CREDIT AGREEMENT

Exhibit 10.1

 

Execution Copy

 

 

U.S. $2,900,000,000

 

CREDIT AGREEMENT

 

Dated as of July 28, 2005

 

Among

 

OMNICARE, INC.

as the Borrower,

 

THE LENDERS FROM TIME TO TIME PARTIES HERETO

 

JPMORGAN CHASE BANK, N.A.

as a Joint Syndication Agent,

 

LEHMAN BROTHERS INC.,

as a Joint Syndication Agent,

 

CIBC WORLD MARKETS CORP.,

as a Co-Documentation Agent,

 

MERRILL LYNCH, PIERCE

FENNER & SMITH INCORPORATED,

as a Co-Documentation Agent

 

WACHOVIA CAPITAL MARKETS, LLC

as Co-Documentation Agent

 

and

 

SUNTRUST BANK,

as Administrative Agent

 

 

TABLE OF CONTENTS

 

 

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THIS CREDIT AGREEMENT, dated as of July 28, 2005, is among OMNICARE, INC., as the Borrower, the lenders named herein, as the Lenders, JPMorgan Chase Bank, N.A. (“ JPMorgan ”) as a Joint Syndication Agent, Lehman Brothers Inc. (“ Lehman ”), as a Joint Syndication Agent, CIBC World Markets Corp. (“ CIBC ”), as a Co-Documentation Agent, Merrill Lynch, Pierce, Fenner & Smith Incorporated (“ Merrill Lynch ”), as a Co-Documentation Agent, Wachovia Capital Markets, LLC (“ Wachovia ”), as a Co-Documentation Agent, and SunTrust Bank, with its office in Atlanta, Georgia, as the Administrative Agent (in such capacity, the “ Agent ”). The parties hereto agree as follows:

 

ARTICLE I.

 

DEFINITIONS

 

1.1. Certain Defined Terms . As used in this Agreement the following terms shall have the following meanings, such meanings being equally applicable to both the singular and plural forms of the terms defined:

 

“ 2011 Subordinated Indenture ” means the Indenture dated as of March 20, 2001 by and between the Borrower and SunTrust Bank, as Trustee, as the same may be supplemented, amended or otherwise modified from time to time, pursuant to which the 2011 Subordinated Notes were issued.

 

“ 2011 Subordinated Notes ” means the 8  ¹ / 8 % Senior Subordinated Notes in the aggregate amount of $375,000,000 due in 2011, issued by the Borrower pursuant to the 2011 Subordinated Indenture.

 

“ 2013 Subordinated Notes ” means the 6  ¹ / 8 % Senior Subordinated Notes in the aggregate amount of $250,000,000 due in 2013, issued by the Borrower pursuant to the 2013 Subordinated Notes Supplemental Indenture.

 

“ 2013 Subordinated Notes Supplemental Indenture ” means the First Supplemental Indenture dated as of June 13, 2003 by and between the Borrower and SunTrust Bank, as Trustee, as the same may be supplemented, amended or otherwise modified from time to time, pursuant to which the 2013 Subordinated Notes were issued.

 

“ 364-Day Advance ” means the aggregate principal amount outstanding under the 364-Day Loans from time to time.

 

“ 364-Day Advance Borrowing Notice ” has the meaning specified in Section 2.2.2.

 

“ 364-Day Commitment ” means, for each Lender, the obligation of such Lender to make a 364-Day Loan hereunder on any 364-Day Funding Date, in an amount not exceeding the amount set forth opposite its name on Schedule II attached hereto as reflected in the 364-Day Commitment column, as such amount may be reduced pursuant to Section 2.2.2 or increased pursuant to Section 2.2.3. The original aggregate amount of the 364-Day Commitments is $1,400,000,000.

 

“ 364-Day Commitment Expiration Date ” means December 30, 2005.

 

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“ 364-Day Funding Date ” means, with respect to any 364-Day Loan, the date specified by the Borrower in the 364-Day Advance Borrowing Notice with respect to such 364-Day Loan as the date on which such 364-Day Loan is to be made.

 

“ 364-Day Lender ” means each Lender that has a 364-Day Commitment or that is the holder of 364-Day Loans.

 

“ 364-Day Loan ” has the meaning specified in Section 2.2.2.

 

“ 364-Day Note ” has the meaning specified in Section 2.14(d).

 

“ 364-Day Percentage ” means, as to any Lender, at any time, the percentage which its 364-Day Commitment then constitutes of the Aggregate 364-Day Commitment.

 

“ Acquisition ” means any transaction, or any series of related transactions, by which the Borrower or any of its Subsidiaries (a) acquires any going business or all or substantially all of the assets of any firm, corporation or division thereof which constitutes a going business, whether through purchase of assets, merger or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding partnership interests of a partnership or a majority (by percentage or voting power) of the outstanding ownership interests of a limited liability company.

 

“ Advance ” means a Revolving Advance, the Term Advance and a 364-Day Advance.

 

“ Affiliate ” of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise.

 

“ Agent ” means SunTrust in its capacity as agent for the Lenders pursuant to Article X, and not in its capacity as a Lender, and any successor Agent appointed pursuant to Article X.

 

“ Agent Agreements ” means any and all of the letter agreements, dated July 6, 2005, entered into among (i) the Borrower and (ii) Lehman, J.P. Morgan Securities Inc., CIBC, Merrill Lynch, SunTrust Capital Markets, Inc., and Wachovia (and certain of their respective affiliates).

 

“ Aggregate Commitment ” means the aggregate of the Aggregate Revolving Commitment, the Aggregate Term Commitment and the Aggregate 364-Day Commitment of all the Lenders.

 

“ Aggregate 364-Day Commitment ” means, at any time, the then aggregate of the 364-Day Commitments of all Lenders, as may be reduced from time to time pursuant to the terms hereof.

 

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“ Aggregate Revolving Commitment ” means, at any time, the then aggregate of the Revolving Commitments of all Lenders, as may be reduced from time to time pursuant to the terms hereof.

 

“ Aggregate Term Commitment ” means the aggregate of the Term Commitments of all Lenders, as may be reduced pursuant to the terms hereof.

 

“ Agreement ” means this Credit Agreement, as it may from time to time be amended, restated, supplemented or otherwise modified.

 

“ Agreement Accounting Principles ” means GAAP, applied in a manner consistent with that used in preparing the financial statements referred to in Section 5.4.

 

“ Alternate Base Rate ” means, for any day, a rate of interest per annum equal to the higher of (a) the Prime Rate for such day and (b) the sum of Federal Funds Effective Rate for such day plus 0.50% per annum.

 

“ Applicable Commitment Fee Rate ” means, for any date, the applicable per annum Commitment Fee Rate set forth on the Pricing Schedule.

 

“ Applicable Letter of Credit Fee Rate ” means, for any date, with respect to Letters of Credit issued pursuant to or governed by the terms of this Agreement, the applicable per annum Letter of Credit Fee Rate set forth on the Pricing Schedule.

 

“ Applicable Margin ” means, for any date, with respect to 364-Day Loans comprising any Eurodollar Advance, 0.75% per annum, and with respect to all other Loans comprising any Eurodollar Advance, the applicable rate per annum set forth on the Pricing Schedule.

 

“ Applicable Permitted Acquisition ” means, on any 364-Day Funding Date, RxCrossroads, if the proceeds of the 364-Day Loans on such 364-Day Funding Date are to be used to consummate the acquisition thereof, or ExcelleRx, if the proceeds of the 364-Day Loans on such 364-Day Funding Date are to be used to consummate the acquisition thereof.

 

“ Arrangers ” means J. P. Morgan Securities Inc., a Delaware corporation, and its successors, in its capacity as a Joint Lead Arranger and a Joint Book Runner, SunTrust Capital Markets, Inc., a Tennessee corporation, and its successors, in its capacity as a Joint Lead Arranger and a Joint Book Runner and Lehman Brothers Inc., a Delaware corporation, and its successors, in its capacity as a Joint Lead Arranger and a Joint Book Runner.

 

“ Article ” means an article of this Agreement unless another document is specifically referenced.

 

“ Authorized Officer ” means any of the President, Executive Vice President, Senior Vice President, Vice President, Finance or Treasurer of the Borrower, or any Person designated by any two of the foregoing, acting singly.

 

“ Borrower ” means Omnicare, Inc., a Delaware corporation, and its successors and assigns.

 

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“ Borrowing Date ” means a date on which a 364-Day Loan, a Revolving Advance or a Swing Line Loan is made hereunder.

 

“ Borrowing Notice ” means the Term Advance Borrowing Notice, a 364-Day Advance Borrowing Notice, a Revolving Advance Borrowing Notice or a Swing Line Borrowing Notice.

 

“ Business Day ” means (a) with respect to any borrowing, payment or rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks generally are open in Atlanta, Georgia, New York, New York and London for the conduct of substantially all of their commercial lending activities and (b) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in Atlanta, Georgia and New York, New York for the conduct of substantially all of their commercial lending activities.

 

“ Capitalized Lease ” of a Person means any lease of Property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.

 

“ Capitalized Lease Obligations ” of a Person means the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.

 

“ Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.

