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FIFTH AMENDMENT AND FOURTH WAIVER TO
CREDIT AGREEMENT
Dated as of December 23, 1996
Among
LABORATORY CORPORATION OF AMERICA HOLDINGS,
as Borrower,
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THE BANKS NAMED HEREIN,
as Banks, and
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CREDIT SUISSE (NEW YORK BRANCH),
as Administrative Agent
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FIFTH AMENDMENT AND FOURTH WAIVER TO CREDIT AGREEMENT
FIFTH AMENDMENT AND FOURTH WAIVER TO CREDIT AGREEMENT, dated as of
December 23, 1996 (this "Amendment") among LABORATORY CORPORATION OF AMERICA
HOLDINGS (formerly known as NATIONAL HEALTH LABORATORIES HOLDINGS INC.), a
Delaware corporation (the "Borrower"), the banks, financial institutions and
other institutional lenders (the "Banks") listed on the signature pages hereof,
and CREDIT SUISSE (NEW YORK BRANCH) ("CS"), as administrative agent (the
"Administrative Agent") for the Lenders hereunder.
PRELIMINARY STATEMENTS
The parties hereto (i) have entered into a Credit Agreement dated as
of April 28, 1995 (as amended, the "Credit Agreement") providing for, among
other things, the Lenders to lend to the Borrower up to $1,250,000,000 on the
terms and subject to the conditions set forth therein and (ii) desire to amend
the Credit Agreement in the manner set forth herein. Each capitalized term used
but not defined herein shall have the meaning ascribed thereto in the Credit
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
AMENDMENTS
SECTION 1.01. Amendment of Definitions. Section 1.01 of the Credit
Agreement is hereby amended as follows:
(a) by adding alphabetically the following new definition:
"'Roche Debt' means the unsecured Debt of the Borrower issued in favor
of Roche in an aggregate amount not to exceed $187 million, such Debt to (i)
rank pari passu in right of payment with the Obligations of the Borrower under
the Loan Documents, (ii) bear interest at a rate per annum equal to the
Eurodollar Rate plus 1.0% and (iii) be due and payable on March 31, 1997."
SECTION 1.02. Amendment of Negative Covenants. Section 5.02(j) of
the Credit Agreement is hereby amended as follows:
(a) by deleting the word "and" at the end of Section 5.02(j)(viii) and
by deleting the period at the end of Section 5.02(j)(ix) and by inserting in
lieu thereof ";and".
(b) by inserting the following new subsection 5.02(j)(x), to read in
its entirety as follows:
"(x) the Roche Debt; provided that at least $180 million of the
proceeds thereof is applied to pay amounts due pursuant to the settlement with
the Office of Inspector General of the U.S. Department of Health and Human
Services."
ARTICLE II
WAIVERS
SECTION 2.01. Extension of Third Waiver. The undersigned Required
Lenders hereby agree that the Third Waiver to Credit Agreement dated as of
November 4, 1996, by the Required Lenders, in favor of the Borrower (the
"Waiver"), shall remain in effect through January 31, 1997 notwithstanding the
settlement with the Office of Inspector General of the U.S. Department of
Health and Human Services referred to in Section 1.02 of the Waiver.
SECTION 2.02. Roche Debt. The undersigned Required Lenders hereby
agree as follows:
(a) the Roche Debt shall be excluded from the calculation of the
Borrower's Consolidated Debt for the Borrower's four fiscal quarters ending
December 31, 1996 and March 31, 1997 for the purpose of determining the
Borrower's compliance with the covenant set forth in Section 5.01(i) of the
Credit Agreement [Leverage Ratio].
(b) the Roche Debt shall be excluded from the calculation of the
Interest Coverage Ratio for the Borrower's four fiscal quarters ending December
31, 1996 and March 31, 1997 for the purpose of determining compliance with the
covenant set forth in Section 5.01(j) of the Credit Agreement [Interest
Coverage Ratio].
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this
Amendment are within its corporate powers, have been duly authorized by all
necessary corporate action, and do not contravene the Borrower's charter or
by-laws.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by the Borrower of this
Amendment.
(d) This Amendment has been duly executed and delivered by the
Borrower. This Amendment is the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower, in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforceability of creditors' rights generally
and by general principles of equity.
