Fourth Amendment to Credit Agreement among Fisher Scientific International Inc., Subsidiaries, and Lenders (February 9, 2001)
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Summary
This amendment updates the terms of a credit agreement originally dated January 21, 1998, between Fisher Scientific International Inc., certain subsidiaries, and a group of lenders. The amendment revises financial ratio requirements and the definition of "Consolidated EBIT" to reflect new financial conditions and clarify how acquisitions and dispositions affect calculations. It also confirms that the agreement remains legally binding and outlines conditions for the amendment to take effect, including payment of fees and expenses. All other terms of the original credit agreement remain unchanged.
EX-10.18 5 a2041590zex-10_18.txt EXHIBIT 10.18 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 FISHER 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, MERRILL LYNCH 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:
(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 & Moore, 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 & Moore, 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. FISHER SCIENTIFIC INTERNATIONAL INC., By: /s/ Todd Duchene ---------------------------------- Name: Todd Duchene Title: General Counsel FISHER SCIENTIFIC U.K., LIMITED, By: /s/ Todd Duchene ---------------------------------- Name: Todd Duchene Title: General Counsel FISHER SCIENTIFIC LIMITED, By: /s/ Todd Duchene ---------------------------------- Name: Todd Duchene Title: General Counsel ACROS ORGANICS N.V., By: /s/ Todd Duchene ---------------------------------- Name: Todd Duchene Title: General Counsel FISHER SCIENTIFIC S.A., By: /s/ Todd Duchene ---------------------------------- Name: Todd Duchene Title: General Counsel FISHER SCIENTIFIC GmbH, By: /s/ Todd Duchene ---------------------------------- Name: Todd Duchene Title: General Counsel FISHER SCIENTIFIC KOREA LTD., By: /s/ Todd Duchene ---------------------------------- Name: Todd Duchene Title: General Counsel FISHER SCIENTIFIC B.V., By: /s/ Todd Duchene ---------------------------------- Name: Todd Duchene Title: General Counsel CASA ROCAS S.A. DE C.V., By: /s/ Todd Duchene ---------------------------------- Name: Todd Duchene Title: General Counsel FISHER GENETICS ASIA Pte Ltd., By: /s/ Todd Duchene ---------------------------------- Name: Todd Duchene Title: General Counsel FISHER SCIENTIFIC Pte Ltd., By: /s/ Todd Duchene ---------------------------------- Name: Todd Duchene Title: General Counsel WINIGER AG, By: /s/ Todd Duchene ---------------------------------- Name: Todd Duchene Title: General Counsel THE CHASE MANHATTAN BANK, as Administrative Agent and as a Bank, By: /s/ Stacey Haimes ---------------------------------- Name: Stacey Haimes Title: Vice President MERRILL LYNCH 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/ Richard Dacosta ---------------------------------- Name: Richard DaCosta Title: Group Vice President By: /s/ David A. Carroll ---------------------------------- Name: David A. Carroll Title: Assistant Vice President ALLIANCE CAPITAL FUNDING, L.L.C, By: /s/ Joel Serebransky ---------------------------------- Name: Joel Serebransky Title: Senior Vice President ALLIANCE INVESTMENTS LIMITED By: /s/ Joel Serebransky ---------------------------------- Name: Joel Serebransky Title: Senior Vice President ARCHIMEDES FUNDING II, LTD., By: ING Capital Advisors LLC, as Collateral Manager By: /s/ Jonathan S. David ---------------------------------- Name: Jonathan S. David Title: Vice President BANKBOSTON, N.A., By: ---------------------------------- Name: Title: BANK OF AMERICA, N.A., By: ---------------------------------- Name: Title: THE BANK OF NOVA SCOTIA, By: /s/ T.M. Pitcher ---------------------------------- Name: T.M. Pitcher Title: Authorized Signatory BANK OF TOKYO-MITSUBISHI TRUST CO., By: /s/ Chris Broussiotis ---------------------------------- Name: Chris Broussiotis Title: Vice President BANK ONE, N.A. (Main Office: