THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment") is
entered into as of June 28, 2000 among Covance Inc. (the "Borrower"), certain of
the Borrower's Subsidiaries (individually a "Guarantor" and collectively the
"Guarantors"), the Lenders party to the Credit Agreement defined below (the
"Lenders"), Bank of America, N.A., formerly NationsBank, N.A., as Administrative
Agent (the "Administrative Agent") and Wachovia Bank, N.A., successor by merger
to Wachovia Bank of Georgia, N.A., as Syndication Agent (the "Syndication
Agent"; the Administrative Agent, together with the Syndication Agent, may be
referred to herein as the "Agents"). Capitalized terms used herein and not
otherwise defined herein have the respective meanings given to them in the
Credit Agreement.
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders, the Administrative
Agent and the Syndication Agent are parties to a Credit Agreement dated as of
November 26, 1996 (as previously amended and as further amended, modified,
supplemented or restated from time to time, the "Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders consent to an
amendment of certain provisions of the Credit Agreement; and
WHEREAS, the Lenders executing below have agreed to such amendment of
the Credit Agreement on the terms and subject to the conditions contained in
this Third Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
I. AMENDMENTS
1.1 All references in the Credit Agreement to NationsBank,
NationsBank, N.A., NationsBanc Capital Markets, Inc. and Wachovia Bank of
Georgia, N.A. shall hereafter refer to Bank of America, Bank of America, N.A.,
Banc of America Securities LLC and Wachovia Bank, N.A., respectively.
1.2 Section 1.1 of the Credit Agreement is hereby amended by
adding, in appropriate alphabetical order, definitions for the following terms:
"ASSET DISPOSITION" means the disposition of any or all of the
assets of a Credit Party or any of its Subsidiaries whether by sale,
lease, transfer, condemnation or otherwise, other than sales, leases,
transfers or other dispositions of assets permitted by Sections 8.5(a)
- (e).
"DIVIDEND RESTRICTED PAYMENT" has the meaning set forth in
Section 8.8.
"FIFTY MILLION CREDIT AGREEMENT" means that certain Credit
Agreement dated as of June 28, 2000 among the Borrower, the Guarantors,
the lenders party thereto and Bank of America, N.A., as administrative
agent, as such Credit Agreement may be amended, modified, supplemented,
extended or restated from time to time.
"FMCA REVOLVING COMMITTED AMOUNT" means the "Revolving
Committed Amount" as defined from time to time in the Fifty Million
Credit Agreement.
"INTERCREDITOR AGREEMENT" means that certain Intercreditor
Agreement dated as of June 28, 2000 by and among Bank of America, as
Administrative Agent under this Credit Agreement, Bank of America, as
administrative agent under the Fifty Million Credit Agreement, and the
Credit Parties, as amended, modified, supplemented or restated from
time to time, in substantially the form of EXHIBIT 10.10.
"NET CASH PROCEEDS" means the aggregate amount of all proceeds
paid in cash or Cash Equivalents received by any Credit Party in
respect of any Asset Disposition (but with respect to any payments
received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or
otherwise, only as and when received), net of (a) all fees and expenses
(including, without limitation, investment banking fees, legal and
accounting fees, sales commissions and brokerage commissions) incurred
in connection with such Asset Disposition, (b) taxes paid or payable in
connection with or as a result thereof and (c) any repayments of
Indebtedness permitted by Section 8.1 (other than Borrower
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Obligations) to extent such repayments are required by the terms of the
debt instrument governing such Indebtedness in connection with such
Asset Disposition; it being understood that "Net Cash Proceeds" shall
include, without limitation, any cash or Cash Equivalents received upon
the sale or other disposition of any non-cash consideration received by
a Credit Party in respect of any Asset Disposition
"PRO FORMA BASIS" means, for purposes of calculating the
Leverage Ratio to determine compliance with the terms of Section 8.8,
that any reduction of the Revolving Committed Amount (and corresponding
prepayment of Loans) shall be deemed to have occurred as of the first
day of the four fiscal-quarter period ending as of the last day of the
most recently completed fiscal quarter preceding the date of such
reduction (and prepayment) with respect to which the Administrative
Agent and the Lenders have received the officer's certificate required
to be delivered pursuant to Section 7.1(c).
