THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of May 7, 1999 (this "Amendment") among LABORATORY
CORPORATION OF AMERICA HOLDINGS, a Delaware corporation (the
"Borrower"), the banks, financial institutions and other
institutional lenders (the "Banks") listed on the signature
pages thereof, and CREDIT SUISSE FIRST BOSTON, as administrative
agent (the "Administrative Agent") for the Lenders hereunder.
PRELIMINARY STATEMENTS
The parties hereto (i) have entered into an Amended and
Restated Credit Agreement dated as of March 31, 1997, as amended
as of September 30, 1997 and February 25, 1998 (the "Credit
Agreement") providing for, among other things, the Lenders to
lend to the Borrower up to $1,143,750,000 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; AMENDMENT FEE
SECTION 1.01. Amendment to Representations and Warranties.
Section 4.01 of the Credit Agreement if hereby amended by adding
the following new Section 4.01 (r):
(r) The Borrower has (i) initiated a review and assessment
of all areas within its and each of its Subsidiaries' business
and operations that could reasonably by expected to be adversely
affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Borrower or any of its
Subsidiaries may be unable to recognize and perform properly date-
sensitive functions involving certain dates prior to and any date
after December 31, 1999), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis (which plan
includes contingencies and testing of such computer
applications), and (iii) to date, implemented that plan in
accordance with that timetable. Based on the foregoing, the
Borrower believes that all computer applications within its and
its Subsidiaries' control that are material to its or any of its
Subsidiaries' business and operations are expected to be able
to perform date-sensitive functions for all dates before and
after January 1, 2000, except to the extent that a failure to do
so could not reasonably be expected to have a Material Adverse
Effect. The total cost associated with implementation of the
Borrower's plan for addressing the Year 2000 Problem is not
expected to be material to the Borrower's financial position.
SECTION 1.02. Amendment to Leverage Ratio. Section 5.01
(i) of the Credit Agreement is hereby amended by deleting the
figures shown with strike-over lines and replacing such figures
with the figures indicated in boldface type and underscored, to
read in its entirety as follows:
(i) Leverage Ratio. Maintain at the end of each four
fiscal quarter period specified below a Leverage Ratio of not
more than the ratio set forth below:
Four Fiscal
Quarters Ending in Ratio
------------------- ----------
March 1997 6.50:1.0
June 1997 5.00:1.0
September 1997 4.75:1.0
December 1997 4.75:1.0
March 1998 4.75:1.0
June 1998 4.50:1.0
September 1998 4.25:1.0
December 1998 4.00:1.0
March 1999 4.00:1.0
June 1999 3.75:1.0
September 1999 3.50:1.0
December 1999 3.50:1.0
March 2000 3.50:1.0
June 2000 3.25:1.0
September 2000 3.00:1.0
December 2000 3.00:1.0
March 2001 2.50:1.0
June 2001 2.25:1.0
September 2001 2.25:1.0
December 2001 2.00:1.0
March 2002 2.00:1.0
June 2002 1.75:1.0
September 2002 1.75:1.0
and 1.50:1.0 for each four fiscal quarter period
thereafter.
Section 1.03. Amendment to Covenant Prohibiting Stock
Repurchases. Section 5.02 (e) of the Credit Agreement is hereby
amended by deleting the text shown with strike-over lines and
replacing such text with the text indicated in boldface type and
underscored, to read in its entirety as follows:
(e) Dividends, Repurchases, Etc. Declare or pay any
dividends, purchase, redeem, retire, defease or otherwise
acquire for value any of its capital stock or any warrants,
rights or options to acquire such capital stock, now or
hereafter outstanding, return any capital to its stockholders as
such, make any distribution of assets, capital stock,
warrants, rights, options, obligations or securities to its
stockholders as such or issue or sell any capital stock or
warrants, rights or options to acquire such capital stock, or
permit any of its Subsidiaries to purchase, redeem, retire,
defease or otherwise acquire for value any capital stock of
the Borrower or any warrants, rights or options to acquire such
capital stock or to issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock (other
than to the Borrower), except that:
(i) the Borrower may declare and deliver
dividends and distributions payable only in Borrower
Common Stock or warrants, rights or options to acquire
Borrower Common Stock;
(ii) after the second anniversary of the
Amendment Effective Date if (A) the Borrower's Capital
Ratio is equal to or less than 50% on the last day of the most
recently ended fiscal quarter and (B) the Leverage
Ratio for the most recently ended four fiscal quarter period is
less than or equal to 2.5:1.0, the Borrower may, during
any single fiscal year, declare and pay cash dividends to
holders of Borrower Common Stock in an amount not to exceed
ten percent of the Borrower's Net Income for the fiscal year
immediately preceding the fiscal year in which such
dividend is declared or paid;
(iii) the Borrower may purchase options or
warrants to purchase shares of Borrower Common Stock granted
by the Borrower to employees of the Borrower or any of its
Subsidiaries, for an aggregate purchase price, for all such
purchases during any single fiscal year, of not more than $1,000,000;
(iv) the Borrower may, during any single fiscal
year, declare and pay cash dividends to holders of Borrower
Series A Preferred Stock at a rate not to exceed 10% per
annum and at any time after the third anniversary of the
Amendment Effective Date, the Borrower may, during any
such fiscal year, pay cash dividends to holders of Borrower
Series B Preferred Stock at a rate not to exceed 10% per
annum;
(v) the Borrower may declare and pay dividends
to holders of Borrower Series B Preferred Stock payable
in shares of Borrower Series B Preferred Stock; and
(vi) The Borrower may purchase shares of the
Borrower Preferred Stock (other than shares owned by Roche
Holdings or any Affiliate of Roche Holdings) for an
aggregate purchase price of not more than $75,000,000;
provided, however, that, at the time of any payment or
purchase referred to above and after giving effect to such
payment or purchase, no Default shall have occurred and be
continuing.
