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EXHIBIT 10.4
EXECUTION COPY
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GUARANTEE AND COLLATERAL AGREEMENT
dated as of
March 27, 2003,
among
AMERIPATH, INC.,
AMERIPATH HOLDINGS, INC.,
the Subsidiaries of AMERIPATH, INC.,
identified herein,
and
CREDIT SUISSE FIRST BOSTON,
as Collateral Agent
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01. Credit Agreement....................................................................1
SECTION 1.02. Other Defined Terms.................................................................1
ARTICLE II
GUARANTEE
SECTION 2.01. Guarantee...........................................................................5
SECTION 2.02. Guarantee of Payment................................................................5
SECTION 2.03. No Limitations, Etc.................................................................5
SECTION 2.04. Reinstatement.......................................................................6
SECTION 2.05. Agreement To Pay; Subrogation.......................................................6
SECTION 2.06. Information.........................................................................7
ARTICLE III
PLEDGE OF SECURITIES
SECTION 3.01. Pledge..............................................................................7
SECTION 3.02. Delivery of the Pledged Collateral..................................................8
SECTION 3.03. Representations, Warranties and Covenants...........................................8
SECTION 3.04. Certification of Limited Liability Company Interests and Limited
Partnership Interests..............................................................9
SECTION 3.05. Registration in Nominee Name; Denominations........................................10
SECTION 3.06. Voting Rights; Dividends and Interest, etc.........................................10
ARTICLE IV
SECURITY INTERESTS IN PERSONAL PROPERTY
SECTION 4.01. Security Interest..................................................................12
SECTION 4.02. Representations and Warranties.....................................................14
SECTION 4.03. Covenants..........................................................................15
SECTION 4.04. Other Actions......................................................................18
SECTION 4.05. Covenants regarding Patent, Trademark and Copyright Collateral.....................21
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ARTICLE V
REMEDIES
SECTION 5.01. Remedies upon Default..............................................................23
SECTION 5.02. Application of Proceeds............................................................24
SECTION 5.03. Grant of License to Use Intellectual Property......................................25
SECTION 5.04. Securities Act, etc................................................................25
ARTICLE VI
INDEMNITY, SUBROGATION AND SUBORDINATION
SECTION 6.01. Indemnity and Subrogation..........................................................26
SECTION 6.02. Contribution and Subrogation.......................................................26
SECTION 6.03. Subordination......................................................................27
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Notices............................................................................27
SECTION 7.02. Security Interest Absolute.........................................................27
SECTION 7.03. Survival of Agreement..............................................................28
SECTION 7.04. Binding Effect; Several Agreement..................................................28
SECTION 7.05. Successors and Assigns.............................................................28
SECTION 7.06. Collateral Agent's Fees and Expenses; Indemnification..............................28
SECTION 7.07. Collateral Agent Appointed Attorney-in-Fact........................................29
SECTION 7.08. Applicable Law.....................................................................30
SECTION 7.09. Waivers; Amendment.................................................................30
SECTION 7.10. Waiver of Jury Trial...............................................................30
SECTION 7.11. Severability.......................................................................31
SECTION 7.12. Counterparts.......................................................................31
SECTION 7.13. Headings...........................................................................31
SECTION 7.14. Jurisdiction; Consent to Service of Process........................................31
SECTION 7.15. Termination or Release.............................................................32
SECTION 7.16. Additional Grantors................................................................33
SECTION 7.17. Right of Setoff....................................................................33
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SCHEDULES
Schedule I Subsidiary Guarantors
Schedule II Capital Stock; Debt Securities
Schedule III Intellectual Property
EXHIBITS
Exhibit I Form of Supplement
Exhibit II Form of Perfection Certificate
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GUARANTEE AND COLLATERAL AGREEMENT dated as of
March 27, 2003, among AMERIPATH, INC., a Delaware
corporation (the "BORROWER"), AMERIPATH HOLDINGS, INC., a
Delaware corporation ("HOLDINGS"), the Subsidiaries of the
Borrower identified herein and CREDIT SUISSE FIRST BOSTON
("CSFB") as collateral agent (in such capacity, the
"COLLATERAL AGENT").
Reference is made to the Credit Agreement dated as of March 27, 2003
(as amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Borrower, Holdings, the lenders from time to time party
thereto (the "LENDERS") and CSFB, as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT"). The Lenders have agreed to extend credit to the
Borrower pursuant to, and upon the terms and conditions specified in, the Credit
Agreement. The obligations of the Lenders to extend such credit to the Borrower
are conditioned upon, among other things, the execution and delivery of this
Agreement by Holdings, the Borrower and the Subsidiary Guarantors. Holdings and
the Subsidiary Guarantors are affiliates of the Borrower, will derive
substantial benefits from the extension of credit to the Borrower pursuant to
the Credit Agreement and are willing to execute and deliver this Agreement in
order to induce the Lenders to extend such credit. Accordingly, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CREDIT AGREEMENT. (a) Capitalized terms used in this
Agreement and not otherwise defined herein have the meanings specified in the
Credit Agreement. All terms defined in the New York UCC (as defined herein) and
not defined in this Agreement have the meanings specified therein; all
references to the Uniform Commercial Code shall mean the New York UCC; the term
"INSTRUMENT" shall have the meaning specified in Article 9 of the New York UCC.
(b) The rules of construction specified in Section 1.02 of the Credit
Agreement also apply to this Agreement.
SECTION 1.02. OTHER DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ACCOUNT DEBTOR" means any person who is or who may become obligated
to any Grantor under, with respect to or on account of an Account.
"ACCOUNTS RECEIVABLE" shall mean all Accounts and all right, title and
interest in any returned goods, together will all rights, titles, securities and
guarantees with respect thereto, including any rights to stoppage in transit,
replevin, reclamation and
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resales, and all related security interests, liens and pledges, whether
voluntary or involuntary, in each case whether now existing or owned or
hereafter arising or acquired.
"ARTICLE 9 COLLATERAL" has the meaning assigned to such term in
Section 4.01.
"COLLATERAL" means Article 9 Collateral and Pledged Collateral.
"COPYRIGHT LICENSE" means any written agreement, now or hereafter in
effect, granting any right to any third party under any copyright now or
hereafter owned by any Grantor or that such Grantor otherwise has the right to
license, or granting any right to any Grantor under any copyright now or
hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"COPYRIGHTS" means all of the following now owned or hereafter
acquired by any Grantor: (a) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise, and (b) all registrations and applications
for registration of any such copyright in the United States or any other
country, including registrations, recordings, supplemental registrations and
pending applications for registration in the United States Copyright Office (or
any successor office or any similar office in any other country), including
those listed on Schedule III.
"CREDIT AGREEMENT" has the meaning assigned to such term in the
preliminary statement of this Agreement.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity interests in any person, or any obligations
convertible into or exchangeable for, or giving any person a right, option or
warrant to acquire such equity interests or such convertible or exchangeable
obligations.
"GENERAL INTANGIBLES" means all choses in action and causes of action
and all other intangible personal property of any Grantor of every kind and
nature (other than Accounts) now owned or hereafter acquired by any Grantor,
including all rights and interests in partnerships, limited partnerships,
limited liability companies and other unincorporated entities, corporate or
other business records, indemnification claims, contract rights (including
rights under leases, whether entered into as lessor or lessee, Hedging
Agreements and other agreements), Intellectual Property, goodwill,
registrations, franchises, tax refund claims and any letter of credit,
guarantee, claim, security interest or other security held by or granted to any
Grantor to secure payment by an Account Debtor of any of the Accounts.
"GRANTORS" means Holdings, the Borrower and the Subsidiary Guarantors.
"GUARANTORS" means Holdings and the Subsidiary Guarantors.
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"INTELLECTUAL PROPERTY" means all intellectual and similar property of
any Grantor of every kind and nature now owned or hereafter acquired by any
Grantor, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and
databases and all embodiments or fixations thereof and related documentation,
registrations and franchises, and all additions, improvements and accessions to,
and books and records describing or used in connection with, any of the
foregoing.
"LICENSE" means any Patent License, Trademark License, Copyright
License or other license or sublicense agreement to which any Grantor is a
party, including those listed on Schedule III.
"LOAN DOCUMENT OBLIGATIONS" means (a) the due and punctual payment of
(i) the principal of and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral, and
(iii) all other monetary obligations of the Borrower to any of the Secured
Parties under the Credit Agreement and each of the other Loan Documents,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), (b)
the due and punctual performance of all other obligations of the Borrower under
or pursuant to the Credit Agreement and each of the other Loan Documents, and
(c) the due and punctual payment and performance of all the obligations of each
other Loan Party under or pursuant to this Agreement and each of the other Loan
Documents.
"NEW YORK UCC" means the Uniform Commercial Code as from time to time
in effect in the State of New York.
"OBLIGATIONS" means (a) the Loan Document Obligations and (b) the due
and punctual payment and performance of all obligations of each Loan Party under
each Hedging Agreement that (i) is in effect on the Closing Date with a
counterparty that is a Lender or an Affiliate of a Lender as of the Closing Date
or (ii) is entered into after the Closing Date with any counterparty that is a
Lender or an Affiliate of a Lender at the time such Hedging Agreement is entered
into.
"PATENT LICENSE" means any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any invention
on which a patent, now or hereafter owned by any Grantor or that any Grantor
otherwise has the right to license, is in existence, or granting to any Grantor
any right to make, use or sell any
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invention on which a patent, now or hereafter owned by any third party, is in
existence, and all rights of any Grantor under any such agreement,
"PATENTS" means all of the following now owned or hereafter acquired
by any Grantor: (a) all letters patent of the United States or the equivalent
thereof in any other country, all registrations and recordings thereof, and all
applications for letters patent of the United States or the equivalent thereof
in any other country, including registrations, recordings and pending
applications in the United States Patent and Trademark Office (or any successor
or any similar offices in any other country), including those listed on Schedule
III, and (b) all reissues, continuations, divisions, continuations-in-part,
renewals or extensions thereof, and the inventions disclosed or claimed therein,
including the right to make, use and/or sell the inventions disclosed or claimed
therein.
"PERFECTION CERTIFICATE" means a certificate substantially in the form
of Exhibit II, completed and supplemented with the schedules and attachments
contemplated thereby, and duly executed by two Financial Officers.
"PLEDGED COLLATERAL" has the meaning assigned to such term in
Section 3.01.
"PLEDGED DEBT SECURITIES" has the meaning assigned to such term in
Section 3.01.
"PLEDGED SECURITIES" means any promissory notes, stock certificates or
other securities now or hereafter included in the Pledged Collateral, including
all certificates, instruments or other documents representing or evidencing any
Pledged Collateral.
"PLEDGED STOCK" has the meaning assigned to such term in Section 3.01.