 

“ Change in Control ” means (i) the acquisition by any Person, or two or more Persons acting in concert, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended) of 45% or more of the outstanding shares of voting stock of the Borrower, (ii) a “Change of Control” as defined in the 2011 Subordinated Indenture, (iii) a “ Change of Control ” as defined in the 2013 Subordinated Notes Supplemental Indenture or (iv) a “ Change of Control ” as defined in the Trust PIERS Supplemental Indenture or in the New Trust Piers Supplemental Indenture.

 

“ Chief Financial Officer ” means, at any time, the Person who reports to the board of directors of the Borrower on the financial affairs of the Borrower and the Subsidiaries.

 

‘ CIBC ” has the meaning specified in the preamble hereto.

 

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.

 

“ Commitment ” means, for each Lender, its Revolving Commitment, its Term Commitment and its 364-Day Commitment.

 

“ Condemnation ” has the meaning specified in Section 7.8.

 

“ Consolidated Fixed Charges ” for any period means on a consolidated basis for the Borrower and all of its Subsidiaries for such period, the sum of (a) all interest paid in cash by the

 

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Borrower and all of its Subsidiaries (net of interest income), including the cash interest component of Capitalized Lease Obligations and Receivables Facility Financing Costs, (b) all scheduled payments of the principal amount of any Indebtedness of the Borrower or any of its Subsidiaries (including any scheduled redemption of any such Indebtedness but excluding (i) any payment of Indebtedness of a Subsidiary acquired subsequent to the date of this Agreement if such Indebtedness is repaid within sixty (60) days of the Acquisition of such Subsidiary, (ii) Indebtedness incurred under this Agreement with respect to the Revolving Loans and Swing Line Loans and (iii) repayments of the 364-Day Loans prior to the maturity date thereof with the proceeds of a securities offering), (c) all income or similar taxes paid in cash by the Borrower or any of its Subsidiaries, and (d) all payments of Rentals by the Borrower or any of its Subsidiaries, all as determined in accordance with Agreement Accounting Principles.

 

“ Consolidated Net Income ” means, for any period, the consolidated net income (or loss) of the Borrower and its Subsidiaries for such period determined in accordance with Agreement Accounting Principles; provided, that there shall be excluded (i) the income (or loss) of any Affiliate of the Borrower or other Person (other than a Subsidiary of the Borrower) in which any Person (other than the Borrower or any of its Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to the Borrower or any of its Subsidiaries by such Affiliate or other Person during such period and (ii) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries or that Person’s assets are acquired by the Borrower or any of its Subsidiaries.

 

“ Consolidated Net Worth ” means, as of the date of any determination thereof, the amount of the shareholders’ equity of the Borrower and its Subsidiaries as would be shown on the consolidated balance sheet of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with Agreement Accounting Principles.

 

“ Contingent Obligation ” of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of such other Person against loss, including, without limitation, any operating agreement, take-or-pay contract or application for or reimbursement agreement with respect to a letter of credit (including any Letter of Credit but excluding any endorsement of instruments for deposit or collection in the ordinary course of business).

 

“ Controlled Group ” means all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or any of its Subsidiaries, are treated as a single employer under Section 414 of the Code.

 

“ Conversion/Continuation Notice ” has the meaning specified in Section 2.8.

 

“ Default ” means an event described in Article VII.

 

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“ Dollars ” and “ $ ” mean the lawful money of the United States.

 

“ EBIT ” for any period means Consolidated Net Income during such period, plus (to the extent deducted in determining Consolidated Net Income) (a) all provisions for any income or similar taxes paid or accrued by the Borrower or any of its Subsidiaries during such period, (b) interest (including Receivables Facility Financing Costs) paid or payable by the Borrower or any of its Subsidiaries during such period as determined in accordance with Agreement Accounting Principles, (c) extraordinary losses and (d) any non-cash expenses including relating to stock option exercises (if applicable accounting rules so require) and minus (to the extent included in Consolidated Net Income) (x) interest earned by the Borrower or any of its Subsidiaries during such period and (y) extraordinary gains.

 

“ Effective Date ” means July 28, 2005.

 

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder.

 

“ Eurodollar Advance ” means a Revolving Advance, Term Advance or 364-Day Advance denominated in Dollars that bears interest at a Eurodollar Rate.

 

“ Eurodollar Base Rate ” means, with respect to a Eurodollar Advance for the relevant Interest Period, the applicable British Bankers’ Association Interest Settlement Rate for deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period, provided that, (i) if Reuters Screen FRBD is not available to the Agent for any reason, the applicable Eurodollar Base Rate for the relevant Interest Period shall instead be the applicable British Bankers’ Association Interest Settlement Rate for deposits in U.S. dollars as reported by any other generally recognized financial information service as of 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period, and (ii) if no such British Bankers’ Association Interest Settlement Rate is available to the Agent, the applicable Eurodollar Base Rate for the relevant Interest Period shall instead be the rate determined by the Agent to be the rate at which SunTrust or one of its Affiliate banks offers to place deposits in U.S. dollars with first-class banks in the London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, in the approximate amount of SunTrust’s relevant Eurodollar Loan and having a maturity equal to such Interest Period.

 

“ Eurodollar Interest Period ” means, with respect to a Eurodollar Advance, a period of one, two, three or six months or, if available from all of the Lenders in their respective sole discretion, nine or twelve months, commencing on a Business Day selected by the Borrower pursuant to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, (a) Borrower shall not be permitted to select Eurodollar Interest Periods to be in effect at any one time which have expiration dates occurring on more than ten (10) different dates and (b) during the One Month Interest Period Syndication Period, “Eurodollar Interest Period” means, with respect to a Eurodollar Advance, a period of seven days, fourteen days, twenty-one days or one month. Other than during the One Month Interest Period Syndication Period, such Eurodollar Interest Period shall end on (but exclude) the day which corresponds numerically to

 

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such date one, two, three, six, nine or twelve months thereafter, unless there is no such numerically corresponding day in such next, second, third, sixth, ninth or twelfth succeeding month, in which case such Eurodollar Interest Period shall end on the last Business Day of such next, second, third, sixth, ninth or twelfth succeeding month. If a Eurodollar Interest Period would otherwise end on a day which is not a Business Day, such Eurodollar Interest Period shall end on the next succeeding Business Day, unless said next succeeding Business Day falls in a new calendar month, in which case such Eurodollar Interest Period shall end on the immediately preceding Business Day.

 

“ Eurodollar Loan ” means a Revolving Loan, Term Loan or 364-Day Loan denominated in Dollars which bears interest at a Eurodollar Rate.

 

“ Eurodollar Rate ” means, with respect to a Eurodollar Advance for the relevant Eurodollar Interest Period, the sum of (a) the quotient of (i) the Eurodollar Base Rate applicable to such Eurodollar Interest Period, divided by (ii) one minus the Reserves (expressed as a decimal) applicable to such Eurodollar Interest Period, plus (b) the Applicable Margin in effect from time to time during such Eurodollar Interest Period.

 

“ ExcelleRx ” means excelleRx, Inc., a Delaware corporation.

 

“ Exchange Transaction ” means the exchange by the Borrower of the New Trust Piers for the Trust PIERS as described in and subject to the terms and conditions contained in the Prospectus.

 

“ Excluded Capital Stock ” means any Capital Stock issued (i) in connection with (a) a conversion of debt securities to equity, (b) an exercise by a present or former employee, officer or director under a stock incentive plan, stock option plan or other equity-based compensation plan or arrangement, (c) any employee benefit plan or (d) any dividend reinvestment plan or direct stock purchase plan, (ii) as consideration for a Permitted Acquisition or (iii) the proceeds of which are used to redeem, repurchase or repay the 2011 Subordinated Notes.

 

“ Excluded Taxes ” means, in the case of each Lender and the Agent, taxes imposed on its net income, franchise taxes and other similar taxes computed by reference to net income imposed on it, by (i) the jurisdiction under the laws of which it is incorporated or organized or (ii) the jurisdiction in which its principal executive office or applicable Lending Installation is located.

 

“ Existing Agreement ” has the meaning specified in Section 4.1(i).

 

“ Existing Letters of Credit ” means those letters of credit outstanding on the Effective Date and identified on Schedule V.

 

“ Existing L/C Issuer ” means the issuer of any Existing Letter of Credit.

 

“ Facility Termination Date ” means July 28, 2010.

 

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“ Fair Value ” means the value of the relevant asset determined in an arm’s-length transaction conducted in good faith between an informed and willing buyer and an informed and willing seller under no compulsion to buy or sell.

 

“ Federal Funds Effective Rate ” means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 11:00 a.m. (Atlanta time) on such day on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by the Agent in its sole discretion.

 

“ Financial Undertaking ” of a Person means (a) any repurchase obligation or similar liability of such Person or any of its Subsidiaries with respect to accounts or notes receivable sold by such Person or any of its Subsidiaries, (b) any liability under any sale and leaseback transactions which do not create a liability on the consolidated balance sheet of such Person and its Subsidiaries or (c) obligations arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the consolidated balance sheet of such Person and its Subsidiaries.

 

“ Fixed Charge Coverage Ratio ” means, for any period, the ratio of (a) the sum of (i) EBIT of the Borrower and all of its Subsidiaries plus (ii) all discounts in any securitization transactions plus (iii) Rentals of the Borrower and all of its Subsidiaries on a consolidated basis to (b) Consolidated Fixed Charges.

