Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO TERM LOAN CREDIT AGREEMENT (this "Amendment")
is entered into as of April 20, 2004 among QUEST DIAGNOSTICS INCORPORATED, a
Delaware corporation (the "Borrower"), certain Subsidiaries of the Borrower, as
Guarantors (the "Guarantors"), the Lenders party hereto and Sumitomo Mitsui
Banking Corporation, 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 Term Loan Credit Agreement dated
as of December 19, 2003, as amended hereby and as the same may hereafter be
further amended, modified, supplemented or restated, the "Credit Agreement");
WHEREAS, the Credit Agreement incorporated in Section 7 of the Credit
Agreement the corresponding covenants contained in Section 7 of the Credit
Agreement dated as of June 27, 2001, (the "2001 Senior Credit Agreement") among
the Borrower, the Guarantors, the lender parties thereto and Bank of America,
N.A., as Administrative Agent entered into a Credit Agreement dated as of June
27, 2001, (the "2001 Senior Credit Agreement").
WHEREAS, Section 11.6 of the Credit Agreement provides that if the
Initial Lender participates in a facility that replaces the 2001 Senior Credit
Agreement (a "Replacement Facility"), such participation shall represent its
agreement to amend the Credit Agreement to conform to the covenants of such
Replacement Facility without payment of any fees in connection with such
confirming amendment.
WHEREAS, subsequent to the execution of the Credit Agreement, the 2001
Senior Credit Agreement was replaced by a Credit Agreement dated as of April 20,
2004 (the "2004 Senior Credit Agreement") among Borrower, the Guarantors, the
lender parties thereto (including the Initial Lender) and Bank of America, N.A.,
as Administrative Agent.
WHEREAS, the Initial Lender was a lender party to the 2004 Senior
Credit Agreement, which constitutes a Replacement Facility for purposes of
Section 11.6 of the Credit Agreement.
WHEREAS, the Credit Parties are requesting that the Lenders agree to
amend certain terms of the Credit Agreement in order to conform certain of the
covenants to those contained in the 2004 Senior Credit Agreement; and
WHEREAS, the Lenders have agreed to such amendments, 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. Amendments to Credit Agreement.
(a) Existing Definitions. The following definitions set forth
in Section 1.1 of the Credit Agreement are amended and restated in
their entirety to read as follows:
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof having maturities of not more than
eighteen months from the date of acquisition, (b) Dollar denominated
time and demand deposits, certificates of deposit and banker's
acceptances of (i) any Lender, (ii) any domestic commercial bank having
capital and surplus in excess of $500,000,000 or (iii) any bank whose
short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Moody's is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with
maturities of not more than 270 days from the date of acquisition, (c)
commercial paper and variable or fixed rate notes issued by any
Approved Bank (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation rated A-1
(or the equivalent thereof) or better by S&P or P-1 (or the equivalent
thereof) or better by Moody's and maturing within six months of the
date of acquisition, (d) repurchase agreements with a bank or trust
company (including any of the Lenders) or recognized securities dealer
having capital and surplus in excess of $500,000,000 for direct
obligations issued by or fully guaranteed by the United States of
America in which the Borrower shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date
of purchase thereof, a fair market value of at least 100% of the amount
of the repurchase obligations, (e) Investments in tax-exempt municipal
bonds rated A (or the equivalent thereof) or better by S&P or MIG2 (or
the equivalent thereof) or better by Moody's, (f) auction rate
securities rated AA or better by S&P or Moody's, in either case with a
reset of no longer than 90 days and (g) Investments, classified in
accordance with GAAP as current assets, in money market investment
programs registered under the Investment Company Act of 1940, as
amended, which are administered by reputable financial institutions
having capital of at least $500,000,000 and the portfolios of which are
limited to Investments of the character described in the foregoing
subdivisions (a) through (f).
"EBITDA" means, for any period, with respect to the Borrower
and its Subsidiaries on a consolidated basis, (a) Net Income for such
period (excluding the effect of any extraordinary or other
non-recurring gains and losses (including any gain or loss from the
sale of Property)) plus (b) an amount which, in the determination of
Net Income for such period, has been deducted for (i) Interest Expense
for such period, (ii) total Federal, state, foreign or other income or
franchise taxes for such period, (iii) all depreciation and
amortization for such period, (iv) other items of expense during such
period that do not involve a cash payment at any time (other than the
provision for bad
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debt in connection with uncollectible accounts receivable), (v) cash
charges during such period for which the Borrower and its Subsidiaries
are reimbursed by a third party during such period and (vi) special or
restructuring items during any such period included in Net Income that
do not involve a cash payment during such period (collectively,
"Non-Cash Items") minus (c) any actual cash payments during the
applicable period related to Non-Cash Items expensed or reserved under
clauses (v) and (vi) above plus (d) Tender Costs during such period.
