c48788_ex10-1.htm -- Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing








EXHIBIT 10.1 


AMENDMENT NO. 5 TO THIRD AMENDED AND RESTATED CREDIT AND 

SECURITY AGREEMENT


                    THIS AMENDMENT NO. 5 TO THIRD AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT (this “Amendment”) is entered into as of May 25, 2007, by and among: 

	          	          (1)      QUEST
          DIAGNOSTICS RECEIVABLES INC., a Delaware corporation (the “Borrower”), 

                 (2)      QUEST
          DIAGNOSTICS INCORPORATED, a Delaware corporation as initial servicer
          (together with the Borrower, the “Loan
          Parties”), 

                 (3)      VARIABLE
          FUNDING CAPITAL COMPANY LLC, a Delaware limited liability company as
          assignee of Blue Ridge Asset Funding Corporation (“VFCC”),
          and WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as a Liquidity
          Bank to VFCC (together with VFCC, the VFCC
          Group”), 

                 (4)      ATLANTIC
          ASSET SECURITIZATION LLC, a Delaware limited liability company formerly
          known as Atlantic Asset Securitization Corp. (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 (together with Atlantic, the “Atlantic
          Group”), 

                 (5)      WACHOVIA
          BANK, NATIONAL ASSOCIATION, in its capacity as agent for the VFCC Group,
          and CALYON NEW YORK BRANCH, in its capacity as agent for the Atlantic
          Group (in such latter capacity, together with its successors in such
          latter capacity, the “Atlantic
          Agent” or a “Co-Agent”),
          and

                 (6)      WACHOVIA
          BANK, NATIONAL ASSOCIATION, as administrative agent for the VFCC 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 Third Amended and Restated Credit and Security Agreement dated as of April 20, 2004, 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 extend the Scheduled Termination Date; and


                    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 as follows:


                    1.1      Section 1.7 of the Existing Agreement is hereby amended and restated in its entirety to read as follows: 

	          	         Section
        1.7. Requests for Increases in Aggregate
        Commitment. The Borrower may from time
        to time request increases in the VFCC Liquidity Banks’ Commitments
        in a minimum amount of $10,000,000 (or a larger integral multiple
        of $1,000,000) and a maximum aggregate amount of $25,000,000,
        upon at least 10 Business Days’ prior written notice to the Administrative
        Agent, which notice shall specify the aggregate amount of and proposed
        effective date for any such requested increase (each, a “Commitment
        Increase Request”). Within 10
        Business Days of receipt of a Commitment Increase Request, the full amount
        of such increase shall be made to the Commitments of the VFCC Liquidity
        Banks and no such increase shall be made to the Commitments of the Atlantic
        Liquidity Banks, whereupon their respective Commitment Percentages shall
        be adjusted as of the effective date specified in the Commitment Increase
        Request. Upon any increase in the Commitments of the VFCC Liquidity Banks
        pursuant to this Section, the Borrower shall pay the Commitment Increase
    Fee under and as defined in the VFCC Fee Letter. 



                     1.2
     The initial Commitments of Wachovia Bank, National Association, and of Calyon
New York Branch under the Existing Agreement are hereby changed to “$225,000,000” and
“$150,000,000,” respectively. 


                    1.3      The definition of “Dilution” in the Existing Agreement is hereby amended and restated in its entirety to read as
follows: 


                    “Dilution” means, total Net Revenues multiplied by the three month average calculated quarterly of (i)(a) for Originators on the QBS an amount equal
to the dollar amount of adjustments measured by QBS adjustment codes 66, 70, 71, 72, 74, 75, 76, 83, 85 for client and patient Receivables, plus (b) an amount equal to 0.30 times the dollar amount of adjustments measured by the QBS adjustment codes
66, 70, 71, 72, 74, 75, 76, 83, 85 for third party Receivables, plus (c) 0.70 multiplied by the dollar amount of adjustments measured by QBS 

 













adjustment code 68 for client and patient Receivables, excluding transfers between client and patient billing categories, divided by (ii) the Net Revenues generated by Originators on QBS. 