"PROCEEDS" has the meaning specified in Section 9-102 of the New York
UCC.
"SECURED PARTIES" means (a) the Lenders, (b) the Administrative Agent,
(c) the Collateral Agent, (d) the Issuing Bank, (e) each counterparty to any
Hedging Agreement with a Loan Party that either (i) is in effect on the Closing
Date if such counterparty is a Lender or an Affiliate of a Lender as of the
Closing Date or (ii) is entered into after the Closing Date if such counterparty
is a Lender or an Affiliate of a Lender at the time such Hedging Agreement is
entered into, (f) the beneficiaries of each indemnification obligation
undertaken by any Loan Party under any Loan Document and (g) the successors and
assigns of each of the foregoing.
"SECURITY INTEREST" has the meaning assigned to such term in
Section 4.01.
"SUBSIDIARY GUARANTORS" means (a) the Subsidiaries identified on
Schedule I and (b) each other Subsidiary that becomes a party to this Agreement
as a Subsidiary Guarantor after the Closing Date.
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"TRADEMARK LICENSE" means any written agreement, now or hereafter in
effect, granting to any third party any right to use any trademark now or
hereafter owned by any Grantor or that any Grantor otherwise has the right to
license, or granting to any Grantor any right to use any trademark now or
hereafter owned by any third party, and all rights of any Grantor under any such
agreement.
"TRADEMARKS" means all of the following now owned or hereafter
acquired by any Grantor: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, trade dress, logos, other source or business identifiers, designs and
general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and
recording applications filed in connection therewith, including registrations
and registration applications in the United States Patent and Trademark Office
(or any successor office) or any similar offices in any State of the United
States or any other country or any political subdivision thereof, and all
extensions or renewals thereof, including those listed on Schedule III, (b) all
goodwill associated therewith or symbolized thereby and (c) all other assets,
rights and interests that uniquely reflect or embody such goodwill.
ARTICLE II
GUARANTEE
SECTION 2.01. GUARANTEE. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, the due and punctual payment and performance of the
Obligations. Each of the Guarantors further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation. Each of the Guarantors waives
presentment to, demand of payment from and protest to the Borrower or any other
Loan Party of any of the Obligations, and also waives notice of acceptance of
its guarantee and notice of protest for nonpayment.
SECTION 2.02. GUARANTEE OF PAYMENT. Each of the Guarantors further
agrees that its guarantee hereunder constitutes a guarantee of payment when due
and not of collection, and waives any right to require that any resort be had by
the Collateral Agent or any other Secured Party to any security held for the
payment of the Obligations or to any balance of any deposit account or credit on
the books of the Collateral Agent or any other Secured Party in favor of the
Borrower or any other person.
SECTION 2.03. NO LIMITATIONS, ETC. (a) Except for termination of a
Guarantor's obligations hereunder as expressly provided in Section 7.15, the
obligations of each Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the
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foregoing, the obligations of each Guarantor hereunder shall not be discharged
or impaired or otherwise affected by (i) the failure of the Collateral Agent or
any other Secured Party to assert any claim or demand or to enforce any right or
remedy under the provisions of any Loan Document or otherwise; (ii) any
rescission, waiver, amendment or modification of, or any release from any of the
terms or provisions of, any Loan Document or any other agreement, including with
respect to any other Guarantor under this Agreement; (iii) the release of any
security held by the Collateral Agent or any other Secured Party for the
Obligations or any of them; (iv) any default, failure or delay, wilful or
otherwise, in the performance of the Obligations; or (v) any other act or
omission that may or might in any manner or to any extent vary the risk of any
Guarantor or otherwise operate as a discharge of any Guarantor as a matter of
law or equity (other than the indefeasible payment in full in cash of all the
Obligations). Each Guarantor expressly authorizes the Collateral Agent to take
and hold security for the payment and performance of the Obligations, to
exchange, waive or release any or all such security (with or without
consideration), to enforce or apply such security and direct the order and
manner of any sale thereof in its sole discretion or to release or substitute
any one or more other guarantors or obligors upon or in respect of the
Obligations, all without affecting the obligations of any Guarantor hereunder.
(b) To the fullest extent permitted by applicable law, each Guarantor
waives any defense based on or arising out of any defense of the Borrower or any
other Loan Party or the unenforceability of the Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of the Borrower
or any other Loan Party, other than the indefeasible payment in full in cash of
all the Obligations. The Collateral Agent and the other Secured Parties may, at
their election, foreclose on any security held by one or more of them by one or
more judicial or nonjudicial sales, accept an assignment of any such security in
lieu of foreclosure, compromise or adjust any part of the Obligations, make any
other accommodation with the Borrower or any other Loan Party or exercise any
other right or remedy available to them against the Borrower or any other Loan
Party, without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Obligations have been fully and indefeasibly
paid in full in cash. To the fullest extent permitted by applicable law, each
Guarantor waives any defense arising out of any such election even though such
election operates, pursuant to applicable law, to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other Loan Party, as the case may be, or any
security.
SECTION 2.04. REINSTATEMENT. Each of the Guarantors agrees that its
guarantee hereunder shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by the Collateral Agent or any other
Secured Party upon the bankruptcy or reorganization of the Borrower, any other
Loan Party or otherwise.
SECTION 2.05. AGREEMENT TO PAY; SUBROGATION. In furtherance of the
foregoing and not in limitation of any other right that the Collateral Agent or
any other Secured Party has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Borrower or any other Loan Party to pay any
Obligation when and as the
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same shall become due, whether at maturity, by acceleration after notice of
prepayment or otherwise, each Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Collateral Agent for distribution to the
applicable Secured Parties in cash the amount of such unpaid Obligation. Upon
payment by any Guarantor of any sums to the Collateral Agent as provided above,
all rights of such Guarantor against the Borrower or any other Guarantor arising
as a result thereof by way of right of subrogation, contribution, reimbursement,
indemnity or otherwise shall in all respects be subject to Article VI.
SECTION 2.06. INFORMATION. Each Guarantor assumes all responsibility
for being and keeping itself informed of the Borrower's and each other Loan
Party's financial condition and assets, and of all other circumstances bearing
upon the risk of nonpayment of the Obligations and the nature, scope and extent
of the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Collateral Agent or the other Secured Parties will have any duty to
advise such Guarantor of information known to it or any of them regarding such
circumstances or risks.
ARTICLE III
PLEDGE OF SECURITIES
SECTION 3.01. PLEDGE. As security for the payment or performance, as
the case may be, in full of the Obligations, each Grantor hereby pledges to the
Collateral Agent, its successors and assigns, for the benefit of the Secured
Parties, and hereby grants to the Collateral Agent, its successors and assigns,
for the benefit of the Secured Parties, a security interest in, all of such
Grantor's right, title and interest in, to and under (a) Equity interests owned
by it and listed on Schedule II and any other Equity Interests obtained in the
future by such Grantor and the certificates representing all such Equity
Interests (the "PLEDGED STOCK"); PROVIDED that the Pledged Stock (x) shall not
include any Equity Interests which may not be pledged, assigned or otherwise
encumbered pursuant to applicable Federal, state or local laws, rules or
regulations related to the practice of medicine or the healthcare industry
generally and (y) shall not include more than 65% of the issued and outstanding
voting Equity Interests of any Foreign Subsidiary; (b)(i) the debt securities
listed opposite the name of such Grantor on Schedule II, (ii) any debt
securities in the future issued to such Grantor and (iii) the promissory notes
and any other instruments evidencing such debt securities (the "PLEDGED DEBT
SECURITIES"); (c) all other property that may be delivered to and held by the
Collateral Agent pursuant to the terms of this Section 3.01; (d) subject to
Section 3.06, all payments of principal or interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of, in exchange for or upon the conversion of,
and all other Proceeds received in respect of, the securities referred to in
clauses (a) and (b) above; (e) subject to Section 3.06, all rights and
privileges of such Grantor with respect to the securities and other property
referred to in clauses (a), (b), (c) and (d) above; and (f) all Proceeds of any
of the foregoing (the items referred to in clauses (a) through (f) above being
collectively referred to as the "PLEDGED COLLATERAL").
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TO HAVE AND TO HOLD the Pledged Collateral, together with all right,
title, interest, powers, privileges and preferences pertaining or incidental
thereto, unto the Collateral Agent, its successors and assigns, for the ratable
benefit of the Secured Parties, forever; SUBJECT, HOWEVER, to the terms,
covenants and conditions hereinafter set forth.
SECTION 3.02. DELIVERY OF THE PLEDGED COLLATERAL. (a) Each Grantor
agrees promptly to deliver or cause to be delivered to the Collateral Agent any
and all Pledged Securities.
(b) Each Grantor will cause any Indebtedness for borrowed money owed
to such Grantor by any person that is evidenced by a duly executed promissory
note to be pledged and delivered to the Collateral Agent pursuant to the terms
hereof.
(c) Upon delivery to the Collateral Agent, (i) any Pledged Securities
shall be accompanied by stock powers duly executed in blank or other instruments
of transfer reasonably satisfactory to the Collateral Agent and by such other
instruments and documents as the Collateral Agent may reasonably request and
(ii) all other property comprising part of the Pledged Collateral shall be
accompanied by proper instruments of assignment duly executed by the applicable
Grantor and such other instruments or documents as the Collateral Agent may
reasonably request. Each delivery of Pledged Securities shall be accompanied by
a schedule describing the securities, which schedule shall be attached hereto as
Schedule II and made a part hereof; PROVIDED that failure to attach any such
schedule hereto shall not affect the validity of such pledge of such Pledged
Securities. Each schedule so delivered shall supplement any prior schedules so
delivered.