"Eligible Assets" means any assets or any business (or any
substantial part thereof) used or useful in the same or a similar line
of business as the Borrower and its Subsidiaries are engaged on the
Closing Date or other healthcare-related businesses or businesses
reasonably related thereto.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund and (d) any other Person approved by the
Administrative Agent, the Issuing Lender and the Borrower (such
approval not to be unreasonably withheld or delayed); provided that (i)
the Borrower's consent is not required during the existence and
continuation of a Default or an Event of Default, (ii) approval by the
Borrower shall be deemed given if no objection is received by the
assigning Lender and the Administrative Agent from the Borrower within
five Business Days after notice of such proposed assignment has been
delivered to the Borrower; (iii) neither the Borrower nor an Affiliate
of the Borrower shall qualify as an Eligible Assignee; and (iv) no
competitor of the Borrower shall qualify as an Eligible Assignee.
"Guarantor" means each of the Material Domestic Subsidiaries
of the Borrower, any other Subsidiary of the Borrower that guaranties
any Pari Passu Debt and each Additional Credit Party, together with
their successors and assigns.
"Leverage Ratio" means, as of the last day of each fiscal
quarter, the ratio of (a) Funded Debt on such date to (b) EBITDA for
the twelve month period ending on such date.
"Medicaid Regulations" means, collectively, (a) all federal
statutes (whether set forth in Title XIX of the Social Security Act or
elsewhere) affecting Medicaid and any statutes succeeding thereto; (b)
all applicable provisions of all federal rules, regulations, manuals
and orders and administrative, reimbursement and other guidelines
having the force of law of all Governmental Authorities promulgated
pursuant to or in connection with the statutes described in clause (a)
above; (c) all state statutes and plans for medical assistance enacted
in connection with the statutes and provisions described in clauses (a)
and (b) above; and (d) all applicable provisions of all rules,
regulations, manuals and orders and administrative, reimbursement and
other guidelines having the force of law of all Governmental
Authorities promulgated pursuant to or in connection with the statutes
described in clause (c) above and all state administrative,
reimbursement and other guidelines of all Governmental Authorities
having the force of law promulgated pursuant to or in connection with
the statutes described in clause (b) above, in each case as may be
amended, supplemented or otherwise modified from time to time.
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"Medicare Provider Agreement" means an agreement entered into
between CMS or other such entity administering the Medicare program on
behalf of CMS, and a health care provider or supplier under which the
health care provider or supplier agrees to provide services for
Medicare patients in accordance with the terms of the agreement and
Medicare Regulations.
"Medicare Regulations" shall mean, collectively, all federal
statutes (whether set forth in Title XVIII of the Social Security Act
or elsewhere) affecting the health insurance program for the aged and
disabled established by Title XVIII of the Social Security Act and any
statutes succeeding thereto; together with all applicable provisions of
all rules, regulations, manuals and orders and administrative,
reimbursement and other guidelines having the force of law of all
Governmental Authorities (including, without limitation, the HHS, CMS,
the OIG, or any person succeeding to the functions of any of the
foregoing) promulgated pursuant to or in connection with any of the
foregoing having the force of law, as each may be amended, supplemented
or otherwise modified from time to time.
"OIG" means the Office of Inspector General of HHS and any
successor thereof.
"Permitted Acquisition" means an Acquisition by the Borrower
or any of its Subsidiaries; provided that (a) substantially all of the
Property acquired (or the Property of the Person acquired) in such
Acquisition constitutes Eligible Assets (or goodwill associated
therewith), (b) in the case of an Acquisition of the Capital Stock of
another Person, the board of directors (or other comparable governing
body) of such other Person or its parent shall have duly approved such
Acquisition, (c) on the date of such Acquisition no Event of Default
exists, (d) after giving effect to such Acquisition, no Default or
Event of Default shall exist, (e) if such Acquisition involves the
formation of a new Subsidiary of the Borrower, such Subsidiary complies
with Section 7.12 and (f) such Acquisition is undertaken in accordance
with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees and awards to which any party to such Acquisition
may be subject.
