FOURTH AMENDMENT (this "Amendment") dated as of February 9, 2001 to the Credit Agreement dated as of January 21, 1998 (as previously amended, the "Credit Agreement"), among FISHER SCIENTIFIC INTERNATIONAL INC. (the "Company"), certain Subsidiaries of...
Exhibit 10.18
FOURTH AMENDMENT (this "Amendment")
dated as of February 9, 2001 to the Credit
Agreement dated as of January 21, 1998 (as
previously amended, the "Credit Agreement"),
among XXXXXX SCIENTIFIC INTERNATIONAL INC.
(the "Company"), certain Subsidiaries of the
Company, the lenders from time to time party
thereto (the "Banks"), THE CHASE MANHATTAN
BANK, as Administrative Agent, THE CHASE
MANHATTAN BANK OF CANADA, as Canadian
Administrative Agent, CHASE MANHATTAN
INTERNATIONAL LIMITED, as U. K.
Administrative Agent, XXXXXXX XXXXX CAPITAL
CORPORATION, as Syndication Agent and DLJ
CAPITAL FUNDING, INC. as Documentation
Agent.
A. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to them in the Credit Agreement.
B. Pursuant to the Credit Agreement, the Banks have extended credit to
the Borrowers, and have agreed to extend credit to the Borrowers, in each case
pursuant to the terms and subject to the conditions set forth therein.
C. The Company has requested that the Banks amend the Credit Agreement.
D. The Required Banks are willing to agree to such amendment subject to
the terms and conditions set forth herein.
Accordingly, the parties hereto agree as follows:
SECTION 1. AMENDMENT. (a) Section 8.12 of the Credit Agreement is
amended by replacing the portion of the table included therein beginning with
(and including) the text "FQE1 2001" and ending with (and including) the text
"4.00:1.00" with the following text:
FQE1 2001 5.50:1.00
FQE2 2001 5.50:1.00
FQE3 2001 5.50:1.00
FYE 2001 5.50:1.00
FQE1 2002 5.00:1.00
FQE2 2002 5.00:1.00
FQE3 2002 5.00:1.00
FYE 2002 5.00:1.00
FQE1 2003 4.50:1.00
FQE2 2003 4.50:1.00
FQE3 2003 4.50:1.00
FYE 2003 4.50:1.00
FQE1 2004 and the last day of any 4.00:1.00
fiscal quarter thereafter
(b) The definition of the term "Consolidated EBIT" in Section 10 of the
Credit Agreement is amended by:
(i) deleting the word "and" at the end of clause (v) thereof;
(ii) inserting the following text immediately after clause (vi)
thereof:
"and (vii) for all purposes of this Agreement other than calculating
the Leverage Ratio for purposes of (A) Section 3.01 and (B) determining the
Applicable Rate, without giving effect to nonrecurring cash charges incurred
after February 9, 2001 (in addition to those referred to in clauses (ii) and (v)
above) in an aggregate amount not to exceed $40,000,000 (for all periods
combined)"; and
(iii) adding the following text at the end of such definition:
"Solely for the purpose of calculating Consolidated EBIT for any Test
Period when determining compliance with Section 8.12, (i) if at any
time since the commencement of such Test Period the Company or any
Subsidiary shall have made any Material Disposition, Consolidated EBIT
for such Test Period shall be calculated after giving PRO FORMA effect
thereto as if
such Material Disposition occurred on the first day of such Test Period
and (ii) if at any time since the commencement of such Test Period the
Company or any Subsidiary shall have made a Material Acquisition,
Consolidated EBIT for such Test Period shall be calculated after giving
PRO FORMA effect thereto as if such Material Acquisition occurred on
the first day of such Test Period. As used in this definition,
"Material Acquisition" means any acquisition of property or series of
related acquisitions of property that (x) involves consideration by the
Company and its subsidiaries in excess of $5,000,000 and (y) is a
Permitted Acquisition; and "Material Disposition" means any disposition
of property or series of related dispositions of property that (x)
yields consideration to the Company or any of its subsidiaries in
excess of $5,000,000 and (y) is permitted under Section 8.02 hereof.
Each certificate delivered pursuant to Section 7.01(c) shall include in
the calculations of the Leverage Ratio set forth in such certificate a
reasonably detailed calculation of all PRO FORMA adjustments made for
purposes of calculating Consolidated EBIT to give effect to Material
Acquisitions and Material Dispositions."
SECTION 2. REPRESENTATIONS AND Warranties. Each of the Borrowers hereby
represents and warrants to each Bank, on and as of the date hereof, that:
(a) This Amendment has been duly authorized, executed and delivered by
each Borrower, and each of this Amendment and the Credit Agreement as amended by
this Amendment constitutes a legal, valid and binding obligation of each
Borrower, enforceable in accordance with its terms, except to the extent that
the enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws generally affecting creditors' rights
and by equitable principles (regardless of whether enforcement is sought in
equity or at law).
