Exhibit 10.1


Published CUSIP Number:  74834QAC3  


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

	
 

	
27


	
1.3

	
 

	
Accounting
  Terms/Calculation of Financial Covenants

	
 

	
27


	
1.4

	
 

	
Time

	
 

	
28


	
1.5

	
 

	
Rounding

	
 

	
28


	
1.6

	
 

	
Exchange
  Rates; Currency Equivalents

	
 

	
28


	
1.7

	
 

	
Additional
  Alternative Currencies

	
 

	
29


	
1.8

	
 

	
Change of
  Currency

	
 

	
29


	
1.9

	
 

	
References
  to Agreements and Laws

	
 

	
30


	
1.10

	
 

	
Letter of
  Credit Amounts

	
 

	
30


	
SECTION 2

	
CREDIT FACILITIES

	
 

	
30


	
2.1

	
 

	
Term Loans

	
 

	
30


	
2.2

	
 

	
Revolving
  Loans

	
 

	
31


	
2.3

	
 

	
Letter of
  Credit Subfacility

	
 

	
35


	
2.4

	
 

	
Swing Line
  Loans Subfacility

	
 

	
41


	
2.5

	
 

	
Competitive
  Bid Loans Subfacility

	
 

	
42


	
2.6

	
 

	
[Intentionally
  Omitted]

	
 

	
45


	
2.7

	
 

	
Continuations
  and Conversions

	
 

	
45


	
2.8

	
 

	
Minimum
  Amounts

	
 

	
45


	
SECTION 3

	
GENERAL PROVISIONS APPLICABLE TO LOANS AND
  LETTERS OF CREDIT

	
 

	
46


	
3.1

	
 

	
Interest

	
 

	
46


	
3.2

	
 

	
Place and
  Manner of Payments

	
 

	
46


	
3.3

	
 

	
Prepayments

	
 

	
47


	
3.4

	
 

	
Fees

	
 

	
48


	
3.5

	
 

	
Payment in
  full at Maturity

	
 

	
50


	
3.6

	
 

	
Computations
  of Interest and Fees

	
 

	
50


	
3.7

	
 

	
Pro Rata
  Treatment

	
 

	
51


	
3.8

	
 

	
Sharing of
  Payments

	
 

	
52


	
3.9

	
 

	
Capital
  Adequacy/Regulation D

	
 

	
53


	
3.10

	
 

	
Inability To
  Determine Interest Rate

	
 

	
53


	
3.11

	
 

	
Illegality

	
 

	
53


	
3.12

	
 

	
Requirements
  of Law

	
 

	
54


	
3.13

	
 

	
Taxes

	
 

	
54


	
3.14

	
 

	
Compensation

	
 

	
57


	
3.15

	
 

	
Determination
  and Survival of Provisions

	
 

	
58


	
3.16

	
 

	
Notification
  by Lenders

	
 

	
58


	
3.17

	
 

	
Mitigation;
  Mandatory Assignment

	
 

	
59


	
SECTION 4

	
GUARANTY

	
 

	
59


	
4.1

	
 

	
Guaranty of
  Payment

	
 

	
59


	
4.2

	
 

	
Obligations
  Unconditional

	
 

	
59


	
4.3

	
 

	
Modifications

	
 

	
60





i






TABLE OF CONTENTS

(continued)


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	
 


	
4.4

	
 

	
Waiver of
  Rights

	
 

	
61


	
4.5

	
 

	
Reinstatement

	
 

	
61


	
4.6

	
 

	
Remedies

	
 

	
61


	
4.7

	
 

	
Limitation
  of Guaranty

	
 

	
61


	
4.8

	
 

	
Rights of
  Contribution

	
 

	
62


	
4.9

	
 

	
Release of
  Guarantors

	
 

	
62


	
SECTION 5

	
CONDITIONS PRECEDENT

	
 

	
62


	
5.1

	
 

	
Closing
  Conditions to Extensions of Credit Made on the Closing Date

	
 

	
62


	
5.2

	
 

	
Conditions
  to All Other Extensions of Credit

	
 

	
64


	
SECTION 6

	
REPRESENTATIONS AND WARRANTIES

	
 

	
65


	
6.1

	
 

	
Organization
  and Good Standing

	
 

	
65


	
6.2

	
 

	
Due
  Authorization

	
 

	
66


	
6.3

	
 

	
Enforceable
  Obligations

	
 

	
66


	
6.4

	
 

	
No Conflicts

	
 

	
66


	
6.5

	
 

	
Consents

	
 

	
66


	
6.6

	
 

	
Financial
  Condition

	
 

	
67


	
6.7

	
 

	
Intentionally
  Omitted

	
 

	
67


	
6.8

	
 

	
Disclosure

	
 

	
67


	
6.9

	
 

	
No Default

	
 

	
67


	
6.10

	
 

	
Litigation

	
 

	
67


	
6.11

	
 

	
Taxes

	
 

	
67


	
6.12

	
 

	
Compliance
  with Law

	
 

	
68


	
6.13

	
 

	
Licensing
  and Accreditation

	
 

	
68


	
6.14

	
 

	
Title to
  Properties, Liens

	
 

	
69


	
6.15

	
 

	
Insurance

	
 

	
69


	
6.16

	
 

	
Use of
  Proceeds

	
 

	
69


	
6.17

	
 

	
Government
  Regulation

	
 

	
69


	
6.18

	
 

	
ERISA

	
 

	
69


	
6.19

	
 

	
Environmental
  Matters

	
 

	
70


	
6.20

	
 

	
Intellectual
  Property

	
 

	
71


	
6.21

	
 

	
Subsidiaries

	
 

	
72


	
6.22

	
 

	
Solvency

	
 

	
72


	
6.23

	
 

	
Taxpayer
  Identification Number

	
 

	
72


	
SECTION 7

	
AFFIRMATIVE COVENANTS

	
 

	
72


	
7.1

	
 

	
Information
  Covenants

	
 

	
72


	
7.2

	
 

	
Financial
  Covenants

	
 

	
76


	
7.3

	
 

	
Preservation
  of Existence and Franchises

	
 

	
76


	
7.4

	
 

	
Books and
  Records

	
 

	
77


	
7.5

	
 

	
Compliance
  with Law

	
 

	
77


	
7.6

	
 

	
Payment of
  Taxes and Other Indebtedness

	
 

	
77


	
7.7

	
 

	
Insurance

	
 

	
78


	
7.8

	
 

	
Maintenance
  of Property

	
 

	
78


	
7.9

	
 

	
Performance
  of Obligations

	
 

	
78





ii






TABLE OF CONTENTS

(continued)


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Page


	
 

	
 

	
 

	
 

	
 


	
7.10

	
 

	
Use of
  Proceeds

	
 

	
78


	
7.11

	
 

	
Audits/Inspections

	
 

	
78


	
7.12

	
 

	
Additional
  Credit Parties

	
 

	
79


	
7.13

	
 

	
Compliance
  Program

	
 

	
79


	
SECTION 8

	
NEGATIVE COVENANTS

	
 

	
79


	
8.1

	
 

	
Indebtedness

	
 

	
80


	
8.2

	
 

	
Liens

	
 

	
81


	
8.3

	
 

	
Nature of
  Business

	
 

	
81


	
8.4

	
 

	
Consolidation
  and Merger

	
 

	
81


	
8.5

	
 

	
Sale or
  Lease of Assets

	
 

	
81


	
8.6

	
 

	
Investments

	
 

	
82


	
8.7

	
 

	
Transactions
  with Affiliates

	
 

	
82


	
8.8

	
 

	
Fiscal Year;
  Accounting; Organizational Documents

	
 

	
82


	
8.9

	
 

	
Stock
  Repurchases

	
 

	
83


	
8.10

	
 

	
Sale/Leasebacks

	
 

	
83


	
SECTION 9

	
EVENTS OF DEFAULT

	
 

	
83


	
9.1

	
 

	
Events of
  Default

	
 

	
84


	
9.2

	
 

	
Acceleration;
  Remedies

	
 

	
86


	
9.3

	
 

	
Allocation
  of Payments After Event of Default

	
 

	
87


	
SECTION 10

	
AGENCY PROVISIONS

	
 

	
88


	
10.1

	
 

	
Appointment

	
 

	
88


	
10.2

	
 

	
Delegation
  of Duties

	
 

	
89


	
10.3

	
 

	
Exculpatory
  Provisions

	
 

	
89


	
10.4

	
 

	
Reliance on
  Communications

	
 

	
90


	
10.5

	
 

	
Notice of
  Default

	
 

	
90


	
10.6

	
 

	
Non-Reliance
  on Administrative Agent and Other Lenders

	
 

	
91


	
10.7

	
 

	
Indemnification

	
 

	
92


	
10.8

	
 

	
Administrative
  Agent in Its Individual Capacity

	
 

	
92


	
10.9

	
 

	
Successor
  Agent

	
 

	
92


	
10.10

	
 

	
Agent
  May File Proofs of Claim

	
 

	
93


	
SECTION 11

	
MISCELLANEOUS

	
 

	
93


	
11.1

	
 

	
Notices, Etc

	
 

	
94


	
11.2

	
 

	
Right of
  Set-Off

	
 

	
96


	
11.3

	
 

	
Benefit of
  Agreement

	
 

	
96


	
11.4

	
 

	
No Waiver;
  Remedies Cumulative

	
 

	
101


	
11.5

	
 

	
Payment of
  Expenses; Indemnification

	
 

	
101


	
11.6

	
 

	
Amendments,
  Waivers and Consents

	
 

	
103


	
11.7

	
 

	
Counterparts

	
 

	
104


	
11.8

	
 

	
Headings

	
 

	
104


	
11.9

	
 

	
Defaulting
  Lender

	
 

	
104


	
11.10

	
 

	
Survival of
  Indemnification

	
 

	
105


	
11.11

	
 

	
Governing
  Law; Venue; Jurisdiction

	
 

	
105


	
11.12

	
 

	
Waiver of
  Jury Trial; Waiver of Consequential Damages

	
 

	
106





iii






TABLE OF CONTENTS

(continued)


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
Page


	
 


	
11.13

	
 

	
Severability

	
 

	
106


	
11.14

	
 

	
Further
  Assurances

	
 

	
106


	
11.15

	
 

	
Confidentiality

	
 

	
106


	
11.16

	
 

	
Entirety

	
 

	
107


	
11.17

	
 

	
Binding
  Effect; Continuing Agreement

	
 

	
107


	
11.18

	
 

	
USA Patriot
  Act Notice

	
 

	
108


	
11.19

	
 

	
No Advisory
  or Fiduciary Responsibility

	
 

	
108


	
11.20

	
 

	
Judgment
  Currency

	
 

	
109





iv






	
 

	
 


	
SCHEDULES

	
 


	
 

	
 


	
Schedule
  1.01

	
Mandatory
  Cost Formulae


	
Schedule
  1.1(a)

	
Commitment
  Percentages/Lending Offices


	
Schedule
  2.3(c)

	
Existing
  Letters of Credit


	
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(c)

	
Form of Term
  Note


	
Exhibit
  2.2(b)

	
Form of
  Notice of Borrowing


	
Exhibit
  2.2(f)

	
Form of
  Revolving Note


	
Exhibit
  2.4(b)

	
Form of
  Swing Line Loan Request


	
Exhibit
  2.4(d)

	
Form of
  Swing Line Note


	
Exhibit
  2.5(b)

	
Form of
  Competitive Bid Request


	
Exhibit
  2.5(g)

	
Form of
  Competitive Bid Loan Note


	
Exhibit 2.7

	
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










CREDIT AGREEMENT


          THIS
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”, together with the Term Loan Facility, the “Senior Credit
  Facilities”); and


	
 

	
 


	
 

	
          (ii)
  a $1,000,000,000 bridge loan facility; and





          WHEREAS,
the Lenders are willing, on the terms and subject to the conditions hereinafter
set forth, to provide the Senior Credit Facilities;






          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, with respect to any currency, the Administrative
Agent’s address and, as appropriate, account as set forth on Schedule 11.1
with respect to such currency, or such other address or account with respect to
such currency as the Administrative Agent may from time to time designate by
notice to the Borrower and the Lenders.


2






          “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.


          “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.


          “Alternative
Currency” means Euro, Sterling and each other currency (other than
Dollars) that is approved in accordance with Section 1.7.


          “Alternative
Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative
Currency as determined by the Administrative Agent at such time on the basis of
the Spot Rate (determined in respect of the most recent Revaluation Date) for
the purchase of such Alternative Currency with Dollars.


          “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

  Eurocurrency Rate

  Revolving Loans

	
 

	
Applicable

  Percentage for

  Eurocurrency

  Rate Term Loans

	
 

	
Applicable

  Percentage for

  Standby Letter of

  Credit Fees

	
 

	
Applicable

  Percentage for

  Facility Fee on

  the Revolving

  Credit Facility

  Commitments

	
 


	


	


	


	


	


	


	


	


	


	


	


	



	
I

	
 

	
3 BBB+ from S&P/

  3 Baa1 from Moody’s

	
 

	
.320

	
%

	
 

	
.400

	
%

	
 

	
.320

	
%

	
 

	
.080

	
%

	
 


	
II

	
 

	
3BBB but < BBB+ from S&P/

  3Baa2 but <Baa1 from Moody’s

	
 

	
.400

	
%

	
 

	
.500

	
%

	
 

	
.400

	
%

	
 

	
.100

	
%

	
 


	
III

	
 

	
3BBB- but <BBB from S&P/

  3Baa3 but <Baa2 from Moody’s

	
 

	
.500

	
%

	
 

	
.625

	
%

	
 

	
.500

	
%

	
 

	
.125

	
%

	
 


	
IV

	
 

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

  3Ba1 but <Baa3 from Moody’s

	
 

	
.575

	
%

	
 

	
.750

	
%

	
 

	
.575

	
%

	
 

	
.175

	
%

	
 


	
V

	
 

	
<BB+ or unrated by S&P/

  <Ba1 or unrated by Moody’s

	
 

	
1.00

	
%

	
 

	
1.250

	
%

	
 

	
1.00

	
%

	
 

	
.250

	
%

	
 








	
 

	
 


	
 

	
The Applicable Percentage for the Eurocurrency Rate Revolving Loans,
  the Eurocurrency Rate Term Loans, the Letter of Credit Fees and the Facility
  Fees shall, in each case, 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





3






	
 

	
 


	
 

	
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 Eurocurrency Rate Loans and Letters of Credit as well as any new
  Eurocurrency Rate Loans made or Letters of Credit issued.





