AMENDMENT NO. 4 AND CONSENT
AMENDMENT NO. 4 AND CONSENT (this "Consent"), dated as of July 7,
1998, among ALARIS MEDICAL, INC. (formerly named Advanced Medical, Inc.), a
Delaware corporation ("Holdings"), ALARIS MEDICAL SYSTEMS, INC. (formerly
named IVAC Holdings, Inc.), a Delaware corporation (the "Borrower"), the
financial institutions party to the Credit Agreement referred to below (the
"Banks"), BANKERS TRUST COMPANY, as Administrative Agent and as a Syndication
Agent and BANQUE PARIBAS, as Documentation Agent (together with Bankers Trust
Company in its capacity as Administrative Agent, the "Agents") and as a
Syndication Agent. All capitalized terms used herein and not otherwise
defined shall have the respective meanings provided such terms in the Credit
Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Holdings, the Borrower, the Banks and the Agents are
parties to a Credit Agreement, dated as of November 26, 1996 (as modified,
supplemented and amended to, but not including, the date hereof, the "Credit
Agreement");
WHEREAS, The Borrower wishes to consummate a transaction whereby it
will (i) acquire (the "Instromedix Acquisition") 100% of the outstanding
capital stock of Instromedix, Inc. ("Instromedix") through a newly-formed
Wholly-Owned Domestic Subsidiary of the Borrower (the "Acquisition
Subsidiary") for a total consideration of approximately $55,000,000 and (ii)
repay approximately $5,000,000 of existing indebtedness of Instromedix and
its Subsidiaries;
WHEREAS, in connection with the Instromedix Acquisition, Holdings
(i) may issue junior subordinated paid-in-kind preferred stock (the "Picower
PIK Preferred Stock"), the net cash proceeds of which would be used to repay
outstanding amounts under certain unsecured promissory notes issued by
Holdings in accordance with the terms of this Consent (the "Instromedix
Seller Note") and (ii) intends to issue unsecured senior discount notes (the
"Discount Notes"), the net cash proceeds of which shall be contributed (the
"Contribution") to the Borrower and, in turn, used by the Borrower (A) to
repay outstanding Revolving Loans, (B) to repay any outstanding Indebtedness
under the Instromedix Seller Note or repurchase any outstanding Picower PIK
Preferred Stock and (C) to pay for the general corporate and working capital
purposes of the Borrower and its Subsidiaries;
WHEREAS, the consent of the Required Banks is required (i) to
permit Borrower to consummate the Instromedix Acquisition, (ii) to permit
Holdings to issue the Discount Notes and the Picower PIK Preferred Stock and
(iii) for the other amendments set forth in this Consent; and
WHEREAS, Holdings and the Borrower have requested that the Xxxxx
xxxxx, and the Banks are willing to grant (subject to the terms and
conditions hereof), a consent to permit the Instromedix Acquisition, the
issuance of the Discount Notes, the Picower PIK Preferred Stock and the other
transactions contemplated below, and the parties hereto have further agreed
to amend the Credit Agreement as set forth herein;
NOW THEREFORE, it is agreed:
1. The Banks hereby agree that the previously consummated
acquisitions by the Borrower of each of (i) the assets of Patient Solutions,
Inc. (the "Genie Acquisition") and (ii) the assets of Caesarea Medical
Electronics, Ltd. representing the "Niki" infusion pump (the "Niki
Acquisition") are Permitted Acquisitions under the Credit Agreement,
PROVIDED, HOWEVER, no part of the consideration therefore shall be applied
against the Dollar limitations applicable to Permitted Acquisitions set forth
in Section 8.02(t) of the Credit Agreement, it being acknowledged that the
aggregate amount of the Genie Acquisition was $5,250,000 and the aggregate
amount of the Niki Acquisition (including any consideration therefor which
has been previously paid) shall not exceed $5,000,000.
2. Section 1.01(A)(d) of the Credit Agreement is hereby deleted
in its entirety and the following new Section 1.01(A)(d) is inserted in lieu
thereof:
"(d)(1) Each loan made by a Bank with a D Term Loan Commitment
under the D Term Loan Facility (such term loan, together with any term
loans made pursuant to clause (2) of this Section 1.01(A)(d),
collectively, the "D Term Loans," and each, a "D Term Loan"), (i) shall
be incurred by the Borrower pursuant to a single drawing, which shall be
on the Initial Borrowing Date, (ii) shall be denominated in U.S.
Dollars, (iii) shall be made as Base Rate Loans and, except as
hereinafter provided, may, at the option of the Borrower, be maintained
as and/or converted into Base Rate Loans or Eurodollar Loans, PROVIDED,
that all D Term Loans made by all Banks pursuant to the same Borrowing
shall, unless otherwise specifically provided herein, consist entirely
of D Term Loans of the same Type and (iv) shall not exceed for any Bank
at the time of incurrence thereof on the Initial Borrowing Date that
aggregate principal amount which equals the D Term Loan Commitment, if
any, of such Bank at such time.
