Eighth Amendment to Loan Documents

Exhibit 10.6.5

Execution Version

THIS EIGHTH AMENDMENT TO LOAN DOCUMENTS (this “Amendment”) is made as of October 31, 2011, and is by and among Bio-Reference Laboratories, Inc. (“BRLI”), and BRLI No. 2 Acquisition Corp., which conducts business as GeneDx (referred to herein from time to time as “GeneDx” and a “Subsidiary Party”) (BRLI and the Subsidiary Party herein each a “Borrower” and, collectively, “Borrowers”), the financial institutions which are party hereto (collectively, the “Lenders” and individually a “Lender”) and PNC BANK, NATIONAL ASSOCIATION in its capacity as the agent for the Lenders and, as of the date hereof, as the sole Lender (in each such capacity, the “Bank”).

BACKGROUND

A.          The Borrowers have executed and delivered to the Bank, one or more promissory notes, letter  agreements, loan agreements, security agreements, mortgages, pledge agreements, collateral assignments, and other agreements, instruments, certificates and documents, some or all of which are more fully described on attached Exhibit A, which is made a part of this Amendment (collectively as amended from time to time, the “Loan Documents”) which evidence or secure some or all of the Borrowers’ obligations to the Bank for one or more loans or other extensions of credit (the “Obligations”).

B.           The Borrowers and the Bank desire to amend the Loan Documents to, among other things, extend the term of their lending arrangements, increase the amount available to be borrowed under Borrowers’ revolving line of credit, and change certain of the other terms and conditions of the Loan Documents, all as provided for in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants herein contained and intending to be legally bound hereby, the parties hereto agree as follows:

1.           Certain of the Loan Documents are amended as set forth in Exhibit A. Any and all references to any Loan Document in any other Loan Document shall be deemed to refer to such Loan Document as amended by this Amendment. This Amendment is deemed incorporated into each of the Loan Documents. Any initially capitalized terms used in this Amendment without definition shall have the meanings assigned to those terms in the Loan Documents. To the extent that any term or provision of this Amendment is or may be inconsistent with any term or provision in any Loan Document, the terms and provisions of this Amendment shall control.

2.           (a) Each of the Borrowers hereby certifies that: (a) all of its representations and warranties in the Loan Documents, as amended by this Amendment, are, except as may otherwise be stated in this Amendment: (i) true and correct as of the date of this Amendment, (ii) ratified and confirmed without condition as if made anew, and (iii) incorporated into this Amendment by reference.

(b) Each of the Borrowers hereby certifies that (i) no Event of Default or event which, with the passage of time or the giving of notice or both, would constitute an Event of Default, exists under any Loan Document which will not be cured by the execution and effectiveness of this Amendment, (ii) no consent, approval, order or authorization of, or registration or filing with, any third party is required in connection with the execution, delivery and carrying out of this Amendment or, if required, has been obtained or shall be obtained on a timely basis pursuant to the terms of this Amendment and (iii) this Amendment has been duly authorized, executed and delivered so that it constitutes the legal, valid and binding obligation of each Borrower, enforceable

in accordance with its terms. The Borrowers confirm that the Obligations remain outstanding without defense, set off, counterclaim, discount or charge of any kind as of the date of this Amendment.

3.           Each of the Borrowers hereby confirms that any collateral for the Obligations, including liens, security interests, mortgages, and pledges granted by the Borrowers or third parties (if applicable), shall continue unimpaired and in full force and effect, and shall cover and secure all of the Borrowers’ existing and future Obligations to the Bank, as modified by this Amendment.

4.           As a condition precedent to the effectiveness of this Amendment, the Borrowers shall comply with the terms and conditions (if any) specified in Exhibit A.

5.           To induce the Bank to enter into this Amendment, to the extent permitted by law, each of the Borrowers waives and releases and forever discharges the Bank and its officers, directors, attorneys, agents, and employees from any liability, damage, claim, loss or expense of any kind that it may have against the Bank or any of them arising out of or relating to the Obligations. Each of the Borrowers further agrees to indemnify and hold the Bank and its officers, directors, attorneys, agents and employees harmless from any loss, damage, judgment, liability or expense (including attorneys’ fees) suffered by or rendered against the Bank or any of them on account of any claims arising out of or relating to the Obligations. Each of the Borrowers further states that it has carefully read the foregoing release and indemnity, knows the contents thereof and grants the same as its own free act and deed.

6.           This Amendment may be signed in any number of counterpart copies and by the parties to this Amendment on separate counterparts, but all such copies shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by facsimile transmission shall be effective as delivery of a manually executed counterpart. Any party so executing this Amendment by facsimile transmission shall promptly deliver a manually executed counterpart, provided that any failure to do so shall not affect the validity of the counterpart executed by facsimile transmission.

7.           This Amendment will be binding upon and inure to the benefit of each Borrower and the Bank and their respective heirs, executors, administrators, successors and assigns.

8.           This Amendment will be interpreted and the rights and liabilities of the parties hereto determined in accordance with the laws of the State of New Jersey, excluding its conflict of laws rules.

