Exhibit 10.2
WAIVER AND AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT AND
SECURITY AGREEMENT
THIS WAIVER AND AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT AND
SECURITY AGREEMENT (this "Waiver and Amendment") is entered into as of September
24, 2002, by and among:
(1) QUEST DIAGNOSTICS RECEIVABLES INC., a Delaware corporation (the
"Borrower"),
(2) QUEST DIAGNOSTICS INCORPORATED, a Delaware corporation as initial
servicer (together with the Borrower, the "Loan Parties"),
(3) BLUE RIDGE ASSET FUNDING CORPORATION, a Delaware corporation,
WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as a Liquidity Bank to
Blue Ridge, and LLOYDS TSB BANK PLC, in its capacity as a Liquidity Bank to
Blue Ridge ("Lloyds"),
(4) LA FAYETTE ASSET SECURITIZATION LLC, a Delaware limited liability
company (together with its successors, "La Fayette"), and CREDIT LYONNAIS
NEW YORK BRANCH, in its capacity as a Liquidity Bank to La Fayette,
(5) WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as agent for
the Blue Ridge Group, and CREDIT LYONNAIS NEW YORK BRANCH, in its capacity
as agent for the La Fayette Group (in such latter capacity, together with
its successors in such latter capacity, the "La Fayette Agent" or a
"Co-Agent"), and
(6) WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent for
the Blue Ridge Group, the La Fayette Group and the Co-Agents (in such
capacity, together with any successors thereto in such capacity, the
"Administrative Agent" and together with each of the Co-Agents, the
"Agents"),
with respect to that certain Amended and Restated Credit and Security Agreement
dated as of September 28, 2001, by and among the parties hereto (as heretofore
amended, the "Existing Agreement" which, as amended hereby, is hereinafter
referred to as the "Agreement").
Unless otherwise indicated, capitalized terms used in this Waiver and
Amendment are used with the meanings attributed thereto in the Existing
Agreement.
W I T N E S S E T H :
WHEREAS, the parties wish to modify the Existing Agreement as
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto hereby agree as follows:
1. Amendments to and Waiver of Existing Agreement. Subject to the
terms and conditions hereinafter set forth, the parties hereby agree as follows:
1.1. Clause (i) of the definition of "Eligible Receivable" is hereby
amended and restated in its entirety to read as follows:
(i) which constitutes the legal, valid and binding obligation of the
Obligor of such Receivable enforceable against such Obligor in accordance
with its terms and is not subject to any actual or reasonably expected
Contraction, dispute, offset (except as provided below), counterclaim or
defense whatsoever; provided, however, that if such actual or reasonably
expected Contraction or such dispute, offset, counterclaim or defense
affects only a portion of the Unpaid Net Balance of such Receivable, then
such Receivable may be deemed an Eligible Receivable to the extent of the
portion of such Unpaid Net Balance which is not so affected;
1.2. The definition of "Obligor Concentration Limit" is hereby amended
to reduce the Obligor Concentration Limit for Aetna U.S. Healthcare, Inc. and
its Affiliated Obligors to 6% of Eligible Receivables.
1.3. Lloyds' Commitment and Lloyds' Liquidity Commitment are hereby
cancelled, Lloyds is hereby removed as a Lender and as a Blue Ridge Liquidity
Bank, Lloyds shall no longer be a party to the Agreement, and Lloyds hereby
agrees that it no longer needs to be a party to any amendment to or waiver of
the Agreement or the Blue Ridge Liquidity Agreement.
1.4. Wachovia's Commitment is hereby reduced to $200,000,000, and
Wachovia's Liquidity Commitment is hereby reduced to $204,000,000.
1.5. The Aggregate Commitment is hereby reduced to $250,000,000.
1.6. The Agents and the Lenders hereby waive any Event of Default or
Unmatured Default that may arise or have arisen by virtue of a breach of the
representation contained in Section 6.1(m) of the Existing Agreement arising
from the Loan Parties' failure (at any time on or prior to December 15, 2002) to
exclude from Eligible Receivables in any Monthly Report (a) any Receivable that
fails the test set forth in clause (m) of the definition of "Eligible
Receivable" or (b) any Government Receivable as to which the Obligor is a state
or local Governmental Authority (other than a Receivable arising under any
state's Medicaid statutes and regulations, for services rendered to eligible
beneficiaries thereunder).
2. Representations.
2.1. Each of the Loan Parties represents and warrants to the Lenders
and the Agents that it has duly authorized, executed and delivered this Waiver
and Amendment and that the Agreement constitutes, a legal, valid and binding
obligation of such Loan Party, enforceable in accordance with its terms (except
as enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability).
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2.2. Each of the Loan Parties further represents and warrants to the
Lenders and the Agents that, after giving effect to this Waiver and Amendment,
each of its representations and warranties set forth in Section 6.1 of the
Agreement is true and correct as of the date hereof and that no Event of Default
or Unmatured Default exists as of the date hereof and is continuing.
3. Condition Precedent. This Waiver and Amendment shall become
effective as of the date first above written upon receipt by the Administrative
Agent of a counterpart hereof duly executed by each of the parties hereto.
4. Miscellaneous.
4.1. Except as expressly amended hereby, the Existing Agreement and
shall remain unaltered and in full force and effect, and each of the parties
hereby ratifies and confirms the Agreement and each of the other Transaction
Documents to which it is a party.
4.2. THIS WAIVER AND AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICTS OF LAW.
4.3. EACH LOAN PARTY HEREBY ACKNOWLEDGES AND AGREES THAT:
4.3.1. IT IRREVOCABLY (i) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION,
FIRST, OF ANY UNITED STATES FEDERAL COURT, AND SECOND, IF FEDERAL JURISDICTION
IS NOT AVAILABLE, OF ANY NEW YORK STATE COURT, IN EITHER CASE SITTING IN NEW
YORK COUNTY, NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THE AGREEMENT, AND (ii) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF AN ACTION OR
PROCEEDING IN SUCH COURTS.
4.3.2. TO THE EXTENT THAT IT HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM THE JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID TO EXECUTION,
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, IT HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER OR IN
CONNECTION WITH THE EXISTING AGREEMENT.
4.4. This Waiver and Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same Amendment.
(Signature pages follow)
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IN WITNESS WHEREOF, the parties hereto have executed this Waiver and
Amendment as of the date first above written.
QUEST DIAGNOSTICS RECEIVABLES INC.
By:
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Name:
Title:
QUEST DIAGNOSTICS INCORPORATED
By:
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Name:
Title:
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WACHOVIA BANK, NATIONAL ASSOCIATION,
INDIVIDUALLY, AS ADMINISTRATIVE AGENT AND AS
BLUE RIDGE AGENT
By:
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Name:
Title:
BLUE RIDGE ASSET FUNDING CORPORATION
BY: WACHOVIA BANK, NATIONAL ASSOCIATION,
ITS ATTORNEY-IN-FACT
By:
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Name:
Title:
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LA FAYETTE ASSET SECURITIZATION LLC
BY: LA FAYETTE MEMBER, INC., AS ITS SOLE MEMBER
By:
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Name: Konstantina Kourmpetis
Title: Director
CREDIT LYONNAIS NEW YORK BRANCH,
INDIVIDUALLY AND AS LA FAYETTE AGENT
By:
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Name: Konstantina Kourmpetis
Title: Director
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LLOYDS TSB BANK PLC
By:
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Name:
Title:
By:
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Name:
Title:
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