SECTION 1.04. Amendment to Acquisition Covenant.
Section 5.02 (h) of the Credit Agreement is hereby
amended by deleting "$25,000,000" in subsection 5.02 (h) (iii)
(A) and inserting "$75,000,000" in lieu thereof.
SECTION 1.05. Amendment Fee. The effectiveness of
this Agreement is subject to the receipt by the Agent of an
amendment fee, payable to the Agent for the ratable distribution
to each Lender which has executed this Amendment (each, a
"Consenting Lender"), in an amount equal to 0.15% times (A) the
aggregate outstanding principal amount of the Committed Advances
held by the Consenting Lenders as of the date hereof plus (B)
the aggregate unused Revolving Credit Commitment of the
Consenting Lenders as of the date hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. 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 aspects on and as of the date hereof, as though made on
and as of the date thereof.
(f) No event has occurred and is continuing which
constitutes a Default.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. 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 3.02. 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 3.03. Effect on the Credit Agreement. Upon
execution and delivery of this Amendment, 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 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 repective officer or officers thereunto duly
authorized, as of the date first written above.
BORROWER: LABORATORY CORPORATION OF AMERICA HOLDINGS
By:/s/ XXXXXX X. XXXXXXXXX
------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: CFO/EVP/Treasurer
ADMINISTRATIVE CREDIT SUISSE FIRST BOSTON,
AGENT: as Administrative Agent
By:/s/ XXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
By:/s/ WM. XXXXXXX XXXXXX
----------------------
Name: Wm. Xxxxxxx Xxxxxx
Title: Assistant Vice President
By:/s/ XXXX XXXXXXXXX
---------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
By:/s/ XXXX X. XXXXXX
---------------------
Name: Xxxx X. Xxxxxx
Title: Director
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (As successor by
merger to Bank of America Illinois)
By:/s/ XXXXX XXXXXXXX
--------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
BANQUE NATIONALE DE PARIS
By:/s/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
By:/s/ XXXXXXX X. XXXX
-----------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
BAYERISCHE LANDESBANK GIROZENTRALE
By:/s/ XXXXX XXXXXXXX
---------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
By:/s/ XXXXXX X. ASMA
--------------------
Name: Xxxxxx X. Asma
Title: First Vice President
THE CHASE MANHATTAN BANK
By:/s/ XXXXXX X. XXXXX
--------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
CREDIT LYONNAIS (NEW YORK BRANCH)
By:/s/ XXXX X. XXXXXX
-------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH
By:/s/ XXXXXX XXXXXXX
--------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
By:/s/ XXXXXXX XXXX XXXXXX
-----------------------
Name: Xxxxxxx Xxxx Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By:/s/ J. XXXX XXXXXXXXX
---------------------
Name: J. Xxxx Xxxxxxxxx
Title: Vice President
THE FUJI BANK, LTD. (NEW YORK BRANCH)
By:/s/ XXXXXXX XXXXXXX
----------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President & Manager
UBS AG, Stamford Branch
By:/s/ XXXXX X. XXXXXXX
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Director,
Swiss Corporate Clients
By:/s/ XXXXXX X. XXXXXX
----------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
SOCIETE GENERALE
By:/s/ XXXXX X. XXXXXX
---------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED
(NEW YORK BRANCH)
By:/s/ SURESH TATA
--------------------
Name: Suresh Tata
Title: Senior Vice President
WACHOVIA BANK, N.A., formerly known
as Wachovia Bank of Georgia, N.A.
By:/s/ J. XXXXXX XXXXXXXX, XX.
----------------------------
Name: J. Xxxxxx Xxxxxxxx, Xx.
Title: Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By:/s/ XXXXXXXXX X. XXXXX
--------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Associate
By:/s/ XXXX X. XXXXXX
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
COMMERZBANK AKTIENGESELLSCHAFT,
Atlanta Agency
By:/s/ XXXXX X. XXXXXX
----------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President & Manager
By:/s/ XXXXXX X. XXXXXXXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
BBL INTERNATIONAL (U.K.) LIMITED
By:/s/ X.X. XXXXXXX
----------------------
Name: X.X. Xxxxxxx
Title: Authorised Signatory
By:/s/ X.X. XXXXXX
----------------------
Name: X.X. Xxxxxx
Title: Authorised Signatory
THE MITSUI TRUST AND BANKING CO., LIMITED
By:/s/ XXXXXXXX XXXXXXXX
-------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President & Manager