(b) The representations and warranties of the Borrowers contained in
the Credit Agreement are true and
correct in all material respects on and as of the date hereof.
(c) After giving effect to this Amendment, no Default has occurred and
is continuing.
SECTION 3. EFFECTIVENESS. This Amendment shall become effective on the
date (the "Amendment Effective Date") that each of the following conditions is
met:
(a) The Administrative Agent shall have received counterparts hereof
signed by each Borrower and the Required Banks.
(b) Each Bank that executes this Amendment at or prior to noon, New
York time, on February 9, 2001, shall have received an Amendment Fee equal to
0.125% of the aggregate amount of such Bank's Loans and outstanding Commitments
under the Credit Agreement.
(c) The Administrative Agent shall have received interest, fees and
other amounts due and payable under this Amendment and the Credit Agreement
on or prior to the Amendment Effective Date including, to the extent
invoiced, all reasonable out of pocket costs and expenses of the
Administrative Agent (including, without limitation, the reasonable fees of
Cravath, Swaine & Xxxxx, counsel for the Administrative Agent).
SECTION 4. EXPENSES. The Company acknowledges that Section 12.01 of the
Credit Agreement applies to this Amendment and hereby agrees to pay all
out-of-pocket expenses reasonably incurred by the Administrative Agent,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent, in connection with the preparation,
execution and delivery of this Amendment.
SECTION 5. MISCELLANEOUS. (a) This Amendment constitutes the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.
(b) Section headings used herein are for convenience of reference only
and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Amendment.
(c) THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF NEW YORK.
(d) Each reference to a party hereto shall be deemed to include its
successors and assigns, all of whom shall be bound by this Amendment and to
whose benefit the provisions of this Amendment shall inure.
(e) This Amendment may be executed in any number of counterparts, each
of which shall be an original but all of which, when taken together, shall
constitute but one instrument.
(f) Except as specifically amended or modified hereby, the Credit
Agreement shall continue in full force and effect in accordance with the
provisions thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the date first
above written.
XXXXXX SCIENTIFIC
INTERNATIONAL INC.,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: General Counsel
XXXXXX SCIENTIFIC U.K., LIMITED,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: General Counsel
XXXXXX SCIENTIFIC LIMITED,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: General Counsel
ACROS ORGANICS N.V.,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: General Counsel
XXXXXX SCIENTIFIC S.A.,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: General Counsel
XXXXXX SCIENTIFIC GmbH,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: General Counsel
XXXXXX SCIENTIFIC KOREA LTD.,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: General Counsel
XXXXXX SCIENTIFIC B.V.,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: General Counsel
CASA ROCAS S.A. DE C.V.,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: General Counsel
XXXXXX GENETICS ASIA Pte Ltd.,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: General Counsel
XXXXXX SCIENTIFIC Pte Ltd.,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: General Counsel
XXXXXXX XX,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: General Counsel
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a
Bank,
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL
CORPORATION, as Syndication
Agent and as a Bank,
By:
----------------------------------
Name:
Title:
DLJ CAPITAL FUNDING, INC., as
Documentation Agent and as a
Bank,
By:
----------------------------------
Name:
Title:
ABN AMRO BANK N.V.,
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx XxXxxxx
Title: Group Vice President
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice
President
ALLIANCE CAPITAL FUNDING,
L.L.C,
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice
President
ALLIANCE INVESTMENTS LIMITED
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Senior Vice
President
ARCHIMEDES FUNDING II, LTD.,
By: ING Capital Advisors
LLC, as Collateral Manager
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
BANKBOSTON, N.A.,
By:
----------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
By:
----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
By: /s/ X.X. Xxxxxxx
----------------------------------
Name: X.X. Xxxxxxx
Title: Authorized Signatory
BANK OF TOKYO-MITSUBISHI TRUST CO.,
By: /s/ Xxxxx Broussiotis
----------------------------------
Name: Xxxxx Broussiotis
Title: Vice President
BANK ONE, N.A.