                    1.4      The definition of “Eligible Receivable” in the Existing Agreement is hereby amended to delete the following sentence at
the end thereof: 

	          	Notwithstanding the foregoing, in no event will a
        LabOne Receivable be an Eligible Receivable (i) on or before November
        30, 2006, to the extent the aggregate Outstanding Balance of the LabOne
        Receivables that are Eligible Receivables exceeds $30,000,000; or
        (ii) after November 30, 2006, if there is not a fully executed Collection
        Account Agreement in place with respect to each Lockbox and Collection
        Account into which the proceeds of any LabOne Receivable are deposited;
        or (iii) on or after December 8, 2006, if the Loan Parties have not provided
    an updated Schedule 6.1(o) to the Administrative Agent.


 


                    1.5      The definition of “Scheduled Termination Date” in the Existing Agreement is hereby amended and restated in its entirety
to read as follows: 

	          	          “Scheduled
            Termination Date” means, as
            to each Liquidity Bank, the earlier to occur of May 23, 2008 and
            the date on which its Liquidity Commitment(s) terminate(s) in accordance
            with the Liquidity Agreement to which it is a party, in either of
            the foregoing cases, unless extended by agreement of such Liquidity
    Bank in accordance with Section 1.8.


                    1.6      The
    definition of “Specified Government
    Ineligibles” in the Existing Agreement is hereby amended and restated in its
entirety to read as follows: 

	          	          “Specified
            Government Ineligibles” means,
            on any date of determination, 5% times Client-Billed Receivables
            for the Reserve Computation as of the last day of the calendar month
    then most recently ended. 


                    1.7      Schedule 6.1(o) of the Existing Agreement is hereby amended and restated in its entirety to read as set forth in Annex A hereto. 


                    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 (a) receipt by the Administrative Agent of a counterpart hereof duly executed by each of the parties hereto, (b) receipt by the VFCC Agent of a counterpart of an amended and restated VFCC Fee Letter, duly executed by each of the parties
thereto, together with payment of the Amendment Fee and Extension Fee (each, under and as defined therein), and (c) receipt by the Atlantic Agent of a counterpart of a second amended and restated Atlantic Fee letter, duly executed by each of the
parties thereto, together with payment of the Amendment Fee and Extension Fee (each, under and as defined therein). 


                    4.      Miscellaneous. 


                    4.1.      Except as expressly amended hereby, the Existing Agreement 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> 

 













                    IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written. 

	
QUEST DIAGNOSTICS RECEIVABLES INC.
	
	 

	
	 

	
	
By: /s/ Joseph P. Manory__________________
	
	
          Name: Joseph P. Manory
	
	
          Title:   
 Vice President and Treasurer
	
	 

	
	 

	
	 

	
	 

	
	
QUEST DIAGNOSTICS INCORPORATED
	
	 

	
	 

	
	
By: _/s/ Joseph P. Manory_______________
	
	
          Name: Joseph P. Manory
	
	
          Title:
    Vice President and Treasurer
	















	
WACHOVIA BANK, NATIONAL ASSOCIATION,
	
	
INDIVIDUALLY, AS ADMINISTRATIVE AGENT AND AS
VFCC AGENT
	
	 

	
	 

	
	
By: /s/ Elizabeth R. Wagner___________
	
	
          Name: Elizabeth R. Wagner
	
	
          Title:    Managing Director
	














	
VARIABLE FUNDING CAPITAL COMPANY LLC
	
	 

	
	
BY: WACHOVIA CAPITAL MARKETS, LLC, ITS ATTORNEY-IN-FACT
	
	 

	
	 

	
	
By: /s/ Douglas R. Wilson, Sr.
	
	
            Name: Douglas R. Wilson, Sr.
	
	
            Title:    Vice President
	














	
ATLANTIC ASSET SECURITIZATION LLC
	
	 

	
	
By: CALYON NEW YORK BRANCH
	
	
       AS ATTORNEY-IN-FACT
	
	 

	
	 

	
	
By: /s/ Anthony Brown________________
	
	
           Name: Anthony Brown
	
	
           Title: Vice President
	
	 

	
	 

	
	
By: /s/ Tina Kourmpetis________________
	
	
            Name: Tina Kourmpetis
	
	
            Title: Managing Director
	
	 

	
	 

	
	
CALYON NEW YORK BRANCH, INDIVIDUALLY AND AS ATLANTIC
	
	
AGENT
	
	 

	
	 

	
	
By: _/s/ Anthony Brown_________________
	
	
              Name: Anthony Brown
	
	
              Title: Vice President
	
	 

	
	 

	
	 

	
	
By: _/s/ Tina Kourmpetis_________________
	
	
              Name: Tina Kourmpetis
	
	
              Title: Managing Director