SECTION 3.03. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Grantors
jointly and severally represent, warrant and covenant to and with the Collateral
Agent, for the benefit of the Secured Parties, that:
(a) Schedule II correctly sets forth the percentage of the issued
and outstanding shares of each class of the Equity Interests of the issuer
thereof represented by such Pledged Stock and includes all Equity
Interests, debt securities and promissory notes required to be pledged
hereunder;
(b) the Pledged Stock and Pledged Debt Securities issued by the
Borrower or any Subsidiary have been duly and validly authorized and issued
by the issuers thereof and (i) in the case of Pledged Stock, are fully paid
and nonassessable and (ii) in the case of Pledged Debt Securities, are
legal, valid and binding obligations of the issuers thereof;
(c) except for the security interests granted hereunder, each of
the Grantors (i) is and, subject to any transfers made in compliance with
the Credit Agreement, will continue to be the direct owner, beneficially
and of record, of the Pledged Securities indicated on Schedule II as owned
by such Grantor, (ii) holds the same free and clear of all Liens, (iii)
will make no assignment, pledge, hypothecation or transfer of, or create or
permit to exist any security interest in or
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other Lien on, the Pledged Collateral, other than Liens created by this
Agreement and transfers made in compliance with the Credit Agreement, and
(iv) subject to Section 3.06, will cause any and all Pledged Collateral,
whether for value paid by the Grantor or otherwise, to be forthwith
deposited with the Collateral Agent and pledged or assigned hereunder;
(d) except for restrictions and limitations imposed by the Loan
Documents or securities laws generally, the Pledged Collateral is and will
continue to be freely transferable and assignable, and none of the Pledged
Collateral is or will be subject to any option, right of first refusal,
shareholders agreement, charter or by-law provisions or contractual
restriction of any nature that might prohibit, impair, delay or otherwise
affect the pledge of such Pledged Collateral hereunder, the sale or
disposition thereof pursuant hereto or the exercise by the Collateral Agent
of rights and remedies hereunder;
(e) each of the Grantors (i) has the power and authority to
pledge the Pledged Collateral pledged by it hereunder in the manner hereby
done or contemplated and (ii) will defend its title or interest thereto or
therein against any and all Liens (other than the Lien created by this
Agreement), however arising, of all persons whomsoever;
(f) no consent or approval of any Governmental Authority, any
securities exchange or any other person was or is necessary to the validity
of the pledge effected hereby (other than such as have been obtained and
are in full force and effect);
(g) by virtue of the execution and delivery by the Grantors of
this Agreement, when any Pledged Securities are delivered to the Collateral
Agent in accordance with this Agreement, the Collateral Agent will obtain a
legal, valid and perfected first priority lien upon and security interest
in such Pledged Securities as security for the payment and performance of
the Obligations; and
(h) the pledge effected hereby is effective to vest in the
Collateral Agent, for the benefit of the Secured Parties, the rights of the
Collateral Agent in the Pledged Collateral as set forth herein.
SECTION 3.04. CERTIFICATION OF LIMITED LIABILITY COMPANY INTERESTS AND
LIMITED PARTNERSHIP INTERESTS. Each Grantor, jointly and severally, covenants
with the Collateral Agent, for the benefit of the Secured Parties, that
(a) each interest in any limited liability company and limited
partnership controlled by any Grantor as of the Closing Date shall not be
represented by a certificate and shall not be assigned, pledged,
hypothecated or transferred other than in compliance with the Credit
Agreement; and
(b) to the extent permitted by applicable law, each interest in
any limited liability company and limited partnership controlled by any
Grantor and acquired after the Closing Date and pledged hereunder shall be
represented by a
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certificate, shall be a "security" within the meaning of Article 8 of the
New York UCC and shall be governed by Article 8 of the New York UCC;
PROVIDED, HOWEVER, that this Section 3.04 shall not apply to any Equity
Interests in limited liability companies or limited partnerships which may not
be pledged, assigned or otherwise encumbered pursuant to applicable Federal,
state or local laws, rules or regulations related to the practice of medicine or
the healthcare industry generally.
SECTION 3.05. REGISTRATION IN NOMINEE NAME; DENOMINATIONS. The
Collateral Agent, on behalf of the Secured Parties, shall have the right (in its
sole and absolute discretion) to hold the Pledged Securities in its own name as
pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the
applicable Grantor, endorsed or assigned in blank or in favor of the Collateral
Agent. Each Grantor will promptly give to the Collateral Agent copies of any
notices or other communications received by it with respect to Pledged
Securities registered in the name of such Grantor. The Collateral Agent shall at
all times have the right to exchange the certificates representing Pledged
Securities for certificates of smaller or larger denominations for any purpose
consistent with this Agreement.
SECTION 3.06. VOTING RIGHTS; DIVIDENDS AND INTEREST, ETC. (a) Unless
and until an Event of Default shall have occurred and be continuing and the
Collateral Agent shall have given the Grantors notice of its intent to exercise
its rights under this Agreement (which shall be deemed immediately to have been
given in the case of any Event of Default with respect to Holdings or the
Borrower under paragraph (g) or (h) of Article VII of the Credit Agreement):
(i) Each Grantor shall be entitled to exercise any and all
voting and/or other consensual rights and powers inuring to an owner
of Pledged Securities or any part thereof for any purpose consistent
with the terms of this Agreement, the Credit Agreement and the other
Loan Documents; PROVIDED that such rights and powers shall not be
exercised in any manner that could materially and adversely affect the
rights inuring to a holder of any Pledged Securities or the rights and
remedies of any of the Collateral Agent or the other Secured Parties
under this Agreement or the Credit Agreement or any other Loan
Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall execute and deliver to each
Grantor, or cause to be executed and delivered to such Grantor, all
such proxies, powers of attorney and other instruments as such Grantor
may reasonably request for the purpose of enabling such Grantor to
exercise the voting and/or consensual rights and powers it is entitled
to exercise pursuant to subparagraph (i) above.
(iii) Each Grantor shall be entitled to receive and retain any
and all dividends, interest, principal and other distributions paid on
or distributed in respect of the Pledged Securities to the extent and
only to the extent that
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such dividends, interest, principal and other distributions are
permitted by, and otherwise paid or distributed in accordance with,
the terms and conditions of the Credit Agreement, the other Loan
Documents and applicable laws; PROVIDED that any noncash dividends,
interest, principal or other distributions that would constitute
Pledged Stock or Pledged Debt Securities, whether resulting from a
subdivision, combination or reclassification of the outstanding Equity
Interests of the issuer of any Pledged Securities or received in
exchange for Pledged Securities or any part thereof, or in redemption
thereof, or as a result of any merger, consolidation, acquisition or
other exchange of assets to which such issuer may be a party or
otherwise, shall be and become part of the Pledged Collateral, and, if
received by any Grantor, shall not be commingled by such Grantor with
any of its other funds or property but shall be held separate and
apart therefrom, shall be held in trust for the benefit of the
Collateral Agent and shall be forthwith delivered to the Collateral
Agent in the same form as so received (with any necessary
endorsement). This paragraph (iii) shall not apply to dividends among
the Subsidiaries only of property subject to a perfected security
interest under this Agreement; PROVIDED that the Borrower notifies the
Collateral Agent in writing, specifically referring to this Section
3.06 at the time of such dividend and takes any actions the Collateral
Agent reasonably specifies to ensure the continuance of its perfected
security interest in such property under this Agreement.
(b) Upon the occurrence and during the continuance of an Event of
Default, after the Collateral Agent shall have notified (or shall be deemed to
have notified) the Grantors of its intent to exercise its rights under paragraph
(a)(iii) of this Section 3.06, then all rights of any Grantor to dividends,
interest, principal or other distributions that such Grantor is authorized to
receive pursuant to paragraph (a)(iii) of this Section 3.06 shall cease, and all
such rights shall thereupon become vested in the Collateral Agent, which shall
have the sole and exclusive right and authority to receive and retain such
dividends, interest, principal or other distributions. All dividends, interest,
principal or other distributions received by any Grantor contrary to the
provisions of this Section 3.06 shall be held in trust for the benefit of the
Collateral Agent, shall be segregated from other property or funds of such
Grantor and shall be forthwith delivered to the Collateral Agent upon demand in
The same form as so received (with any necessary endorsement). Any and all money
and other property paid over to or received by the Collateral Agent pursuant to
the provisions of this paragraph (b) shall be retained by the Collateral Agent
in an account to be established by the Collateral Agent upon receipt of such
money or other property and shall be applied in accordance with the provisions
of Section 5.02. After all Events of Default have been cured or waived and the
applicable Grantor or Grantors have delivered to the Administrative Agent
certificates to that effect, the Collateral Agent shall, promptly after all such
Events of Default have been cured or waived, repay to each Grantor (without
interest) all dividends, interest, principal or other distributions that such
Grantor would otherwise be permitted to retain pursuant to the terms of
paragraph (a)(iii) of this Section 3.06 and that remain in such account.
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(c) Upon the occurrence and during the continuance of an Event of
Default, after the Collateral Agent shall have notified (or shall be deemed to
have notified) the Grantors of its intent to exercise its rights under paragraph
(a)(i) of this Section 3.06, then all rights of any Grantor to exercise the
voting and consensual rights and powers it is entitled to exercise pursuant to
paragraph (a)(i) of this Section 3.06, and the obligations of the Collateral
Agent under paragraph (a)(ii) of this Section 3.06, shall cease, and all such
rights shall thereupon become vested in the Collateral Agent, which shall have
the sole and exclusive right and authority to exercise such voting and
consensual rights and powers; PROVIDED that, unless otherwise directed by the
Required Lenders, the Collateral Agent shall have the right from time to time
following and during the continuance of an Event of Default to permit the
Grantors to exercise such rights.
(d) Any notice given by the Collateral Agent to the Grantors
exercising its rights under paragraph (a) of this Section 3.06 (i) may be given
by telephone if promptly confirmed in writing, (ii) may be given to one or more
of the Grantors at the same or different times and (iii) may suspend the rights
of the Grantors under paragraph (a)(i) or paragraph (a)(iii) in part without
suspending all such rights (as specified by the Collateral Agent in its sole and
absolute discretion) and without waiving or otherwise affecting the Collateral
Agent's rights to give additional notices from time to time suspending other
rights so long as an Event of Default has occurred and is continuing.
ARTICLE IV
SECURITY INTERESTS IN PERSONAL PROPERTY
SECTION 4.01. SECURITY INTEREST. (a) As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor hereby
assigns and pledges for security purposes to the Collateral Agent, its
successors and assigns, for the ratable benefit of the Secured Parties, and
hereby grants to the Collateral Agent, its successors and assigns, for the
ratable benefit of the Secured Parties, a security interest (the "SECURITY
INTEREST"), in all right, title or interest in or to any and all of the
following assets and properties now owned or at any time hereafter acquired by
such Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the "ARTICLE 9 COLLATERAL"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and deposit accounts;
(iv) the Contingent Note Reserve;
(v) all Documents;
(vi) all Equipment;
(vii) all General Intangibles;
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(viii) all Instruments;
(ix) all Inventory;
(x) all Investment Property;
(xi) all Letter-of-credit rights;
(xii) all books and records pertaining to the Article 9
Collateral; and
(xiii) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security
and guarantees given by any person with respect to any of the
foregoing.
Notwithstanding the foregoing, the Article 9 Collateral shall not include any
Equipment that is subject to a purchase money lien or capital lease permitted
under the Credit Agreement to the extent the documents relating to such purchase
money lien or capital lease would not permit such Equipment to be subject to the
Security Interests created hereby.
