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EXHIBIT 10.13
AMENDMENT NO. 1
TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
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AMENDMENT NO. 1 (this "Amendment"), dated as of February 3, 1998, to
the First Amended and Restated Credit Agreement (the "Credit Agreement"), dated
as of March 27, 1997, by and among FURON COMPANY, a California corporation (the
"Borrower"), the Lenders party thereto, THE FIRST NATIONAL BANK OF CHICAGO and
NATIONSBANK OF TEXAS, N.A., as Co-Agents, and THE BANK OF NEW YORK, as swing
line lender (in such capacity, the "Swing Line Lender"), ABN AMRO BANK N.V.,
LOS ANGELES INTERNATIONAL BRANCH, as Documentation Agent, and THE BANK OF NEW
YORK, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
RECITALS
A. Capitalized terms used herein which are not defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
B. The Borrower intends to issue Senior Subordinated Notes (as
defined below) and, in connection therewith, desires to reduce the Aggregate
Revolving Credit Commitment Amount and to amend the Credit Agreement to the
extent set forth below and the Administrative Agent and the Lenders are willing
to agree to the foregoing, subject to the terms and conditions set forth below.
C. The Borrower has requested that the Administrative Agent and
the Lenders release the Medex Guaranty and the Administrative Agent, with the
consent of the Lenders is willing to agree thereto, subject to the terms and
conditions set forth below.
Accordingly, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. The Aggregate Revolving Credit Commitments and Aggregate
Revolving Credit Amount are hereby reduced from $250,000,000 to $200,000,000.
2. Section 1.1 of the Credit Agreement is amended by adding the
following definitions in their appropriate alphabetical order:
"Consolidated Senior Debt": at any date of
determination, Consolidated Total Debt minus Subordinated Debt.
"Senior Leverage Ratio": at any date of
determination, the ratio of (x) Consolidated Senior Debt on
such date to (y) Consolidated EBITDA for the four fiscal
quarter period ending on such date or, if such date is not the
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last day of a fiscal quarter, for the immediately preceding
four fiscal quarter period.
"Subordinated Debt": the Indebtedness of the Borrower
under the Senior Subordinated Notes and the Senior
Subordinated Indenture.
"Senior Subordinated Indenture": the Indenture
between the Borrower and the trustee named therein, pursuant
to which the Senior Subordinated Notes are issued, as the same
may be amended, supplemented or otherwise modified from time
to time.
"Senior Subordinated Notes": the $125,000,000 Senior
Subordinated Notes, due 2008, issued by the Borrower pursuant
to the Senior Subordinated Indenture, as the same may be
amended, supplemented or otherwise modified from time to time.
3. The following definitions contained in Section 1.1 of the
Credit Agreement are amended to read as follows:
"Excess Disposition Proceeds": with respect to any
fiscal year, the amount (if positive) equal to the amount of
Net Cash Proceeds received by the Borrower and/or any of its
Subsidiaries during such fiscal year minus $3,000,000.
"Loan Documents": collectively, this Agreement and
any promissory notes issued pursuant to Section 2.10.
4. Sections 2.6(b) and (d) of the Credit Agreement are amended in
their entirety to read as follows:
(b) Mandatory Reduction in Respect of an Equity
Offering or Issuance of Refinancing Debt. The Aggregate
Revolving Credit Commitment Amount shall be permanently
reduced in the event of any Equity Offering or the issuance of
any Refinancing Debt (other than the Senior Subordinated
Notes) at the times and in the amounts set forth below:
(i) in the case of an Equity Offering consummated
within one year after the consummation of the
Medex Stock Purchase, 100% of the Net
Issuance Proceeds thereof, such reduction to
be effective upon the receipt of such Net
Issuance Proceeds;
(ii) in the case of any other Equity Offering, 50%
of the Net Issuance Proceeds thereof, such
reduction to be effective upon the receipt of
such Net Issuance Proceeds; and
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(iii) in the case of the issuance of any
Refinancing Debt (other than the Senior
Subordinated Notes), 100% of the Net Issuance
Proceeds thereof, such reduction to be
effected upon the receipt of such Net
Issuance Proceeds, provided, however, that
the Aggregate Revolving Credit Commitment
Amount shall not be reduced to less than
$150,000,000 pursuant to this clause (iii).