          “Applicable
Time” means, with respect to any borrowings and payments in any Alternative
Currency, the local time in the place of settlement for such Alternative
Currency as may be determined by the Administrative Agent to be necessary for
timely settlement on the relevant date in accordance with normal banking
procedures in the place of payment.


          “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).


          “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


4






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


          “Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Agency Service Address with respect to Loans
denominated in Dollars is located and:


          (a)
if such day relates to any interest rate settings as to a Eurocurrency Rate
Loan denominated in Dollars, any fundings, disbursements, settlements and
payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other
dealings in Dollars to be carried out pursuant to this Agreement in respect of
any such Eurocurrency Rate Loan, means any such day on which dealings in
deposits in Dollars are conducted by and between banks in the London interbank
eurodollar market;


          (b)
if such day relates to any interest rate settings as to a Eurocurrency Rate
Loan denominated in Euro, any fundings, disbursements, settlements and payments
in Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in
Euro to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan, means a TARGET Day;


          (c)
if such day relates to any interest rate settings as to a Eurocurrency Rate
Loan denominated in a currency other than Dollars or Euro, means any such day
on which dealings in deposits in the relevant currency are conducted by and
between banks in the London or other applicable offshore interbank market for
such currency; and


          (d)
if such day relates to any fundings, disbursements, settlements and payments in
a currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, or any other dealings in
any currency other than Dollars or Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan (other than any
interest rate settings), means any such day on which banks are open for foreign
exchange business in the principal financial center of the country of such
currency.


5






          “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 (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.


6






          “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 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 and/or the initial Letters of
Credit shall have been issued.


          “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.


          “Commitments”
means, without duplication, (a) the commitment of each Lender with respect to
the Term Loan Committed Amount (b) the commitment of each Lender with respect
to the Revolving Committed Amount, (c) the commitment of the Issuing Lender
with respect to the LOC Committed Amount, (d) the commitment of the Swing Line
Lender with respect to the Swing Line Committed Amount and (e) the commitment
of each Lender with respect to the Incremental Revolving Committed Amount.


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


          “Competitive
Bid” means an offer by a Lender to make a Competitive Bid Loan pursuant to
Section 2.5.


7






          “Competitive
Bid Fee” means $1,000 for each Competitive Bid Request.


          “Competitive
Bid Loan” means a loan made by a Lender in its discretion pursuant to
Section 2.5.


          “Competitive
Bid Loan Notes” means the promissory notes of the Borrower in favor of each
Lender evidencing the Competitive Bid Loans provided pursuant to Section 2.5,
individually or collectively, as appropriate, as such promissory notes may be
amended, modified, supplemented or replaced from time to time and as evidenced
in the form of Exhibit 2.5(g).


          “Competitive
Bid Rate” means, as to any Competitive Bid made by a Lender in accordance
with the provisions of Section 2.5, the rate of interest offered by the Lender
making the Competitive Bid.


          “Competitive
Bid Request” means a request by the Borrower for Competitive Bids in the
form of Exhibit 2.5(b).


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


          “Credit
Documents” means this Credit Agreement, the Notes, any Joinder Agreement,
the LOC Documents, any Notice of Borrowing, any Competitive Bid Request and any
Swing Line Loan Request.


          “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 (including the Issuing Lender and the Swing
Line Lender) and the Administrative Agent, whenever arising, under this Credit
Agreement, the Notes, or any of the other Credit Documents.


          “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.


8






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


          “Dollar
Equivalent” means, at any time, (a) with respect to any amount denominated
in Dollars, such amount, and (b) with respect to any amount denominated in any
Alternative Currency, the equivalent amount thereof in Dollars as determined by
the Administrative Agent at such time on the basis of the Spot Rate (determined
in respect of the most recent Revaluation Date) for the purchase of Dollars
with such Alternative Currency.


          “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 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, the Issuing
Lender, the Swing Line Lender 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.


9






          “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, 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.


          “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.


10






          “Euro”
and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.


          “Eurocurrency
Rate” means, for any Interest Period with respect to a Eurocurrency Rate
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 deposits in the relevant
currency (for delivery on the first day 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 “Eurocurrency Rate” for such Interest Period shall be
the rate per annum determined by the Administrative Agent to be the rate at
which deposits in the relevant currency for delivery on the first day of such
Interest Period in Same Day Funds in the approximate amount of the Eurocurrency
Rate 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 (or other Bank of America branch or Affiliate) to major banks in the
London or other offshore interbank market for such currency at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.


          “Eurocurrency
Rate Loan” means a Loan that bears interest at a rate based on the
Eurocurrency Rate. Eurocurrency Rate Loans may be denominated in Dollars or in
an Alternative Currency. All Loans denominated in an Alternative Currency must
be Eurocurrency Rate Loans.


          “Eurocurrency
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 Eurocurrency Rate
Loans is determined). Eurocurrency Rate 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.


          “Existing
Letters of Credit” means the letters of credit described on Schedule
2.3(c).


          “Extension
of Credit” means, as to any Lender, the making of a Loan by such Lender (or
a participation therein by a Lender) or the issuance or increase in the face
amount of, or participation in, a Letter of Credit by such Lender.


          “Facility
Fees” means the fees payable to the Lenders pursuant to Section 3.4(a).


11






          “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.


          “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 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 and each
Additional Credit Party, together with their successors and assigns.


12






          “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 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.


          “Incremental
Revolving Loans” has the meaning given to it in Section 2.2(e)(i).


          “Incremental
Revolving Loan Commitment” has the meaning given to it in Section
2.2(e)(i).


          “Incremental
Revolving Committed Amount” has the meaning given to it in Section
2.2(e)(i).


          “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


13






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 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 and Swing Line Loans, the
last day of each calendar quarter and the Maturity Date, (b) as to Eurocurrency
Rate Loans, the last day of each applicable Interest Period and the Maturity
Date and in addition, where the applicable Interest Period for a Eurocurrency
Rate Loan is greater than three months, then also the date three months from
the beginning of the Interest Period and each three months thereafter and (c)
as to Competitive Bid Loans, on the last day of the Interest Period for each
Competitive Bid Loan and on


14






the Maturity
Date. 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 Eurocurrency Rate Loans where the next
succeeding Business Day falls in the next succeeding calendar month, then on
the next preceding Business Day.


          “Interest
Period” means (a) as to Eurocurrency Rate 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) and (b) as to Competitive Bid Loans, a period beginning on the
date the Competitive Bid Loan is made and ending on the date specified in the
respective Competitive Bid whereby the offer to make the Competitive Loan was
extended, which shall not be less than 14 days nor more than 180 days duration;
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 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.


          “Issuing
Lender” means Bank of America.


          “Issuing
Lender Fees” has the meaning set forth in Section 3.4(b)(ii).


          “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.


15






          “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.


          “Letter
of Credit” means any letter of credit issued for the account of the
Borrower by the Issuing Lender pursuant to Section 2.3, as such letter of
credit may be amended, modified, extended, renewed or replaced.


          “Letter
of Credit Fees” has the meaning set forth in Section 3.4(b)(i).


          “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 Term Loans, the Revolving Loans, the
Competitive Bid Loans and the Swing Line Loans (or any portion thereof),
individually or collectively, as appropriate.


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


          “LOC
Commitment” means the commitment of the Issuing Lender to issue Letters of
Credit for the account of the Borrower in an aggregate face amount outstanding
(together with the amounts of any unreimbursed drawings thereon) at any time of
up to the LOC Committed Amount.


          “LOC
Committed Amount” means ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000).


          “LOC
Documents” means, with respect to any Letter of Credit, such Letter of
Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments,
guarantees or other documents (whether general in application or applicable
only to such Letter of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk or (b) any collateral security
for such obligations.


          “LOC
Obligations” means, at any time, the sum of (a) the maximum amount which
is, or at any time thereafter may become, available to be drawn under Letters
of Credit then outstanding, assuming compliance with all requirements for
drawings referred to in such Letters of Credit plus (b) the aggregate
amount of all drawings under Letters of Credit honored by the Issuing Lender
but not theretofore reimbursed.


          “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.


16






          “Mandatory
Borrowing” has the meaning set forth in Section 2.3(e).


          “Mandatory
Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01.


          “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 fifth anniversary of 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.


          “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


17






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.


          “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.


18






          “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 Term Notes, the Revolving Notes, the Competitive
Bid Loan Notes and the Swing Line Loan Note, individually or collectively, as
appropriate.


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


          “Notice
of Continuation/Conversion” means a request by the Borrower to continue an
existing Eurocurrency Rate Loan to a new Interest Period or to convert a
Eurocurrency Rate Loan to a Base Rate Loan or a Base Rate Loan to a
Eurocurrency Rate Loan, in the form of Exhibit 2.5.


          “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).


          “Overnight
Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate
determined by the Administrative Agent, the Issuing Lender, or the Swing Line
Lender, as the case may be, in accordance with banking industry rules on
interbank compensation, and (b) with respect to any amount denominated in an
Alternative Currency, the rate of interest per annum at which overnight
deposits in the applicable Alternative Currency, in an amount approximately
equal to the amount with respect to which such rate is being determined, would
be offered for such day by a branch or Affiliate of Bank of America in the
applicable offshore interbank market for such currency to major banks in such
interbank market.


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


          “Participants”
means Lenders with a Revolving Loan Commitment Percentage greater than zero.


          “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 (a) Letters of Credit or LOC Obligations as provided in
Section 2.3, (b) Swing Line Loans as provided in Section 2.4 or (c) any
Loans as provided in Section 3.8.


          “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.


19






          “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.


          “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 


20






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 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


21







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.


          “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).


22






          “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 (a) at any time prior to the
termination of the Commitments, the sum of (x) the Revolving Loan Commitment
Percentage of such Lender multiplied by the Revolving Committed Amount and (y)
the Term Loan Commitment Percentage of such Lender multiplied by the Term Loan
Committed Amount and (b) at any time after the termination of the Commitments,
the sum of (i) the principal balance of the outstanding Loans of such Lender
plus (ii) such Lender’s Participation Interests in the face amount of the
outstanding Letters of Credit and outstanding Swing Line Loans.


          “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 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.


          “Revaluation
Date” means (a) with respect to any Loan, each of the following: (i) each
date of a borrowing of a Eurocurrency Rate Loan denominated in an Alternative
Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan
denominated in an Alternative Currency pursuant to Section 2.7, and (iii) such
additional dates as the Administrative Agent shall determine or the Required
Lenders shall require; and (b) with respect to any Letter of Credit, each of
the following: (i) each date of issuance of a Letter of Credit denominated in
an Alternative Currency, (ii) each date of an amendment of any such Letter of
Credit having the effect of increasing the amount thereof (solely with respect
to the increased amount), (iii) each date of any payment by the Issuing Lender
under any Letter of Credit denominated in an Alternative Currency and (iv) such additional dates as the
Administrative Agent or the Issuing Lender shall determine or the Required
Lenders shall require.


          “Revolving
Committed Amount” means SEVEN HUNDRED AND FIFTY MILLION DOLLARS
($750,000,000) or such lesser amount to which the Revolving Committed Amount
may be reduced pursuant to Section 2.2(d) or increased pursuant to Section
2.2(e).


          “Revolving
Credit Facility” has the meaning given to it in the second recital.


          “Revolving
Loan Commitment Percentage” means, for each Lender, the percentage
identified as its Revolving Loan Commitment Percentage on Schedule 1.1(a),
as such percentage


23






may be
modified in connection with any assignment made in accordance with the
provisions of Section 11.3 and with any Incremental Revolving Loan Commitment.


          “Revolving
Loans” means the Revolving Loans made to the Borrower pursuant to Section
2.2.


          “Revolving
Notes” means the promissory notes of the Borrower in favor of each of the
Lenders evidencing the Revolving Loans provided pursuant to Section 2.2,
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 2.2(f).


          “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 (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments
in an Alternative Currency, same day or other funds as may be determined by the
Administrative Agent or the Issuing Lender, as the case may be, to be customary
in the place of disbursement or payment for the settlement of international
banking transactions in the relevant Alternative Currency.


          “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.


          “Senior
Credit Facilities” has the meaning given to it in the second recital.


          “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 


24






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).


          “Special
Notice Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic
Cooperation and Development at such time located in North America or Europe.


          “Spot
Rate” for a currency means the rate determined by the Administrative Agent
to be the rate quoted by the Person acting in such capacity as the spot rate
for the purchase by such Person of such currency with another currency through
its principal foreign exchange trading office at approximately 11:00 a.m. on
the date two Business Days prior to the date as of which the foreign exchange
computation is made; provided that the Administrative Agent may obtain
such spot rate from another financial institution designated by the
Administrative Agent if the Person acting in such capacity does not have as of
the date of determination a spot buying rate for any such currency.


          “Sterling”
and “£” mean the lawful currency of the United Kingdom.


          “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.


          “Swing
Line Committed Amount” means FIFTY MILLION DOLLARS ($50,000,000).


          “Swing
Line Lender” means Bank of America.


          “Swing
Line Loans” means the loans made by the Swing Line Lender pursuant to
Section 2.4.


          “Swing
Line Loan Note” means the promissory note of the Borrower in favor of the
Swing Line Lender evidencing the Swing Line Loans provided pursuant to Section
2.4, as such promissory note may be amended, modified, supplemented, extended,
renewed or replaced from time to time in and as evidenced by the form of Exhibit
2.4(d).


25






          “Swing
Line Loan Request” means a request by the Borrower for a Swing Line Loan in
substantially the form of Exhibit 2.4(b).


          “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.


          “TARGET
Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system
ceases to be operative, such other payment system (if any) determined by the
Administrative Agent to be a suitable replacement) is open for the settlement
of payments in Euro.


          “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.


          “Term
Loan Commitment Percentage” means, for each Lender, the percentage
identified as its Term 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.


          “Term
Loan Committed Amount” means ONE BILLION SIX HUNDRED MILLION DOLLARS
($1,600,000,000).


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


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


          “Term
Notes” means the promissory notes of the Borrower in favor of each of the
Lenders evidencing the Term 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(c).


          “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.


26






          “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).


                    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


27






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.


          (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
Exchange Rates; Currency Equivalents.


