FOURTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT
FOURTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT (this
"Amendment"), dated as of March 22, 1998, among DADE BEHRING HOLDING,
INC. ("Holdings"), DADE BEHRING INC. (the "Borrower"), the financial
institutions party to the Credit Agreement referred to below (the
"Banks") and BANKERS TRUST COMPANY, as Agent (the "Agent") for the
Banks. All capitalized terms used herein and not otherwise defined
shall have the respective meanings provided such terms in the Credit
Agreement.
W I T N E S S E T H:
WHEREAS, Holdings, the Borrower, the Banks and the Agent are
parties to a Credit Agreement, dated as of May 7, 1996 and amended and
restated as of April 29, 1997 (as amended, modified, restated or
supplemented to the date hereof, the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement and
grant a waiver, in each case as herein provided;
NOW, THEREFORE, it is agreed:
1. Amendment and Waiver to Credit Agreement.
1. The definition of "Vendor Financing Program" appearing
in Section 10 of the Credit Agreement is hereby amended by inserting the
following text immediately after the text "or in connection with
which" appearing in said definition:
"(w)(i) the Borrower and/or such Subsidiary leases instruments to
third party customers of the Borrower and/or such Subsidiary and
(ii) the Borrower and/or such Subsidiary sells or otherwise
transfers the accounts receivable related to the lease of the
instrument (together with the instrument that is the subject of the
lease) to such financial institution,".
2. The Banks hereby waive any Default or Event of Default
that may have arisen under the Credit Agreement prior to the Fourth
Amendment Effective Date (as defined below) solely as a result of (x)
any actions taken by the Borrower and its Subsidiaries in connection
with the Vendor Financing Program as described in clause (w) of the
definition of Vendor Financing Program (as amended by this Amendment)
and (y) the payment of any Dividend as described in clause (x) of
Section 8.07 of the Credit Agreement (as amended by this Amendment).
3. Section 8.07 of the Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (viii) of
said Section, (ii) deleting the period at the end of clause (ix) of said
Section and inserting the text "; and" in lieu thereof and (iii)
inserting the following new clause (x) at the end of said Section:
"(x) to the extent that any fees and expenses are permitted
to be paid in connection with the Behring Transaction pursuant to
Sections 8.02 and 8.08, the Borrower may, in lieu of directly
paying such fees and expenses, pay a Dividend to Holdings in an
amount not to exceed the aggregate amount of such fees and expenses
permitted to be paid pursuant to said Sections, so long as all of
the proceeds of any such Dividend are promptly used by Holdings to
pay the fees and expenses otherwise permitted to be paid pursuant
to Sections 8.02 and 8.08, it being understood that any such
Dividend shall be alternative to (and not duplicative of) any fees
and expenses paid (and permitted to be paid) pursuant to Sections
8.02 and 8.08."
II. Miscellaneous Provisions.
1. In order to induce the Banks to enter into this
Amendment, each of Holdings and the Borrower hereby represents and
warrants that:
(a) no Default or Event of Default exists as of the Fourth
Amendment Effective Date after giving effect to this Amendment; and
(b) all of the representations and warranties contained in
the Credit Agreement or the other Credit Documents are true and
correct in all material respects on and as of the Fourth Amendment
Effective Date after giving effect to this Amendment, with the same
effect as though such representations and warranties had been made
on and as of the Fourth Amendment Effective 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).
2. This Amendment 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.
3. This Amendment 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 the Borrower and the Agent.
4. THIS AMENDMENT 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.
5. This Amendment shall become effective on the date (the
"Fourth Amendment Effective Date") when each of Holdings, the Borrower
and the Required Banks shall have signed a counterpart hereof (whether
the same or different counterparts) and shall have delivered (including
by way of facsimile transmission) the same to the Agent at its Notice
Office.
6. From and after the Fourth Amendment Effective Date, all
references in the Credit Agreement and each of the other Credit
Documents to the Credit Agreement shall be deemed to be references to
the Credit Agreement as modified hereby.
* * *
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date
first above written.
DADE BEHRING HOLDINGS, INC.
By/s/
Name: Xxxxx X. Xxxxxx
Title: Vice President & Treasurer
DADE BEHRING INC.
