within the meaning of
  Section 7701(a)(30) of the Code shall deliver to the Administrative Agent two
  duly signed completed copies of IRS Form W-9 or any successor thereto or such
  other evidence satisfactory to the Borrower and the Administrative Agent that
  such Lender is entitled to an exemption from, or reduction of, United States
  withholding tax. Thereafter and from time to time, each such Lender shall (i)
  promptly submit to the Administrative Agent such additional duly completed
  and signed copies of one of such forms (or such successor forms as shall be
  adopted from time to time by the relevant United States taxing authorities),
  as appropriate, as may reasonably be requested by the Borrower or the
  Administrative Agent and then be available under then current United States
  laws and regulations to avoid, or such evidence as is satisfactory to the
  Borrower and the Administrative Agent of any available exemption from or
  reduction of, United States withholding taxes in respect of all payments to
  be made to such Lender by the Borrower pursuant to this Credit Agreement,
  (ii) promptly notify the Administrative Agent of any change in circumstances
  which would modify or render invalid any claimed exemption or reduction (or
  it is determined the earlier claimed exemption was incorrectly claimed for
  any reason), and (iii) take such steps as shall not be materially disadvantageous
  to it, in the reasonable judgment of such Lender, and as may be reasonably
  necessary (including the re-designation of its Lending Office) to avoid any
  Requirement of Law that the Credit Parties make any deduction or withholding
  for taxes from amounts payable to such Lender. If the forms or other evidence
  provided by such Lender at the time such Lender first becomes a party to this
  Credit Agreement indicate a United States interest withholding tax rate in
  excess of zero, withholding tax at such rate shall be considered excluded
  from Taxes for purpose of any indemnity or gross up unless and until such
  Lender provides the appropriate forms certifying that a lesser rate applies,
  whereupon withholding tax at such lesser rate only shall be considered excluded
  from Taxes for periods governed by such forms; provided, however,
  that, if at the date of any assignment pursuant to which a Lender becomes a 





36







	
 

	
 


	
 

	
party to
  this Credit Agreement, the Lender assignor was entitled to payments under
  subsection (a) of this Section 3.13 in respect of United States withholding
  tax with respect to interest paid at such date, then, to such extent, the
  term Taxes shall include (in addition to withholding taxes that may be
  imposed in the future or other amounts otherwise includable in Taxes) United
  States withholding tax, if any, applicable with respect to the Lender
  assignee on such date. If such Lender fails to deliver the above forms or
  other evidence, then the Borrower or the Administrative Agent may withhold
  from any interest payment to such Lender an amount equal to the applicable
  withholding tax imposed by the Code, without reduction. If any Governmental
  Authority asserts that the Borrower or the Administrative Agent did not
  properly withhold any tax or other amount from payments made in respect of
  such Lender, such Lender shall indemnify the Borrower or the Administrative
  Agent therefor, including all penalties and interest, any taxes imposed by
  any jurisdiction on the amounts payable to the Borrower or the Administrative
  Agent under this Section 3.13(f), and costs and expenses (including Attorney
  Costs) of the Borrower or the Administrative Agent. For any period with
  respect to which a Lender has failed to provide the Administrative Agent with
  the above forms or other evidence (other than if such failure is due to a
  change in the applicable law, or in the interpretation or application
  thereof, occurring after the date on which such form or other evidence
  originally was required to be provided or if such form or other evidence
  otherwise is not required), such Lender shall not be entitled to
  indemnification under subsection (d) of this Section 3.13 nor shall the
  Credit Party be required to deduct or withhold under subsections (a) or (c)
  of this Section 3.13 with respect to Taxes imposed by the United States by
  reason of such failure; provided, however, that should a Lender become
  subject to Taxes because of its failure to deliver such form or other
  evidence required hereunder, the Borrower shall take such steps as such Lender
  shall reasonably request to assist such Lender in recovering such Taxes. The
  obligation of the Lenders under this Section 3.13(f) shall survive the
  payment of all Credit Party Obligations and the resignation or replacement of
  the Administrative Agent. 


	
 

	
 


	
 

	
          (g)
  In the event that an additional payment is made under Section 3.13(a) or (c)
  for the account of any Lender and such Lender, in its reasonable judgment,
  determines that it has finally and irrevocably received or been granted a
  credit against or release or remission for, or repayment of, any tax paid or
  payable by it in respect of or calculated with reference to the deduction or
  withholding giving rise to such payment, such Lender shall, to the extent
  that it determines that it can do so without prejudice to the retention of
  the amount of such credit, relief, remission or repayment, pay to the
  Borrower such amount as such Lender shall, in its reasonable judgment, have
  determined to be attributable to such deduction or withholding and which will
  leave such Lender (after such payment) in no worse position than it would
  have been in if the Borrower had not been required to make such deduction or
  withholding. Nothing herein contained shall interfere with the right of a
  Lender to arrange its tax affairs in whatever manner it thinks fit nor oblige
  any Lender to claim any tax credit or to disclose any information relating to
  its tax affairs or any computations in respect thereof or require any Lender
  to do anything that would prejudice its ability to benefit from any other
  credits, reliefs, remissions or repayments to which it may be entitled. 





37







	
 

	
 


	
 

	
          3.14 Compensation.
  


	
 

	
 


	
          Upon
  the written demand of any Lender, the Borrower shall promptly compensate such
  Lender for and hold such Lender harmless from any loss, cost or expense
  incurred by it as a result of: 


	
 


	
 

	
          (a)
  any continuation, conversion, payment or prepayment of any Eurodollar Loan on
  a day other than the last day of the Interest Period for such Eurodollar Loan
  (whether voluntary, mandatory, automatic, by reason of acceleration, or
  otherwise); or 


	
 

	
 


	
 

	
          (b)
  any failure by the Borrower (for a reason other than the failure of such
  Lender to make a Eurodollar Loan) to prepay, borrow, continue or convert any Eurodollar
  Loan on the date or in the amount previously requested by the Borrower; or 


	
 

	
 


	
 

	
          (c)
  any assignment required pursuant to Section 3.17 or Section 11.6. 


	
 

	
 


	
The amount
  each such Lender shall be compensated pursuant to this Section 3.14 shall
  include, without limitation, (i) any loss incurred by such Lender in
  connection with the re-employment of funds prepaid, repaid, not borrowed or
  paid, as the case may be and (ii) any reasonable out-of-pocket expenses
  (including Attorney Costs) incurred and reasonably attributable thereto. 


	
 


	
For purposes
  of calculating amounts payable by the Borrower to the Lenders under this
  Section 3.14, each Lender may deem that it funded each Eurodollar Loan made
  by it at the Eurodollar Rate for
  such Eurodollar Loan by a matching deposit or other borrowing in the
  applicable offshore interbank markets for such currency for a comparable
  amount and for a comparable period, whether or not such Eurodollar Loan was
  in fact so funded. 


	
 


	
 

	
          3.15 Determination
  and Survival of Provisions. 


	
 

	
 


	
          All
  determinations by the Administrative Agent or a Lender of amounts owing under
  Sections 3.9 through 3.14, inclusive, shall, absent manifest error, be
  conclusive and binding on the parties hereto. In determining such amount, the
  Administrative Agent or such Lender may use any reasonable averaging and
  attribution methods. Section 3.9 through 3.14, inclusive, shall survive the
  termination of this Credit Agreement and the payment of all Credit Party
  Obligations. 


	
 


	
 

	
          3.16 Notification
  by Lenders. 


	
 

	
 


	
          Subject
  to Section 3.13(c), each Lender shall notify the Borrower (and any applicable
  Credit Party) of any event that will entitle such Lender to compensation
  under Section 3.9, 3.12, 3.13 or 3.14 as promptly as practicable, but in any
  event within 90 days after such Lender obtains actual knowledge thereof; provided,
  however, that if any Lender fails to give such notice within 90 days
  after it obtains actual knowledge of such an event, such Lender shall, with
  respect to compensation payable pursuant to Section 3.9, 3.12, 3.13 or 3.14
  in respect of any costs resulting from such event, only be entitled to
  payment under Section 3.9, 3.12, 3.13 or 3.14 for costs incurred from and
  after the date 90 days prior to the date that such Lender gives such notice.
  If requested by the Borrower, each Lender will furnish to Borrower within ten
  Business Days of the time the Lender requests compensation under Section 3.9,
  3.12, 3.13 or 3.14, a certificate setting forth the basis, amount and
  reasonable detail of computation of each request by such Lender for 





38







	
 

	
 


	
compensation
  under Section 3.9, 3.12, 3.13 or 3.14, which certificate shall, except for
  demonstrable error, be final, conclusive and binding for all purposes. 


	
 


	
 

	
          3.17 Mitigation;
  Mandatory Assignment. 


	
 

	
 


	
          Each
Lender shall use reasonable efforts to avoid or mitigate any increased cost
or suspension of the availability of an interest rate under Sections 3.9
through 3.14 above to the greatest extent practicable (including transferring
the Loans to another Lending Office or Affiliate of a Lender) unless, in the
reasonable opinion of such Lender, such efforts would be likely to have an
adverse effect upon it. In the event a Lender makes a request to the Borrower
for additional payments in accordance with Section 3.9, 3.11, 3.12, 3.13 or
3.14, then, provided that no Default or Event of Default has occurred and is
continuing at such time, the Borrower may, at its own expense (such expense
to include, without limitation, any transfer fee payable to the
Administrative Agent under Section 11.3(b)) and in its sole discretion,
require such Lender to transfer and assign in whole (but not in part),
without recourse (in accordance with and subject to the terms and conditions
of Section 11.3(b)), all of its interests, rights and obligations under this
Credit Agreement to an Eligible Assignee which shall assume such assigned
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (a) such assignment shall not conflict with
any law, rule or regulation or order of any court or other Governmental
Authority and (b) the Borrower or such assignee shall have paid to the
assigning Lender in immediately available funds the principal of and interest
accrued to the date of such payment on the portion of the Loans hereunder
held by such assigning Lender and all other amounts owed to such assigning
Lender hereunder, including amounts owed pursuant to Sections 3.9 through
3.14 hereof.  


	
 


	
SECTION 4


	
 


	
GUARANTY


	
 


	
 

	
          4.1 Guaranty
  of Payment. 


	
 

	
 


	
          Subject
  to Section 4.7 below, each of the Guarantors hereby, jointly and severally,
  unconditionally guarantees to each Lender and the Administrative Agent the
  prompt payment of the Credit Party Obligations in full when due (whether at
  stated maturity, as a mandatory prepayment, by acceleration or otherwise) and
  the timely performance of all other obligations under the Credit Documents.
  This Guaranty is a guaranty of payment and not of collection and is a
  continuing guaranty and shall apply to all Credit Party Obligations whenever
  arising. 


	
 


	
 

	
          4.2 Obligations
  Unconditional. 


	
 

	
 


	
          The
  obligations of the Guarantors hereunder are absolute and unconditional,
  irrespective of the value, genuineness, validity, regularity or
  enforceability of any of the Credit Documents, or any other agreement or
  instrument referred to therein, to the fullest extent permitted by applicable
  law, irrespective of any other circumstance whatsoever which might otherwise
  constitute a legal or equitable discharge or defense of a surety or
  guarantor. Each Guarantor agrees that this Guaranty may be enforced by the
  Lenders without the necessity at any time of resorting to or exhausting any other
  security or collateral and without the necessity at any time of having
  recourse to the Notes or 





39






any other of
the Credit Documents or any collateral, if any, hereafter securing the Credit
Party Obligations or otherwise and each Guarantor hereby waives the right to
require the Lenders to proceed against the Borrower or any other Person
(including a co-guarantor) or to require the Lenders to pursue any other remedy
or enforce any other right. Each Guarantor further agrees that it shall have no
right of subrogation, indemnity, reimbursement or contribution against the
Borrower or any other Guarantor of the Credit Party Obligations for amounts
paid under this Guaranty until such time as the Lenders have been paid in full
and all Commitments under the Credit Agreement have been terminated. Each
Guarantor further agrees that nothing contained herein shall prevent the
Lenders from suing on the Notes or any of the other Credit Documents or
foreclosing its security interest in or Lien on any collateral, if any,
securing the Credit Party Obligations or from exercising any other rights
available to it under this Credit Agreement, the Notes, any other of the Credit
Documents, or any other instrument of security, if any, and the exercise of any
of the aforesaid rights and the completion of any foreclosure proceedings shall
not constitute a discharge of any of any Guarantor’s obligations hereunder; it
being the purpose and intent of each Guarantor that its obligations hereunder
shall be absolute, independent and unconditional under any and all
circumstances. Neither any Guarantor’s obligations under this Guaranty nor any
remedy for the enforcement thereof shall be impaired, modified, changed or
released in any manner whatsoever by an impairment, modification, change,
release or limitation of the liability of the Borrower or by reason of the
bankruptcy or insolvency of the Borrower. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Credit
Party Obligations and notice of or proof of reliance of by the Administrative
Agent or any Lender upon this Guaranty or acceptance of this Guaranty. The
Credit Party 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 this Guaranty. 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 this Guaranty. The Guarantors further agree to all
rights of set-off as set forth in Section 11.2. 


                    4.3
Modifications. 


          Each
Guarantor agrees that (a) all or any part of the collateral, if any, now or
hereafter held for the Credit Party Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) the Lenders shall not have
any obligation to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any, for the Credit
Party Obligations or the properties subject thereto; (c) the time or place of
payment of the Credit Party Obligations may be changed or extended, in whole or
in part, to a time certain or otherwise, and may be renewed or accelerated, in
whole or in part; (d) the Borrower and any other party liable for payment under
the Credit Documents may be granted indulgences generally; (e) any of the
provisions of the Notes or any of the other Credit Documents may be modified,
amended or waived; (f) any party (including any co-guarantor) liable for the
payment thereof may be granted indulgences or be released; and (g) any deposit
balance for the credit of the Borrower or any other party liable for the
payment of the Credit Party Obligations or liable upon any security therefor
may be released, in whole or in part, at, before or after the stated, extended
or accelerated maturity of the Credit Party Obligations, all without notice to
or further assent by such Guarantor, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release. 


40






                    4.4
Waiver of Rights. 


          Each
Guarantor expressly waives to the fullest extent permitted by applicable law:
(a) notice of acceptance of this Guaranty by the Lenders and of all extensions
of credit to the Borrower by the Lenders; (b) presentment and demand for
payment or performance of any of the Credit Party Obligations; (c) protest and
notice of dishonor or of default (except as specifically required in the Credit
Agreement) with respect to the Credit Party Obligations or with respect to any
security therefor; (d) notice of the Lenders obtaining, amending, substituting
for, releasing, waiving or modifying any security interest, lien or
encumbrance, if any, hereafter securing the Credit Party Obligations, or the
Lenders’ subordinating, compromising, discharging or releasing such security
interests, liens or encumbrances, if any; and (e) all other notices to which
such Guarantor might otherwise be entitled. 


                    4.5
Reinstatement. 


          The
obligations of the Guarantors under this Section 4 shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Credit Party Obligations is rescinded or must
be otherwise restored by any holder of any of the Credit Party Obligations,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, and each Guarantor agrees that it will indemnify the Administrative
Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, reasonable Attorney Costs) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law. 


                    4.6
Remedies. 


          The
Guarantors agree that, as between the Guarantors, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, the Credit Party
Obligations may be declared to be forthwith due and payable as provided in
Section 9 (and shall be deemed to have become automatically due and payable in
the circumstances provided in Section 9) notwithstanding any stay, injunction
or other prohibition preventing such declaration (or preventing such Credit
Party Obligations from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or such Credit Party
Obligations being deemed to have become automatically due and payable), such
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors. 


                    4.7
Limitation of Guaranty. 


          Notwithstanding
any provision to the contrary contained herein or in any of the other Credit
Documents, to the extent the obligations of any Guarantor shall be adjudicated
to be invalid or unenforceable for any reason (including, without limitation,
because of any applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of such Guarantor hereunder
shall be limited to the maximum amount that is permissible under applicable law
(whether federal or state or otherwise and including, without limitation, the
Bankruptcy Code). 


41






                    4.8
Rights of Contribution. 


          The
Credit Parties agree among themselves that, in connection with payments made
hereunder, each Credit Party shall have contribution rights against the other
Credit Parties as permitted under applicable law. Such contribution rights
shall be subordinate and subject in right of payment to the obligations of the
Credit Parties under the Credit Documents and no Credit Party shall exercise
such rights of contribution until all Credit Party Obligations have been paid
in full and the Commitments terminated. 


                    4.9
Release of Guarantors. 


          Subject
to Section 7.12(b), if any of the Guarantors shall cease to be a Material
Domestic Subsidiary of the Borrower for any reason subject to and in accordance
with the terms of the Credit Agreement, then such Guarantor shall,
automatically and without any further action on the part of any party to any
Credit Document, and upon notice to the Administrative Agent, be fully released
and discharged from all its liabilities and obligations under or in respect of
the Credit Documents to which such Guarantor is a party (other than liabilities
and obligations resulting from a demand on such Guarantor’s Guaranty pursuant
to Section 9.2) and, promptly upon the request of the Borrower and at the
expense of the Borrower, the Administrative Agent shall execute such documents
and take such other action as is reasonably requested by the Borrower to
evidence the release and discharge of such Guarantor from all such liabilities
and obligations and shall, if applicable, certify to the Borrower that such
Guarantor has no liabilities or obligations resulting from a demand on such
Guarantor’s Guaranty pursuant to Section 9.2. 


SECTION 5


CONDITIONS PRECEDENT


                    5.1
Closing Conditions to Extensions of Credit Made on the Closing Date.



          The
obligation of the Lenders to make the initial Extensions of Credit is subject
to satisfaction (or waiver) of the following conditions: 


	
 

	
 

	
 


	
 

	
          (a)
  Executed Credit Documents. Receipt by the Administrative Agent of duly
  executed copies of: (i) this Credit Agreement; (ii) the Notes requested by
  Lenders prior to the Closing Date; and (iii) all other Credit Documents, each
  in form and substance reasonably acceptable to the Lenders in their sole
  discretion. 