(b) Each Grantor hereby irrevocably authorizes the Collateral Agent at
any time and from time to time to file in any relevant jurisdiction any initial
financing statements (including fixture filings) and amendments thereto that
contain the information required by Article 9 of the Uniform Commercial Code of
each applicable jurisdiction for the filing of any financing statement or
amendment, including (i) whether such Grantor is an organization, the type of
organization and any organizational identification number issued to such Grantor
and (ii) in the case of a financing statement filed as a fixture filing, a
sufficient description of the real property to which such Article 9 Collateral
relates. Each Grantor agrees to provide such information to the Collateral Agent
promptly upon request.
Each Grantor also ratifies its authorization for the Collateral Agent
to file in any relevant jurisdiction any initial financing statements or
amendments thereto if filed prior to the date hereof.
The Collateral Agent is further authorized to file with the United
States Patent and Trademark Office or United States Copyright Office (or any
successor office or any similar office in any other country) or to file such
documents as may be necessary or advisable for the purpose of perfecting,
confirming, continuing, enforcing or protecting the Security Interest granted by
each Grantor, without the signature of any Grantor, and naming any Grantor or
the Grantors as debtors and the Collateral Agent as secured party.
(c) The Security Interest is granted as security only and shall not
subject the Collateral Agent or any other Secured Party to, or in any way alter
or modify, any obligation or liability of any Grantor with respect to or arising
out of the Article 9 Collateral.
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SECTION 4.02. REPRESENTATIONS AND WARRANTIES. The Grantors jointly and
severally represent and warrant to the Collateral Agent and the Secured Parties
that:
(a) Each Grantor has good and valid rights in and title to the
Article 9 Collateral with respect to which it has purported to grant a
Security Interest hereunder and has full power and authority to grant to
the Collateral Agent the Security Interest in such Article 9 Collateral
pursuant hereto and to execute, deliver and perform its obligations in
accordance with the terms of this Agreement, without the consent or
approval of any other person other than any consent or approval that has
been obtained.
(b) The Perfection Certificate has been duly prepared, completed
and executed and the information set forth therein, including (x) the exact
legal name of such Grantor and (y) the jurisdiction of organization of such
Grantor, is correct and complete in all material respects (except that the
information referred to in the preceding clauses (x) and (y) shall not be
subject to such materiality qualifier) as of the Closing Date. Uniform
Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations
containing a description of the Article 9 Collateral have been prepared by
the Collateral Agent based upon the information provided to the
Administrative Agent in the Perfection Certificate for filing in each
governmental, municipal or other office specified in Schedule 2 to the
Perfection Certificate (or specified by notice from the Borrower to the
Administrative Agent after the Closing Date in the case of filings,
recordings or registrations required by Section 5.06 or 5.09 of the Credit
Agreement, which are all the filings, recordings and registrations (other
than filings required to be made in the United States Patent and Trademark
Office and the United States Copyright Office in order to perfect the
Security Interest in Article 9 Collateral consisting of United States
Patents, Trademarks and Copyrights) that are necessary as of the Closing
Date to publish notice of and protect the validity of and to establish a
legal, valid and perfected security interest in favor of the Collateral
Agent (for the ratable benefit of the Secured Parties) in respect of all
Article 9 Collateral in which the Security Interest may be perfected by
filing, recording or registration in the United States (or any political
subdivision thereof) and its territories and possessions, and no further or
subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary in any such jurisdiction, except as provided
under applicable law with respect to the filing of continuation statements.
Each Grantor represents and warrants that a fully executed agreement in the
form hereof and containing a description of all Article 9 Collateral
consisting of Intellectual Property with respect to United States Patents
and United States registered Trademarks (and Trademarks for which United
States registration applications are pending) and United States registered
Copyrights have been delivered to the Collateral Agent for recording by the
United States Patent and Trademark Office and the United States Copyright
Office pursuant to 35 U.S.C. Section 261, 15 U.S.C. Section 1060 or 17
U.S.C. Section 205 and the regulations thereunder, as applicable, and
otherwise as may be required pursuant to the laws of any other necessary
jurisdiction, to protect the validity of and to establish a legal, valid
and perfected
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security interest in favor of the Collateral Agent (for the ratable benefit
of the Secured Parties) in respect of all Article 9 Collateral consisting
of Patents, Trademarks and Copyrights in which a security interest may be
perfected by filing, recording or registration in the United States (or any
political subdivision thereof) and its territories and possessions, and no
further or subsequent filing, refiling, recording, rerecording,
registration or reregistration is necessary (other than such actions as are
necessary to perfect the Security Interest with respect to any Article 9
Collateral consisting of Patents, Trademarks and Copyrights (or
registration or application for registration thereof) acquired or developed
after the date hereof).
(c) The Security Interest constitutes (i) a legal and valid
security interest in all the Article 9 Collateral securing the payment and
performance of the Obligations, (ii) subject to the filings described in
Section 4.02(b), a perfected security interest in all Article 9 Collateral
in which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United
States (or any political subdivision thereof) and its territories and
possessions pursuant to the Uniform Commercial Code or other applicable law
in such jurisdictions and (iii) a security interest that shall be perfected
in all Article 9 Collateral in which a security interest may be perfected
upon the receipt and recording of this Agreement with the United States
Patent and Trademark Office and the United States Copyright Office, as
applicable. The Security Interest is and shall be prior to any other Lien
on any of the Article 9 Collateral, other than Liens permitted pursuant to
Section 6.02 of the Credit Agreement.
(d) The Article 9 Collateral is owned by the Grantors free and
clear of any Lien, except for Liens expressly permitted pursuant to Section
6.02 of the Credit Agreement. None of the Grantors has filed or consented
to the filing of (i) any financing statement or analogous document under
the Uniform Commercial Code or any other applicable laws covering any
Article 9 Collateral, (ii) any assignment in which any Grantor assigns any
Collateral or any security agreement or similar instrument covering any
Article 9 Collateral with the United States Patent and Trademark Office or
the United States Copyright Office or (iii) any assignment in which any
Grantor assigns any Article 9 Collateral or any security agreement or
similar instrument covering any Article 9 Collateral with any foreign
governmental, municipal or other office, which financing statement or
analogous document, assignment, security agreement or similar instrument is
still in effect, except, in each case, for Liens expressly permitted
pursuant to Section 6.02 of the Credit Agreement. None of the Grantors hold
any commercial tort claim except as indicated on the Perfection
Certificate.
SECTION 4.03. COVENANTS. (a) Each Grantor agrees to maintain, at its
own cost and expense, such complete and accurate records with respect to the
Article 9 Collateral owned by it as is consistent with its current practices and
in accordance with such standard practices used in industries that are the same
as or similar to those in which such Grantor is engaged, but in any event to
include complete accounting records
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indicating all payments and proceeds received with respect to any part of the
Article 9 Collateral, and, at such time or times as the Collateral Agent may
reasonably request, promptly to prepare and deliver to the Collateral Agent a
duly certified schedule or schedules in form and detail reasonably satisfactory
to the Collateral Agent showing the identity, amount and location of any and all
Article 9 Collateral.
(b) Each Grantor shall, at its own expense, take any and all actions
necessary to defend title to the Article 9 Collateral against all persons and to
defend the Security Interest of the Collateral Agent in the Article 9 Collateral
and the priority thereof against any Lien not expressly permitted pursuant to
Section 6.02 of the Credit Agreement. Nothing in this Agreement shall prevent
any Grantor from discontinuing the operation or maintenance of any of its assets
or properties if such discontinuance is, in the judgment of its board of
directors, desirable in the conduct of its business.
(c) Each Grantor agrees, at its own expense, to execute, acknowledge,
deliver and cause to be duly filed all such further instruments and documents
and take all such actions as the Collateral Agent may from time to time
reasonably request to better assure, preserve, protect and perfect the Security
Interest and the rights and remedies created hereby, including the payment of
any fees and Taxes required in connection with the execution and delivery of
this Agreement, the granting of the Security Interest and the filing of any
financing statements (including fixture filings) or other documents in
connection herewith or therewith. If any amount payable to any Grantor under or
in connection with any of the Article 9 Collateral shall be or become evidenced
by any promissory note or other instrument in excess of $200,000, such note or
instrument shall be promptly pledged and delivered to the Collateral Agent, duly
endorsed in a manner reasonably satisfactory to the Collateral Agent.
Without limiting the generality of the foregoing, each Grantor hereby
authorizes the Collateral Agent, with prompt notice thereof to the Grantors, to
supplement this Agreement by supplementing Schedule III or adding additional
schedules hereto to specifically identify any asset or item that may, in the
Collateral Agent's reasonable judgment, constitute Copyrights, Licenses, Patents
or Trademarks; PROVIDED that any Grantor shall have the right, exercisable
within 15 days after it has been notified by the Collateral Agent of the
specific identification of such Collateral, to advise the Collateral Agent in
writing of any material inaccuracy of the representations and warranties made by
such Grantor hereunder with respect to such Collateral. Each Grantor agrees that
it will use its commercially reasonable efforts to take such action as shall be
necessary in order that all representations and warranties hereunder shall be
true and correct in all material respects with respect to such Collateral within
35 days after the date it has been notified by the Collateral agent of the
specific identification of such Collateral.
(d) The Collateral Agent and such persons as the Collateral Agent may
reasonably designate shall have the right, at the Grantors' own cost and
expense, to inspect the Article 9 Collateral, all records reasonably related
thereto (and to make extracts and copies from such records) and the premises
upon which any of the Article 9 Collateral is located, to discuss the Grantors'
affairs with the officers of the Grantors and
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their independent accountants and to verify under reasonable procedures, in
accordance with Section 5.07 of the Credit Agreement, the validity, amount,
quality, quantity, value, condition and status of, or any other matter relating
to, the Article 9 Collateral, including, in the case of Accounts or Article 9
Collateral in the possession of any third person, by contacting Account Debtors
only during the existence of a Default or the third person possessing such
Article 9 Collateral for the purpose of making such a verification. The
Collateral Agent shall have the absolute right to share any information it gains
from such inspection or verification with any Secured Party, PROVIDED that
Collateral Agent and each Secured Party shall maintain the confidentiality of
such information as provided in Section 9.16 of the Credit Agreement.
(e) At its option, the Collateral Agent may discharge past due Taxes,
assessments, charges, fees, Liens, security interests or other encumbrances at
any time levied or placed on the Article 9 Collateral and not expressly
permitted pursuant to Section 6.02 of the Credit Agreement (other than taxes,
assessments and charges (i) the validity or the amount of which is being
contested in good faith by appropriate proceedings and such contest operates to
suspend collection of the contested obligation, tax, assessment or charge and
enforcement of a Lien and (ii) with respect to which the Borrower has set aside
on its books adequate reserves in accordance with GAAP), and may pay for the
maintenance and preservation of the Article 9 Collateral to the extent any
Grantor fails to do so as required by the Credit Agreement or this Agreement,
and each Grantor jointly and severally agrees to reimburse the Collateral Agent
on demand for any payment made or any expense incurred by the Collateral Agent
pursuant to the foregoing authorization; PROVIDED, HOWEVER, that nothing in this
paragraph shall be interpreted as excusing any Grantor from the performance of,
or imposing any obligation on the Collateral Agent or any Secured Party to cure
or perform, any covenants or other promises of any Grantor with respect to
Taxes, assessments, charges, fees, Liens, security interests or other
encumbrances and maintenance as set forth herein or in the other Loan Documents.