"QUOTATION DAY" means (a) if the Loan is made in Dollars or
any Foreign Currency other than Euro, two Business Days prior to the
first day of such Interest Period and (b) if the Loan is made in Euro,
two TARGET Days prior to the first day of such Interest Period;
provided that if market practice differs in the Relevant Interbank
Market for a Foreign Currency, then the Quotation Day for that Foreign
Currency will be determined by the Administrative Agent in accordance
with market practice in the Relevant Interbank Market (and if
quotations would normally be given by leading banks in the Relevant
Interbank Market on more than one day, the Quotation Day will be the
last of those days).
"RELEVANT INTERBANK MARKET" means the market in which a London
Interbank Offered Rate for the applicable Interest Period is available
in immediately available funds in the applicable Foreign Currency.
"STOCK REPURCHASE RESTRICTED PAYMENT" has the meaning set
forth in Section 8.8.
"TARGET" means Trans-European Automated Real-time Gross
Settlement Express Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the
settlement of payments in Euro.
1.3 The definition of "ADJUSTED LEVERAGE RATIO" in Section 1.1 of
the Credit Agreement is hereby deleted.
1.4 The definition of "APPLICABLE PERCENTAGE" in Section 1.1 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"APPLICABLE PERCENTAGE" means (a) for Eurocurrency Loans and
Letter of Credit Fees, 1.25% and (b) for Facility Fees, 0.25%.
1.5 The definition of "BENEFITS PLAN" in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"BENEFITS PLAN" means each of (a) the Employee Stock Ownership
Plan of the Borrower, (b) the Trust Deed of the Covance Inc. Employee
Share Trust between the trustee and the Borrower, (c) the Stock
Purchase Savings Plan of the Borrower restated as of December 31, 1996,
(d) the Employee Stock Purchase Plan of the Borrower, (e) the Employee
Equity Participation Program of the Borrower and the 2000 Employee
Equity Participation Program of the Borrower and (f) any other "pension
plan" (as defined in Section 3(2) of ERISA) of the Borrower or trust
created thereunder.
1.6 The definition of "CREDIT DOCUMENTS" in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"CREDIT DOCUMENTS" means this Credit Agreement, the Notes, any
Joinder Agreement, the Fee Letter, the Collateral Documents, the
Intercreditor Agreement and all other related agreements and documents
issued or delivered hereunder by (i) a Guarantor to guarantee the
Borrower Obligations or to secure such guarantee or (ii) the Borrower
or one of its Subsidiaries (other than a Guarantor) to secure the
Borrower Obligations.
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1.7 The definition of "EBIT" in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"EBIT" means, for any period, with respect to the Borrower and
its Subsidiaries on a consolidated basis, the sum of (a) Net Income for
such period (excluding the effect of any extraordinary or other
non-recurring gains or losses outside of the ordinary course of
business); provided that for the fiscal quarter ending June 30, 2000,
Net Income shall not include a one time restructuring charge not to
exceed $16,500,000, PLUS (b) an amount which, in the determination of
Net Income for such period, has been deducted for (i) Interest Expense
for such period and (ii) total Federal, state, foreign or other income
taxes for such period, all as determined in accordance with GAAP.
1.8 The definition of "FOREIGN CURRENCY" in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"FOREIGN CURRENCY" means British Pounds Sterling, Japanese Yen
and the Euro or such other currency as agreed to between the Borrower
and all the Lenders. Each Foreign Currency must be one (a) that is
readily available to the Lenders and freely transferable and
convertible into Dollars and (b) in which deposits are generally
available to the Lenders in the London interbank market.
1.9 The definition of "GUARANTOR" in Section 1.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"GUARANTOR" means at any time, (a) each of the parties to this
Credit Agreement listed as "Guarantors" on the signature pages hereof
(which are the only Material Domestic Subsidiaries as of the Closing
Date) and (b) each other Person that is an Additional Credit Party, in
each case, together with their successors and assigns, but excluding
any such Person that shall have been released from its Guaranty
Obligations pursuant to Section 4.9, Section 7.12 or Section 7.15.