	
 

	
 


	
 

	
          (b)
  Authority Documents. Receipt by the Administrative Agent of the
  following with respect to each Credit Party: 


	
 

	
 


	
 

	
 

	
          (i)
  Organizational Documents. Copies of the articles or certificates of
  incorporation or other organizational documents of each Credit Party
  certified to be true and complete as of a recent date by the appropriate
  Governmental Authority of the state or other jurisdiction of its formation
  and certified by a secretary or assistant secretary of such Credit Party to
  be true and correct as of the Closing Date.





42







	
 

	
 

	
 


	
 

	
 

	
          (ii)
  Bylaws. A copy of the bylaws or other governing documents of each
  Credit Party certified by a secretary or assistant secretary of such Credit
  Party to be true and correct as of the Closing Date. 


	
 

	
 

	
 


	
 

	
 

	
          (iii)
  Resolutions. Copies of resolutions of the Board of Directors or other
  governing body of each Credit Party approving and adopting the Credit
  Documents to which it is a party, the transactions contemplated therein and
  authorizing execution and delivery thereof, certified by a secretary or
  assistant secretary of such Credit Party to be true and correct and in full
  force and effect as of the Closing Date. 


	
 

	
 

	
 


	
 

	
 

	
          (iv)
  Good Standing. Copies of certificates of good standing, existence or
  its equivalent with respect to each Credit Party certified as of a recent
  date by the appropriate Governmental Authority of the state or other
  jurisdiction of its formation. 


	
 

	
 

	
 


	
 

	
 

	
          (v)
  Incumbency. An incumbency certificate of each Credit Party certified
  by a secretary or assistant secretary of such Credit Party to be true and
  correct as of the Closing Date. 


	
 

	
 

	
 


	
 

	
          (c)
  Opinions of Counsel. Receipt by the Administrative Agent of opinions
  reasonably satisfactory to the Administrative Agent, addressed to the
  Administrative Agent on behalf of the Lenders and dated as of the Closing
  Date. 


	
 

	
 


	
 

	
          (d)
  Consents. Receipt by the Administrative Agent of evidence that all
  necessary governmental, shareholder and third party consents and approvals,
  if any, have been received and no condition or Requirement of Law exists
  which would reasonably be likely to restrain, prevent or impose any material
  adverse conditions on the transactions contemplated hereby. 


	
 

	
 


	
 

	
          (e)
  Officer’s Certificate. The Borrower shall have delivered a certificate
  of an Authorized Officer in substantially the form of Exhibit 5.1(e). 


	
 

	
 


	
 

	
          (f)
  Existing Debt. (A) Receipt by the Administrative Agent of “payoff
  letters” (or the like) or other evidence satisfactory to it that (i) the
  Amended and Restated Credit Agreement, dated as of April 20, 2004, among the
  Borrower, certain of the Borrower’s subsidiaries, as Guarantors, the Lenders
  (as defined therein), and Bank of America, N.A., as Administrative Agent,
  (ii) the Interim Credit Agreement, dated as of January 31, 2007, among the
  Borrower, certain of the Borrower’s subsidiaries, as Guarantors, the Lenders
  (as defined therein), and Bank of America, N.A., as Administrative Agent,
  (iii) the 10% Senior Subordinated Note due 2014 of Ameripath Holdings, Inc.,
  and (iv) the Credit Agreement, dated as of January 31, 2006, and as amended
  on September 27, 2006, by and among Ameripath Holdings, Inc., Ameripath,
  Inc., Wachovia Bank, N.A., Citigroup Global Markets Inc., Deutsche Bank
  Securities Inc., UBS Securities LLC, and Wachovia Capital Markets, LLC have
  been paid in full (or will be paid in full with the proceeds of the initial
  Loans made hereunder) and all agreements and notes executed or delivered in
  connection therewith have been cancelled 





43







	
 

	
 


	
 

	
or
  terminated, (B) receipt by the Administrative Agent of evidence satisfactory
  to it that funds sufficient to defease the Floating Rate PIK Toggle Notes of
  Ameripath Intermediate Holdings, Inc. shall have been deposited with the
  trustee thereunder from the proceeds of the initial Loans made hereunder, and
  (C) evidence satisfactory to the Administrative Agent that the tender offer
  (the “10 1⁄2 Subordinated Note Tender Offer”) for the 101⁄2% Senior
  Subordinated Notes due 2013 of AmeriPath, Inc. shall have been commenced. 


	
 

	
 


	
 

	
          (g)
  Fees and Expenses. Payment by the Credit Parties of all fees (and all
  expenses for which invoices have been presented at least three Business Days
  prior to the Closing Date) owed by them as of the Closing Date to the Agents
  and the Lenders, including, without limitation, as set forth in the Fee
  Letter. 


	
 

	
 


	
 

	
          (h)
  Five-Year Credit Agreement. The Five-Year Credit Agreement shall have
  been duly executed and be in full force and effect. 


	
 

	
 


	
 

	
          (i)
  Consummation of Ameripath Acquisition. The Lead Arrangers shall have
  received evidence reasonably satisfactory to it that the Ameripath
  Acquisition shall have been concurrently consummated in accordance with the
  Merger Agreement (as in effect on the date hereof). 


	
 

	
 


	
 

	
          (j)
  Financial Projections. The Administrative Agent shall have received
  financial projections prepared on a pro forma basis giving effect to the
  Transaction as if the Transaction had occurred as of the most recent fiscal
  quarter ended prior to the Closing Date (the “Projections”). The
  Borrower shall have prepared the Projections in good faith and based upon
  reasonable assumptions. 


	
 

	
 


	
 

	
          (k)
  Patriot Act Disclosures. The Lenders shall have received all Patriot
  Act Disclosures reasonably requested by them prior to execution of this
  Credit Agreement. 


	
 

	
 


	
 

	
          (l)
  Material Adverse Effect. Since April 15, 2007, there shall not have
  been a Material Adverse Effect (as defined in the Merger Agreement as in
  effect on the date hereof). 


	
 

	
 


	
 

	
          (m)
  [Intentionally Omitted]. 


	
 

	
 


	
 

	
          (n)
  Termination Date. The Termination Date shall not have occurred. 


	
 

	
 


	
 

	
          (o)
  Other. Receipt by the Administrative Agent of such other customary
  closing documents, certificates and instruments, as reasonably and timely
  requested by the Administrative Agent. 


	
 

	
 


	
 

	
          5.2 Conditions
  to All Other Extensions of Credit. 


	
 

	
 


	
          In
  addition to the conditions precedent stated elsewhere herein, the Lenders
  shall not be obligated to make Loans nor shall the Issuing Lender be required
  to issue or extend a Letter of Credit in each case, after the Closing Date
  and excluding the initial funding of the Loans hereunder, unless, as of the
  date thereof: 





44








	
 

	
 


	
 

	
          (a)
  Notice. The Borrower shall have delivered in the case of any Loan, to
  the Administrative Agent, an appropriate Notice of Borrowing, duly executed
  and completed, by the time specified in Section 2.1. 


	
 

	
 


	
 

	
          (b)
  Representations and Warranties. The representations and warranties
  made by the Credit Parties in this Agreement or any Credit Document are true
  and correct in all material respects at and as if made as of such date except
  to the extent they expressly and exclusively relate to an earlier date in
  which case such representations and warranties shall be true and correct as
  of such earlier date. 


	
 

	
 


	
 

	
          (c)
  No Default. No Default or Event of Default shall exist and be
  continuing either prior to or after giving effect to such Extension of
  Credit. 


	
 

	
 


	
 

	
          (d)
  Availability. Immediately after giving effect to the making of a Loan
  (and the application of the proceeds thereof) the sum of all outstanding
  Bridge Loans shall not exceed the Bridge Loan Committed Amount and,
  immediately after giving effect to the making of a Delayed Draw Bridge Loan
  (and the application of the proceeds thereof) the sum of all outstanding
  Delayed Draw Bridge Loans shall not exceed the Delayed Draw Committed Amount.
  


	
 

	
 


	
The delivery
  of each Notice of Borrowing shall constitute a representation and warranty by
  the Borrower of the correctness of the matters specified in subsections (b),
  (c), and (d) above. 


	
 


	
SECTION 6


	
 


	
REPRESENTATIONS AND WARRANTIES


	
 


	
 

	
The Credit
  Parties hereby represent to the Administrative Agent and each Lender that: 


	
 

	
 


	
 

	
          6.1 Organization
  and Good Standing. 


	
 

	
 


	
          Each
  Credit Party (a) is either a partnership, a corporation or a limited
  liability company duly organized, validly existing and in good standing under
  the laws of the jurisdiction of its organization, (b) is duly qualified and
  in good standing as a foreign organization and authorized to do business in
  every other jurisdiction where its ownership or operation of property or the
  conduct of its business would require it to be qualified, in good standing
  and authorized, unless the failure to be so qualified, in good standing or
  authorized would not have or would not reasonably be expected to have a
  Material Adverse Effect and (c) has the power and authority to own and
  operate its properties and to carry on its business as now conducted and as
  currently proposed to be conducted. 


	
 


	
 

	
          6.2 Due
  Authorization. 


	
 

	
 


	
          Each
  Credit Party (a) has the power and authority to execute, deliver and perform
  this Credit Agreement and the other Credit Documents to which it is a party
  and to incur the obligations herein and therein provided for and (b) has duly
  taken all necessary action to authorize, and is duly authorized, to execute,
  deliver and perform this Credit Agreement and the other Credit Documents to
  which it is a party. 





45






                    6.3
Enforceable Obligations. 


          Each
Credit Party has duly executed this Credit Agreement and each other Credit
Document to which such Credit Party is a party and this Credit Agreement and
such other Credit Documents constitute legal, valid and binding obligations of
such Credit Party enforceable against such Credit Party in accordance with
their respective terms, except as may be limited by bankruptcy or insolvency
laws or similar laws affecting creditors’ rights generally or by general
equitable principles. 


                    6.4
No Conflicts. 


          Neither
the execution and delivery of the Credit Documents to which it is a party, nor
the consummation of the transactions contemplated herein and therein, nor the
performance of or compliance with the terms and provisions hereof and thereof
by a Credit Party will (a) violate, contravene or conflict with any provision
of such Credit Party’s organizational documents, (b) violate, contravene or
conflict with any Requirement of Law (including, without limitation,
Regulations T, U or X), order, writ, judgment, injunction, decree, license or
permit applicable to such Credit Party which violation would have or would
reasonably be expected to have a Material Adverse Effect, (c) violate,
contravene or conflict with contractual provisions of, or cause an event of
default under, any indenture, loan agreement, mortgage, deed of trust, contract
or other agreement or instrument to which such Credit Party is a party or by
which it or its properties may be bound which violation would have or would
reasonably be expected to have a Material Adverse Effect, or (d) result in or
require the creation of any Lien upon or with respect to the properties of such
Credit Party. 


                    6.5
Consents. 


          Except
for consents, approvals and authorizations which have been obtained or the
absence of which would not have or would not reasonably be expected to have a
Material Adverse Effect, no consent, approval, authorization or order of, or
filing, registration or qualification with, any Governmental Authority, equity
owner or third party in respect of any Credit Party is required in connection
with the execution, delivery or performance of this Credit Agreement or any of
the other Credit Documents, or the consummation of any transaction contemplated
herein or therein by such Credit Party. 


                    6.6
Financial Condition. 


          The
financial statements delivered to the Administrative Agent and the Lenders
pursuant to Sections 7.1(a) and (b): (a) have been prepared in accordance with
GAAP and (b) present fairly the consolidated financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries as of such date
and for such periods. Since December 31, 2006,there has been no sale, transfer or other disposition by the
Borrower or any of its Subsidiaries of any material part of the business or
property of the Borrower and its Subsidiaries, taken as a whole, or purchase or
other acquisition by any such Person of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of the Borrower and its Subsidiaries, taken as a whole, in
each case, which, is not (i) reflected in the most recent financial statements
delivered to the Lenders prior to the date hereof or pursuant to Section 7.1 or
in the notes 


46






thereto or
(ii) otherwise permitted by the terms of this Credit Agreement and communicated
to the Administrative Agent and the Lenders. 


                    6.7
Intentionally Omitted. 


                    6.8
Disclosure. 


          Neither
this Credit Agreement, nor any other Credit Document, nor any financial
statements delivered to the Administrative Agent or the Lenders nor any other
document, certificate or statement furnished to the Administrative Agent or the
Lenders by or on behalf of any Credit Party in connection with the transactions
contemplated hereby, taken as a whole, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained therein or herein not misleading. 


                    6.9
No Default. 


          No
Default or Event of Default has occurred and is continuing or would result from
the consummation of the transactions contemplated by this Credit Agreement and
the other Credit Documents. 


                    6.10
Litigation. 


          Except
as set forth in Schedule 6.10, no litigation, investigation, claim,
criminal prosecution, civil investigative demand, imposition of criminal or
civil fines and penalties, or any other 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 its or their respective Properties (a) with respect to the Credit Documents
or any Loan or any of the transactions contemplated hereby or (b) which would
reasonably be expected to have a Material Adverse Effect. 


                    6.11
Taxes. 


          The
Borrower and each of its Subsidiaries has filed, or caused to be filed, all
material tax returns (federal, state, local and foreign) required to be filed
and has paid (a) all amounts of taxes shown thereon to be due (including
interest and penalties) and (b) all other material taxes, fees, assessments and
other governmental charges (including mortgage recording taxes, documentary
stamp taxes and intangibles taxes) owing by it, except for such taxes (i) which
are not yet delinquent or (ii) that are being contested in good faith and by
proper proceedings, and against which adequate reserves are being maintained in
accordance with GAAP. 


                    6.12
Compliance with Law. 


          Except
to the extent the same would not have or would not reasonably be expected to
have a Material Adverse Effect: 


          (a)
The Borrower and each of its Subsidiaries is in compliance with all
Requirements of Law (including, without limitation, Environmental Laws, ERISA, 


47







	
 

	
 


	
 

	
HIPAA,
  Medicaid Regulations and Medicare Regulations) and all material orders,
  writs, injunctions and decrees applicable to it, or to its Properties. 


	
 

	
 


	
 

	
          (b)
  (i) Neither the Borrower nor any of its Subsidiaries nor any individual
  employed by the Borrower or any of its Subsidiaries has been, or may
  reasonably be expected to be, excluded or suspended from participation in any
  Medical Reimbursement Program for their corporate or individual actions or
  failures to act; and (ii) there is no member of management continuing to be
  employed by the Borrower or any of its Subsidiaries who has been, or may
  reasonably be expected to have, individual criminal culpability for
  healthcare matters under investigation by any Governmental Authority unless
  such member of management has been, within a reasonable period of time after
  discovery of such actual or potential culpability, either suspended or
  removed from positions of responsibility related to those activities under
  challenge by the Governmental Authority. 


	
 

	
 


	
 

	
          (c)
  Current billing policies, arrangements, protocols and instructions comply
  with all material requirements of Medical Reimbursement Programs and are
  administered by properly trained personnel. 


	
 

	
 


	
 

	
          (d)
  Current medical director compensation arrangements and other arrangements
  with referring physicians comply with state and federal self-referral and
  anti-kickback laws, including without limitation 42 U.S.C. Section
  1320a-7b(b)(1) - (b)(2) and 42 U.S.C. Section 1395nn. 


	
 

	
 


	
 

	
          6.13 Licensing
  and Accreditation. 


	
 

	
 


	
          Except
  to the extent the same would not have or would not be reasonably expected to
  have a Material Adverse Effect, each of the Credit Parties has, to the extent
  applicable: (a) obtained and maintains in good standing all required
  licenses, permits, authorization and approvals of each Governmental Authority
  necessary to the conduct of its business; (b) to the extent prudent and
  customary in the industry in which it is engaged, obtained and maintains
  accreditation from all generally recognized accrediting agencies (including,
  but not limited to, CAP); (c) obtained and maintains CLIA certification; (d)
  entered into and maintains in good standing its Medicare Provider Agreements
  and its Medicaid Provider Agreements; and (e) ensured that all such required
  licenses, certifications and accreditations are in full force and effect on
  the date hereof and have not been revoked or suspended or otherwise limited. 


	
 


	
 

	
          6.14 Title
  to Properties, Liens. 


	
 

	
 


	
          The
  Borrower and each of its Subsidiaries, is the owner of, and has good title
  to, or has a valid license or lease to use, all of its material Properties.
  All Liens on the Properties of the Borrower and its Subsidiaries are
  Permitted Liens. 


	
 


	
 

	
          6.15 Insurance.
  


	
 

	
 


	
          The
  properties of the Borrower and each of its Subsidiaries are insured with
  financially sound and reputable insurance companies that are not Affiliates
  of the Borrower (except to the 





48







extent that
self-insurance is maintained in reasonable amounts), in such amounts, with such
deductibles and covering such risks, as is reasonable and prudent. 


	
 

	
 


	
 

	
          6.16 Use
  of Proceeds.


	
 

	
 


	
 

	
The proceeds
  of the Loans will be used solely for the purposes specified in Section 7.10. 


	
 

	
 


	
 

	
          6.17 Government
  Regulation. 


	
 

	
 


	
 

	
          (a)
  “Margin stock” within the meaning of Regulation U does not constitute more
  than 25% of the value of the consolidated assets of the Borrower and its
  Subsidiaries. None of the transactions contemplated by the Credit Documents
  (including, without limitation, the direct or indirect use of the proceeds of
  the Loans) will violate or result in a violation of (i) the Securities Act,
  (ii) the Exchange Act or (iii) Regulations T, U or X. 


	
 

	
 


	
 

	
          (b)
  Neither the Borrower nor any of its Subsidiaries is subject to regulation
  under the Federal Power Act or the Investment Company Act of 1940, each as
  amended. 