(2) Each D Term Loan made by a Bank with an Additional D Term Loan
Commitment under the D Term Loan Facility, (i) shall be incurred by the
Borrower pursuant to a single drawing, which shall be on the Additional
D Term Loan Borrowing Date, (ii) shall be denominated in U.S. Dollars,
(iii) shall be made as Base Rate Loans and, except as hereinafter
provided, may, at the option of the Borrower, be maintained as and/or
converted into Base Rate Loans or Eurodollar Loans, PROVIDED, that all
such additional D Term Loans made by all Banks pursuant to the same
Borrowing shall, unless otherwise specifically provided herein, consist
entirely of D Term Loans of the same Type and (iv) shall not exceed for
any Bank at the time of incurrence thereof on the Additional D Term Loan
Borrowing Date that aggregate principal amount which equals the
Additional D Term Loan Commitment, if any, of such Bank at such time.
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Once repaid, D Term Loans may not be reborrowed."
3. Section 1.01(A)(e) of the Credit Agreement is hereby amended
by deleting the last sentence appearing in said Section and inserting the
following new sentence in lieu thereof:
"Notwithstanding anything to the contrary contained in this
Agreement, but only to the extent that the Borrower has utilized
proceeds of Revolving Loans to pay a portion of the purchase price for
the Instromedix Acquisition, until such time as the Borrower shall have
(i) received gross cash proceeds of at least $50,000,000, from the
issuance of the Discount Notes and (ii) applied such proceeds as a
repayment of then outstanding Revolving Loans in an amount equal to the
greater of (A) $20,000,000 and (B) an amount equal to the remainder of
(A) the net cash proceeds generated from the issuance of the Discount
Notes LESS (B) the amount of such proceeds applied to repurchase any
outstanding Picower PIK Preferred Stock or repay any outstanding
indebtedness under the Instromedix Seller Note, the Borrower shall
ensure that the Total Unutilized Revolving Loan Commitment is at least
$20,000,000."
4. Section 1.05(e) of the Credit Agreement is hereby deleted in its
entirety and the following new Section 1.05(e) is inserted in lieu thereof:
"(e) The D Term Note issued to each Bank with a D Term Loan
Commitment or an Additional D Term Loan Commitment shall (i) be executed
by the Borrower, (ii) be payable to the order of such Bank or its
registered assigns and be dated the Initial Borrowing Date, (or if
issued thereafter, the date of issuance thereof), (iii) be in a stated
principal amount equal to the D Term Loans made by such Bank pursuant to
Section 1.01(A)(d)(1) or 1.01(A)(d)(2), as the case may be, (iv) mature
on the D Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject
to voluntary prepayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02, and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents."
5. Section 1.07 of the Credit Agreement is hereby amended by
inserting the phrase ", Additional D Term Loan Commitments (in the case of D
Term Loans incurred on the Additional D Term Loan Borrowing Date)"
immediately after the phrase "D Term Loan Commitments" appearing therein.
6. Section 3.03 of the Credit Agreement is hereby amended by (i)
inserting the text "(i)" immediately after the text "(b)" appearing at the
beginning of clause (b) thereof and (ii) inserting the following new
sub-clause (ii) immediately following existing clause (b) thereof:
"(ii) The Total Additional D Term Loan Commitment shall terminate
on the Additional D Term Loan Borrowing Date, after giving effect to the
making of the D Term Loans on such date."
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7. Section 3.03(e) of the Credit Agreement is hereby amended by
inserting the phrase ", the Total Additional D Term Loan Commitment"
immediately following the phrase "Total D Term Loan Commitment" appearing
therein.
8. Section 4.02(A)(b)(iv) of the Credit Agreement is hereby
amended by deleting the table therein in its entirety and inserting the
following new table in lieu thereof:
"SCHEDULED D REPAYMENT DATE AMOUNT"
-------------------------- ------
the first Business Day in February, 1997 $100,000
the first Business Day in May, 1997 $100,000
the first Business Day in August, 1997 $100,000
the first Business Day in November, 1997 $100,000
the first Business Day in February, 1998 $100,000
the first Business Day in May, 1998 $100,000
the first Business Day in August, 1998 $175,000
the first Business Day in November, 1998 $175,000
the first Business Day in February, 1999 $175,000
the first Business Day in May, 1999 $175,000
the first Business Day in August, 1999 $175,000
the first Business Day in November, 1999 $175,000
the first Business Day in February, 2000 $175,000
the first Business Day in May, 2000 $175,000
the first Business Day in August, 2000 $175,000
the first Business Day in November, 2000 $175,000
the first Business Day in February, 2001 $175,000
the first Business Day in May, 2001 $175,000
the first Business Day in August, 2001 $175,000
the first Business Day in November, 2001 $175,000
the first Business Day in February, 2002 $175,000
the first Business Day in May, 2002 $175,000
the first Business Day in August, 2002 $175,000
the first Business Day in November, 2002 $175,000
the first Business Day in February, 2003 $175,000
the first Business Day in May, 2003 $175,000
the first Business Day in August, 2003 $175,000
the first Business Day in November, 2003 $175,000
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the first Business Day in February, 2004 $175,000
the first Business Day in May, 2004 $175,000
the first Business Day in August, 2004 $175,000
the first Business Day in November, 2004 $175,000
the first Business Day in February, 2005 $32,425,000
D Term Loan Maturity Date $32,425,000
9. Notwithstanding anything to the contrary contained in Section
4.02(A)(d) of the Credit Agreement, the Banks hereby agree that in the event
Holdings issues the Picower PIK Preferred Stock, the net cash proceeds
received by Holdings therefrom shall not be required to be applied as a
mandatory repayment of outstanding Term Loans so long as 100% of such
proceeds (or such lesser amount necessary to make the repayment described
below) are used by Holdings to repay all then outstanding Indebtedness under
the Instromedix Seller Note.
