EXHIBIT 10.1
EIGHTH AMENDMENT TO CREDIT AGREEMENT
EIGHTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
as of October 16, 1998, among DADE BEHRING HOLDINGS, INC. ("Holdings"),
DADE BEHRING 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 Banks wish to grant the consent provided below,
and the parties hereto wish to amend the Credit Agreement as herein
provided;
NOW, THEREFORE, it is agreed:
I. Amendments and Consents to Credit Agreement.
1. Notwithstanding anything to the contrary contained in
Sections 7.11 and 8.16 of the Credit Agreement, in the Pledge Agreement,
in the First Amendment, in the Second Amendment to Credit Agreement,
dated as of December 12, 1997, or in the Fifth Amendment to Credit
Agreement, dated as of April 30, 1998, the Banks hereby agree that
Holdings and its Subsidiaries shall not (subject to the immediately
succeeding proviso) be required to pledge to the Pledgee under the Pledge
Agreement the capital stock of any of the Foreign Subsidiaries listed on
Annex I hereto (each, an "Excluded Pledge Subsidiary"); provided however,
that if, at the time of the delivery of the financial statements provided
in Section 7.01(c) of the Credit Agreement, the aggregate book value of
the gross assets, or the aggregate net revenues for the last four fiscal
quarters, of the Excluded Pledge Subsidiaries exceeds at any time 3.0% of
the book value of consolidated gross assets or consolidated net revenues,
as the case may be, of Holdings and its Subsidiaries, then upon the
request of the Administrative Agent or the Required Banks, Holdings or
the relevant Subsidiary shall, within 90 days following such request,
pledge the capital stock of such of the Excluded Pledge Subsidiaries as
the Borrower may select in its discretion (at which time any such
Excluded Pledge Subsidiary the stock of which is so pledged shall cease
to constitute an "Excluded Pledge Subsidiary" and Annex I hereto shall be
deemed modified to reflect such change) as may be required to ensure that
the aggregate book value of the gross assets, or the aggregate net
revenues for the last four fiscal quarters, of the then Excluded Pledge
Subsidiaries does not exceed 3.0% of the book value of consolidated gross
assets or consolidated net revenues, as the case may be, of Holdings and
its Subsidiaries, with any such pledge of capital stock required pursuant
to this proviso to be made in accordance with the relevant requirements
of the Pledge Agreement and the Credit Agreement.
2. Notwithstanding anything to the contrary contained in
Sections 7.11 and 8.16 of the Credit Agreement or in the Pledge
Agreement, the Banks hereby agree that Dade Finance Inc. shall not be
required to pledge to the Pledgee under the Pledge Agreement any of the
capital stock of Dade Behring Grundstucks GmbH.
3. The definition of "Consolidated EBIT" appearing in Section
10 of the Credit Agreement is hereby amended by inserting the following
text immediately after clause (viii) appearing in said definition:
", (ix) any one-time charge deducted in determining
Consolidated Net Income for such period and relating to the Vendor
Financing Program, provided that the aggregate amount of charges added
back pursuant to this clause (ix) for all periods shall not exceed
$4,500,000 and (x) non-recurring costs arising in connection with the
implementation by Holdings and its Subsidiaries of the Year 2000 and Euro
conversions, provided that the aggregate amount of costs added back
pursuant to this clause (x) for all periods shall not exceed
$35,000,000".
II. 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 Eighth
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 Eighth 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 Eighth 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 executed 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
"Eighth 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 Eighth 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.
* * *
(i) Dade Behring Diagnostics San Bhd (Malaysia);
(ii) PT Behrindonusa Perkasa (Indonesia);
(iii) Dade Behring Diagnostics, Inc. (Philippines);
(iv) Dade Behring Diagnostics Ltd. (Thailand);
(v) Dade Behring Diagnostics Asia Pte. Ltd (Singapore);
(vi) Dade Behring Diagnostics S.A.E. (Egypt);
(vii) Dade Behring Diagnostics Ltda (Brazil);
(viii) Dade Behring Diagnostics Ltd (UK);
(ix) Behring Diagnostics AG (Switzerland); and
(x) Behring Diagnostika Tibbi Tani Arac ve Gerecleri Ticaret
Ltd Sirketi (Turkey)
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/
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Name: Nancy A. Krejsa
Title: Vice President & Treasurer
DADE BEHRING INC.