	
 

	
 


	
 

	
          6.18 ERISA.
  


	
 

	
 


	
 

	
Except as
  would not result in or would not reasonably be expected to result in a
  Material Adverse Effect: 


	
 

	
 


	
 

	
          (a)
  (i) No ERISA Event has occurred, and, to the best knowledge of the Borrower,
  each of its Subsidiaries and each ERISA Affiliate, no event or condition has
  occurred or exists as a result of which any ERISA Event could reasonably be
  expected to occur, with respect to any Plan; (ii) no “accumulated funding
  deficiency,” as such term is defined in Section 302 of ERISA and Section 412
  of the Code, whether or not waived, has occurred with respect to any Plan and
  no application for a funding waiver or an extension of any amortization
  period pursuant to Section 412 of the Code has been made with respect to any
  Plan; (iii) each Plan has been maintained, operated, and funded in compliance
  with its own terms and in material compliance with the provisions of ERISA,
  the Code, and any other applicable federal or state laws; (iv) each Plan that
  is intended to qualify under Section 401(a) of the Code has received a
  favorable determination letter from the IRS or an application for such a
  letter is currently being processed by the IRS with respect thereto and, to
  the best knowledge of the Borrower, each of its Subsidiaries and each ERISA
  Affiliate, nothing has occurred which would prevent, or cause the loss of,
  such qualification; and (v) no Lien in favor of the PBGC or a Plan has arisen
  or is reasonably likely to arise on account of any Plan. 


	
 

	
 


	
 

	
          (b)
  Neither the Borrower nor any Subsidiary of the Borrower nor any ERISA
  Affiliate has incurred, or, to the best of each such party’s knowledge, is
  reasonably expected to incur, any liability under Title IV of ERISA with
  respect to any Single Employer Plan, or any withdrawal liability under ERISA
  to any Multiemployer Plan or Multiple Employer Plan. Neither the Borrower nor
  any Subsidiary of the Borrower nor any ERISA Affiliate has received any
  notification that any Multiemployer Plan is in reorganization (within the
  meaning of Section 4241 of ERISA), is insolvent (within the 





49







	
 

	
 

	
 


	
 

	
meaning of
  Section 4245 of ERISA), or has been terminated (within the meaning of Title
  IV of ERISA), and no Multiemployer Plan is, to the best of each such Person’s
  knowledge, reasonably expected to be in reorganization, insolvent, or
  terminated. Neither the Borrower nor any Subsidiary of the Borrower nor any
  ERISA Affiliate has engaged in a transaction that could be subject to
  Sections 4069 or 4212(c) of ERISA. 


	
 

	
 


	
 

	
          (c)
  No prohibited transaction (within the meaning of Section 406 of ERISA or
  Section 4975 of the Code) or breach of fiduciary responsibility has occurred
  with respect to a Plan which has subjected or may subject the Borrower, any
  Subsidiary of the Borrower or any ERISA Affiliate to any liability under
  Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
  under any agreement or other instrument pursuant to which the Borrower, any
  Subsidiary of the Borrower or any ERISA Affiliate has agreed or is required
  to indemnify any person against any such liability. There are no pending or,
  to the best knowledge of the Borrower, each of its Subsidiaries and each
  ERISA Affiliate, threatened claims, actions or lawsuits, or action by any
  Governmental Authority, with respect to any Plan that could reasonably be
  expected to have a Material Adverse Effect. 


	
 

	
 


	
 

	
          (d)
  Each Plan that is a welfare plan (as defined in Section 3(1) of ERISA) to
  which Sections 601-609 of ERISA and Section 4980B of the Code apply has been
  administered in compliance in all material respects with such sections. 


	
 

	
 


	
 

	
          6.19 Environmental
  Matters. 


	
 

	
 


	
 

	
          (a)
  Except as would not result in or would not reasonably be expected to result
  in a Material Adverse Effect: 


	
 

	
 

	
 


	
 

	
 

	
          (i)
Each of the real properties owned, leased or operated by the Borrower or any
of its Subsidiaries (the “Real Properties”) and all operations at the Real
Properties are in compliance with all applicable Environmental Laws, and
there is no violation of any Environmental Law with respect to the Real
Properties or the businesses operated by the Borrower or any of its
Subsidiaries (the “Businesses”), and there are no conditions relating to the
Businesses or Real Properties that would reasonably be expected to give rise
to liability under any applicable Environmental Laws.  


	
 

	
 

	
 


	
 

	
 

	
          (ii)
  No Credit Party has received any written notice of, or inquiry from any
  Governmental Authority regarding, any violation, alleged violation,
  non-compliance, liability or potential liability regarding Hazardous Materials
  or compliance with Environmental Laws with regard to any of the Real
  Properties or the Businesses, nor, to the knowledge of the Borrower or any of
  its Subsidiaries, is any such notice being threatened. 


	
 

	
 

	
 


	
 

	
 

	
          (iii)
  Hazardous Materials have not been transported or disposed of from the Real
  Properties, or generated, treated, stored or disposed of at, on or under any
  of the Real Properties or any other location, in each case by, or on behalf
  or with 





50







	
 

	
 

	
 


	
 

	
 

	
the
  permission of, the Borrower or any of its Subsidiaries in a manner that would
  give rise to liability under any applicable Environmental Laws. 


	
 

	
 

	
 


	
 

	
 

	
          (iv)
  No judicial proceeding or governmental or administrative action is pending
  or, to the knowledge of the Borrower or any of its Subsidiaries, threatened,
  under any Environmental Law to which the Borrower or any of its Subsidiaries
  is or will be named as a party, 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 Borrower or any of its Subsidiaries, the Real
  Properties or the Businesses. 


	
 

	
 

	
 


	
 

	
 

	
          (v)
  There has been no release (including, without limitation, disposal) or threat
  of release of Hazardous Materials at or from the Real Properties, or arising
  from or related to the operations of the Borrower or any of its Subsidiaries
  in connection with the Real Properties or otherwise in connection with the Businesses
  where such release constituted a violation of, or would give rise to
  liability under, any applicable Environmental Laws. 


	
 

	
 

	
 


	
 

	
 

	
          (vi)
  None of the Real Properties contains, or has previously contained, any
  Hazardous Materials at, on or under the Real Properties in amounts or
  concentrations that, if released, constitute or constituted a violation of,
  or could give rise to liability under, Environmental Laws. 


	
 

	
 

	
 


	
 

	
 

	
          (vii)
  Neither the Borrower, nor any of its Subsidiaries, has assumed any liability
  of any Person (other than among themselves) under any Environmental Law. 


	
 

	
 

	
 


	
 

	
          (b)
  The Credit Parties have adopted procedures that are designed to (i) ensure
  that each Credit Party, any of its operations and each of the Real Properties
  complies with applicable Environmental Laws and (ii) minimize any liabilities
  or potential liabilities that each Credit Party, any of its operations and
  each of the Real Properties may have under applicable Environmental Laws. 


	
 

	
 


	
 

	
 

	
6.20 Intellectual Property. 





          The
Borrower and each of its Subsidiaries owns, or has the legal right to use, all
material patents, trademarks, tradenames, copyrights, technology, know-how and
processes (the “Intellectual Property”) necessary for each of them to
conduct its business as currently conducted other than as would not have or
would not be reasonably expected to have a Material Adverse Effect. No claim
has been asserted and is pending by any Person challenging or questioning the
use of any Intellectual Property owned by the Borrower or any of its
Subsidiaries or that the Borrower or any of its Subsidiaries has a right to use
or the validity or effectiveness of any such Intellectual Property, nor does
the Borrower or any of its Subsidiaries have knowledge of any such claim, and,
to the knowledge of the Borrower and its Subsidiaries, the use of any
Intellectual Property by the Borrower and its Subsidiaries does not infringe on
the rights of any Person, except for such claims 


51






and
infringements that in the aggregate, would not have or would not reasonably be
expected to have a Material Adverse Effect. 


                    6.21
Subsidiaries. 


          As
of the date hereof, set forth on Schedule 6.21 is a complete and
accurate list of all Subsidiaries of the Borrower and which of such
Subsidiaries are Material Domestic Subsidiaries. 


                    6.22
Solvency. 


          Each
Credit Party is and, after consummation of the transactions contemplated by
this Credit Agreement, will be Solvent. 


                    6.23
Taxpayer Identification Number. 


          The
Borrower’s true and correct U.S. taxpayer identification number is set forth on
Schedule 6.23. 


SECTION 7


AFFIRMATIVE COVENANTS


          Each
Credit Party hereby covenants and agrees that so long as this Credit Agreement
is in effect and until the Loans, together with interest and fees and other
obligations then due and payable hereunder, have been paid in full: 


                    7.1
Information Covenants. 


          The
Credit Parties will furnish, or cause to be furnished, to the Administrative
Agent and each of the Lenders an electronic (if readily available) and a hard
copy of: 


	
 

	
 


	
 

	
          (a)
  Annual Financial Statements. As soon as available, and in any event
  within the earlier of (i) 95 days after the close of each fiscal year of the
  Borrower or (ii) ten Business Days after the date the Borrower files its Form
  10-K with the Securities and Exchange Commission, a consolidated balance
  sheet and income statement of the Borrower and its Subsidiaries, as of the
  end of such fiscal year, together with related consolidated statements of
  operations, cash flows and changes in stockholders’ equity for such fiscal
  year, setting forth in comparative form consolidated figures for the
  preceding fiscal year, all such consolidated financial information described
  above to be audited by independent certified public accountants of recognized
  national standing and whose opinion shall be to the effect that such
  financial statements fairly present in all material respects the consolidated
  financial position, results of operations and cash flows of the Borrower and
  its Subsidiaries as at the end of, and for, such fiscal year in accordance
  with GAAP and shall not be limited as to the scope of the audit or qualified
  in any manner. 


	
 

	
 


	
 

	
          (b)
  Quarterly Financial Statements. As soon as available, and in any event
  within the earlier of (i) 50 days after the close of each of the first three
  fiscal quarters of 





52







	
 

	
 


	
 

	
the Borrower
  or (ii) ten Business Days after the date the Borrower files its Form 10-Q
  with the Securities and Exchange Commission, a consolidated balance sheet and
  income statement of the Borrower and its Subsidiaries, as of the end of such
  fiscal quarter, together with related consolidated statements of operations,
  cash flows and changes in stockholders’ equity for such fiscal quarter
  setting forth in each case in comparative form the corresponding consolidated
  statements of operations and cash flows for the corresponding period of the
  preceding fiscal year, and accompanied by a certificate of an Authorized
  Officer of the Borrower to the effect that such quarterly financial
  statements fairly present in all material respects the consolidated financial
  condition of the Borrower and its Subsidiaries and in accordance with GAAP,
  subject to changes resulting from audit and normal year-end audit
  adjustments. Notwithstanding the above, it is understood and agreed that
  delivery of the Borrower’s applicable Form 10-Q shall satisfy the
  requirements of this Section 7.1(b). 


	
 

	
 


	
 

	
          (c)
  Officer’s Certificate. At the time of delivery of the financial
  statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate of
  an Authorized Officer of the Borrower substantially in the form of Exhibit
  7.1(c), (i) demonstrating compliance with the financial covenants
  contained in Section 7.2 and the covenant requirements in Section 7.12(b) by
  calculation thereof as of the end of each such fiscal period, (ii)
  demonstrating compliance with any other terms of this Credit Agreement as
  reasonably requested by the Administrative Agent, (iii) stating that no
  Default or Event of Default exists, or if any Default or Event of Default
  does exist, specifying the nature and extent thereof and what action the
  Borrower proposes to take with respect thereto and (iv) updating Schedule
  6.21 as of the end of such fiscal period. 


	
 

	
 


	
 

	
          (d)
  Reports. Promptly upon transmission or receipt thereof, copies of all
  financial statements, proxy statements, notices and reports as the Borrower
  or any of its Subsidiaries shall send to shareholders of the Borrower
  generally and, upon request of the Administrative Agent, copies of any
  filings and registrations with, and reports to or from, any Governmental
  Authority which has regulatory authority with respect to the Borrower and its
  Subsidiaries. 


	
 

	
 


	
 

	
          (e)
  Notices. Upon a Credit Party obtaining knowledge thereof, the Borrower
  will give written notice to the Administrative Agent promptly (and in any
  event within five Business Days) of (i) the occurrence of an event or
  condition consisting of a Default or Event of Default, specifying the nature
  and existence thereof and what action the Borrower proposes to take with
  respect thereto, (ii) the occurrence of any of the following with respect to
  the Borrower or any of its Subsidiaries (A) the pendency or commencement of
  any litigation, arbitration or governmental proceeding against the Borrower
  or any of its Subsidiaries which (x) would have or would reasonably be
  expected to have a Material Adverse Effect, or (y) would result in a
  significant liability to the Credit Parties or (B) material non-compliance
  with, or the institution of any proceedings against the Borrower or any of
  its Subsidiaries with respect to, or the receipt of written notice by such
  Person of potential liability or responsibility for violation, or alleged
  violation of, any Requirement of Law (including, without limitation,
  Environmental Laws) the violation of which would have or would reasonably be
  expected to have a Material Adverse Effect ,(iii) any change to the Debt
  Rating of the 





53







	
 

	
 


	
 

	
Borrower,
  and (iv) any investigation or proceeding against the Borrower or any of its
  Subsidiaries to suspend, revoke or terminate, any Medicaid Provider
  Agreement, Medicare Provider Agreement, or exclusion from any Medical
  Reimbursement Program, which is reasonably expected to have a Material
  Adverse Effect. 


	
 

	
 


	
 

	
          (f)
  ERISA. Upon the Borrower, any Subsidiary of the Borrower or any ERISA
  Affiliate obtaining knowledge thereof, such Person shall give written notice
  to the Administrative Agent and each of the Lenders promptly (and in any
  event within two Business Days) of the occurrence of any of the following
  events which has had or would be reasonably expected to have a Material
  Adverse Effect: (i) any Reportable Event, that constitutes an ERISA Event;
  (ii) with respect to any Multiemployer Plan, the receipt of notice as
  prescribed in ERISA or otherwise of any withdrawal liability assessed against
  the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate, or of a
  determination that any Multiemployer Plan is in reorganization or insolvent
  (both within the meaning of Title IV of ERISA); (iii) the failure to make
  full payment on or before the due date (including extensions) thereof of all
  amounts which the Borrower, any Subsidiary of the Borrower or any ERISA
  Affiliate is required to contribute to each Plan pursuant to its terms and as
  required to meet the minimum funding standard set forth in ERISA and the Code
  with respect thereto; or (iv) any change in the funding status of any Plan
  that could have a Material Adverse Effect; in each case together with a
  description of any such event or condition or a copy of any such notice and a
  statement by an Authorized Officer of the Borrower briefly setting forth the
  details regarding such event, condition, or notice, and the action, if any,
  which has been or is being taken or is proposed to be taken by such Person
  with respect thereto. Promptly upon request, the Credit Parties shall furnish
  the Administrative Agent and the Lenders with such additional information
  concerning any Plan as may be reasonably requested, including, but not
  limited to, copies of each annual report/return (Form 5500 series), as well
  as all schedules and attachments thereto required to be filed with the
  Department of Labor and/or the Internal Revenue Service pursuant to ERISA and
  the Code, respectively, for each “plan year” (within the meaning of Section
  3(39) of ERISA).


	
 

	
 


	
 

	
          (g) Environmental.  








	
 

	
 

	
 


	
 

	
 

	
          (i)
  Subsequent to a written notice from any Governmental Authority that would
  reasonably be expected to result in a Material Adverse Effect, or during the
  existence of an Event of Default, and upon the written request of Administrative
  Agent, the Credit Parties will furnish or cause to be furnished to the
  Administrative Agent, at the Credit Parties’ expense, a report of an
  environmental assessment of reasonable scope, form and depth, including,
  where appropriate, invasive soil or groundwater sampling, by a consultant
  reasonably acceptable to the Administrative Agent addressing the subject of
  such notice or, if during the existence of an Event of Default, regarding any
  release or threat of release of Hazardous Materials on any Property owned,
  leased or operated by a Credit Party and the compliance by the Credit Parties
  with Environmental Laws. If the Credit Parties fail to deliver such an
  environmental report within seventy-five (75) days after receipt of such
  written request, then the Administrative Agent may arrange for same, and the
  Credit Parties hereby grant to the Administrative 





54







	
 

	
 

	
 


	
 

	
 

	
Agent and
  its representatives access to the Real Properties and a license of a scope
  reasonably necessary to undertake such an assessment (including, where
  appropriate, invasive soil or groundwater sampling). The reasonable cost of
  any assessment arranged for by the Administrative Agent pursuant to this
  provision will be payable by the Credit Parties on demand. 


	
 

	
 

	
 


	
 

	
 

	
          (ii)
  Each Credit Party will conduct and complete, or cause to be conducted and
  completed, all investigations, studies, sampling, and testing and all
  remedial, removal, and other actions necessary to address all Hazardous
  Materials on, from, or affecting any Real Properties to the extent necessary
  to be in compliance with all Environmental Laws and all other applicable
  federal, state, and local laws, regulations, rules and policies and with the
  orders and directives of all Governmental Authorities exercising jurisdiction
  over such Real Properties to the extent any failure would have or would
  reasonably be expected to have a Material Adverse Effect. 


	
 

	
 

	
 


	
 

	
          (h)
  Other Information. With reasonable promptness upon any such request,
  such other information regarding the business, properties or financial
  condition of the Borrower and its Subsidiaries as the Administrative Agent
  may reasonably request. 