(f) If at any time any Grantor shall take a security interest in any
property of an Account Debtor or any other person to secure payment and
performance of an Account, such Grantor shall promptly assign such security
interest to the Collateral Agent. Such assignment need not be filed of public
record unless necessary to continue the perfected status of the security
interest against creditors of and transferees from the Account Debtor or other
person granting the security interest.
(g) Each Grantor shall remain liable to observe and perform in all
material respects all the conditions and obligations to be observed and
performed by it under each contract, agreement or instrument relating to the
Article 9 Collateral, all in accordance with the terms and conditions thereof,
and each Grantor jointly and severally agrees to indemnity and hold harmless the
Collateral Agent and the Secured Parties from and against any and all liability
for such performance.
(h) None of the Grantors shall make or permit to be made an
assignment, pledge or hypothecation of the Article 9 Collateral or shall grant
any other Lien in respect of the Article 9 Collateral, except as expressly
permitted by Section 6.02 of the Credit
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Agreement. None of the Grantors shall make or permit to be made any transfer of
the Article 9 Collateral and each Grantor shall remain at all times in
possession or otherwise in control of the Article 9 Collateral owned by it,
except as permitted by Section 6.02 of the Credit Agreement.
(i) None of the Grantors will, without the Collateral Agent's prior
written consent, grant any extension of the time of payment of any Accounts
included in the Article 9 Collateral, compromise, compound or settle the same
for less than the full amount thereof, release, wholly or partly, any person
liable for the payment thereof or allow any credit or discount whatsoever
thereon, other than extensions, credits, discounts, compromises, compoundings or
settlements granted or made in the ordinary course of business and consistent
with its current practices and in accordance with such standard practice used in
industries that are the same as or similar to those in which such Grantor is
engaged.
(j) Each Grantor irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the
Collateral Agent) as such Grantor's true and lawful agent (and attorney-in-fact)
for the purpose, upon the occurrence and during the continuance of an Event of
Default, of making, settling and adjusting claims in respect of Article 9
Collateral under policies of insurance, endorsing the name of such Grantor on
any check, draft, instrument or other item of payment for the proceeds of such
policies of insurance and for making all determinations and decisions with
respect thereto. In the event that any Grantor at any time or times shall fail
to obtain or maintain any of the policies of insurance required under the Credit
Agreement or to pay any premium in whole or part relating thereto, the
Collateral Agent may, without waiving or releasing any obligation or liability
of the Grantors hereunder or any Event of Default, in its reasonable discretion,
obtain and maintain such policies of insurance and pay such premium and take any
other actions with respect thereto as the Collateral Agent deems advisable. All
sums disbursed by the Collateral Agent in connection with this paragraph,
including reasonable attorneys' fees, court costs, expenses and other charges
relating thereto, shall be payable, upon demand, by the Grantors to the
Collateral Agent and shall be additional Obligations secured hereby.
(k) Each Grantor shall maintain, in form and manner reasonably
satisfactory to the Collateral Agent, records of its Chattel Paper and its
books, records and documents evidencing or pertaining thereto.
SECTION 4.04. OTHER ACTIONS. In order to further insure the
attachment, perfection and priority of, and the ability of the Collateral Agent
to enforce, the Collateral Agent's security interest in the Article 9
Collateral, each Grantor agrees, in each case at such Grantor's own expense, to
take the following actions with respect to the following Article 9 Collateral:
(a) INSTRUMENTS. If any Grantor shall at any time hold or acquire
any Instruments, such Grantor shall forthwith endorse, assign and deliver
the same to the Collateral Agent, accompanied by such instruments of
transfer or assignment duly executed in blank as the Collateral Agent may
from time to time specify.
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(b) DEPOSIT ACCOUNTS. For each deposit account that any Grantor
at any time opens or maintains, such Grantor shall, either (i) cause the
depositary bank to agree to comply at any time with instructions from the
Collateral Agent to such depositary bank directing the disposition of funds
from time to time credited to such deposit account, without further consent
of such Grantor or any other person, pursuant to an agreement in form and
substance reasonably satisfactory to the Collateral Agent and the Grantor,
or (ii) arrange for the Collateral Agent to become the customer of the
depositary bank with respect to the deposit account, with the Grantor being
permitted, only with the consent of the Collateral Agent, to exercise
rights to withdraw funds from such deposit account. The Collateral Agent
agrees with each Grantor that the Collateral Agent shall not give any such
instructions or withhold any withdrawal rights from any Grantor, unless an
Event of Default has occurred and is continuing, or, after giving effect to
any withdrawal would occur. The provisions of this paragraph shall not
apply to (A) any deposit account for which any Grantor, the depositary bank
and the Collateral Agent have entered into a cash collateral agreement
specially negotiated among such Grantor, the depositary bank and the
Collateral Agent for the specific purpose set forth therein, (B) deposit
accounts for which the Collateral Agent is the depositary, (C) any deposit
account opened or maintained by a Grantor other than the Borrower with a
monthly average daily balance of less than $100,000 and (D) deposit
accounts for the sole purpose of holding Restricted Cash in connection with
self-insurance programs.
(c) INVESTMENT PROPERTY. Except to the extent otherwise provided
in Article III, if any Grantor shall at any time hold or acquire any
certificated securities, such Grantor shall forthwith endorse, assign and
deliver the same to the Collateral Agent, accompanied by such instruments
of transfer or assignment duly executed in blank as the Collateral Agent
may from time to time specify. If any securities now or hereafter acquired
by any Grantor are uncertificated and are issued to such Grantor or its
nominee directly by the issuer thereof, such Grantor shall immediately
notify the Collateral Agent thereof and, at the Collateral Agent's request
and option, pursuant to an agreement in form and substance reasonably
satisfactory to the Collateral Agent, either (a) cause the issuer to agree
to comply with instructions from the Collateral Agent as to such
securities, without further consent of any Grantor or such nominee, or (b)
arrange for the Collateral Agent to become the registered owner of the
securities. If any securities, whether certificated or uncertificated, or
other investment property now or hereafter acquired by any Grantor are held
by such Grantor or its nominee through a securities intermediary or
commodity intermediary, such Grantor shall immediately notify the
Collateral Agent thereof and, at the Collateral Agent's request and option,
pursuant to an agreement in form and substance reasonably satisfactory to
the Collateral Agent, either (i) cause such securities intermediary or (as
the case may be) commodity intermediary to agree to comply with entitlement
orders or other instructions from the Collateral Agent to such securities
intermediary as to such securities or other investment property, or (as the
case may be) to apply any value distributed on account of any commodity
contract as directed by the Collateral Agent to such commodity
intermediary, in each case
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without further consent of any Grantor or such nominee, or (ii) in the case
of "financial assets" (within the meaning of Article 8 of the New York UCC
and governed by Article 8 of the New York UCC) or other Investment Property
held through a securities intermediary, arrange for the Collateral Agent to
become the entitlement holder with respect to such investment property,
with the Grantor being permitted, only with the consent of the Collateral
Agent, to exercise rights to withdraw or otherwise deal with such
investment property. The Collateral Agent agrees with each of the Grantors
that the Collateral Agent shall not give any such entitlement orders or
instructions or directions to any such issuer, securities intermediary or
commodity intermediary, and shall not withhold its consent to the exercise
of any withdrawal or dealing rights by any Grantor, unless an Event of
Default has occurred and is continuing, or, after giving effect to any such
investment and withdrawal rights would occur. The provisions of this
paragraph shall not apply to any financial assets credited to a securities
account for which the Collateral Agent is the securities intermediary.
(d) ELECTRONIC CHATTEL PAPER AND TRANSFERABLE RECORDS. If any
Grantor at any time holds or acquires an interest in any electronic chattel
paper or any "TRANSFERABLE RECORD," as that term is defined in Section 201
of the Federal Electronic Signatures in Global and National Commerce Act,
or in Section 16 of the Uniform Electronic Transactions Act as in effect in
any relevant jurisdiction, such Grantor shall promptly notify the
Collateral Agent thereof and, at the request of the Collateral Agent, shall
take such action as the Collateral Agent may reasonably request to vest in
the Collateral Agent control under New York UCC Section 9-105 of such
electronic chattel paper or control under Section 201 of the Federal
Electronic Signatures in Global and National Commerce Act or, as the case
may be, Section 16 of the Uniform Electronic Transactions Act, as so in
effect in such jurisdiction, of such transferable record. The Collateral
Agent agrees with such Grantor that the Collateral Agent will arrange,
pursuant to procedures reasonably satisfactory to the Collateral Agent and
so long as such procedures will not result in the Collateral Agent's loss
of control, for the Grantor to make alterations to the electronic chattel
paper or transferable record permitted under UCC Section 9-105 or, as the
case may be, Section 201 of the Federal Electronic Signatures in Global and
National Commerce Act or Section 16 of the Uniform Electronic Transactions
Act for a party in control to allow without loss of control, unless an
Event of Default has occurred and is continuing or would occur after taking
into account any action by such Grantor with respect to such electronic
chattel paper or transferable record.
(e) LETTER-OF-CREDIT RIGHTS. If any Grantor is at any time a
beneficiary under a letter of credit now or hereafter issued in favor of
such Grantor, such Grantor shall promptly notify the Collateral Agent
thereof and, at the request and option of the Collateral Agent, such
Grantor shall, pursuant to an agreement in form and substance satisfactory
to the Collateral Agent, either (i) arrange for the issuer and any
confirmer of such letter of credit to consent to an assignment to the
Collateral Agent of the proceeds of any drawing under the letter of credit
or (ii) arrange for the Collateral Agent to become the transferee
beneficiary of the
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letter of credit, with the Collateral Agent agreeing, in each case, that
the proceeds of any drawing under the letter of credit are to be paid to
the applicable Grantor unless an Event of Default has occurred or is
continuing.
(f) COMMERCIAL TORT CLAIMS. If any Grantor shall at any time hold
or acquire a commercial tort claim, the Grantor shall promptly notify the
Collateral Agent thereof in a writing signed by such Grantor including a
summary description of such claim and grant to the Collateral Agent in such
writing a security interest therein and in the proceeds thereof, all upon
the terms of this Agreement, with such writing to be in form and substance
reasonably satisfactory to the Collateral Agent.