By/s/
Name: Xxxxx X. Xxxxxx
Title: Vice President & Treasurer
BANKERS TRUST COMPANY,
Individually, as Agent
and as Collateral Agent
By/s/
Name: Xxxx Xxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By/s/
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By/s/
Name: Xxxx X. Xxxxxxx
Title: Vice President
BANKBOSTON, N.A.
By/s/
Name: Xxxxx X. Xxxxxx
Title Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By/s/
Name: Xxxxx Xxxxxxxxxxx
Title: Duly Authorized Signatory
SANWA BUSINESS CREDIT
By/s/
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
ABN AMRO BANK N.V., Chicago Branch
By/s/
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
By/s/
Name: Xxxx X. Honda
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By/s/
Name: Xxxxxxxxx X. Xxxxxx
Title: First Vice President
By/s/
Name: Xxxx X. Xxxx
Title: First Vice President
OCTAGON LOAN TRUST
By: Octagon Credit Investors
its Investment Manager
By/s/
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
CITIBANK, N.A.
By
Name:
Title:
CRESCENT/MACH 1 PARTNERS, L.P.
By TCW Assets Management Company
its Investment Manager
By
Name:
Title:
STRATA FUNDING LTD.
By/s/
Name: Xxxx X. Xxxxxxxxx
Title: Director
CERES FINANCE LTD.
By/s/
Name: Xxxx X. Xxxxxxxxx
Title: Director
AERIES FINANCE LTD.
By/s/
Name: Xxxxxx Xxx Xxxxxxx
Title: Director
CAPTIVA FINANCE LTD.
By/s/
Name: Xxxx X. Xxxxxxxxx
Title: Director
CAPTIVA II FINANCE LTD.
By/s/
Name: Xxxx X. Xxxxxxxxx
Title: Director
CITY NATIONAL BANK
By/s/
Name: Xxxxx X. Xxxxxx
Title: Vice President
ROYALTON COMPANY,
By Pacific Investment Management Company,
as its Investment Advisor
By/s/
Name: Xxxxxxx Xxxx
Title: Senior Vice President
FIRST NATIONAL BANK OF CHICAGO
By/s/
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Vice President
FLOATING RATE PORTFOLIO
By: Chancellor LGT - Senior Secured
Management, Inc., as Investment Advisor
By
Name:
Title:
KEYPORT LIFE INSURANCE COMPANY
By
Name:
Title:
DAI-ICHI KANGYO BANK LTD.
By/s/
Name: Xxxxx Xxxxxxxx
Title: Vice President
PRIME INCOME TRUST
By/s/
Name:
Title:
THE FUJI BANK, LIMITED
By/s/
Name: Xxxxx X. Xxxxxxxx
Title: Joint General Manager
XXXXXXX XXXXX
SENIOR FLOATING RATE FUND, INC.
By
Name:
Title:
ML CBO IV (CAYMAN) LTD.
By Protective Asset Management Company,
as Collateral Manager
By/s/
Name:
Title:
NORTHWESTERN MUTUAL LIFE
By
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST,
By: Pilgrim America Investments, Inc.,
as its Investment Manager
By/s/
Name:
Title:
SAKURA BANK LTD.
By/s/
Name: Xxxxxxxx Xxxxxxxx
Title: Joint General Manager
SOCIETE GENERALE
By/s/
Name: Xxxx X. Xxxxx
Title: Director
SOUTHERN PACIFIC BANK
By/s/
Name: Xxxxx Xxxxxxxx
Title: Vice President
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By/s/
Name: Xxxxxxx X. Xxxxxxx
Title: Sr. Vice President & Director
IMPERIAL BANK
By/s/
Name: Xxx Xxxxxxx
Title: Senior Vice President
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management L.P.,
as Its Investment Advisor
By
Name:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
By
Name:
Title:
XXXXXXX XXXXX DEBT STRATEGIES
PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management L.P.
as Investment Advisor
By
Name:
Title:
AG CAPITAL FUNDING PARTNERS L.P.
By Xxxxxx Xxxxxx & Company, L.P.,
as Investment Advisor
By/s/
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