 

“ Floating Rate ” means, for any day, a rate per annum equal to the Alternate Base Rate for such day, changing when and as the Alternate Base Rate changes.

 

“ Floating Rate Advance ” means any Advance denominated in Dollars which bears interest at the Floating Rate.

 

“ Floating Rate Loan ” means a Loan denominated in Dollars which bears interest at the Floating Rate.

 

“ GAAP ” means generally accepted accounting principles as in effect from time to time.

 

“ Governmental Acts ” has the meaning specified in Section 2.20.6(a).

 

“ Governmental Authority ” means any country or nation, any political subdivision of such country or nation, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government of any country or nation or political subdivision thereof.

 

“ Gross Negligence ” means either recklessness or actions taken or omitted with conscious indifference to or the complete disregard of consequences. Gross Negligence does not mean the absence of ordinary care or diligence, or an inadvertent act or inadvertent failure to act. If the term “gross negligence” is used with respect to the Agent or any Lender or any indemnitee in any of the other Loan Documents, it shall have the meaning set forth herein.

 

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“ Guarantor ” means (a) as of the date of this Agreement, the Initial Guarantors and (b) each other Subsidiary added as a Guarantor pursuant to the terms of Section 6.20 (a “Supplemental Guarantor”), and in each such case their respective successors and assigns.

 

“ Guaranty ” means (a) each guaranty executed as of the date of this Agreement by each of the Initial Guarantors and (b) each other guaranty executed by a Supplemental Guarantor pursuant to the terms of Section 6.20, and in each such case as the same may from time to time be amended, modified, supplemented and/or restated.

 

“ Health Care Company ” means a Person that is engaged, directly or indirectly, in (a) owning, operating or managing one or more facilities which dispenses, markets or provides healthcare products or services, including, without limitation, pharmaceutical products or services, (b) purchasing, repackaging, selling or dispensing pharmaceutical products, (c) providing healthcare consulting and billing services, (d) distributing medical supplies and equipment, (e) providing infusion therapy products or services, (f) providing respiratory services, equipment or supplies, (g) providing parenteral and enteral nutrition products, wound care products, osotomy and urological supplies, (h) providing home health care services, (i) providing dialysis services, (j) providing contract pharmaceutical research services, (k) providing disease and outcome management services, including formulary services, (1) providing orthopedic supplies and services, (m) providing information technology, including software products and services, to Persons engaged in any of the foregoing businesses, including long term care institutions, (n) providing any service or product described in the Standard Industrial Classification Manual (1987 Revision) published by the Office of Management and Budget under the heading Industry No. 5047, 5122, 5912 or 8731 or Major Group 80 as a whole or their equivalents described in the North American Industry Classification system (United States, 1997) published by the Office of Management and Budget, (o) providing any product or service ancillary or incidental to the healthcare industry to any customer or client of any of the foregoing Persons, or (p) providing any other healthcare related products or services.

 

“ Hedging Agreement ” means any agreement with respect to any Interest Rate Contract, forward rate agreement, commodity swap, forward foreign exchange agreement, currency swap agreement, cross-currency rate swap agreement, currency option agreement or other agreement or arrangement designed to alter the risks of any Person arising from fluctuations in interest rates, currency values or commodity prices, all as amended, restated, supplemented or otherwise modified from time to time.

 

“ Incremental 364-Day Loan ” means a 364-Day Loan made in respect of any additional 364-Day Commitments provided pursuant to Section 2.2.3.

 

“ Indebtedness ” of a Person means, without duplication, such Person’s (a) obligations for borrowed money, (b) obligations representing the deferred purchase price of Property or services (other than accounts payable arising in the ordinary course of such Person’s business payable on terms customary in the trade), (c) obligations, whether or not assumed, secured by Liens or payable out of the proceeds or production from Property now or hereafter owned or acquired by

 

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such Person, (d) obligations which are evidenced by notes, acceptances, or other instruments, (e) Capitalized Lease Obligations, (f) Financial Undertakings, (g) Contingent Obligations, (h) obligations under or in connection with a letter of credit (including any Letter of Credit), (i) Receivables Facility Attributed Indebtedness, (j) all net payment obligations incurred by any such Person pursuant to Hedging Agreements, and (k) with reference to the Borrower and its Subsidiaries, all obligations of Borrower or its Subsidiaries to redeem, repurchase, exchange, defease or otherwise make payments with respect to (i) Permitted Subordinated Debt, (ii) the 2011 Subordinated Notes, (iii) the 2013 Subordinated Notes, (iv) the Trust PIERS and (v) the New Trust PIERS; but excluding, in any event, (x) amounts payable by such Person in respect of covenants not to compete, and (y) with reference to the Borrower and its Subsidiaries, all obligations of the Borrower and its Subsidiaries of the character referred to in this definition to the extent owing to the Borrower or any Subsidiary of the Borrower.

 

“ Indemnitee ” has the meaning specified in Section 9.7.

 

“ Indenture ” means the Indenture dated as of June 13, 2003 by and between Borrower and SunTrust Bank, as Trustee, as the same may be amended or modified from time to time.

 

“ Initial Guarantors ” means the Subsidiaries of the Borrower listed on Schedule IV hereto.

 

“ Interest Period ” means a Eurodollar Interest Period.

 

“ Interest Rate Contract ” means any interest rate swap agreement, interest rate cap agreement, interest rate floor agreement, interest rate collar agreement, interest rate option or any other agreement regarding the hedging of interest rate risk exposure executed in connection with hedging the interest rate exposure of any Person and any confirming letter executed pursuant to such agreement, all as amended, restated, supplemented or otherwise modified from time to time.

 

“ Investment ” of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary course of business on terms customary in the trade), deposit account or contribution of capital by such Person to any other Person or any investment in, or purchase or other acquisition of, the stock, partnership interests, ownership interests in any limited liability company, notes, debentures or other securities of any other Person made by such Person.

 

“ Issuer ” means the Agent or, with respect to an Existing Letter of Credit, the applicable Existing L/C Issuer.

 

“ Joint Venture ” means any corporation, partnership, limited liability company, association, joint stock company, business trust or other combined enterprise other than a Subsidiary in which or to which the Borrower or any of its Subsidiaries has made an Investment to fund a business enterprise which engages or will engage in a business in which the Borrower or any of its Subsidiaries is engaged from time to time during the term of this Agreement.

 

“ JPMorgan ” has the meaning specified in the preamble hereto.

 

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“ L/C Draft ” means a draft drawn on the applicable Issuer pursuant to any of the Letters of Credit.

 

“ L/C Interest ” has the meaning specified in Section 2.20.2.

 

“ L/C Obligations ” means an amount equal to the sum (without duplication) of (i) the aggregate of the amount then available for drawing under each of the Letters of Credit, (ii) the face amounts of all outstanding L/C Drafts corresponding to the Letters of Credit, which L/C Drafts have been accepted by the Agent or another Existing L/C Issuer, as applicable, and (iii) the aggregate outstanding amount of Reimbursement Obligations at such time.

 

“ Lehman ” has the meaning specified in the preamble hereto.

 

“ Lenders ” means the lending institutions listed on the signature pages of this Agreement and their respective successors and assigns.

 

“ Lending Installation ” means, with respect to a Lender, any office, branch, subsidiary or affiliate of such Lender.

 

“ Letter of Credit ” means the Existing Letters of Credit and any letter of credit issued pursuant to Section 2.20.

 

“ Lien ” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).

 

“ Loan ” means a Revolving Loan, a Swing Line Loan, a Term Loan or a 364-Day Loan.

 

“ Loan Documents ” means this Agreement, the Notes, the Guaranties and the applications, reimbursement agreements and other instruments and agreements related to the Letters of Credit and L/C Interests and specifically excluding any Hedging Agreement.

 

“ Material Adverse Effect ” means a material adverse effect on (a) the business, Property, condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, (b) the ability of the Borrower or the Guarantors to perform their respective obligations under the Loan Documents, or (c) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Agent or the Lenders thereunder; provided that, solely for purposes of determining satisfaction of the conditions precedent set forth in Section 4.4 on the Effective Date, “Material Adverse Effect” shall mean a material adverse effect on (a) the business, Property, financial condition or results of operations of the Borrower and its Subsidiaries taken as a whole, (b) the ability of the Borrower or the Guarantors to perform their respective obligations under the Loan Documents, or (c) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Agent or the Lenders thereunder.

 

“ Material Agreement ” has the meaning specified in Section 5.12.

 

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“ Merrill Lynch ” has the meaning specified in the preamble hereto.

 

“ Moody’s ” means Moody’s Investors Service, Inc.

 

“ Multiemployer Plan ” means a Plan, if any, maintained pursuant to a collective bargaining agreement or any other arrangement to which the Borrower or any member of the Controlled Group is a party to which more than one employer is obligated to make contributions and which is a multiemployer plan within the meaning of Section 3(37) of ERISA.

 

“ NeighborCare ” means NeighborCare, Inc., a Pennsylvania corporation.

 

“ NeighborCare Acquisition ” means the Acquisition of all of the issued and outstanding capital stock of NeighborCare.

