Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered into
as of September 20, 2002 among QUEST DIAGNOSTICS INCORPORATED, a Delaware
corporation (the "Borrower"), certain Subsidiaries of the Borrower as
Guarantors, the Lenders party hereto and BANK OF AMERICA, N.A., as
Administrative Agent for the Lenders (the "Administrative Agent"). Capitalized
terms used herein and not otherwise defined shall have the meanings set forth in
the Credit Agreement (as defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative
Agent entered into that certain Credit Agreement dated as of June 21, 2002 (as
amended hereby and as the same may hereafter be further amended, modified or
supplemented, the "Credit Agreement");
WHEREAS, the Credit Parties are requesting that the Lenders amend certain
terms of the Credit Agreement in order to extend the Maturity Date; and
WHEREAS, the Lenders have agreed to amend certain terms of the Credit
Agreement in order to extend the Maturity Date, subject to the conditions set
forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
1. Amendment to Credit Agreement.
(a) Section 1.1. The definition of "Maturity Date" set forth in Section 1.1
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:
"Maturity Date" means (i) December 31, 2002 if the Unilab Acquisition
is not consummated on or prior to such date or (ii) June 21, 2007 if the
Unilab Acquisition is consummated on or prior to December 31, 2002.
(b) Section 3.4. Section 3.4 of the Credit Agreement is hereby amended by
adding the following two sentences at the end of such Section to read as
follows:
The Borrower agrees to pay to the Administrative Agent, for the
account of the Lenders on a pro rata basis based on their Term Loan
Commitment Percentage, a ticking fee equal to 0.25% per annum (the "Ticking
Fee") calculated on the then applicable Term Loan Committed Amount (giving
effect to any reduction thereof pursuant to Section 2.1(d)). The Ticking
Fee shall accrue daily from October 1, 2002 to the earlier of the Funding
Date
or the Maturity Date and shall be payable monthly in arrears on the last
Business Day of each month and on the Funding Date or the Maturity Date, as
applicable.
2. Effectiveness; Conditions Precedent. This Amendment shall be deemed to
have become effective as of the date above written upon receipt by the
Administrative Agent of copies of this Amendment duly executed by the Credit
Parties and the Lenders.
3. Ratification of Credit Agreement. The term "Credit Agreement" as used in
each of the Credit Documents shall hereafter mean the Credit Agreement as
amended and modified by this Amendment. Except as herein specifically agreed,
the Credit Agreement, as amended by this Amendment, is hereby ratified and
confirmed and shall remain in full force and effect according to its terms. The
Credit Parties acknowledge and consent to the modifications set forth herein and
agree that this Amendment does not impair, reduce or limit any of their
obligations under the Credit Documents (including, without limitation, the
indemnity obligations set forth therein) and that this Amendment shall
constitute a Credit Document. Notwithstanding anything herein to the contrary
and without limiting the foregoing, each of the Guarantors reaffirms its
guaranty obligations set forth in the Credit Agreement.
4. Authority/Enforceability. Each of the Credit Parties represents and
warrants as follows:
(a) It has taken all necessary action to authorize the execution,
delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered by such Person
and constitutes such Person's legal, valid and binding obligations,
enforceable in accordance with its terms, except as such enforceability may
be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting creditors'
rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in
equity).
(c) No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental authority or
third party is required in connection with the execution, delivery or
performance by such Person of this Amendment.
(d) The execution and delivery of this Amendment does not violate,
contravene or conflict with any Requirement of Law applicable to it or any
of its Subsidiaries.
5. No Default. The Credit Parties represent and warrant to the Lenders that
after giving effect to this Amendment (a) the representations and warranties of
the Credit Parties set forth in Section 6 of the Credit Agreement are true and
correct as of the date hereof and (b) no event has occurred and is continuing
which constitutes a Default or an Event of Default.
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6. Release. In consideration of entering into this Amendment, each of the
Credit Parties releases the Agents, the Lenders, and each Agent's and each
Lender's respective Affiliates, Subsidiaries, officers, employees,
representatives, agents, counsel and directors from any and all actions, causes
of action, claims, demands, damages and liabilities of whatever kind or nature,
in law or in equity, now known or unknown, suspected or unsuspected to the
extent that any of the foregoing arises from any action or failure to act with
respect to the Credit Agreement or the other Credit Documents on or prior to the
date hereof.
7. Counterparts/Telecopy. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. Delivery of
executed counterparts of this Amendment by telecopy shall be effective as an
original and shall constitute a representation that an original shall be
delivered promptly upon request.
8. Entirety. This Amendment and the other Credit Documents embody the
entire agreement between the parties hereto and supersede all prior agreements
and understandings, oral or written, if any, relating to the subject matter
hereof.