	
 

	
 


	
 

	
          (i)
  Public/Private Information. The Borrower hereby acknowledges that (i)
  the Administrative Agent will make available to the Lenders materials and/or
  information provided by or on behalf of the Borrower hereunder (collectively,
  “Borrower Materials”) by posting the Borrower Materials on IntraLinks
  or another similar electronic system (the “Platform”) and (ii) certain
  of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish
  to receive material non-public information with respect to the Borrower or
  its securities) (each, a “Public Lender”). The Borrower hereby agrees
  that (A) all Borrower Materials that are to be made available to the Public
  Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a
  minimum, shall mean that the word “PUBLIC” shall appear prominently on the
  first page thereof; (B) by marking Borrower Materials “PUBLIC”, the Borrower
  shall be deemed to have authorized the Administrative Agent and the Lenders
  to treat such Borrower Materials as either publicly available information or
  not material information (although it may be sensitive and proprietary) with
  respect to the Borrower or its securities for purposes of United States
  federal and state securities laws; (C) all Borrower Materials marked “PUBLIC”
  are permitted to be made available through a portion of the Platform
  designated as “Public”; and (D) the Administrative Agent shall be entitled to
  treat any Borrower Materials that are not marked “PUBLIC” as being suitable
  only for posting on a portion of the Platform not marked “Public”.
  Notwithstanding the foregoing, the Borrower shall be under no obligation to
  mark any Borrower Materials “PUBLIC”. 


	
 

	
 


	
 

	
          (j)
  Electronic Delivery. Documents required to be delivered pursuant to
  Section 7.1(a) or (b) (to the extent any such documents are included in
  materials otherwise filed with the Securities and Exchange Commission) may be
  delivered electronically and if so delivered, shall be deemed to have been
  delivered on the date (i) on which the Borrower posts such documents, or
  provides a link thereto on the Borrower’s website on the Internet at the
  website address listed on Schedule 11.1 or 





55







	
 

	
 


	
 

	
(ii) on
  which such documents are posted on the Borrower’s behalf on an Internet or
  intranet website, if any, to which each Lender and the Administrative Agent
  have access (whether a commercial, third-party website or whether sponsored
  by the Administrative Agent); provided that: (A) the Borrower shall
  deliver paper copies of such documents to the Administrative Agent or any
  Lender that requests the Borrower to deliver such paper copies until a
  written request to cease delivering paper copies is given by the
  Administrative Agent or such Lender and (B) the Borrower shall notify (which
  may be facsimile or electronic mail) the Administrative Agent and each Lender
  of the posting of any such documents and provide to the Administrative Agent
  by electronic mail electronic versions (i.e., soft copies) of such documents.
  Notwithstanding anything contained herein, in every instance the Borrower
  shall be required to provide paper copies of the compliance certificates
  required by Section 7.1(c) to the Administrative Agent. Except for such
  compliance certificates, the Administrative Agent shall have no obligation to
  request the delivery or to maintain copies of the documents referred to
  above, and in any event shall have no responsibility to monitor compliance by
  the Borrower with any such request for delivery, and each Lender shall be
  solely responsible for requesting delivery to it or maintaining its copies of
  such documents. 








	
 

	
 


	
 

	
          7.2 Financial
  Covenants.


	
 

	
 


	
 

	
          (a)
  Leverage Ratio. The Leverage Ratio, as of the last day of each fiscal quarter
  of the Borrower, shall be less than or equal to (x) 3.50 to 1.0 through June
  30, 2008 and (y) 3.25 to 1.0 thereafter.


	
 

	
 


	
 

	
          (b)
  Interest Coverage Ratio. The Interest Coverage Ratio, as of the last day of
  each fiscal quarter of the Borrower, shall be greater than or equal to 3.5 to
  1.0.


	
 

	
 


	
 

	
          7.3 Preservation
  of Existence and Franchises. 





          The
Borrower will, and will cause its Subsidiaries to, do all things necessary to
preserve and keep in full force and effect its existence, rights, franchises,
Intellectual Property and authority except as permitted by Section 8.4; provided
that neither the Borrower nor any of its Subsidiaries shall be required to
preserve any rights, franchises, Intellectual Property or authority if the
Borrower or such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of its business and if the loss thereof would
not have or would not reasonably be expected to have a Material Adverse Effect.



                    7.4
Books and Records. 


          The
Borrower will, and will cause its Subsidiaries to, keep complete and accurate
books and records of its transactions in order to produce its financial statements
in accordance with GAAP (including the establishment and maintenance of
appropriate reserves). 


                    7.5
Compliance with Law. 


          Except
to the extent the failure to do so would not have or would not reasonably be
expected to have a Material Adverse Effect, the Borrower will, and will cause
each of its Subsidiaries to, (a) comply with all Requirements of Law, and all
applicable restrictions imposed by all 


56






Governmental
Authorities, applicable to it and its Property (including, without limitation,
Environmental Laws and ERISA), (b) conform with and duly observe in all
material respects all laws, rules and regulations and all other valid
requirements of any regulatory authority with respect to the conduct of its
business, including without limitation, HIPAA, Medicare Regulations, Medicaid
Regulations, and all laws, rules and regulations of Governmental Authorities,
pertaining to the business of the Credit Parties; (c) obtain and maintain all
licenses, permits, certifications and approvals of all applicable Governmental
Authorities as are required for the conduct of its business as currently
conducted and herein contemplated, including without limitation professional
licenses, CLIA certifications, Medicare Provider Agreements and Medicaid
Provider Agreements; (d) ensure that (i) billing policies, arrangements,
protocols and instructions will comply with reimbursement requirements under
Medicare, Medicaid and other Medical Reimbursement Programs and will be
administered by properly trained personnel; (ii) medical director compensation
arrangements and other arrangements with referring physicians will comply with
applicable state and federal self-referral and anti-kickback laws, including
without limitation 42 U.S.C. Section 1320a-7b(b)(1) - (b)(2) 42 U.S.C. and 42
U.S.C. Section 1395nn; and (iii) no event or related events occur that results
in the exclusion of the Borrower or any of its Subsidiaries from participation
in any Medical Reimbursement Program and (e) make commercially reasonable
efforts to implement policies that are consistent with HIPAA on or before the
date that any Credit Party is required to comply therewith. 


                    7.6
Payment of Taxes and Other Indebtedness. 


          The
Borrower will, and will cause its Subsidiaries to, pay, settle or discharge (a)
all material taxes, assessments and governmental charges or levies imposed upon
it, or upon its income or profits, or upon any of its properties, before they
shall become delinquent, (b) all material lawful claims (including claims for
labor, materials and supplies) which, if unpaid, might give rise to a Lien upon
any of its properties, and (c) all of its other material Indebtedness as it
shall become due (to the extent such repayment is not otherwise prohibited by
this Credit Agreement); provided, however, that a Credit Party shall not
be required to pay any such tax, assessment, charge, levy, claim or
Indebtedness which is being contested in good faith by appropriate proceedings
and as to which adequate reserves therefor have been established in accordance
with GAAP, unless the failure to make any such payment (i) would give rise to
an immediate right to foreclose or collect on a Lien securing such amounts or
(ii) would have or would reasonably be expected to have a Material Adverse
Effect. 


                    7.7
Insurance. 


          The
Borrower will, and will cause each of its Subsidiaries to, at all times
maintain in full force and effect insurance (including worker’s compensation,
liability, casualty and business interruption insurance) with reputable
national companies that are not Affiliates of the Borrower (except to the
extent that self-insurance is maintained in reasonable amounts), in such
amounts, covering such risks and liabilities as is reasonable and prudent. 


                    7.8
Maintenance of Property. 


          The
Borrower will, and will cause its Subsidiaries to, maintain and preserve its
properties and equipment in good repair, working order and condition, normal
wear and tear excepted, and will 


57






make, or cause
to be made, in such properties and equipment from time to time all repairs,
renewals, replacements, extensions, additions, betterments and improvements
thereto as may be needed or proper, in each case to the extent and in the
manner customary for companies in similar businesses. 


                    7.9
Performance of Obligations. 


          Except
to the extent the failure to do so would not have or would not reasonably be
expected to have a Material Adverse Effect, the Borrower will, and will cause
its Subsidiaries to, perform all of its obligations under the terms of all
contracts, agreements or other agreements not evidencing Indebtedness to which
it is a party or by which it or its Properties may be bound. 


                    7.10
Use of Proceeds. 


          The
Borrower will use the proceeds of the Loans solely for the Transactions;
provided, however, that the proceeds of any Delayed Draw Bridge Loans shall be
used solely for the purpose of paying the principal of, and any accrued and
unpaid interest on, Ameripath’s existing debt as set forth below, together with
related fees and expenses: 


	
 

	
 


	
 

	
          (a)
  the 10% Senior Subordinated Note due 2014 of Ameripath Holdings, Inc., 


	
 

	
 


	
 

	
          (b)
  the Credit Agreement, dated as of January 31, 2006, and as amended on
  September 27, 2006, by and among Ameripath Holdings, Inc., Ameripath, Inc.,
  Wachovia Bank, N.A., Citigroup Global Markets Inc., Deutsche Bank Securities
  Inc., UBS Securities LLC, and Wachovia Capital Markets, LLC 


	
 

	
 


	
 

	
          (c)
  the Floating Rate PIK Toggle Notes of Ameripath Intermediate Holdings, Inc.,
  and 


	
 

	
 


	
 

	
          (d)
  the 101⁄2% Senior Subordinated Notes due 2013 of AmeriPath, Inc. 





                    7.11
Audits/Inspections. 


          Upon
reasonable notice and during normal business hours, but not more than once per
calendar year, the Borrower will, and will cause each of its Subsidiaries to,
permit representatives appointed by the Administrative Agent or any Lender,
including, without limitation, independent accountants, agents, attorneys and
appraisers to visit and inspect the Borrower’s or any Subsidiary’s Property,
including its books and records, its accounts receivable and inventory, its
facilities and its other business assets, and to make photocopies or
photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent, any Lender or
its representatives to investigate and verify the accuracy of information
provided to the Administrative Agent or the Lenders and to discuss all such
matters with the officers, employees and representatives of the Borrower and/or
its Subsidiaries; provided, however, during the existence of a
Default or Event of Default, the Administrative Agent and the Lenders may
request as many inspections as reasonable under the circumstances. Any expenses
incurred in connection with this Section 7.11 shall be for the account of the
Lenders unless an Event of Default exists in which case such expenses shall be
for the account of the Borrower. Any representatives appointed by the
Administrative Agent shall sign a confidentiality agreement reasonably
acceptable to the Borrower prior to any visit, investigation, inspection or
verification permitted by this Section 7.11. 


58






                    7.12
Additional Credit Parties. 


	
 

	
 


	
 

	
          (a)
  At the time any Person becomes a Material Domestic Subsidiary or at the time
  any Subsidiary of the Borrower guaranties the Five-Year Credit Agreement or
  any other Pari Passu Debt (if it is not already a Guarantor), the Borrower
  shall so notify the Administrative Agent and promptly thereafter (but in any
  event within 30 days) shall cause such Person to (i) execute a Joinder
  Agreement in substantially the same form as Exhibit 7.12, thereby,
  among other things, causing such Person to become a Guarantor, and (ii)
  deliver such other documentation as the Administrative Agent may reasonably
  request in connection with the foregoing, including, without limitation,
  certified resolutions and other organizational and authorizing documents of
  such Person and favorable opinions of counsel to such Person (which shall
  cover, among other things, the legality, validity, binding effect and
  enforceability of the documentation referred to above), all in form, content
  and scope reasonably satisfactory to the Administrative Agent. 


	
 

	
 


	
 

	
          (b)
  If at any time Non-Material Domestic Subsidiaries own assets in an aggregate
  amount greater than five percent (5%) of Total Assets or produce revenues in
  an aggregate amount greater than five percent (5%) of the total revenues of
  the Borrower and its Subsidiaries on a consolidated basis, the Borrower will
  designate one or more Non-Material Domestic Subsidiaries to become a
  Guarantor (and such Non-Material Domestic Subsidiary shall become a Guarantor
  in accordance with clause (a) above) so that after giving effect to such
  designation and action, Non-Material Domestic Subsidiaries own assets in the
  aggregate of equal to or less than five percent (5%) of Total Assets and
  produce revenues in an aggregate amount equal to or less than five percent
  (5%) of the total revenues of the Borrower and its Subsidiaries on a
  consolidated basis. 





                    7.13
Compliance Program. 


          The
Borrower will, and will cause each of its Domestic Subsidiaries that operates a
clinical laboratory to, maintain, and be operated in accordance with, a
compliance program which is reasonably designed to provide effective internal
controls that promote adherence to applicable federal and state law and the
program requirements of federal and state health plans, and which includes the
implementation of internal audits and monitoring on a regular basis to monitor
compliance with the requirements of the compliance program and applicable law,
regulations and company policies. 


SECTION 8


NEGATIVE COVENANTS


          Each
Credit Party hereby covenants and agrees that so long as this Credit Agreement
is in effect and until the Loans, together with interest, fees and other obligations
then due and payable hereunder, have been paid in full: 


59






                    8.1
Indebtedness. 


          The
Borrower will not permit any of its Subsidiaries to, contract, create, incur,
assume or permit to exist any Indebtedness, other than: 


	
 

	
 


	
 

	
          (a)
  Guaranty Obligations arising under this Credit Agreement and the other Credit
  Documents; 


	
 

	
 


	
 

	
          (b)
  [Intentionally Omitted]; 


	
 

	
 


	
 

	
          (c)
  Indebtedness in respect of current accounts payable and accrued expenses
  incurred in the ordinary course of business; 


	
 

	
 


	
 

	
          (d)
  Indebtedness owing by a Subsidiary of the Borrower to the Borrower or another
  Subsidiary of the Borrower; 


	
 

	
 


	
 

	
          (e)
  purchase money Indebtedness (including Capital Leases) to finance the purchase
  of fixed assets (including equipment); provided that (i) the total of
  all such Indebtedness shall not exceed an aggregate principal amount of
  $100,000,000 (less any purchase money Indebtedness incurred by the Borrower)
  at any one time outstanding; (ii) such Indebtedness when incurred shall not
  exceed the purchase price of the asset(s) financed; and (iii) no such
  Indebtedness shall be refinanced for a principal amount in excess of the
  principal balance outstanding thereon at the time of such refinancing; 


	
 

	
 


	
 

	
          (f)
  Indebtedness arising from Permitted Receivables Financings in an amount not
  to exceed $600,000,000, in the aggregate (less any Indebtedness incurred by
  the Borrower arising from Permitted Receivables Financings), at any one time
  outstanding; 


	
 

	
 


	
 

	
          (g)
  Indebtedness evidenced by Hedging Agreements entered into in the ordinary
  course of business and not for speculative purposes; 


	
 

	
 


	
 

	
          (h)
  Any guaranty of Indebtedness of the Borrower; 


	
 

	
 


	
 

	
          (i)
  Indebtedness incurred after the Closing Date in connection with the
  acquisition of a Person or Property as long as such Indebtedness existed
  prior to such acquisition and was not created in anticipation thereof; 


	
 

	
 


	
 

	
          (j)
  Indebtedness existing on the date hereof as set forth on Schedule 8.1;
  


	
 

	
 


	
 

	
          (k)
  Indebtedness incurred after the Closing Date by Foreign Subsidiaries in an
  amount not to exceed $400,000,000 (or the Dollar equivalent thereof) in the
  aggregate at any time outstanding; and 


	
 

	
 


	
 

	
          (l)
  other unsecured Indebtedness in an amount not to exceed $200,000,000, in the
  aggregate, at any one time outstanding. 





60






                    8.2
Liens. 


          The
Borrower will not, nor will it permit its Subsidiaries to, contract, create,
incur, assume or permit to exist any Lien with respect to any of its Property
of any kind (whether real or personal, tangible or intangible), whether now
owned or after acquired, other than Permitted Liens. 


                    8.3
Nature of Business. 


          The
Borrower will not, nor will it permit its Subsidiaries to, alter the character
of its business from that conducted as of the date hereof or engage in any
substantial manner in any business other than (a) the business conducted by the
Borrower and its Subsidiaries as of the date hereof and (b) other
healthcare-related businesses and businesses reasonably related thereto. 


                    8.4
Consolidation and Merger. 


          The
Borrower will not, nor will it permit any Subsidiary to, enter into any
transaction of merger or consolidation or liquidate, wind up or dissolve
itself, or suffer any such liquidation, wind-up or dissolution; provided
that (subject to Sections 7.12 and 7.13) (a) a Subsidiary of the Borrower may
merge into the Borrower or another Subsidiary of the Borrower, (b) a Subsidiary
of the Borrower may merge or consolidate with another Person in a transaction
otherwise permitted by Section 8.5 or (c) the Borrower or a Subsidiary of the
Borrower may merge or consolidate with or into another Person if the following
conditions are satisfied: 


	
 

	
 


	
 

	
          (i)
  if such transaction involves total consideration (cash and non-cash) in
  excess of $750,000,000, the Administrative Agent is given prompt written
  notice of such action; 


	
 

	
 


	
 

	
          (ii)
  if the merger or consolidation involves a Credit Party, the surviving entity
  of such merger or consolidation shall either (A) be such Credit Party or (B)
  be a Subsidiary of the Borrower and expressly assume in writing all of the
  obligations of such Credit Party under the Credit Documents; provided
  that if the transaction is between the Borrower and another Person, the
  Borrower must be the surviving entity; 


	
 

	
 


	
 

	
          (iii)
  the Credit Parties execute and deliver such documents, instruments and
  certificates as the Administrative Agent may reasonably request; and 


	
 

	
 


	
 

	
          (iv)
  immediately after giving effect to such transaction, no Default or Event of
  Default shall have occurred and be continuing. 