1.10 The definition of "LONDON INTERBANK OFFERED RATE" in Section
1.1 of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
"LONDON INTERBANK OFFERED RATE" means, with respect to any
Eurocurrency Loan for the Interest Period applicable thereto, the rate
of interest per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 or such other applicable
page (or any successor page) as the London interbank offered rate for
deposits in Dollars (or the applicable Foreign Currency) at
approximately 11:00 A.M. (London time) on the Quotation Day for a term
comparable to such Interest Period; provided, however, if more than one
rate is specified on Telerate Page 3750, or such other applicable page,
the applicable rate shall be the arithmetic mean of all such rates. If,
for any reason, such rate is not available, the term "LONDON INTERBANK
OFFERED RATE" shall mean, with respect to any Eurocurrency Loan for the
Interest Period applicable thereto, the rate of interest per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars (or the applicable Foreign Currency) at
approximately 11:00 A.M. (London time) on the Quotation Day for a term
comparable to such Interest Period; provided, however, if more than one
rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
1.11 The definition of "MATERIAL ADVERSE EFFECT" in Section 1.1 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"MATERIAL ADVERSE EFFECT" means a material adverse effect
(after giving effect to any insurance proceeds or indemnification
payments under existing insurance policies or agreements as long as the
carrier of such policies or agreements has acknowledged coverage) on
(a) the results of operations or financial condition of the Borrower
and its Subsidiaries taken as a whole, (b) the ability of a Credit
Party to perform its respective obligations under this Credit Agreement
or any of the other Credit Documents, or (c) the validity or
enforceability of this Credit Agreement, any of the other Credit
Documents, or the rights and remedies of the Lenders hereunder or
thereunder taken as a whole; provided, however, (i) the execution,
delivery and performance of the Credit Documents shall not constitute
an Material Adverse Effect and (ii) a one time restructuring charge in
an amount not to exceed $16,500,000 taken by the Borrower during the
fiscal quarter ending June 30, 2000 shall not constitute a Material
Adverse Effect.
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1.12 The definition of "PERMITTED LIENS" in Section 1.1 of the
Credit Agreement is hereby amended by adding the following subsection (u) and by
making the appropriate grammatical and punctuation changes:
(u) Liens arising pursuant to and in connection with
Indebtedness permitted by Section 8.1(j); it being understood
and agreed that such Liens shall rank pari passu with the
Liens securing the Credit Party Obligations pursuant to the
Collateral Documents in accordance with the terms of the
Intercreditor Agreement.
1.13 The definition of "U.S. DOLLAR EQUIVALENT" in Section 1.1 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
"U.S. DOLLAR EQUIVALENT" means the amount of Dollars that
would be realized by converting a Foreign Currency into Dollars at
approximately 11:00 a.m. (London time), as set forth on the applicable
Telerate Screen, on the date of determination; provided that if more
than one rate is listed then the applicable conversion rate shall be
the arithmetic average of such rates. If for any reason such conversion
rates are not available, the U.S. Dollar Equivalent shall be calculated
using the arithmetic average of the spot buying rates for such Foreign
Currency in Dollars as quoted to the Administrative Agent by three
foreign exchange dealers of recognized standing in the United States
selected by the Administrative Agent at approximately 11:00 a.m.
(London time) on any date of determination.
1.14 Section 2.1(d) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(d) REDUCTIONS OF REVOLVING COMMITTED AMOUNT. Upon at least
three Business Days' notice, the Borrower shall have the right to
permanently terminate or reduce the aggregate unused amount of the
Revolving Committed Amount at any time or from time to time; provided
that (i) each partial reduction shall be in an aggregate amount at
least equal to $5,000,000 and in integral multiples of $1,000,000 above
such amount and (ii) no reduction shall be made which would reduce the
Revolving Committed Amount to an amount less than the aggregate amount
of outstanding Revolving Loans plus the aggregate amount of outstanding
LOC Obligations plus the aggregate amount of Swing Line Loans
outstanding plus the aggregate amount of Competitive Bid Loans
outstanding. The Revolving Committed Amount shall be reduced pursuant
to the terms of Section 3.3(b)(ii). Any reduction in (or termination
of) the Revolving Committed Amount shall be permanent and may not be
reinstated. The Administrative Agent shall immediately notify the
Lenders of any reduction in the Revolving Committed Amount.
1.15 Section 2.2(g) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
(g) UNIFORM CUSTOMS AND PRACTICES. The Issuing Lender may have
the Letters of Credit be subject to The Uniform Customs and Practice
for Documentary Credits or the International Standby Practices 1998
(the "ISP98"), in either case as published as of the date of issue by
the International Chamber of Commerce, in which case the UCP or the
ISP98, as applicable, may be incorporated therein and deemed in all
respects to be a part thereof.
1.16 Section 2.2(j)(v) of the Credit Agreement is hereby amended by
inserting a comma and the term "ISP98" after the term "UCP" in the eighth line
thereof.