10. Notwithstanding anything to the contrary contained in Section
4.02(A)(e) of the Credit Agreement, the Banks hereby agree that the net cash
proceeds received by Holdings from the issuance of the Discount Notes shall
not be required to be applied as a mandatory repayment of outstanding Term
Loans.
11. Sections 6.05(a) and 6.05(b) of the Credit Agreement are
hereby deleted in their entirety and the following new Sections 6.05(a) and
6.05(b) are inserted in lieu thereof:
"(a) The proceeds of the Term Loans incurred (x) pursuant to
Section 1.01(A)(d)(1) on the Initial Borrowing Date shall be utilized
(i) to finance the Transaction and (ii) to pay fees and expenses
incurred in connection therewith and (y) pursuant to Section
1.01(A)(d)(2) on the Additional D Term Loan Borrowing Date shall be
utilized (i) to repay outstanding Revolving Loans, (ii) to finance, in
part, the Instromedix Acquisition and/or (iii) to pay fees and expenses
incurred in connection therewith.
(b) The proceeds of Revolving Loans may be utilized (i) in amounts
of up to $10,000,000 on the Initial Borrowing Date (x) to finance the
Transaction and (y) to pay fees and expenses incurred in connection
therewith, (ii) after the Initial Borrowing Date, for the general
corporate and working capital purposes of the Borrower and its
Subsidiaries and (iii) on and after Additional D Term Loan Borrowing
Date, to finance, in part, the Instromedix Acquisition.
12. Section 8.01(b) of the Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (iii) appearing
therein and inserting a comma in lieu thereof and (ii) inserting the text ",
(v) the issuance of the Instromedix Seller Note to the extent permitted by
8.04(r) and (vi) the issuance of the Discount Notes to the extent permitted
by Amendment No. 4 and Consent" immediately following existing clause (iv)
thereof.
13. Notwithstanding anything to the contrary contained in Section
8.02 or 8.05 of the Credit Agreement, the Banks hereby agree that the
Borrower may consummate the Instromedix Acquisition as contemplated above so
long as immediately, and in no event later than two Business Days following
the Instromedix Acquisition the Acquisition Subsidiary (and
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each of its Domestic Subsidiaries) is merged with and into the Borrower with
the Borrower being the survivor of such merger.
14. Section 8.03 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (p) thereof and
inserting a semicolon in lieu thereof, (ii) deleting the period appearing at
the end of clause (q) thereof and inserting the text "; and" in lieu thereof
and (iii) inserting the following new clause (r) immediately following
existing clause (q) thereof:
"(r) in the event the Discount Notes are issued prior to the
consummation of the Instromedix Acquisition, Liens on the cash proceeds
yielded from the issuance of the Discount Notes in favor of the trustee
in respect of the Discount Notes, PROVIDED that such Liens shall be
terminated upon the earlier of (x) the date on which the Instromedix
Acquisition is consummated and (y) the Discount Notes Escrow End Date."
15. Notwithstanding anything to the contrary contained in Section
8.04 of the Credit Agreement, the Banks hereby agree that Holdings may issue
the Discount Notes, PROVIDED, that (A) the Discount Notes (i) shall yield
gross cash proceeds of at least $50,000,000 but no more than $110,000,000,
(ii) shall not be secured or guaranteed or otherwise supported in any way by
the Borrower or any of its Subsidiaries, (iii) shall not mature or be subject
to any mandatory amortization or sinking fund requirement earlier than August
1, 2006, (iv) shall not require cash payments of interest earlier than August
1, 2003 and (v) shall have terms and conditions otherwise reasonably
satisfactory to the Agents and (B) in the event that the Borrower has
utilized proceeds of Revolving Loans to pay a portion of the purchase price
for the Instromedix Acquisition, an amount equal to the greater of (I)
$20,000,000 and (II) an amount equal to the remainder of (x) the net cash
proceeds generated from the issuance of the Discount Notes LESS (y) the
amount of such proceeds applied to repay outstanding Indebtedness under the
Instromedix Seller Note or repurchase any outstanding Picower PIK Preferred
Stock shall, on the date such cash proceeds are generated, be contributed to
the Borrower and, in turn, applied by the Borrower as a repayment of then
outstanding Revolving Loans incurred under the Credit Agreement.