SECTION 4.05. COVENANTS REGARDING PATENT, TRADEMARK AND COPYRIGHT
COLLATERAL. (a) Each Grantor agrees that it will not, and will not permit any of
its licensees to, do any act, or omit do to any act, whereby any Patent that is
material to the conduct of such Grantor's business could reasonably be expected
to become invalidated or dedicated to the public, and agrees that it shall
continue to mark any products covered by a Patent with the relevant patent
number as necessary and sufficient in its reasonable judgment to establish and
preserve its material rights under applicable patent laws.
(b) Each Grantor (either itself or through its licensees or its
sublicensees) will, for each Trademark material to the conduct of such Grantor's
business, (i) maintain such Trademark in full force free from any claim of
abandonment or invalidity for non-use, (ii) use commercially reasonable efforts
to maintain the quality of products and services offered under such Trademark,
(iii) display such Trademark with notice of Federal or foreign registration to
the extent necessary and sufficient in its reasonable judgment to establish and
preserve its material rights under applicable law and (iv) not knowingly use or
knowingly permit the use of such Trademark in material violation of any third
party rights.
(c) Each Grantor (either itself or through its licensees or
sublicensees) will, for each work covered by a material Copyright, continue to
publish, reproduce, display, adopt and distribute the work with appropriate
copyright notice as necessary and sufficient in its reasonable judgment to
establish and preserve its material rights under applicable copyright laws.
(d) Each Grantor shall notify the Collateral Agent promptly if it
knows or becomes aware that any Patent, Trademark or Copyright material to the
conduct of its business could reasonably be expected to become abandoned, lost
or dedicated to the public, or of any materially adverse determination or
development (including the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office,
United States Copyright Office or any court or similar office of any country)
regarding such Grantor's ownership of any Patent, Trademark or Copyright, its
right to register the same, or its right to keep and maintain the same.
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(e) In no event shall any Grantor, either itself or through any agent,
employee, licensee or designee, file an application for any Patent, Trademark or
Copyright (or for the registration of any Trademark or Copyright) with the
United States Patent and Trademark Office, United States Copyright Office or any
office or agency in any political subdivision of the United States or in any
other country or any political subdivision thereof, unless it promptly informs
the Collateral Agent, and, upon request of the Collateral Agent, executes and
delivers any and all agreements, instruments, documents and papers as the
Collateral Agent may reasonably request to evidence the Collateral Agent's
security interest in such Patent, Trademark or Copyright, and each Grantor
hereby appoints the Collateral Agent as its attorney-in-fact to execute and file
such as reasonably necessary writings for the foregoing purposes, all acts of
such attorney being hereby ratified and confirmed; such power, being coupled
with an interest, is irrevocable.
(f) Each Grantor will take all necessary steps that it deems
appropriate under the circumstances and are consistent with the practice in any
proceeding before the United States Patent and Trademark Office, United States
Copyright Office or any office or agency in any political subdivision of the
United States or in any other country or any political subdivision thereof, to
maintain and pursue each material application relating to the Patents,
Trademarks and/or Copyrights (and to obtain the relevant grant or registration)
and to maintain each issued Patent and each registration of the Trademarks and
Copyrights that is material to the conduct of any Grantor's business, including
timely filings of applications for renewal, affidavits of use, affidavits of
incontestability and payment of maintenance fees, and, if consistent with good
business judgment, to initiate opposition, interference and cancelation
proceedings against third parties.
(g) In the event that any Grantor knows or becomes aware that any
Article 9 Collateral consisting of a Patent, Trademark or Copyright material to
the conduct of any Grantor's business has been or is about to be infringed,
misappropriated or diluted by a third party, such Grantor promptly shall notify
the Collateral Agent and shall, if consistent with good business judgment,
promptly sue for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as are appropriate under the circumstances to protect such
Article 9 Collateral. Such Grantor may discontinue or settle any such suit or
other action if the Grantor deems such discontinuance or settlement to be
appropriate in its reasonable business judgment.
(h) Upon the occurrence and during the continuance of an Event of
Default, each Grantor shall, at the request of the Collateral Agent, use its
commercially reasonable efforts to obtain all requisite consents or approvals by
the licensor of each Copyright License, Patent License or Trademark License to
effect the assignment of all such Grantor's right, title and interest thereunder
to the Collateral Agent or its designee.
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ARTICLE V
REMEDIES
SECTION 5.01. REMEDIES UPON DEFAULT. Upon the occurrence and during
the continuance of an Event of Default, each Grantor agrees to deliver each item
of Collateral to the Collateral Agent on demand, and it is agreed that the
Collateral Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any Article 9
Collateral consisting of Intellectual Property, on demand, to cause the Security
Interest to become an assignment, transfer and conveyance of any of or all such
Article 9 Collateral by the applicable Grantors to the Collateral Agent, or to
license or sublicense, whether general, special or otherwise, and whether on an
exclusive or nonexclusive basis, any such Article 9 Collateral throughout the
world on such terms and conditions and in such manner as the Collateral Agent
shall determine (other than in violation of any then-existing licensing
arrangements to the extent that waivers cannot be obtained), and (b) with or
without legal process and with or without prior notice or demand for
performance, to take possession of the Article 9 Collateral and without
liability for trespass to enter any premises where the Article 9 Collateral may
be located for the purpose of taking possession of or removing the Article 9
Collateral and, generally, to exercise any and all rights afforded to a secured
party under the Uniform Commercial Code or other applicable law. Without
limiting the generality of the foregoing, each Grantor agrees that the
Collateral Agent shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral at a public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to persons who will represent and agree that
they are purchasing the Collateral for their own account for investment and not
with a view to the distribution or sale thereof, and upon consummation of any
such sale the Collateral Agent shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely, free from
any claim or right on the part of any Grantor, and the Grantors hereby waive (to
the extent permitted by law) all rights of redemption, stay and appraisal which
such Grantor now has or may at any time in the future have under any rule of law
or statute now existing or hereafter enacted.
The Collateral Agent shall give the applicable Grantors 10 days'
written notice (which each Grantor agrees is reasonable notice within the
meaning of Section 9-611 of the New York UCC or its equivalent in other
jurisdictions) of the Collateral Agent's intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Collateral Agent may fix and state in the notice (if any) of such sale.
At any such sale, the
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Collateral, or portion thereof, to be sold may be sold in one lot as an entirety
or in separate parcels, as the Collateral Agent may (in its sole and absolute
discretion) determine. The Collateral Agent shall not be obligated to make any
sale of any Collateral if it shall determine not to do so, regardless of the
fact that notice of sale of such Collateral shall have been given. The
Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned. In case any
sale of all or any part of the Collateral is made on credit or for future
delivery, the Collateral so sold may be retained by the Collateral Agent until
the sale price is paid by the purchaser or purchasers thereof, but the
Collateral Agent shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may be sold again upon like notice. At any
public (or, to the extent permitted by law, private) sale made pursuant to this
Section, any Secured Party may bid for or purchase, free (to the extent
permitted by law) from any right of redemption, stay, valuation or appraisal on
the part of any Grantor (all said rights being also hereby waived and released
to the extent permitted by law), the Collateral or any part thereof offered for
sale and may make payment on account thereof by using any claim then due and
payable to such Secured Party from any Grantor as a credit against the purchase
price, and such Secured Party may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further accountability to any
Grantor therefor. For purposes hereof, a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and no Grantor shall be entitled to the return of the Collateral or any portion
thereof subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default shall have
been remedied and the Obligations paid in full. As an alternative to exercising
the power of sale herein conferred upon it, the Collateral Agent may proceed by
a suit or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver. Any sale pursuant to the provisions of this Section
5.01 shall be deemed to conform to the commercially reasonable standards as
provided in Section 9-610(b) of the New York UCC or its equivalent in other
jurisdictions.
SECTION 5.02. APPLICATION OF PROCEEDS. The Collateral Agent shall
apply the proceeds of any collection, sale, foreclosure or other realization
upon any Collateral, including any Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent or the Collateral Agent (in their capacity as such
hereunder or under any other Loan Document) in connection with such
collection, sale, foreclosure or realization or otherwise in connection
with this Agreement, any other Loan Document or any of the Obligations,
including all court costs and the fees and expenses of its agents and legal
counsel, the repayment of all advances made by the Administrative Agent
hereunder or under any other Loan Document
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on behalf of any Grantor and any other costs or expenses incurred in
connection with the exercise of any right or remedy hereunder or under any
other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts so
applied to be distributed among the Secured Parties pro rata in accordance
with the amounts of the Obligations owed to them on the date of any such
distribution); and
THIRD, to the Grantors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Collateral Agent or of the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold
and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Collateral Agent
or such officer or be answerable in any way for the misapplication thereof.
SECTION 5.03. GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY. For the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Article at such time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to the Collateral
Agent an irrevocable, nonexclusive license (exercisable without payment of
royalty or other compensation to the Grantors) to use, license or sublicense any
of the Article 9 Collateral consisting of Intellectual Property now owned or
hereafter acquired by such Grantor, and wherever the same may be located, and
including in such license reasonable access to all media in which any of the
licensed items may be recorded or stored and to all computer software and
programs used for the compilation or printout thereof. The use of such license
by the Collateral Agent shall be exercised, at the option of the Collateral
Agent, only upon the occurrence and during the continuation of an Event of
Default; PROVIDED that any license, sublicense or other transaction entered into
by the Collateral Agent in accordance herewith shall be binding upon the
Grantors notwithstanding any subsequent cure of an Event of Default.
SECTION 5.04. SECURITIES ACT, ETC. In view of the position of the
Grantors in relation to the Pledged Collateral, or because of other current or
future circumstances, a question may arise under the Securities Act of 1933, as
now or hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to time
in effect being called the "FEDERAL SECURITIES LAWS") with respect to any
disposition of the Pledged Collateral permitted hereunder. Each Grantor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Collateral, and might
also limit the extent to which or the manner in which any subsequent transferee
of any
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Pledged Collateral could dispose of the same. Similarly, there may be other
legal restrictions or limitations affecting the Collateral Agent in any attempt
to dispose of all or part of the Pledged Collateral under applicable Blue Sky or
other state securities laws or similar laws analogous in purpose or effect. Each
Grantor recognizes that in light of such restrictions and limitations the
Collateral Agent may, with respect to any sale of the Pledged Collateral, limit
the purchasers to those who will agree, among other things, to acquire such
Pledged Collateral for their own account, for investment, and not with a view to
the distribution or resale thereof. Each Grantor acknowledges and agrees that in
light of such restrictions and limitations, the Collateral Agent, in its sole
and absolute discretion (a) may proceed to make such a sale whether or not a
registration statement for the purpose of registering such Pledged Collateral or
part thereof shall have been filed under the Federal Securities Laws and (b) may
approach and negotiate with a single potential purchaser to effect such sale.