                    8.5
Sale or Lease of Assets. 


          The
Borrower will not, nor will it permit its Subsidiaries to, convey, sell, lease,
transfer or otherwise voluntarily dispose of, in one transaction or a series of
transactions, all or any part of its business or assets whether now owned or
hereafter acquired, including, without limitation, inventory, receivables,
equipment, real property interests (whether owned or leasehold) and securities,
other than a sale, lease, transfer or other disposal of (a) subject to Sections
7.12 and 7.13, assets from the Borrower or one of its Subsidiaries to each
other; (b) inventory and supplies in the 


61







ordinary
course of business; (c) obsolete, surplus, slow-moving, idle or worn-out
assets no longer used or useful in the business of such Credit Party or the
trade-in of equipment for equipment in better condition or of better quality;
(d) assets which constitute a Permitted Investment in the ordinary course
of business; (e) Receivables pursuant to a Permitted Receivables
Financing; (f) Investments in the Strategic Investments Portfolio and
(g) assets of the Borrower and its Subsidiaries, in addition to those
permitted above in this Section 8.5; provided that in the case of
this clause (g) (i) no Event of Default exists prior to such transfer,
(ii) no Default or Event of Default exists after giving effect to such
transfer and (iii) after giving effect to such transfer, the aggregate
amount of all such transfers, calculated on a net book value basis, does not
exceed ten percent (10%) of Total Assets, as determined on the last day of the
most recently ended fiscal quarter of the Borrower for which an officer’s certificate
has been delivered pursuant to Section 7.1(c).


                    8.6
Investments.


          The
Borrower will not, nor will it permit its Subsidiaries to, make or permit to
exist any Investments except for Permitted Investments.


                    8.7
Transactions with Affiliates.


          The
Borrower will not, nor will it permit its Subsidiaries to, enter into any
transaction or series of transactions, whether or not in the ordinary course of
business, with any officer, director, shareholder, Subsidiary or Affiliate
other than on terms and conditions substantially as favorable as would be
obtainable in a comparable arm’s-length transaction with a Person other than an
officer, director, shareholder, Subsidiary or Affiliate, except that,
notwithstanding the foregoing, each of the following shall be permitted:
(a) transactions between or among the Credit Parties;
(b) transactions between or among the Borrower and its wholly owned
Subsidiaries as long as such transaction is not disadvantageous to the Lenders
in any material respect; (c) transactions between or among the Borrower or
one or more of its wholly owned Subsidiaries (on the one hand) and one of the
non-wholly owned Subsidiaries of the Borrower (on the other hand) as long as
none of the equity of such non-wholly owned Subsidiary is owned or controlled
by an officer or director of any Credit Party;(d) advances to
employees permitted by clause (f) of the definition of Permitted
Investments; (e) Dividends; (f) fees, compensation and other benefits
paid to, and customary indemnity and reimbursement provided on behalf of,
officers, directors and employees of any Credit Party in the ordinary course of
business; (g) any employment agreements entered into by the Borrower or
any of its Subsidiaries in the ordinary course of business; (h) any
Permitted Receivables Financing; and (i) transactions and agreements in
existence on the date hereof and listed on Schedule 8.7 and, in
each case, any amendment thereto, that is not disadvantageous to the Lenders in
any material respect.


                    8.8
Fiscal Year; Accounting; Organizational Documents.


          The
Borrower will not, nor will it permit its Subsidiaries to, unless such action
(i) would not affect the calculation of the financial covenants in
Section 7.2 and (ii) would not or would not reasonably be likely to
affect the rights of the Lenders under the Credit Documents: (a) change its
fiscal year other than changing the fiscal year of a Subsidiary of the Borrower
to a calendar year


62






end, (b)
change its accounting procedures, except as a result of changes in GAAP and in
accordance with Section 1.3 or (c) change its organizational or governing
documents.


                    8.9
Stock Repurchases.


          The
Borrower will not, nor will it permit its Subsidiaries to, directly or
indirectly, purchase, redeem or otherwise acquire or retire or make any
provisions for redemption, acquisition or retirement of any shares of the
Capital Stock of the Borrower of any class or any warrants or options to
purchase any such shares (collectively, a “Stock Repurchase”); provided
that the Borrower or its Subsidiaries may consummate Stock Repurchases as long
as on the date of such Stock Repurchase and after giving effect to such Stock
Repurchase no Default or Event of Default exists and is continuing.


                    8.10
Sale/Leasebacks.


	
 

	
 


	
 

	
          (a)
  Except as set forth in clause (b) below, the Borrower will not, and will
  not permit any Subsidiary to, enter into any Sale and Leaseback Transaction
  with respect to any Principal Property unless:








	
 

	
 


	
 

	
          (i) the
  Sale and Leaseback Transaction is solely with the Borrower or a Guarantor; or


	
 

	
 


	
 

	
          (ii)
  the lease is for a period not in excess of five years, including renewal
  rights; or


	
 

	
 


	
 

	
          (iii)
  prior to or within 270 days after the completion of the sale of such
  Principal Property in connection with the Sale and Leaseback Transaction, the
  Borrower or its Subsidiary applies the net cash proceeds of the sale of such
  Principal Property to: (A) a prepayment pursuant to
  Section 8.10(a)(iii)(A) of the Five-Year Credit Agreement; or
  (B) the acquisition of different property, facilities or equipment or
  the expansion of the Borrower and its Subsidiaries’ existing business,
  including the acquisition of other businesses.








	
 

	
 


	
 

	
          (b)
  In addition to the Sale and Leaseback Transactions permitted by
  clause (a) above, the Borrower or any of its Subsidiaries may enter into
  any Sale and Leaseback Transactions if all Attributable Debt (measured, in
  each case, at the time such Sale and Leaseback Transaction is entered into by
  the Borrower or its Subsidiary) in respect of such Sale and Leaseback
  Transactions (not including any Sale and Leaseback Transactions permitted
  under clause (a) above), in the aggregate, does not exceed 5% of Total
  Assets.





63






SECTION 9


EVENTS OF DEFAULT


                    9.1
Events of Default.


          An
Event of Default shall exist upon the occurrence, and during the continuation,
of any of the following specified events (each an “Event of Default”):


	
 

	
 


	
 

	
          (a)
  Payment. Any Credit Party shall default in the payment (i) when due of
  any principal of any of the Loans, whether hereunder, under any Guaranty or
  otherwise, or (ii) within three Business Days of when due of any interest on
  the Loans or any fees or other amounts owing hereunder, under any Guaranty or
  other Credit Documents or in connection herewith or therewith.


	
 

	
 


	
 

	
          (b)
  Representations. Any representation, warranty or statement made or
  deemed to be made by any Credit Party herein, in any of the other Credit
  Documents, or in any statement or certificate delivered or required to be
  delivered pursuant hereto or thereto shall prove untrue in any material
  respect on the date as of which it was made or deemed to have been made.


	
 

	
 


	
 

	
          (c)
  Covenants. Any Credit Party shall:








	
 

	
 


	
 

	
          (i)
  default in the due performance or observance of any term, covenant or
  agreement contained in Sections 7.2, 7.3, 7.10 or 7.12 or Section 8
  inclusive;


	
 

	
 


	
 

	
          (ii)
  default in the due performance or observance by it of any term, covenant or
  agreement contained in Section 7.1 (excepting Section 7.1(e) for which the
  unremedied period shall only be five Business Days) and 7.11 and such default
  shall continue unremedied for a period of ten Business Days; or


	
 

	
 


	
 

	
          (iii)
  default in the due performance or observance by it of any term, covenant or
  agreement (other than those referred to in subsections (a), (b) or (c)(i) or
  (ii) of this Section 9.1) contained in this Credit Agreement and such default
  shall continue unremedied for a period of at least 30 days after the earlier
  of an Authorized Officer of the Borrower becoming aware of such default or
  notice thereof given by the Administrative Agent.








	
 

	
 


	
 

	
          (d) Other Credit Documents. (i) Any Credit Party shall default in the due
  performance or observance of any term, covenant or agreement in any of the
  other Credit Documents and such default shall continue unremedied for a
  period of at least 30 days after the earlier of an Authorized Officer of the
  Borrower becoming aware of such default or notice thereof given by the
  Administrative Agent, (ii) any Credit Document shall fail to be in full force
  and effect or any Credit Party shall so assert or (iii) any Credit Document
  shall fail to give the Administrative Agent and/or the Lenders the rights,
  powers and privileges purported to be created by such Credit Document.





64






	
 

	
 


	
 

	
          (e)
  Guaranties. The guaranty given by the Credit Parties hereunder or by
  any Additional Credit Party or material provision thereof shall cease to be
  in full force and effect, or any Guarantor or any Person acting by or on
  behalf of such Guarantor shall deny or disaffirm such Guarantor’s obligations
  under such guaranty or such Guarantor shall default in the due payment or
  performance of such guaranty.


	
 

	
 


	
 

	
          (f)
  Bankruptcy, etc. The occurrence of any of the following with respect
  to a Credit Party (i) a court or governmental agency having jurisdiction in
  the premises shall enter a decree or order for relief in respect of a Credit
  Party in an involuntary case under any applicable bankruptcy, insolvency or
  other similar law now or hereafter in effect, or appoint a receiver,
  liquidator, assignee, custodian, trustee, sequestrator, administrator or
  similar official of a Credit Party or for any substantial part of its
  Property or ordering the winding up or liquidation of, or an administrator in
  respect of, its affairs; or (ii) an involuntary case under any
  applicable bankruptcy, insolvency or other similar law now or hereafter in
  effect is commenced against a Credit Party and such petition remains unstayed
  and in effect for a period of 60 consecutive days; or (iii) a Credit Party
  shall commence a voluntary case under any applicable bankruptcy, insolvency
  or other similar law now or hereafter in effect, or consent to the entry of
  an order for relief in an involuntary case under any such law, or consent to
  the appointment or taking possession by a receiver, liquidator, assignee, custodian,
  trustee, sequestrator, administrator or similar official of such Person or
  any substantial part of its Property or make any general assignment for the
  benefit of creditors; or (iv) a Credit Party shall fail generally, or shall
  admit in writing its inability, to pay its debts as they become due or any
  action shall be taken by such Person in furtherance of any of the aforesaid
  purposes.


	
 

	
 


	
 

	
          (g)
  Defaults under Other Indebtedness. With respect to any Indebtedness in
  excess of $150,000,000 (other than Indebtedness outstanding under this Credit
  Agreement) of the Borrower or any of its Subsidiaries (A) such Person shall
  (x) default in any payment (beyond the applicable grace period with respect
  thereto, if any) with respect to any such Indebtedness, or (y) default (after
  giving effect to any applicable grace period) in the observance or
  performance of any covenant or agreement relating to such Indebtedness or
  contained in any instrument or agreement evidencing, securing or relating
  thereto, or any other event or condition shall occur or condition exist, the
  effect of which default or other event or condition is to cause, or permit,
  the holder or holders of such Indebtedness (or trustee or agent on behalf of
  such holders, if any) to require (determined without regard to whether any
  notice or lapse of time is required) any such Indebtedness to become due
  prior to its stated maturity; or (B) any such Indebtedness shall be declared
  due and payable, or required to be prepaid other than by a regularly scheduled
  required prepayment prior to the stated maturity thereof; or (C) any such
  Indebtedness shall mature and remain unpaid.


	
 

	
 


	
 

	
          (h)
  Judgments. One or more judgments, orders, or decrees shall be entered
  against any one or more of the Borrower and its Subsidiaries involving a
  liability of $150,000,000 or more, in the aggregate, (to the extent not paid,
  covered by insurance provided by a carrier who has acknowledged coverage or
  covered by an indemnification from Corning Incorporated or SmithKline Beecham
  PLC) and such judgments, orders or decrees (i) are the subject of any
  enforcement proceeding commenced by any creditor or





65






	
 

	
 


	
 

	
(ii) shall
  continue unsatisfied, undischarged and unstayed for a period ending on the
  first to occur of (A) the last day on which such judgment, order or decree
  becomes final and unappealable or (B) 60 days.


	
 

	
 


	
 

	
          (i)
  ERISA. The occurrence of any of the following events or conditions
  which individually or in the aggregate has had or would reasonably be expected
  to have a Material Adverse Effect: (i) any “accumulated funding deficiency,”
  as such term is defined in Section 302 of ERISA and Section 412 of the Code,
  whether or not waived, shall exist with respect to any Plan, other than a
  Multiemployer Plan, or any Lien shall arise on the assets of the Borrower,
  any Subsidiary of the Borrower or any ERISA Affiliate in favor of the PBGC or
  a Plan, other than a Multiemployer Plan; (ii) an ERISA Event shall occur with
  respect to a Single Employer Plan, which is reasonably likely to result in
  the termination of such Plan for purposes of Title IV of ERISA; (iii) an
  ERISA Event shall occur with respect to a Multiemployer Plan or Multiple
  Employer Plan, which is reasonably likely to result in (A) the termination of
  such plan for purposes of Title IV of ERISA, or (B) the Borrower, any
  Subsidiary of the Borrower or any ERISA Affiliate incurring any liability in
  connection with a withdrawal from, reorganization of (within the meaning of
  Section 4241 of ERISA), or insolvency (within the meaning of Section 4245 of
  ERISA) of such plan; (iv) any prohibited transaction (within the meaning of
  Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary
  responsibility shall occur which may subject the Borrower, any Subsidiary of
  the Borrower or any ERISA Affiliate to any liability under Sections 406, 409,
  502(i), or 502(l) of ERISA or Section 4975 of the Code, or under any
  agreement or other instrument pursuant to which the Borrower, any Subsidiary
  of the Borrower or any ERISA Affiliate has agreed or is required to indemnify
  any Person against any such liability; or (v) the Borrower, any Subsidiary of
  the Borrower or any ERISA Affiliate fails to pay when due, after the
  expiration of any applicable grace period, any installment payment with
  respect to its withdrawal liability under Section 4201 of ERISA under a
  Multiemployer Plan in an aggregate amount in excess of $150,000,000.


	
 

	
 


	
 

	
          (j)
  Ownership. There shall occur a Change of Control.


	
 

	
 


	
 

	
          (k)
  Borrower Material Adverse Effect. Any event or other circumstance
  shall have occurred or come into effect on or prior to the Closing Date which
  shall have resulted in a Material Adverse Effect which shall be continuing on
  the 45th day following the Closing Date.


	
 

	
 


	
 

	
          9.2 Acceleration; Remedies.





          Upon
the occurrence and during the continuation of an Event of Default, the
Administrative Agent may or shall, upon the request and direction of the
Required Lenders, take the following actions without prejudice to the rights of
the Administrative Agent or any Lender to enforce its claims against the Credit
Parties, except as otherwise specifically provided for herein:


	
 

	
 


	
 

	
          (a)
  Termination of Commitments. Declare the Commitments terminated
  whereupon the Commitments shall be immediately terminated.





66







	
 

	
 


	
 

	
          (b)
  Acceleration of Loans. Declare the unpaid principal of and any accrued
  interest in respect of all Loans and any and all other Indebtedness or
  obligations of any and every kind owing by a Credit Party to any of the
  Lenders under the Credit Documents to be due whereupon the same shall be
  immediately due and payable without presentment, demand, protest or other
  notice of any kind, all of which are hereby waived by the Credit Parties.


	
 

	
 


	
 

	
          (c)
  Enforcement of Rights. To the extent permitted by law, enforce any and
  all rights and interests created and existing under the Credit Documents,
  including, without limitation, all rights and remedies against a Guarantor
  and all rights of set-off.





Notwithstanding
the foregoing, if an Event of Default specified in Section 9.1(f) shall occur,
then all Loans, all accrued interest in respect thereof, all accrued and unpaid
fees and other indebtedness or obligations owing to the Lenders hereunder shall
immediately become due and payable without the giving of any notice or other
action by the Administrative Agent or the Lenders, which notice or other action
is expressly waived by the Credit Parties.


Notwithstanding
the fact that enforcement powers reside primarily with the Administrative
Agent, each Lender has, to the extent permitted by law, a separate right of
payment and shall be considered a separate “creditor” holding a separate
“claim” within the meaning of Section 101(5) of the Bankruptcy Code or any other
insolvency statute.


                    9.3
Allocation of Payments After Event of Default.


          Notwithstanding
any other provisions of this Credit Agreement, after the exercise of any
remedies by the Administrative Agent or the Lenders pursuant to
Section 9.2 (or after any Event of Default that all of the Credit Party
Obligations to be due hereunder), all amounts collected or received by the
Administrative Agent or any Lender on account of amounts outstanding under any
of the Credit Documents shall be paid over or delivered as follows:


	
 

	
 


	
 

	
          FIRST,
  to the payment of all reasonable out-of-pocket costs and expenses (including
  without limitation reasonable Attorney Costs) of the Administrative Agent or
  any of the Lenders in connection with enforcing the rights of the Lenders
  under the Credit Documents, pro rata as set forth below;


	
 

	
 


	
 

	
          SECOND,
  to payment of any fees owed to the Administrative Agent or any Lender, pro
  rata as set forth below;


	
 

	
 


	
 

	
          THIRD,
  to the payment of all accrued interest payable to the Lenders hereunder, pro
  rata as set forth below;


	
 

	
 


	
 

	
          FOURTH,
  to the payment of the outstanding principal amount of the Loans, pro rata as
  set forth below;


	
 

	
 


	
 

	
          FIFTH,
  to all other obligations which shall have become due and payable under the
  Credit Documents and not repaid pursuant to clauses “FIRST” through “FOURTH”
  above; and





67







	
 

	
 


	
 

	
          SIXTH,
  to the payment of the surplus, if any, to whoever may be lawfully entitled to
  receive such surplus.





In carrying
out the foregoing, (a) amounts received shall be applied in the numerical order
provided until exhausted prior to application to the next succeeding category
and (b) each of the Lenders shall receive an amount equal to its pro rata share
(based on the proportion that the then outstanding Loans held by such Lender
bears to the aggregate then outstanding Loans of amounts available to be
applied.