9.           Except as amended hereby, the terms and provisions of the Loan Documents remain unchanged, are and shall remain in full force and effect unless and until modified or amended in writing in accordance with their terms, and are hereby ratified and confirmed. Except as expressly provided herein, this Amendment shall not constitute an amendment, waiver, consent or release with respect to any provision of any Loan Document, a waiver of any Default or Event of Default under any Loan Document, or a waiver or release of any of the Bank’s rights and remedies (all of which are hereby reserved). Each of the Borrowers expressly ratifies and confirms the waiver of jury trial provisions contained in the Loan Documents.

[Signature page follows.]

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WITNESS the due execution of this Eighth Amendment to Loan Documents as a document under seal as of the date first written above.

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Execution Version

ELEVENTH AMENDED AND RESTATED SECURED REVOLVING NOTE
(PNC Bank, National Association)

FOR VALUE RECEIVED, BIO-REFERENCE LABORATORIES, INC., a New Jersey corporation with an address at 481 ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and its Subsidiary or Subsidiaries party hereto (collectively, jointly and severally the “Borrowers”), promise to pay on the earlier of demand made in accordance with the terms of the Loan Documents (as defined herein) or October 31, 2016, to the order of PNC BANK, NATIONAL ASSOCIATION (the “Lender”), in lawful money of the United States of America in immediately available funds at the Payment Office of PNC Bank, National Association as the Agent for the Lenders (the “Agent”) at its offices located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as Lender may designate from time to time, the principal sum of FORTY-FIVE MILLION DOLLARS ($45,000,000.00) (the “Facility”) or such lesser amount as may be advanced to or for the benefit of Borrowers hereunder, together with interest accruing on the outstanding principal balance from the date hereof as provided below:

1.    Rate of Interest. Amounts outstanding under this Note  will bear interest at a rate per annum which, as Borrowers shall elect in accordance with the terms of the Loan Documents, shall be at all time equal to either (a) the Alternate Base Rate per annum plus the Applicable Margin with respect to Domestic Rate Loans or (b) the Eurodollar Rate plus the Applicable Margin with respect to Eurodollar Rate Loans. Interest will be calculate on the basis of a year of 360 days for the actual number of days in each interest period. For all Domestic Rate Loans, if and when the Alternate Base Rate changes, the rate of interest on this Note will change automatically without notice to Borrowers, effective on the date of any such change. In no event will the rate of interest hereunder exceed the maximum rate allowed by law.

2.    Advances. Borrowers may request advances, repay and request additional advances hereunder, subject to the terms and conditions of this Note and the Loan Documents. In no event shall the aggregate unpaid principal amount of advances under this Note exceed the face amount of this Note.

3.    Payment Terms. The outstanding principal balance and any accrued but unpaid interest shall be due and payable to Agent on the earlier of demand made in accordance with the Loan Documents or October 31, 2016. Accrued interest will be due and payable in the absence of demand on the first (1st) day of each month with respect to Domestic Rate Loans and on the last day of each Interest Period (or calendar quarter within an Interest Period, in the case of Interest Periods exceeding three months) with respect to Eurodollar Rate Loans. If any payment under this Note shall become due on a Saturday, Sunday or public holiday under the laws of the State of New Jersey, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in computing interest in connection with such payment. Borrowers hereby authorize Agent to charge Borrowers’ deposit account at Agent for any payment when due hereunder. Payments received will be applied to charges, fees and expenses (including attorneys’ fees), accrued interest and principal in any order Agent may choose, in its sole discretion.

4.   Late Payments; Default Rate. If Borrowers fail to make any payment of principal, interest or other amount coming due pursuant to the provisions of this Note within ten (10) calendar days of the date due and payable, Borrowers also shall pay to Lender a late charge equal to two percent (2%) of the amount of such payment. Such ten (10) day period shall not be construed in any way to extend the due date of any such payment. The late charge is imposed for the purpose of defraying Lender’s expenses incident to the handling of delinquent payments and is in addition to, and not in lieu of, the exercise by Agent or Lender of any rights and remedies hereunder, under the other Loan Documents or under applicable laws, and any fees and expenses of any agents or attorneys which Agent or Lender may employ. Upon the occurrence of an Event of Default under the Loan Documents, at the option of the Required Lenders, this Note shall bear interest at a rate per annum (based on a year of 360 days and actual days elapsed) which shall be two percent (2%) per annum in excess of the interest rate in effect from time to time with respect to Domestic Rate Loans but not more than the maximum rate allowed by law (the “Default Rate”). The Default Rate shall continue to apply whether or not judgment shall be entered on this Note.

5.    Prepayment. The indebtedness evidenced by this Note may be prepaid in whole or in part at any time without penalty, subject, however, to the provisions of the Loan Documents, so that the outstanding principal balance hereof may be reduced to Zero ($0) Dollars from time to time.

