SECOND AMENDMENT TO CREDIT AGREEMENT (MULTICURRENCY)
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (MULTICURRENCY)
(the "Amendment"), dated as of January 30, 1998, is entered into by and
between DIONEX CORPORATION (the "Borrower") and BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION (the "Bank").
RECITALS
A. The Borrower and the Bank are parties to a Credit Agreement
(Multicurrency), dated as of February 29, 1996, as amended by a First
Amendment to Credit Agreement (Multicurrency) dated as of December 15, 1997
(the "Credit Agreement"), pursuant to which the Bank has extended certain
credit facilities to the Borrower and certain of its Subsidiaries.
B. The Borrower has requested that the Bank agree to certain amendments of
the Credit Agreement.
C. The Bank is willing to amend the Credit Agreement, subject to the terms
and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement shall be amended at the defined
term "Availability Period" by amending and restating such defined term as
follows:
"'Availability Period': the period commencing on the date of this Agreement
and ending on the date that is the earlier to occur of (a) January 31, 2000,
and (b) the date on which the Bank's commitment to extend credit hereunder
terminates."
(b) Section 1.01 of the Credit Agreement shall be amended at the defined
term "Final Maturity Date" by amending and restating such defined term as
follows:
"'Final Maturity Date': (a) in respect of any Advances, January 31, 2000;
(b)in respect of any commercial letters of credit, July 31, 2000; and
(c) in respect of any standby letters of credit, January 31, 2001."
(c) Section 1.01 of the Credit Agreement shall be amended at the defined
term "Offshore Rate Interest Period" by amending and restating such defined
term as follows:
"'Offshore Rate Interest Period': for each Offshore Rate Advance the period
commencing on the date the Offshore Rate Advance begins to bear interest at a
rate based on the Offshore Rate and ending one, two, three, six months, or such
other period of less than one month which meets the requirements of subsection
2.02(b)(i)(B) thereafter, as requested by the Borrower and in the case of
periods less than one month approved by the Bank; provided, however, that
the last day of each Offshore Rate Interest Period shall be determined in
accordance with the practices of the applicable offshore interbank markets
as from time to time in effect, and provided further that no such interest
period shall extend beyond the Final Maturity Date."
(d) Section 1.01 of the Credit Agreement shall be amended by adding the
following definition of "Unfriendly Acquisition" immediately after the
definition of "Subsidiary":
"'Unfriendly Acquisition': the acquisition of a corporation or similar
business entity if the acquisition has not been approved by the board of
directors of such entity."
(e) Clause (i) of subsection 2.02(b) shall be amended and restated in its
entirety to read as follows:
"(i) Each Offshore Rate Advance shall be (A) for an amount not less than
$500,000 if the related Offshore Rate Interest Period is one month or longer,
and, (B) if the related Offshore Rate Interest Period is less than one month,
shall be in an amount not less than $500,000 and which, when multiplied by the
number of days in the related Offshore Rate Interest Period, is not less than
$15,000,000."
(f) Section 2.07 of the Credit Agreement shall be amended by deleting the
amount "0.25%" and inserting the amount ".20%" in place thereof.
(g) Section 7.02 of the Credit Agreement shall be amended and restated in
its entirety to read as follows:
"7.02 Acquisitions. The Borrower and its Subsidiaries shall not acquire or
purchase control of, or the assets or business of, or merge with, any other
person, firm, or corporation not affiliated with the Borrower, unless (i) such
person, firm or corporation engages in the same general line of business as the
Borrower, (ii) the Borrower or its Subsidiary is the entity which survives the
transaction, and (iii) the transaction would not result in the breach of any
warranty or covenant hereunder; provided that, the acquisition, merger or
purchasing of control shall not be an Unfriendly Acquisition."
(h) Section 7.08 of the Credit Agreement shall be amended and restated in
its entirety as follows:
"7.08 Tangible Net Worth. The Borrower shall not permit as of the last day
of any fiscal quarter on a consolidated basis its Tangible Net Worth to be
less than $70,000,000 plus (i) 75% of net income after income taxes
(without subtracting losses) earned in each quarterly accounting period
commencing after September 30, 1997, plus (ii) the net proceeds from any
equity securities issued after September 30, 1997, less (iii) 100% of
capital stock repurchases after September 30, 1997, where:
'Tangible Net Worth' means the gross book value of the assets of the
Borrower and its Subsidiaries on a consolidated basis (exclusive of
goodwill, patents, trademarks, trade names, organization expense,
treasury stock, unamortized debt discount and expense, deferred
charges, and other like intangibles) less (a) reserves applicable thereto,
and (b) all liabilities (including accrued and deferred income taxes)."