SECTION 10


AGENCY PROVISIONS


	
 

	
 


	
 

	
          10.1
  Appointment.


	
 

	
 


	
 

	
          (a)
  Each Lender hereby irrevocably appoints, designates and authorizes the
  Administrative Agent to take such action on its behalf under the provisions
  of this Credit Agreement and each other Credit Document and to exercise such
  powers and perform such duties as are expressly delegated to it by the terms
  of this Credit Agreement or any other Credit Document, together with such
  powers as are reasonably incidental thereto. Notwithstanding any provision to
  the contrary contained elsewhere herein or in any other Credit Document, the
  Administrative Agent shall not have any duties or responsibilities, except
  those expressly set forth herein, nor shall the Administrative Agent have or
  be deemed to have any fiduciary or trustee relationship with any Lender or
  participant, and no implied covenants, functions, responsibilities, duties,
  obligations or liabilities shall be read into this Credit Agreement or any
  other Credit Document or otherwise exist against the Administrative Agent.
  Without limiting the generality of the foregoing sentence, the use of the
  term “agent” herein and in the other Credit Documents with reference to the
  Administrative Agent is not intended to connote any fiduciary or other
  implied (or express) obligations arising under agency doctrine of any
  applicable law. Instead, such term is used merely as a matter of market
  custom, and is intended to create or reflect only an administrative
  relationship between independent contracting parties.


	
 

	
 


	
 

	
          (b)
  Each of (i) Morgan Stanley in its capacity as Syndication Agent and (ii) Barclays
  Bank PLC, JPMorgan Chase Bank, N.A., Merrill Lynch Bank, USA and Wachovia
  Bank, National Association in their capacities as Co-Documentation Agents
  shall have no duties or obligations whatsoever under this Credit Agreement or
  the other Credit Documents.


	
 

	
 


	
 

	
          10.2
  Delegation of Duties.





          The
Administrative Agent may execute any of its duties under this Credit Agreement
or any other Credit Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.


68






	
 

	
 


	
 

	
          10.3
  Exculpatory
  Provisions.





          No
Agent-Related Person shall (a) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Credit Agreement or any
other Credit Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
any Credit Party or any officer thereof, contained herein or in any other
Credit Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under
or in connection with, this Credit Agreement or any other Credit Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Credit Agreement or any other Credit Document, or for any failure of any Credit
Party or any other party to any Credit Document to perform its obligations
hereunder or thereunder. No Agent-Related Person shall be under any obligation
to any Lender or participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Credit Agreement or any other Credit Document, or to inspect the properties,
books or records of any Credit Party or any Affiliate thereof.


	
 

	
 


	
 

	
          10.4
  Reliance on Communications.


	
 

	
 


	
 

	
          (a)
  The Administrative Agent shall be entitled to rely, and shall be fully
  protected in relying, upon any writing, communication, signature, resolution,
  representation, notice, consent, certificate, affidavit, letter, telegram,
  facsimile, telex or telephone message, statement 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 counsel to any Credit Party),
  independent accountants and other experts selected by the Administrative
  Agent. The Administrative Agent may deem and treat each Lender as the owner
  of its interests hereunder for all purposes unless a written notice of
  assignment, negotiation or transfer thereof shall have been delivered to the
  Administrative Agent in accordance with Section 11.3(b). The Administrative
  Agent shall be fully justified in failing or refusing to take any action
  under any Credit Document unless it shall first receive such advice or
  concurrence of the Required Lenders as it deems appropriate and, if it so
  requests, 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. The Administrative
  Agent shall in all cases be fully protected in acting, or in refraining from
  acting, under this Credit Agreement or any other Credit Document in
  accordance with a request or consent of the Required Lenders or all the
  Lenders, if required hereunder, and such request and any action taken or
  failure to act pursuant thereto shall be binding upon all the Lenders and
  participants, and their respective successors and assigns. Where this Credit
  Agreement expressly permits or prohibits an action unless the Required
  Lenders otherwise determine, the Administrative Agent shall, and in all other
  instances, the Administrative Agent may, but shall not be required to,
  initiate any solicitation for the consent or a vote of the Lenders.


	
 

	
 


	
 

	
          (b)
  For purposes of determining compliance with the conditions specified in
  Section 5.1, each Lender that has signed this Credit Agreement shall be
  deemed to have 





69







	
 

	
 


	
 

	
consented
  to, approved or accepted or to be satisfied with, each document or other
  matter either sent by the Administrative Agent to such Lender for consent,
  approval, acceptance or satisfaction, or required thereunder to be consented
  to or approved by or acceptable or satisfactory to a Lender.


	
 

	
 


	
 

	
          10.5
  Notice of Default.





          The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to defaults
in the payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or the Borrower
referring to this Credit Agreement, describing such Default or Event of Default
and stating that such notice is a “notice of default.” The Administrative Agent
will notify the Lenders of its receipt of any such notice. The Administrative
Agent shall take such action with respect to such Default or Event of Default
as may be reasonably directed by the Required Lenders in accordance with Section
9.2; provided, however, that unless and until the Administrative
Agent has received any such direction, 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 or in
the best interest of the Lenders.


	
 

	
 


	
 

	
          10.6
  Non-Reliance on Administrative Agent and Other Lenders.





          Each
Lender acknowledges that no Agent-Related Person has made any representation or
warranty to it, and that no act by the Administrative Agent hereinafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of any Credit Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person 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, prospects, operations, Property, financial and
other condition and creditworthiness of the Credit Parties and their respective
Affiliates, and all applicable bank or other regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Credit Agreement and to extend credit to the Borrower hereunder. Each Lender
also represents that it will, independently and without reliance upon any
Agent-Related Person 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 Credit Agreement and the other Credit Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, Property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, Property, financial and other
condition or creditworthiness of any of the Credit Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.


70






                    10.7
Indemnification.


          To
the extent that the Borrower for any reason fails to indefeasibly pay any
amount required under Section 11.5 to be paid by it to the Administrative Agent
(or any sub-agent thereof), the Issuing Lender or any Agent-Related Person of
any of the foregoing, each Lender severally agrees to pay to the Administrative
Agent (or any such sub-agent), the Issuing Lender or such Agent-Related Person,
as the case may be, such Lender’s Revolving Loan Commitment Percentage and/or
Term Loan Commitment Loan Percentage, as applicable, (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent (or any such
sub-agent) or the Issuing Lender in its capacity as such, or against any
Agent-Related Person of any of the foregoing acting for the Administrative
Agent (or any such sub-agent) or Issuing Lender in connection with such
capacity. 


                    10.8
Administrative Agent in Its Individual Capacity.


          Bank
of America and its Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with each of the Credit Parties and their respective Affiliates as
though Bank of America were not the Administrative Agent hereunder and without
notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to
such activities, Bank of America or its Affiliates may receive information
regarding any Credit Party or its Affiliates (including information that may be
subject to confidentiality obligations in favor of such Credit Party or such
Affiliate) and that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Credit Agreement as any other
Lender and may exercise such rights and powers as though it were not the Administrative
Agent, and the terms “Lender” and “Lenders” include Bank of America in its
individual capacity.


                    10.9
Successor Agent.


          The
Administrative Agent may resign as Administrative Agent upon 30 days’ notice to
the Lenders. If the Administrative Agent resigns under this Credit Agreement,
the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders which successor administrative agent (such
appointment, absent the existence of an Event of Default, to be subject to the
consent of the Borrower, which consent of the Borrower shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Borrower, a successor administrative agent from among the Lenders. Upon
the acceptance of its appointment as successor administrative agent hereunder,
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term “Administrative Agent”
shall mean such successor administrative agent and the retiring Administrative
Agent’s appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent’s resignation hereunder as
Administrative Agent, the provisions of this Section 10 and Sections 11.5 and
11.10 shall continue to inure to its benefit as to any actions taken or omitted
to be taken 


71






by it while it
was Administrative Agent under this Credit Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 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 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.


                    10.10
Agent May File Proofs of Claim.


          In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Borrower or any of its Subsidiaries, the
Administrative Agent (irrespective of whether the principal of any Loan shall
then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise:


	
 

	
 


	
 

	
          (a)
  to file and prove a claim for the whole amount of the principal and interest
  owing and unpaid in respect of the Loans and all other Credit Party
  Obligations that are owing and unpaid and to file such other documents as may
  be necessary or advisable in order to have the claims of the Lenders and the
  Administrative Agent (including any claim for the reasonable compensation,
  expenses, disbursements and advances of the Lenders and the Administrative
  Agent and their respective agents and counsel and all other amounts due the
  Lenders and the Administrative Agent) allowed in such judicial proceeding;
  and


	
 

	
 


	
 

	
          (b)
  to collect and receive any monies or other property payable or deliverable on
  any such claims and to distribute the same;





and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender to make such
payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders, to
pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under the
Credit Documents.


          Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Credit
Party Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.


72







SECTION 11


MISCELLANEOUS


	
 

	
 

	
 


	
 

	
          11.1
Notices, Etc.  


	
 

	
 

	
 


	
 

	
          (a)
  General. Unless otherwise expressly provided herein, all notices and
  other communications provided for hereunder shall be in writing (including by
  facsimile transmission). All such written notices shall be mailed certified
  or registered mail, faxed or delivered to the applicable address, facsimile
  number or (subject to subsection (c) below) electronic mail address, and all
  notices and other communications expressly permitted hereunder to be given by
  telephone shall be made to the applicable telephone number, as follows: 


	
 

	
 

	
 


	
 

	
 

	
          (i)
  if to a Credit Party or the Administrative Agent to the address, facsimile
  number, electronic mail address or telephone number specified for such Person
  on Schedule 11.1 or to such other address, facsimile number,
  electronic mail address or telephone number as shall be designated by such
  party in a notice to the other parties; and 


	
 

	
 

	
 


	
 

	
 

	
          (ii)
  if to any other Lender, to the address, facsimile number, electronic mail
  address or telephone number specified in its administrative questionnaire
  provided by the Administrative Agent or to such other address, facsimile
  number, electronic mail address or telephone number as shall be designated by
  such party in a notice to such Credit Party and the Administrative Agent. 


	
 

	
 

	
 


	
 

	
          Notices
  sent by hand or overnight courier service, or mailed by certified or
  registered mail, shall be deemed to have been given when received; notices
  sent by facsimile shall be deemed to have been given when sent (except that,
  if not given during normal business hours for the recipient, shall be deemed
  to have been given at the opening of business on the next business day for
  the recipient). Notices delivered through electronic communications to the
  extent provided in subsection (b) below, shall be effective as provided in
  such subsection (b). 


	
 

	
 

	
 


	
 

	
          (b)
  Electronic Communications. Notices and other communications to the
  Lenders hereunder may be delivered or furnished by electronic communication
  (including e-mail and Internet or intranet websites) pursuant to procedures
  approved by the Administrative Agent, provided that the foregoing
  shall not apply to notices to any Lender pursuant to Section 2 if such Lender
  has notified the Administrative Agent that it is incapable of receiving
  notices under such Section 2 by electronic communication. The Administrative
  Agent or the Borrower may, in its discretion, agree to accept notices and
  other communications to it hereunder by electronic communications pursuant to
  procedures approved by it, provided that approval of such procedures
  may be limited to particular notices or communications. Unless the
  Administrative Agent otherwise prescribes, (i) notices and other communications
  sent to an e-mail address shall be deemed received upon the sender’s receipt
  of an acknowledgement from the intended recipient (such as by the “return
  receipt requested” function, as available, return e-mail or 





73







	
 

	
 


	
 

	
other
written acknowledgement), provided that if such notice or other communication
is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described
in the foregoing clause (i) of notification that such notice or communication
is available and identifying the website address therefor.  


	
 

	
 


	
 

	
          (c)
  The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE
  AGENT-RELATED PERSONS DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
  BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
  LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY
  OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
  PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY
  AGENT-RELATED PERSON IN CONNECTION WITH THE BORROWER MATERIALS OR THE
  PLATFORM. In no event shall the Agent-Related Persons have any liability to
  the Borrower, any Lender or any other Person for losses, claims, damages,
  liabilities or expenses of any kind (whether in tort, contract or otherwise)
  arising out of the Borrower’s or the Administrative Agent’s transmission of
  Borrower Materials through the Internet, except to the extent that such
  losses, claims, damages, liabilities or expenses are determined by a court of
  competent jurisdiction by a final and nonappealable judgment to have resulted
  from the gross negligence or willful misconduct of such Agent-Related Person;
  provided, however, that in no event shall any Agent-Related
  Person have any liability to the Borrower, any Lender or any other Person for
  indirect, special, incidental, consequential or punitive damages (as opposed
  to direct or actual damages). 


	
 

	
 


	
 

	
          (d)
Effectiveness of Facsimile Documents and Signatures. Credit Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable law, have the same
force and effect as manually-signed originals and shall be binding on the
Borrower, the Administrative Agent and the Lenders. The Administrative Agent
may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to
request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.  


	
 

	
 


	
 

	
          (e)
  Reliance by Administrative Agent and Lenders. The Administrative Agent
  and the Lenders shall be entitled to rely and act upon any notices (including
  telephonic notices) purportedly given by or on behalf of a Credit Party even
  if (i) such notices were not made in a manner specified herein, were
  incomplete or were not preceded or followed by any other form of notice specified
  herein, or (ii) the terms thereof, as understood by the recipient, varied
  from any confirmation thereof. The Credit Parties shall indemnify each
  Agent-Related Person and each Lender from all losses, costs, expenses and
  liabilities resulting from the reliance by such Person on each notice 





74







	
 

	
 


	
 

	
purportedly
  given by or on behalf of a Credit Party. All telephonic notices to and other
  communications with the Administrative Agent may be recorded by the
  Administrative Agent, and each of the parties hereto hereby consents to such
  recording. 


	
 

	
 


	
 

	
          (f)
  Change of Address, Etc. Each of the Borrower, the Administrative
  Agent, the Issuing Lender and the Swing Line Lender may change its address,
  telecopier or telephone number for notices and other communications hereunder
  by notice to the other parties hereto. Each other Lender may change its
  address, telecopier or telephone number for notices and other communications
  hereunder by notice to the Borrower, the Administrative Agent, the Issuing
  Lender and the Swing Line Lender. In addition, each Lender agrees to notify
  the Administrative Agent from time to time to ensure that the Administrative
  Agent has on record (i) an effective address, contact name, telephone number,
  telecopier number and electronic mail address to which notices and other
  communications may be sent and (ii) accurate wire instructions for such
  Lender. Furthermore, each Public Lender agrees to cause at least one
  individual at or on behalf of such Public Lender to at all times have selected
  the “Private Side Information” or similar designation on the content
  declaration screen of the Platform in order to enable such Public Lender or
  its delegate, in accordance with such Public Lender’s compliance procedures
  and applicable Law, including United States Federal and state securities
  Laws, to make reference to Borrower Materials that are not made available
  through the “Public Side Information” portion of the Platform and that may
  contain material non-public information with respect to the Borrower or its
  securities for purposes of United States Federal or state securities laws. 


	
 

	
 


	
 

	
          11.2 Right
  of Set-Off. 





          In
addition to any rights now or hereafter granted under applicable law or
otherwise, and not by way of limitation of any such rights, upon the occurrence
of an Event of Default and the commencement of remedies described in Section
9.2, each Lender is authorized at any time and from time to time, without
presentment, demand, protest or other notice of any kind (all of which rights
being hereby expressly waived), to set-off and to appropriate and apply any and
all deposits (general or special) and any other indebtedness at any time held
or owing by such Lender (including, without limitation, branches, agencies or
Affiliates of such Lender wherever located) to or for the credit or the account
of any Credit Party against obligations and liabilities of such Credit Party to
the Lenders hereunder, under the Notes, the other Credit Documents or
otherwise, irrespective of whether the Administrative Agent or the Lenders
shall have made any demand hereunder and although such obligations, liabilities
or claims, or any of them, may be contingent or unmatured, and any such set-off
shall be deemed to have been made immediately upon the occurrence of an Event
of Default even though such charge is made or entered on the books of such
Lender subsequent thereto. The Credit Parties hereby agree that any Person
purchasing a participation in the Loans and Commitments hereunder pursuant to
Sections 11.3(e) or 3.8 may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender hereunder. 


75







	
 

	
 


	
 

	
          11.3 Benefit
  of Agreement. 


	
 

	
 


	
 

	
          (a)
  Generally. The provisions of this Credit Agreement shall be binding
  upon and inure to the benefit of the parties hereto and their respective
  successors and assigns permitted hereby, except that the Borrower may not
  assign or otherwise transfer any of its rights or obligations hereunder
  without the prior written consent of each Lender and no Lender may assign or
  otherwise transfer any of its rights or obligations hereunder except (i) to
  an Eligible Assignee in accordance with the provisions of subsection (b) of
  this Section, (ii) by way of participation in accordance with the provisions
  of subsection (d) of this Section, (iii) by way of pledge or assignment of a
  security interest subject to the restrictions of subsection (f) of this
  Section or (iv) to an SPC in accordance with the provisions of subsection
  (g) of this Section (and any other attempted assignment or transfer by any
  party hereto shall be null and void). Nothing in this Credit Agreement,
  expressed or implied, shall be construed to confer upon any Person (other
  than the parties hereto, their respective successors and assigns permitted
  hereby, Loan Participants to the extent provided in subsection (d) of this
  Section and, to the extent expressly contemplated hereby, the Indemnitees)
  any legal or equitable right, remedy or claim under or by reason of this
  Credit Agreement. 


	
 

	
 


	
 

	
          (b)
Assignments by Lenders. Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Credit Agreement (including all or a portion of its Commitment and the Loans
at the time owing to it); provided that any such assignment shall be subject
to the following conditions:  








	
 

	
 

	
 


	
 

	
(i) Minimum
  Amounts.


	
 

	
 

	
 


	
 

	
 

	
(A) in the
  case of an assignment of the entire remaining amount of the assigning
  Lender’s Commitment and the Loans at the time owing to it or in the case of
  an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
  minimum amount need be assigned; and 


	
 

	
 

	
 


	
 

	
 

	
(B) in any
  case not described in subsection (b)(i)(A) of this Section, the aggregate
  amount of the Commitment (which for this purpose includes Loans outstanding
  thereunder) or if the Commitment is not then in effect, the principal
  outstanding balance of the Loans of the Assigning Lender subject to each such
  assignment, determined as of the date the Assignment and Assumption with
  respect to such assignment is delivered to the Administrative Agent or, if
  “Trade Date” is specified in the Assignment and Assumption, as of the Trade
  Date, shall not be less than $5,000,000 unless each of the Administrative
  Agent and, so long as no Event of Default has occurred and is continuing, the
  Borrower otherwise consents (each such consent not to be unreasonably
  withheld or delayed); provided, however, that concurrent
  assignments to members of an Assignee Group and concurrent assignments from
  members of an Assignee Group to a 





76







	
 

	
 

	
 


	
 

	
 

	
single
  Eligible Assignee (or to an Eligible Assignee and members of its Assignee
  Group) will be treated as a single assignment for purposes of determining
  whether such minimum amount has been met. 


