Exhibit 10.10
Amendment no. 2 to AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AND
SECURITY AGREEMENT (this "Amendment") is entered into as of January 14, 2002, by
and among:
(1) QUEST DIAGNOSTICS RECEIVABLES INC., a Delaware corporation
(the "Borrower"),
(2) QUEST DIAGNOSTICS INCORPORATED, a Delaware corporation as
initial servicer (in such capacity, the "Servicer"),
(3) BLUE RIDGE ASSET FUNDING CORPORATION, a Delaware
corporation (together with its successors, "Blue Ridge"), WACHOVIA BANK, N.A.,
in its capacity as a Liquidity Bank to Blue Ridge ("Wachovia"), and Lloyds TSB
Bank plc, in its capacity as a Liquidity Bank to Blue Ridge ("Lloyds" and,
together with Blue Ridge and Wachovia, the "Blue Ridge Group"),
(4) ATLANTIC ASSET SECURITIZATION CORP., a Delaware
corporation (together with its successors, "Atlantic"), and Credit Lyonnais New
York Branch, in its capacity as a Liquidity Bank to Atlantic (together with
Atlantic, the "Atlantic Group"),
(5) WACHOVIA BANK, N.A., in its capacity as agent for the Blue
Ridge Group (together with its successors in such capacity, the "Blue Ridge
Agent" or a "Co-Agent"), and Credit Lyonnais New York Branch, in its capacity as
agent for the Atlantic Group (together with its successors in such capacity, the
"Atlantic Agent" or a "Co-Agent"), and
(6) WACHOVIA BANK, N.A., as administrative agent for the Blue
Ridge Group, the Atlantic 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
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 hereto desire to amend 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 Existing Agreement. Subject to the terms and
conditions hereinafter set forth, the parties hereby agree to amend the Existing
Agreement to (a) increase the Commitment of Wachovia from $156,000,000 to
$200,980,392.16 as of the date hereof, (b) decrease the Commitment of Lloyds
from $50,000,000 to $49,019,607.84, and (c) amend and restate the definition of
"Blue Ridge Liquidity Agreement" to read as follows:
"Blue Ridge Liquidity Agreement" means the Third Amended and
Restated Liquidity Asset Purchase Agreement dated as of January 14, 2002 among
Blue Ridge, the Blue Ridge Agent, and the Liquidity Banks from time to time
party thereto, as the same may be amended, restated, supplemented, replaced or
otherwise modified from time to time.
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
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).
2.2. Each of the Loan Parties further represents and warrants
to the Lenders and the Agents that 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. Conditions Precedent. This Amendment shall become effective
as of the date first above written upon receipt by the Administrative Agent (a)
of a counterpart hereof duly executed by each of the parties hereto, (b) of a
duly executed amendment and restatement of the Blue Ridge Liquidity Agreement
increasing Wachovia's Maximum Liquidity Purchase (as therein defined) to
$205,000,000, and (c) of a fully-earned and non-refundable $10,000 amendment fee
in immediately available funds for Wachovia's sole account.
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 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 AGREEMENT.
4.4. This 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
Amendment as of the date first above written.
QUEST DIAGNOSTICS RECEIVABLES INC.
By: __________________________________
Name:
Title:
QUEST DIAGNOSTICS INCORPORATED
By: __________________________________
Name:
Title:
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WACHOVIA BANK, N.A., individually, as Administrative Agent and
as Blue Ridge Agent
By: __________________________________
Name:
Title:
BLUE RIDGE ASSET FUNDING CORPORATION
BY: WACHOVIA BANK, N.A., its attorney-in-fact
By: __________________________________
Name:
Title:
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Atlantic Asset Securitization Corp.
By: Credit Lyonnais New York Branch., its attorney-in-fact
By: _________________________________
Name: Xxxxxxxxxxx Xxxxxxxxxx
Title: Director
Credit Lyonnais New York Branch
By: _________________________________
Name: Xxxxxxxxxxx Xxxxxxxxxx
Title: Director
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Lloyds TSB Bank plc
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
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