SECOND AMENDMENT TO CREDIT AGREEMENT
------------------------------------
SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
December 12, 1997, among DADE BEHRING HOLDINGS, INC. ("Holdings"), DADE
INTERNATIONAL 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 as
herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments to Credit Agreement.
------------------------------
1. Section 8.01 of the Credit Agreement is hereby amended by
inserting at the end thereof the following new clause (d):
"(d) Notwithstanding anything to the contrary contained in this
Agreement, the Special Purpose VFP Subsidiary will not engage in any
business other than acquiring instruments, accounts receivable related
thereto and other accounts receivable related to consumable products and
services of the Borrower and its Subsidiaries, and the related transactions
pursuant to the Vendor Financing Program."
2. Section 8.02(dd) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"(dd) the Borrower and any of its Subsidiaries may (x) effect Seeded
Instrument Sales in connection with its Vendor Financing Program and effect
other transactions contemplated by the definition of Vendor Financing
Program and (y) effect Seeded Instrument Transactions in connection with
its Alternate Vendor Financing Program, so long as the aggregate
outstanding amount of Capitalized Lease Obligations of the Borrower and its
Subsidiaries under Seeded Instrument Transactions shall not exceed
$27,000,000 at any time;".
-1-
3. Section 8.02(gg) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"(gg) the Behring Transaction may be effected on or after the First
Amendment Effective Date so long as (i) same is effected in accordance
with the terms of the Behring Transaction Documents, (ii) the aggregate
consideration for such transaction (excluding fees and expenses and
excluding post-closing purchase price adjustments) consists solely of
Holdings Common Stock and warrants to purchase Holdings Common Stock, (iii)
no Change of Control Event results from such transaction and (iv) no
Default or Event of Default then exists or would result therefrom."
4. Section 8.03(r) of the Credit Agreement is hereby amended to read
in its entirety as follows:
"(r) Liens on any interest of the Borrower or any of its Subsidiaries
in the equipment subject to the Vendor Financing Program and Liens on
accounts receivable and other current assets owned by the Special Purpose
VFP Subsidiary, in each case securing the recourse obligations owing to a
financial institution party to the Vendor Financing Program, so long as (x)
such obligations are permitted under Section 8.04)(s) and (y) in the case
of any Lien on any such accounts receivable and/or other current assets,
the aggregate face amount of the accounts receivable and other current
assets subject to such Lien does not exceed an amount equal to 120% of the
outstanding recourse obligations permitted under Section 8.04(s)."
5. Section 8.04 of the Credit Agreement is hereby amended by (a)
deleting the word "and" appearing at the end of clause (v) thereof, (b) deleting
the period appearing at the end of clause (w) thereof and inserting "; and" in
lieu thereof and (c) inserting at the end thereof the following new clause (x):
"(x) Indebtedness of the Special Purpose VFP Subsidiary evidenced by
the VFP Purchase Money Note."
6. Section 8.06 of the Credit Agreement is hereby amended by (a)
deleting the word "and" appearing at the end of clause (x) thereof, (b) deleting
the phrase "in addition to investments permitted by clauses (a) through (x)
above" appearing in clause (y) thereof and inserting in lieu thereof the phrase
"in addition to investments permitted by clauses (a) through (x) above and
clause (z) below", (c) deleting the period appearing at the end of clause (y)
thereof and inserting "; and" in lieu thereof and (d) inserting at the end
thereof the following new clause (z):
"(z) the Borrower and/or one or more of its Subsidiaries may hold one
or more VFP Purchase Money Notes."
7. Section 8.08 of the Credit Agreement is hereby amended by (a)
deleting the word "and" appearing at the end of clause (iv) of the first
sentence thereof and (b)
-2-
inserting at the end of such sentence the following:
"and (vi) the transactions contemplated by the documents governing the
Vendor Financing Program."