16. Section 8.04 of the Credit Agreement is hereby amended by (i)
deleting the text "and" appearing at the end of clause (p) thereof, (ii)
deleting the period at the end of clause (q) thereof and inserting the text
"; and" in lieu thereof and (iii) inserting the following new clause (r)
immediately following existing clause (q) thereof:
"(r) Indebtedness of Holdings under the Instromedix Seller Note in
an aggregate principal amount not to exceed $26,000,000, PROVIDED that
Holdings shall repay all outstanding amounts under such Instromedix
Seller Note on or prior to the Final Payment Date under, and as defined
in, the Instromedix Acquisition Agreement and only with the cash
proceeds received by Holdings from the issuance of (x) the Discount
Notes or (y) the Picower PIK Preferred Stock".
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17. Notwithstanding anything to the contrary contained in Section
8.05 of the Credit Agreement, the Banks hereby agree that Holdings and the
Borrower may effect the Contribution.
18. Section 8.06 of the Credit Agreement is hereby amended by (i)
deleting the text "and" appearing at the end of clause (vii) thereof, (ii)
deleting the period appearing at the end of clause (viii) thereof and
inserting a semicolon in lieu thereof and (iii) inserting the following new
clauses (ix) through (xii) immediately following existing clause (viii)
thereof:
(ix) in the event Holdings issues the Picower PIK Preferred Stock,
Holdings may repurchase same so long as any such repurchases are made
with the cash proceeds received by Holdings from the issuance of the
Discount Notes;
(x) in the event Holdings issues the Picower PIK Preferred Stock,
Holdings may pay regularly scheduled Dividends on such Picower PIK
Preferred Stock pursuant to the terms thereof solely through the
issuance of additional shares of Picower PIK Preferred Stock;
(xi) so long as no Default or Event of Default then exists, after
August 1, 2003, the Borrower may pay cash Dividends to Holdings, so long
as the proceeds thereof are promptly used by Holdings to pay regularly
scheduled interest (when and as due and payable) on the Discount Notes;
and
(xii) so long as no Default or Event of Default then exists, in
the event that the Discount Notes are issued prior to the Instromedix
Acquisition and the Instromedix Acquisition shall not have been
consummated prior to the Discount Notes Escrow End Date, the Borrower
may pay cash Dividends to Holdings in an amount equal to the aggregate
amount of cash required to be paid in order to redeem the Discount Notes
pursuant to the Discount Notes Escrow Arrangements less the aggregate
amount of the proceeds yielded from the issuance of the Discount Notes
held in escrow pursuant to the Discount Notes Escrow Arrangements."
19. Section 8.08(a) of the Credit Agreement is hereby amended by
deleting the table appearing therein in its entirety and inserting the
following table in lieu thereof:
Fiscal Year Ending Amount
------------------ ------
December 31, 1998 $33,000,000
December 31, 1999 $35,000,000
December 31, 2000 and thereafter $30,000,000
20. Section 8.15 of the Credit Agreement is hereby amended by (i)
deleting the word "or" appearing at the end of clause (iv) thereof, (ii)
deleting the period appearing at the
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end of clause (v) thereof and inserting a semicolon in lieu thereof and (iii)
inserting the following new clauses (vi) and (vii) immediately following
existing clause (v) thereof:
"(vi) after the issuance of the Discount Notes, make (or give
any notice in respect of) any voluntary or optional payment or
prepayment on or redemption or acquisition for value of (including,
without limitation, by way of depositing with the trustee with respect
thereto or any other Person money or securities before due for the
purpose of paying when due) any Discount Notes, PROVIDED that (i) the
Series B Discount Notes may be issued in exchange for the Series A
Discount Notes in accordance with the terms of the Discount Note
Indenture and (ii) in the event that the Discount Notes are issued prior
to the Instromedix Acquisition and the Instromedix Acquisition shall not
have been consummated on or prior to Discount Notes Escrow End Date,
Holdings may redeem the Discount Notes with the cash proceeds held in
escrow pursuant to the Discount Notes Escrow Arrangements and the
Dividends paid by the Borrower pursuant to Section 8.06(xii); or
(vii) amend or modify, or permit the amendment or modification
of, any provision of any Discount Note Document".
21. Notwithstanding anything to the contrary contained in Section
8.17 of the Credit Agreement, the Banks hereby agree that the Borrower may
create the Acquisition Subsidiary in order to consummate the Instromedix
Acquisition, and the Acquisition Subsidiary shall not be required to execute
the Pledge Agreement, the Security Agreement and the Subsidiary Guaranty,
PROVIDED that immediately, and in no event no later than two Business Days,
following the consummation of the Instromedix Acquisition, the Acquisition
Subsidiary (and each of its Domestic Subsidiaries) shall be merged with and
into the Borrower with the Borrower being the survivor of each such merger.