"Permitted Investments" means Investments which constitute the
following: (a) cash or Cash Equivalents, (b) trade accounts receivable
created, acquired or made in the ordinary course of business, (c)
inventory, raw materials, general intangibles and other current assets
acquired in the ordinary course of business, (d) Investments by the
Borrower or one of its Subsidiaries in each other, (e) Permitted
Acquisitions, (f) advances to management personnel and employees in the
ordinary course of business, (g) Investments existing as of the Closing
Date; provided that any such Investment in excess of $2,000,000 is set
forth on Schedule 8.6, (h) Investments consisting of non-cash
consideration received in the form of securities, notes or similar
obligations in connection with any conveyance, sale, lease, assignment,
transfer or other disposition of any Property by the Borrower or one of
its Subsidiaries to any Person, and which are permitted hereunder, and
(i) any other Investment as long as (i) on the date of such Investment,
no Event of Default exists and (ii) after giving effect to such
Investment no Default or Event of Default shall exist.
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"Permitted Liens" means (a) Liens securing Credit Party
Obligations, if any, (b) Liens for taxes not yet due or Liens for taxes
being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such Lien is
not yet subject to foreclosure, sale, collection, levy or loss on
account thereof), (c) Liens in respect of Property imposed by law
arising in the ordinary course of business such as materialmen's,
mechanics', warehousemen's, carrier's, landlords' and other
nonconsensual statutory Liens which are not yet due and payable or
which are being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP have been
established (and as to which the Property subject to any such Lien is
not yet subject to foreclosure, sale or loss on account thereof), (d)
Liens (other than Liens imposed under ERISA) consisting of pledges or
deposits made in the ordinary course of business to secure payment of
worker's compensation insurance, unemployment insurance, pensions or
social security programs, (e) Liens arising from good faith deposits in
connection with or to secure performance of tenders, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business (other
than obligations in respect of the payment of borrowed money), (f)
Liens arising from good faith deposits in connection with or to secure
performance of statutory obligations and surety and appeal bonds, (g)
easements, rights-of-way, restrictions (including zoning restrictions),
matters of plat, minor defects or irregularities in title and other
similar charges or encumbrances not, in any material respect, impairing
the use of the encumbered Property for its intended purposes, (h)
judgment Liens that would not constitute an Event of Default, (i) Liens
in connection with Indebtedness permitted by Sections 8.1(d), (j) Liens
arising by virtue of any statutory or common law provision relating to
banker's liens, rights of setoff or similar rights as to deposit
accounts or other funds maintained with a creditor depository
institution, (k) Liens existing on the date hereof and identified on
Schedule 8.2, (l) Liens upon Property acquired (or the Property of a
Subsidiary that is acquired) after the Effective Date by the Borrower
or its Subsidiaries, which Liens either (i) existed on such Property
before the time of such acquisition and was not created in anticipation
thereof or (ii) were created solely for the purpose of securing
Indebtedness representing, or incurred to finance or refinance, the
cost of such Property or improvements thereon; provided, however; that
(A) no such Lien shall extend to or cover any Property of any Credit
Party other than the Property so acquired and improvements thereon and
proceeds thereof, (B) the principal amount of Indebtedness secured by
any such Lien shall at no time exceed 100% of the fair market value of
such Property at the time it was acquired or constructed and (C) the
Indebtedness secured by any such Lien is permitted hereunder; provided
that (x) no such Lien shall extend to any Property other than the
Property subject thereto on the closing date of such acquisition and
(y) the principal amount of the Indebtedness secured by such Liens
shall not be increased, (m) Liens in connection with Permitted
Receivables Financing, (n) Liens with respect to lease filings for
notice purposes only, (o) Liens on purchase money Indebtedness incurred
by the Borrower in an amount not to exceed, in the aggregate,
$100,000,000 less Indebtedness incurred by Subsidiaries of the Borrower
pursuant to Section 8.1(d), (p) Liens on Property of non-wholly owned
Subsidiaries of the Borrowers incurred to finance working capital and
(q) renewals and extensions of the foregoing so long as such Lien (i)
does not
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cover any additional Property, (ii) does not secure additional
Indebtedness and (iii) is not otherwise prohibited by this Credit
Agreement.