 

“ NeighborCare Indenture ” has the meaning specified in Section 7.5.

 

“ NeighborCare Notes ” means any and all of the issued and outstanding 6.875% senior subordinated notes of NeighborCare.

 

“ Net Cash Proceeds ” means in connection with any issuance or sale of equity securities or debt securities or instruments or the incurrence of loans, the cash proceeds actually received from such issuance or incurrence, net of any taxes payable in connection therewith, reasonable and customary attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other reasonable and customary fees and expenses, in each case, to the extent actually incurred in connection therewith and, in the case of the cash proceeds actually received by a non-wholly owned Subsidiary, net of the pro rata portion of such proceeds that are payable (and actually paid) to all third party holders of Capital Stock therein.

 

“ New Trust Piers ” means the Series B 4% Trust Preferred Income Equity Redeemable Securities (PIERS) of Omnicare Capital Trust II issued as part of the Exchange Transaction.

 

“ New Trust PIERS Supplemental Indenture ” means the Third Supplemental Indenture, dated as of March 8, 2005, by and between the Borrower and SunTrust Bank, as Trustee, as the same may be supplemented, amended or otherwise modified from time to time, pursuant to which the New Trust PIERS were issued.

 

“ New Trust PIERS Trust Agreement ” means that certain Amended and Restated Trust Agreement dated March 8, 2005 of Omnicare Capital Trust II, a statutory trust created under Delaware law, executed by Borrower, as depositor, and the Delaware trustee thereunder, the sole asset of which is the New Trust PIERS.

 

“ Note ” means a Revolving Note, a Term Note or a 364-Day Note.

 

“ Notice of Assignment ” has the meaning specified in Section 12.3.2.

 

“ Obligations ” means all unpaid principal of and accrued and unpaid interest on the Loans, all L/C Obligations, all existing or future payment and other obligations owing by the Borrower under any Hedging Agreement with any Person that is a Lender (or affiliate thereof)

 

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hereunder at the time such Hedging Agreement is executed (all such obligations with respect to any such Hedging Agreement, “ Hedging Obligations ”), all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations of the Borrower to the Lenders or to any Lender, the Agent or any indemnified party hereunder arising under the Loan Documents.

 

“ One Month Interest Period Syndication Period ” means the period from the Effective Date to the earlier of (i) December 31, 2005 and (ii) the date on which the Arrangers confirm to the Borrower that the loan syndication process has been completed.

 

“ Originators ” means the Borrower and/or any of its Subsidiaries in their respective capacities as parties to any Receivables Purchase Documents, as sellers or transferors of any Receivables and Related Security in connection with a Permitted Receivables Transfer.

 

“ Other Taxes ” has the meaning specified in Section 9.3.

 

“ Participants ” has the meaning specified in Section 12.2.1.

 

“ Payment Office ” means the principal office of the Agent in Atlanta, Georgia, located on the date hereof at 303 Peachtree Street, 25th Floor, Atlanta, Georgia 30308 or such other office of the Agent as the Agent may from time to time designate by written notice to the Borrower and the Lenders.

 

“ PBGC ” means the Pension Benefit Guaranty Corporation, or any successor thereto.

 

“ Permitted Acquisition ” means any Acquisition made by the Borrower or any of its Subsidiaries provided that: (a) as of the date of such Acquisition, no Default or Unmatured Default shall have occurred and be continuing or would result from such Acquisition or from the incurrence of any Indebtedness in connection with such Acquisition; (b) prior to the date of such Acquisition, such Acquisition shall have been approved by the board of directors and, if applicable, the shareholders of the Person whose stock or assets are being acquired in connection with such Acquisition and no claim or challenge has been asserted or threatened by any shareholder or director of such Person which could reasonably be expected to have a material adverse effect on such Acquisition or a Material Adverse Effect; (c) as of the date of any such Acquisition, all approvals required in connection with such Acquisition shall have been obtained; and (d) any such Acquisition is an Acquisition of the assets or Capital Stock or other equity interests of a Person engaged in any line of business being conducted by the Borrower or any of its Subsidiaries at the time of such Acquisition or of a Health Care Company.

 

“ Permitted Receivables Transfer ” means (i) a sale or other transfer by an Originator to a SPV or any other Person of Receivables and Related Security for fair market value and without recourse (except for limited recourse typical of such structured finance transactions), and/or (ii) a sale or other transfer by an Originator or a SPV to (a) purchasers of or other investors in such Receivables and Related Security or (b) any other Person (including a SPV) in a transaction in which purchasers or other investors purchase or are otherwise transferred such Receivables and Related Security, in each case pursuant to and in accordance with the terms of the Receivables Purchase Documents, provided that Receivables Facility Attributed Indebtedness incurred in connection with the Receivables Purchase Documents does not exceed $200,000,000 in the aggregate at any time.

 

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“ Permitted Subordinated Debt ” means any Indebtedness of the Borrower (i) that is expressly subordinated to the Obligations on terms reasonably satisfactory to the Agent and the Required Lenders, (ii) that matures by its terms no earlier than six months after the Facility Termination Date with no principal payments due prior to such date, and (iii) that is evidenced by an indenture or other similar agreement that is in a form reasonably satisfactory to the Agent and the Required Lenders.

 

“ Person ” means any natural person, corporation, firm, joint venture, partnership, limited liability company, association, enterprise, trust or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.

 

“ Plan ” means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code as to which the Borrower or any member of the Controlled Group may have any liability.

 

“ Prepayment Notice ” has the meaning specified in Section 2.6.

 

“ Pricing Schedule ” means the Schedule attached hereto as Schedule I.

 

“ Prime Rate ” means a rate per annum equal to the prime rate of interest announced from time to time by SunTrust (which is not necessarily the lowest rate charged to any customer), changing when and as said prime rate changes.

 

“ Property ” of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.

 

“ Prospectus ” means that certain Prospectus dated March 7, 2005 circulated by Lehman in connection with the Exchange Transaction.

 

“ Purchasers ” has the meaning specified in Section 12.3.1.

 

“ Receivable(s) ” means and includes all of applicable Originator’s or SPV’s presently existing and hereafter arising or acquired accounts, accounts receivable, and all present and future rights of such Originator or SPV, as applicable, to payment for goods sold or leased or for services rendered (except those evidenced by instruments or chattel paper), whether or not they have been earned by performance, and all rights in any merchandise or goods which any of the same may represent, and all rights, title, security and guaranties with respect to each of the foregoing, including, without limitation, any right of stoppage in transit.

 

“ Receivables and Related Security ” means the Receivables and the related security and collections with respect thereto which are sold or transferred by any Originator or SPV in connection with any Permitted Receivables Transfer.

 

“ Receivables Facility Attributed Indebtedness ” means the amount of obligations outstanding under a receivables purchase facility on any date of determination that would be characterized as principal if such facility were structured as a secured lending transaction rather than as a purchase.

 

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“ Receivables Facility Financing Costs ” means such portion of the cash fees, service charges, and other costs, as well as all collections or other amounts retained by purchasers of receivables pursuant to a receivables purchase facility, which are in excess of amounts paid to the Borrower and its consolidated Subsidiaries under any receivables purchase facility for the purchase of receivables pursuant to such facility and are the equivalent of the interest component of the financing if the transaction were characterized as an on-balance sheet transaction.

 

“ Receivables Purchase Documents ” means any series of receivables purchase or sale agreements generally consistent with terms contained in comparable structured finance transactions pursuant to which an Originator or Originators sell or transfer to SPVs all of their respective right, title and interest in and to certain Receivables and Related Security for further sale or transfer to other purchasers of or investors in such assets (and the other documents, instruments and agreements executed in connection therewith), as any such agreements may be amended, restated, supplemented or otherwise modified from time to time, or any replacement or substitution therefor.

 

“ Receivables Purchase Facility ” means the securitization facility made available to the Borrower, pursuant to which the Receivables and Related Security of the Originators are transferred to one or more SPVs, and thereafter to certain investors, pursuant to the terms and conditions of the Receivables Purchase Documents.

 

“ Regulation D ” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System.

 

“ Regulation U ” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.

 

“ Reimbursement Obligation ” is defined in Section 2.20.3.

 

“ Rentals ” of a Person means the aggregate fixed amounts payable by such Person under any lease of Property having an original term (including any required renewals or any renewals at the option of the lessor or lessee) of one year or more.

 

“ Reportable Event ” means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section, with respect to a Plan, excluding, however, such events as to which the PBGC by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within 30 days of the occurrence of such event; provided, however, that a failure to meet the minimum funding standard of Section 412 of the Code and of Section 302 of ERISA shall be a Reportable Event regardless of the issuance of any such waiver of the notice requirement in accordance with either Section 4043(a) of ERISA or Section 412(d) of the Code.

 

“ Required Lenders ” means Lenders in the aggregate having at least 51% of the sum of (i) the Aggregate Revolving Commitment (or, if the Aggregate Revolving Commitment has been

 

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terminated, the aggregate unpaid principal amount of the outstanding Revolving Advances and L/C Obligations), (ii) the aggregate principal amount of the outstanding Term Loans and (iii) the sum of the aggregate principal amount of the outstanding 364-Day Loans and, if not then terminated, the then undrawn Aggregate 364-Day Commitment.