(d) Mandatory Reductions Relating to
Dispositions. With respect to each Disposition described in
Section 8.4(c), the Aggregate Revolving Credit Commitment
Amount shall be permanently reduced on the applicable
Disposition Reduction/Prepayment Date by an amount equal to
100% of the Disposition Reduction/Prepayment Amount in respect
of such Disposition.
5. Section 2.6 of the Credit Agreement is further amended by
adding the following new subsection (f) thereto:
(f) Mandatory Reduction Relating to Asset Sales
under the Senior Subordinated Indenture. The Aggregate
Revolving Credit Commitment Amount shall be permanently
reduced by an amount equal to any prepayment required to be
made pursuant to Section 2.7(h) on the date of such
prepayment.
6. Sections 2.7(d) and (f) of the Credit Agreement are amended in
their entirety to read as follows:
(d) Mandatory Prepayments in Respect of an Equity
Offering or Issuance of Refinancing Debt. In the event of an
Equity Offering or the issuance of Refinancing Debt (other
than the Senior Subordinated Notes), the Borrower shall prepay
the Revolving Credit Loans (and, if after giving effect to
such prepayment, there are no Revolving Credit Loans
outstanding, the Swing Line Loans) at the times and in the
amounts set forth below:
(i) in the case of an Equity Offering consummated
within one year after the consummation of the
Medex Stock Purchase, 100% of the Net
Issuance Proceeds thereof;
(ii) in the case of any other Equity Offering, 50%
of the Net Issuance Proceeds thereof, such
prepayment to be made upon the receipt of
such Net Issuance Proceeds; and
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(iii) in the case of the issuance of any
Refinancing Debt (other than the Senior
Subordinated Notes), 100% of the Net Issuance
Proceeds thereof, such prepayment to be made
on the date of the receipt of the Net
Issuance Proceeds thereof.
(f) Mandatory Prepayments Relating to
Dispositions. In respect of any Disposition described in
Section 8.4(c), on the applicable Disposition
Reduction/Prepayment Date, the Borrower shall prepay the
Revolving Credit Loans (and, if after giving effect to such
prepayment, there are no Revolving Credit Loans outstanding,
the Swing Line Loans) by an amount equal to 100% of the
Disposition Reduction/Prepayment Amount in respect of such
Disposition, if any.
7. Section 2.7 of the Credit Agreement is further amended by
adding the following new subsection (h) thereto:
(h) Mandatory Prepayment Relating to Asset Sales
under the Senior Subordinated Indenture. In the event that the
Borrower would be required to make an "Asset Sale Offer" (as
defined in the Senior Subordinated Indenture), the Borrower
shall make a prepayment of the Loans in an amount equal to the
amount of such Asset Sale Offer that would be required under
the Senior Subordinated Indenture on the Business Day
immediately preceding the day on which the Borrower would be
required to make such Asset Sale Offer.
8. Section 6.1 of the Credit Agreement is amended by substituting
a comma for the word "and" at the end of clause (i) thereof and by adding the
following before the period at the end of clause (ii) thereof:
and (iii) the Loans requested shall constitute Indebtedness
which the Borrower is permitted to incur pursuant to the
provisions of the Senior Subordinated Indenture.
9. Section 6.2 of the Credit Agreement is amended in its entirety
to read as follows:
6.2. Borrowing Request
The Administrative Agent shall have received,
a Borrowing Request, duly executed by an authorized officer or
the Director, Treasury of the Borrower.
10. Section 7.11(b) of the Credit Agreement is amended with
respect to the period on and after the Amendment No. 1 Effective Date in its
entirety to read as follows:
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(b) Leverage Ratio. Maintain at all times during
the periods set forth below, a Leverage Ratio of not more than
the ratios set forth below:
Period Ratio
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Amendment No. 1 Effective
Date through July 31, 1999 4.25:1.00
August 1, 1999 through
July 29, 2000 4.00:1.00
July 30, 2000 through
August 5, 2001 3.75:1.00
August 6, 2001 and
thereafter 3.50:1.00.
11. Section 7.11 of the Credit Agreement is amended by adding a new
subsection (e) to the end thereof to read as follows:
(e) Senior Leverage Ratio. Maintain at all times
during the periods set forth below, a Senior Leverage Ratio of
not more than the ratios set forth below:
Period Ratio
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Amendment No. 1 Effective
Date through July 31, 1999 3.00:1.00
August 1, 1999 through
July 29, 2000 2.75:1.00
July 30, 2000 and
thereafter 2.50:1.00.