"Tender Costs" means the costs incurred by the Borrower in
connection with any tender for outstanding indebtedness of the
Borrower, and the termination of the interest rate swap contracts
related thereto in an aggregate amount not to exceed $35,000,000 during
the term of this Credit Agreement.
(b) New Definitions. The following definitions are added to
Section 1.1 of the Credit Agreement in the appropriate alphabetical
order to read as follows:
"Approved Fund" means any Fund that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
"CMS" means the Centers for Medicare and Medicaid Services of
HHS, any successor thereof and any predecessor thereof, including HCFA.
"Effective Date" means the Effective Date as defined in the
2004 Senior Credit Agreement.
"Fund" means any Person (other than a natural person) that is
(or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the
ordinary course of its business.
"HIPAA" means the Health Insurance Portability and
Accountability Act of 1996, Pub. L. 104-191, Aug. 21, 1996, 110
Stat. 1936.
"HHS" means the United States Department of Health and Human
Services and any successor thereof.
"Interest Coverage Ratio" means, as of the last day of each
fiscal quarter, the ratio of (a) EBITDA for the twelve month period
ending on such date to (b) Cash Interest Expense for the twelve month
period ending on such date.
"Pari Passu Debt" means all unsecured indebtedness of the
Borrower.
(c) References to the 2001 Senior Credit Agreement. The Credit
Agreement is amended to change all references in the Credit Agreement
to the "2001 Senior Credit Agreement" to the "2004 Senior Credit
Agreement."
(d) Information Covenants.
(1) Section 7.01(a) of the Credit Agreement is
amended by adding the clause "the earlier of (i)" after the word
"within" in the first line thereof and adding the
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clause "or (ii) ten Business Days after the date the Borrower files
its Form 10-K with the Securities and Exchange Commission" in the
second line after the word "Borrower".
(2) Section 7.01(b) of the Credit Agreement is
amended by adding the clause "the earlier of (i)" after the word
"within" in the first line thereof and adding the clause "or (ii) ten
Business Days after the date the Borrower files its Form 10-Q with the
Securities and Exchange Commission" in the second line after the word
"Borrower".
(3) Section 7.01(c) of the Credit Agreement is
amended by deleting the reference to Section 7.13 therein.
(4) A new Section 7.01(i) is added to the Credit
Agreement to read as follows:
(c) Public/Private Information. The Borrower hereby
acknowledges that (i) the Administrative Agent will make
available to the Lenders materials and/or information provided
by or on behalf of the Borrower hereunder (collectively,
"Borrower Materials") by posting the Borrower Materials on
IntraLinks or another similar electronic system (the
"Platform") and (ii) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to the
Borrower or its securities) (each, a "Public Lender"). The
Borrower hereby agrees that (A) all Borrower Materials that
are to be made available to the Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum,
shall mean that the word "PUBLIC" shall appear prominently on
the first page thereof; (B) by marking Borrower Materials
"PUBLIC", the Borrower shall be deemed to have authorized the
Administrative Agent and the Lenders to treat such Borrower
Materials as either publicly available information or not
material information (although it may be sensitive and
proprietary) with respect to the Borrower or its securities
for purposes of United States federal and state securities
laws; (C) all Borrower Materials marked "PUBLIC" are permitted
to be made available through a portion of the Platform
designated as "Public"; and (D) the Administrative Agent shall
be entitled to treat any Borrower Materials that are not
marked "PUBLIC" as being suitable only for posting on a
portion of the Platform not marked "Public".
(5) A new Section 7.01(j) is added to the Credit
Agreement to read as follows:
(d) Electronic Delivery. Documents required to be
delivered pursuant to Section 7.1(a) or (b) (to the extent any
such documents are included in materials otherwise filed with
the Securities and Exchange Commission) may be delivered
electronically and if so delivered, shall be deemed to have
been delivered on the date (i) on which the Borrower posts
such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on
Schedule 11.1 or (ii) on which such documents are posted on
the Borrower's behalf on an Internet or intranet website, if
any, to which each Lender and the Administrative Agent have
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access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that: (A) the
Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower
to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent
or such Lender and (B) the Borrower shall notify (which may be
facsimile or electronic mail) the Administrative Agent and
each Lender of the posting of any such documents and provide
to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance
the Borrower shall be required to provide paper copies of the
compliance certificates required by Section 7.1(c) to the
Administrative Agent. Except for such compliance certificates,
the Administrative Agent shall have no obligation to request
the delivery or to maintain copies of the documents referred
to above, and in any event shall have no responsibility to
monitor compliance by the Borrower with any such request for
delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such
documents.
(e) Financial Covenants. Section 7.02(b) of the Credit
Agreement is amended and restated in its entirety to read as follows:
(b) Interest Coverage Ratio. The Interest Coverage Ratio, as
of the last day of each fiscal quarter of the Borrower, shall be
greater than or equal to 3.5 to 1.0.
(f) Compliance with Law. Section 7.05 of the Credit Agreement
is amended by deleting the words "Titles XVIII and XIX of the Social
Security Act" and by substituting the word "HIPAA" in replacement
therefor; by adding the following clause at the end thereof; and making
the appropriate grammatical and punctuation changes thereto:
;and (iii) no event or related events occur that results in
the exclusion of the Borrower or any of its Subsidiaries from
participation in any Medical Reimbursement Program and (e)
make commercially reasonable efforts to implement policies
that are consistent with HIPAA on or before the date that any
Credit Party is required to comply therewith.
(g) Additional Credit Parties. Section 7.12 of the Credit
Agreement is amended by changing the reference to "2001 Senior Credit
Agreement or the Senior Unsecured Notes" to "any Pari Passu Debt".
(h) Credit Party Revenues. Section 7.13 of the Credit
Agreement is deleted in its entirety and Section 7.14 of the Credit
Agreement is renumbered as Section 7.13.
(i) Indebtedness.
(1) Section 8.1(d) of the Credit Agreement is amended
by deleting the number "$50,000,000" and by substituting the number
"$100,000,000" in replacement therefor.
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(2) Section 8.1(e) of the Credit Agreement is amended
by deleting the number "$450,000,000" and by substituting the number
"$600,000,000" in replacement therefor.
(3) Section 8.11(h) of the Credit Agreement is
amended by deleting the term "Closing Date" and substituting the term
"Effective Date".
(4) Schedule 8.1 of the Credit Agreement is amended
and replaced by the Schedule 8.1 attached hereto.
(j) Nature of Business. Section 8.3 of the Credit Agreement
is amended and restated in its entirety to read as follows:
The Borrower will not, nor will it permit its Subsidiaries to,
alter the character of its business from that conducted as of
the Effective Date or engage in any substantial manner in any
business other than (a) the business conducted by the Borrower
and its Subsidiaries as of the Effective Date and (b) other
healthcare-related businesses and businesses reasonably
related thereto.
(k) Consolidation and Merger. Section 8.4 of the Credit
Agreement is amended by deleting the number "$100,000,000" and by
substituting the number "$750,000,000" in replacement therefor.
(l) Transactions with Affiliates. Section 8.7 of the Credit
Agreement is amended by deleting clause (i) in its entirety; by
amending and replacing Schedule 8.7 with the Schedule 8.7 attached
hereto; and by making the appropriate grammatical and punctuation
changes thereto.
(m) Stock Repurchases. Section 8.9 of the Credit Agreement
is amended and restated in its entirety to read as follows:
The Borrower will not, nor will it permit its Subsidiaries to,
directly or indirectly, purchase, redeem or otherwise acquire
or retire or make any provisions for redemption, acquisition
or retirement of any shares of the Capital Stock of the
Borrower of any class or any warrants or options to purchase
any such shares (collectively, a "Stock Repurchase"); provided
that the Borrower or its Subsidiaries may consummate Stock
Repurchases as long as on the date of such Stock Repurchase
and after giving effect to such Stock Repurchase no Default or
Event of Default exists and is continuing.
(n) Events of Default.
(1) Section 9.1(c)(i) of the Credit Agreement is
amended by deleting in their entirety the references to Section 7.13
and Section 7.15 therein.
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(2) Section 9.1(g) of the Credit Agreement is amended
by deleting the number "$50,000,000" and by substituting the number
"$100,000,000" in replacement therefor.
(3) Section 9.1(h) of the Credit Agreement is amended
by deleting the number "$50,000,000" and by substituting the number
"$100,000,000" in replacement therefor.
(4) Section 9.1(i) of the Credit Agreement is amended
by deleting the number "$50,000,000" and by substituting the number
"$100,000,000" in replacement therefor.