22. The definition of "Commitment" appearing in Section 10 of the
Credit Agreement is hereby amended by inserting the text ", Additional D Term
Loan Commitment" immediately following the text "D Term Loan Commitment".
23. The definition of "Consolidated EBITDA" appearing in Section
10 of the Credit Agreement is hereby amended by deleting said definition in
its entirety and inserting the new definition of "Consolidated EBITDA" in
lieu thereof:
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT
adjusted by adding thereto (i) the amount of all depreciation expense
and amortization expense and other non-cash charges that were deducted
in determining Consolidated EBIT for such period and (ii) the amount of
all integration costs incurred by the Borrower in connection with the
Instromedix Acquisition, the Genie Acquisition and the Niki Acquisition,
in each case to the extent same were deducted in determining
Consolidated EBIT, PROVIDED that in no event shall the amount of such
integration costs added to Consolidated EBITDA pursuant to this
definition exceed $7,200,000.
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24. The definition of "Consolidated Net Income" appearing in
Section 10 of the Credit Agreement is hereby amended by (i) inserting the
text "(x)" immediately following the clause "Consolidated Net Income for any
period" appearing in the last sentence thereof and (ii) inserting the
following text immediately prior to the period appearing at the end of the
last sentence thereof:
"and (y) for purposes of calculating Consolidated Net Income for
any period, Consolidated Net Income shall be adjusted for factually
supportable and identifiable pro forma cost savings for such period
determined in accordance with GAAP and concurred in by the Borrower's
independent accountants that are directly attributable to the
acquisition of an Acquired Entity or Business pursuant to a Permitted
Acquisition".
25. The definition of "D Term Loan" appearing in Section 10 of the
Credit Agreement is hereby amended by deleting the reference to "Section
1.01(A)(d)" appearing therein and inserting in lieu thereof the reference to
"Section 1.01(A)(d)(1).".
26. The definition of "Facility" appearing in Section 10 of the
Credit Agreement is hereby amended by inserting the following text at the end
thereof:
", it being understood that all D Term Loans made pursuant to the
Total Additional D Term Loan Commitment, as well as D Term Loans
originally made pursuant to the Total D Term Loan Commitment, shall be
part of the same Facility."
27. Section 10 of the Credit Agreement is hereby amended by
inserting the following new definitions in alphabetical order:
"Additional D Term Loan Borrowing Date" shall mean the date on
which the Acquisition is consummated and additional D Term Loans are
incurred pursuant to Section 1.01(A)(d)(2) to finance, in part, the
Instromedix Acquisition.
"Additional D Term Loan Commitment" shall mean, with respect to
each Bank, the amount set forth opposite such Bank's name in Annex I
directly below the column entitled "Additional D Term Loan Commitment,"
as the same may be terminated pursuant to Sections 3.03 and/or 9.
"Amendment No. 4 and Consent" shall mean Amendment No. 4 and
Consent to this Agreement, dated as of July 2, 1998.
"Discount Note Documents" shall mean and include each of the
documents and other agreements to be entered into (including, without
limitation, the Discount Note Indenture) relating to the issuance by
Holdings of the Discount Notes, as the same may be modified,
supplemented or amended from time to time pursuant to the terms hereof
and thereof.
"Discount Note Indenture" shall mean the indenture to be entered
into by and between Holdings and the trustee with respect to the
Discount Notes, as the same may be
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modified, supplemented or amended from time to time in accordance with
the terms hereof and thereof.
"Discount Notes" shall mean the Series A Discount Notes and any
Series B Discount Notes issued in exchange therefor in accordance with
the terms of the Discount Note Indenture.
"Discount Notes Escrow Arrangements" shall mean the escrow
arrangements, in form and substance satisfactory to the Agents, in
respect of the cash proceeds yielded from the issuance of the Discount
Notes to be made with the trustee in respect of the Discount Notes.
"Discount Notes Escrow End Date" shall mean the date on which
Holdings may be required to redeem all then outstanding Discount Notes
in accordance with the terms of the Discount Notes Escrow Arrangements.
"Genie Acquisition" shall mean the previously consummated
acquisition by the Borrower of all or substantially all of the assets of
Patient Solutions, Inc.
"Instromedix" shall mean Instromedix, Inc., an Oregon corporation.
"Instromedix Acquisition" shall mean the acquisition by the
Borrower of all of the issued and outstanding shares of capital stock of
Instromedix in accordance with the terms of Amendment No. 4 and Consent.
"Instromedix Acquisition Agreement" shall mean that certain
Agreement and Plan of Merger, dated as of June 24, 1998, among Holdings,
the Borrower, Xxxxxxx X. and Xxxxxxx X. Xxxxxx, Instromedix and the
shareholders of Instromedix.
"Instromedix Seller Note" shall mean one or more unsecured
promissory notes in an aggregate principal amount not to exceed
$26,000,000 issued by Holdings in connection with the Instromedix
Acquisition and on terms and conditions satisfactory to the Agents.
"Niki Acquisition" shall mean the previously consummated
acquisition by the Borrower of the assets of Caesarea Medical
Electronics, Ltd. representing the "Niki" infusion pump.
"Picower PIK Preferred Stock" shall mean pay-in-kind preferred
stock issued by Holdings to Picower which shall (i) generate an amount
of net cash proceeds equal to an amount sufficient to satisfy the
Instromedix Seller Note, (ii) have an aggregate liquidation preference
of no greater than an amount equal to the sum of (x) the gross cash
proceeds generated from the issuance thereof and (y) the Dollar value of
any Dividends accrued in respect thereof and (iii) have such other terms
and conditions satisfactory to the Agents.
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"Series A Discount Notes" shall mean the Discount Notes initially
issued (i) to repay any outstanding Indebtedness under the Instromedix
Seller Note or repurchase any outstanding Picower PIK Preferred Stock, (ii)
to the extent that the Borrower has utilized proceeds of Revolving Loans to
pay a portion of the purchase price for the Instromedix Acquisition, to
repay then outstanding Revolving Loans incurred hereunder in an amount
equal to the greater of (A) $20,000,000 and (B) an amount equal to the
remainder of (A) the net cash proceeds generated from the issuance of the
Discount Notes LESS (B) the amount of such proceeds applied to repay
outstanding Indebtedness under the Instromedix Seller Note or repurchase
any outstanding Picower PIK Preferred Stock and (iii) for the general
corporate and working capital purposes of the Borrower and its
Subsidiaries, as the same may be modified, supplemented or amended from
time to time pursuant to the terms hereof and thereof.
"Series B Discount Notes" shall mean any Discount Notes issued in
exchange for Series A Discount Notes, in the form to be set forth in the
Discount Note Indenture, as such Series B Discount Notes may be modified,
supplemented or amended from time to time, pursuant to the terms hereof and
thereof.
"Total Additional D Term Loan Commitment" shall mean the sum of the
Additional D Term Loan Commitments of each of the Banks.
28. Section 12.07(a) of the Credit Agreement is hereby deleted in its
entirety and the following new Section 12.07(a) is inserted in lieu thereof:
"(a) The financial statements to be furnished to the Banks pursuant
hereto shall be made and prepared in accordance with GAAP consistently
applied throughout the periods involved (except as set forth in the notes
thereto or as otherwise disclosed in writing by Holdings or the Borrower to
the Banks); PROVIDED, that except as otherwise specifically provided
therein, all computations determining compliance with Sections 4.02 and 8,
including definitions used herein, shall utilize accounting principles and
policies in effect at the time of the preparation of, and in conformity
with those used to prepare, the December 31, 1995 financial statements
delivered to the Banks pursuant to Section 6.10(b) and (c), but shall not
give effect to purchase accounting adjustments (i) required or permitted by
APB 16 and its interpretations (including non-cash write-ups and non-cash
charges relating to inventory, fixed assets and in-process research and
development, in each case arising in connection with the Instromedix
Acquisition, the Genie Acquisition, the Niki Acquisition and any Permitted
Acquisitions consummated after the Consent Effective Date) and APB 17 and
its interpretations (including non-cash charges relating to intangibles and
goodwill arising in connection with the Instromedix Acquisition, the Genie
Acquisition, the Niki Acquisition and any Permitted Acquisitions
consummated after the Consent Effective Date) or (ii) otherwise required or
permitted under GAAP.
29. The Banks hereby agree that in the event the Discount Notes
are issued prior to the consummation of the Instromedix Acquisition, the net
cash proceeds yielded from the
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issuance thereof may be held in escrow by the trustee in respect of such
Discount Notes pursuant to, and in accordance with, documentation
satisfactory to the Agents until such time as the Instromedix Acquisition is
consummated or the Discount Notes are redeemed in accordance with Section
8.15 of the Credit Agreement.
30. The Banks hereby agree that on the Additional D Term Loan
Borrowing Date, the Total Revolving Loan Commitment shall be increased by
$10,000,000. In connection with such increase, the Banks hereby agree that,
notwithstanding anything to the contrary contained in the Credit Agreement,
the Borrower and the Administrative Agent may take all such actions as may be
necessary to ensure that all Banks with Revolving Loan Commitments
participate in each Borrowing of outstanding Revolving Loans (after giving
effect to the increase in the Revolving Loan Commitment on the Consent
Effective Date) on a PRO RATA basis (including by having any Revolving Loans
incurred on the Additional D Term Loan Borrowing Date spread out over the
then outstanding Borrowings of Revolving Loans on a PRO RATA basis even
though as a result thereof such new Revolving Loans may effectively have a
shorter Interest Period than the existing Revolving Loans), and it is hereby
agreed that (x) to the extent any existing Borrowings of Revolving Loans that
are maintained as Eurodollar Loans are broken as a result thereof, any
breakage costs of the type described in Section 1.11 of the Credit Agreement
incurred by such Banks in connection therewith shall be for the account of
the Borrower and (y) to the extent the Revolving Loans that are incurred on
the Additional D Term Loan Borrowing Date are spread out over the then
outstanding Borrowings of Revolving Loans, the Banks that have made such
additional Revolving Loans shall be entitled to receive an effective interest
rate on such additional Revolving Loans as is equal to the Eurodollar Rate as
in effect two Business Days prior to the incurrence of such additional
Revolving Loans plus the then Applicable Eurodollar Margin.