          (a)
The Administrative Agent shall determine the Spot Rates as of each Revaluation
Date to be used for calculating Dollar Equivalent amounts of Loans denominated
in Alternative Currencies. Such Spot Rates shall become effective as of such
Revaluation Date and shall be the Spot Rates employed in converting any amounts
between the applicable currencies until the next Revaluation Date to occur.
Except for purposes of financial statements delivered by the Borrower hereunder
or calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than Dollars) for purposes
of the Credit Documents shall be such Dollar Equivalent amount as so determined
by the Administrative Agent.


          (b)
Wherever in this Agreement in connection with a borrowing, conversion,
continuation or prepayment of a Eurocurrency Rate Loan or the issuance,
amendment or extension of a Letter of Credit, an amount, such as a required
minimum or multiple


28






amount, is
expressed in Dollars, but such borrowing, Eurocurrency Rate Loan or Letter of
Credit is denominated in an Alternative Currency, such amount shall be the
relevant Alternative Currency Equivalent of such Dollar amount (rounded to the
nearest unit of such Alternative Currency, with 0.5 of a unit being rounded
upward), as determined by the Administrative Agent.


                    1.7
Additional Alternative Currencies.


                    (a)
The Borrower may from time to time request that Eurocurrency Rate Loans be made
in a currency other than those specifically listed in the definition of
“Alternative Currency;” provided that such requested currency is a lawful
currency (other than Dollars) that is readily available and freely transferable
and convertible into Dollars. In the case of any such request with respect to
the making of Eurocurrency Rate Loans, such request shall be subject to the
approval of the Administrative Agent and the Lenders.


                    (b)
Any such request shall be made to the Administrative Agent not later than 11:00
a.m., 20 Business Days prior to the date of the desired making of Eurocurrency
Rate Loans (or such other time or date as may be agreed by the Administrative
Agent). In the case of any such request pertaining to Eurocurrency Rate Loans,
the Administrative Agent shall promptly notify each Lender thereof. Each Lender
(in the case of any such request pertaining to Eurocurrency Rate Loans) shall
notify the Administrative Agent, not later than 11:00 a.m., ten Business Days
after receipt of such request whether it consents, in its sole discretion, to
the making of Eurocurrency Rate Loans in such requested currency.


                    (c)
Any failure by a Lender to respond to such request within the time period
specified in the preceding sentence shall be deemed to be a refusal by such
Lender to permit Eurocurrency Rate Loans to be made in such requested currency.
If the Administrative Agent and all the Lenders consent to making Eurocurrency
Rate Loans in such requested currency, the Administrative Agent shall so notify
the Borrower and such currency shall thereupon be deemed for all purposes to be
an Alternative Currency hereunder for purposes of any borrowings of
Eurocurrency Rate Loans. If the Administrative Agent shall fail to obtain consent
to any request for an additional currency under this Section 1.7, the
Administrative Agent shall promptly so notify the Borrower.


                    1.8
Change of Currency.


                    (a)
Each obligation of the Borrower to make a payment denominated in the national
currency unit of any member state of the European Union that adopts the Euro as
its lawful currency after the date hereof shall be redenominated into Euro at
the time of such adoption (in accordance with the EMU Legislation). If, in
relation to the currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that
if any 


29






borrowing in
the currency of such member state is outstanding immediately prior to such
date, such replacement shall take effect, with respect to such borrowing, at
the end of the then current Interest Period.


                    (b)
Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to the
Euro.


                    (c)
Each provision of this Agreement also shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be appropriate to reflect a change in currency of any other country
and any relevant market conventions or practices relating to the change in
currency.


                    1.9
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.


                    1.10
Letter of Credit Amounts.


          Unless
otherwise specified, all references herein to the amount of a Letter of Credit
at any time shall be deemed to mean the maximum face amount of such Letter of
Credit after giving effect to all increases thereof contemplated by such Letter
of Credit or the LOC Documents related thereto, whether or not such maximum
face amount is in effect at such time.


SECTION 2


CREDIT FACILITIES


                    2.1
Term Loans.


                    (a)
Term Loan Commitment. Subject to the terms and conditions set forth
herein, each Lender with a Commitment to make Term Loans severally agrees to
make a single loan to the Borrower on the Closing
Date (each a “Term Loan” and collectively the “Term Loans”),
in Dollars, in an amount equal to such Lender’s Term Loan Commitment Percentage
of the Term Loan Committed Amount; provided that the aggregate amount of
such Term Loans made by all Term Loan Lenders shall not exceed the Term Loan
Committed Amount. Once repaid or prepaid, Term Loans cannot be reborrowed.


30






                    (b)
Funding of Term Loans. Each Lender shall make its Term Loan Commitment
Percentage of the Term Loan Committed Amount available to the Administrative
Agent by 1:00 p.m. on the Closing Date by deposit, in Dollars, of immediately
available funds at the Agency Services Address. The amount of the Term 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 Term Loans are made
available to the Administrative Agent. All Term Loans made on the Closing Date
shall be Base Rate Loans unless the Borrower delivers a funding indemnity
letter in form and substance reasonably acceptable to the Administrative Agent
at least three (3) Business Days prior to the Closing Date. Thereafter, all or
any portion of the Term Loans may be converted into Eurocurrency Rate Loans in accordance with the terms of Section
2.7. The obligations of the Lenders hereunder to make Term 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 Term 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 Closing Date that such Lender does not
intend to make available to the Administrative Agent its portion of the Term
Loans, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on the Closing Date, 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 Lender’s portion of the Term Loans is not in
fact made available to the Administrative Agent, the Administrative Agent shall
be able to recover from such Lender an amount equal to such corresponding
amount which the Administrative Agent has made available to the Borrower. If
such Lender does not pay such amount upon the Administrative Agent’s demand therefor,
the Administrative Agent will promptly notify the Borrower, and the Borrower
shall immediately pay such 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 amount in respect of each day
from the date an amount equal to 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.


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


                    2.2
Revolving Loans.


                    (a)
Revolving Loan Commitment. Subject to the terms and conditions set forth
herein, including but not limited to Section 5.2, each Lender severally agrees
to make revolving loans (each a “Revolving Loan” and collectively the “Revolving
Loans”) to the Borrower, in Dollars or in one or more Alternative
Currencies, in an amount equal


31






 to its Revolving Loan Commitment Percentage,
if any, of such Revolving Loan, at any time and from time to time, during the
period from and including the Closing Date to but not including the Maturity
Date (or such earlier date if the Commitments have been terminated as provided
herein); provided, however, that, after giving effect to any
borrowing of Revolving Loans, the sum of (i) the aggregate amount of the Dollar
Equivalent of Revolving Loans outstanding, plus (ii) the aggregate
amount of LOC Obligations outstanding, plus (iii) the aggregate amount
of Competitive Bid Loans outstanding plus (iv) the aggregate amount of
Swing Line Loans outstanding shall not exceed the Revolving Committed Amount,
and the Dollar Equivalent of the Revolving Loans denominated in Alternative
Currencies at any time shall not exceed $100,000,000. Subject to the terms of
this Credit Agreement, the Borrower may borrow, repay and reborrow Revolving
Loans.


                    (b)
Method of Borrowing for Revolving Loans. By no later than 11:00 a.m. (i)
on the date of the requested borrowing of Revolving Loans that will be made as
Base Rate Loans or (ii) three Business Days prior to the date of the requested
borrowing of Revolving Loans that will be made as Eurocurrency Rate Loans
denominated in Dollars, and (iii) four Business Days (or five Business Days in
the case of a Special Notice Currency) prior to the date of the requested
borrowing of Revolving Loans that will be Eurocurrency Rate Loans denominated
in Alternative Currencies, the Borrower shall provide telephonic notice to the
Administrative Agent, followed promptly by a written Notice of Borrowing in the
form of Exhibit 2.2(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 Revolving Loans shall accrue interest at
the Base Rate or the Eurocurrency Rate, (C) with respect to Revolving Loans
that will be Eurocurrency Rate Loans, the Interest Period applicable thereto
and (D) certification that the Borrower has complied in all respects with
Section 5.2. 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 Eurocurrency Rate Loans denominated in
Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars
to Base Rate Loans, (ii) four Business Days (or five Business Days in the case
of a Special Notice Currency) prior to the requested date of any borrowing or
continuation of Eurocurrency Rate Loans denominated in Alternative Currencies,
and (iii) on the requested date of any borrowing of Base Rate Loans; provided,
however, that if the Borrower wishes to request Eurocurrency Rate 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. (i) four
Business Days prior to the requested date of such borrowing, conversion or
continuation of Eurocurrency Rate Loans denominated in Dollars, or (ii) five
Business Days (or six Business days in the case of a Special Notice Currency)
prior to the requested date of such borrowing, conversion or continuation of
Eurocurrency Rate Loans denominated in Alternative Currencies, 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., (i) three Business Days before the requested date of
such borrowing, conversion or continuation of Eurocurrency Rate Loans
denominated in Dollars, or (ii) four Business Days (or five Business days in
the case of a Special Notice 


32








	
 

	
 


	
 

	
Currency)
  prior to the requested date of such Borrowing, conversion or continuation of
  Eurocurrency Rate Loans denominated in Alternative Currencies, 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 Loans.
Upon receipt of a Notice of Borrowing, the
  Administrative Agent shall promptly inform the Lenders as to the terms
  thereof. Each Lender shall make its Revolving Loan Commitment Percentage of
  the requested Revolving Loans available to the Administrative Agent in Same
  Day Funds at the Agency Services Address for the applicable currency not
  later than 1:00 p.m. in the case of any Revolving Loans denominated in
  Dollars, and not later than the Applicable Time specified by the
  Administrative Agent in the case of any Revolving Loans in an Alternative
  Currency, in each case on the Business Day specified in the Notice of
  Borrowing. The amount of the requested Revolving 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 Revolving Loans are made available
  to the Administrative Agent.





          No Lender
shall be responsible for the failure or delay by any other Lender in its
obligation to make Revolving 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 Revolving Loan that such Lender does not intend to make available
to the Administrative Agent its portion of the Revolving Loans to be made on
such date, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on the date of such Revolving
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 Lender’s portion of the Revolving
Loans is not in fact made available to the Administrative Agent, the
Administrative Agent shall be able to recover from such Lender an amount equal to
such corresponding amount which the Administrative Agent has made available to
the Borrower. If such Lender does not pay such amount upon the Administrative
Agent’s demand therefor, the Administrative Agent will promptly notify the
Borrower, and the Borrower shall immediately pay such 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
amount in respect of each day from the date an amount equal to 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
applicable rate for such Revolving Loan pursuant to the Notice of Borrowing or
(ii) from such Lender, at the Overnight Rate, plus any
administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing.


	
 

	
 


	
 

	
          (d) Reductions of Revolving Committed Amount.
Upon at least three Business
  Days’ prior written notice, the Borrower shall have the right to permanently
  reduce, without premium or penalty, all or part of the aggregate unused
  amount of the Revolving Committed Amount at any time or from time to time; provided
  that (i) each partial reduction shall be in an aggregate amount at least
  equal to $10,000,000 and in integral multiples of $1,000,000 above such
  amount and (ii) no reduction shall be made which would reduce the Revolving
  Committed Amount to an amount less than the





33







	
 

	
 


	
 

	
aggregate
  amount of outstanding Revolving Loans plus the aggregate amount of
  outstanding LOC Obligations plus the aggregate amount of outstanding
  Competitive Bid Loans plus the aggregate amount of outstanding Swing Line
  Loans. Any reduction in (or termination of) the Revolving Committed Amount
  pursuant to this Section 2.2(d) shall be permanent and may not be reinstated.
  The Administrative Agent shall immediately notify the Lenders of any reduction
  in the Revolving Committed Amount pursuant to this Section 2.2(d).








	
 

	
 


	
 

	
          (e)
  Increases in Revolving Commitment Amount.








	
 

	
 


	
 

	
          (i)
  At any time that no Default has occurred and is continuing, and prior to the
  Maturity Date, the Borrower may, from time to time, notify the Administrative
  Agent that the Borrower is requesting that, on the terms and subject to the
  conditions contained in this Credit Agreement, the Lenders and/or other
  lenders or other financial institutions not then a party to this Credit
  Agreement provide up to an aggregate amount of an additional $250,000,000
  Revolving Committed Amount to make Revolving Loans to the Borrower (such
  loans, the “Incremental Revolving Loans”) (any such commitment to make
  Incremental Revolving Loans being an “Incremental Revolving Loan
  Commitment”; and the aggregate amount thereof agreed to be provided by
  the applicable Lenders or other lenders in response to any such request, an “Incremental
  Revolving Committed Amount”).


	
 

	
 


	
 

	
          (ii)
  Upon receipt of such notice, together with a certificate demonstrating pro
  forma compliance with the financial covenants contained in Section 7.2, after
  giving effect to the increase in, and assuming full usage of, the Revolving
  Committed Amount, the Administrative Agent shall use commercially reasonable
  efforts to arrange for the Lenders or other lenders to provide such
  additional Commitments. Nothing contained in this Section or otherwise in
  this Agreement is intended to commit any Person to provide any portion of any
  such additional Commitments.


	
 

	
 


	
 

	
          (iii)
  If and to the extent that any Lenders and/or other lenders agree, in their
  sole discretion, to provide any such additional Commitments, pursuant to
  documentation in form and substance to be mutually satisfactory to the
  Borrower, the Administrative Agent and the applicable Lenders, such
  documentation shall provide (w) that the Revolving Committed Amount shall be
  increased by the aggregate amount of the Incremental Revolving Loan
  Commitments agreed to be so provided, (x) the Revolving Loan Commitment
  Percentage of the respective Lenders in respect of the increased Revolving
  Committed Amount shall be proportionally adjusted (provided, however,
  that for any Lender, the product of such Lender’s adjusted Revolving Loan
  Commitment Percentage of a Lender in respect of Revolving Loans multiplied by
  the Revolving Committed Amount as increased pursuant to clause (w) may
  not exceed an amount equal to the Revolving Loan Commitment Percentage of
  such Lender in respect of Revolving Loans immediately prior to any adjustment
  made pursuant to this clause (x) multiplied by the Revolving Committed
  Amount immediately prior to the 





34







	
 

	
 


	
 

	
corresponding
  increase thereof pursuant to clause (w) without the consent of such
  Lender) and such adjustment shall be recorded in the Register, (y) at
  such time and in such manner as the Borrower and the Administrative Agent
  shall agree (it being understood that the Borrower and the Administrative
  Agent will use commercially reasonable efforts to avoid the prepayment or
  assignment of any Eurocurrency Rate
  Loan on a day other than the last day of the Interest Period applicable
  thereto), the Lenders shall assign and assume outstanding Revolving Loans and
  participations in outstanding Letters of Credit so as to cause the amounts of
  such Revolving Loans and participations in Letters of Credit held by each
  Lender with a Revolving Loan Commitment Percentage in excess of zero of the
  Revolving Loan Commitment to conform to its Revolving Loan Commitment
  Percentage of the Revolving Loan Commitment and (z) the Borrower shall
  execute and deliver any additional Notes, other amendments or modifications
  to any Credit Document and any other certificates, consents or legal opinions
  as the Administrative Agent may reasonably request, and (notwithstanding
  anything to the contrary contained in Section 11.6 hereof) each such
  amendment or modification may be effective without the consent of any other
  Lenders, as may be necessary or appropriate and to the extent not materially
  adverse to the other Lenders in the opinion of the Administrative Agent to
  effect the provisions of this Section 2.2(e).








