EXHIBIT 10.13
AMENDMENT AND WAIVER NO. 1 TO CREDIT AGREEMENT
AMENDMENT AND WAIVER NO. 1 (this "Amendment"), dated as of March 28,
1997, among ADVANCED MEDICAL, INC., a Delaware corporation ("Advanced Medical"),
IVAC HOLDINGS, INC., a Delaware corporation (the "Borrower"), the financial
institutions party to the Credit Agreement referred to below (the "Banks"),
BANKERS TRUST COMPANY, as Administrative Agent and as a Syndication Agent and
BANQUE PARIBAS, as Documentation Agent (together with Bankers Trust Company in
its capacity as Administrative Agent, the "Agents") and as a Syndication Agent.
All capitalized terms used herein and not otherwise defined shall have the
respective meanings provided such terms in the Credit Agreement referred to
below.
W I T N E S S E T H :
WHEREAS, Advanced Medical, the Borrower, the Banks and the Agents are
parties to the Credit Agreement, dated as of November 26, 1996 (as modified,
supplemented and amended to the date hereof, the "Credit Agreement");
WHEREAS, Advanced Medical and the Borrower have requested, and the
Banks party hereto are willing (subject to the terms and conditions hereof) to
grant, a waiver in connection with certain covenants contained in the Credit
Agreement, and further the parties hereto wish to amend the Credit Documents as
set forth below;
NOW THEREFORE, it is agreed:
1. On the Amendment Effective Date (as defined below), the Banks
hereby waive compliance by the Borrower with the provision set forth in Section
7.01(a) of the Credit Agreement solely with respect to the fiscal months ending
on December 31, 1996, January 31, 1997 and February 28, 1997.
2. On the Amendment Effective Date, Section 7.01(a) of the Credit
Agreement is hereby amended by inserting at the end of such Section, immediately
following the word "footnotes" the following proviso:
, PROVIDED that (i) for the fiscal month ended on December
31, 1996 and for the two month period ended on February 28,
1997, such reports shall be furnished to each Bank within
120 days after the fiscal year ended on December 31, 1996,
(ii) thereafter, for each fiscal month ending in March, June
and September, such reports shall be furnished to each Bank
within 55 days after the end of such fiscal month and (iii)
for each fiscal month ending in December (other than
December 31, 1996), such reports shall be furnished to each
Bank within 100 days after the end of such fiscal month.
3. On the Amendment Effective Date, Section 7.01(b) of the Credit
Agreement is hereby amended by inserting at the end of such Section, immediately
following the word "footnotes" the following proviso:
, PROVIDED that (i) for the quarterly accounting period
ending on December 31, 1996, such statements shall be
furnished to each Bank within 120 days after the close of
such quarterly accounting period and (ii) thereafter, for
each quarterly accounting period ending in December, such
statements shall be furnished to each Bank within 100 days
after the close of such quarterly accounting period.
4. On the Amendment Effective Date, Section 7.01(c) of the Credit
Agreement is hereby amended by inserting at the end of such Section, immediately
following the word "thereof" the following proviso:
, PROVIDED that for the fiscal year ended on December 31,
1996, such annual statements shall be furnished to each Bank
within 120 days after the end of such fiscal year.
5. On the Amendment Effective Date, Section 7.01(d) of the Credit
Agreement is hereby amended by replacing the phrase "90 days" therein with the
phrase "120 days".
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6. On and after the Amendment Effective Date, Section 7.03 of the
Credit Agreement is hereby amended by deleting in its entirety therein, the
phrase "on each date on which financial statements are delivered pursuant to
Section 7.01(c)" and inserting in lieu thereof the phrase, "within 120 days
after the close of each fiscal year".
7. On the Amendment Effective Date, the definition of "Net Worth" in
Section 10 of the Credit Agreement is hereby amended by inserting at the end of
such definition immediately following the words "treasury stock" therein the
following phrase:
, after tax adjustments for purchase accounting and the
after tax effect of non-cash restructuring charges in
connection with the IVAC Merger and the IMED Merger.