Chicago), By: ---------------------------------- Name: Title: BNP PARIBAS, as Co-Agent, By: /s/ Stephanie Rogers ---------------------------------- Name: Stephanie Rogers Title: Vice President By: /s/ Duane P. Hekowski ---------------------------------- Name: Duane P. Hekowski Title: Director BHF (USA) CAPITAL CORPORATION, By: /s/ Hans J. Schotz ---------------------------------- Name: Hans J. Schotz Title: Vice President By: /s/ John J. D'Angelo ---------------------------------- Name: John J. D'Angelo Title: Vice President Asset Management BALANCED HIGH YIELD FUND I LTD., By: BHF (USA) Capital Corporation as Attorney-in-Fact By: /s/ Hans J. Schotz ---------------------------------- Name: Hans J. Schotz Title: Vice President By: /s/ John J. D'Angelo ---------------------------------- Name: John J. D'Angelo Title: Vice President BALANCED HIGH YIELD FUND II LTD., By: (USA) Capital Corporation By: /s/ Hans J. Schotz ---------------------------------- Name: Hans J. Schotz Title: Vice President By: /s/ John J. D'Angelo ---------------------------------- Name: John J. D'Angelo Title: Vice President Asset Management BANKERS TRUST COMPANY, By: /s/ Scottye D. Lindsey ---------------------------------- Name: Scottye D. Lindsey Title: Vice President CAPTIVA III FINANCE, LTD., as advised by Pacific Investment Management Company LLC By: /s/ David Dyer ---------------------------------- Name: David Dyer Title: Director CHASE SECURITIES INC., as Agent for THE CHASE MANHATTAN BANK, By: /s/ J. Matthew Lyness ---------------------------------- Name: J. Matthew Lyness Title: Managing Director CIBC, INC., BY: CIBC World Markets Corp., as Agent, By: /s/ Stephanie E. DeVane ---------------------------------- Name: Stephanie E. DeVane Title: Executive Director CITY NATIONAL BANK, By: ---------------------------------- Name: Title: CONTINENTAL ASSURANCE COMPANY, By: /s/ Mark L. Gold ---------------------------------- Name: Mark L. Gold Title: Managing Director CREDIT INDUSTRIEL ET COMMERCIAL, By: /s/ Anthony Rock ---------------------------------- Name: Anthony Rock Title: Vice President By: /s/ Marcus Edward ---------------------------------- Name: Marcus Edward Title: Vice President CREDIT SUISSE FIRST BOSTON, By: ---------------------------------- Name: Title: THE DAI-ICHI KANGYO BANK, LIMITED, By: ---------------------------------- Name: Title: ELC (CAYMAN) LTD., By: /s/ Joseph H. Towell ---------------------------------- Name: Joseph H. Towell Title: Senior Vice President EATON VANCE INSTITUTIONAL SENIOR LOAN FUND, By: Eaton Vance Management as Investment Advisor By: /s/ Payson F. Swaffield ---------------------------------- Name: Payson F. Swaffield Title: Vice President EATON VANCE SENIOR INCOME TRUST, By: Eaton Vance Management as Investment Advisor, By: /s/ Payson F. Swaffield ---------------------------------- Name: Payson F. Swaffield Title: Vice President ERSTE BANK, By: /s/ Rima Terradista ---------------------------------- Name: Rima Terradista Title: Vice President By: /s/ John S. Runnion ---------------------------------- Name: John S. Runnion Title: Managing Director FIRSTRUST BANK, By: /s/ Kent D. Nelson ---------------------------------- Name: Kent D. Nelson Title: Vive President and Manager FLEET NATIONAL BANK, By: /s/ Christopher J. Wickles ---------------------------------- Name: Christopher J. Wickles Title: Vice President Franklin CLO I, Limited By: /s/ Chauncey Lufkin ---------------------------------- Name: Chauncey Lufkin Title: Vice President FRANKLIN FLOATING RATE TRUST, By: /s/ Chauncey Lufkin ---------------------------------- Name: Chauncey Lufkin Title: Vice President GALAXY CLO 1999-1, LTD., By: SAI Investment Advisor, Inc., as its Collateral Manager By: /s/ Thomas G. Brandt ---------------------------------- Name: Thomas G. Brandt Title: Authorized Agent GENERAL ELECTRIC CAPITAL CORPORATION., By: /s/ Gregory Hong ---------------------------------- Name: Gregory Hong Title: Duly Authorized Signatory GRAYSON & CO., By: /s/ Payson F. Swaffield ---------------------------------- Name: Payson