	
 

	
 


	
 

	
          (f)
  Revolving Notes. The Revolving Loans made by each Lender shall be
  evidenced by a duly executed promissory note of the Borrower to each Lender
  that requests a Revolving Note in substantially the form of Exhibit 2.2(f).


	
 

	
 


	
 

	
          2.3 Letter of Credit Subfacility.


	
 

	
 


	
 

	
          (a)
  Issuance. Subject to the terms and conditions hereof and of the LOC
  Documents, if any, and any other terms and conditions relating to the
  Borrower which the Issuing Lender may reasonably require (so long as such
  terms and conditions do not impose any financial obligation on or require any
  Lien (not otherwise contemplated by this Credit Agreement) to be given by any
  Credit Party or conflict with any obligation of, or detract from any action
  which may be taken by, the Borrower or its Subsidiaries under this Credit
  Agreement), the Issuing Lender agrees, in reliance upon the agreements of the
  other Lenders set forth in this Section 2.3, from time to time upon
  request, in its reasonable discretion, to issue (from the Closing Date to
  thirty days prior to the Maturity Date and in a form reasonably acceptable to
  the Issuing Lender), in Dollars, and the Participants shall participate in,
  Letters of Credit for the account of the Borrower; provided, however,
  that, after giving effect to the issuance (or drawdown or extension) of any
  Letter of Credit, (i) the aggregate amount of LOC Obligations shall not
  at any time exceed the LOC Committed Amount and (ii) (A) the sum of the
  aggregate amount of outstanding LOC Obligations, plus (B) the
  aggregate amount of the Dollar Equivalent of Revolving Loans outstanding, plus
  (C) the aggregate amount of Competitive Bid Loans outstanding, plus
  (D) the aggregate amount of Swing Line Loans outstanding shall not exceed the
  Revolving Committed Amount and (iii) if any Participant shall be a Defaulting
  Lender at the time of issuance of any Letter of Credit, the amount of such
  Letter of Credit shall be reduced by the amount of such Participant’s
  Participation 





35






	
 

	
 


	
 

	
Interest in
  such Letter of Credit, unless otherwise agreed by the Issuing Lender in its
  sole discretion. The Issuing Lender may require the issuance and expiry date
  of each Letter of Credit to be a Business Day. Each Letter of Credit shall
  be a standby letter of credit issued to support the obligations
  (including pension or insurance obligations), contingent or otherwise, of the
  Borrower or any of its Subsidiaries. Except as otherwise expressly agreed
  upon by all the Participants, no Letter of Credit shall have an original
  expiry date more than one year from the date of issuance nor, as extended or
  otherwise, shall have an expiry date beyond the Maturity Date. Each Letter of
  Credit shall comply with the related LOC Documents. The Borrower shall
  promptly examine a copy of each Letter of Credit and each amendment thereto
  that is delivered to it and, in the event of any claim of noncompliance with
  the Borrower’s instructions or other irregularity, the Borrower will
  immediately notify the Issuing Lender.


	
 

	
 


	
 

	
          (b)
  Notice and Reports. The request for the issuance of a Letter of Credit
  shall be submitted to the Issuing Lender at least three Business Days prior
  to the requested date of issuance. The Issuing Lender will, at least
  quarterly and more frequently upon request, provide to the Administrative
  Agent for dissemination to the Lenders a report specifying the Letters of
  Credit which are then issued and outstanding. The Issuing Lender will further
  provide to the Administrative Agent, promptly upon request, copies of the
  Letters of Credit and the other LOC Documents.


	
 


	
 

	
          (c)
  Participations.








	
 

	
 


	
 

	
          (i)
  On the Closing Date, each Participant shall automatically acquire a
  participation in the liability of the Issuing Lender under each Existing
  Letter of Credit in an amount equal to its Revolving Loan Commitment
  Percentage of such Existing Letters of Credit.


	
 

	
 


	
 

	
          (ii)
  Each Participant, upon issuance of a Letter of Credit, shall be deemed to
  have purchased without recourse a risk participation from the Issuing Lender
  in such Letter of Credit and each LOC Document related thereto and the rights
  and obligations arising thereunder and any collateral relating thereto, in
  each case in an amount equal to its Revolving Loan Commitment Percentage of
  the obligations under such Letter of Credit, and shall absolutely,
  unconditionally and irrevocably assume, as primary obligor and not as surety,
  and be obligated to pay to the Issuing Lender therefor and discharge when
  due, its Revolving Loan Commitment Percentage of the obligations arising
  under such Letter of Credit. Without limiting the scope and nature of each
  Participant’s participation in any Letter of Credit, to the extent that the
  Issuing Lender has not been reimbursed as required hereunder or under any
  such Letter of Credit or pursuant to a Mandatory Borrowing under Section
  2.3(e)(i), each such Participant shall fund its Participation Interest in
  such unreimbursed drawing in accordance with the terms of Section 2.3(e)(ii).
  Any such reimbursement shall not relieve or otherwise impair the obligation
  of the Borrower or any other Credit Party to reimburse the Issuing Lender
  under any Letter of Credit, together with interest as hereinafter provided.





36






	
 

	
 


	
 

	
          (d)
  Reimbursement by Borrower. In the event of any drawing under any
  Letter of Credit, the Issuing Lender will promptly notify the Borrower.
  Unless the Borrower shall notify the Issuing Lender of its intent to
  otherwise reimburse the Issuing Lender and shall reimburse the Issuing Lender
  in same day funds within one hour of receipt of notice of such drawing from
  the Issuing Lender, the Borrower shall be deemed to have requested a Revolving
  Loan at the Base Rate in the amount of the drawing, the proceeds of which
  will be used to satisfy the reimbursement obligations. The Borrower’s
  reimbursement obligations hereunder shall be absolute and unconditional under
  all circumstances irrespective of (but without waiver of) (i) any rights of
  set-off, counterclaim or defense to payment the applicable account party or
  the Borrower may claim or have against the Issuing Lender, the Administrative
  Agent, the Lenders, the beneficiary of the Letter of Credit drawn upon or any
  other Person, including without limitation, any defense based on any failure
  of the applicable account party, the Borrower or any other Credit Party to
  receive consideration or (ii) the legality, validity, regularity or
  unenforceability of the Letter of Credit, this Credit Agreement or any other
  Credit Document.


	
 

	
 


	
 

	
          (e)
  Reimbursement by Lenders.








	
 

	
 


	
 

	
          (i)
  Reimbursement with Revolving Loans. On any day on which the Borrower
  shall have requested, or been deemed to have requested, a Revolving Loan
  borrowing to reimburse a drawing under a Letter of Credit (as set forth in
  clause (d) above), the Administrative Agent shall give notice to the Lenders
  that a Revolving Loan has been requested or deemed requested in connection with
  a drawing under a Letter of Credit, in which case a Revolving Loan borrowing
  comprised solely of Base Rate Loans (each such borrowing, a “Mandatory
  Borrowing”) shall be made from all Lenders (without giving effect to any
  termination of the Commitments pursuant to Section 9.2) pro rata
  based on each Lender’s respective Revolving Loan Commitment Percentage and
  the proceeds thereof shall be paid directly to the Issuing Lender for
  application to the respective LOC Obligations. Each applicable Lender hereby irrevocably
  agrees to make such Revolving Loans upon any such request or deemed request
  on account of each such Mandatory Borrowing in the amount and in the manner
  specified in the preceding sentence and in accordance with the terms of
  Section 2.3(e)(iii) notwithstanding (A) the amount of Mandatory
  Borrowing may not comply with the minimum amount for borrowings of Revolving
  Loans otherwise required hereunder, (B) whether any conditions specified in
  Section 5.2 are then satisfied, (C) whether a Default or Event of Default
  then exists, (D) failure of any such request or deemed request for Revolving
  Loans to be made by the time otherwise required hereunder, (E) the date of
  such Mandatory Borrowing, (F) any reduction in the Revolving Committed Amount
  or any termination of the Commitments, or (G) any set-off, counterclaim,
  recoupment, defense or other right which such Lender may have against the
  Issuing Lender, the Borrower or any other Person for any reason whatsoever.


	
 

	
 


	
 

	
          (ii)
  Reimbursement Through Funding of Participation Interests. In the event
  that any Mandatory Borrowing cannot for any reason be made on the date 





37







	
 

	
 


	
 

	
otherwise
  required above (including, without limitation, as a result of the
  commencement of a proceeding under the Bankruptcy Code with respect to the
  Borrower or any other Credit Party), the Issuing Lender will promptly notify
  the Participants of the amount of any unreimbursed drawing (as of the date
  the Mandatory Borrowing would otherwise have occurred, but adjusted for any
  payments received from the Borrower on or after such date and prior to the
  funding of the Participation Interests therein) and each Participant shall
  fund its Participation Interest in such unreimbursed drawing by paying to the
  Issuing Lender, in Dollars and in immediately available funds, the amount of
  such Participant’s Revolving Loan Commitment Percentage of such unreimbursed
  drawing. Each Participant’s obligation to make such payment to the Issuing
  Lender, and the right of the Issuing Lender to receive the same, shall be
  absolute and unconditional, shall not be affected by any circumstance
  whatsoever and without regard to (A) the termination of this Credit Agreement
  or the Commitments hereunder, (B) the existence of a Default or Event of
  Default, (C) the acceleration of the obligations hereunder and (D) any
  set-off, counterclaim, recoupment, defense or other right which such
  Participant may have against the Issuing Lender, the Borrower or any other
  Person for any reason whatsoever. Simultaneously with the making of each such
  payment by a Participant to the Issuing Lender, such Participant shall,
  automatically and without any further action on the part of the Issuing
  Lender or such Participant, acquire a participation in an amount equal to
  such payment (excluding the portion of such payment constituting interest
  owing to the Issuing Lender) in the related unreimbursed drawing portion of
  the LOC Obligation and in the interest thereon and in the related LOC
  Documents, and shall have a claim against the Borrower and the other Credit
  Parties with respect thereto.


	
 

	
 


	
 

	
          (iii)
  Funding of Mandatory Borrowing or Participation Interest. Each
  applicable Lender (including the Lender acting as Issuing Lender) and each
  Participant shall upon any notice pursuant to Section 2.3(e)(i) or Section
  2.3(e)(ii), respectively, make its
  Revolving Loan Commitment Percentage of the unreimbursed drawing available to
  the Administrative Agent, for the benefit of the Issuing Lender, by 1:00 p.m.
  on the day of the notice if notice is given on or before 11:00 a.m. or by
  1:00 p.m. the next Business Day if notice is given after 11:00 a.m., in
  Dollars, of immediately available funds at the Agency Services Address.
  The Administrative Agent shall remit the funds so received to the Issuing Lender.


	
 

	
 


	
 

	
          (iv) Failure
  to Fund. In the event any Lender or any Participant shall fail to fund
  its portion of a Mandatory Borrowing or its Participation Interest,
  respectively, on the date required pursuant to Section 2.3(e)(iii), the
  amount of such Lender’s unfunded portion of the Mandatory Borrowing or such
  Participant’s unfunded Participation Interest shall bear interest payable to
  the Issuing Lender upon demand, at a rate per annum equal to the
  applicable Overnight Rate from time to time in effect, plus any
  administrative, processing or similar fees customarily charged by the Issuing
  Lender in connection with the foregoing.





38






	
 

	
 


	
 

	
          (f)
  Modification and Extension. The issuance of any supplement,
  modification, amendment, renewal, or extensions to any Letter of Credit
  shall, for purposes hereof, be treated in all respects the same as the
  issuance of a new Letter of Credit hereunder.


	
 

	
 


	
 

	
          (g)
  Applicability of ISP98.Unless otherwise expressly agreed by the
  Issuing Lender and the Borrower when a Letter of Credit is issued (including
  any such agreement applicable to an Existing Letter of Credit), the rules of
  the “International Standby Practices 1998” published by the Institute of
  International Banking Law & Practice (or such later version thereof as
  may be in effect at the time of issuance) shall apply to each standby Letter
  of Credit.


	
 

	
 


	
 

	
          (h)
  Responsibility of Issuing Lender.








	
 

	
 


	
 

	
          (i)
  It is expressly understood and agreed as between the Lenders that the
  obligations of the Issuing Lender hereunder to the Participants are only
  those expressly set forth in this Credit Agreement and that the Issuing
  Lender shall be entitled to assume that the conditions precedent set forth in
  Section 5.2 have been satisfied unless it shall have acquired actual
  knowledge that any such condition precedent has not been satisfied; provided,
  however, that nothing set forth in this Section 2.3 shall be deemed to
  prejudice the right of any Participant to recover from the Issuing Lender any
  amounts made available by such Participant to the Issuing Lender pursuant to
  this Section 2.3 in the event that it is determined by a court of competent
  jurisdiction that the payment with respect to a Letter of Credit constituted
  gross negligence or willful misconduct on the part of the Issuing Lender.


	
 

	
 


	
 

	
          (ii)
  The Issuing Lender shall be under no obligation to issue any Letter of Credit
  if (a) any order, judgment or decree of any Governmental Authority or
  arbitrator shall by its terms purport to enjoin or restrain the Issuing
  Lender from issuing such Letter of Credit, (b) any Requirement of Law
  applicable to the Issuing Lender or any request or directive (whether or not
  having the force of law) from any Governmental Authority with jurisdiction over
  the Issuing Lender shall prohibit, or request that the Issuing Lender refrain
  from, the issuance of letters of credit generally or such Letter of Credit in
  particular or shall impose upon the Issuing Lender with respect to such
  Letter of Credit any restriction, reserve or capital requirement (for which
  the Issuing Lender is not otherwise compensated hereunder) not in effect on
  the Closing Date, or shall impose upon the Issuing Lender any unreimbursed
  loss, cost or expense which was not applicable on the Closing Date and which
  the Issuing Lender in good faith deems material to it, or (c) the
  issuance of such Letter of Credit would violate one or more policies of the
  Issuing Lender.








