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EXHIBIT 4.5
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Fifth Amendment") is
dated as of February 20, 1996, by and among PHYSICIANS CLINICAL LABORATORY,
INC., a Delaware corporation (the "Borrower"), and OAKTREE CAPITAL MANAGEMENT,
LLC, AS AGENT AND ON BEHALF OF CERTAIN FUNDS SET FORTH ON SCHEDULE I HERETO, as
agent for the financial institutions party thereto and any successors or
assigns (the "Agent"), and the financial institutions party to the Credit
Agreement, and amends the Credit Agreement entered into as of April 1, 1994 (as
amended and modified by the First Amendment to Credit Agreement dated as of
July 28, 1994 by and among the same parties, the Second Amendment to Credit
Agreement dated as of September 27, 1994 by and among the same parties, the
Third Amendment to Credit Agreement dated as of May 10, 1995 by and among the
same parties, the Fourth Amendment to Credit Agreement dated as of July 31,
1995 by and among the same parties, and the Modification and Forbearance
Agreement dated as of September 13, 1995 by and among the same parties, the
"Credit Agreement") by and among Borrower, Agent and the Banks.
The financial institutions party to the Fifth Amendment are
collectively referred to as the "Banks" and individually, a "Bank." The
capitalized terms which are not defined in this Fifth Amendment shall have
their respective meanings specified in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrower, the Agent and the Banks desire to amend the
Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
AMENDMENT TO CREDIT AGREEMENT
The parties hereto hereby acknowledge and agree that effective as of
the date hereof, the Credit Agreement shall be amended as follows:
1.1 Successors and Assigns and Sale of Interests. Section 10.1(b),
(c), (d) and (e) of the Credit Agreement shall be amended by deleting said
paragraphs in their entirety and substituting therefor the following:
10.1. Successors and Assigns and Sale of Interests.
(b) Any Bank, without the consent of the Agent, may
at any time assign and delegate to any Bank or financial
institution ("Assignee") all or any part of the Loans, the
Overline Commitment or the Revolving Credit Commitment or any
other rights or obligations of such assignor Bank.
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hereunder; provided, however, that the Borrower and the Agent
may continue to deal solely and directly with the assigning Bank
in connection with the interests so assigned to an Assignee
until (i) written notice of such assignment (including the
percentage interest being assigned) together with payment
instructions, addresses and related information with respect to
the Assignee, shall have been given to the Borrower and the
Agent by such assignor Bank and the Assignee; and (ii) the
processing fee of three thousand five hundred Dollars ($3,500)
shall have been paid to the Agent.
(c) From and after the date that the assignor Bank
and the Assignee notify the Agent pursuant to section 10.1(b)
above, (i) the Assignee shall be a party hereto and, to the
extent of its assigned interest in the rights and obligations
hereunder, shall have the rights and obligations of a Bank under
the Loan Documents and (ii) assignor Bank shall, to the extent
that rights and obligations hereunder have been assigned by it,
relinquish its rights and be released from its obligations under
the Loan Documents.
(d) Within five (5) Banking Days after its receipt
of notice from the Agent of the assignment to the Assignee
pursuant to section 10.1(b) above, the Borrower shall execute
and deliver to the Agent new Notes evidencing such Assignee's
assigned Loans, Revolving Commitment Amount and Overline
Commitment Amount, and if the assignor Bank has retained a
portion of its Loans, its Revolving Commitment Amount and its
Overline Commitment Amount, and replacement Notes in the
principal amount of the Term Loan, the Revolving Commitment
Amount and the Overline Commitment Amount retained by the
assignor Bank (such Notes to be in exchange for, but not in
payment of, the Noes held by such Bank). Immediately upon the
Agent's receipt of notice of the assignment to the Assignee
pursuant to section 10.1(b) above, this Agreement shall be
deemed to be amended to the extent, but only to the extent
necessary to reflect the addition of the Assignee and the
resulting adjustment of the Assignor's Term Loan, Revolving
Commitment Amount and Overline Commitment Amount arising
therefrom. The Term Loan, Revolving Commitment Amount and
Overline Commitment Amount allocated to each Assignee shall
reduce such commitments of the assignor Bank pro ranto.