1.17 Sections 3.3(b) and (c) of the Credit Agreement are hereby
amended and restated in their entirety to read as follows:
(b) MANDATORY PREPAYMENTS.
(i) AVAILABILITY. If at any time (A) the sum of the
aggregate amount of Revolving Loans outstanding plus the
aggregate amount of Swing Line Loans outstanding plus the
aggregate amount of Competitive Bid Loans outstanding plus the
aggregate amount of LOC Obligations outstanding exceeds the
Revolving Committed Amount, (B) the aggregate amount of Swing
Line Loans outstanding exceeds the Swing Line Committed
Amount, (C) the aggregate amount of LOC Obligations
outstanding exceeds the LOC Committed Amount, or (D) the
aggregate amount of Revolving Loans outstanding in Foreign
Currency plus the aggregate amount of LOC Obligations
outstanding in Foreign Currency plus the aggregate amount of
Competitive Bid Loans outstanding in Foreign Currency exceeds
the U.S. Dollar Equivalent of Fifty Million Dollars
($50,000,000), the Borrower shall immediately make a principal
payment to the Administrative Agent in the manner and in an
amount necessary to be in compliance with Sections 2.1, 2.2,
2.3 or 2.4, as applicable.
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(ii) ASSET DISPOSITIONS. Within two Business Days
after the closing of any Asset Disposition, (A) the Borrower
shall prepay the Loans and the loans outstanding under the
Fifty Million Credit Agreement, on a pro rata basis
(determined based on the amounts outstanding thereunder on the
date of such Asset Disposition), in an aggregate amount equal
to 50% of the Net Cash Proceeds of such Asset Disposition and
(B) the Revolving Committed Amount and the FMCA Revolving
Committed Amount shall be reduced, on a pro rata basis, by an
aggregate amount equal to 50% of the Net Cash Proceeds of such
Asset Disposition.
(c) APPLICATION OF PREPAYMENTS. All amounts required to be
paid pursuant to Section 3.3(b)(i)(A) or 3.3(b)(ii) shall be applied
FIRST to Revolving Loans (first to Base Rate Loans and then to
Eurocurrency Loans in direct order of Interest Period maturities),
SECOND to Swing Line Loans (first to Base Rate Loans and then to Quoted
Rate Swing Line Loans), THIRD to a cash collateral account in respect
of LOC Obligations and FOURTH to Competitive Bid Loans pro rata among
the Lenders holding same. All amounts required to be paid pursuant to
Section 3.3(b)(i)(B) shall be applied to Swing Line Loans (first to
Base Rate Loans and then to Quoted Rate Swing Line Loans). All amounts
required to be paid pursuant to Section 3.3(b)(i)(C) shall be paid to a
cash collateral account in respect of LOC Obligations. All amounts
required to be paid pursuant to Section 3.3(b)(i)(D) shall be applied
FIRST to Revolving Loans outstanding in Foreign Currency (first to Base
Rate Loans (if any) and then to Eurocurrency Loans in direct order of
Interest Period maturities), SECOND to a cash collateral account in
respect of LOC Obligations outstanding in Foreign Currency and THIRD to
Competitive Bid Loans outstanding in Foreign Currency pro rata among
the Lenders holding same. All prepayments hereunder shall be subject to
Section 3.14 as well as any breakage fees in connection with a
prepayment of a Competitive Bid Loan or a Quoted Rate Swing Line Loan
and shall be accompanied by interest on the principal amount prepaid
through the date of prepayment.
1.18 A new Section 4.9 is hereby added to the Credit Agreement and
reads as follows:
4.9 RELEASE OF GUARANTOR. If any of the Guarantors shall cease to
be a Subsidiary of the Borrower for any reason subject to and in accordance with
the terms of the Credit Agreement, then such Guarantor shall, automatically and
without any further action on the part of any party to any Credit Document, and
upon notice to the Administrative Agent, be fully released and discharged from
all its liabilities and obligations under or in respect of the Credit Documents
to which such Guarantor is a party (other than liabilities and obligations
resulting from a demand on such Guarantor's Guaranty pursuant to Section 9.2)
and, promptly upon the request of the Borrower and at the expense of the
Borrower, the Administrative Agent shall execute such documents and take such
other action as is reasonably requested by the Borrower to evidence the release
and discharge of such Guarantor from all such liabilities and obligations and
shall, if applicable, certify to the Borrower that such Guarantor has no
liabilities or obligations resulting from a demand on such Guarantor's Guaranty
pursuant to Section 9.2.