	
 

	
 


	
 

	
          (i)
  Conflict with LOC Documents. In the event of any conflict between this
  Credit Agreement and any LOC Document, this Credit Agreement shall govern.


	
 

	
 


	
 

	
          (j)
  Indemnification of Issuing Lender.





39






	
 

	
 


	
 

	
          (i)
  In addition to its other obligations under this Credit Agreement, the
  Borrower hereby agrees to protect, indemnify, pay and save the Issuing Lender
  harmless from and against any and all claims, demands, liabilities, damages,
  losses, costs, charges and expenses (including Attorney Costs) that the
  Issuing Lender may incur or be subject to as a consequence, direct or
  indirect, of (A) the issuance of any Letter of Credit or (B) the failure of
  the Issuing Lender to honor a drawing under a Letter of Credit as a result of
  any act or omission, whether rightful or wrongful, of any present or future
  de jure or de facto Governmental Authority (all such acts or omissions,
  herein called “Government Acts”).


	
 

	
 


	
 

	
          (ii)
  As between the Borrower and the Issuing Lender, the Borrower shall assume all
  risks of the acts, omissions or misuse of any Letter of Credit by the
  beneficiary thereof. The Issuing Lender shall not be responsible for (except
  in the case of (A), (B) and (C) below if the Issuing Lender has actual
  knowledge to the contrary): (A) the form, validity, sufficiency, accuracy,
  genuineness or legal effect of any document submitted by any party in
  connection with the application for and issuance of any Letter of Credit,
  even if it should in fact prove to be in any or all respects invalid,
  insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency
  of any instrument transferring or assigning or purporting to transfer or
  assign any Letter of Credit or the rights or benefits thereunder or proceeds
  thereof, in whole or in part, that may prove to be invalid or ineffective for
  any reason; (C) failure of the beneficiary of a Letter of Credit to
  comply fully with conditions required in order to draw upon a Letter of
  Credit; (D) errors, omissions, interruptions or delays in transmission or
  delivery of any messages, by mail, cable, telegraph, telex or otherwise,
  whether or not they be in cipher; (E) any loss or delay in the
  transmission or otherwise of any document required in order to make a drawing
  under a Letter of Credit or of the proceeds thereof; and (F) any
  consequences arising from causes beyond the control of the Issuing Lender,
  including, without limitation, any Government Acts. None of the above shall
  affect, impair, or prevent the vesting of the Issuing Lender’s rights or
  powers hereunder.


	
 

	
 


	
 

	
          (iii)
  In furtherance and extension and not in limitation of the specific provisions
  hereinabove set forth, any action taken or omitted by the Issuing Lender,
  under or in connection with any Letter of Credit or the related certificates,
  if taken or omitted in good faith, shall not put the Issuing Lender under any
  resulting liability to the Borrower or any other Credit Party. It is the
  intention of the parties that this Credit Agreement shall be construed and
  applied to protect and indemnify the Issuing Lender against any and all risks
  involved in the issuance of the Letters of Credit, all of which risks are
  hereby assumed by the Borrower, including, without limitation, any and all
  risks of the acts or omissions, whether rightful or wrongful, of any present
  or future Government Acts. The Issuing Lender shall not, in any way, be
  liable for any failure by the Issuing Lender or anyone else to pay any
  drawing under any Letter of Credit as a result of any Government Acts or any
  other cause beyond the control of the Issuing Lender.





40







	
 

	
 


	
 

	
          (iv)
  Nothing in this subsection (j) is intended to limit the reimbursement
  obligation of the Borrower contained in this Section 2.3. The
  obligations of the Borrower under this subsection (j) shall survive the
  termination of this Credit Agreement. No act or omission of any current or
  prior beneficiary of a Letter of Credit shall in any way affect or impair the
  rights of the Issuing Lender to enforce any right, power or benefit under
  this Credit Agreement.


	
 

	
 


	
 

	
          (v)
  Notwithstanding anything to the contrary contained in this
  subsection (j), the Borrower shall have no obligation to indemnify the
  Issuing Lender in respect of any liability incurred by the Issuing Lender
  arising out of the gross negligence or willful misconduct of the Issuing
  Lender, as determined by a court of competent jurisdiction.








	
 

	
 


	
 

	
          (k)
  Designation of other Persons as Account Parties. Notwithstanding
  anything to the contrary set forth in this Credit Agreement, including
  without limitation Section 2.3(a) hereof, a Letter of Credit issued hereunder
  may contain a statement to the effect that such Letter of Credit is issued
  for the account of a Subsidiary of the Borrower; provided that
  notwithstanding such statement, the Borrower shall be the actual account
  party for all purposes of this Credit Agreement for such Letter of Credit and
  such statement shall not affect the Borrower’s reimbursement obligations
  hereunder with respect to such Letter of Credit.


	
 

	
 


	
 

	
          2.4
  Swing Line Loans Subfacility.


	
 

	
 


	
 

	
          (a)
  Swing Line Loans. The Swing Line Lender hereby agrees, on the terms
  and subject to the conditions set forth herein and in the other Credit
  Documents, to make loans (each a “Swing Line Loan” and collectively,
  the “Swing Line Loans”) to the Borrower, in Dollars, at any time and
  from time to time, during the period from and including the Closing Date to
  but not including the Maturity Date (or such earlier date if the Commitments
  have been terminated as provided herein); provided that, after giving
  effect to the issuance of any such Swing Line Loan, (i) the aggregate
  principal amount of the Swing Line Loans outstanding at any one time shall
  not exceed the Swing Line Committed Amount and (ii) the sum of (A) the
  aggregate amount of Swing Line Loans outstanding, plus (B) the
  aggregate amount of the Dollar Equivalent of Revolving Loans outstanding, plus
  (C) the aggregate amount of LOC Obligations outstanding, plus (D) the
  aggregate amount of outstanding Competitive Bid Loans shall not exceed the
  Revolving Committed Amount. Subject to the terms of this Credit Agreement,
  the Borrower may borrow, repay and reborrow Swing Line Loans.


	
 

	
 


	
 

	
          (b)
  Method of Borrowing and Funding Swing Line Loans. By no later than
  1:00 p.m. on the date of the requested borrowing of Swing Line Loans,
  the Borrower shall provide telephone notice to the Swing Line Lender,
  followed promptly by a written Swing Line Loan Request in the form of Exhibit 2.4(b)
  (which may be submitted by telecopy) setting forth (i) the amount of the
  requested Swing Line Loan and (ii) the date of the requested Swing Line
  Loan and complying in all respects with Section 5.2. The Swing Line
  Lender shall initiate the transfer of funds representing the Swing Line Loan
  advance to the Borrower by 3:00 p.m. on the Business Day of the requested
  borrowing.





41







	
 

	
 


	
 

	
          (c)
  Repayment and Participations of Swing Line Loans. The Borrower agrees
  to repay all Swing Line Loans immediately upon the existence of a Default or
  Event of Default or otherwise within three Business Days of demand therefor
  by the Swing Line Lender. Each repayment of a Swing Line Loan may be
  accomplished by requesting Revolving Loans which request is not subject to
  the conditions set forth in Section 5.2. In the event that the Borrower
  shall fail to timely repay any Swing Line Loan, and in any event upon
  (i) a request by the Swing Line Lender, (ii) the occurrence of an
  Event of Default described in Section 9.1(f) or (iii) the
  acceleration of any Loan or termination of any Commitment pursuant to
  Section 9.2, each Lender shall irrevocably and unconditionally purchase
  from the Swing Line Lender, without recourse or warranty, an undivided
  interest and participation in such Swing Line Loan in an amount equal to such
  other Lender’s Revolving Loan Commitment Percentage thereof, by directly
  purchasing a participation in such Swing Line Loan in such amount (regardless
  of whether the conditions precedent thereto set forth in Section 5.2 are
  then satisfied, whether or not the Borrower has submitted a Notice of Borrowing
  and whether or not the Commitments are then in effect, any Event of Default
  exists or all the Loans have been accelerated) and paying the proceeds
  thereof to the Swing Line Lender at the Agency Services Address, or at such
  other address as the Swing Line Lender may designate, in Dollars and in
  immediately available funds. If such amount is not in fact made available to
  the Swing Line Lender by any Participant, the Swing Line Lender shall be
  entitled to recover such amount on demand from such Participant, together
  with accrued interest thereon for each day from the date of demand thereof,
  at a rate equal to, if paid within two Business Days of such date, the
  Federal Funds Rate, and thereafter at a rate equal to the Base Rate plus two
  percent (2%) per annum. If such Participant does not pay such amount
  forthwith upon the Swing Line Lender’s demand therefor, and until such time
  as such Participant makes the required payment, the Swing Line Lender shall
  be deemed to continue to have outstanding Swing Line Loans in the amount of
  such unpaid participation obligation for all purposes of the Credit Documents
  other than those provisions requiring the other Participants to purchase a
  participation therein. Further, such Participant shall be deemed to have
  assigned any and all payments made of principal and interest on its Loans,
  and any other amounts due to it hereunder to the Swing Line Lender to fund
  Swing Line Loans in the amount of the participation in Swing Line Loans that
  such Participant failed to purchase pursuant to this Section 2.4(c)
  until such amount has been purchased (as a result of such assignment or
  otherwise).


	
 

	
 


	
 

	
          (d)
  Swing Line Loan Note. The Swing Line Loans made by the Swing Line
  Lender shall, if requested by the Swing Line Lender, be evidenced by a duly
  executed promissory note of the Borrower to the Swing Line Lender in
  substantially the form of Exhibit 2.4(d).


	
 

	
 


	
 

	
          2.5
  Competitive Bid Loans Subfacility.


	
 

	
 


	
 

	
          (a)
  Competitive Bid Loans. Subject to the terms and conditions set forth
  herein, the Borrower may, from time to time, during the period from the Closing Date to the Maturity Date,
  request, and each Lender may, in its sole discretion, agree to make loans to
  the Borrower in accordance with the terms of this Section 2.5 (each a “Competitive
  Bid Loan” and collectively the “Competitive Bid Loans”); provided,
  





42






	
 

	
 


	
 

	
however,
  that (i) the sum of (A) the
  aggregate amount of the Dollar Equivalent of Revolving Loans outstanding,
  plus (B) the aggregate amount of
  Competitive Bid Loans outstanding, plus (C) the aggregate amount of Swing Line Loans
  outstanding, plus (D) the
  aggregate amount of LOC Obligations outstanding shall not exceed the
  Revolving Loan Commitment, (ii) the aggregate amount of Competitive Bid
  Loans outstanding at any one time cannot exceed $500,000,000, (iii) all
  Competitive Bid Loans shall be denominated in Dollars and (iv) if a
  Lender does make a Competitive Bid Loan it shall not reduce such Lender’s
  obligation to make its pro rata share of any Revolving Loan.


	
 

	
 


	
 

	
          (b)
  Competitive Bid Requests. The Borrower may solicit Competitive Bids by
  delivery of a Competitive Bid Request to the Administrative Agent by 11:00
  a.m. on a Business Day not less than one or more than five Business Days
  prior to the date of the requested Competitive Bid Loan. A Competitive Bid
  Request must be substantially in the form of Exhibit 2.5(b) and
  shall specify (i) the date of the requested Competitive Bid Loan (which
  shall be a Business Day), (ii) the amount of the requested Competitive
  Bid Loan and (iii) the applicable Interest Period or Interest Periods
  requested and be accompanied by the Competitive Bid Fee. The Administrative
  Agent shall notify the Lenders of its receipt of a Competitive Bid Request
  and the contents thereof and invite the Lenders to submit Competitive Bids in
  response thereto. The Borrower may not request a Competitive Bid for more
  than four different Interest Periods per Competitive Bid Request and
  Competitive Bid Requests may be made no more frequently than six times every
  calendar month.


	
 

	
 


	
 

	
          (c)
  Competitive Bid Procedure. Each Lender may, in its sole discretion,
  make one or more Competitive Bids to the Borrower in response to a
  Competitive Bid Request. Each Competitive Bid must be received by the
  Administrative Agent not later than 11:00 a.m. on the proposed date of
  the requested Competitive Bid Loan; provided, however, that
  should the Administrative Agent, in its capacity as a Lender, desire to
  submit a Competitive Bid it shall notify the Borrower of its Competitive Bid
  and the terms thereof not later than 15 minutes prior to the time the other
  Lenders are required to submit their Competitive Bid. A Lender may offer to
  make all or part of the requested Competitive Bid Loan and may submit multiple
  Competitive Bids in response to a Competitive Bid Request. Any Competitive
  Bid must specify (i) the particular Competitive Bid Request as to which
  the Competitive Bid is submitted, (ii) the minimum (which shall be not
  less than $10,000,000 and integral multiples of $1,000,000 in excess thereof)
  and maximum principal amounts of the requested Competitive Bid Loan or Loans
  as to which the Lender is willing to make and (iii) the applicable
  interest rate or rates and Interest Period or Interest Periods therefor. A
  Competitive Bid submitted by a Lender in accordance with the provisions
  hereof shall be irrevocable. The Administrative Agent shall promptly notify
  the Borrower of all Competitive Bids made and the terms thereof. The
  Administrative Agent shall send a copy of each of the Competitive Bids to the
  Borrower and each of the Lenders for its records as soon as practicable.