	
 

	
 

	
 


	
 

	
          (ii)
  Proportionate Amounts. Each partial assignment shall be made as an
  assignment of a proportionate part of all the assigning Lender’s rights and
  obligations under this Agreement with respect to the Loans or the Commitment
  assigned. 


	
 

	
 

	
 


	
 

	
          (iii)
  Required Consents. No consent shall be required for any assignment
  except to the extent required by subsection (b)(i)(B) of this Section and as
  set forth below: 


	
 

	
 

	
 


	
 

	
 

	
(A) the
  consent of the Borrower (such consent not to be unreasonably withheld or
  delayed) shall be required unless (1) an Event of Default has occurred and is
  continuing at the time of such assignment or (2) such assignment is to a
  Lender, an Affiliate of a Lender or an Approved Fund; and 


	
 

	
 

	
 


	
 

	
 

	
(B) the
  consent of the Administrative Agent (such consent not to be unreasonably
  withheld or delayed) shall be required for assignments in respect of any
  Bridge Loan to a Person that is not a Lender, an Affiliate of a Lender or an
  Approved Fund. 


	
 

	
 

	
 


	
 

	
          (iv)
  Assignment and Assumption. The parties to each assignment shall
  execute and deliver to the Administrative Agent an Assignment and Assumption,
  together with a processing and recordation fee in the amount of $3,500; provided,
  however, that the Administrative Agent may, in its sole discretion,
  elect to waive such processing and recordation fee in the case of any
  assignment. The assignee, if it is not a Lender, shall deliver to the
  Administrative Agent an Administrative Questionnaire. 


	
 

	
 

	
 


	
 

	
          (v)
  No Assignment to Borrower. No such assignment shall be made to the
  Borrower or any of the Borrower’s Affiliates or Subsidiaries. 


	
 

	
 

	
 


	
 

	
          (vi)
  No Assignment to Natural Persons. No such assignment shall be made to
  a natural person. 





Subject to
acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.9, 3.12, 3.13, 3.14 and 11.5 with
respect to facts and circumstances 


77






occurring
prior to the effective date of such assignment). Upon request, the Borrower (at
its expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section. 


	
 

	
 


	
 

	
          (c)
  Register. The Administrative Agent, acting solely for this purpose as
  an agent of the Borrower, shall maintain at the Agency Service Address a copy
  of each Assignment and Assumption delivered to it and a register for the
  recordation of the names and addresses of the Lenders, and the Commitments
  of, and principal amounts of the Loans owing to, each Lender pursuant to the
  terms hereof from time to time (the “Register”). The entries in the
  Register shall be conclusive (absent manifest error), and the Borrower, the
  Administrative Agent and the Lenders may treat each Person whose name is
  recorded in the Register pursuant to the terms hereof as a Lender hereunder
  for all purposes of this Credit Agreement, notwithstanding notice to the
  contrary. The Register shall be available for inspection by the Borrower, at
  any reasonable time and from time to time upon reasonable prior notice. In
  addition, at any time that a request for a consent for a material or other
  substantive change to the Credit Documents is pending, any Lender wishing to
  consult with other Lenders in connection therewith may request and receive
  from the Administrative Agent a copy of the Register. 


	
 

	
 


	
 

	
          (d)
  Participations. Any Lender may at any time, without the consent of, or
  notice to, the Borrower or the Administrative Agent, sell participations to
  any Person (other than a natural person or the Borrower or any of the
  Borrower’s Affiliates or Subsidiaries or any competitor of the Borrower or
  any affiliate of a competitor of the Borrower) (each, a “Loan Participant”)
  in all or a portion of such Lender’s rights and/or obligations under this
  Credit Agreement (including all or a portion of its Commitments and/or the Loans;
  provided that (i) such Lender’s obligations under this Credit
  Agreement shall remain unchanged, (ii) such Lender shall remain solely
  responsible to the other parties hereto for the performance of such
  obligations and (iii) the Borrower, the Administrative Agent and the other
  Lenders shall continue to deal solely and directly with such Lender in
  connection with such Lender’s rights and obligations under this Credit
  Agreement. Any agreement or instrument pursuant to which a Lender sells such
  a participation shall provide that such Lender shall retain the sole right to
  enforce this Credit Agreement and to approve any amendment, modification or
  waiver of any provision of this Credit Agreement; provided that such
  agreement or instrument may provide that such Lender will not, without the
  consent of the Loan Participant, agree to any amendment, waiver or other
  modification that would change the amount, interest rate or maturity of the
  Loans or any other matter that requires unanimous consent of all of the Lenders.
  Subject to subsection (e) of this Section, the Borrower agrees that each Loan
  Participant shall be entitled to the benefits of Sections 3.9, 3.13 and 3.14 to the same extent as if it were a
  Lender and had acquired its interest by assignment pursuant to subsection (b)
  of this Section. To the extent permitted by law, each Loan Participant also
  shall be entitled to the benefits of Section 11.2 as though it were a Lender, provided such Loan
  Participant agrees to be subject to Section 3.8 as though it were a Lender. 





78







	
 

	
 


	
 

	
          (e)
  Loan Participant’s Rights. A Loan Participant shall not be entitled to
  receive any greater payment under Section 3.9 or 3.14 than the applicable Lender would have
  been entitled to receive with respect to the participation sold to such Loan
  Participant, unless the sale of the participation to such Loan Participant is
  made with the Borrower’s prior written consent. A Loan Participant that would
  be a foreign Lender if it were a Lender shall not be entitled to the benefits
  of Section 3.13 unless the Borrower is notified of the participation sold to
  such Loan Participant and such Loan Participant agrees, for the benefit of
  the Borrower, to comply with Section 3.13 as though it were a Lender. 


	
 

	
 


	
 

	
          (f)
  Unrestricted Assignments. Any Lender may at any time pledge or assign
  a security interest in all or any portion of its rights under this Credit
  Agreement (including under its Note(s), if any) to secure obligations of such
  Lender, including any pledge or assignment to secure obligations to a Federal
  Reserve Bank; provided that no such pledge or assignment shall release
  such Lender from any of its obligations hereunder or substitute any such
  pledgee or assignee for such Lender as a party hereto. 


	
 

	
 


	
 

	
          (g)
  Special Purpose Entities. Notwithstanding anything to the contrary
  contained herein, so long as any action in accordance with this Section
  11.3(g) does not cause increased costs or expenses for the Borrower, any
  Lender (a “Granting Lender”) may grant to a special purpose funding
  vehicle (an “SPC”) the option to fund all or any part of any Loan that
  such Granting Lender would otherwise be obligated to fund pursuant to this
  Credit Agreement; provided that (i) nothing herein shall constitute a
  commitment by any SPC to fund any Loan, (ii) if an SPC elects not to exercise
  such option or otherwise fails to fund all or any part of such Loan, the
  Granting Lender shall be obligated to fund such Loan pursuant to the terms
  hereof, (iii) no SPC shall have any voting rights pursuant to Section 11.6
  and (iv) with respect to notices, payments and other matters hereunder, the
  Borrower, the Administrative Agent and the Lenders shall not be obligated to
  deal with an SPC, but may limit their communications and other dealings
  relevant to such SPC to the applicable Granting Lender. The funding of a Loan
  by an SPC hereunder shall utilize the Commitment of the Granting Lender to
  the same extent that, and as if, such Loan were funded by such Granting
  Lender. Each party hereto hereby agrees that no SPC shall be liable for any
  indemnity or payment under this Credit Agreement for which a Lender would
  otherwise be liable for so long as, and to the extent, the Granting Lender
  provides such indemnity or makes such payment. Notwithstanding anything to
  the contrary contained in this Credit Agreement, any SPC may disclose any
  non-public information relating to its funding of Loans to any rating agency,
  commercial paper dealer or provider of any surety or guarantee to such SPC so
  long as such disclosure is clearly designated as being made on a confidential
  basis. This Section 11.3(g) may not be amended without the prior written
  consent of each Granting Lender, all or any part of whose Loan is being
  funded by an SPC at the time of such amendment. 


	
 

	
 


	
 

	
          (h)
  Electronic Execution of Assignments. The words “execution,” “signed,”
  “signature,” and words of like import in any Assignment and Assumption shall
  be deemed to include electronic signatures or the keeping of records in
  electronic form, each of which shall be of the same legal effect, validity or
  enforceability as a manually 





79







	
 

	
 

	
 


	
 

	
executed
  signature or the use of a paper-based recordkeeping system, as the case may
  be, to the extent and as provided for in any applicable law, including the
  Federal Electronic Signatures in Global and National Commerce Act, the New
  York State Electronic Signatures and Records Act, or any other similar state
  laws based on the Uniform Electronic Transactions Act. 


	
 

	
 

	
 


	
 

	
          11.4 No
  Waiver; Remedies Cumulative. 


	
 

	
 

	
 


	
          No
  failure or delay on the part of the Administrative Agent or any Lender in
  exercising any right, power or privilege hereunder or under any other Credit
  Document and no course of dealing between the Borrower or any Credit Party
  and the Administrative Agent or any Lender shall operate as a waiver thereof;
  nor shall any single or partial exercise of any right, power or privilege
  hereunder or under any other Credit Document preclude any other or further
  exercise thereof or the exercise of any other right, power or privilege
  hereunder or thereunder. The rights and remedies provided herein are
  cumulative and not exclusive of any rights or remedies which the
  Administrative Agent or any Lender would otherwise have. No notice to or
  demand on any Credit Party in any case shall entitle any Credit Party to any
  other or further notice or demand in similar or other circumstances or
  constitute a waiver of the rights of the Administrative Agent or the Lenders
  to any other or further action in any circumstances without notice or demand.
  


	
 

	
 

	
 


	
 

	
          11.5 Payment
  of Expenses; Indemnification. 


	
 

	
 

	
 


	
 

	
          (a)
  The Borrower shall pay on demand: 


	
 

	
 

	
 


	
 

	
 

	
          (i)
  any and all attorneys’ fees and disbursements and out-of-pocket costs and
  expenses incurred by the Administrative Agent in connection with the
  development, drafting, negotiation and administration of the Credit
  Documents, any amendments thereto and the syndication and closing of the
  transactions contemplated thereby; and 


	
 

	
 

	
 


	
 

	
 

	
          (ii)
  all costs and expenses (including fees and disbursements of in-house and
  other attorneys, appraisers and consultants) incurred by the Agents or the
  Lenders in any workout, restructuring or similar arrangements or, after an
  Event of Default, in connection with the protection, preservation, exercise
  or enforcement of any of the terms of the Credit Documents or in connection
  with any foreclosure, collection or bankruptcy proceedings. 


	
 

	
 

	
 


	
          The
foregoing costs and expenses shall include all out-of-pocket expenses
incurred by the Administrative Agent and the cost of independent public
accountants and other outside experts retained by the Administrative Agent or
any Lender. If requested by the Borrower, the Administrative Agent or a
Lender, as applicable, will furnish to the Borrower, within ten Business Days
of such request, a certificate setting forth the basis in reasonable detail
with respect to any amounts requested under this Section 11.5(a). All amounts
due under this Section 11.5(a) shall be payable within twenty Business
Days after demand therefor. The agreements in this Section shall survive the
termination of the Commitments and repayment of all Credit Party Obligations. 



	
 

	
 

	
 


	
 

	
          (b)
  Indemnification. 





80







	
 

	
 


	
 

	
          (i)
  Whether or not the transactions contemplated hereby are consummated, the
  Borrower shall indemnify and hold harmless each Agent-Related Person, each
  Lender and their respective Affiliates, directors, officers, employees,
  counsel, agents and attorneys-in-fact (collectively the “Indemnitees”)
  from and against any and all liabilities, obligations, losses, damages,
  penalties, claims, demands, actions, judgments, suits, costs, expenses and
  disbursements (including attorney costs) of any kind or nature whatsoever
  which may at any time be imposed on, incurred by or asserted against any such
  Indemnitee in any way relating to or arising out of or in connection with (A)
  the execution, delivery, enforcement, performance or administration of any
  Credit Document or any other agreement, letter or instrument delivered in
  connection with the transactions contemplated thereby or the consummation of
  the transactions contemplated thereby, (B) any Commitment or Loan or the use
  or proposed use of the proceeds therefrom, (C) any actual or alleged presence
  or release of hazardous materials on or from any property currently or
  formerly owned or operated by the Borrower or any of its Subsidiaries or any
  environmental liability related in any way to the Borrower or any of its
  Subsidiaries or (D) any actual or prospective claim, litigation,
  investigation or proceeding relating to any of the foregoing, whether based
  on contract, tort or any other theory (including any investigation of,
  preparation for, or defense of any pending or threatened claim, investigation,
  litigation or proceeding) and regardless of whether any Indemnitee is a party
  thereto (all the foregoing, collectively, the “Indemnified Liabilities”);
  provided that such indemnity shall not, as to any Indemnitee, be
  available to the extent that such liabilities, obligations, losses, damages,
  penalties, claims, demands, actions, judgments, suits, costs, expenses or
  disbursements are determined by a final nonappealable judgment of a court of
  competent jurisdiction to have resulted from the gross negligence, willful
  misconduct or bad faith of such Indemnitee. No Indemnitee shall be liable for
  any damages arising from the use by others of any information or other
  materials obtained through IntraLinks or other similar information
  transmission systems in connection with this Credit Agreement, nor shall any
  Indemnitee have any liability for any indirect or consequential damages
  relating to this Credit Agreement or any other Credit Document or arising out
  of its activities in connection herewith or therewith (whether before or
  after the Closing Date). All amounts due under this Section 11.5(b)
  shall be payable within ten Business Days after demand therefor. The
  agreements in this Section shall survive the resignation of the
  Administrative Agent, the replacement of any Lender, the termination of the
  Commitments and the repayment, satisfaction or discharge of all the Credit
  Party Obligations. 


	
 

	
 


	
 

	
          (ii)
  To the extent that the undertaking to indemnify and hold harmless set forth
  in Section 11.5(b)(i) may be unenforceable as violative of any applicable law
  or public policy, the Borrower shall make the maximum contribution to the
  payment and satisfaction of each of the Indemnified Liabilities that is
  permissible under applicable law. 





81







	
 

	
 


	
 

	
          11.6 Amendments,
  Waivers and Consents. 


	
 

	
 


	
          Neither
  this Credit Agreement nor any other Credit Document nor any of the terms
  hereof or thereof may be amended, changed, waived, discharged or terminated
  unless such amendment, change, waiver, discharge or termination is in writing
  and signed by the Required Lenders and the then Credit Parties; provided
  that no such amendment, change, waiver, discharge or termination shall
  without the consent of each Lender affected thereby: 


	
 

	
 


	
 

	
          (a)
  extend the Maturity Date or extend or postpone the time for any payment or
  prepayment of principal of any Loan; 


	
 

	
 


	
 

	
          (b)
  reduce the rate or amount or extend the time of payment of interest (other
  than as a result of waiving the applicability of any post-default increase in
  interest rates) thereon or fees hereunder; 


	
 

	
 


	
 

	
          (c)
  reduce or waive the principal amount of any Loan; 


	
 

	
 


	
 

	
          (d)
  increase or extend the Commitment of a Lender (it being understood and agreed
  that a waiver of any Default or Event of Default or a waiver of any mandatory
  reduction in the Commitments shall not constitute a change in the terms of
  any Commitment of any Lender); 


	
 

	
 


	
 

	
          (e)
  release the Borrower from its obligations or consent to the assignment or
  transfer by the Borrower of any of its rights and obligations under (or in
  respect of) the Credit Documents or release (i) all or substantially all of
  the Guarantors from their respective obligations under the Credit Documents
  or (ii) any material Guaranty; 


	
 

	
 


	
 

	
          (f)
  amend, modify or waive any provision of this Section 11.6 or Section 3.4(a),
  3.4(b)(i), 3.7 (or any other provision providing for the pro rata nature of
  payments or disbursements to Lenders), 3.8, 9.1(a), 11.2, 11.3 or 11.5; or 


	
 

	
 


	
 

	
          (g)
  reduce any percentage specified in, or otherwise modify, the definition of
  Required Lenders. 





Notwithstanding
the above, no provisions of Section 10 may be amended or modified without the
consent of the Administrative Agent. 


Notwithstanding
the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (x) each Lender is entitled to vote as such
Lender sees fit on any reorganization plan that affects the Loans, and each
Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy
Code supersedes the unanimous consent provisions set forth herein and (y) the
Required Lenders may consent to allow a Credit Party to use cash collateral in
the context of a bankruptcy or insolvency proceeding. 