Each Grantor acknowledges and agrees that any such sale might result in prices
and other terms less favorable to the seller than if such sale were a public
sale without such restrictions. In the event of any such sale, the Collateral
Agent shall incur no responsibility or liability for selling all or any part of
the Pledged Collateral at a price that the Collateral Agent, in its sole and
absolute discretion, may in good faith deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
5.04 will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at which
the Collateral Agent sells.
ARTICLE VI
INDEMNITY, SUBROGATION AND SUBORDINATION
SECTION 6.01. INDEMNITY AND SUBROGATION. In addition to all such
rights of indemnity and subrogation as the Guarantors may have under applicable
law (but subject to Section 6.03), the Borrower agrees that (a) in the event a
payment shall be made by any Guarantor under this Agreement, the Borrower shall
indemnify such Guarantor for the full amount of such payment and such Guarantor
shall be subrogated to the rights of the person to whom such payment shall have
been made to the extent of such payment and (b) in the event any assets of any
Guarantor shall be sold pursuant to this Agreement or any other Security
Document to satisfy in whole or in part a claim of any Secured Party, the
Borrower shall indemnify such Guarantor in an amount equal to the greater of the
book value or the fair market value of the assets so sold.
SECTION 6.02. CONTRIBUTION AND SUBROGATION. Each Guarantor (a
"CONTRIBUTING GUARANTOR" agrees (subject to Section 6.03) that, in the event a
payment shall be made by any other Guarantor hereunder in respect of any
Obligation or assets of any other Guarantor shall be sold pursuant to any
Security Document to satisfy any Obligation owed to any Secured Party and such
other Guarantor (the "CLAIMING GUARANTOR") shall not have been fully indemnified
by the Borrower as provided in Section 6.01, the Contributing Guarantor shall
indemnify the Claiming Guarantor in an amount equal to the amount of such
payment or the greater of the book value or the fair
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market value of such assets, as the case may be, in each case multiplied by a
fraction of which the numerator shall be the net worth of the Contributing
Guarantor on the date hereof and the denominator shall be the aggregate net
worth of all the Guarantors on the date hereof (or, in the case of any Guarantor
becoming a party hereto pursuant to Section 7.16, the date of the Supplement
hereto executed and delivered by such Guarantor). Any Contributing Guarantor
making any payment to a Claiming Guarantor pursuant to this Section 6.02 shall
be subrogated to the rights of such Claiming Guarantor under Section 6.01 to the
extent of such payment.
SECTION 6.03. SUBORDINATION. (a) Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 6.01 and
6.02 and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations. No failure on the part of the
Borrower or any Guarantor to make the payments required by Sections 6.01 and
6.02 (or any other payments required under applicable law or otherwise) shall in
any respect limit the obligations and liabilities of any Guarantor with respect
to its obligations hereunder, and each Guarantor shall remain liable for the
full amount of the obligations of such Guarantor hereunder.
(b) Each of the Borrower and the Subsidiary Guarantors hereby agrees
that all Indebtedness and other monetary obligations owed by it to the Borrower
or any Subsidiary shall be fully subordinated to the indefeasible payment in
full in cash of the Obligations.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. NOTICES. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 9.01 of the Credit Agreement. All communications and notices
hereunder to any Subsidiary Guarantor shall be given to it in care of the
Borrower as provided in Section 9.01 of the Credit Agreement.
SECTION 7.02. SECURITY INTEREST ABSOLUTE. All rights of the Collateral
Agent hereunder, the Security Interest, the grant of a security interest in the
Pledged Collateral and all obligations of each Grantor hereunder shall be
absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Credit Agreement, any other Loan Document, any agreement
with respect to any of the Obligations or any other agreement or instrument
relating to any of the foregoing, (b) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement, any other Loan Document or any other agreement or instrument, (c) any
exchange, release or non-perfection of any Lien on other collateral, or any
release or amendment or waiver of or consent under or departure from any
guarantee, securing or guaranteeing all or any of the Obligations, or (d) any
other circumstance that
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might otherwise constitute a defense available to, or a discharge of, any
Grantor in respect of the Obligations or this Agreement.
SECTION 7.03. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments prepared or delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Collateral Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended under the Credit Agreement, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under any Loan Document is outstanding and
unpaid or the Aggregate L/C Exposure does not equal zero and so long as the
Commitments have not expired or terminated.
SECTION 7.04. BINDING EFFECT; SEVERAL AGREEMENT. This Agreement shall
become effective as to any Loan Party when a counterpart hereof executed on
behalf of such Loan Party shall have been delivered to the Collateral Agent and
a counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Loan Party and the Collateral Agent
and their respective permitted successors and assigns, and shall inure to the
benefit of such Loan Party, the Collateral Agent and the other Secured Parties
and their respective successors and assigns, except that no Loan Party shall
have the right to assign or transfer its rights or obligations hereunder or any
interest herein or in the Collateral (and any such assignment or transfer shall
be void) except as expressly contemplated by this Agreement or the Credit
Agreement. This Agreement shall be construed as a separate agreement with
respect to each Loan Party and may be amended, modified, supplemented, waived or
released with respect to any Loan Party without the approval of any other Loan
Party and without affecting the obligations of any other Loan Party hereunder.
SECTION 7.05. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of any Grantor or the Collateral Agent that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
SECTION 7.06. COLLATERAL AGENT'S FEES AND EXPENSES; INDEMNIFICATION.
(a) The parties hereto agree that the Collateral Agent shall be entitled to
reimbursement of its expense incurred hereunder as provided in Section 9.05 of
the Credit Agreement.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Grantor jointly and severally agrees to indemnify the
Collateral Agent and the other Indemnitees (as defined in Section 9.05 of the
Credit Agreement)
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against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related out of pocket expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of, the execution, delivery or performance of
this Agreement or any agreement or instrument contemplated hereby or any claim,
litigation, investigation or proceeding relating to any of the foregoing
agreement or instrument contemplated hereby or thereby, or to the Collateral,
whether or not any Indemnitee is a party thereto; PROVIDED that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 7.06 shall remain operative and in full force and effect
regardless of the termination of this Agreement or any other Loan Document, the
consummation of the transactions contemplated hereby, the repayment of any of
the Obligations, the invalidity or unenforceability of any term or provision of
this Agreement or any other Loan Document, or any investigation made by or on
behalf of the Collateral Agent or any other Secured Party. All amounts due under
this Section 7.06 shall be payable on written demand therefor and shall bear
interest at the rate specified in Section 2.06 of the Credit Agreement.
SECTION 7.07. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. Each
Grantor hereby appoints the Collateral Agent the attorney-in-fact of such
Grantor for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
is irrevocable and coupled with an interest. Without limiting the generality of
the foregoing, the Collateral Agent shall have the right, upon the occurrence
and during the continuance of an Event of Default, with full power of
substitution either in the Collateral Agent's name or in the name of such
Grantor (a) to receive, endorse, assign and/or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment relating
to the Collateral or any part thereof; (b) to demand, collect, receive payment
of, give receipt for and give discharges and releases of all or any of the
Collateral; (c) to sign the name of any Grantor on any invoice or bill of lading
relating to any of the Collateral; (d) to send verifications of Accounts
Receivable to any Account Debtor; (e) to commence and prosecute any and all
suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect or otherwise realize on all or any of the Collateral or
to enforce any rights in respect of any Collateral; (f) to settle, compromise,
compound, adjust or defend any actions, suits or proceedings relating to all or
any of the Collateral; (g) to notify, or to require any Grantor to notify,
Account Debtors to make payment directly to the Collateral Agent; and (h) to
use, sell, assign, transfer, pledge, make any agreement with respect to or
otherwise deal with all or any of the Collateral, and to do all other acts and
things necessary to carry out the purposes of this Agreement, as fully and
completely as though the Collateral Agent were the absolute owner of the
Collateral for all purposes; PROVIDED,
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that nothing herein contained shall be construed as requiring or obligating the
Collateral Agent to make any commitment or to make any inquiry as to the nature
or sufficiency of any payment received by the Collateral Agent, or to present or
file any claim or notice, or to take any action with respect to the Collateral
or any part thereof or the moneys due or to become due in respect thereof or any
property covered thereby. The Collateral Agent and the other Secured Parties
shall be accountable only for amounts actually received as a result of the
exercise of the powers granted to them herein, and neither they nor their
officers, directors, employees or agents shall be responsible to any Grantor for
any act or failure to act hereunder, except for their own gross negligence or
wilful misconduct.
SECTION 7.08. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.09. WAIVERS; AMENDMENT. (a) No failure or delay by the
Collateral Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Collateral Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of any Loan Document or consent to any departure by
any Loan Party therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Collateral Agent, any Lender or the Issuing
Bank may have had notice or knowledge of such Default at the time. No notice or
demand on any Loan Party in any case shall entitle any Loan Party to any other
or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Collateral Agent and the Loan Party or Loan Parties with
respect to which such waiver, amendment or modification is to apply, subject to
any consent required in accordance with Section 9.08 of the Credit Agreement.
SECTION 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY
<Page>
31
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 LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.10.
SECTION 7.11. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 7.12. COUNTERPARTS. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
7.04. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 7.13. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 7.14. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each of
the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America, sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement or any other Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such 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. Nothing in this Agreement or any other Loan Document shall
affect any right that the Collateral Agent, the Issuing Bank, any Lender or any
Loan Party may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document in the courts of any jurisdiction.
<Page>
32
(b) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (a) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 7.15. TERMINATION OR RELEASE. (a) This Agreement, the
Guarantees, the Security Interest and all other security interests granted
hereby shall terminate when all the Loan Document Obligations (other than wholly
contingent indemnification obligations) then due and owing have been
indefeasibly paid in full and the Lenders have no further commitment to lend
under the Credit Agreement, the Aggregate L/C Exposure has been reduced to zero
and the Issuing Bank has no further obligations to issue Letters of Credit under
the Credit Agreement.
(b) A Subsidiary Guarantor shall automatically be released from its
obligations hereunder and the Security Interest in the Collateral of such
Subsidiary Guarantor shall be automatically released upon the consummation of
any transaction permitted by the Credit Agreement as a result of which such
Subsidiary Guarantor ceases to be a Subsidiary of the Borrower.
(c) Upon any sale or other transfer by any Grantor of any Collateral
that is permitted under the Credit Agreement to any person that is not the
Borrower or a Guarantor, or, upon the effectiveness of any written consent to
the release of the security interest granted hereby in any Collateral pursuant
to Section 9.08 of the Credit Agreement, the security interest in such
Collateral shall be automatically released.