(Main Office: Chicago),
By:
----------------------------------
Name:
Title:
BNP PARIBAS,
as Co-Agent,
By: /s/ Xxxxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Hekowski
----------------------------------
Name: Xxxxx X. Hekowski
Title: Director
BHF (USA) CAPITAL CORPORATION,
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxx X. X'Xxxxxx
----------------------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President
Asset Management
BALANCED HIGH YIELD FUND I
LTD.,
By: BHF (USA) Capital
Corporation
as Attorney-in-Fact
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxx X. X'Xxxxxx
----------------------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President
BALANCED HIGH YIELD FUND II
LTD.,
By: (USA) Capital Corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxx X. X'Xxxxxx
----------------------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President
Asset Management
BANKERS TRUST COMPANY,
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
CAPTIVA III FINANCE, LTD.,
as advised by Pacific
Investment Management
Company LLC
By: /s/ Xxxxx Xxxx
----------------------------------
Name: Xxxxx Xxxx
Title: Director
CHASE SECURITIES INC., as
Agent for THE CHASE MANHATTAN
BANK,
By: /s/ J. Xxxxxxx Xxxxxx
----------------------------------
Name: J. Xxxxxxx Xxxxxx
Title: Managing Director
CIBC, INC.,
BY: CIBC World Markets
Corp.,
as Agent,
By: /s/ Xxxxxxxxx X. XxXxxx
----------------------------------
Name: Xxxxxxxxx X. XxXxxx
Title: Executive Director
CITY NATIONAL BANK,
By:
----------------------------------
Name:
Title:
CONTINENTAL ASSURANCE
COMPANY,
By: /s/ Xxxx X. Gold
----------------------------------
Name: Xxxx X. Gold
Title: Managing Director
CREDIT INDUSTRIEL ET
COMMERCIAL,
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
By:
----------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK,
LIMITED,
By:
----------------------------------
Name:
Title:
ELC (CAYMAN) LTD.,
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice
President
XXXXX XXXXX INSTITUTIONAL
SENIOR LOAN FUND,
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
XXXXX XXXXX SENIOR INCOME
TRUST,
By: Xxxxx Xxxxx Management
as Investment Advisor,
By: /s/ Payson X. Xxxxxxxxx
----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
ERSTE BANK,
By: /s/ Xxxx Xxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
FIRSTRUST BANK,
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vive President and
Manager
FLEET NATIONAL BANK,
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
Franklin CLO I, Limited
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
FRANKLIN FLOATING RATE TRUST,
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
GALAXY CLO 1999-1, LTD.,
By: SAI Investment Advisor,
Inc.,
as its Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Agent
GENERAL ELECTRIC CAPITAL
CORPORATION.,
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title: Duly Authorized
Signatory
XXXXXXX & CO.,
By: /s/ Payson X. Xxxxxxxxx
----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
HSBC BANK USA,
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
INDOSUEZ CAPITAL FUNDING IV,
L.P.,
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN
LIMITED,
By: /s/ J. Xxxxxxx Xxxxxx
----------------------------------
Name: J. Xxxxxxx Xxxxxx
Title: Senior Vice
President
PPM AMERICA,INC., as attorney
in fact, on behalf of
XXXXXXX NATIONAL LIFE
INSURANCE CO.,
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
KZH CNC LLC,
By: /s/ Xxxxxxxx Xxxx
----------------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
KZH CRESCENT LLC,
By: /s/ Xxxxxxxx Xxxx
----------------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
KZH CRESCENT-2 LLC,
By: /s/ Xxxxxxxx Xxxx
----------------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC,
By: /s/ Xxxxxxxx Xxxx
----------------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
KZH LANGDALE LLC,
By: /s/ Xxxxxxxx Xxxx
----------------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
KZH ING-2 LLC,
By: /s/ Xxxxxxxx Xxxx
----------------------------------
Name: Xxxxxxxx Xxxx
Title: Authorized Agent
MELLON BANK, N.A.,
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL CORPORATION,
By: /s/ XXXX XXX
----------------------------------
Name: Xxxx Xxx
Title: Vice President
MITSUBISHI TRUST & BANKING CORP.,
By: /s/ Xxxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice
President
ML CLO XV PILGRIM AMER (CAYMAN) LTD.,
By: Pilgrim Investments,
Inc. as its Investment
Manager,
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Assistant Vice
President
NATEXIS BANQUE POPULAIRES,
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxx
----------------------------------
Name: Xxxxxx Xxxx
Title: Associate
NEW YORK LIFE INSURANCE
COMPANY,
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Second Vice
President
NEW YORK LIFE INSURANCE
AND ANNUITY CORPORATION,
By: New York Life Insurance
Management, LLC,
as Investment Manager
By: /s/ F. Xxxxx Xxxxx
----------------------------------
Name: F. Xxxxx Xxxxx
Title: F. Xxxxx Xxxxx
OXFORD STRATEGIC INCOME FUND,
By: /s/ Payson X. Xxxxxxxxx
----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
PILGRIM AMER. HIGH INCOME
INVEST. LTD.,
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Assistant Vice
President
PILGRIM CLO 1999-1 LTD.,
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Assistant Vice
President
SENIOR DEBT PORTFOLIO,
By: /s/ Payson X. Xxxxxxxxx
----------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
SEQUILS I, LTD.,
By: /s/ Xxxx Xxxx
----------------------------------
Name: Xxxx Xxxx
Title: Managing Director
THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH,
By: /s/ Xxxxxx X. Tata
----------------------------------
Name: Xxxxxx X. Tata
Title: Senior Vice
President
XXX XXXXXX CLO I, LIMITED,
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
XXX XXXXXX PRIME RATE INCOME
TRUST,
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
WINGED FOOT FUNDING TRUST,
By: /s/ Xxx X. Xxxxxx
----------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
TORONTO DOMINION BANK,
By:
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK OF
CANADA,
By: /s/ Xxxxxxxxx Xxxx
----------------------------------
Name: Xxxxxxxxx Xxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx XxXxxxxx
Title: Vice President