In the event the Borrower or any of its Subsidiaries intends to sell,
transfer or otherwise dispose of the capital stock of any Subsidiary (subject to
and in accordance with the terms of the Credit Agreement) whose capital stock
has been pledged and delivered to the Administrative Agent pursuant to a Pledge
Agreement, upon notice thereof to the Administrative Agent, the Administrative
Agent shall promptly deliver to the Borrower such capital stock (pursuant to an
escrow arrangement acceptable to the Administrative Agent), and, effective upon
such sale, transfer or disposition, the Liens imposed by or under the Credit
Agreement and the Pledge Agreement on such capital stock shall automatically and
without any further action on the part of any party to any Credit Documents, be
fully released and discharged. Promptly upon the request of the Borrower and at
the expense of the Borrower, the Administrative Agent shall execute such
documents and take such other actions as is reasonably requested by the Borrower
to evidence the release and discharge of any such Lien.
In the event the Borrower or any of its Subsidiaries intends to sell,
transfer or otherwise dispose of the capital stock of any Guarantor (subject to
and in accordance with the terms of the Credit Agreement) which has executed and
delivered a Collateral Assignment of Notes to the Administrative Agent, upon
notice thereof to the Administrative Agent, the Administrative Agent shall
promptly deliver to the Borrower the applicable promissory notes (pursuant to an
escrow arrangement acceptable to the Administrative Agent), and, effective upon
such sale, transfer or disposition, the Liens imposed by or under the Credit
Agreement and the Collateral Assignment of Notes on such notes shall
automatically and without any further action on the part of any party to any
Credit Documents, be fully released and discharged. Promptly upon the request of
the Borrower and at the expense of the Borrower, the Administrative Agent shall
execute such documents and take such other actions as is reasonably requested by
the Borrower to evidence the release and discharge of any such Lien.
To the extent any of the provisions of this Section 4.9 are
inconsistent with any of the provisions of Section 7.12 or Section 7.15, the
provisions of this Section 4.9 shall govern.
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1.19 Section 7.1(c)(i) of the Credit Agreement is hereby amended by
deleting the phrase "and showing the calculation of the Adjusted Leverage Ratio
for purposes of determining Applicable Percentage" set forth therein.
1.20 Sections 7.2 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
7.2 FINANCIAL COVENANTS.
(a) LEVERAGE RATIO. The Leverage Ratio, as of the end of
each fiscal quarter of the Borrower for the twelve month period ending
on such date, shall be less than or equal to:
(i) On June 30, 2000 and September 30, 2000, 3.0
to 1.0; and
(ii) On December 31, 2000 and on the last day of
each fiscal quarter of the Borrower thereafter, 2.75 to 1.0.
(b) FIXED CHARGE COVERAGE RATIO. The Fixed Charge
Coverage Ratio, as of the end of each fiscal quarter of the Borrower
for the twelve month period ending on such date, shall be greater than
or equal to:
(i) On June 30, 2000 and September 30, 2000, 2.0
to 1.0; and
(ii) On December 31, 2000 and on the last day of
each fiscal quarter of the Borrower thereafter, 2.25 to 1.0.
1.21 Section 8.1 of the Credit Agreement is hereby amended by
adding the following subsections (j) and (k) and by making the appropriate
grammatical and punctuation changes:
(j) Indebtedness arising under the Fifty Million Credit
Agreement in a principal amount not to exceed $50,000,000 (and
renewals, refinancings or extensions thereof on terms and conditions
substantially the same as such Indebtedness and in a principal amount
not in excess of that outstanding as of the date of such renewal,
refinancing or extension); and
(k) Indebtedness consisting of any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP, the principal
amount of such Indebtedness not to exceed $35,000,000 in the aggregate.