	
 

	
 


	
 

	
          (d)
  Acceptance of Competitive Bids. The Borrower may, in its sole
  discretion, subject only to the provisions of this subsection (d),
  accept or refuse any Competitive Bid offered to it. To accept a Competitive
  Bid, the Borrower shall give oral notification of its acceptance of any or
  all such Competitive Bids (which shall be 





43






	
 

	
 


	
 

	
promptly
  confirmed in writing) to the Administrative Agent by 12:00 noon on the
  proposed date of the Competitive Bid Loan; provided, however,
  (i) the failure by the Borrower to give timely notice of its acceptance
  of a Competitive Bid shall be deemed to be a refusal thereof, (ii) to
  the extent Competitive Bids are for comparable Interest Periods, the Borrower
  may accept Competitive Bids only in ascending order of rates, (iii) the
  aggregate amount of Competitive Bids accepted by the Borrower shall not
  exceed the principal amount specified in the Competitive Bid Request,
  (iv) if the Borrower shall accept a bid or bids made at a particular
  Competitive Bid Rate, but the amount of such bid or bids shall cause the
  total amount of bids to be accepted by the Borrower to be in excess of the
  amount specified in the Competitive Bid Request, then the Borrower shall
  accept a portion of such bid or bids in an amount equal to the amount
  specified in the Competitive Bid Request less the amount of all other
  Competitive Bids accepted with respect to such Competitive Bid Request, which
  acceptance in the case of multiple bids at such Competitive Bid Rate, shall
  be made pro rata in accordance with the amount of each such bid at such
  Competitive Bid Rate and (v) no bid shall be accepted for a Competitive
  Bid Loan unless such Competitive Bid Loan is in a minimum principal amount of
  $10,000,000 and integral multiples of $1,000,000 in excess thereof, except
  that where a portion of a Competitive Bid is accepted in accordance with the
  provisions of clause (iv) of subsection (d) hereof, then in a
  minimum principal amount of $500,000 and integral multiples of $100,000 (but
  not in any event less than the minimum amount specified in the Competitive
  Bid), and in calculating the pro rata allocation of acceptances of portions
  of multiple bids at a particular Competitive Bid Rate pursuant to
  clause (iv) of subsection (d) hereof, the amounts shall be rounded
  to integral multiples of $100,000 in a manner which shall be in the
  discretion of the Borrower. A notice of acceptance of a Competitive Bid given
  by the Borrower in accordance with the provisions hereof shall be
  irrevocable. The Administrative Agent shall, not later than 1:00 p.m. on
  the proposed date of such Competitive Bid Loan, notify each bidding Lender
  whether or not its Competitive Bid has been accepted (and if so, in what
  amount and at what Competitive Bid Rate), and each successful bidder will
  thereupon become bound, subject to the other applicable conditions hereof, to
  make the Competitive Bid Loan in respect of which its bid has been accepted.


	
 

	
 


	
 

	
          (e)
  Funding of Competitive Bid Loans. Each Lender which is to make a
  Competitive Bid Loan shall make its Competitive Bid Loan available to the
  Administrative Agent by 2:00 p.m. on the date specified in the Competitive
  Bid Request by deposit of immediately available funds at the Agency Services
  Address or at such other address as the Administrative Agent may designate in
  writing. The Administrative Agent will, upon receipt, make the proceeds of
  such Competitive Bid Loans available to the Borrower.


	
 

	
 


	
 

	
          (f)
  Maturity of Competitive Bid Loans. Each Competitive Bid Loan shall
  mature and be due and payable in full on the last day of the Interest Period
  applicable thereto. Unless the Borrower shall give notice to the Administrative
  Agent otherwise (or repays such Competitive Bid Loan), or a Default or Event
  of Default exists and is continuing, the Borrower shall be deemed to have
  requested Revolving Loans from all of the Lenders (in the amount of the
  maturing Competitive Bid Loan and accruing interest at the Base Rate), the
  proceeds of which will be used to repay such Competitive Bid Loan.





44








	
 

	
 


	
 

	
          (g)
  Competitive Bid Loan Notes. The Competitive Bid Loans made by each
  Lender shall be evidenced by a duly executed promissory note of the Borrower
  to each Lender that requests a Competitive Bid Loan Note in substantially the
  form of Exhibit 2.5(g). 


	
 

	
 


	
 

	
          2.6 [Intentionally
  Omitted]. 


	
 

	
 


	
 

	
          2.7 Continuations
  and Conversions. 





          Subject
to the terms below, the Borrower shall have the option, on any Business Day, to
continue existing Eurocurrency Rate Loans for a subsequent Interest Period, to
convert Base Rate Loans into Eurocurrency Rate Loans or to convert Eurocurrency
Rate Loans into Base Rate Loans. By no later than 11:00 a.m. (a) on the date of
the requested conversion of a Eurocurrency Rate Loan denominated in Dollars to
a Base Rate Loan or (b) three Business Days prior to the date of the requested
continuation of a Eurocurrency Rate Loan denominated in Dollars or conversion
of a Base Rate Loan to a Eurocurrency Rate Loan denominated in Dollars or (c)
four Business Days (or five Business Days in the case of a Special Notice
Currency) prior to the date of the requested continuation of a Eurocurrency
Rate Loan denominated in Alternative Currencies, the Borrower shall provide
telephonic notice to the Administrative Agent, followed promptly by a written
Notice of Continuation/Conversion, in the form of Exhibit 2.7 setting
forth (i) whether the Borrower wishes to continue or convert such Loans and
(ii) if the request is to continue a Eurocurrency Rate Loan or convert a Base
Rate Loan to a Eurocurrency Rate Loan, the Interest Period applicable thereto.
Notwithstanding anything herein to the contrary, (A) except as provided in
Section 3.11, Eurocurrency Rate Loans may only be continued or converted into
Base Rate Loans on the last day of the Interest Period applicable thereto, (B)
Eurocurrency Rate Loans may not be continued nor may Base Rate Loans be
converted into Eurocurrency Rate Loans during the existence and continuation of
a Default or an Event of Default, (C) any request to continue a Eurocurrency
Rate Loan that fails to comply with the terms hereof or any failure to request
a continuation of a Eurocurrency Rate 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 provided, however, that in the case of a
failure to timely request a continuation of Eurocurrency Rate Loans denominated
in an Alternative Currency, such Loans shall be continued as Eurocurrency Rate
Loans in their original currency with an Interest Period of one month, and (D)
any failure to state the Interest Period with respect to the continuation of a
Eurocurrency Rate Loan or the conversion of a Base Rate Loan to a Eurocurrency
Rate Loan shall constitute a request for a one month Interest Period. No
Revolving Loans may be converted into or continued as a Revolving Loan
denominated in a different currency, but instead must be prepaid in the
original currency of such Revolving Loan and reborrowed in the other currency.
It is understood and agreed that Competitive Bid Loans and Swing Line Loans may
not be continued or converted.  


	
 

	
 


	
 

	
          2.8 Minimum
  Amounts. 





          Each
request for a borrowing, conversion or continuation shall be subject to the
requirements that (a) each Eurocurrency Rate Loan and each Competitive Bid Loan
shall be in a minimum amount of $10,000,000 and in integral multiples of
$1,000,000 in excess thereof, (b) each Base Rate Loan shall be in a minimum
amount of the lesser of $5,000,000 (and in integral multiples of $1,000,000 in
excess thereof) or the remaining amount available under the Revolving Committed



45






Amount, (c)
each Swing Line Loan shall be in a minimum amount of the lesser of $1,000,000
(and in integral multiples of $100,000 in excess thereof) or the remaining
amount available under the Swing Line Committed Amount and (d) no more than ten
Eurocurrency Rate Loans shall be outstanding hereunder at any one time. For the
purposes of this Section 2.8, all Eurocurrency Rate Loans with the same
Interest Periods that begin and end on the same date shall be considered as one
Eurocurrency Rate Loan, but Eurocurrency Rate Loans with different Interest
Periods, even if they begin on the same date, shall be considered as separate
Eurocurrency Rate Loans. 


SECTION 3


GENERAL PROVISIONS APPLICABLE 

TO LOANS AND LETTERS OF CREDIT


	
 

	
 


	
 

	
          3.1 Interest.


	
 

	
 


	
 

	
          (a)
  Interest Rate. Subject to Section 3.1(b), (i) all Base Rate Loans
  shall accrue interest at the Base Rate, (ii) all Eurocurrency Rate Loans
  shall accrue interest at the Eurocurrency Rate plus the Applicable Percentage
  plus (in the case of a Eurocurrency Rate Loan of any Lender which is lent
  from a Lending Office in the United Kingdom or a Participating Member State)
  the Mandatory Cost, (iii) all Swing Line Loans shall accrue interest at the
  Base Rate and (iv) all Competitive Bid Loans shall accrue interest at the
  applicable Competitive Bid Rate with respect to each Competitive Bid Loan. 


	
 

	
 


	
 

	
          (b)
  Default Rate of Interest. Upon the occurrence, and during the
  continuation, of an Event of Default pursuant to Section 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 and except with respect to principal of
  and interest on Loans denominated in an Alternative Currency, 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. Except as otherwise expressly
  provided herein, all payments by the Borrower hereunder with respect to
  principal and interest on Loans denominated in an Alternative Currency 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 such Alternative Currency and in Same Day Funds not later than the
  Applicable Time specified by the Administrative Agent on the dates 





46






specified
herein. Without limiting the generality of the foregoing, the Administrative
Agent may require that any payments due under this Agreement be made in the
United States. If, for any reason, any Borrower is prohibited by any Law from
making any required payment hereunder in an Alternative Currency, such Borrower
shall make such payment in Dollars in the Dollar Equivalent of the Alternative
Currency payment amount. 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 (i)
after 2:00 p.m., in the case of payments in Dollars, or (ii) after the
Applicable Time specified by the Administrative Agent in the case of payments
in an Alternative Currency, shall in each case 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. 


	
 

	
 


	
 

	
          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) Eurocurrency Rate Loans denominated in Dollars may
only be prepaid on three Business Days’ prior written notice to the
Administrative Agent, (B) Eurocurrency Rate Loans denominated in Alternative
Currencies may only be prepaid on four Business Days’ prior written notice to
the Administrative Agent, (C) Eurocurrency Rate Loans denominated in Special
Notice Currencies may only be prepaid on five Business Days’ prior written
notice to the Administrative Agent and (D) Base Rate Loans may be prepaid on
same-day prior written notice to the Administrative Agent, (ii) each such
partial prepayment of Eurocurrency Rate Loans or Base Rate Loans shall be in
the minimum principal amount of $5,000,000 and integral multiples of
$1,000,000, (iii) each such partial prepayment of Swing Line Loans shall be
in the minimum principal amount of $1,000,000 and integral multiples of
$100,000 and (iv) Competitive Bid Loans may not be prepaid unless a breakage
fee equal to the amount of damages suffered by the Lender (other than loss of
anticipated profits) whose Competitive Bid Loan is prepaid is paid to such
Lender (as determined by such Lender in its reasonable discretion). Amounts
prepaid pursuant to this Section 3.3(a) shall be applied as the Borrower may
elect; however, if the Borrower fails to specify, such prepayment will
be applied in the manner set forth in Section 3.3(d) below.  


	
 

	
 


	
 

	
          (b)
  Mandatory Prepayments. If at any time (i) the sum of the aggregate
  amount of the Dollar Equivalent of outstanding Revolving Loans plus the
  aggregate amount of outstanding LOC Obligations plus the aggregate amount of
  outstanding Competitive Bid Loans plus the aggregate amount of outstanding
  Swing Line Loans exceeds the Revolving Committed Amount, (ii) the aggregate
  amount of outstanding Swing Line Loans exceeds the Swing Line Committed Amount,
  (iii) the aggregate amount of outstanding LOC Obligations exceeds the LOC
  Committed Amount or (iv) the amount of outstanding Competitive Bid Loans
  exceeds $500,000,000, the Borrower shall immediately make a principal payment
  to the Administrative Agent (or with respect to LOC Obligations an amount to
  be held as cash collateral) in a manner and in an 





47






	
 

	
 


	
 

	
amount
  necessary to be in compliance with Sections 2.1, 2.2, 2.3, 2.4 and 2.5, as
  applicable and as directed by the Administrative Agent (any such prepayment
  with respect to clause (i) above to be applied as set forth in Section 3.3(c)
  below). 


	
 

	
 


	
 

	
          (c)
Scheduled Repayment of Term Loans. Commencing on the last day of the
first full fiscal quarter following the Closing Date, the Borrower shall
repay the aggregate outstanding principal amount of all Term Loans, in equal
quarterly installments, in each of the relevant one-year periods (each an “Annual
Period”) following the Closing Date set forth in the grid below in an
amount equal to the product of (i) the percentage set forth opposite such
Annual Period in the grid below (the “Repayment Percentage”) and (ii)
the Term Loan Committed Amount:  








	
 

	
 

	
 


	
Annual Period

	
 

	
Repayment Percentage

  of Term Loan

  Committed Amount


	


	
 

	



	
First Year

	
 

	
 5%


	
 

	
 

	
 


	
Second Year

	
 

	
 5%


	
 

	
 

	
 


	
Third Year

	
 

	
10%


	
 

	
 

	
 


	
Fourth Year

	
 

	
10%


	
 

	
 

	
 


	
Fifth Year

	
 

	
70%








	
 

	
 


	
 

	
          (d)
  Application of Prepayments. All amounts paid pursuant to Sections
  3.3(a) and 3.3(b)(i), if the Borrower has not otherwise elected an
  application of such amounts as contemplated in Section 3.3(a), shall be
  applied first to Term Loans (with the amount of such prepayment of the
  Term Loans being applied to the remaining Term Loan amortization payments,
  pro rata in accordance with the amount of each such remaining Term Loan
  amortization payment), second, once all Term Loans have been repaid in
  full, to Swing Line Loans, third, to Revolving Loans (first to Base
  Rate Loans and then to Eurocurrency Rate Loans in direct order of Interest
  Period Maturities), fourth, pro rata, to Competitive Bid Loans and fifth
  to a cash collateral account in respect of LOC Obligations. All prepayments
  under this Section 3.3 shall be subject to Section 3.14. 


	
 

	
 


	
 

	
          3.4 Fees.
  


	
 

	
 


	
 

	
          (a)
  Facility Fees. In consideration of the commitments under the Revolving
  Credit Facility being made available by the Lenders hereunder, the Borrower
  agrees to pay to the Administrative Agent a per annum fee (the “Facility
  Fee”) for the pro rata benefit of each Lender (based upon such Lender’s
  pro rata committed portion of the Revolving Committed Amount), which Facility
  Fee shall be calculated by multiplying, at any time of determination, the
  Applicable Percentage then in effect for the Facility Fee, by the
  daily average amount of the Revolving Committed Amount (whether or not drawn 





48






	
 

	
 

	
 


	
 

	
or available
  to be drawn) during the fiscal quarter or other relevant period for which
  such Facility Fee is being calculated. The Facility 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 for such fiscal quarter, or period ended
  thereon, and on the Maturity Date, with the first such payment to be made on
  the last day of the first full fiscal quarter following the Closing Date. 