6.    Other Loan Documents. This Note is issued in connection with the Amended and Restated Loan and Security Agreement dated as of September 30, 2004, as heretofore and as may in the future be amended from time to time (the “Credit Agreement”) and the Other Documents executed in conjunction therewith, as the same have been and may hereafter be amended from time to time, the terms of which are incorporated herein by reference (the “Loan Documents”) and is secured by the property described in the Loan Documents and by such other collateral as previously may have been, is, or in the future may be granted to Agent to secure this Note. Any capitalized term not defined herein shall be defined as set forth in the Credit Agreement, the terms and conditions of which are incorporated herein by reference as if set forth herein at length.

7.    Advance Procedures. A request for advance made by telephone must be promptly confirmed in writing by such method as Agent may require. Borrowers authorize Agent to accept telephonic requests for advances, and Agent shall be entitled to rely upon the authority of any person providing such instructions. Borrowers hereby indemnify and hold Agent harmless from and against any and all damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) which may arise or be created by the acceptance of such telephone requests or making such advances. Agent will enter on its books and records, which entry when made will be presumed correct, the date and amount of each advance, as well as the date and amount of each payment made by Borrowers.

8.    Events of Default. The occurrence of any of the Events of Default set forth in the Loan Documents will be deemed to be an “Event of Default” under this Note. Upon the occurrence of an Event of Default: (a) Lender shall be under no further obligation to make advances hereunder; (b) if an Event of Default specified in Section 10.5 or 10.6 of the Credit Agreement shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder shall be immediately due and payable without demand or notice of any kind; (c) if any other Event of Default shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder, at the option of the Required Lenders and without demand or notice of any kind, may be accelerated and become immediately due and payable; (d) at the option of Agent or at the discretion of the Required Lenders, this Note will

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bear interest at the Default Rate from the date of the occurrence of the Event of Default; and (e) Agent and Lender may exercise from time to time any of the rights and remedies available to Agent and Lender under the Loan Documents or under applicable law.

9.    Right of Setoff. In addition to all liens upon and rights of setoff against the money, securities or other property of Borrowers given to Lender by law, Lender shall have, with respect to Borrowers’ obligations to Lender under this Note and to the extent permitted by law, a contractual possessory security interest in and a contractual right of setoff against, and Borrowers hereby assign, convey, deliver, pledge and transfer to Lender all of Borrowers’ right, title and interest in and to, all deposits, moneys, securities and other property of Borrowers now or hereafter in the possession of or on deposit with, or in transit to, Lender whether held in general or special account or deposit, whether held jointly with someone else, or whether held by Lender for safekeeping or otherwise, excluding, however, all ▇▇▇, ▇▇▇▇▇, and trust accounts. Every such security interest and right of setoff may be exercised without demand upon or notice to Borrowers. Every such right of setoff shall be deemed to have been exercised hereunder without any action of Lender, although Lender may enter such setoff on its books and records at a later time.

10.    Miscellaneous. No delay or omission of Agent or Lender to exercise any right or power arising hereunder shall impair any such right or power or be considered to be a waiver of any such right or power, nor shall Agent’s or Lender’s action or inaction impair any such right or power. Borrowers agree to pay on demand, to the extent permitted by law, all costs and expenses incurred by Agent and Lender in the enforcement of their rights in this Note and in any security therefor, including without limitation reasonable fees and expenses of their counsel. If any provision of this Note is found to be invalid by a court, all the other provisions of this Note will remain in full force and effect. Borrowers and all other makers and endorsers of this Note hereby forever waive presentment, protest, notice of dishonor and notice of non-payment. Borrowers also waives all defenses based on suretyship or impairment of collateral. If this Note is executed by more than one Borrower, the obligations of such persons or entities hereunder will be joint and several. This Note shall bind Borrowers and their successors and assigns, and the benefits hereof shall inure to the benefit of Lender and its successors and assigns.

This Note has been delivered to and accepted by Lender and will be deemed to be made in the State of New Jersey. THIS NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF LENDER AND BORROWERS DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY, EXCLUDING ITS CONFLICT OF LAWS RULES. The jurisdiction and venue provisions of the Credit Agreement are incorporated in this Note by reference as though set forth herein at length.

11.    Waiver of Jury Trial. BORROWERS IRREVOCABLY WAIVE ANY AND ALL RIGHTS BORROWERS MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY SUCH DOCUMENTS. BORROWERS ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.

12.    Substitution of Note. This Note evidences indebtedness created under the Credit Agreement, which indebtedness is in full force and effect on a continuing basis, unimpaired and undischarged, under the Credit Agreement. This Note is issued in substitution for and replacement of, but not in

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payment or satisfaction of, that certain Tenth Amended and Restated Secured Revolving Note dated as of May 12, 2008, in the face amount of $40,000,000.00.

Borrowers acknowledge that they have read and understood all the provisions of this Note, including the waiver of jury trial, and have been advised by counsel as necessary or appropriate.

WITNESS the due execution of this Eleventh Amended and Restated Secured Revolving Note as a document under seal, as of the date first written above, with the intent to be legally bound hereby.

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