1.22 Section 8.5 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
8.5 SALE OR LEASE OF ASSETS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
convey, sell, lease, transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any part of its business or assets whether now
owned or hereafter acquired, including, without limitation, inventory,
receivables, equipment, real property interests (whether owned or leasehold),
and securities, other than (a) any inventory sold or otherwise disposed of in
the ordinary course of business; (b) the sale, lease, transfer or other disposal
by a Credit Party (other than the Borrower) of any or all of its assets to the
Borrower or to another Credit Party; (c) obsolete, slow-moving, idle or worn-out
assets (including inventory) no longer used or useful in its business; (d) the
transfer of assets which constitute a Permitted Investment; (e) the lease of
assets as provided in the Lease; or (f) such other transfer of assets if (i)
such transfer is for fair market value, (ii) at the time of such transfer no
Default or Event of Default exists and is continuing, (iii) as a result of such
transfer no Material Adverse Effect would occur or be reasonably likely to
occur, (iv) 50% of the Net Cash Proceeds from such transfer are used to prepay
Loans in accordance with the terms of Section 3.3(b)(ii), and (v) the balance of
the Net Cash Proceeds from such transfer (A) are used to prepay Loans, (B) are
used to make Stock Repurchase Restricted Payments subject to and in accordance
with the terms of Section 8.8 or (C) are reinvested in a business of a type
similar to that which the Credit Parties and their Subsidiaries are already
engaged or were engaged at the time of such transfer.
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1.23 Section 8.8 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
8.8 RESTRICTED PAYMENTS.
No Credit Party will, directly or indirectly, nor will it permit its
Subsidiaries to, (a) declare or pay any dividends or make any other distribution
upon any shares of its capital stock of any class (each such dividend or
distribution a "Dividend Restricted Payment") or (b) purchase, redeem or
otherwise acquire or retire or make any provisions for redemption, acquisition
or retirement of any shares of its capital stock of any class or any warrants or
options to purchase any such shares (each such, repurchase, redemption,
acquisition or retirement a "Stock Repurchase Restricted Payment"); provided
that (i) any Subsidiary of the Borrower may make Dividend Restricted Payments or
Stock Repurchase Restricted Payments to the Borrower or a Guarantor, (ii)
Dividend Restricted Payments in the form of stock may be paid pursuant to the
Rights Plan and the Benefits Plans, (iii) as long as no Default or Event of
Default exists and is continuing, Dividend Restricted Payments may be made with
respect to (A) the Benefits Plans of the type referred to in subsection (a) and
(b) of the definition of "Benefits Plans", (B) the Benefits Plans of the type
referred to in subsection (c), (d), (e) and (f) of the definition of "Benefits
Plans" in an aggregate amount not to exceed $50,000,000 during the term of this
Credit Agreement and (C) the Rights Plans in an aggregate amount not to exceed
$2,000,000 during the term of this Credit Agreement, (iv) other than with
proceeds from a sale, lease, transfer or other disposition of assets or a
business permitted by Section 8.5, Dividend Restricted Payments may be made (A)
if no Default or Event of Default exists and is continuing and (B) if after
giving effect thereto, the Credit Parties and their Subsidiaries are in
compliance with Section 7.2 and (v) the Credit Parties shall be entitled to make
Stock Repurchase Restricted Payments if (A) the Leverage Ratio, as determined on
a Pro Forma Basis, is less than or equal to 1.5 to 1.0, (B) the Revolving
Committed Amount hereunder and the FMCA Revolving Committed Amount have been
permanently reduced to $150,000,000 or less in the aggregate, and (C) the
Borrower delivers to the Administrative Agent and the Lenders an officer's
certificate demonstrating compliance with the foregoing clauses (v)(A) and
(v)(B). The aggregate amount of all Stock Repurchase Restricted Payments after
June 30, 2000 shall not exceed $75,000,000.
1.24 Section 9.1 of the Credit Agreement is hereby amended by
adding the following subsection (k) to read as follows:
(k) FIFTY MILLION CREDIT AGREEMENT. There shall occur an
Event of Default (as defined in the Fifty Million Credit Agreement)
under the Fifty Million Credit Agreement.
1.25 A new Section 10.10 is hereby added to the Credit Agreement to
read as follows:
10.10 INTERCREDITOR AGREEMENT.
The Lenders and the Agents acknowledge and agree that the collateral
pledged to the Administrative Agent, on behalf of the Lenders, by the Credit
Parties pursuant to the Collateral Documents shall also secure the obligations
of the Credit Parties under the Fifty Million Credit Agreement and that the
Liens granted by the Credit Parties pursuant to the Collateral Documents and the
Liens granted by the Credit Parties in connection with the Fifty Million Credit
Agreement shall rank pari passu. By execution hereof, each Lender hereby
acknowledges and agrees to be bound by the terms of the Intercreditor Agreement
and further authorizes and directs the Administrative Agent to enter into the
Intercreditor Agreement on its behalf.