	
 

	
 


	
 

	
          (b)
  Letter of Credit Fees. 


	
 

	
 


	
 

	
 

	
          (i)
  Letter of Credit Fees. In consideration of the issuance of Letters of
  Credit hereunder, the Borrower agrees to pay to the Issuing Lender, for the
  pro rata benefit of each Lender (based on each Lender’s Revolving Loan
  Commitment Percentage), a per annum fee (the “Letter of Credit Fees”)
  for each standby Letter of Credit equal to the Applicable Percentage for
  Standby Letter of Credit Fees on the average daily maximum amount available
  to be drawn under each such Letter of Credit (whether or not such maximum
  amount is then in effect under such Letter of Credit) from the date of
  issuance to the date of expiration. The Letter of Credit Fees will be payable
  in arrears on the last day of each fiscal quarter of the Borrower for such
  fiscal quarter, or period ended thereon, and on the Maturity Date, with the
  first such payment to be made on the last day of the first full fiscal
  quarter following the Closing Date. 


	
 

	
 

	
 


	
 

	
 

	
          (ii)
  Issuing Lender Fees. In addition to the Letter of Credit Fees payable
  pursuant to subsection (i) above, the Borrower shall pay to the Issuing
  Lender for its own account, without sharing by the other Lenders, (A) the
  customary, incidental and/or out of pocket charges from time to time to the
  Issuing Lender for its services in connection with the issuance, amendment,
  payment, transfer, administration, cancellation and conversion of, and
  drawings under, Letters of Credit and (B) with respect to each standby Letter
  of Credit, a standby letter of credit fronting fee of .125% per annum of the
  face amount of each Letter of Credit payable quarterly on the tenth day
  following each fiscal quarter of the Borrower and on the Maturity Date
  (collectively, the “Issuing Lender Fees”). 


	
 

	
 

	
 


	
 

	
          (c)
  Administrative Fees. The Borrower agrees to pay to the Administrative
  Agent, for its own account, an annual fee as agreed to between the Borrower
  and the Administrative Agent as set forth in the Fee Letter. 


	
 

	
 


	
 

	
          (d)
  Ticking Fee. If the Closing Date has not occurred on or before the 90th
  day following the date hereof, the Borrower agrees to pay to the
  Administrative Agent a per annum fee for the pro rata benefit of each Lender
  (based upon such Lender’s pro rata portion of the Term Loan Committed Amount
  and the Revolving Committed Amount). Such fee shall begin to accrue on the 91st
  day following the date hereof (if the Closing Date shall not have occurred
  prior to such date) and shall be calculated by multiplying, at any time of determination,
  .08% by the aggregate amount of the Term Loan Committed Amount and the
  Revolving Committed Amount. If the Closing Date has not occurred on 





49






	
 

	
 


	
 

	
or before
  the 90th day following the date hereof, such fee shall be payable
  on the earlier of (i) the Closing Date and (ii) the Termination Date. 


	
 

	
 


	
 

	
          3.5 Payment
  in full at Maturity. 


	
 

	
 


	
          On
  the Maturity Date, the entire outstanding principal balance of all Loans and
  all LOC Obligations, 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 and Swing Line 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, or, in the case of
  interest in respect of Loans denominated in Alternative Currencies as to
  which market practice differs from the foregoing, in accordance with such
  market practice. 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 





50






	
 

	
 


	
 

	
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. 


	
 

	
 


	
 

	
          3.7 Pro
  Rata Treatment. 


	
 

	
 


	
 

	
Except to
  the extent otherwise provided herein: 


	
 

	
 


	
 

	
          (a)
Revolving Loans. Each Revolving Loan borrowing (including, without limitation,
each Mandatory Borrowing), each payment or prepayment of principal of any
Revolving Loan, each payment of fees (other than the Issuing Lender Fees
retained by the Issuing Lender for its own account and the Administrative
Fees retained by the Administrative Agent for its own account), each
reduction of the Revolving Committed Amount, and each conversion or
continuation of any Revolving Loan, shall (except as otherwise provided in
Section 3.11) be allocated pro rata among the relevant Lenders in accordance
with the respective Revolving 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 Revolving Loans and Participation Interests of such Lenders); provided
that, if any Lender shall have failed to pay its applicable pro rata share of
any Revolving Loan, then any amount to which such Lender would otherwise be
entitled pursuant to this subsection (a) 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 subsection (a) 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;
and  


	
 

	
 


	
 

	
          (b)
  Letters of Credit. Each payment of unreimbursed drawings in respect of
  LOC Obligations shall be allocated to each Participant pro rata in accordance
  with its Revolving Loan Commitment Percentage; provided that, if any
  Participant shall have failed to pay its applicable pro rata share of any
  drawing under any Letter of Credit, then any amount to which such Participant
  would otherwise be entitled pursuant to this subsection (b) shall instead be
  payable to the Issuing Lender until the share of such unreimbursed drawing
  not funded by such Lender has been repaid; provided further, that in
  the event any amount paid to any Participant pursuant to this subsection (b)
  is rescinded or must otherwise be returned by the Issuing Lender, each
  Participant shall, upon the request of the Issuing Lender, repay to the
  Administrative Agent for the account of the Issuing Lender the amount so paid
  to such Participant, with interest for the period commencing on the date such
  payment is returned by the Issuing Lender until the date the Issuing Lender
  receives such repayment at a rate per annum equal to, during the period to 





51






	
 

	
 


	
 

	
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.  


	
 

	
 


	
 

	
          (c)
Swing Line Loans. The Swing Line Lender shall receive, for its own account,
all payments or prepayments of principal and interest with respect to the
Swing Line Loans; provided, however, upon the funding of the Participants’
participation interests with respect to a Swing Line Loan pursuant to Section
2.4(c), such Participants shall be entitled to receive their pro rata share
of any payment or prepayment of principal and interest with respect to such
Swing Line Loan.  


	
 

	
 


	
 

	
          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, unreimbursed drawing with respect to any LOC Obligations 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, LOC
  Obligations, 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, LOC Obligation 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 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. 





52






                    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 Eurocurrency funds or deposits (currently
known as “Eurocurrency Liabilities”), additional interest on the unpaid
principal amount of each Eurocurrency Rate Loan equal to (i) (A) the applicable
Eurocurrency Rate divided by (B) one minus the Eurocurrency Reserve Percentage
minus (ii) the applicable Eurocurrency 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
Eurocurrency Rate 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
Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurocurrency Rate for such Eurocurrency Rate Loan, or (c) the
Eurocurrency Rate for such Eurocurrency Rate Loan does not adequately and
fairly reflect the cost to the Lenders of funding such Eurocurrency Rate Loan,
the Administrative Agent will promptly notify the Borrower and all the Lenders.
Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Rate
Loans shall be suspended until the Administrative Agent revokes such notice.
Upon receipt of such notice, the Borrower may revoke any pending Notice of
Borrowing or Notice of Continuation/Conversion with respect to Eurocurrency
Rate 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 Eurocurrency Rate Loans,
or materially restricts the authority 


53






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
Eurocurrency Rate, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurocurrency Rate Loans or to convert Base Rate Loans to Eurocurrency
Rate 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 Eurocurrency Rate 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 Eurocurrency Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate 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 Eurocurrency Rate Loans or
(as the case may be) issuing or participating in Letters of Credit, 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 Eurocurrency 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 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 





54






	
 

	
 


	
 

	
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. 


	
 

	
 


	
 

	
          (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. 





55






	
 

	
 


	
 

	
          (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 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  





56






	
 

	
 


	
 

	
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. 


	
 

	
 


	
 

	
          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 Eurocurrency Rate
  Loan on a day other than the last day of the Interest Period for such 





57








	
 

	
 


	
 

	
Eurocurrency
  Rate 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 Eurocurrency Rate Loan) to prepay, borrow, continue or convert any
  Eurocurrency Rate Loan on the date or in the amount previously requested by
  the Borrower; or 


	
 

	
 


	
 

	
          (c)
  any repayment of a Competitive Bid Loan on a date which is not the last day
  of the Interest Period applicable thereto or any failure by the Borrower to
  borrow a Competitive Bid Loan on the date in the amount previously agreed to
  by the Borrower; or 





                    (d)
any assignment required pursuant to Section 2.2(e)(iii), 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 Eurocurrency Rate Loan
made by it at the Eurocurrency Rate for
such Eurocurrency Rate 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 Eurocurrency Rate 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  


58






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 


59






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. 


60






                    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). 


61






                    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
  (or the Swing Line Lender) 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. 





62






	
 

	
 

	
 


	
 

	
 

	
          (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 or terminated, (B) receipt by the





63






	
 

	
 


	
 

	
Administrative
Agent of evidence satisfactory to it that funds sufficient to defease the
Floating Rate PIK Toggle Notes of Ameripath Intermediate Holdings, Inc shall
be 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)
  Bridge Credit Agreement. The Bridge 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: 


64






	
 

	
 


	
 

	
          (a)
  Notice. The Borrower shall have delivered (i) 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 2.2, (ii) in the
  case of any Letter of Credit, to the Issuing Lender, an appropriate request
  for issuance of a Letter of Credit in accordance with the provisions of
  Section 2.3, (iii) in the case of any Swing Line Loan, to the Swing Line
  Lender, a Swing Line Loan Request, duly executed and completed, by the time
  specified in Section 2.4, and (iv) in the case of any Competitive Bid Loan,
  to the Administrative Agent, an appropriate Competitive Bid Request, duly
  executed and completed, by the time specified in Section 2.5. 


	
 

	
 


	
 

	
          (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) or to the issuance of a Letter
of Credit, as the case may be, (i) the sum of the Dollar Equivalent of
outstanding Revolving Loans plus outstanding LOC Obligations plus outstanding
Swing Line Loans plus outstanding Competitive Bid Loans shall not exceed the
Revolving Committed Amount, (ii) the sum of outstanding LOC Obligations shall
not exceed the LOC Committed Amount, (iii) the sum of outstanding Swing Line
Loans shall not exceed the Swing Line Committed Amount and (iv) the sum of
outstanding Competitive Bid Loans shall not exceed $500,000,000.  





The delivery
of each Notice of Borrowing, each request for a Letter of Credit, each Swing
Line Loan Request and each Competitive Bid Loan Request 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 


65






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.


                    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. 


66






                    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 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 


67






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, 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. 


68







                    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 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.  No proceeds of the Loans will be
used for the Acquisition of another Person unless such Acquisition is a
Permitted Acquisition. 


                    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 





69







	
 

	
 

	
 


	
 

	
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 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. 





70







	
 

	
 

	
 

	
 


	
 

	
 

	
          (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 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





71






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 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 and LOC Obligations, together with interest
and fees and other obligations then due and payable hereunder, have been paid
in full and the Commitments and Letters of Credit hereunder shall have
terminated: 


                    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 





72







	
 

	
 


	
 

	
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 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 





73







	
 

	
 

	
 


	
 

	
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 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 





74







	
 

	
 

	
 


	
 

	
 

	
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 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 





75







	
 

	
 


	
 

	
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 (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. 





76






                    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 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. 


77






                    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 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.  The Borrower will use the Letters of Credit
solely for the purposes set forth in Section 2.3(a). 


                    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. 


78






                    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 any 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 and LOC Obligations, together with interest,
fees and other obligations then due and payable hereunder, have been paid in
full and the Commitments and Letters of Credit hereunder shall have terminated:



79






                     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. 





80






                    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 


81






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 


82






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) the prepayment of (1) the Term Loans and, once the
  principal amount of Term Loans has been repaid in full, to the prepayment of
  the Revolving Loans (with a corresponding permanent reduction in the
  Revolving Committed Amount) or (2) debt ranking equally with the Loans; 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. 







83






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 or any reimbursement obligation arising from drawings under Letters of
  Credit, 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. 


	
 

	
 

	
 


	
 

	
          (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 





84







	
 

	
 


	
 

	
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 (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. 





85







	
 

	
 


	
 

	
          (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. 


	
 

	
 


	
 

	
          (b)
  Acceleration of Loans.  Declare
  the unpaid principal of and any accrued interest in respect of all Loans, any
  reimbursement obligations arising from drawings under Letters of Credit 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 





86







	
 

	
 


	
 

	
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)
  Cash Collateral.  Direct the
  Borrower to pay (and the Borrower agrees that upon receipt of such notice, or
  upon the occurrence of an Event of Default under Section 9.1(f), it will
  immediately pay) to the Administrative Agent additional cash, to be held by
  the Administrative Agent, for the benefit of the Lenders, in a cash
  collateral account as additional security for the LOC Obligations in respect
  of subsequent drawings under all then outstanding Letters of Credit in an
  amount equal to the maximum aggregate amount which may be drawn under all
  Letters of Credits then outstanding. 


	
 

	
 


	
 

	
          (d)
  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 the Commitments shall automatically terminate and all Loans, all
reimbursement obligations under Letters of Credit, 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 causes the Commitments to terminate and/or 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, the Issuing Lender,
the Swing Line Lender 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; 


87






          FOURTH,
to the payment of the outstanding principal amount of the Loans and
unreimbursed drawings under Letters of Credit, and to the payment or cash
collateralization of the outstanding LOC Obligations, 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 


          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;
(b) each of the Lenders shall receive an amount equal to its pro rata share
(based on the proportion that the then outstanding Loans, and LOC Obligations
held by such Lender bears to the aggregate then outstanding Loans and LOC
Obligations of amounts available to be applied; and (c) to the extent that any
amounts available for distribution pursuant to clause “FOURTH” above are
attributable to the issued but undrawn amount of outstanding Letters of Credit,
such amounts shall be held by the Administrative Agent in a cash collateral
account and applied (i) first, to reimburse the Issuing Lender from time to
time for any drawings under such Letters of Credit and (ii) then, following the
expiration of all Letters of Credit, to all other obligations of the types
described in clauses “FOURTH” and “FIFTH” above in the manner provided in this
Section 9.3. 


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. 





88







	
 

	
 


	
 

	
          (b)
  The Issuing Lender shall act on behalf of the Lenders with respect to any
  Letters of Credit issued by it and the documents associated therewith until
  such time (and except for so long) as the Administrative Agent may agree at
  the request of the Required Lenders to act for the Issuing Lender with
  respect thereto; provided, however, that the Issuing Lender
  shall have all of the benefits and immunities (i) provided to the
  Administrative Agent in this Section 10 with respect to any acts taken by or
  omissions of the Issuing Lender in connection with Letters of Credit issued
  by it or proposed to be issued by it and the application and agreements for
  letters of credit pertaining to the Letters of Credit as fully as if the term
  “Administrative Agent” as used in this Section 10 included the Issuing Lender
  with respect to such acts or omissions, and (ii) as additionally provided
  herein with respect to the Issuing Lender. 