8. Section 8.15 of the Credit Agreement is hereby amended by (a)
deleting the word "and" appearing at the end of clause (vii) thereof and
inserting a comma in lieu thereof and (b) inserting at the end thereof the
following:
"and (ix) the documents governing the Vendor Financing Program."
9. Section 10 of the Credit Agreement is hereby amended by deleting
the definition of "Vendor Financing Program" appearing therein in its entirety
and by inserting in lieu thereof the following new definition:
"Vendor Financing Program" shall mean one or more vendor financial
services programs between the Borrower and/or one or more of its
Subsidiaries (including without limitation the Special Purpose VFP
Subsidiary) and a financial institution pursuant to or in connection with
which (x) (i) the Borrower and/or such Subsidiary effects Seeded Instrument
Sales or otherwise sells instruments and the rights related thereto to such
financial institution and (ii) such financial institution leases or sells
the instruments so acquired to third party customers of the Borrower and/or
such Subsidiary, (y) (i) the Borrower and/or one of its operating
Subsidiaries sells or otherwise transfers instruments, accounts receivable
related thereto and other accounts receivable related to consumable
products or services of the Borrower or such Subsidiary to the Special
Purpose VFP Subsidiary, (ii) the Special Purpose VFP Subsidiary effects
Seeded Instrument Sales or otherwise sells instruments and the rights
related thereto to a financial institution and (iii) such financial
institution leases or sells the instruments so acquired to third party
customers of the Borrower or its Subsidiaries, and/or (z) (i) the Borrower
and/or such Subsidiary effects Seeded Instrument Sales or otherwise sells
instruments and the rights related thereto to such financial institution,
(ii) the Borrower and/or such Subsidiary sells or otherwise transfers
accounts receivable related to instruments sold and other accounts
receivable related to consumable products or services of the Borrower or
such Subsidiary to the Special Purpose VFP Subsidiary, (iii) the Special
Purpose VFP Subsidiary sells some or all of such accounts receivable to
such financial institution and (iv) such financial institution leases or
sells the instruments so acquired to third party customers of the Borrower
or its Subsidiaries.
10. Section 10 of the Credit Agreement is hereby amended by inserting
therein in appropriate alphabetical order the following new definitions:
"Special Purpose VFP Subsidiary" shall mean DBI Funding, Inc., a
special purpose bankruptcy remote Subsidiary of the Borrower.
"VFP Purchase Money Note" shall mean one or more purchase money notes
-3-
issued by the Special Purpose VFP Subsidiary to the Borrower and/or one of
its Subsidiaries pursuant to or in connection with the Vendor Financing
Program.
II. Consents and Agreements.
-----------------------
1. Notwithstanding anything to the contrary contained in Sections
7.11 and 8.16 of the Credit Agreement, in the Pledge Agreement or in the First
Amendment, the Banks hereby agree that Holdings and its Subsidiaries shall not
be required to pledge to the Pledgee under the Pledge Agreement the stock of any
Foreign Subsidiary acquired pursuant to the Behring Acquisition and required to
be pledged pursuant to the terms of the Pledge Agreement until April 30, 1998.
2. The Banks hereby agree that (i) so long as the Special Purpose VFP
Subsidiary is in compliance with Section 8.01(d) of the Credit Agreement, the
Banks will not commence any involuntary case against the Special Purpose VFP
Subsidiary under the Bankruptcy Code and (ii) notwithstanding the terms of any
of the Security Documents, neither the Banks nor the Collateral Agent will
attempt to exercise remedies with respect to, or otherwise assert any interest
in, accounts receivable and other current assets held by the Special Purpose VFP
Subsidiary in an aggregate amount equal to 120% of the outstanding recourse
obligations permitted under Section 8.04(s) minus any cash collateral deposited
with any third party securing such recourse obligations (including cash used to
collateralize any letter of credit supporting such recourse obligations).
