THIRD AMENDMENT TO CREDIT AGREEMENT (MULTICURRENCY)
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (MULTICURRENCY)
(the "Amendment"), dated as of September 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 and a Second Amendment to Credit
Agreement (Multicurrency) dated as of January 30, 1998 (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) September 30, 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 "Credit Limit" by amending and
restating such defined term as follows:
"'Credit Limit': the amount of $25,000,000 or the
Equivalent Amount thereof."
(c) 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, September 30, 2000; (b) in respect of any
commercial letters of credit, March 31, 2001; and (c) in
respect of any standby letters of credit, September 30,
2001."
(d) Section 2.01 of the Credit Agreement shall be
amended by adding to it the following new subsection:
"(d) The aggregate L/C Outstanding Amount may not
exceed at any one time $10,000,000."
(e) Section 2.02(b) of the Credit Agreement shall be
amended by deleting the percentage "0.75%" and inserting the
percentage "0.625%" in place thereof.
(f) Section 2.02(c) of the Credit Agreement shall be
amended by deleting the percentage "0.75%" and inserting the
percentage "0.625%" in place thereof.
(g) Article V of the Credit Agreement shall be amended
by adding the following Section 5.14:
"5.14 Y2K Representation. On the basis of a
comprehensive review and assessment of the Borrower's and
each Acceptable Subsidiaries' systems and equipment and
inquiry made of the Borrower's and each Acceptable
Subsidiaries' material suppliers, vendors and customers, the
Borrower's management is of the view that the "Year 2000
problem" (that is, the inability of computers, as well as
embedded microchips in non-computing devices, to perform
properly date-sensitive functions with respect to certain
dates prior to and after December 31, 1999), including costs
of remediation, will not result in a Material Adverse
Effect. The Borrower and the Acceptable Subsidiaries have
developed feasible contingency plans adequately to ensure
uninterrupted and unimpaired business operation in the event
of failure of their own or a third party's systems or
equipment due to the Year 2000 problem, including those of
vendors, customers, and suppliers, as well as a general
failure of or interruption in its communications and
delivery infrastructure."
(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 on a consolidated basis its Tangible Net Worth to be
less than 90% of Tangible Net Worth as of June 30, 1998,
plus (i) 75% of quarterly net income after income taxes
(without subtracting losses) earned in each quarterly
accounting period commencing after June 30, 1998, plus (ii)
100% of the net proceeds from any equity securities issued
after June 30, 1998, less (iii) 100% of capital stock
repurchases after June 30, 1998, less (iv) the amount of
asset write-downs related to acquisitions which are taken
in the quarterly accounting period in which the acquisition
occurs up to an aggregate maximum amount recorded after
June 30, 1998, of $20,000,000, 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 7.09 of the Credit Agreement shall be
amended and restated in its entirety as follows:
"7.09 Leverage Ratio. The Borrower shall not as of
the last day of any quarterly accounting period permit on a
consolidated basis the ratio of (a) funded debt
(including off balance sheet debt) to (b) Adjusted EBITDA
(calculated on a rolling four quarter basis) to be greater
than 1.00 to 1.00 where:
'Adjusted EBITDA' means consolidated operating income
for the four immediately prior quarterly accounting
periods ended on that day plus depreciation and
amortization to the extent included in the
determination of such operating income, plus the
amount of asset write-downs related to acquisitions
which are taken in the quarterly accounting period in
which the acquisition occurs up to an aggregate
maximum amount recorded after June 30, 1998, of
$20,000,000."
(j) 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 at
any time on a consolidated basis the ratio of (a) the sum of
cash, short-term cash investments, marketable securities not
classified as long-term investments and current net accounts
receivable to (b) current liabilities to be less than 1.25."
(k) Section 7.11 of the Credit Agreement shall be
deleted in its entirety.
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 Third 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 enter into amendments under the
same, similar or any other 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 to the Credit Agreement 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, and the Bank is hereby authorized to make
sufficient photocopies thereof to assemble complete counterparty
documents.
(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 X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X.Xxxxxxx
Title: Vice President
157709.03
3
126750.01