1.26 A new EXHIBIT 10.10 is hereby added to the Credit Agreement in
the form of EXHIBIT 10.10 attached hereto.
II. CONDITIONS PRECEDENT
2.1 This Third Amendment shall be effective upon receipt by the
Administrative Agent of each of the following:
(a) Counterparts of this Third Amendment duly executed by
the Credit Parties and the Required Lenders;
(b) An amendment fee, for the benefit of each Lender that
approves, executes and delivers to the Administrative Agent this Third
Amendment prior to the effectiveness hereof, equal to 0.25% of the
Commitment of such Lender;
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(c) Copies of resolutions of the Board of Directors of
each Credit Party (or its general partner, as applicable) approving and
adopting this Third Amendment, the transactions contemplated herein and
authorizing execution and delivery hereof, certified by a secretary or
assistant secretary of such Credit Party (or its general partner, as
applicable) to be true and correct and in force and effect as of the
date hereof; and
(d) An opinion from legal counsel to the Credit Parties
(which shall cover, among other things, authority, legality, validity,
binding effect and enforceability), reasonably satisfactory to the
Administrative Agent, addressed to the Agents and the Lenders and dated
as of the date hereof.
III. MISCELLANEOUS
3.1 The term "Credit Agreement" as used in each of the Credit
Documents shall hereafter mean the Credit Agreement as amended by this Third
Amendment. Except as herein specifically agreed, the Credit Agreement is hereby
ratified and confirmed and shall remain in full force and effect according to
its terms.
3.2 Each of the Credit Parties represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Third Amendment.
(b) This Third Amendment has been duly executed and
delivered by such Credit Party and constitutes such Credit Party's
legal, valid and binding obligations, enforceable in accordance with
its terms, except as such enforceability may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Credit Party of this Third Amendment.
(d) The representations and warranties of such Credit
Party set forth in Section 6 of the Credit Agreement are true and
correct in all material respects as of the date hereof except to the
extent they expressly relate to an earlier date.
(e) No Default or Event of Default exists and is
continuing.
3.3 This Third Amendment shall constitute a Credit Document.
3.4 The Guarantors acknowledge and consent to all of the terms and
conditions of this Third Amendment and agree that this Third Amendment and all
documents executed in connection herewith do not operate to reduce or discharge
the Guarantors' obligations under the Credit Documents.
3.5 This Third Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument.
3.6 THIS THIRD AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
8
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Third Amendment to be duly executed and delivered by their proper and
duly authorized officer as of the day and year first above written.
BORROWER:
COVANCE INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
GUARANTORS: COVANCE PERIAPPROVAL SERVICES INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
COVANCE PHARMACEUTICAL PACKAGING
SERVICES INC., a Pennsylvania corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
COVANCE LABORATORIES INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
COVANCE RESEARCH PRODUCTS INC.,
a Pennsylvania corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
COVANCE CENTRAL LABORATORY SERVICES
LIMITED PARTNERSHIP, AN INDIANA LIMITED
PARTNERSHIP
By Covance Central Laboratory Services Inc., a
Delaware corporation, its General Partner
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
<PAGE>
COVANCE PRECLINICAL CORPORATION,
a Washington corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
COVANCE CENTRAL LABORATORY SERVICES
INC., a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
CJB INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
COVANCE BIOTECHNOLOGY SERVICES INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
AGENTS:
BANK OF AMERICA, N.A.,
formerly NationsBank, N.A., in its capacity as
Administrative Agent and as a Lender
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
WACHOVIA BANK, N.A.,
Successor by merger to Wachovia Bank of Georgia,
N.A., in its capacity as Syndication Agent and
as a Lender
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
<PAGE>
LENDERS:
BANK OF MONTREAL
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE FUJI BANK, LIMITED
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
BANK OF NOVA SCOTIA
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
PARIBAS, F/K/A BANQUE PARIBAS
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
BARCLAYS BANK PLC
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE CHASE MANHATTAN BANK
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
<PAGE>
CREDIT SUISSE FIRST BOSTON
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE DAI-ICHI KANGYO BANK, LTD.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
FLEET NATIONAL BANK
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
BANK OF TOKYO - MITSUBISHI TRUST
COMPANY
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
MELLON BANK, N.A.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
PNC BANK, NATIONAL ASSOCIATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE SANWA BANK LTD.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