	
 

	
 


	
 

	
          (c)
  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. 


                    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. 


89






                    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 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 


90






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. 


91







                    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 or the Issuing Lender
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 or the Issuing Lender, 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 


92






11.5 and 11.10
shall continue to inure to its benefit as to any actions taken or omitted to be
taken 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. 



93






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
  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 





94







	
 

	
 


	
 

	
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
  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.





95







	
 

	
 


	
 

	
          (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. 


                    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





96







	
 

	
 


	
 

	
(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
  (including participations in LOC Obligations and in Swing Line 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 applicable 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 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, except
  that this clause (ii) shall not (A) apply to the Swing Line Lender’s rights
  and obligations in respect of Swing Line Loans or (B) prohibit 





97








	
 

	
 

	
 


	
 

	
 

	
any Lender
  from assigning all or a portion of its Revolving Committed Amount and Term
  Loan Committed Amount on a non-pro rata basis;


	
 

	
 

	
 


	
 

	
 

	
          (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;


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
          (B)
  the consent of the Administrative Agent (such consent not to be unreasonably
  withheld or delayed) shall be required for assignments in respect of (1) any
  Term Loan Committed Amount or Revolving Committed Amount if such assignment
  is to a Person that is not a Lender with a Commitment in respect of the
  applicable Senior Credit Facility, an Affiliate of such Lender or an Approved
  Fund with respect to such Lender, or (2) any Term Loan to a Person that is
  not a Lender, an Affiliate of a Lender or an Approved Fund;


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
          (C)
  the consent of the Issuing Lender (such consent not to be unreasonably
  withheld or delayed) shall be required for any assignment that increases the
  obligation of the assignee to participate in exposure under one or more
  Letters of Credit (whether or not then outstanding); and


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
          (D)
  the consent of the Swing Line Lender (such consent not to be unreasonably
  withheld or delayed) shall be required for any assignment in respect of the
  Revolving Credit Facility.








	
 

	
 

	
 


	
 

	
 

	
          (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 


98






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 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 Commitment 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 





99







	
 

	
 


	
 

	
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.


	
 

	
 


	
 

	
          (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





100







	
 

	
 


	
 

	
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 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 


101






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. 


	
 

	
 


	
 

	
          (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 and 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. 





102







	
 

	
 


	
 

	
          (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.





                    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 or unreimbursed drawing of any Letter of
  Credit;


	
 

	
 


	
 

	
          (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 or unreimbursed drawing of
  any Letter of Credit; 


	
 

	
 


	
 

	
          (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, (i) no provisions of Section 10 may be amended or modified without
the consent of the Administrative Agent, (ii) no provisions of Section 2.3 may
be amended or modified without the consent of the Issuing Lender and (iii) no
provisions of Section 2.4 may be amended or modified without the consent of the
Swing Line Lender. 


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 


103






that affects
the Loans or the Letters of Credit, 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 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 of its 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 


104






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, the issuance of the Letters of Credit
and the repayment of the Loans, LOC Obligations 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
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. 





105






                    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 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 


106






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. 


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) 





107







	
 

	
 


	
 

	
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, LOC Obligations, interest, fees and other Credit
  Party Obligations have been paid in full and all Commitments and Letters of
  Credit 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 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 


108






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. 


                    11.20
Judgment Currency.


          If,
for the purposes of obtaining judgment in any court, it is necessary to convert
a sum due hereunder or any other Credit Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with
normal banking procedures the Administrative Agent could purchase the first
currency with such other currency on the Business Day preceding that on which
final judgment is given. The obligation of each Credit Party in respect of any
such sum due from it to any Agent or the Lenders hereunder or under the other
Credit Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance
with the applicable provisions of this Agreement (the “Agreement Currency”),
be discharged only to the extent that on the Business Day following receipt by
the Administrative Agent of any sum adjudged to be so due in the Judgment
Currency, the Administrative Agent may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the sum originally
due to the Administrative Agent from any Credit Party in the Agreement
Currency, such Credit Party agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the
Person to whom such obligation was owing against such loss. If the amount of
the Agreement Currency so purchased is greater than the sum originally due to
the Administrative Agent in such currency, the Administrative Agent agrees to
return the amount of any excess to such Borrower (or to any other Person who
may be entitled thereto under applicable law). 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


109







          Each
of the parties hereto has caused a counterpart of this 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 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










Signature Page to Credit Agreement

Quest Diagnostics Incorporated


	
 

	
 

	
 


	
 

	
LABONE OF OHIO, INC.,


	
 

	
a Delaware
  corporation


	
 

	
 


	
 

	
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










Signature Page to Credit Agreement

Quest Diagnostics Incorporated


	
 

	
 

	
 


	
 

	
QUEST DIAGNOSTICS
  NICHOLS INSTITUTE, INC.,


	
 

	
a Virginia corporation


	
 

	
 

	
 


	
 

	
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











Signature Page to Credit Agreement

Quest Diagnostics Incorporated


	
 

	
 

	
 


	
 

	
QUEST DIAGNOSTICS FINANCE INCORPORATED,


	
 

	
a Delaware
  corporation


	
 

	
 

	
 


	
 

	
By:

	
 /s/ Stephen A. Calamari


	
 

	
 

	



	
 

	
Name:

	
Stephen A.
  Calamari


	
 

	
Title:

	
Treasurer










Signature Page to 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










Signature Page to Credit Agreement

Quest Diagnostics Incorporated


	
 

	
 

	
 


	
 

	
MORGAN STANLEY SENIOR FUNDING, INC.


	
 

	
As a Lender,


	
 

	
 

	
 


	
 

	
By:

	
/s/ Anish Shah


	
 

	
 

	



	
 

	
Name:

	
Anish Shah


	
 

	
Title:

	
Vice
  President


	
 

	
 

	
 


	
 

	
NORDEA BANK
  FINLAND PLC,


	
 

	
New York and
  Grant Cayman Branches


	
 

	
 

	
 


	
 

	
By:

	
/s/ Henrik
  M. Steffensen


	
 

	
 

	



	
 

	
Name:

	
Henrik M.
  Steffensen


	
 

	
Title:

	
Senior Vice
  President 


	
 

	
 

	
 


	
 

	
By:

	
/s/ Gerald
  E. Chelius


	
 

	
 

	



	
 

	
Name:

	
Gerald E.
  Chelius


	
 

	
Title:

	
SVP Credit


	
 

	
 

	
 


	
 

	
Wachovia
  Bank, National Association


	
 

	
 

	
 


	
 

	
By:

	
/s/ Jeanette
  A. Griffin


	
 

	
 

	



	
 

	
Name:

	
Jeanette A.
  Griffin


	
 

	
Title:

	
Director


	
 

	
 

	
 


	
 

	
SUNTRUST
  BANK


	
 

	
 

	
 


	
 

	
By:

	
/s/ Helen C.
  Hartz


	
 

	
 

	



	
 

	
Name:

	
Helen C.
  Hartz


	
 

	
Title:

	
Vice
  President


	
 

	
 

	
 


	
 

	
Union Bank
  of California, N. A.


	
 

	
 

	
 


	
 

	
By:

	
/s/ Richard
  A. Lopatt


	
 

	
 

	



	
 

	
Name:

	
Richard A. Lopatt


	
 

	
Title:

	
Vice
  President


	
 

	
 

	
 


	
 

	
MERRILL
  LYNCH BANK USA


	
 

	
 

	
 


	
 

	
By:

	
/s/ Louis
  Alder


	
 

	
 

	



	
 

	
Name:

	
Louis Alder


	
 

	
Title:

	
Director











Signature Page to Credit Agreement

Quest Diagnostics Incorporated


	
 

	
 

	
 


	
 

	
Manufacturers and Traders Trust Company


	
 

	
 

	
 


	
 

	
By:

	
/s/ Laurel
  LB Magruder


	
 

	
 

	



	
 

	
Name:

	
Laurel LB
  Magruder


	
 

	
Title:

	
Vice
  President


	
 

	
 

	
 


	
 

	
KeyBank National Association


	
 

	
 

	
 


	
 

	
By: /s/ J.T.
  Taylor


	
 

	
Name: J.T.
  Taylor


	
 

	
Title: Senior
  Vice President


	
 

	
 

	
 


	
 

	
SUMITOMO MITSUI BANKING


	
 

	
CORPORATION


	
 

	
 

	
 


	
 

	
By:

	
/s/ David A.
  Buck


	
 

	
 

	



	
 

	
Name:

	
David A.
  Buck


	
 

	
Title:

	
Senior Vice
  President


	
 

	
 

	
 


	
 

	
Calyon New York Bank


	
 

	
 

	
 


	
 

	
By:

	
/s/ Thomas
  Randolph


	
 

	
 

	



	
 

	
Name:

	
Thomas
  Randolph


	
 

	
Title:

	
Managing Director


	
 

	
 

	
 


	
 

	
FIFTH THIRD BANK


	
 

	
 

	
 


	
 

	
By:

	
/s/ George
  B. Davis


	
 

	
 

	



	
 

	
Name:

	
George B.
  Davis


	
 

	
Title:

	
Vice
  Presient


	
 

	
 

	
 


	
 

	
The Royal Bank of Scotland plc


	
 

	
 

	
 


	
 

	
By:

	
/s/ Iain
  Stewart


	
 

	
 

	



	
 

	
Name:

	
Iain tewart


	
 

	
Title:

	
Managing
  Director










Signature Page to Credit Agreement

Quest Diagnostics Incorporated


	
 

	
 

	
 


	
 

	
FORTIS CAPITAL CORP.


	
 

	
 

	
 


	
 

	
By:

	
/s/ John W.
  Deegan


	
 

	
 

	



	
 

	
Name:

	
John W.
  Deegan


	
 

	
Title:

	
Senior Vice
  President


	
 

	
 

	
 


	
 

	
By:

	
/s/ Rachel
  Lanava


	
 

	
 

	



	
 

	
Name:

	
Rachel
  Lanava


	
 

	
Title:

	
Vice
  President


	
 

	
 

	
 


	
 

	
Taipei Fubon Commercial Bank, New York Agency


	
 

	
 

	
 


	
 

	
By:

	
/s/ Sophia
  Jing


	
 

	
 

	



	
 

	
Name:

	
Sophia Jing


	
 

	
Title: 

	
FVP &
  General manager


	
 

	
 

	
 


	
 

	
JPMorgan Chase Bank, N.A.


	
 

	
 

	
 


	
 

	
By:

	
/s/ Harold
  V. Garrity III


	
 

	
 

	



	
 

	
Name:

	
Harold V.
  Garrity III


	
 

	
Title:

	
Vice
  President


	
 

	
 

	
 


	
 

	
COMMERCE BANK, N.A.


	
 

	
 

	
 


	
 

	
By: 

	
 /s/ Jamison Tranfalia


	 	 	

	
 

	
Name:

	
 Jamison Tranfalia


	
 

	
Title: 

	Vice President
	
 

	
 

	
 


	
 

	
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,


	
 

	
NEW YORK BRANCH


	
 

	
 

	
 


	
 

	
By:

	
/s/ Lillian
  Kim


	
 

	
 

	



	
 

	
Name:

	
Lillian Kim


	
 

	
Title:

	
Authorized
  Signatory


	
 

	
 

	
 


	
 

	
The Northern Trust Company


	
 

	
 

	
 


	
 

	
By:

	
/s/ Courtney
  L. O’Connor


	
 

	
 

	



	
 

	
Name:

	
Courtney L.
  O’Connor


	
 

	
Title:

	
2nd
  Vice President










Signature Page to Credit Agreement

Quest Diagnostics Incorporated


	
 

	
 

	
 


	
 

	
BARCLAYS BANK PLC


	
 

	
 

	
 


	
 

	
By:

	
/s/ Nicholas
  Bell


	
 

	
 

	



	
 

	
Name:

	
Nicholas
  Bell


	
 

	
Title:

	
Director


	
 

	
 

	
 


	
 

	
Citibank, N.A.


	
 

	
 

	
 


	
 

	
By:

	
/s/
  Christopher Conway


	
 

	
 

	



	
 

	
Name:

	
Christopher
  Conway


	
 

	
Title:

	
Vice
  President


	
 

	
 

	
 


	
 

	
CHANG HWA COMMERCIAL BANK, LTD.


	
 

	
LOS ANGELES BRANCH


	
 

	
 

	
 


	
 

	
By:

	
/s/ Wen-Che
  Chen


	
 

	
 

	



	
 

	
Name:

	
Wen-Che Chen 


	
 

	
Title:

	
VP &
  General Manager


	
 

	
 

	
 


	
 

	
Wells Fargo Bank, N.A.


	
 

	
 

	
 


	
 

	
By:

	
/s/ Donald
  P. Schwartz


	
 

	
 

	



	
 

	
Name: 

	
Donald P
  Schwartz


	
 

	
Title:

	
Sr. V.P.


	
 

	
 

	
 


	
 

	
U.S. Bank, N.A.


	
 

	
 

	
 


	
 

	
By:

	
/s/ Thomas
  A. Heckman


	
 

	
 

	



	
 

	
Name:

	
Thomas A.
  Heckman


	
 

	
Title:

	
Vice
  President


	
 

	
 

	
 


	
 

	
THE BANK OF NEW YORK


	
 

	
 

	
 


	
 

	
By:

	
/s/ John M.
  Lokay, Jr.


	
 

	
 

	



	
 

	
Name:

	
John M.
  Lokay, Jr.


	
 

	
Title:

	
Vice
  President


	
 

	
 

	
 


	
 

	
Mizuho Corporate Bank, Ltd.


	
 

	
 

	
 


	
 

	
By:

	
/s/ Raymond
  Ventura


	
 

	
 

	



	
 

	
Name:

	
Raymond
  Ventura


	
 

	
Title:

	
Deputy
  General Manager










Signature Page to Credit Agreement

Quest Diagnostics Incorporated


	
 

	
 

	
 


	
 

	
PNC Bank, National Association


	
 

	
 

	
 


	
 

	
By:

	
/s/ Michael
  Richards


	
 

	
 

	



	
 

	
Name: Michael
  Richards


	
 

	
Title: Senior
  Vice President