31. In connection with the incurrence of D Term Loans pursuant to
Section 1.01(A)(d)(2) of the Credit Agreement, the Banks hereby agree that,
notwithstanding anything to the contrary contained in the Credit Agreement,
the Borrower and the Administrative Agent may take all such actions as may be
necessary to ensure that all Banks with outstanding D Term Loans participate
in each Borrowing of outstanding D Term Loans (after giving effect to the
incurrence of D Term Loans pursuant to such Section 1.01(A)(d)(2)) on a PRO
RATA basis (including by having the D Term Loans incurred pursuant to such
Section 1.01(A)(d)(2) spread out over the then outstanding Borrowings of D
Term Loans on a PRO RATA basis even though as a result thereof such new D
Term Loans may effectively have a shorter Interest Period than the existing D
Term Loans), and it is hereby agreed that (x) to the extent any existing
Borrowings of D Term Loans that are maintained as Eurodollar Loans are broken
as a result thereof, any breakage costs of the type described in Section 1.11
of the Credit Agreement incurred by such Banks in connection therewith shall
be for the account of the Borrower or (y) to the extent the D Term Loans that
are incurred pursuant to Section 1.01(A)(d)(2) of the Credit Agreement are
spread out over the then outstanding Borrowings of D Term Loans, the Banks
that have made such additional D Term Loans shall be entitled to receive an
effective interest rate on such additional D Term Loans as is equal to the
Eurodollar Rate as in effect two Business Days prior to the incurrence of
such additional D Term Loans plus the then Applicable Eurodollar Margin.
-12-
32. Annex I of the Credit Agreement is hereby amended by (i)
inserting therein the new column entitled "Additional D Term Loan Commitment"
as set forth on Annex I attached hereto and (ii) deleting the information set
forth below the column entitled "Revolving Loan Commitment" appearing therein
and inserting in lieu thereof the information set forth below the column
entitled "Revolving Loan Commitment" appearing in Annex I attached hereto.
33. The Borrower hereby agrees that, on or after the Consent
Effective Date and upon the reasonable request of the Collateral Agent, such
Credit Party will execute such amendments to the Mortgages as the Collateral
Agent shall reasonably require in connection with the transactions
contemplated by this Amendment.
34. The Borrower agrees that on or promptly after the Consent
Effective Date, and at its own expense, it will issue (x) new D Term Notes to
those Banks listed on Annex I hereto with Additional D Term Loan Commitments,
which D Term Notes shall be in conformity with the requirements of Section
1.05(e) of the Credit Agreement as amended hereby and (y) new Revolving Notes
to those Banks listed on Annex I hereto with increased Revolving Loan
Commitments, which Revolving Notes shall be in conformity with the
requirements of Section 1.05(f) of the Credit Agreement.
35. In order to induce the Agents and the Banks to enter into this
Consent, the Borrower hereby represents and warrants that (i) no Default or
Event of Default exists on the Consent Effective Date both before and after
giving effect to this Consent and (ii) all of the representations and
warranties contained in the Credit Agreement and the other Credit Documents
shall be true and correct in all material respects on the date hereof and on
the Consent Effective Date with the same effect as though such
representations and warranties had been made on and as of such date (it being
understood that any representation or warranty made as of a specific date
shall be true and correct in all material respects as of such specific date).
36. This Consent is limited as specified and shall not constitute
a modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
37. This Consent may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with Holdings, the Borrower and the Agents.
38. THIS CONSENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK.
-13-
39. This Consent shall become effective on the date hereof on the
date ("Consent Effective Date") when each of the following conditions have
been met:
a. Each of Holdings, the Borrower, the Agents, the Required Banks,
each Bank with an Additional D Term Loan Commitment and each Bank whose
Revolving Loan Commitment is being increased pursuant to this Consent shall
have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of telecopier) the
same to the Administrative Agent at the Notice Office;
b. The Administrative Agent shall have received from Xxxxxx Xxxxxx
Butowsky Xxxxxxx Shalov & Xxxx, counsel to the Borrower, an opinion
addressed to the Agents and each of the Banks and dated the Consent
Effective Date in form and substance satisfactory to the Agents, and
covering such matters incident to this Consent and the transactions
contemplated herein (including the matters set forth in clause (d) below
and matters relating to the Instromedix Acquisition) as the Agents may
reasonably request;
c. The Administrative Agent shall have received resolutions of the
Board of Directors of each of Holdings and the Borrower, which resolutions
shall be certified by the Secretary or any Assistant Secretary of such
Credit Party and shall authorize the execution, delivery and performance by
such Credit Party of this Consent and the consummation of the transactions
contemplated hereby, and the foregoing shall be acceptable to the
Administrative Agent in its reasonable discretion; and
d. The Administrative Agent shall have received a certificate, dated
the Consent Effective Date, signed by the chief financial officer of the
Borrower, in form and substance satisfactory to the Administrative Agent,
demonstrating in reasonable detail that an aggregate amount of (x) an
additional $30,000,000 of D Term Loans and (y) an additional $10,000,000 of
Revolving Loans may be incurred by the Borrower under the Credit Agreement
in compliance with the provisions of the Senior Subordinated Note
Indenture.
