Exhibit 10.4
AMENDMENT NO. 1 TO
FOURTH AMENDED AND RESTATED CREDIT AND
SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED CREDIT
AND SECURITY AGREEMENT (this
“Amendment” ) is entered into as of
December 12, 2008, by and among:
(1) QUEST DIAGNOSTICS RECEIVABLES INC., a Delaware
corporation (together with its successors and permitted assigns,
the “Borrower” ),
(2) QUEST DIAGNOSTICS INCORPORATED, a Delaware corporation
(together with its successors, “Quest
Diagnostics” ), as initial servicer (in such
capacity, together with any successor servicer or sub-servicer, the
“Servicer” ),
(3) ATLANTIC ASSET SECURITIZATION LLC, a Delaware limited
liability company, as assignee of Variable Funding Capital Company
LLC (together with its successors,
“Atlantic” and together with VFCC, the
“Conduits” ), and CALYON NEW YORK BRANCH,
in its capacity as a Liquidity Bank to Atlantic and assignee of
Wachovia Bank, National Association (together with its successors,
“Calyon” and together with Atlantic, the
“Atlantic Group” ),
(4) GOTHAM FUNDING CORPORATION, a Delaware corporation
(together with its successors, “Gotham”
and together with Atlantic, the
“Conduits” ), and THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, in its capacity as a
Liquidity Bank to Gotham (together with its successors,
“BTMU” and, together with Gotham, the
“Gotham Group” ),
(5) CALYON 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 THE BANK OF
TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, in its capacity as
agent for the Gotham Group (together with its successors in such
capacity, the “Gotham Agent” or a
“Co-Agent” ), and
(6) THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH,
as administrative agent for the Atlantic Group, the Gotham 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 Fourth Amended and Restated Credit
and Security Agreement dated as of June 11, 2008, 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.
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W
I T N E
S S E T
H :
WHEREAS, the parties hereto desire to amend the
Existing Agreement on the terms and subject to the conditions
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 .
1.1.
All references to “Variable Funding Capital Company
LLC” in the Existing Agreement, and all references to
“VFCC” in the Existing Agreement (whether alone, or as
part of another defined term) are hereby replaced with references
to “Atlantic Asset Securitization LLC” and
“Atlantic,” respectively. All references to
“Wachovia Bank, National Association” in the Existing
Agreement, and all references to “Wachovia” in the
Existing Agreement (whether alone, or as part of another defined
term) are hereby replaced with references to “Calyon New York
Branch” and “Calyon,” respectively.
1.2.
The third recital to the Existing Agreement is hereby deleted in
its entirety, and the second recital is hereby amended and restated
in its entirety to read as follows:
WHEREAS, Quest Diagnostics and certain of its
Subsidiaries as Originators and the Borrower have entered into the
Sale Agreement pursuant to which each of the Originators has sold
and/or contributed, and hereafter will sell to the Borrower,
Participation Interest in all of such Originator’s right
title and interest in and to its Specified Government Receivables,
all of such Originator’s right, title and interest in and to
its Private Receivables and certain related rights;
1.3.
Section 2.3 of the Existing Agreement is hereby amended and
restated in its entirety to read as follows:
Section
2.3. Computation of Concentration Limits and Unpaid Net
Balance . The Obligor Concentration Limits and the aggregate
Unpaid Net Balance of Private Receivables (as defined in the Sale
Agreement) of each Obligor and its Affiliated Obligors (if any)
shall be calculated as if each such Obligor and its Affiliated
Obligors were one Obligor.
1.4.
Section 2.5 of the Existing Agreement is hereby amended to add a
new subsection (e) to read as follows:
(e)
No Deduction
All
payments to be made by a Loan Party hereunder shall be made without
condition or deduction for any counterclaim, defense, recoupment or
setoff.
1.5
Section 2.5 of the Existing Agreement is hereby further amended to
add a new subsection (f) to read as follows:
(f)
Gross Up
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If
a Loan Party shall be required by any Requirement of Law to deduct
any Taxes from or in respect of any sum payable under any Loan
Document to any Agent or any Lender, (i) the sum payable shall be
increased as necessary so that after making all required
deductions, such Agent or such Lender, as the case may be, receives
an amount equal to the sum it would have received had no such
deductions been made, (ii) such Loan Party shall make such
deductions, (iii) such Loan Party shall pay the full amount
deducted to the relevant taxation authority or other Governmental
Authority in accordance with applicable Requirements of Law, and
(iv) within 30 days after the date of such payment, such Loan Party
shall furnish to the Administrative Agent (which shall forward the
same to such Agent or such Lender) the original or a certified copy
of a receipt evidencing payment thereof, to the extent such receipt
is issued therefor, or other written proof of payment thereof that
is reasonably satisfactory to the Administrative Agent.
