THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.8
THIRD
AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of December 1, 2006, by and between
DIONEX CORPORATION, a Delaware corporation
(“Borrower”), and XXXXX FARGO BANK, NATIONAL
ASSOCIATION (“Bank”).
RECITALS
WHEREAS, Borrower is currently indebted to Bank pursuant to the
terms and conditions of that certain Credit Agreement between
Borrower and Bank dated as of November 13, 2000, as amended
from time to time (“Credit Agreement”).
WHEREAS, Bank and Borrower have agreed to certain changes in the
terms and conditions set forth in the Credit Agreement and have
agreed to amend the Credit Agreement to reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree that the Credit Agreement shall be amended as follows:
1. The first paragraph on page 1 of the Agreement is
hereby deleted in its entirety, and the following substituted
therefor:
“THIS AGREEMENT is entered into as of November 13,
2000, by and between DIONEX CORPORATION, a Delaware corporation
(“Borrower”), and XXXXX FARGO BANK, NATIONAL
ASSOCIATION (“Bank”).”
2. Section 1.1(a) is hereby amended by deleting
“December 31, 2006” as the last day on which Bank
will make advances under the Line of Credit, and by substituting
for said date “December 31, 2009,” with such
change to be effective upon the execution and delivery to Bank
of a promissory note dated as of December 1, 2006 (which
promissory note shall replace and be deemed the Line of Credit
Note defined in and made pursuant to the Credit Agreement) and
all other contracts, instruments and documents required by Bank
to evidence such change.
3. The following is hereby added to the Credit Agreement as
Section 1.4:
“SECTION 1.4. COLLECTION OF
PAYMENTS. Borrower authorizes Bank to collect all
interest and fees due under the Line of Credit by charging
Borrower’s deposit account number 4496-876350 with
Bank, or any other deposit account maintained by Borrower with
Bank, for the full amount thereof. Should there be insufficient
funds in any such deposit account to pay all such sums when due,
the full amount of such deficiency shall be immediately due and
payable by Borrower.”
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| 4. | Section 2.1 is hereby deleted in its entirety, and the following substituted therefor: |
“SECTION 2.1. LEGAL STATUS. Borrower
is a corporation, duly organized and existing and in good
standing under the laws of the State of Delaware, and is
qualified or licensed to do business (and is in good standing as
a foreign corporation, if applicable) in all jurisdictions in
which such qualification or licensing is required or in which
the failure to so qualify or to be so licensed could have a
material adverse effect on Borrower.”
| 5. | Section 5.6 is hereby deleted in its entirety, and the following substituted therefor: |
“SECTION 5.6. ACQUISITIONS AND
MERGERS. Acquire (i) all or substantially all of
the assets of, or (ii) any equity securities in, any other
entity, or merge into or consolidate with any other entity,
without the prior written consent of Bank if the aggregate
consideration to be paid by Borrower (whether in cash, stock or
otherwise) in connection with any such acquisition or merger (or
series of related acquisitions and/or mergers) exceeds
$50,000,000.00, provided however, that (x) Borrower shall
be the surviving entity in any merger or consolidation,
(y) each entity whose assets or equity securities are
acquired by Borrower, or which merges into or consolidates with
Borrower, shall be engaged, at the time of the applicable
transaction, in substantially the same business as Borrower, and
(c) the consent of Bank, when required hereunder, shall not
be unreasonably withheld or delayed.”
6. Except as specifically provided herein, all terms
and conditions of the Credit Agreement remain in full force and
effect, without waiver or modification. All terms defined in the
Credit Agreement shall have the same meaning when used in this
Amendment. This Amendment and the Credit Agreement shall be read
together, as one document.
7. Borrower hereby remakes all representations and
warranties contained in the Credit Agreement and reaffirms all
covenants set forth therein. Borrower further certifies that as
of the date of this Amendment there exists no Event of Default
as defined in the Credit Agreement, nor any condition, act or
event which with the giving of notice or the passage of time or
both would constitute any such Event of Default.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the day and year first written
above.
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DIONEX CORPORATION |
XXXXX FARGO BANK, NATIONAL ASSOCIATION |
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By:
/s/ Xxxxx
XxXxxxxx Xxxxx
XxXxxxxx
Chief Financial Officer |
By:
/s/ Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx
Relationship Officer |
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