* * *
-14-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Consent to be duly executed and delivered as of the date
first above written.
ALARIS MEDICAL, INC.
(formerly named Advanced Medical, Inc.)
By
---------------------------------------------
Name:
Title:
ALARIS MEDICAL SYSTEMS, INC.
(formerly named IVAC Holdings, Inc.)
By
---------------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By
---------------------------------------------
Name:
Title:
BANQUE PARIBAS,
Individually and as Documentation Agent
By
---------------------------------------------
Name:
Title:
By
---------------------------------------------
Name:
Title:
PARIBAS CAPITAL FUNDING
By
---------------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By
---------------------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By
---------------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By
---------------------------------------------
Name:
Title:
IBJ XXXXXXXX BANK & TRUST COMPANY
By
---------------------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By
---------------------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By
---------------------------------------------
Name:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
By
---------------------------------------------
Name:
Title:
ML CBO IV (Cayman) Ltd.
By: Highland Capital Management L.P.
as Collateral Manager
By
---------------------------------------------
Name:
Title:
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as attorney in fact, on
behalf of Xxxxxxx National Life Insurance
Company
By
---------------------------------------------
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company, its Investment
Manager
By
---------------------------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY
By
---------------------------------------------
Name:
Title:
By
---------------------------------------------
Name:
Title:
METROPOLITAN LIFE INSURANCE COMPANY
By
---------------------------------------------
Name:
Title:
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of The Chase Manhattan Bank)
By
---------------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital, as Portfolio Advisor
By
---------------------------------------------
Name:
Title:
AMARA-1 FINANCE LTD.
By
---------------------------------------------
Name:
Title:
AMARA-2 FINANCE LTD.
By
---------------------------------------------
Name:
Title:
PRIME INCOME TRUST
By
---------------------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By
---------------------------------------------
Name:
Title:
COMMERCIAL LOAN FUNDING TRUST I
By
---------------------------------------------
Name:
Title:
PamCo Cayman Ltd.
By: Highland Capital Management L.P.
as Collateral Manager
By
---------------------------------------------
Name:
Title:
ANNEX I
-------
COMMITMENTS
-----------
---------------------------------------------------------------------------------
Additional D Term Revolving Loan
Bank Loan Commitment Commitment
---------------------------------------------------------------------------------
Bankers Trust Company $30,000,000 $25,800,000
---------------------------------------------------------------------------------
Banque Paribas $9,000,000
---------------------------------------------------------------------------------
General Electrical Capital Corporation $7,200,000
---------------------------------------------------------------------------------
IBJ Xxxxxxxx Bank & Trust Company $4,000,000
---------------------------------------------------------------------------------
Pilgrim American Prime Rate Trust
---------------------------------------------------------------------------------
Xxxxxxx Xxxxx Senior Floating Rate Fund,
Inc.
---------------------------------------------------------------------------------
Xxxxxxx National Life Insurance Company
(By PPM America, Inc., as attorney in
fact)
---------------------------------------------------------------------------------
Crescent/Mach I Partners, L.P. (By TCW
Asset Management Company its Investment
Manager)
---------------------------------------------------------------------------------
AllState Life Insurance Company
---------------------------------------------------------------------------------
Octogon Credit Investors Loan Portfolio
(a unit of The Chase Manhattan Bank)
---------------------------------------------------------------------------------
Commercial Loan Funding Trust I
---------------------------------------------------------------------------------
Prime Income Trust
---------------------------------------------------------------------------------
Senior Debt Portfolio (By Boston
Management and Research, as Investment
Advisor)
---------------------------------------------------------------------------------
Metropolitan Life Insurance Company
---------------------------------------------------------------------------------
ML CBO IV (Cayman) Ltd. (By Protective
Asset Management Company, as Collateral
Manager)
---------------------------------------------------------------------------------
Indosuez Capital Funding III, Limited (By
Indosuez Capital, as Portfolio Advisor)
---------------------------------------------------------------------------------
PAMCO Cayman Ltd. (By Protective Asset $2,000,000
Management Company, as Collateral Agent)
---------------------------------------------------------------------------------
Paribas Capital Funding
---------------------------------------------------------------------------------
Union Bank of California, N.A. $4,000,000
---------------------------------------------------------------------------------
U.S. Bank National Association $4,000,000
---------------------------------------------------------------------------------
AMARA-1
---------------------------------------------------------------------------------
AMARA-2
---------------------------------------------------------------------------------
Total: $30,000,000 $60,000,000
---------------------------------------------------------------------------------