12. Section 8.1(v) of the Credit Agreement is amended by adding
"(including the Indebtedness of the Borrower under the Senior Subordinated
Notes)" immediately after the reference to "Refinancing Debt" at the beginning
of such clause (v).
13. Sections 8.3(e)(iii) and 8.3(f)(iii) of the Credit Agreement
are each amended to read as follows:
(iii) the Leverage Ratio will not exceed 4:00:1.00 and the
Borrower will be in compliance with each of the financial
covenants contained in Section 7.11, in each case on a
pro-forma basis after giving effect
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to such Acquisition and any Indebtedness incurred or assumed in
connection therewith which is permitted by Section 8.1,
14. Section 8.4(c)(iii) of the Credit Agreement is amended to read
as follows:
(iii) in the event that the Net Cash Proceeds of
such Disposition together with the Net Cash Proceeds of all
Dispositions made during the same fiscal year exceed
$3,000,000 in the aggregate, the Aggregate Revolving Credit
Commitment Amount shall be permanently reduced and the
Borrower shall prepay the Loans at the times and in the
amounts specified in Sections 2.6 and 2.7, if applicable, and
15. Section 8.5(j) of the Credit Agreement is amended to read in
its entirety as follows:
(j) Investments consisting of loans or
contributions by the Borrower to the ESOP or to a grantor
employee stock trust in the ordinary course of the operation
thereof not in excess of $10,000,000 in the aggregate; and
16. Section 8 of the Credit Agreement is amended by adding new
Sections 8.12 and 8.13 to the end thereof to read as follows:
8.12. Subordinated Debt
Make any payment in respect of principal of,
or premium or interest on, or purchase, voluntarily redeem or
otherwise retire, or make any payment in respect of all or any
part of the Indebtedness under the Senior Subordinated
Indenture or the Senior Subordinated Notes or any other
subordinated Indebtedness, or permit any Subsidiary so to do,
except subject to the subordination provisions of the Senior
Subordinated Indenture (as in effect on its original effective
date), payments required to be made under the Senior
Subordinated Indenture or with respect to the Senior
Subordinated Notes.
8.13. Designated Senior Debt
Designate any Indebtedness (other than the
Indebtedness under the Loan Documents) as "Designated Senior
Debt" for purposes of the Senior Subordinated Indenture
without the prior written consent of Required Lenders.
17. Section 9.1(k) of the Credit Agreement is hereby deleted and
Section 9.1(l) is relettered as 9.1(k).
18. Section 11.1(a) of the Credit Agreement is hereby amended by
adding the word "or" immediately prior to clause (vi) thereof, by inserting a
semi-colon immediately after the term
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"Required Lenders" on the penultimate line thereof and by deleting "or (vii)
release Medex from its obligations under the Medex Guaranty;" at the end
thereof.
19. Each of the Lenders hereby consents to the release by the
Administrative Agent of the Medex Guaranty. The Administrative Agent, with the
consent of each of the Lenders, hereby releases Medex from the Medex Guaranty
which shall be of no further force and effect.
20. Exhibits A, B and D in the form annexed is substituted for
Exhibits A, B and D to the Credit Agreement.
21. Paragraphs 1-20 of this Amendment shall not be effective until
the prior or simultaneous fulfillment of the following conditions (the
"Amendment No. 1 Effective Date"):
(a) the Amendment No. 1 Effective Date shall have
occurred prior to September 1, 1998;
(b) the Administrative Agent shall have received
this Amendment executed by a duly authorized officer or officers of
each party hereto;
(c) the Administrative Agent shall have received
a certificate of the Secretary or Assistant Secretary of the Borrower
(i) attaching a true and complete copy of the resolutions of its Board
of Directors and of all documents evidencing other necessary corporate
action (in form and substance satisfactory to the Administrative
Agent) taken by the Borrower to authorize the execution and delivery
of this Amendment, the Senior Subordinated Indenture and the Senior
Subordinated Notes, (ii) certifying that its certificate of
incorporation and by-laws have not been amended since November 16,
1996, or, if so, setting forth the same and (iii) setting forth the
incumbency of its officer or officers who may sign this Amendment,
including therein a signature specimen of such officer or officers;
(d) the Borrower shall have prepaid the Loans to
the extent required by Section 2.7(b) of the Credit Agreement;
(e) No Default or Event of Default would exist
before or after giving effect to the issuance of the Senior
Subordinated Notes and the Administrative Agent shall have received a
certificate of a Financial Officer to such effect, which certificate
shall attached a true, complete and correct copy of the Senior
Subordinated Indenture and the offering memorandum with respect
thereto; and
(f) The Senior Subordinated Notes shall have been
issued and the Borrower shall have received the net proceeds thereof.