If, in
connection with any proposed amendment, waiver or consent requiring the consent
of a greater percentage of the Lenders than the Required Lenders and the
consent of the Required Lenders is obtained, but the consent of one or more
other Lenders is not obtained (any such Lender which declares in writing that
it will not provide such consent or whose consent is not obtained within the 


82






applicable
period prescribed for such amendment, waiver or consent being referred to
herein as a “Non-Consenting Lender”), then, so long as the
Administrative Agent is not a Non-Consenting Lender, the Borrower may within 45
days of such Lender becoming a Non-Consenting Lender, give notice in writing to
the Administrative Agent and such Non-Consenting Lender of the Borrower’s
intention to cause such Non-Consenting Lender to sell all of such
Non-Consenting Lenders’ interests in its Commitments for an amount equal to the
principal balances thereof and all accrued interest and fees with respect
thereto through the date of sale pursuant to one or more Assignment and
Acceptance Agreements, such sale being without premium or discount. In the
event of any such notice, such Non-Consenting Lender shall be required to sell
and assign such interests (including all related rights and obligations ) as
provided in this Section. Any such sale of a Non-Consenting Lender’s
Commitments must be to an Eligible Assignee and, unless otherwise agreed to by
the Administrative Agent, the Borrower shall be solely responsible for sourcing
such Eligible Assignee, at no cost or expense to the Administrative Agent or
any Lender. Any such assignment to an Eligible Assignee pursuant to this
Section shall be in accordance with clause (b)(iv) of Section 11.3. At any time
during or after the period during which a proposed amendment, waiver or consent
was pending, upon the request of the Borrower the Administrative Agent shall
promptly provide (but in any event within one Business Day) the Borrower with
the names, contact information, Commitment percentages, principal balances and
any other information reasonably requested for each Lender which, at the time
of such request, was either a Non-Consenting Lender or had not yet decided
whether or not to approve or consent to such amendment, waiver or consent. 


                    11.7
Counterparts. 


          This
Credit Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. 


                    11.8
Headings. 


          The
headings of the sections and subsections hereof are provided for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Credit Agreement. 


                    11.9
Defaulting Lender. 


          Each
Lender understands and agrees that if such Lender is a Defaulting Lender then
notwithstanding the provisions of Section 11.6 it shall not be entitled to vote
on any matter requiring the consent of the Required Lenders or to object to any
matter requiring the consent of all the Lenders; provided, however,
that all other benefits and obligations under the Credit Documents shall apply
to such Defaulting Lender. 


                    11.10
Survival of Indemnification. 


          All
indemnities set forth herein shall survive the execution and delivery of this
Credit Agreement, the making of the Loans and the repayment of the Loans and
other obligations and the termination of the Commitments hereunder. All
representations and warranties made hereunder and in any other Credit Document
or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon
by the Administrative Agent and 


83






each Lender,
regardless of any investigation made by the Administrative Agent or any Lender
or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default at the time of any
Extension of Credit, and shall continue in full force and effect as long as any
Loan or any other Credit Party Obligation hereunder shall remain unpaid or
unsatisfied. 


                    11.11
Governing Law; Venue; Jurisdiction. 


	
 

	
 


	
 

	
          (a)
  THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
  OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
  CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
  YORK. Any legal action or proceeding with respect to this Credit Agreement or
  any other Credit Document may be brought in the courts of the State of New
  York or of the United States sitting in New York City, and, by execution and
  delivery of this Credit Agreement, each Credit Party hereby irrevocably
  accepts for itself and in respect of its Property, generally and
  unconditionally, the jurisdiction of such courts. Each Credit Party
  irrevocably consents to the service of process in any action or proceeding
  with respect to this Credit Agreement or any other Credit Document by the
  mailing of copies thereof by registered or certified mail, postage prepaid,
  to it at the address for notices pursuant to Section 11.1, such service to
  become effective 10 days after such mailing. Nothing herein shall affect the
  right of a Lender to serve process in any other manner permitted by law or to
  commence legal proceedings or otherwise proceed against a Credit Party in any
  other jurisdiction. Each Credit Party agrees that a final judgment in any
  action or proceeding shall be conclusive and may be enforced in other
  jurisdictions by suit on the judgment or in any other manner provided by law;
  provided that nothing in this Section 11.11(a) is intended to impair a Credit
  Party’s right under applicable law to appeal or seek a stay of any judgment. 


	
 

	
 


	
 

	
          (b)
  Each Credit Party hereby irrevocably waives any objection which it may now or
  hereafter have to the laying of venue of any of the aforesaid actions or
  proceedings arising out of or in connection with this Credit Agreement or any
  other Credit Document in the courts referred to in subsection (a) hereof and
  hereby further irrevocably waives and agrees not to plead or claim in any
  such court that any such action or proceeding brought in any such court has
  been brought in an inconvenient forum. 





                    11.12
Waiver of Jury Trial; Waiver of Consequential Damages. 


          EACH
OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED 


84






TO ENTER INTO
THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. Each Credit Party agrees not
to assert any claim against the Administrative Agent, the Issuing Lenders, any
Lender, any of their Affiliates, or any of their respective directors,
officers, employees, attorneys or agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or
otherwise relating to any of the transactions contemplated herein. 


                    11.13
Severability. 


          If
any provision of any of the Credit Documents is determined to be illegal,
invalid or unenforceable, such provision shall be fully severable and the
remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions. 


                    11.14
Further Assurances. 


          The
Credit Parties agree, upon the request of the Administrative Agent, to promptly
take such actions, as reasonably requested, as is necessary to carry out the
intent of this Credit Agreement and the other Credit Documents. 


                    11.15
Confidentiality. 


          Each
of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and
representatives, excluding equity security departments and their members (it
being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other
Credit Document or any action or proceeding relating to this Credit Agreement
or any other Credit Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Loan Participant in,
or any prospective assignee of or Loan Participant in, any of its rights or
obligations under this Credit Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to a Credit Party and its obligations, (g) with the consent of the Borrower or
(h) to the extent such Information (x) becomes publicly available other than as
a result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower. In addition, the
Administrative Agent and the Lenders may disclose the existence of this Credit
Agreement and information about this Credit Agreement to market data
collectors, similar service providers to the lending industry and service
providers to the Administrative Agent and the Lenders in connection with the
administration and management of this Credit Agreement, the other Credit
Documents and the Loans. 


85






For purposes
of this Section, “Information” means all information received from the Borrower
or any of its Subsidiaries relating to the Borrower or any Subsidiary or any of
their respective businesses, other than any such information that is available
to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure
by the Borrower or any Subsidiary, provided that, in the case of
information received from the Borrower or any Subsidiary after the date hereof,
such information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information. In addition, the Administrative
Agent may disclose to any agency or organization that assigns standard
identification numbers to loan facilities such basic information describing the
facilities provided hereunder as is necessary to assign unique identifiers
(and, if requested, supply a copy of this Credit Agreement), it being
understood that the Person to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to make available to
the public only such Information as such person normally makes available in the
course of its business of assigning identification numbers. Each of the
Administrative Agent and the Lenders acknowledges that (a) the Information may
include material non-public information concerning the Borrower or a
Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle
such material non-public information in accordance with applicable law,
including federal and state securities laws. 


                    11.16
Entirety. 


          This
Credit Agreement together with the other Credit Documents and the Fee Letter
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein. 


                    11.17
Binding Effect; Continuing Agreement. 


	
 

	
 


	
 

	
          (a)
  This Credit Agreement shall become effective at such time when all of the
  conditions set forth in Section 5.1 have been satisfied or waived by the
  Lenders and it shall have been executed by the Borrower, the Guarantors and
  the Administrative Agent, and the Administrative Agent shall have received
  copies hereof (telefaxed or otherwise) which, when taken together, bear the
  signatures of each Lender, and thereafter this Credit Agreement shall be
  binding upon and inure to the benefit of the Borrower, the Guarantors, the
  Administrative Agent and each Lender and their respective successors and
  assigns. 


	
 

	
 


	
 

	
          (b)
  This Credit Agreement shall be a continuing agreement and shall remain in
  full force and effect until all Loans, interest, fees and other Credit Party
  Obligations have been paid in full and all Commitments have been terminated.
  Upon termination, the Credit Parties shall have no further obligations (other
  than the indemnification provisions that survive) under the Credit Documents;
  provided that should any payment, in whole or in part, of the Credit
  Party Obligations be rescinded or otherwise required to be restored or
  returned by the Administrative Agent or any Lender, whether as a result of
  any 





86







	
 

	
 


	
 

	
proceedings
  in bankruptcy or reorganization or otherwise, then the Credit Documents shall
  automatically be reinstated and all amounts required to be restored or
  returned and all costs and expenses incurred by the Administrative Agent or
  any Lender in connection therewith shall be deemed included as part of the
  Credit Party Obligations. 





                    11.18
USA Patriot Act Notice. 


          Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act. 


                    11.19
No Advisory or Fiduciary Responsibility. 


          In
connection with all aspects of each transaction contemplated hereby (including
in connection with any amendment, waiver or other modification hereof or of any
other Credit Document), the Borrower and each Guarantor acknowledges and
agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the
Administrative Agent and the Lead Arrangers are arm’s-length commercial
transactions between the Borrower, each Guarantor and their respective
Affiliates, on the one hand, and the Administrative Agent and the Lead
Arrangers, on the other hand, (B) each of the Borrower and the Guarantors has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it has deemed appropriate, and (C) the Borrower and each Guarantor is capable
of evaluating, and understands and accepts, the terms, risks and conditions of
the transactions contemplated hereby and by the other Credit Documents; (ii)
(A) each of the Administrative Agent and the Lead Arrangers is and has been
acting solely as a principal and, except as expressly agreed in writing by the
relevant parties, has not been, is not, and will not be acting as an advisor,
agent or fiduciary for the Borrower, any Guarantor or any of their respective
Affiliates, or any other Person and (B) neither the Administrative Agent nor
either Lead Arranger has any obligation to the Borrower, the Guarantors or any
of their respective Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other
Credit Documents; and (iii) the Administrative Agent and the Lead Arrangers and
their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower, the Guarantors and
their respective Affiliates, and neither the Administrative Agent either Lead
Arranger has any obligation to disclose any of such interests to the Borrower,
any Guarantor or any of their respective Affiliates, it being understood that
nothing in the Credit Documents is in any way intended to limit the scope of
the engagement of Morgan Stanley & Co. Incorporated or the obligations of
Morgan Stanley & Co. Incorporated pursuant to its engagement by you as
financial advisor in connection with the Acquisition, or your rights and
remedies in connection therewith. 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


87







          Each
of the parties hereto has caused a counterpart of this Bridge Credit Agreement
to be duly executed and delivered as of the date first above written.


BORROWER:


	
 

	
 

	
 

	
 


	
 

	
QUEST DIAGNOSTICS INCORPORATED,

  a Delaware corporation


	
 

	
 

	
 

	
 


	
 

	
By:

	
/s/ Joseph
  P. Manory

	
 


	
 

	
 

	


	
 


	
 

	
Name:

	
Joseph P.
  Manory

	
 


	
 

	
Title:

	
Vice President
  and Treasurer

	
 










Signature Page to Bridge Credit Agreement

Quest Diagnostics Incorporated


GUARANTORS:


	
 

	
 


	
 

	
AMERICAN MEDICAL LABORATORIES, INCORPORATED,


	
 

	
a Delaware
  corporation


	
 

	
 


	
 

	
AML INC.,


	
 

	
a Delaware
  corporation


	
 

	
 


	
 

	
APL PROPERTIES LIMITED LIABILITY COMPANY,


	
 

	
a Nevada
  limited liability company


	
 

	
 


	
 

	
CENTRAL PLAINS HOLDINGS, INC.,


	
 

	
a Kansas corporation


	
 

	
 


	
 

	
CENTRAL PLAINS LABORATORIES, LLC,


	
 

	
a Kansas
  limited liability company


	
 

	
 


	
 

	
DIAGNOSTIC REFERENCE SERVICES INC.,


	
 

	
a Maryland
  corporation


	
 

	
 


	
 

	
DPD HOLDINGS INC.,


	
 

	
a Delaware
  corporation


	
 

	
 


	
 

	
ENTERIX INC.,


	
 

	
a Delaware
  corporation


	
 

	
 


	
 

	
EXAMONE WORLD WIDE, INC.,


	
 

	
a Pennsylvania
  corporation


	
 

	
 


	
 

	
EXAMONE WORLD WIDE OF NJ, INC.,


	
 

	
a New Jersey
  corporation


	
 

	
 


	
 

	
FNA CLINICS OF AMERICA, INC., 


	
 

	
a Delaware
  corporation


	
 

	
 


	
 

	
FOCUS DIAGNOSTICS, INC.,


	
 

	
a Delaware
  corporation


	
 

	
 


	
 

	
FOCUS TECHNOLOGIES HOLDINGS COMPANY,


	
 

	
a Delaware
  corporation


	
 

	
 


	
 

	
LABONE, INC.,


	
 

	
a Missouri
  corporation


	
 

	
 


	
 

	
LABONE OF OHIO, INC.,


	
 

	
a Delaware
  corporation










Signature Page to Bridge Credit Agreement

Quest Diagnostics Incorporated


	
 

	
 


	
 

	
MEDPLUS, INC.,


	
 

	
an Ohio
  corporation


	
 

	
 


	
 

	
METWEST INC.,


	
 

	
a Delaware
  corporation


	
 

	
 


	
 

	
NICHOLS INSTITUTE DIAGNOSTICS,


	
 

	
a California
  corporation


	
 

	
 


	
 

	
OSBORN GROUP INC.,


	
 

	
a Delaware
  corporation


	
 

	
 


	
 

	
QUEST DIAGNOSTICS CLINICAL LABORATORIES, INC.,


	
 

	
a Delaware corporation


	
 

	
 


	
 

	
QUEST DIAGNOSTICS
  HOLDINGS INCORPORATED,


	
 

	
a Delaware corporation


	
 

	
 


	
 

	
QUEST DIAGNOSTICS
  NICHOLS INSTITUTE,


	
 

	
a California corporation


	
 

	
 


	
 

	
QUEST DIAGNOSTICS
  INCORPORATED,


	
 

	
a Maryland corporation


	
 

	
 


	
 

	
QUEST DIAGNOSTICS
  INCORPORATED,


	
 

	
a Michigan corporation


	
 

	
 


	
 

	
QUEST DIAGNOSTICS
  INCORPORATED,


	
 

	
a Nevada corporation


	
 

	
 


	
 

	
QUEST DIAGNOSTICS
  LLC,


	
 

	
a Connecticut limited liability company


	
 

	
 


	
 

	
QUEST DIAGNOSTICS
  LLC,


	
 

	
an Illinois limited liability company


	
 

	
 


	
 

	
QUEST DIAGNOSTICS
  LLC,


	
 

	
a Massachusetts limited liability company


	
 

	
 


	
 

	
QUEST DIAGNOSTICS
  NICHOLS INSTITUTE, INC.,


	
 

	
a Virginia corporation










Signature Page to Bridge Credit Agreement

Quest Diagnostics Incorporated


	
 

	
 

	
 


	
 

	
QUEST DIAGNOSTICS
  OF PENNSYLVANIA, INC.,


	
 

	
a Delaware corporation


	
 

	
 


	
 

	
SYSTEMATIC BUSINESS
  SERVICES, INC.,


	
 

	
a Missouri corporation


	
 

	
 


	
 

	
UNILAB CORPORATION,


	
 

	
a Delaware corporation


	
 

	
 


	
 

	
By:

	
/s/ Joseph
  P. Manory


	
 

	
 

	



	
 

	
Name:

	
Joseph P.
  Manory


	
 

	
Title:

	
Vice
  President and Treasurer

  of each of the above Guarantors


	
 

	
 

	
 


	
 

	
PATHOLOGY BUILDING PARTNERSHIP,
a Maryland general partnership


	
 

	
 

	
 


	
 

	
By:

	
Quest
  Diagnostics Incorporated, a Maryland

  corporation, its general partner


	
 

	
 

	
 


	
 

	
By:

	
/s/ Joseph
  P. Manory


	
 

	
 

	



	
 

	
Name:

	
Joseph P.
  Manory


	
 

	
Title:

	
Vice
  President and Treasurer


	
 

	
 

	
 


	
 

	
By:

	
Diagnostic
  Reference Services Inc., a Maryland 

  corporation, its general partner


	
 

	
 

	
 


	
 

	
By:

	
/s/ Joseph
  P. Manory


	
 

	
 

	



	
 

	
Name:

	
Joseph P.
  Manory


	
 

	
Title:

	
Vice
  President and Treasurer


	
 

	
 

	
 


	
 

	
QUEST DIAGNOSTICS
  INVESTMENTS INCORPORATED,


	
 

	
a Delaware corporation


	
 

	
 

	
 


	
 

	
By:

	
/s/ Stephen
  A. Calamari


	
 

	
 

	



	
 

	
Name:

	
Stephen A.
  Calamari


	
 

	
Title:

	
Treasurer


	
 

	
 

	
 


	
 

	
QUEST DIAGNOSTICS FINANCE INCORPORATED,
a Delaware corporation


	
 

	
 

	
 


	
 

	
By:

	
/s/ Stephen
  A. Calamari


	
 

	
 

	



	
 

	
Name:

	
Stephen A.
  Calamari


	
 

	
Title:

	
Treasurer










Signature Page to Bridge Credit Agreement

Quest Diagnostics Incorporated


LENDERS:


	
 

	
 

	
 


	
 

	
BANK OF AMERICA, N.A.,
individually in its capacity as Administrative Agent


	
 

	
 

	
 


	
 

	
By:

	
/s/ Craig
  Murlless


	
 

	
 

	



	
 

	
Name:

	
Craig
  Murlless


	
 

	
Title:

	
Senior Vice
  President


	
 

	
 

	
 


	
 

	
BANK OF AMERICA, N.A.,
individually in its capacity as a Lender


	
 

	
 

	
 


	
 

	
By:

	
/s/ Craig
  Murlless


	
 

	
 

	



	
 

	
Name:

	
Craig
  Murlless


	
 

	
Title:

	
Senior Vice
  President


	
 

	
 

	
 


	
 

	
MORGAN STANLEY SENIOR FUNDING, INC.
as a Lender,


	
 

	
 

	
 


	
 

	
By:

	
/s/ Anish
  Shah


	
 

	
 

	



	
 

	
Name:

	
Anish Shah


	
 

	
Title:

	
Vice
  President


	
 

	
 

	
 


	
 

	
MERRILL LYNCH BANK USA


	
 

	
 

	
 


	
 

	
By:

	
/s/ Louis
  Alder


	
 

	
 

	



	
 

	
Name:

	
Louis Alder


	
 

	
Title:

	
Director