(e) Any Bank may at any time sell to one or more
banks or other entities (a "Participant") participating
interests in any Loans, the Revolving Commitment Amount and the
Overline Commitment of that Bank, or any other interest of that
Bank hereunder; provided, however, that (i) the Bank's
obligations under this Agreement shall remain unchanged, (ii)
the selling Bank shall remain solely responsible for the
performance of such obligations, (iii) the Borrower and the
Agent shall continue to deal solely and directly with the
selling Bank in connection with such Bank's rights and
obligations under this Agreement, and (iv) no Bank shall
transfer or grant any participating interest
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under which the Participant shall have rights to approve any
amendment to, or any consent or waiver with respect to this
Agreement except to the extent as described in the first proviso
to Paragraph 10.3 hereof. In the case of any such participation,
the Participant shall not have any rights under this Agreement,
or any of the other Loan Documents, and all amounts payable by
the Borrower hereunder shall be determined as if such Bank had
not sold such participation, except that if amounts outstanding
under this Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement."
1.2 Amendments and Waivers. Section 10.3 of the Credit Agreement
shall be amended by deleting said paragraph in its entirety and substituting
therefor the following:
10.3 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement of any other Loan Document and no
consent with respect to any departure by the Borrower therefrom,
shall be effective unless the same shall be in writing and
signed by the Majority Banks, and then such waiver, amendment,
or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however,
that no waiver, amendment or consent shall, unless in writing
and signed by the Agent in addition to the Majority Banks,
affect the rights or duties of the Agent under this Agreement.
1.3 Collateral. The Borrower represents and warrants that its chief
executive office is currently located at 0000 X. Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx
and will be located at no other location other than such address or 0000 Xxxxxxx
Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx. The Borrower will not change the
location of its chief executive office unless the Borrower, at least thirty (30)
days prior to such change, notifies the Agent of such change and takes all
action necessary or that Agent may reasonably request to preserve, perfect,
confirm and protect the Secured Parties' liens and security interests in the
Collateral.
1.4 Successor Agent. Section 9.9 of the Credit Agreement shall be
amended by deleting said paragraph in its entirety and substituting therefor
the following:
9.9 Successor Agent. The agent may, and at the request of the
Majority Banks shall, resign as Agent upon thirty (30) days'
notice to the Banks. If the Agent shall resign as Agent under
this Agreement, the Majority Banks shall appoint a successor
agent for the Banks. If no successor agent is appointed prior to
the effective date of the resignation of the Agent, the Agent
shall appoint, after consulting with the Banks and the Borrower,
a successor agent from among the Banks. Upon the acceptance of
its appointment as successor
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agent hereunder, such successor agent shall succeed to all the
rights, powers and duties of the retiring Agent and the term
"Agent" shall mean such successor agent and the retiring Agent's
rights, powers and duties as Agent shall be terminated. After
the retiring Agent's resignation hereunder as Agent, the
provisions of this Article 9 and paragraphs 10.6, 10.7 and 10.8
hereof shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this
Agreement.
ARTICLE II
MISCELLANEOUS
2.1 No Other Changes. Except as amended by Article 1 hereof, the
Credit Agreement remains in full force and effect.
2.2 Counterparts. This Fifth Amendment may be executed in any
number of counterparts each of which shall be an original with the same effect
as if all of the signatures to this Fifth Amendment were upon the same
instrument.
2.3 Integration. The Credit Agreement, this Fifth Amendment and
the other Loan Documents contain all of the agreements and understandings
between and among the Borrower, the Agent and the Banks concerning the loans
and the other transactions contemplated by the Credit Agreement as amended by
Article I of this Fifth Amendment.
2.4 Governing Law. This Fifth Amendment shall be governed by and
construed in accordance with the law of this State of California, without
reference to choice of law principles thereof, but giving effect to federal
laws applicable to national and federally assured banks.
2.5 Headings. Captions and headings in this Fifth Amendment are
for convenience only, and are not to be deemed a part of this Fifth Amendment.