 

“ Required Notices ” has the meaning specified in Section 4.1(r).

 

“ Reserves ” means, with respect to a Eurodollar Interest Period, the maximum aggregate reserves (including all basic, supplemental, marginal and other reserves) imposed under Regulation D on Eurocurrency liabilities.

 

“ Revolving Advance ” means a borrowing consisting of simultaneous Revolving Loans of the same Type made to the Borrower by each of the Lenders pursuant to Section 2.1, and for, in the case of Eurodollar Advances, the same Interest Period.

 

“ Revolving Advance Borrowing Notice ” has the meaning specified in Section 2.7.

 

“ Revolving Commitment ” means, for each Lender, the obligation of such Lender to make Revolving Loans and to purchase participations in Letters of Credit and in Swing Line Loans not exceeding the amount set forth opposite its name on Schedule II attached hereto as reflected in the Revolving Commitment column or as set forth in any Notice of Assignment relating to any assignment that has become effective pursuant to Section 12.3.2, as such amount may be modified from time to time pursuant to the terms hereof. The original aggregate amount of the Revolving Commitments is $800,000,000.

 

“ Revolving Loan ” means a loan made by a Lender to the Borrower as part of a Revolving Advance.

 

“ Revolving Note ” has the meaning specified in Section 2.14(d).

 

“ RxCrossroads ” means substantially all of the assets of RxCrossroads, L.L.C., a Kentucky limited liability company, RxInnovations, LLC, a Kentucky limited liability company and Making Distribution Intelligent, L.L.C., a Kentucky limited liability company.

 

“ SEC ” has the meaning specified in Section 6.1(a).

 

“ Section ” means a numbered section of this Agreement, unless another document is specifically referenced.

 

“ Single Employer Plan ” means a Plan, if any, maintained by the Borrower or any member of the Controlled Group for employees of the Borrower or any member of the Controlled Group.

 

“ Solvent ” means with respect to any Person, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of

 

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such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.

 

“ Specified Remittance Time ” means (a) if the relevant Payment Office is located in Atlanta, 12:00 noon (Atlanta time) and (b) if the relevant Payment Office is located elsewhere, such time as the Agent shall specify after consultation with the Borrower and the Lenders.

 

“ SPV ” means any special purpose entity established for the purpose of purchasing receivables in connection with a receivables securitization transaction permitted under the terms of this Agreement.

 

“ Standard & Poor’s ” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc.

 

“ Subsidiary ” of a Person means (a) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (b) any partnership, limited liability company, association, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary of the Borrower.

 

“ Substantial Portion ” means, with respect to the Property of the Borrower and the Subsidiaries, Property that has a Fair Value representing more than 5% of Consolidated Net Worth determined as of the end of the fiscal quarter of the Borrower most recently ended prior to the date on which such determination is made.

 

“ SunTrust ” means SunTrust Bank, with its office in Atlanta, Georgia, in its individual capacity, and its successors and assigns.

 

“ Supplemental Guarantor ” has the meaning given that term in the definition of “Guarantor” above.

 

“ Swing Line Borrowing Notice ” has the meaning specified in Section 2.10(b).

 

“ Swing Line Commitment ” means the obligation of the Swing Line Lender to make Swing Line Loans up to a maximum principal amount of $50,000,000 at any one time outstanding.

 

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“ Swing Line Lender ” means SunTrust or any other Lender as a successor Swing Line Lender.

 

“ Swing Line Loan ” means a loan made available to the Borrower by the Swing Line Lender pursuant to Section 2.10.

 

“ Taxes ” means any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and any and all liabilities with respect to the foregoing, but excluding Excluded Taxes and Other Taxes.

 

“ Tender Offer ” means that certain Tender Offer launched on June 7, 2004, as amended from time to time prior to the date hereof, by the Borrower for all of the issued and outstanding Capital Stock of NeighborCare.

 

“ Term Advance ” means the aggregate principal amount outstanding under the Term Loans from time to time.

 

“ Term Advance Borrowing Notice ” has the meaning specified in Section 2.2.1.

 

“ Term Commitment ” means for each Lender, the obligation of such Lender to make a Term Loan hereunder on the Effective Date, in an amount not exceeding the amount set forth opposite its name on Schedule II attached hereto as reflected in the Term Commitment column, as such amount may be reduced pursuant to Section 2.2.1. The original aggregate amount of the Term Commitments is $700,000,000.

 

“ Term Loan ” has the meaning specified in Section 2.2.1.

 

“ Term Loans ” means the aggregate of the Terms Loans of all of the Lenders.

 

“ Term Note ” has the meaning specified in Section 2.14(d).

 

“ Transferee ” has the meaning specified in Section 12.4.

 

“ Trust PIERS ” means the 4.00% Junior Subordinated Debentures due 2033 of the Borrower issued pursuant to the Trust PIERS Supplemental Indenture.

 

“ Trust PIERS Supplemental Indenture ” means the Second Supplemental Indenture dated as of June 13, 2003, by and between the Borrower and SunTrust Bank, as Trustee, as the same may be supplemented, amended or otherwise modified from time to time, pursuant to which the Trust PIERS were issued.

 

“ Trust PIERS Trust Agreement ” means that certain Amended and Restated Trust Agreement dated June 13, 2003 of Omnicare Capital Trust I, a statutory trust created under Delaware law, executed by Borrower, as depositor, and the Delaware trustee thereunder, the sole asset of which is the Trust PIERS.

 

“ Type ” means, (a) with respect to any Revolving Loan, Term Loan or 364-Day Loan, its nature as a Floating Rate Loan or a Eurodollar Loan, and (b) with respect to any Revolving Advance, Term Advance or 364-Day Advance, its nature as a Floating Rate Advance or a Eurodollar Advance.

 

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“ Unfunded Liabilities ” means the amount (if any) by which the present value of all vested nonforfeitable benefits under all Single Employer Plans exceeds the Fair Value of all such Plan assets allocable to such benefits, all determined by the then most recent actuarial reports for such Plans.

 

“ United States ” and “ U.S. ” mean the United States of America.

 

“ Unmatured Default ” means an event which but for the lapse of time or the giving of notice, or both, would constitute a Default.

 

“ Wachovia ” has the meaning specified in the preamble hereto.

 

“ Wholly-Owned Subsidiary ” of a Person means (a) any Subsidiary all of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person, or (b) any partnership, association, joint venture or similar business organization 100% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.

 

ARTICLE II.

 

THE CREDITS

 

2.1. The Revolving Loans . Upon the satisfaction of the conditions precedent set forth in Section 4.2 and 4.4 and prior to the Facility Termination Date, each Lender severally agrees, on the terms and conditions set forth in this Agreement (including, without limitation, the terms and conditions of Section 2.11 and Section 8.1 relating to the reduction, suspension or termination of the Aggregate Revolving Commitment), to make Revolving Loans to the Borrower from time to time in an aggregate amount not to exceed at any one time outstanding the amount of such Lender’s Revolving Commitment; provided, however, that the Aggregate Revolving Commitment shall be deemed used from time to time to the extent of the aggregate L/C Obligations and the balance of any Swing Line Loans then outstanding, and such deemed use of the Aggregate Revolving Commitment shall be applied to the Lenders ratably according to their respective Revolving Commitments. Subject to the terms of this Agreement (including, without limitation, the terms and conditions of Section 2.11 and Section 8.1 relating to the reduction, suspension or termination of the Aggregate Revolving Commitment), the Borrower may borrow, repay and reborrow Revolving Loans at any time prior to the Facility Termination Date. Unless earlier terminated in accordance with the terms and conditions of this Agreement, the Revolving Commitments of the Lenders to lend hereunder shall expire on the Facility Termination Date. Notwithstanding anything herein to the contrary, each of the Lenders shall be required to fund its ratable share of any Revolving Advance made in connection with any L/C Drafts notwithstanding that such Revolving Advance may be made on or after the date of any reduction, suspension or termination of the Aggregate Revolving Commitment pursuant to Section 2.11(b) or Section 8.1.

 

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2.2. Term Loans and 364-Day Loans .

 

2.2.1 The Term Loans . Subject to the terms and conditions set forth herein, each Lender severally agrees to make a single loan (each, a “ Term Loan ”) to the Borrower on the Effective Date in a principal amount not to exceed the Term Commitment of such Lender; provided, that if for any reason the full amount of such Lender’s Term Commitment is not fully drawn on the Effective Date, the undrawn portion thereof shall automatically be canceled. The Borrower shall give Agent irrevocable notice, in the form required by Agent (the “ Term Advance Borrowing Notice ”), not later than 11:00 a.m. (Atlanta time) at least three (3) Business Days before the Effective Date, specifying the aggregate amount of the Term Advance, the Type of each Term Advance and, in the case of each Eurodollar Advance, the Interest Period applicable thereto; provided that, notwithstanding anything herein to the contrary, the Borrower may not select an Interest Period for Eurodollar Advances during the One Month Interest Period Syndication Period which exceeds one month, and the Interest Periods with respect to all such Eurodollar Advances outstanding at any time during the One Month Interest Period Syndication Period for the Revolving Advances shall expire on the same date as the Term Advances and the 364-Day Loans. The execution and delivery of this Agreement by the Borrower and the satisfaction of all conditions precedent pursuant to Section 4.1 shall be deemed to constitute the Borrower’s request to borrow the Term Loans on the Effective Date. The Term Commitments shall terminate on the Effective Date upon the making of the Term Loans pursuant to this Section 2.2.1.