1.6
Section 8.2(g) of the Existing Agreement is hereby amended and
restated in its entirety to read as follows:
(g)
Power of Attorney . The Borrower hereby grants to the
Servicer an irrevocable power of attorney, with full power of
substitution, coupled with an interest, to take in the name of the
Borrower all steps which are necessary or advisable to endorse,
negotiate or otherwise realize on any writing or other right of any
kind held or transmitted by the Borrower or transmitted or received
by any Agent or any Lender in connection with any Receivable. This
power of attorney shall automatically terminate as to any Servicer
replaced in accordance with Section 8.1(b) and shall automatically
transfer to its successor.
1.7
Section 10.1(g) of the Existing Agreement is hereby amended to
delete “15.40%” where it appears and to substitute in
lieu thereof “14.00%” .
1.8.
The definition of “Dilution Reserve” in
the Existing Agreement is hereby amended to delete
“1.5” where it appears and to substitute in lieu
thereof “2.0” .
1.9.
The text of clause (e) of the definition of “Interest
Payment Date” in Annex A to the Existing Agreement is
hereby replaced with “[intentionally deleted].”
1.10.
The definition of “Loss Reserve” in the
Existing Agreement is hereby amended to delete “2.0”
where it appears and to substitute in lieu thereof
“2.25” .
1.11.
The definition of “Obligor Concentration
Limit” in the Existing Agreement is hereby amended to
delete “Receivables” where it appears in the second
line thereof and to substitute in lieu thereof “Private
Receivables”.
1.12.
The definitions of “VFCC Fee Letter” and
“VFCC Liquidity Agreement” in the
Existing Agreement are hereby deleted in their entirety.
1.13.
The following new definitions are hereby inserted in Annex A to the
Existing Agreement in their appropriate alphabetical order:
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“Atlantic Fee Letter” means that certain
Atlantic Fee Letter dated as of December 12, 2008 by and among
Quest Diagnostics, the Borrower, Atlantic and the Atlantic Agent,
as the same may be amended, restated, supplemented, replaced or
otherwise modified from time to time.
“Atlantic Liquidity Agreement” means the
Liquidity Asset Purchase Agreement dated as of December 12, 2008
among Atlantic, the Atlantic 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.
“Eligible Participation Interest” means a
Participation Interest in a Specified Government Receivable that
meets the following criteria and which Participation Interest has
been transferred to the Borrower pursuant to the Sale Agreement in
a “true participation” transaction:
(a)
a Specified Government Receivable which arises out of the provision
or sale of Clinical Laboratory Services by an Eligible Originator
in the ordinary course of its business;
(b)
a Specified Government Receivable as to which the perfection of the
Administrative Agent’s security interest, on behalf of the
Secured Parties, in the applicable Participation Interest is
governed by the laws of a jurisdiction where the Uniform Commercial
Code-Secured Transactions is in force;
(c)
a Specified Government Receivable constitutes an
“account” or a “payment intangible” (each
as defined in the Uniform Commercial Code as in effect in any
relevant jurisdiction);
(d)
a Specified Government Receivable the Obligor of which is a
Governmental Authority of the United States or any of its states,
possessions or territories;
(e)
a Specified Government Receivable which is not a Disallowed
Receivable at such time;
(f)
the portion of a Specified Government Receivable which is not an
Ineligible Defaulted Receivable at such time;
(g)
a Specified Government Receivable with regard to which the
representations and warranties of the Borrower in Sections 6.1(j),
(l) and (p) are true and correct;
(h)
a Specified Government Receivable with regard to which the granting
of a Participation Interest therein does not contravene or conflict
with any law;
(i)
a Specified Government Receivable which is denominated and payable
only in Dollars in the United States;
(j)
a Specified Government Receivable which constitutes the legal,
valid and binding obligation of the Obligor thereof enforceable
against such Obligor in accordance
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with its terms and is
not subject to any actual or reasonably expected dispute, offset
(except as provided below), counterclaim or defense whatsoever;
provided, however, that if such dispute, offset,
counterclaim or defense affects only a portion of the Unpaid Net
Balance of such Specified Government Receivable, then such
Specified Government Receivable may be deemed an Eligible Specified
Government Receivable to the extent of the portion of such Unpaid
Net Balance which is not so affected;
(k)
a Specified Government Receivable which, together with any Contract
related thereto, does not contravene in any material respect any
laws, rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to usury, truth in
lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collect