2.6 Facsimile Signature. Any Bank shall be deemed to have executed
this Fifth Amendment upon telecopying its executed signature page to the
Agent. Each Bank shall promptly deliver its original executed signature page to
the Agent.
2.7 No Waiver of Defaults. The Borrower acknowledges that prior
to the date of this Fifth Amendment, the Borrower was in default of part or all
of certain provisions under the then-existing credit agreement. By entering
into this Fifth Amendment, the Agent, the Successor Agent and the Banks do not
waive any Events of Default that have occurred prior to, or exist as of, the
effective date of this Fifth Amendment.
[END OF TEXT]
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IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment to Credit Agreement by its duly authorized officers as of the date
and year first above written.
BORROWER:
PHYSICIANS CLINICAL LABORATORY, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
AGENT:
OAKTREE CAPITAL MANAGEMENT, LLC
as agent and on behalf of the funds and
accounts set forth on Schedule I hereto
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
BANKS:
OAKTREE CAPITAL MANAGEMENT, LLC
as agent and on behalf of the funds and
accounts set forth on Schedule I hereto
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment to Credit Agreement by its duly authorized officers as of the date
and year first above written.
BORROWER:
PHYSICIANS CLINICAL LABORATORY, INC.,
a Delaware corporation
By:
-----------------------------------
Name:
Title:
AGENT:
OAKTREE CAPITAL MANAGEMENT, LLC
as agent and on behalf of the funds and
accounts set forth on Schedule I hereto
By: /s/ XXXXXXX XXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Principal
By: /s/ XXXXXXX XXXXX
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: General Counsel
BANKS:
OAKTREE CAPITAL MANAGEMENT, LLC
as agent and on behalf of the funds and
accounts set forth on Schedule I hereto
By: /s/ XXXXXXX XXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Principal
By: /s/ XXXXXXX XXXXX
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: General Counsel
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BANK ONE, ARIZONA, N.A., a national
banking association
By: /s/ XXXXXX XXXXXX
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
RIVER CITY BANK, a California
banking corporation
By:
-------------------------------
Name:
Title:
TORONTO-DOMINION (TEXAS), INC., a
Delaware corporation
By:
-------------------------------
Name:
Title:
SUMITOMO BANK OF CALIFORNIA, a
California banking corporation
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON.
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Title:
BANK ONE, ARIZONA, N.A., a national
banking association
By:
-------------------------------
Name:
Title:
RIVER CITY BANK, a California
banking corporation
By: [SIG]
-------------------------------
Name:
Title:
TORONTO-DOMINION (TEXAS), INC., a
Delaware corporation
By:
-------------------------------
Name:
Title:
SUMITOMO BANK OF CALIFORNIA, a
California banking corporation
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
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BANK ONE, ARIZONA, N.A., a national
banking association
By:
-------------------------------
Name:
Title:
RIVER CITY BANK, a California
banking corporation
By:
-------------------------------
Name:
Title:
TORONTO-DOMINION (TEXAS), INC., a
Delaware corporation
By: /s/ XXXX X. XXXXXXXX
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Associate Vice President
SUMITOMO BANK OF CALIFORNIA, a
California banking corporation
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON.
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BANK ONE, ARIZONA, N.A., a national
banking association
By:
-------------------------------
Name:
Title:
RIVER CITY BANK, a California
banking corporation
By:
-------------------------------
Name:
Title:
TORONTO-DOMINION (TEXAS), INC., a
Delaware corporation
By:
-------------------------------
Name:
Title:
SUMITOMO BANK OF CALIFORNIA, a
California banking corporation
By: /s/ XXXXX X. XXXXX
-------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
By: /s/ XXXXX XXXXXX
-------------------------------
Name: F. Xxxxx Xxxxxx
Title: Sr. VP & Mgr.
THE FIRST NATIONAL BANK OF BOSTON.
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THE FIRST NATIONAL BANK OF BOSTON
a national banking association
By: [SIG]
------------------------------
Name:
Title: Vice President
ACKNOWLEDGED AND AGREED:
BANK OF AMERICA ILLINOIS
By:
------------------------------
Name:
Title:
Notice Information:
Xxxxx X. Xxxx
Bank of America Illinois
c/o BA Securities
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
BELMONT CAPITAL PARTNERS II, L.P.
