EXHIBIT 10.23
CONFORMED COPY
AMENDMENT NO. 1, dated as of June 30, 2000
(this "AMENDMENT"), to the FIVE YEAR CREDIT
AGREEMENT dated as of March 30, 2000 (the
"FIVE YEAR CREDIT AGREEMENT"), among XXXXXXX
LIFESCIENCES CORPORATION, a Delaware
corporation (the "COMPANY"); the SWISS
BORROWERS (as defined in the Credit
Agreement); the JAPANESE BORROWERS (as
defined in the Credit Agreement); the
LENDERS from time to time party thereto; THE
CHASE MANHATTAN BANK, as Administrative
Agent; CHASE MANHATTAN INTERNATIONAL
LIMITED, as London Agent; THE FUJI BANK,
LIMITED, as the Tokyo Agent; BANK ONE, N.A.,
as Syndication Agent; and CREDIT SUISSE
FIRST BOSTON, as Documentation Agent, and to
the 364 Day CREDIT AGREEMENT dated as of
March 30, 2000 (the "364 DAY CREDIT
AGREEMENT" and together with the Five Year
Credit Agreement the "CREDIT AGREEMENTS")
among the Company, the Lenders from time to
time party thereto, THE CHASE MANHATTAN
BANK, as Administrative Agent, BANK ONE,
N.A., as Syndication Agent and CREDIT SUISSE
FIRST BOSTON, as Documentation Agent.
A. Pursuant to the Credit Agreements, the Lenders and the Issuing Bank
have extended, and have agreed to extend, credit to the Borrowers.
B. The Borrowers have requested that the Required Lenders agree to
amend the Credit Agreements as provided herein. The Required Lenders are willing
to amend the Credit Agreements pursuant to the terms and subject to the
conditions set forth herein.
C. Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Credit Agreements.
Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENTS. The definition of "Specified
Charges" in Section 1.01 of each Credit Agreement is hereby amended and restated
in its entirety as follows:
"SPECIFIED CHARGES" means (i) costs related to the Spin-Off
and related restructuring changes not to exceed $100,000,000 (and the cash
amount of which does not exceed $50,000,000) and (ii) charges for Intangible
Assets and goodwill not to exceed $300,000,000, in each case to the extent such
costs and/or charges shall have been accrued prior to December 31, 2000.
SECTION 2. AMENDMENT TO FIVE YEAR CREDIT AGREEMENT. (a) In accordance
with Section 2.21 of the Five Year Credit Agreement, the Five Year Credit
Agreement is hereby amended to add Xxxxxxx Lifesciences Japan Holdings, Inc. and
Xxxxxxx Lifesciences World Trade Corporation (the "NEW US BORROWERS") as
Borrowers entitled to make US Tranche Revolving Borrowings under Section 2.01(a)
of the Five Year Credit Agreement. The New US Borrowers will have the same right
to borrow under the US Tranche Commitments and, with respect to the US Tranche
Revolving Borrowings made by them, will have the same obligations, as the
Company, and will have all the other obligations of Borrowers under the Five
Year Credit Agreement.
(b) The definition of "Borrower" in the Five Year Credit Agreement is
hereby amended and restated in its entirety as follows:
"BORROWER" means the Company, any Swiss Borrower, any Japanese
Borrower, or any other Subsidiary that becomes a Borrower in accordance with
Section 2.21.
(c) The Company hereby agrees and confirms that the Guarantee contained
in Article X of the Five Year Credit Agreement will apply to the Obligations of
the New US Borrowers.
SECTION 3. REPRESENTATIONS AND WARRANTIES. To induce the other parties
hereto to enter into this Amendment, the Company represents and warrants to each
of the Lenders, the Administrative Agent, the Syndication Agent and the
Documentation Agent that, after giving effect to this Amendment, (i) the
representations and warranties set forth in Article III of the Credit Agreements
are true and correct in all material respects on and as of the date hereof,
except to the extent such representations and warranties expressly relate to an
earlier date, and (ii) no Default or Event of Default has occurred and is
continuing.
SECTION 4. EFFECTIVENESS. This Amendment shall become effective as of
the date first written above when the Administrative Agent shall have received
counterparts of this Amendment that, when taken together, bear the signatures of
the Company and the Required Lenders under each Credit Agreement.