8. In order to induce the Agents and the Banks to enter into this
Amendment, Advanced Medical and the Borrower hereby represent and warrant that
(x) no Default or Event of Default exists on the Amendment Effective Date (as
defined below) after giving effect to this Amendment and (y) all of the
representations and warranties contained in the Credit Agreement and the other
Credit Documents shall be true and correct in all material respects on the date
hereof and on the Amendment Effective Date (as defined below) with the same
effect as though such representations and warranties had been made on and as of
such 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).
9. 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.
10. 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 Advanced Medical, the Borrower and the Agents.
11. 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.
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12. This Amendment shall become effective as of the date hereof on
the date (the "Amendment Effective Date") when each of Advanced Medical, the
Borrower, the Agents and the Required Banks shall have signed a copy hereof
(whether the same or different copies) and shall have delivered (including by
way of telecopier) the same to the Administrative Agent at its Notice Office.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
ADVANCE MEDICAL, INC.
By /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
IVAC HOLDINGS, INC.
By /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By /s/ XXXX XXX XXXXX
--------------------------------
Name: Xxxx Xxx Xxxxx
Title: Managing Director
BANQUE PARIBAS,
Individually and as Documentation Agent
By /s/ (Illegible)
--------------------------------
Name: (Illegible)
Title: VPI Group Head
By /s/ XXXXX XXXXX
--------------------------------
Name: Xxxxx Xxxxx
Title: AVP
PARIBAS CAPITAL FUNDING
By /s/ XXXX XXXXX
--------------------------------
Name: Xxxx Xxxxx
Title: Director
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ (Illegible)
--------------------------------
Name: (Illegible)
Title: Vice President
THE NIPPON CREDIT BANK, LTD.
By /s/ XXXXXXXX XXXXXXXX
--------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Manager
BANK OF MONTREAL
By /s/ XXXXXXX X. XXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
UNION BANK OF CALIFORNIA, N.A.
By /s/ XXXX X. XXXX
--------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
UNITED STATES NATIONAL BANK OF
OREGON
By /s/ XXXX XXXXXXXX
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
PILGRIM AMERICA PRIME RATE TRUST
By /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
IBJ XXXXXXXX BANK & TRUST COMPANY
By
--------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By /s/ XXXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Signatory
ML CBO IV (CAYMAN) Ltd.
By: Protective Asset Management, L.L.C., as
Collateral Manager
By /s/ XXXXX XXXXXXX CPA, CFA
--------------------------------
Name: Xxxxx Xxxxxxx CPA, CFA
Title: President
Protective Asset Management, L.L.C.
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By /s/ XXXXX X. GOOD
--------------------------------
Name: Xxxxx X. Good
Title: Vice President
XXXXXXX NATIONAL LIFE INSURANCE
COMPANY
By: PPM America, Inc., as attorney in fact, on
behalf of Xxxxxxx National Life Insurance
Company
By /s/ XXXXXXX DI RE
--------------------------------
Name: Xxxxxxx DiRe
Title: Managing Director/
Head, High Yield Bank Loans
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company, its
Investment Manager
By /s/ (Illegible)
--------------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY
By /s/ (Illegible)
--------------------------------
Name:
Title:
By /s/ (Illegible)
--------------------------------
Name:
Title:
ING CAPITAL ADVISORS, INC., as Agent for
Bank Syndication Account
By /s/ XXXXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President & Portfolio Manager
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of The Chase
Manhattan Bank)
By /s/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital, as Portfolio Advisor
By /s/ XXXXXXXXX XXXXXXXXX
--------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By /s/ PAYSON X. XXXXXXXXX
--------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
PRIME INCOME TRUST
By /s/ XXXXXX XXXXXXX
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: V.P. Portfolio Manager
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of The Chase
Manhattan Bank)
By
--------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital, as Portfolio Advisor
By
--------------------------------
Name:
Title:
AMARA-1 FINANCE LTD.
By XXXXXX XXX XXXXXXX
--------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: Director
AMARA-2 FINANCE LTD.
By XXXXXX XXX XXXXXXX
--------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: Director