 

2.2.2 The 364-Day Loans . Upon the satisfaction of the conditions precedent set forth in Section 4.3 and prior to the 364-Day Commitment Expiration Date, each Lender severally agrees on the terms and conditions set forth in this Agreement to make 364-Day Loans (each a “ 364-Day Loan ”) to the Borrower on any 364-Day Funding Date in an aggregate amount not to exceed the lesser of (a) such Lender’s 364-Day Percentage of the 364-Day Loans requested by the Borrower on such 364-Day Funding Date and (b) the remaining unfunded 364-Day Commitment of such Lender. If for any reason the full amount of such Lender’s 364-Day Commitment has not been fully drawn by the 364-Day Commitment Expiration Date, the undrawn portion thereof shall automatically be canceled. The Borrower shall give Agent irrevocable notice, in the form required by Agent (a “364-Day Advance Borrowing Notice”), not later than 11:00 a.m. (Atlanta time) (i) on the Effective Date for a Floating Rate advance and (ii) at least three (3) Business Days before the Effective Date for a Eurodollar advance, specifying the aggregate amount of the 364-Day Advance, the Type of each 364-Day Advance and, in the case of each Eurodollar Advance, the Interest Period applicable thereto; provided that, notwithstanding anything herein to the contrary, the Borrower may not select an Interest Period for Eurodollar Advances during the One Month Interest Period Syndication Period which exceeds one month, and the Interest Periods with respect to all such Eurodollar Advances outstanding at any time during the One Month Interest Period Syndication Period for the Revolving Advances shall expire on the same date as the Term Advances and the 364-Day Loans.

 

2.2.3 At any time prior to the 364-Day Commitment Expiration Date, the Borrower shall have the right, to request an increase in the Aggregate 364-Day Commitment of up to $500,000,000, provided that (i) no Unmatured Default or Default shall exist either at the time of the request or the making of the Incremental 364-Day Loans (or will result from the

 

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making of such Incremental 364-Day Loans) and (ii) such Incremental 364-Day Loans shall mature 364 days after the initial funding thereof. The Incremental 364-Day Loans shall constitute 364-Day Loans and Obligations hereunder. Such increased 364-Day Commitment may be provided from one or more existing Lenders (provided that no Lender shall be required to make all or any portion of the Incremental 364-Day Loans without its prior written consent, which consent is to be given in each Lender’s sole discretion) and/or one or more institutions that are not existing Lenders but are approved by the Agent and the Borrower and Lenders agree that this Agreement may be amended by an agreement between the Borrower and the Agent, without the need for any further approval or consent from the Lenders, to the extent the Agent determines to be necessary to effectuate such increase and to cause all 364-Day Lenders to have extended their pro rata share of the 364-Day Loans after giving effect to any increase in the Aggregate 364-Day Commitment.

 

2.3. Repayment of the Loans .

 

(a) Revolving Loans and Swing Line Loans . Any outstanding Revolving Loans and Swing Line Loans shall be paid in full by the Borrower on the Facility Termination Date; provided, however, that nothing in this Section 2.3 shall be construed as limiting or modifying the obligation of the Borrower to repay any or all of the outstanding Revolving Loans at any earlier time in accordance with the terms of this Agreement.

 

(b) Term Loans . The Borrower unconditionally promises to pay to the Agent for the account of each Lender the then unpaid principal amount of the Term Loan of such Lender on the Facility Termination Date (and on such other date(s) and in such other amounts as may be required from time to time pursuant to this Agreement).

 

(c) 364-Day Loans . The Borrower unconditionally promises to pay to the Agent for the account of each Lender, the aggregate unpaid principal amount of the 364-Day Loans on the date that is 364 days after the funding thereof.

 

(d) Crediting of Payments and Proceeds . In the event that the Borrower shall fail to pay all or any part of the Obligations when due, all payments received by the Agent or the Lenders upon the Obligations and all net proceeds from any enforcement of the Obligations shall be applied: (a) first to all expenses then due and payable by the Borrower under the Loan Documents, (b) then to all indemnity obligations then due and payable by the Borrower and under the Loan Documents, (c) then to all Agent’s fees then due and payable, (d) then to all commitment and other fees and commissions then due and payable, (e) then to accrued and unpaid interest on the Swing Line Loans to the Swing Line Lender, (f) then to the principal amount outstanding under the Swing Line Loans to the Swing Line Lender, (g) then to accrued and unpaid interest on the Notes and accrued and unpaid interest on the Reimbursement Obligation (pro rata in accordance with all such amounts due), (h) then to the principal amount of the Notes, Reimbursement Obligation and any Hedging Obligations (including any termination payments and any accrued and unpaid interest thereon) (pro rata in accordance with all such amounts due) and (i) then to the cash collateral account described in Section 2.20.4 hereof to the extent of any L/C Obligations then outstanding, in that order.

 

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2.4. Ratable Loans; Types of Revolving Advances . Each Revolving Advance hereunder shall consist of Revolving Loans made from the several Lenders ratably in proportion to the ratio that their respective Revolving Commitments bear to the Aggregate Revolving Commitment. Any Revolving Advance may be a Floating Rate Advance or a Eurodollar Advance, as the Borrower shall select in accordance with Sections 2.7 and 2.8; provided that, notwithstanding anything herein to the contrary, the Borrower may not select Interest Periods for Eurodollar Advances made during the One Month Interest Period Syndication Period which exceed one month, and the Interest Periods with respect to all such Eurodollar Advances outstanding at any time during the One Month Interest Period Syndication Period shall expire on the same date.

 

2.5. Minimum Amount of Each Revolving Advance . Each Revolving Advance shall be in a minimum amount not less than $15,000,000 or an integral multiple of $1,000,000 in excess thereof; provided, however, that any Revolving Advance may be in the amount of the unused Aggregate Revolving Commitment.

 

2.6. Prepayments of Loans .

 

2.6.1 Optional Prepayments of Loans . Subject to Section 3.4 and the requirements of Section 2.5, the Borrower may (a) following notice given to the Agent by the Borrower, in the form attached hereto as Exhibit H (a “ Prepayment Notice ”) by not later than 11:00 a.m. (Atlanta time) one Business Day prior to the date of the proposed prepayment, such notice specifying, with respect to an Advance being prepaid, whether an Advance being prepaid is a Revolving Advance, a Term Advance or a 364-Day Advance and the Type of such Advance and, with respect to an Advance or Swing Line Loan being prepaid, the aggregate principal amount of and the proposed date of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal amounts of the Floating Rate Loans comprising part of the same Advance in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid and (b) following a Prepayment Notice given to the Agent by the Borrower by not later than 11:00 a.m. (Atlanta time) on, if the Advance to be prepaid is a Eurodollar Advance, the third Business Day preceding the date of the proposed prepayment, such notice specifying the Advance to be prepaid and the proposed date of the prepayment, and, if such notice is given, Borrower shall, prepay the outstanding principal amounts of the Eurodollar Loans comprising a Eurodollar Advance in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid, provided that the portion of any Revolving Advance that is not prepaid hereunder shall continue to satisfy the minimum amount for such Revolving Advance specified in Section 2.5; provided that the Borrower may not optionally repay any Term Advance pursuant to this Section 2.6.1 or otherwise until all of the 364-Day Advances have been paid in full in cash. In the case of a Floating Rate Advance or Swing Line Loan, each partial prepayment shall be in an aggregate principal amount not less than $1,000,000, and in the case of a Eurodollar Advance, each partial prepayment shall be in a minimum aggregate principal amount of $5,000,000 or any integral multiple of $1,000,000 in excess thereof. Each prepayment of a Swing Line Loan shall be applied to the Swing Line Loans outstanding and each prepayment of an Advance shall be applied ratably to the Loans comprising such Advance, and in the case of a prepayment of a Term Advance, ratably to reduce all subsequently scheduled installments payable pursuant to Section 2.3(b). Notwithstanding anything in this Agreement to the contrary, Borrower may not reborrow under any Term Loan or 364-Day Loan after a prepayment is made pursuant to this Section 2.6.1.

 

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2.6.2 Mandatory Prepayments of 364-Day Loans . Subject to Section 3.4, if any Indebtedness specified in clause (a) (other than Indebtedness hereunder and Indebtedness incurred in connection with the redemption, repurchase or repayment of the 2011 Subordinated Notes) or clause (i) of the definition of “Indebtedness” in excess of $200,000,000 in the aggregate for all such incurrences is incurred by the Borrower or any of its Subsidiaries or any Capital Stock (other than Excluded Capital Stock) is issued by the Borrower, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied within two Business Days after the Borrower receives Net Cash Proceeds from such issuances or incurrences aggregating in excess of $10,000,000 (including, for the avoidance of doubt, such $10,000,000) toward the prepayment of the 364-Day Loans. Prepayments of 364-Day Loans pursuant to this Section 2.6.2 shall be applied, first, to Floating Rate Loans and, second, to Eurodollar Loans and shall be applied to the 364-Day Loans of the Lenders pro rata according to the respective amounts then due and owing to the Lenders. Notwithstanding anything in this Agreement to the contrary, Borrower may not reborrow under any 364-Day Loan after a prepayment is made pursuant to this Section 2.6.2.

 

2.7. Method of Selecting Types and Interest Periods for New Revolving Advances . The Borrower shall select the Type of each Revolving Advance and, in the case of a Eurodollar Advance, the Interest Period applicable to such Revolving Advance from time to time. The Borrower shall give the Agent irrevocable notice, in the form attached hereto as Exhibit G (a “ Revolving Advance Borrowing Notice ”), not later than 10:00 a.m. (Atlanta time) (i) on the Borrowing Date for each Floating Rate Advance and (ii) at least three Business Days before the Borrowing Date for each Eurodollar Advance, specifying:

 

(a)

the Borrowing Date, which shall be a Business Day, of such Advance,

 

(b)

the aggregate amount of such Advance,

 

(c)

the Type of such Advance, and

 

(d)

in the case of each Eurodollar Advance, the Interest Period applicable thereto.

 

Not later than the Specified Remittance Time on each Borrowing Date, each Lender shall make available its Revolving Loan or Revolving Loans to the Agent in immediately available funds at the relevant Payment Office. To the extent that the Agent has received funds from the Lenders as specified in the preceding sentence and the applicable conditions set forth in Article IV have been fulfilled, the Agent will make such funds available to the Borrower at the relevant Payment Office within two hours following the Specified Remittance Time, it being understood that if the relevant Payment Office is located in Atlanta, the Agent will make the applicable funds available to the Borrower by depositing such funds to such account with SunTrust as the Borrower shall designate.

 

2.8. Conversion and Continuation of Outstanding Advances . Floating Rate Advances shall continue as Floating Rate Advances unless and until such Floating Rate Advances are converted into Eurodollar Advances or prepaid pursuant to Section 2.6. Each Eurodollar

 

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Advance of any Type shall continue as a Eurodollar Advance of such Type until the end of the then applicable Interest Period therefor, at which time such Eurodollar Advance shall be automatically converted into a Floating Rate Advance unless the Borrower shall have given the Agent a Conversion/Continuation Notice requesting that, at the end of such Interest Period, such Eurodollar Advance either continue as a Eurodollar Advance of such Type for the same or another Interest Period or be converted into an Advance of another Type. Subject to the terms of Section 2.7, the Borrower may elect from time to time to convert all or any part of a Revolving Advance, or a Term Advance, of any Type into any other Type or Types of Advances; provided that any conversion of any Eurodollar Advance shall be made on, and only on, the last day of the Interest Period applicable thereto. The Borrower shall give the Agent irrevocable notice in the form of Exhibit I hereto (a “ Conversion/Continuation Notice ”) of each conversion of an Advance or continuation of a Eurodollar Advance not later than 11:00 a.m. (Atlanta time) (i) in the case of a conversion into a Floating Rate Advance on the date of such conversion and (ii) in the case of a conversion into or continuation of a Eurodollar Advance, at least three Business Days before the date of such conversion or continuation, specifying:

 

(a) the requested date, which shall be a Business Day, of such conversion or continuation;

 

(b) the aggregate amount and Type of the Revolving Advance, the Term Advance or the 364-Day Advance which is to be converted or continued; and (c) the amount and Type(s) of Revolving Advance(s), the Term Advance(s) or the 364-Day Advance(s) into which such Advance is to be converted or continued and, in the case of a conversion into or continuation of a Eurodollar Advance, the duration of the Interest Period applicable thereto.

 

2.9. Payment of Interest on Advances; Changes in Interest Rate .

 

(a) Interest accrued on each Floating Rate Advance shall be payable on the last Business Day of each calendar quarter and on the earliest of the Facility Termination Date, the date of the reduction to zero of the Aggregate Revolving Commitment pursuant to Section 2.11 and the date of the acceleration of the Obligations pursuant to Section 8.1. Interest accrued on each Eurodollar Advance shall be payable on the last day of its applicable Interest Period, on any date on which such Eurodollar Advance is prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued on each Eurodollar Advance having an Interest Period longer than three months shall also be payable on the last day of each three-month interval during such Interest Period. Interest on Floating Rate Advances shall be calculated for actual days elapsed on the basis of a 365/366-day year. Interest on Eurodollar Advances shall be calculated for actual days elapsed on the basis of a 360-day year. Interest shall be payable for the day an Advance is made but not for the day of any payment on the amount paid if payment is received prior to noon (local time) at the place of payment. If any payment of principal of or interest on an Advance shall become due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest in connection with such payment.

 

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(b) Each Floating Rate Advance shall bear interest on the outstanding principal amount thereof, for each day from and including the date such Advance is made or is converted from a Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.8(b) to but excluding the date it becomes due or is converted into a Eurodollar Advance pursuant to Section 2.8(b), at a rate per annum equal to the Floating Rate for such day. Changes in the rate of interest on each Revolving Advance and Term Advance maintained as a Floating Rate Advance will take effect simultaneously with each change in the Alternate Base Rate. Each Eurodollar Advance shall bear interest from and including the first day of the Interest Period applicable thereto to (but not including) the last day of such Interest Period at the Eurodollar Rate determined as applicable to such Eurodollar Advance. No Interest Period may end after the Facility Termination Date.

 

2.10. Swing Line Loans .

 

(a) Amount of Swing Line Loans . Upon the satisfaction of the conditions precedent set forth in Sections 4.2 and 4.4 and prior to the Facility Termination Date, the Swing Line Lender agrees, on the terms and conditions set forth in this Agreement, to make Swing Line Loans to the Borrower from time to time in an amount not to exceed the lesser of (i) $50,000,000 or (ii) the amount by which the Aggregate Revolving Commitment exceeds the sum of the outstanding principal amount of Revolving Advances and L/C Obligations. Each Swing Line Loan shall be in a minimum amount of not less than $1,000,000 or an integral multiple of $500,000 in excess thereof, and all interest payable on the Swing Line Loans shall be payable to the Swing Line Lender for the account of such Swing Line Lender. In no event shall the number of Swing Line Loans outstanding at any time be greater than four (4).

 

(b) Borrowing Notice . The Borrower shall deliver to the Agent and the Swing Line Lender a notice (a “ Swing Line Borrowing Notice ”) signed by it not later than 11:00 a.m. (Atlanta time) on the Borrowing Date of each Swing Line Loan specifying (i) the applicable Borrowing Date (which shall be a Business Day) and (ii) the aggregate amount of the requested Swing Line Loan. The Swing Line Loans shall at all times be Floating Rate Loans.

 

(c) Making of Swing Line Loans . Promptly after receipt of the Swing Line Borrowing Notice under Section 2.10(b), the Agent shall notify each Lender of the requested Swing Line Loan. Not later than 2:00 p.m. (Atlanta time) on the applicable Borrowing Date, the Swing Line Lender shall make available its Swing Line Loan in funds immediately available in Atlanta to the Agent at the address specified by the Agent. The Agent will promptly make such funds available to the Borrower.

 

(d) Payment of Interest and Repayment of Swing Line Loans . Interest accrued on each Swing Line Loan shall be payable on the first Business Day of each calendar month and on the applicable date the Swing Line Loan is due. Each Swing Line Loan shall be paid in full by the Borrower upon the earlier of (i) demand therefor by Agent, and (ii) Facility Termination Date. Outstanding Swing Line Loans may be repaid from the proceeds of Revolving Advances or Swing Line Loans. Any repayment of a Swing Line Loan shall be in the minimum amount of $500,000 and in increments of

 

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$100,000 in excess thereof or the full amount of such Swing Line Loan. If the Borrower at any time fails to repay a Swing Line Loan on the applicable date when due, the Borrower shall be deemed to have elected to borrow a Floating Rate Advance under Section 2.1 as of such date equal in amount to the unpaid amount of such Swing Line Loan (notwithstanding the minimum amount of Revolving Advances as provided in Section 2.5). The proceeds of any such Revolving Advance shall be used to repay such Swing Line Loan. Unless the Required Lenders shall have notified the Swing Line Lender prior to the Swing Line Lender making any Swing Line Loan, that the applicable conditions precedent set forth in Section 4.4 have not then been satisfied, each Lender’s obligation to make Revolving Loans pursuant to Section 2.1 and this Section 2.10(d) to repay Swing Line Loans shall be unconditional, continuing, irrevocable and absolute and shall not be affected by any circumstances, including the occurrence or continuance of a Default; provided that the Swing Line Lender shall not make a Swing Line Loan if, at the time it would otherwise make such Loan, the Swing Line Lender has actual knowledge that a Default has occurred and is continuing. In the event that any Lender fails to make payment to the Agent of any amount due under this Section 2.10(d), the Agent shall be entitled to receive, retain and apply against such obligation the principal and interest otherwise payable to such Lender hereunder until the Agent receives such payment from such Lender or such obligation is otherwise fully satisfied. In addition to the foregoing, if for any reason any Lender fails to make payment to the Agent of any amount due under this Section 2.10(d) or if, for any reason Revolving Advances cannot be made by the Lenders hereunder, such Lender shall, or shall be deemed, at the option of the Agent, to have unconditionally and irrevocably purchased from the Swing Line Lender, without recourse or warranty, an undivided interest in and participation in the applicable Swing Line Loan in the amount of the Loan such Lender was required to make pursuant to this Section 2.10(d) and such interest and participation may be recovered from such Lender together with interest thereon at the Federal Funds Effective Rate for each day during the period commencing on the date of demand by the Agent and ending on the date such obligation is fully satisfied.