22. This Amendment may be executed in any number of counterparts,
each of which shall be an original and all of which shall constitute one
amendment. It shall not be necessary in making proof of this Amendment to
produce or account for more than one counterpart signed by the party to be
charged.
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23. This Amendment is being delivered in and is intended to be
performed in the State of New York and shall be construed and enforceable in
accordance with, and be governed by, the internal laws of the State of New York
without regard to principles of conflict of laws.
24. Except as amended hereby, the Credit Agreement shall in all
other respects remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
FURON COMPANY
By: /s/ J. Michael Hagan
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Name: J. Michael Hagan
Title: Chairman and CEO
By: /s/ Monty Houdeshell
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Name: Monty Houdeshell
Title: Chief Financial Officer
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AMENDMENT NO. 1 TO THE FURON CREDIT AGREEMENT
THE BANK OF NEW YORK, Individually, as Swing
Line Lender and as Administrative Agent
By: /s/ Rebecca K. Levine
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Name: Rebecca K. Levine
Title: Vice President
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AMENDMENT NO. 1 TO THE FURON CREDIT AGREEMENT
ABN AMRO BANK N.V., LOS ANGELES INTERNATIONAL
BRANCH, Individually, and as
Documentation Agent
By: /s/ John A. Miller
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Name: John A. Miller
Title: Group Vice President
By: /s/ Heather F. Brandt
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Name: Heather F. Brandt
Title: Vice President
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AMENDMENT NO. 1 TO THE FURON CREDIT AGREEMENT
THE FIRST NATIONAL BANK OF CHICAGO,
Individually, and as Co-Agent
By: /s/ James D. Benko
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Name: James D. Benko
Title: Vice President
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AMENDMENT NO. 1 TO THE FURON CREDIT AGREEMENT
NATIONSBANK OF TEXAS, N.A., Individually,
and as Co-Agent
By: /s/ Charles F. Lilygren
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Name: Charles F. Lilygren
Title: Vice President
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AMENDMENT NO. 1 TO THE FURON CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA
By: /s/ Chris Osborn
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Name: Chris Osborn
Title: Relationship Manager
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AMENDMENT NO. 1 TO THE FURON CREDIT AGREEMENT
MELLON BANK, N.A.
By: /s/ Gill S. Realon
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Name: Gill S. Realon
Title: Vice President
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AMENDMENT NO. 1 TO THE FURON CREDIT AGREEMENT
COMERICA BANK
By: /s/ Emmanuel M. Skevofilax
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Name: Emmanuel M. Skevofilax
Title: Assistant Vice President
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AMENDMENT NO. 1 TO THE FURON CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Andrew G. Ewing, Jr.
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Name: Andrew G. Ewing, Jr.
Title: Vice President
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AMENDMENT NO. 1 TO THE FURON CREDIT AGREEMENT
BANK ONE, NA
By: /s/ Douglas M. Klamfoth
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Name: Douglas M. Klamfoth
Title: Vice President
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AMENDMENT NO. 1 TO THE FURON CREDIT AGREEMENT
BANQUE NATIONALE DE PARIS
By: /s/ Clive Bettles
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Name: Clive Bettles
Title: Senior Vice President & Manager
By: /s/ Deborah Y. Gohh
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Name: Deborah Y. Gohh
Title: Vice President
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AMENDMENT NO. 1 TO THE FURON CREDIT AGREEMENT
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
LOS ANGELES AGENCY
By: /s/ Vicente L. Timiraos
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Name: Vicente L. Timiraos
Title: Senior Vice President &
Senior Deputy General Manager
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AMENDMENT NO. 1 TO THE FURON CREDIT AGREEMENT
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Mariel C. Albrecht
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Name: Mariel C. Albrecht
Title: Assistant Vice President