FIRST AMENDMENT TO CREDIT AGREEMENT
Dated as of September 8, 1995
Among
LABORATORY CORPORATION OF AMERICA HOLDINGS
(formerly known as NATIONAL HEALTH LABORATORIES HOLDINGS INC.),
as Borrower,
THE BANKS NAMED HEREIN,
as Banks, and
CREDIT SUISSE (NEW YORK BRANCH),
as Administrative Agent
FIRST AMENDMENT TO CREDIT AGREEMENT dated as of
September 8, 1995 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 STATEMENT
The parties hereto (i) have entered into a Credit
Agreement dated as of April 28, 1995 (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. Article
I, Section 1.01 of the Credit Agreement is hereby amended:
(a) by deleting the definition of "Interest
Coverage Ratio" set forth therein in its entirety and
inserting the following definition in lieu thereof:
" 'Interest Coverage Ratio' means (a) with
respect to (i) each of the periods commencing on
the Closing Date and ending on (A) June 30, 1995,
(B) September 30, 1995, (C) December 31, 1995 and
(D) March 31, 1996, and (ii) the four fiscal
quarter periods ending on June 30, 1996, September
30, 1996 and December 31, 1996, the ratio of (x)
Consolidated Adjusted EBITDA of the Borrower and
its Subsidiaries for such period to (y)
Consolidated Interest Expense of the Borrower and
its Subsidiaries for such period, (b) with respect
to each of the four fiscal quarter periods ending
on March 31, 1997, June 30, 1997 and September 30,
1997, the ratio of (x) the sum of (1) Consolidated
Adjusted EBITDA of the Borrower and its
Subsidiaries for each fiscal quarter ending prior
to March 31, 1997 included in such period plus (2)
Consolidated EBITDA of the Borrower and its
Subsidiaries for each fiscal quarter ending on or
after March 31, 1997 included in such period to
(y) Consolidated Interest Expense of the Borrower
and its Subsidiaries for such period and (c) with
respect to each subsequent four fiscal quarter
period, commencing with the four fiscal quarter
period ending on December 31, 1997, the ratio of
(x) Consolidated EBITDA of the Borrower and its
Subsidiaries for such period to (y) Consolidated
Interest Expense of the Borrower and its
Subsidiaries for such period."; and
(b) by deleting the definition of "Leverage
Ratio" set forth therein in its entirety and inserting
the following definition in lieu thereof:
" 'Leverage Ratio' means (a) with respect to
each of the periods commencing on the Closing Date
and ending on (i) June 30, 1995, (ii) September
30, 1995, (iii) December 31, 1995 and (iv) March
31, 1996, the ratio of (x) the total Consolidated
Debt of the Borrower and its Subsidiaries as of
the last day of such period to (y) Consolidated
Annualized Adjusted EBITDA of the Borrower and its
Subsidiaries for such period, (b) with respect to
each of the four fiscal quarter periods ending on
June 30, 1996, September 30, 1996 and December 31,
1996, the ratio of (x) the total Consolidated Debt
of the Borrower and its Subsidiaries as of the
last day of such period to (y) Consolidated
Adjusted EBITDA of the Borrower and its
Subsidiaries for such period, (c) with respect to
each of the four fiscal quarter periods ending on
March 31, 1997, June 30, 1997 and September 30,
1997 the ratio of (x) the total Consolidated Debt
of the Borrower and its Subsidiaries as of the
last day of such period to (y) the sum of (1)
Consolidated Adjusted EBITDA of the Borrower and
its Subsidiaries for each fiscal quarter ending on
or before December 31, 1996 included in such
period plus (2) Consolidated EBITDA of the
Borrower and its Subsidiaries for each fiscal
quarter ending on or after March 31, 1997 included
in such period and (d) with respect to each
subsequent four fiscal quarter period, commencing
with the four fiscal quarter period ending
December 31, 1997, the ratio of (x) the total
Consolidated Debt of the Borrower and its
Subsidiaries as of the last day of such fiscal
quarter to (y) Consolidated EBITDA of the Borrower
and its Subsidiaries for the four fiscal quarter
period ended at the end of such fiscal quarter.";
and
(c) by deleting the definition of "Restructuring
Costs" set forth therein in its entirety and inserting
the following definition in lieu thereof:
" 'Restructuring Costs' means a maximum of up
to (a) to the extent actually incurred,
$80,000,000 in the aggregate charged in respect of
the five fiscal quarters ended June 30, 1996, for
restructuring costs and deferred financing costs
(of which not more than $14,000,000 may constitute
deferred financing costs) of the Borrower of the
kind described in footnote 5 to the Pro Forma
Condensed Combined Consolidated Balance Sheet for
the year ended December 31, 1994 set forth in the
NHL Proxy Statement, plus (b) to the extent
actually incurred, $9,000,000 in the aggregate
charged in respect of the six fiscal quarters
ended December 31, 1996 for restructuring costs
incurred in connection with the Designated
Acquisitions for which estimated restructuring
costs in such amount are specified in the written
agreement of the Borrower and the Administrative
Agent with respect to Designated Acquisitions, and
plus (c) to the extent actually incurred or
reserved for on the financial statements required
to be delivered pursuant to Section 5.01(l)(i) and
(ii), $10,000,000 in the aggregate charged in
respect of the five fiscal quarters ended June 30,
1996 for Settlement Costs."; and
(d) by adding alphabetically the following new
definition:
"'Settlement Costs' means amounts paid or
reserved for payment by the Borrower to third
party payor claimants to settle claims made
regarding billing disputes to which the Borrower
or any of its Subsidiaries is a party."