(d) All cash and Permitted Investments on deposit in the Contingent
Note Reserve shall be released from the Liens created hereunder, in each case
without representation, warranty or recourse of any nature in accordance with
the provisions of (and subject to the satisfaction of the conditions precedent
specified in) Section 9.17 of the Credit Agreement.
(e) In connection with any termination or release pursuant to
paragraph (a), (b), (c) or (d) the Collateral Agent shall execute and deliver to
any Grantor, at such Grantor's expense, all documents that such Grantor shall
reasonably request to evidence such termination or release. Any execution and
delivery of documents pursuant to this Section 7.15 shall be without recourse to
or warranty by the Collateral Agent. Without limiting the provisions of Section
7.06, the Borrower shall reimburse the Collateral Agent upon demand for all
costs and out of pocket expenses, including the
<Page>
33
fees, charges and disbursements of counsel, incurred by it in connection with
any action contemplated by this Section 7.15.
SECTION 7.16. ADDITIONAL GRANTORS. Pursuant to Section 5.09 of the
Credit Agreement, each Domestic Subsidiary (other than a Consolidated Practice)
of a Loan Party that was not in existence or not a Subsidiary on the date of the
Credit Agreement is required to enter in this Agreement as a Subsidiary
Guarantor upon becoming such a Subsidiary. Upon execution and delivery by the
Collateral Agent and a Domestic Subsidiary of an instrument in the form of
Exhibit I hereto, such Domestic Subsidiary shall become a Subsidiary Guarantor
hereunder with the same force and effect as if originally named as a Subsidiary
Guarantor herein. The execution and delivery of any such instrument shall not
require the consent of any other Loan Party hereunder. The rights and
obligations of each Subsidiary Guarantor hereunder shall remain in full force
and effect notwithstanding the addition of any new Loan Party as a party to this
Agreement.
SECTION 7.17. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other obligations at any time owing by such Lender to or
for the credit or the account of any Grantor against any of and all the
obligations of such Grantor now or hereafter existing under this Agreement held
by such Lender. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Lender
may have.
<Page>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
AMERIPATH, INC.,
by: /s/ Gregory A. Marsh
----------------------------
Name: Gregory A. Marsh
Title: Chief Financial Officer
AMERIPATH HOLDINGS, INC.,
by:
----------------------------
Name:
Title:
3-GEN DIAGNOSTIC LABORATORIES, INC.
(a Utah corporation)
AMERIPATH 5.01 (A) CORPORATION
(a Texas not-for-profit corporation)
AMERIPATH CARROLLTON, INC.
(a Georgia corporation)
AMERIPATH CINCINNATI, INC.
(an Ohio corporation)
AMERIPATH CLEVELAND, INC.
(an Ohio corporation)
AMERIPATH CONSOLIDATED LABS, INC.
(a Florida corporation)
AMERIPATH FLORIDA, INC.
(a Florida corporation)
AMERIPATH KENTUCKY, INC.
(a Kentucky corporation)
AMERIPATH LUBBOCK 5.01(A)
CORPORATION
(a Texas not-for-profit corporation)
AMERIPATH MARKETING USA, INC.
(a Florida corporation)
AMERIPATH MICHIGAN, INC.
(a Michigan corporation)
AMERIPATH MISSISSIPPI, INC.
(a Mississippi corporation)
<Page>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
AMERIPATH, INC.,
by:
----------------------------
Name:
Title:
AMERIPATH HOLDINGS, INC.,
by: /s/ D. Scott Mackesy
----------------------------
Name: D. Scott Mackesy
Title: Vice President
3-GEN DIAGNOSTIC LABORATORIES, INC.
(a Utah corporation)
AMERIPATH 5.01(A) CORPORATION
(a Texas not-for-profit corporation)
AMERIPATH CARROLLTON, INC.
(a Georgia corporation)
AMERIPATH CINCINNATI, INC.
(an Ohio corporation)
AMERIPATH CLEVELAND, INC.
(an Ohio corporation)
AMERIPATH CONSOLIDATED LABS, INC.
(a Florida corporation)
AMERIPATH FLORIDA, INC.
(a Florida corporation)
AMERIPATH KENTUCKY, INC.
(a Kentucky corporation)
AMERIPATH LUBBOCK 5.01(A) CORPORATION
(a Texas not-for-profit corporation)
AMERIPATH MARKETING USA, INC.
(a Florida corporation)
AMERIPATH MICHIGAN, INC.
(a Michigan corporation)
AMERIPATH MISSISSIPPI, INC.
(a Mississippi corporation)
<Page>
AMERIPATH NEW ENGLAND, INC.
(a Delaware corporation)
AMERIPATH NEW YORK, INC.
(a Delaware corporation)
AMERIPATH NORTH CAROLINA, INC.
(a North Carolina corporation)
AMERIPATH OHIO, INC.
(a Delaware corporation)
AMERIPATH PAT 5.01(A) CORPORATION
(a Texas not-for-profit corporation)
AMERIPATH PCC, INC.
(an Ohio corporation)
AMERIPATH PENNSYLVANIA, INC.
(a Pennsylvania corporation)
AMERIPATH PHILADELPHIA, INC.
(a New Jersey corporation)
AMERIPATH SC, INC.
(a South Carolina corporation)
AMERIPATH SEVERANCE 5.01(A)
CORPORATION
(a Texas not-for-profit corporation)
AMERIPATH, WISCONSIN, INC.
(a Wisconsin corporation)
AMERIPATH YOUNGSTOWN LABS, INC.
(an Ohio corporation)
AMERIPATH YOUNGSTOWN, INC.
(an Ohio corporation)
ANATOMIC PATHOLOGY SERVICES, INC.
(an Oklahoma corporation)
ARIZONA PATHOLOGY GROUP, INC.
(an Arizona corporation)
ARLINGTON PATHOLOGY ASSOCIATION
5.01(A) CORPORATION
(a Texas not-for-profit corporation)
BEN F. MARTIN, M.D., F.C.A.P., INC.
(a Mississippi corporation)
CALIFORNIA PATHOLOGY CONSULTANTS
OF AMERICA, INC.
(a Tennessee corporation)
<Page>
CPA I, INC.
(a Tennessee corporation)
CPA II, INC.
(a Tennessee corporation)
DERMATOPATHOLOGY SERVICES, INC.
(an Alabama corporation)
DERMPATH, INC.
(a Delaware corporation)
DFW 5.01(A) CORPORATION
(a Texas not-for-profit corporation)
DIAGNOSTIC PATHOLOGY MANAGEMENT
SERVICES, INC.
(an Oklahoma corporation)
GEORGIA PATHOLOGY CONSULTANTS OF
AMERICA, INC.
(a Tennessee corporation)
J. DAVID SMITH, M.D., INC.
(a Georgia corporation)
JOHN H. PARKER, JR., M.D., F.C.A.P., INC.
(a Mississippi corporation)
KAILASH B. SHARMA, M.D., INC.
(a Georgia corporation)
KATHARINE LIU, M.D., INC.
(a Georgia corporation)
NAPA 5.01(A) CORPORATION
(a Texas not-for-profit corporation)
OCMULGEE MEDICAL PATHOLOGY
ASSOCIATION, INC.
(a Georgia corporation)
O'QUINN MEDICAL PATHOLOGY
ASSOCIATION, INC.
(a Georgia corporation)
PATHOLOGY AFFILIATED SERVICES, INC.
(a Texas corporation)
PATHOLOGY CONSULTANTS OF
AMERICA, INC.
(a Tennessee corporation)
PATHSOURCE, INC.
(a Delaware corporation)
<Page>
PCA OF COLUMBUS, INC.
(a Tennessee corporation)
PCA OF DENVER, INC.
(a Tennessee corporation)
PCA OF LOS GATOS, INC.
(a Tennessee corporation)
PCA OF MEMPHIS, INC.
(a Tennessee corporation)
PCA OF NASHVILLE, INC.
(a Tennessee corporation)
PCA OF ST. LOUIS II, INC.
(a Tennessee corporation)
PCA SOUTHEAST II, INC.
(a Tennessee corporation)
PCA/APR ACQUISITION CORP.
(a Tennessee corporation)
PETER G. KLACSMANN, M.D., INC.
(a Georgia corporation)
SHARON G. DASPIT, M.D., INC.
(a Georgia corporation)
SHOALS PATHOLOGY ASSOCIATES, INC.
(an Alabama corporation)
SIMPSON PATHOLOGY 5.01(A) CORPORATION
(a Texas not-for-profit corporation)
STRIGEN, INC.
(a Utah corporation)
TID ACQUISITION CORP.
(a Delaware corporation)
TXAR 5.01(A) CORPORATION
(a Texas not-for-profit corporation)
by: /s/ Gregory A. Marsh
----------------------------
Name: Gregory A. Marsh
Title: Vice President
<Page>
ROCKY MOUNTAIN PATHOLOGY, L.L.C.
by: /s/ Gregory A. Marsh
----------------------------
Name: Gregory A. Marsh
Title: Manager
AMERIPATH, LLC
by: /s/ Gregory A. Marsh
----------------------------
Name: Gregory A. Marsh
Title: Manager
API NO.2, LLC
by: /s/ Gregory A. Marsh
----------------------------
Name: Gregory A. Marsh
Title: Manager
AMERIPATH INDIANA, LLC
by: AMERIPATH, INC.
(as Managing Member)
by: /s/ Gregory A. Marsh
----------------------------
Name: Gregory A. Marsh
Title: Chief Financial Officer
<Page>
COLUMBUS PATHOLOGY ASSOCIATES
by: CPA I, INC.
(as General Partner)
by: /s/ Gregory A. Marsh
----------------------------
Name: Gregory A. Marsh
Title: Vice President
NUCLEAR MEDICINE AND PATHOLOGY
ASSOCIATES
by: SHARON G. DASPIT, M.D., INC.
(as General Partner)
by: /s/ Gregory A. Marsh
----------------------------
Name: Gregory A. Marsh
Title: Vice President
AMERIPATH TEXAS, LP
by: AMERIPATH, LLC
(as General Partner)
by: /s/ Gregory A. Marsh
----------------------------
Name: Gregory A. Marsh
Title: Manager
<Page>
CREDIT SUISSE FIRST BOSTON, AS
COLLATERAL AGENT,
by:
----------------------------
Name:
Title:
by:
----------------------------
Name:
Title:
<Page>
CREDIT SUISSE FIRST BOSTON, AS
COLLATERAL AGENT,
by: /s/ JOSEPH ADIPIETRO
----------------------------
Name: JOSEPH ADIPIETRO
Title: DIRECTOR
by: /s/ JULIA P. KINGSBURY
----------------------------
Name: JULIA P. KINGSBURY
Title: VICE PRESIDENT