 

2.11. Commitment Fees; Reductions in Commitment .

 

(a) Commitment Fees . The Borrower agrees to pay to the Agent for the account of each Lender a commitment fee at a rate per annum equal to the Applicable Commitment Fee Rate in effect from time to time on the daily unused portion of such Lender’s Revolving Commitment (treating the L/C Obligations and, with respect solely to the Swing Line Lender, the outstanding balance of any Swing Line Loans, as usage) from the date hereof to but excluding the earliest of the Facility Termination Date, the date of the reduction to zero of the Aggregate Revolving Commitment pursuant to this Section 2.11 and the date of the termination of the Aggregate Revolving Commitment pursuant to Section 8.1. Such commitment fees shall be payable in arrears on the last Business Day of each March, June, September and December, and on the earliest of the Facility Termination Date, the date of the reduction to zero of the Aggregate Revolving Commitment pursuant to this Section 2.11 and the date of the termination of the Aggregate Revolving Commitment pursuant to Section 8.1. Commitment fees shall be calculated for actual days elapsed on the basis of a 360-day year.

 

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(b) Reductions in Aggregate Revolving Commitment . The Borrower may permanently reduce the Aggregate Revolving Commitment in whole, or in part ratably among the Lenders in integral multiples of $5,000,000, upon at least three Business Days’ written notice to the Agent, which notice shall specify the amount of any such reduction; provided, however, that the amount of the Aggregate Revolving Commitment may not be reduced below the sum of the aggregate principal amount of the outstanding Revolving Advances and the aggregate outstanding L/C Obligations and Swing Line Loans.

 

(c) 364-Day Commitment Fees . The Borrower agrees to pay to the Agent for the account of each 364-Day Lender a commitment fee at a rate per annum equal to the Applicable Commitment Fee Rate in effect from time to time on the daily unused portion of such Lender’s 364-Day Commitment from the date hereof to but excluding the earliest of the 364-Day Commitment Expiration Date, the date of the reduction to zero of the Aggregate 364-Day Commitment pursuant to this Section 2.11 and the date of termination of the Aggregate 364-Day Commitment pursuant to Section 8.1. Such commitment fees shall be payable in arrears on the last Business Day of each March, June, September and December, and on the earliest of the 364-Day Commitment Expiration Date, the date of the reduction to zero of the Aggregate 364-Day Commitment pursuant to this Section 2.11 and the date of the termination of the Aggregate 364-Day Commitment pursuant to Section 8.1. Commitment fees shall be calculated for actual days elapsed on the basis of a 360-day year.

 

(d) Reduction in Unfunded Aggregate 364-Day Commitment . The Borrower may permanently reduce the unfunded Aggregate 364-Day Commitment in whole, or in part ratably among the 364-Day Lenders in integral multiples of $5,000,000, upon at least three Business Days’ written notice to the Agent, which notice shall specify the amount of any such reduction.

 

2.12. Rates Applicable After Default . Notwithstanding anything to the contrary contained in Section 2.9, during the continuance of a Default or Unmatured Default no Revolving Advance or 364-Day Loan may be made as, converted into or continued, as a Eurodollar Advance and no Term Advance may be converted into or continued as a Eurodollar Advance. Upon the occurrence and during the continuance of a Default pursuant to Section 7.2 and, if the Required Lenders so elect, upon the occurrence and during the continuance of any other Default, (a) each Eurodollar Advance, until paid in full or converted to a Floating Rate advance, shall bear interest at the Eurodollar Rate then applicable to such Advance plus 2% per annum and (b) each Floating Rate Advance shall bear interest until paid in full at a rate per annum equal to the Floating Rate plus 2% per annum.

 

2.13. Method of Payment . All payments of the Obligations hereunder shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Agent at the Agent’s address specified pursuant to Article XIII, or at any other Lending Installation of the Agent specified in writing by the Agent to the Borrower, by 1:00 p.m. (Atlanta time) on the date when due and shall be remitted by the Agent to the Lenders according to their respective interests therein. Each payment delivered to the Agent for the account of any Lender shall be delivered promptly by the Agent to such Lender in the same type of funds that the Agent

 

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received at its address specified pursuant to Article XIII or at any Lending Installation specified in a notice received by the Agent from such Lender. The Agent is hereby authorized, but is not obligated, to charge the accounts of the Borrower maintained with SunTrust into which proceeds of Advances are remitted pursuant to Section 2.7 for each payment of interest and fees as it becomes due hereunder, for each payment of principal, in accordance with the applicable Prepayment Notice or when otherwise due and payable in accordance with the terms hereof, and for each payment of Reimbursement Obligations when due and payable in accordance with the terms hereof.

 

2.14. Noteless Agreement; Evidence of Indebtedness; Telephonic Notices .

 

(a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Revolving Loan, Term Loan or 364-Day Loan (and, in the case of the Swing Line Lender, each Swing Line Loan) made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

 

(b) The Agent shall also maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period with respect thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder, and (iii) the amount of any sum received by the Agent hereunder from the Borrower and each Lender’s share thereof.

 

(c) The entries maintained in the accounts maintained pursuant to paragraphs (a) and (b) above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided, however, that the failure of the Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in accordance with their terms.

 

(d) Any Lender may request that (i) its Revolving Loans be evidenced by a promissory note in substantially the form of Exhibit A (a “ Revolving Note ”), (ii) its Term Loan be evidenced by a promissory note in substantially the form of Exhibit B-1 (a “ Term Note ”) and (iii) its 364-Day Loan be evidenced by a promissory note in substantially the form of Exhibit B-2 (a “ 364-Day Note ”). In such event, the Borrower shall prepare, execute and deliver to such Lender such Revolving Note, Term Note and/or 364-Day Note payable to the order of such Lender. Thereafter, the Revolving Loans, Term Loans or 364-Day Loans evidenced by such Revolving Note, Term Note and/or 364-Day Note and interest thereon shall at all times (including after any assignment pursuant to Section 12.3) be represented by one or more Revolving Notes, Term Notes and/or 364-Day Note respectively, payable to the order of the payee named therein or any assignee pursuant to Section 12.3, except to the extent that any such Lender or assignee subsequently returns any such Revolving Note, Term Note and/or 364-Day Note for cancellation and requests that such Loans once again be evidenced as described in paragraphs (a) and (b) above.

 

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(e) The Borrower hereby authorizes the Lenders and the Agent to extend, convert or continue Revolving Advances, Term Advances and 364-Day Advances and effect selections of Types of Advances based on telephonic notices made by any person or persons the Agent in good faith believes to be acting on behalf of the Borrower. The Borrower agrees to deliver promptly to the Agent a written confirmation, if such confirmation is requested by the Agent or any Lender, of each telephonic notice, signed by an Authorized Officer. If the written confirmation differs in any material respect from the action taken by the Agent and the Lenders, the records of the Agent of the relevant telephonic notice shall govern absent manifest error.

 

2.15. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions . Promptly after receipt thereof, the Agent will notify each Lender of the contents of each Aggregate Revolving Commitment reduction notice, Borrowing Notice, Conversion/Continuation Notice, and Prepayment Notice received by it hereunder. The Agent will notify each Lender and the Borrower of the interest rate applicable to each Eurodollar Advance promptly upon determination of such interest rate and will give each Lender and the Borrower prompt notice of each change in the Alternate Base Rate.

 

2.16. Lending Installations . Each Lender may book its Loans at any one or more Lending Installations selected by such Lender and may change any such Lending Installation from time to time. All terms of this Agreement shall apply to any such Lending Installation and the Notes shall be deemed held by each Lender for the benefit of such Lending Installation. Each Lender may, by written or telex notice to the Agent and the Borrower, designate a Lending Installation through which Loans will be made by it and for whose account Loan payments are to be made.

 

2.17. Non-Receipt of Funds by the Agent . Unless the Borrower or a Lender, as the case may be, notifies the Agent prior to the date on which it is scheduled to make payment to the Agent of (a) in the case of a Lender, the proceeds of a Loan or (b) in the case of the Borrower, a payment of principal, interest or fees to the Agent for the account of the Lenders, that it does not intend to make such payment, the Agent may assume that such payment has been made. The Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in fact made such payment to the Agent, the recipient of such payment shall, on demand by the Agent, repay to the Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Agent until the date the Agent recovers such amount at a rate per annum equal to (a) in the case of repayment by a Lender, the Federal Funds Effective Rate for such day or (b) in the case of repayment by the Borrower, the interest rate applicable to the relevant Loan.

 

2.18. Withholding Tax Exemption . At least five Business Days prior to the first date on which interest or fees are payable hereunder for the account of any Lender or the Agent, such Lender or Agent that is not organized under the laws of the United States of America, or a state thereof, agrees