F. Swaffield Title: Vice President HSBC BANK USA, By: /s/ Thomas J. Crowley ---------------------------------- Name: Thomas J. Crowley Title: Vice President INDOSUEZ CAPITAL FUNDING IV, L.P., By: /s/ Melissa Marano ---------------------------------- Name: Melissa Marano Title: Vice President THE INDUSTRIAL BANK OF JAPAN LIMITED, By: /s/ J. Kenneth Biegen ---------------------------------- Name: J. Kenneth Biegen Title: Senior Vice President PPM AMERICA,INC., as attorney in fact, on behalf of JACKSON NATIONAL LIFE INSURANCE CO., By: /s/ John Walding ---------------------------------- Name: John Walding Title: Managing Director KZH CNC LLC, By: /s/ Kimberly Rowe ---------------------------------- Name: Kimberly Rowe Title: Authorized Agent KZH CRESCENT LLC, By: /s/ Kimberly Rowe ---------------------------------- Name: Kimberly Rowe Title: Authorized Agent KZH CRESCENT-2 LLC, By: /s/ Kimberly Rowe ---------------------------------- Name: Kimberly Rowe Title: Authorized Agent KZH CYPRESSTREE-1 LLC, By: /s/ Kimberly Rowe ---------------------------------- Name: Kimberly Rowe Title: Authorized Agent KZH LANGDALE LLC, By: /s/ Kimberly Rowe ---------------------------------- Name: Kimberly Rowe Title: Authorized Agent KZH ING-2 LLC, By: /s/ Kimberly Rowe ---------------------------------- Name: Kimberly Rowe Title: Authorized Agent MELLON BANK, N.A., By: /s/ Alexandra M. Dulchinos ---------------------------------- Name: Alexandra M. Dulchinos Title: Vice President MERRILL LYNCH CAPITAL CORPORATION, By: /s/ PAUL FOX ---------------------------------- Name: Paul Fox Title: Vice President MITSUBISHI TRUST & BANKING CORP., By: /s/ Toshihiro Hayashi ---------------------------------- Name: Toshihiro Hayashi Title: Senior Vice President ML CLO XV PILGRIM AMER (CAYMAN) LTD., By: Pilgrim Investments, Inc. as its Investment Manager, By: /s/ Mark F. Haak ---------------------------------- Name: Mark F. Haak Title: Assistant Vice President NATEXIS BANQUE POPULAIRES, By: /s/ Gary Kania ---------------------------------- Name: Gary Kania Title: Vice President By: /s/ Jordan Levy ---------------------------------- Name: Jordan Levy Title: Associate NEW YORK LIFE INSURANCE COMPANY, By: /s/ David Melka ---------------------------------- Name: David Melka Title: Second Vice President NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION, By: New York Life Insurance Management, LLC, as Investment Manager By: /s/ F. David Melka ---------------------------------- Name: F. David Melka Title: F. David Melka OXFORD STRATEGIC INCOME FUND, By: /s/ Payson F. Swaffield ---------------------------------- Name: Payson F. Swaffield Title: Vice President PILGRIM AMER. HIGH INCOME INVEST. LTD., By: /s/ Mark F. Haak ---------------------------------- Name: Mark F. Haak Title: Assistant Vice President PILGRIM CLO 1999-1 LTD., By: /s/ Mark F. Haak ---------------------------------- Name: Mark F. Haak Title: Assistant Vice President SENIOR DEBT PORTFOLIO, By: /s/ Payson F. Swaffield ---------------------------------- Name: Payson F. Swaffield Title: Vice President SEQUILS I, LTD., By: /s/ Mark Gold ---------------------------------- Name: Mark Gold Title: Managing Director THE SUMITOMO BANK, LIMITED NEW YORK BRANCH, By: /s/ Suresh S. Tata ---------------------------------- Name: Suresh S. Tata Title: Senior Vice President VAN KAMPEN CLO I, LIMITED, By: /s/ Douglas L. Winchell ---------------------------------- Name: Douglas L. Winchell Title: Vice President VAN KAMPEN PRIME RATE INCOME TRUST, By: /s/ Douglas L. Winchell ---------------------------------- Name: Douglas L. Winchell Title: Vice President WINGED FOOT FUNDING TRUST, By: /s/ Ann E. Morris ---------------------------------- Name: Ann E. Morris Title: Authorized Agent TORONTO DOMINION BANK, By: ---------------------------------- Name: Title: THE CHASE MANHATTAN BANK OF CANADA, By: /s/ Christine Chan ---------------------------------- Name: Christine Chan Title: Vice President By: /s/ Drew Mcdonald ---------------------------------- Name: Drew McDonald Title: Vice President
