Exhibit 10.30
CONFORMED COPY
AMENDMENT NO. 2, dated as of March 29, 2001 (this
"Amendment"), to the FIVE YEAR CREDIT AGREEMENT dated as of
March 30, 2000 (as amended, the "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.
A. Pursuant to the Credit Agreement, the Lenders and the Issuing Bank have
extended, and have agreed to extend, credit to the Borrowers.
B. The Borrowers have requested that the Lenders agree to amend the Credit
Agreement as provided herein. The Lenders are willing to amend the Credit
Agreement 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 Agreement.
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. Amendments to Credit Agreement. The Credit Agreement is hereby
amended as follows:
(a) the definition of "Consolidated EBITDA" in Section 1.01 of the
Credit Agreement is hereby amended by amending and restating in its entirety the
last sentence thereof as set forth below:
"Anything contained in this definition or elsewhere in this Agreement to
the contrary notwithstanding, in calculating Consolidated EBITDA for any
four fiscal-quarter period, the Specified Charges shall be excluded from
the computation of consolidated net income for such period.";
(b) subclause (a) of the definition of "Guarantee Requirement" in
Section 1.01 of the Credit Agreement is hereby amended by inserting immediately
after the words "executed by each" the word "Material";
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(c) the definition of "Specified Charges" in Section 1.01 of the
Credit Agreement is hereby amended and restated in its entirety as set forth
below:
"'Specified Charges' means the sum of (i) costs related to the
Spin-Off and related restructuring charges not to exceed $100,000,000 (and
the cash amount of which does not exceed $50,000,000), to the extent such
costs and/or charges shall have been accrued prior to December 31, 2000
plus (ii) restructuring charges and costs not to exceed $340,000,000 (and
the cash amount of which does not exceed $20,000,000) to the extent such
costs and/or charges shall have been accrued prior to December 31, 2001.";
(d) Section 6.04 of the Credit Agreement is hereby amended by adding
a new paragraph (c) as follows:
"(c) Notwithstanding the foregoing provisions of this Section
6.04, the Company may sell, transfer or otherwise dispose of all or
substantially all of the capital stock or other equity interests, or the
assets of, any Material Subsidiary (other than Xxxxxxx Lifesciences LLC,
Xxxxxxx Lifesciences World Trade Corporation or Xxxxxxx Lifesciences Japan
Holdings, Inc.), and such Material Subsidiary may merge or consolidate
with or into, or Transfer Assets to, any Person; provided, that, in each
case (i) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing and (ii) the Company shall apply any
cash proceeds received with respect thereto to repay Borrowings hereunder
or under the 364-Day Credit Agreement on the last day of the Interest
Periods applicable to such Borrowings (such Borrowings to be repaid as
they mature)."; and
(e) a new Section 11.15 to the Credit Agreement is hereby added as
follows:
"SECTION 11.15. Release of Guarantors. A Subsidiary Guarantor
shall be released from each of the Guarantee Agreement and the Indemnity,
Subrogation and Contribution Agreement with respect to such Subsidiary
Guarantor if (i) all of the capital stock of such Subsidiary Guarantor
owned by the Company or any Subsidiary shall be sold in a transaction
permitted under the terms of this Agreement and (ii) at the time of such
sale no Default has occurred and is continuing. The Administrative Agent
shall promptly (and the Lenders hereby authorize and instruct the
Administrative Agent to) take such action and execute any such documents
as may be reasonably requested by the Borrower and to provide written
evidence of the release of any Subsidiary Guarantor pursuant to this
Section.".
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SECTION 2. 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 Agreement
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 3. 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 each Lender under the Credit Agreement.
SECTION 4. Effect of Amendment. 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 Agreement 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 Agreement 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
Agreement or any other Loan Document in similar or different circumstances.
After the date hereof, any reference to the Credit Agreement shall mean the
Credit Agreement, as modified hereby. This Amendment shall constitute a "Loan
Document" for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 5. 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 6. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Headings. The headings of this Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
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SECTION 8. 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,
Chief Financial Officer & Treasurer
XXXXXXX LIFESCIENCES JAPAN HOLDINGS, INC.,
by /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Corporate Vice President,
Chief Financial Officer & Treasurer
XXXXXXX LIFESCIENCES WORLD TRADE CORPORATION,
by /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Corporate Vice President,
Chief Financial Officer & Treasurer
XXXXXXX LIFESCIENCES FINANCE LIMITED,
by /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Corporate Vice President,
Chief Financial Officer & Treasurer
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XXXXXXX LIFESCIENCES (JAPAN) LIMITED,
by /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Corporate Vice President,
Chief Financial Officer & Treasurer
XXXXXXX LIFESCIENCES AG,
by /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
Title: Chairman of the Board
by /s/ Xxxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Manager, Finance
THE CHASE MANHATTAN BANK,
by /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ABN AMRO BANK N.V.
by /s/ Xxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxx Bursatori
Title: Senior Vice President
by /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
by /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Principal
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BANK OF NOVA SCOTIA
by /s/ X. X. Xxxxxxxx
--------------------------------------------
Name: X. X. Xxxxxxxx
Title: Director
BANK OF TOKYO-MITSUBISHI, LTD. CHICAGO BRANCH
by /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Deputy General Manager
BANK OF TOKYO-MITSUBISHI, LTD. ICHIGAYA BRANCH
by /s/ Xxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxx
Title: General Manager of Ichigaya
Commercial Banking Office
BANK ONE, NA
by /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
BBVA INTERNATIONAL INVESTMENT CORPORATION
by /s/ Xxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President - Treasurer
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CREDIT SUISSE FIRST BOSTON
by /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
by /s/ Xxxx X'Xxxx
--------------------------------------------
Name: Xxxx X'Xxxx
Title: Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
by /s/ Xxxx Xxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
by /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Associate
FIRST UNION NATIONAL BANK
by /s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
FLEET NATIONAL BANK
by /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
THE FUJI BANK, LIMITED
by /s/ Takeyuki Kuroki
--------------------------------------------
Name: Takeyuki Kuroki
Title: Vice President & Senior Team Leader
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XXXXXXX XXXXX CREDIT PARTNERS L.P.
by /s/ Xxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
NATIONAL AUSTRALIA BANK LIMITED
by /s/ Xxxxxxx X. XxXxxx
--------------------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Vice President
UBS AG, STAMFORD BRANCH
by /s/ Xxxxxxx X. Saint
--------------------------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director
Banking Products Services, US
by /s/ Xxxxxxx X. XxXxxxxx
--------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Director Banking Products
Services, US
WACHOVIA BANK, N.A.
by /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