By: Fidelity Capital Partners II, Corp.,
as General Partners
By:
------------------------------
Name:
Title:
Notice Information:
Fidelity Investments
00 Xxxxxxxxxx Xxxxxx - X0X
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Portfolio Manager
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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THE FIRST NATIONAL BANK OF BOSTON
a national banking association
By:
------------------------------
Name:
Title: Vice President
ACKNOWLEDGED AND AGREED:
BANK OF AMERICA ILLINOIS
By: /s/ XXXXXXXXXXX X. FIELD
------------------------------
Name: Xxxxxxxxxxx X. Field
Title: Attorney in Fact
Notice Information:
Xxxxx X. Xxxx
Bank of America Illinois
c/o BA Securities
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
BELMONT CAPITAL PARTNERS II, L.P.
By: Fidelity Capital Partners II, Corp.,
as General Partners
By:
------------------------------
Name:
Title:
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THE FIRST NATIONAL BANK OF BOSTON
a national banking association
By:
------------------------------
Name:
Title: Vice President
ACKNOWLEDGED AND AGREED:
BANK OF AMERICA ILLINOIS
By:
------------------------------
Name:
Title:
Notice Information:
Xxxxx X. Xxxx
Bank of America Illinois
c/o BA Securities
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
BELMONT CAPITAL PARTNERS II, L.P.
By: Fidelity Capital Partners II, Corp.,
as General Partners
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Notice Information:
Fidelity Investments
00 Xxxxxxxxxx Xxxxxx - X0X
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Portfolio Manager
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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with copies to:
Xxxxx Xxxxxxxxx Xxxxxxx
Fidelity Investments
00 Xxxxxxxxxx Xxxxxx - X0X
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone No.: (000)000-0000
Telecopy No.: (000)000-0000
BELMONT FUND, L.P.
By: Fidelity Management Trust Company,
pursuant to a Power of Attorney for
Fidelity International Services Limited,
Managing General Partner
By: /s/ XXXXXX X. XXXXXXXX
------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Notice Information:
Belmont Fund, L.P.
Fidelity Investments
00 Xxxxxxxxxx Xxxxxx - X0X
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Portfolio Manager
Telephone No.: (000)000-0000
Telecopy No.: (000)000-0000
with copies to:
Xxxxx Xxxxxxxxx Xxxxxxx, Esq.
Fidelity Investments
00 Xxxxxxxxxx Xxxxxx - X0X
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone No.: (000)000-0000
Telecopy No.: (000)000-0000
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FIDELITY COPERNICUS FUND, L.P.
By: Fidelity Copernicus Corp.
Its General Partner
By: /s/ XXXXXX X. XXXXXXX
------------------------------
Name: XXXXXX X. XXXXXXX
Title: Chief Investment Officer
Notice Information:
Fidelity Overseas Corporation
Fidelity Investments
00 Xxxxxxxxxx Xxxxxx - X0X
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Portfolio Manager
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with copies to:
Xxxxx Xxxxxxxxx Xxxxxxx, Esq.
Fidelity Investments
00 Xxxxxxxxxx Xxxxxx - X0X
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Portfolio Manager
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
FIDELITY OVERSEAS CORPORATION
By: Fidelity Management Trust
Company, its attorney-in-fact
By: /s/ XXXXXX X. XXXXXXX
------------------------------
Name: XXXXXX X. XXXXXXX
Title: Senior Vice President
Notice Information:
Fidelity Copernicus Fund, L.P.
Fidelity Investments
00 Xxxxxxxxxx Xxxxxx - X0X
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Portfolio Manager
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Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with copies to:
Xxxxx Xxxxxxxxx Xxxxxxx, Esq.
Fidelity Investments
00 Xxxxxxxxxx Xxxxxx - X0X
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: [SIG]
-------------------------------
Name:
Title:
Notice Information:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center, Xxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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Schedule I
Entity Percentage
OCM Opportunities Fund, L.P. 93.0%
Columbia/HCA Master Retirement Trust 7.0%
(separate account)
247158.c3
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