(e) The representations and warranties contained in Section 4.01 of
the Credit Agreement are correct in all material respects on and as of the
date hereof, as though made on and as of the date hereof.
(f) No event has occurred and is continuing which constitutes a
Default.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York, without
regard to the conflicts of law principles thereof.
SECTION 4.02. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by any combination of the parties
hereto in separate counterparts, each of which counterparts shall be an original
and all of which taken together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this Amendment by
facsimile shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 4.03. Effect on the Credit Agreement. Upon execution and
and delivery of this Amendment and Waiver, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof", "herein", or words of like
import shall mean and be a reference to the Credit Agreement, as amended
hereby and each reference to the Credit Agreement in any Loan Document (as
defined in the Credit Agreement) shall mean and be a reference to the Credit
Agreement, as amended hereby. Except as expressly modified hereby, all of the
terms and conditions of the Credit Agreement shall remain unaltered and in full
force and effect. This Amendment and Waiver shall become effective as of the
date first above written when counterparts hereof shall have been executed by
the Required Lenders. This Amendment and Waiver is subject to the provisions of
Section 8.01 of the Credit Agreement.
Each of the undersigned has caused this Amendment to be executed by
its respective officer or officers thereunto duly authorized, as of the date
first written above.
BORROWER: LABORATORY CORPORATION OF AMERICA
HOLDINGS
By:/s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
Title:Executive Vice President
and Chief Financial Officer
ADMINISTRATIVE
AGENT: CREDIT SUISSE (NEW YORK BRANCH),
as Administrative Agent
By:/s/ XXXXXXX XXXXX
---------------------------------
Name: Xxxxxxx Xxxxx
Title:Member of Senior Management
and
By:/s/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title:Member of Senior Management
LENDERS: CREDIT SUISSE (NEW YORK BRANCH)
By:/s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Member of Senior Management
By:/s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
Title: Associate
BANK OF AMERICA ILLINOIS
By:
Name:
Title:
BANQUE NATIONALE DE PARIS
By:/s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
By:/s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
BAYERISCHE LANDESBANK GIROZENTRALE
By:/s/ XXXXXXXX XXXXXXXXXXXXX
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Name: Xxxxxxxx Xxxxxxxxxxxxx
Title: Executive Vice President
and General Manager
By:/s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
Manager Lending Division
THE CHASE MANHATTAN BANK
By:/s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By:/s/ PASCAL POUPELLE
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Name: Pascal Poupelle
Title: Authorized Signature
DEUTSCHE BANK AG NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH
By:/s/ WOLF X. XXXXX
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Name: Wolf X. Xxxxx
Title: Vice President
By:/s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
Title: Assistant Vice President
FIRST UNION NATIONAL BANK
By:/s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
THE FUJI BANK, LTD. (NEW YORK BRANCH)
By:/s/ XXXXXXXX XXXXXXXXX
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Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President & Manager
NATIONSBANK, N.A.
By:
Name:
Title:
SOCIETE GENERALE
By:/s/ X. XXXXX-XXXXXXXXXX
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Name: X. Xxxxx-Xxxxxxxxxx
Title: Vice President
By:/s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
SUMITOMO BANK
By:/s/ XXXXXX X. TATA
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Name: Xxxxxx X. Tata
Title: Senior Vice President
SWISS BANK CORPORATION
By:/s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Title: Director Corporate Clients
Switzerland
By:/s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: Associate Director
Corporate Clients
Switzerland
WACHOVIA BANK OF GEORGIA, N.A.
By:/s/ XXXXX X. XXXXXXXX XX.
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Name: Xxxxx X. Xxxxxxxx Xx.
Title: Vice President
WESTDEUTSCHE LANDESBANK
By:/s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: Vice President
By:/s/ XXXXXXXXX XXXXXXX
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Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT,
Atlanta Agency
By:/s/ X. XXXXXX
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Name: X. Xxxxxx
Title: Vice President
By:/s/ X. XXXXXXX
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Name: X. Xxxxxxx
Title: Vice President
BANK BRUSSELS XXXXXXX,
New York Branch
By:/s/ XXXXXX XXXXXXXXX
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Name: Xxxxxx Xxxxxxxxx
Title: Vice President
By:/s/ XXXXXXXX X.X. VANGAEVER
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Name: Xxxxxxxx X.X. Vangaever
Title: Senior Vice President
Credit