III. Miscellaneous Provisions.
------------------------
1. In order to induce the Banks to enter into this Amendment, the
Borrower hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Second Amendment
Effective Date, both before and 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 Second Amendment Effective Date, both
before and after giving effect to this Amendment, with the same effect as
though such representations and warranties had been made on and as of the
Second 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 exe-
-4-
cuted 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 "Second
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 Second 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 amended
hereby.
* * *
-5-
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:
Title:
DADE INTERNATIONAL INC.
By /s/
--------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
Individually, as Agent
and as Collateral Agent
By /s/
--------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By /s/
--------------------------------
Name:
Title:
-6-
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By /s/
--------------------------------
Name:
Title:
BANKBOSTON, N. A.
By /s/
--------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/
--------------------------------
Name:
Title:
SANWA BUSINESS CREDIT
By /s/
--------------------------------
Name:
Title:
-7-
ABN AMRO BANK N.V., Chicago Branch
By /s/
--------------------------------
Name:
Title:
By /s/
--------------------------------
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By /s/
--------------------------------
Name:
Title:
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO, a Unit of The Chase
Manhattan Bank
By /s/
--------------------------------
Name:
Title:
CITIBANK, N.A.
By /s/
--------------------------------
Name:
Title:
-8-
CRESCENT/MACH I PARTNERS, L.P.
By TCW Asset Management Company,
its Investment Manager
By /s/
--------------------------------
Name:
Title:
STRATA FUNDING LTD.
By /s/
--------------------------------
Name:
Title:
CERES FINANCE LTD.
By /s/
--------------------------------
Name:
Title:
AERIES FINANCE LTD.
By /s/
--------------------------------
Name:
Title:
CAPTIVA FINANCE LTD.
By /s/
--------------------------------
Name:
Title:
-9-
CAPTIVA II FINANCE LTD.
By /s/
--------------------------------
Name:
Title:
CITY NATIONAL BANK
By /s/
--------------------------------
Name:
Title:
ROYALTON COMPANY,
By Pacific Investment Management Company,
as its Investment Advisor
By /s/
--------------------------------
Name:
Title:
-00-
XXXXX XXXXXXXX XXXX XX XXXXXXX
By /s/
--------------------------------
Name:
Title:
FLOATING RATE PORTFOLIO
By: Chancellor LGT - Senior Secured
Management, Inc., as Attorney-in-Fact
By /s/
--------------------------------
Name:
Title:
KEYPORT LIFE INSURANCE COMPANY
By: Chancellor LGT - Senior Secured
Management, Inc., as Investment Advisor
By /s/
--------------------------------
Name:
Title:
DAI-ICHI KANGYO BANK LTD.
By /s/
--------------------------------
Name:
Title:
PRIME INCOME TRUST
By /s/
--------------------------------
Name:
Title:
-11-
THE FUJI BANK, LIMITED
By /s/
--------------------------------
Name:
Title:
XXXXXXX XXXXX
SENIOR FLOATING RATE FUND, INC.
By /s/
--------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
c/o Senior Floating Rate Fund, Inc.
By /s/
--------------------------------
Name:
Title:
NORTHWESTERN MUTUAL LIFE
By /s/
--------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By /s/
--------------------------------
Name:
Title:
-00-
XXXXXX XXXX LTD.
By /s/
--------------------------------
Name:
Title:
SOCIETE GENERALE
By /s/
--------------------------------
Name:
Title:
SOUTHERN PACIFIC THRIFT & LOAN
ASSOCIATION
By /s/
--------------------------------
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By /s/
--------------------------------
Name:
Title:
IMPERIAL BANK
By /s/
--------------------------------
Name:
Title:
-00-
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management L.P.,
as Investment Advisor
By /s/
--------------------------------
Name:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
By /s/
--------------------------------
Name:
Title:
XXXXXXX XXXXX DEBT STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management L.P.,
as Investment advisor
By /s/
--------------------------------
Name:
Title:
-14-