By
/s/
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Name: Nancy A. Krejsa
Title: Vice President & Treasurer
BANKERS TRUST COMPANY,
Individually, as Agent
and as Collateral Agent
By
/s/
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Name: Mary K. Coyle
Title: Managing Director
THE BANK OF NOVA SCOTIA
By
/s/
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Name: M.D. Smith
Title: Agent Operations
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By
/s/
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Name: Paul Malecki
Title: Vice President
BANKBOSTON, N. A.
By
/s/
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Name: Christopher J. Wickle
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By
/s/
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Name: Holly Kaczmarczyk
Title: Duly Authorized Signatory
SANWA BUSINESS CREDIT CORPORATION
By
/s/
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Name: Lawrence J. Placek
Title: Vice President
ABN AMRO BANK N.V., Chicago Branch
By
/s/
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Name: Joann L. Holman
Title: Vice President
By
/s/
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Name: Darin P. Fischer
Title: Assistant Vice President
AG CAPITAL FUNDING PARTNERS, L.P.
By: Angelo, Gordon & Co., L.P., as
Investment
Advisor
By
/s/
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Name: Jeffrey H. Aronson
Title: Managing Director
CITIBANK, N.A.
By
/s/
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Name:
Title:
CITY NATIONAL BANK
By
/s/
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Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By
/s/
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Name: David Bouhl, F.V.P.
Title: Head of Corporate Banking - Chicago
By
/s/
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Name: Dean Balice
Title: Senior Vice President Branch Manager
CRESCENT/MACH I PARTNERS, L.P.
By TCW Asset Management Company,
its Investment Manager
By/s/
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Name:
Title:
DAI-ICHI KANGYO BANK LTD.
By/s/
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Name:
Title:
DELANO COMPANY
By Pacific Investment Management Company,
as its Investment Advisor
By/s/
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Name:
Title:
FIRST NATIONAL BANK OF CHICAGO
By
/s/
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Name: Christopher Cavaiani
Title: Vice President
THE FUJI BANK, LIMITED
By
/s/
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Name:
Title:
IMPERIAL BANK
By
/s/
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Name:
Title:
KEYPORT LIFE INSURANCE COMPANY
By: Stein, Roe & Farnham, as Investment
Advisor
By
/s/
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Name: Brian W. Good
Title: Vice President & Portfolio Manager
MERRILL LYNCH DEBT STRATEGIES PORTFOLIO
By: Merrill Lynch Asset Management L.P.,
as Investment advisor
By
/s/
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Name:
Title:
MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Asset Management L.P.,
as Investment Advisor
By
/s/
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Name:
Title:
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC.
By
/s/
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Name:
Title:
OCTAGON LOAN TRUST,
By: Octagon Credit Investors, its Manager
By
/s/
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Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By: PILGRIM AMERICA INVESTMENTS, INC., as
its Investment Manager
By
/s/
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Name: Charles E. LeMieux, CFA
Title: Assistant Vice President
MORGAN STANLEY DEAN WITTER PRIME
INCOME TRUST
By
/s/
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Name
Title:
SAKURA BANK LTD.
By
/s/
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Name: : Masayuki Kobayashi
Title: Joint General Manager
SOCIETE GENERALE
By
/s/
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Name: Jose Gutierrez
Title: Vice President
SOUTHERN PACIFIC BANK
By
/s/
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Name: Charles D. Martorano
Title: Senior Vice President
CAPTIVA FINANCE LTD.
By
/s/
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Name:
Title: