EXHIBIT 10.1
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
June 7, 2000 (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 hereof, 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 and May 7, 1999 (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 Covenant Prohibiting Stock Repurchases. (a)
Section 5.02 (e)(vi) of the Credit Agreement if hereby amended by deleting
such subsection and inserting the following in lieu thereof:
"(vi) the Borrower may redeem shares of the Borrower Preferred
Stock (other than shares owned by Roche Holdings or any affiliate of
Roche Holdings) for an aggregate redemption price of not more than
$275,000,000 to the extent such Borrower Preferred Stock is not converted
into Borrower Common Stock on or prior to (A) July 31, 2000 or (B) if at
the time of delivery of the notice of redemption of the Borrower
Preferred Stock, the market value of the Borrower Common Stock is at
least 200% of the conversion price of $27.50 per share of Borrower Common
Stock, September 29, 2000; provided that if a Committed Borrowing is made
to provide the funds for such redemption, the Borrower shall have
certified, in a duly executed statement to be attached to the Notice of
Committed Borrowing delivered to the Administrative Agent in connection
with such Borrowing as to the amount of such Committed Borrowing that
will be used to pay the redemption price for such Borrower Preferred
Stock;"
(b) The portion of any Committed Borrowing used for the purpose of redeeming
the Borrower Preferred Stock is referred to herein as a "Redemption Advance".
The Credit Agreement is hereby further amended to provide that (i) the
Applicable Margin for Redemption Advances shall equal the Applicable Margin
for Revolving Credit Advances plus the applicable Utilization Margin (as
defined below); (ii) the Borrower shall have no right to repay the Redemption
Advances unless all other Revolving Credit Advances have been repaid in full
and (iii) the Borrower shall have no right to use the proceeds of any Advances
for the purpose of repaying any Redemption Advance.
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(c) "Utilization Margin" means the applicable amount set forth on the table
below:
Aggregate Principal Amount of
Committed Advances to Finance
Redemption of Borrower Preferred Stock Utilization Margin
-------------------------------------- ------------------
Up to $75 million 0%
Greater than $75 million and less 0.25%
than $150 million
$150 million or greater 0.50%
SECTION 1.02. Amendment to Acquisition Covenant. Section 5.02 (h) of
the Credit Agreement is hereby amended by inserting after "$75,000,000" in
subsection 5.02(h)(iii)(A) the following "(or, if Borrower Preferred Stock has
converted to at least $200,000,000 of Borrower Common Stock (calculated at the
conversion price of $27.50 per share of Borrower Common Stock rather that at
the current market value of the Borrower Common Stock), $200,000,000);
provided that the aggregate amount used in any year under this Section 5.02
(h)(iii)(A) plus the amount borrowed under this Agreement to fund redemptions
of Borrower Preferred Stock permitted under Section 5.02 (e)(vi) and not
repaid shall not exceed $275,000,000".
SECTION 1.03. Amendment to Debt Covenant. (a) Section 5.02(j) of the
Credit Agreement is hereby amended by adding the following new Section
5.02(j)(xiii).
"(xiii) the Company's 8.5% Convertible Subordinated Notes due 2012
(as described in the Rights Offering Registration Statement) issued in
exchange for the Borrower Series A Preferred Stock in a maximum principal
amount of $220,000,000."
(b) Such Section 5.02(j) is also amended to make conforming changes
in the punctuation by deleting "and" after the semicolon in subsection (xi),
and deleting the period at the end of subsection (xii) and inserting "; and"
in lieu thereof.
SECTION 1.04. Amendment Fee. The effectiveness of this Amendment is
subject to the receipt by the Administrative Agent of an amendment fee,
payable to the Administrative Agent for 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 Commitments 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.
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(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.
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Each of the undersigned has caused this Amendment to be executed by
its respective officer or officers thereunto duly authorized, as of the date
first written above.
BORROWER: LABORATORY CORPORATION OF AMERICA HOLDINGS
By:/s/ WESLEY R. ELINGBURG
-----------------------------
Name: Wesley R. Elingburg
Title: CFO/EVP/Treasurer
ADMINISTRATIVE CREDIT SUISSE FIRST BOSTON,
AGENT: as Administrative Agent
By: /s/ KARL M. STUDER
---------------------
Name: Karl M. Studer
Title: Director
By: /s/ JULIA P. KINGSBURY
------------------------
Name: Julia P. Kingbury
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ KARL M. STRUDER
----------------------
Name: Karl M. Struder
Title: Director
By: /s/ ROLAND ISLES
----------------------
Name: Roland Isles
Title: Associate
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION (As successor by
merger to Bank of America Illinois)
By: /s/ MARTY V.MITCHELL
-------------------------
Name: Marty V. Mitchell
Title: Principal
BNP PARIBAS (f/k/a BANQUE NATIONALE DE PARIS)
By: /s/ BONNIE G. EISENSTAT
--------------------------
Name: Bonnie G. Eisenstat
Title: Vice President
By: /s/ RICHARD PACE
-------------------
Name: Richard Pace
Title: Vice President
Corporate Banking Divisior
BAYERISCHE LANDESBANK GIROZENTRALE
By: /s/ HEREWARD DRUMMOND
------------------------
Name: Hereward Drummond
Title: Senior Vice President
By: /s/ ALEXANDER KOHNERT
------------------------
Name: Alexander Kohnert
Title: First Vice President
THE CHASE MANHATTAN BANK
By: /s/ PETER M. HAYES
---------------------
Name: Peter M. Hayes
Title: Vice President
CREDIT LYONNAIS (NEW YORK BRANCH)
By: /s/ JOHN C. OBERLE
---------------------
Name: John C. Oberle
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
and/or CAYMAN ISLANDS BRANCH
By: /s/ PETER LUDWIG SCHRICKEL
--------------------------
Name: Peter Ludwig Schrickel
Title: Director
By: /s/ STEPHANIE STROHE
----------------------
Name: Stephanie Strohe
Title: Associate
FIRST UNION NATIONAL BANK
By: /s/ ANN M. DODD
------------------
Name: Ann M. Dodd
Title: Senior Vice President
THE FUJI BANK, LTD. (NEW YORK BRANCH)
By: /s/ YUJI TANAKA
------------------
Name: Yuji Tanaka
Title: Vice President & Manager
SOCIETE GENERALE
By: /s/ BETTY BURG
----------------
Name: Betty Burg
Title: Director
By: /s/ ALEXANDER S. LUDWIG
--------------------------
Name: Alexander S. Ludwig
Title: Associate
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/ B. BRANTLEY ECHOLS
-------------------------
Name: B. Brantley Echols
Title: Senior Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: /s/ RICHARD J. PEARSE
------------------------
Name: Richard J. Pearse
Title: Executive Director
By: /s/ ELISABETH R. WILDS
--------------------------
Name: Elisabeth R. Wilds
Title: Manager
COMMERZBANK AKTIENGESELLSCHAFT,
New York and Grand Cayman branches
By: /s/ HARRY P. YERGEY
----------------------
Name: Harry P. Yergey
Title: Senior Vice President & Manager
By: /s/ SUBASH R. VISWANATHAN
----------------------------
Name: Subash R. Viswanathan
Title: Vice President
BBL INTERNATIONAL (U.K.) LIMITED
By: /s/ G.R.M. WALKER
--------------------
Name: G.R.M. Walker
Title: Authorised Signatory
By: /s/ C.F. WRIGHT
------------------
Name: C.F. Wright
Title: Authorised Signatory
UBS AG, Stamford Branch
By: /s/ HARRY WELTEN
--------------------
Name: Harry Welton
Title: Director
By: /s/ DOROTHY MCKINLEY
-----------------------
Name: Dorothy McKinley
Title: Director
Loan Portfolio Support, US
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