SECTION 5. EFFECT OF AMENDMENT. Except with respect to any Default or
Event of Default that might have existed but for the amendment to the definition
of "Specified Charges" set forth in Section 1 hereof, which is hereby expressly
waived, and except as expressly set forth herein, this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver of, or otherwise
affect the rights and remedies of, the Lenders, the Administrative Agent, the
Syndication Agent or the Documentation Agent under the Credit Agreements or any
other Loan Document, and shall not alter, modify, amend or in any way affect any
of the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreements or any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle any Loan Party to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreements or any
other Loan Document in similar or different circumstances. After the date
hereof, any reference to the Credit Agreements shall
mean the Credit Agreements, as modified hereby. This Amendment shall constitute
a "Loan Document" for all purposes of the Credit Agreements and the other Loan
Documents.
SECTION 6. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same contract.
Delivery of an executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. HEADINGS. The headings of this Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 9. EXPENSES. The Company agrees to reimburse the Administrative
Agent for all out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers, all as of the
date and year first above written.
XXXXXXX LIFESCIENCES CORPORATION,
by /s/ XXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Corporate Vice President and
Chief Financial Officer
XXXXXXX LIFESCIENCES JAPAN HOLDINGS, INC.,
by /s/ XXX X. XXXXXXXX
-------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President and Secretary
XXXXXXX LIFESCIENCES WORLD TRADE
CORPORATION,
by /s/ XXX X. XXXXXXXX
-------------------------
Name: Xxx X. Xxxxxxxx
Title: Assistant Secretary
THE CHASE MANHATTAN BANK,
by /s/ XXXXXXX X. XXXXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
by: /s/ XXXXXXX XXXXXXXXX
---------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Deputy General Manager
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: FLEET NATIONAL BANK
by: /s/ XXXXXX X. XXXXXXX
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: NATIONAL AUSTRALIA BANK LIMITED
A.C.N. 004044937
by: /s/ XXXXX X. XXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: BANK OF NOVA SCOTIA,
by: /s/ X.X. XXXXXXXX
-------------------------
Name: X.X. Xxxxxxxx
Title: Director
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
by: /s/ XXXX XXXXXXX
-------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
by: /s/ XXXXXXX XXXXXX
-------------------------
Name: Xxxxxxx Xxxxxx
Title: Associate
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: THE BANK OF TOKYO-MITSUBISHI, LTD.
ICHIGAYA BRANCH
by: /s/ XXXXXX XXXXXX
-------------------------
Name: Hajimi Kaneko
Title: General Manager
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: BANK ONE, NA
by: /s/ XXXXXX X. XXXXXXXX
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: CREDIT SUISSE FIRST BOSTON
by: /s/ XXXXXXX X. XXXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
by: /s/ XXXXXX X. XXXXX
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
by: /s/ XXXXXX XXXXXXXXX
-------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: UBS AG, STAMFORD BRANCH
by: /s/ XXXXXX X. XXXXX III
-------------------------
Name: Xxxxxx X. Xxxxx III
Title: Executive Director
by: /s/ XXXXXXX SAINT
-------------------------
Name: Xxxxxxx Saint
Title: Loan Portfolio Support, US
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: WACHOVIA BANK, N.A.
by: /s/ XXXXX XXXXXXX
-------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: ABN AMRO BANK
by: /s/ XXXX X. XXXXXX
-------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
by: /s/ MITSOO XXXXXX
-------------------------
Name: Mitsoo Xxxxxx
Title: Assistant Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: BANK OF AMERICA
by: /s/ FOREST XXXXX XXXXXXXX
------------------------------
Name: Forest Xxxxx Xxxxxxxx
Title: Managing Director
SIGNATURE PAGE TO
AMENDMENT NO. 1, DATED
AS OF JUNE 30, 2000
TO THE XXXXXXX
LIFESCIENCES CREDIT
AGREEMENTS
NAME OF INSTITUTION: FIRST UNION
by: /s/ XXX X. XXXX
--------------------------------
Name: Xxx X. Xxxx
Title: Sennior Vice President