(5) Section 9.1(k) of the Credit Agreement is deleted
in its entirety.
(6) Section 9.3 of the Credit Agreement is amended by
deleting the clause "occurrence and during the continuation of an Event
of Default" in the first line therof and by substituting the clause
"the exercise of any remedies by the Administrative Agent or the
Lenders pursuant to Section 9.2 (or after any Event of Default that
causes the Commitments to terminate and/or all of the Credit Party
Obligations to be due hereunder)," in replacement therefor.
(o) A new Section 1.5 is added to the Credit Agreement to read
as follows:
0.1 Rounding.
Any financial ratios required to be maintained by the
Borrower pursuant to this Credit Agreement shall be calculated
by dividing the appropriate component by the other component,
carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding
the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
(p) A new Section 1.6 is added to the Credit Agreement to read
as follows:
0.2 References to Agreements and Laws.
Unless otherwise expressly provided herein, (a)
references to organization documents, agreements (including
the Credit Documents) and other contractual instruments shall
be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but
only to the extent that such amendments, restatements,
extensions, supplements and other modifications are not
prohibited by any Credit Document and (b) references to any
law shall include all statutory and regulatory provisions
(having the force of law) consolidating, amending, replacing,
supplementing or interpreting such law.
(q) Section 1.2 of the Credit Agreement is amended and
restated in its entirety to read as follows:
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0.3 Other Interpretive Provisions.
With reference to this Credit Agreement and each other Credit
Document, unless otherwise specified herein or in such other
Credit Document:
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) (i) The words "herein", "hereto", "hereof" and "hereunder"
and words of similar import when used in any Credit Document
shall refer to such Credit Document as a whole and not to any
particular provisions thereof.
(ii) Article, Section, Exhibit and Schedule references are to
the Credit Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) the term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports,
financial statements and other writings, however evidenced,
whether in physical or electronic form.
(c) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from
and including"; the words "to" and "until" each mean "to but
excluding"; and the word "through" means "to and including".
(d) Section headings herein and in the other Credit Documents
are included for convenience of reference only and shall not
affect the interpretation of this Credit Agreement or any
other Credit Document.
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.
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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.
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.
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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.
[remainder of page intentionally left blank]
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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: /s/ Joseph P. Manory
---------------------------------
Name: Joseph P. Manory
Title: Vice President and Treasurer
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
DIAGNOSTIC REFERENCE SERVICES INC.,
a Maryland corporation
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AMERICAN MEDICAL LABORATORIES,
INCORPORATED,
a Delaware corporation
AML INC.,
a Delaware corporation
QUEST DIAGNOSTICS INCORPORATED (NV),
a Nevada corporation
QUEST DIAGNOSTICS NICHOLS INSTITUTE, INC.
f/k/a MEDICAL LABORATORIES CORPORATION,
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 LIMITED LIABILITY COMPANY,
a Nevada limited liability company
UNILAB ACQUISITION CORPORATION,
A Delaware corporation
UNILAB CORPORATION,
A Delaware corporation
By: /s/ Joseph P. Manory
---------------------------------------
Name: Joseph P. Manory
Title: Vice President and Treasurer
Of each of the Above Guarantors
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QUEST DIAGNOSTICS INVESTMENTS
INCORPORATED,
a Delaware corporation
By: /s/ Stephen A. Calamari
---------------------------------------
Name: Stephen A. Calamari
Title: Treasurer
QUEST DIAGNOSTICS FINANCE INCORPORATED,
a Delaware corporation
By: /s/ Stephen A. Calamari
---------------------------------------
Name: Stephen A. Calamari
Title: Treasurer
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PATHOLOGY BUILDING PARTNERSHIP,
a Delaware general partnership
By: Quest Diagnostics Incorporated,
a Maryland corporation, its general partner
By: /s/ Joseph P. Manory
---------------------------------
Name: Joseph P. Manory
Title: Vice President and Treasurer
By: Diagnostic Reference Services, Inc.,
a Maryland corporation, its general partner
By: /s/ Joseph P. Manory
---------------------------------
Name: Joseph P. Manory
Title: Vice President and Treasurer
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LENDERS:
ADMINISTRATIVE
AGENT AND
INITIAL LENDER: SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Robert Riley
---------------------------------
Name: Robert Riley
Title: Senior Vice President
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