SECTION 1.02. Amendment of Affirmative Covenants.
Article V, Section 5.01(k) of the Credit Agreement is hereby
amended by deleting the same in its entirety and inserting
the following in lieu thereof:
"(k) Minimum Stockholders' Equity. Maintain
Stockholders' Equity, after giving effect to the
Merger, of not less than (i) on the Closing Date,
$405,000,000, (ii) on June 30, 1995, a dollar amount
equal to (A) the greater of (1) $324,000,000 and (2)
80% of actual Stockholders' Equity on the Closing Date,
minus (B) After-Tax Restructuring Costs for the period
commencing on the Closing Date and ending on June 30,
1995 plus (C) if positive, 75% of Adjusted Net Income
for such period, (iii) on September 30, 1995, December
31, 1995, March 31, 1996, June 30, 1996, September 30,
1996 and December 31, 1996, a dollar amount equal to
(A) the minimum amount of Stockholders' Equity required
on the last day of the immediately preceding fiscal
quarter, minus (B) After-Tax Restructuring Costs for
the fiscal quarter ending on such date plus (C) if
positive, 75% of Adjusted Net Income for the fiscal
quarter ending on such date and (iv) on the last day of
each subsequent fiscal quarter, commencing with the
fiscal quarter ending in March 1997, a dollar amount
equal to (A) if positive, 75% of Adjusted Net Income
for such fiscal quarter plus (B) the minimum amount of
Stockholders' Equity required on the last day of the
immediately preceding fiscal quarter."
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 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 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 different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a
signature page to this Amendment by telecopier 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.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
BORROWER: LABORATORY CORPORATION OF AMERICA
HOLDINGS
By:/s/ XXXXXXX X. XXXXXXXX XX.
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Executive Vice President and
Chief Financial Officer
ADMINISTRATIVE CREDIT SUISSE (NEW YORK BRANCH),
AGENT: as Administrative Agent
By:/s/ XXXXXXX XXXXXXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Associate
and
By:/s/ XXX XXXXXXXX
--------------------------------
Name: Xxx Xxxxxxxx
Title: Associate
CREDIT SUISSE (NEW YORK BRANCH)
By:/s/ XXXXXXX XXXXXXXXXX
---------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Associate
By:/s/ XXXX XXXXXX
---------------------------
Name: Xxxx Xxxxxx
Title: Member of Senior Management
BANK OF AMERICA ILLINOIS
By:/s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANQUE NATIONALE DE PARIS
By:/s/ XXXXXXX X. XXXX
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
By:/s/ XXXXXX X. XXXXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
BAYERISCHE LANDESBANK
GIROZENTRALE
By:/s/ XXXXXXXX XXXXXXXXXXXXX
---------------------------
Name: Xxxxxxxx Xxxxxxxxxxxxx
Title: Executive Vice President
and General Manager
By:/s/ XXXXX XXXXXXXX
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
Manager Lending Division
CHASE MANHATTAN BANK
By:/s/ XXXXX XXXXXXXX
-------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
CREDIT LYONNAIS
CAYMAN ISLAND BRANCH
By:/s/ FARBOUD TAVANGAR
--------------------------
Name: Farboud Tavanger
Title: Authorized Signature
DEUTSCHE BANK AG
NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By:/s/ XXXXXXX X. X. XXXXXXX
---------------------------------
Name: Xxxxxxx X. X. XxXxxxx
Title: Assistant Vice President
By:/s/ XXXXX X. XXXXXX
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
FIRST FIDELITY BANK, N.A.
By:/s/ XXXXX XXXXXXXXX
------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
THE FUJI BANK, LTD.
(NEW YORK BRANCH)
By:/s/ XXXX XXXXXX
----------------------------
Name: Xxxx Xxxxxx
Title: Vice President & Manager
NATIONSBANK, N.A. (CAROLINAS)
By:/s/ XXXXXXX X. XXXXX, III
---------------------------------
Name: Xxxxxxx X. Xxxxx, III
Title: Assistant Vice President
SOCIETE GENERALE
By:/s/ XXXX XXXXX
----------------------------
Name: Xxxx Xxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED
By:/s/ XXXXXXXXX XXXXXXXX
----------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Joint General Manager
SWISS BANK CORPORATION
By:/s/ XXXXX XXXXX
-----------------------------
Name: Xxxxx Xxxxx
Title: Associate Director Corporate
Clients Switzerland
By:/s/ XXXXX X. XXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Director Corporate
Clients Switzerland
WACHOVIA BANK OF GEORGIA, N.A.
By:/s/ XXXXX X. XXXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK
By:/s/ X. XXXXXXXX
-------------------------
Name: X. Xxxxxxxx
Title: Associate
By:/s/ X. XXXX
-------------------------
Name: X. Xxxx
Title: Vice President
BANK BRUSSELS XXXXXXX
(NEW YORK BRANCH)
By:/s/ XXXXXX XXXXXXXXX
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