(i) Section 7.10 of the Credit Agreement shall be amended and restated in
its entirety as follows:
"7.10 Quick Ratio. The Borrower shall not permit as of the last day of any
fiscal quarter on a consolidated basis the sum of cash, short-term cash
investments, marketable securities not classified as long-term investments
and accounts receivable to be less than 1.25 times current liabilities,
including the dollar or Equivalent Amount of all outstanding Advances and
of the L/C Outstanding Amount."
3. Representations and Warranties. The Borrower hereby represents and
warrants to the Bank as follows:
(a) No Event of Default or event which, with the giving of notice or
passage of time or both, would be an Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by all necessary corporate and other
action and do not and will not require any registration with, consent or
approval of, notice to or action by, any person (including any governmental
authority) in order to be effective and enforceable. The Credit Agreement
as amended by this Amendment constitutes the legal, valid and binding
obligations of the Borrower, enforceable against it in accordance with its
respective terms, without defense, counterclaim or offset.
(c) All representations and warranties of the Borrower contained in the
Credit Agreement are true and correct.
(d) The Borrower is entering into this Amendment on the basis of its own
investigation and for its own reasons, without reliance upon the Bank or any
other person.
4. Effective Date. This Second Amendment will become effective as of the date
first above written (the "Effective Date"), provided that each of the following
conditions precedent has been satisfied:
(a) The Bank has received from the Borrower a duly executed original (or,
if elected by the Bank, an executed facsimile copy) of this Amendment; and
(b) The Bank has received from the Borrower a copy of a resolution passed
by the board of directors of such corporation, certified by the Secretary or
an Assistant Secretary of such corporation as being in full force and effect
on the date hereof, authorizing the execution, delivery and performance of
this Amendment.
5. Reservation of Rights. The Borrower acknowledges and agrees that the
execution and delivery by the Bank of this Amendment shall not be deemed to
create a course of dealing or otherwise obligate the Bank to forbear or
execute similar amendments under the same or similar circumstances in the
future.
6. Reaffirmation of Guaranty. The Borrower, to the extent it has issued
any one or more guaranties of the obligations of any Subsidiaries pursuant
to the Credit Agreement, and in its capacity as guarantor thereunder,
reaffirms and agrees that its obligations under such guaranties are in full
force and effect, without defense, offset or counterclaim.
7. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and provisions
of the Credit Agreement are and shall remain in full force and effect and all
references therein to such Credit Agreement shall henceforth refer to the
Credit Agreement as amended by this Amendment. This Amendment shall be
deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns. No
third party beneficiaries are intended in connection with this Amendment.
(c) This Amendment shall be governed by and construed in accordance with the
law of the State of California.
(d) This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an
executed original or an executed original sent by facsimile transmission to be
followed promptly by mailing of a hard copy original, and that receipt by the
Bank of a facsimile transmitted document purportedly bearing the signature of
the Borrower shall bind the Borrower with the same force and effect as the
delivery of a hard copy original. Any failure by the Bank to receive the
hard copy executed original of such document shall not diminish the binding
effect of receipt of the facsimile transmitted executed original of such
document which hard copy page was not received by the Bank.
(e) This Amendment, together with the Credit Agreement, contains the entire
and exclusive agreement of the parties hereto with reference to the matters
discussed herein and therein. This Amendment supersedes all prior drafts
and communications with respect thereto. This Amendment may not be amended
except in writing executed by the Borrower and the Bank.
(f) If any term or provision of this Amendment shall be deemed prohibited by
or invalid under any applicable law, such provision shall be invalidated
without affecting the remaining provisions of this Amendment or the Credit
Agreement, respectively.
(g) Borrower covenants to pay to or reimburse the Bank, upon demand, for all
costs and expenses (including allocated costs of in-house counsel) incurred in
connection with the development, preparation, negotiation, execution and
delivery of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
DIONEX CORPORATION
By: \s\Xxxxxxx Xxxx
Typed Name: Xxxxxxx Xxxx
Title: Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: \s\Xxxxx X. Xxxxxxx
Typed Name: Xxxxx X.Xxxxxxx
Title: Vice President
129500.02 5