9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. Venue; Jurisdiction; Waivers. The venue, jurisdiction, waiver of jury
trial and waiver of consequential damages provisions set forth in Sections 11.11
and 11.12 of the Credit Agreement are hereby incorporated by reference, mutatis
mutandis.
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Signature Page to
First Amendment to
Quest Diagnostics Incorporated Credit Agreement
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered and this Amendment shall be
effective as of the date first above written.
BORROWER:
QUEST DIAGNOSTICS INCORPORATED,
A Delaware corporation
By:
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Name:
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Title:
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GUARANTORS:
QUEST DIAGNOSTICS HOLDINGS
INCORPORATED,
a Delaware corporation
QUEST DIAGNOSTICS CLINICAL
LABORATORIES, INC.,
a Delaware corporation
QUEST DIAGNOSTICS INCORPORATED,
a California corporation
QUEST DIAGNOSTICS INCORPORATED,
a Maryland corporation
QUEST DIAGNOSTICS INCORPORATED,
a Michigan corporation
QUEST DIAGNOSTICS OF PENNSYLVANIA, INC.,
a Delaware corporation
METWEST, INC.,
a Delaware corporation
NICHOLS INSTITUTE DIAGNOSTICS,
a California corporation
DPD HOLDINGS, INC.,
a Delaware corporation
DIAGNOSTICS REFERENCE SERVICES INC.,
a Maryland corporation
Signature Page to
First Amendment to
Quest Diagnostics Incorporated Credit Agreement
AMERICAN MEDICAL LABORATORIES,
INCORPORATED,
a Delaware corporation
AML INC.,
a Delaware corporation
QUEST DIAGNOSTICS INCORPORATED (NV),
a Nevada corporation
MEDICAL LABORATORIES CORPORATION
d/b/a American Medical Laboratories,
a Virginia corporation
QUEST DIAGNOSTICS LLC,
an Illinois limited liability company
QUEST DIAGNOSTICS LLC,
a Connecticut limited liability company
QUEST DIAGNOSTICS LLC,
a Massachusetts limited liability
company
APL PROPERTIES, LLC,
a Nevada limited liability company
By:
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Name: Joseph P. Manory
Title: Vice President and Treasurer
PATHOLOGY BUILDING PARTNERSHIP,
a Delaware general partnership
By: Quest Diagnostics Incorporated, a
Maryland corporation, its general
partner
By:
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Name: Joseph P. Manory
Title: Vice President and Treasurer
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
LENDERS:
BANK OF AMERICA, N.A.,
individually in its capacity as a
Lender and in its capacity as
Administrative Agent
By:
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Name:
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Title:
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
ALLFIRST BANK
By:
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Name:
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Quest Diagnostics Incorporated Credit Agreement
BANK HAPOALIM B.M.
By:
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Name:
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
THE GOVERNOR & COMPANY OF THE BANK OF
IRELAND
By:
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Name:
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
BANK LEUMI USA
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
THE BANK OF NEW YORK
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
BANK ONE, NA (MAIN OFFICE CHICAGO)
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
BAYERISCHE HYPO- UND VEREINSBANK AG,
NEW YORK BRANCH
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Quest Diagnostics Incorporated Credit Agreement
BNP PARIBAS
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
CHANG HWA COMMERCIAL BANK, LTD.,
NEW YORK BRANCH
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
CHINATRUST COMMERCIAL BANK, LTD.,
NEW YORK BRANCH
By:
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
CREDIT LYONNAIS NEW YORK BRANCH
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
DEUTSCHE BANK AG, NEW YORK BRANCH
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
E. SUN COMMERCIAL BANK, LTD.,
LOS ANGELES BRANCH
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
FLEET NATIONAL BANK
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Quest Diagnostics Incorporated Credit Agreement
GENERAL ELECTRIC CAPITAL CORPORATION
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
KEY CORPORATE CAPITAL INC.
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Quest Diagnostics Incorporated Credit Agreement
LASALLE BANK NATIONAL ASSOCIATION
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
MERRILL LYNCH CAPITAL CORPORATION
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
MIZUHO CORPORATE BANK, LTD.
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
NATIONAL CITY BANK
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Quest Diagnostics Incorporated Credit Agreement
THE NORINCHUKIN BANK, NEW YORK BRANCH
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
PB CAPITAL CORPORATION
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Quest Diagnostics Incorporated Credit Agreement
PNC BANK, NATIONAL ASSOCIATION
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
SUMITOMO MITSUI BANKING CORPORATION
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
SUNTRUST BANK
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First Amendment to
Quest Diagnostics Incorporated Credit Agreement
UNION BANK OF CALIFORNIA, N.A.
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Quest Diagnostics Incorporated Credit Agreement
WACHOVIA BANK, NATIONAL ASSOCIATION
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