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AMENDMENT NO. 7 AND CONSENT
Amendment No. 7 and Consent (this "Consent"), dated as of
August 28, 2000, among ALARIS MEDICAL, INC. a Delaware corporation
("Holdings"), ALARIS MEDICAL SYSTEMS, 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, Holdings, the Borrower, the Banks and the Agents
are parties to a Credit Agreement, dated as of November 26, 1996 (as
modified, supplemented and amended to, but not including, the date hereof,
the "Credit Agreement");
WHEREAS, The Borrower wishes to consummate a transaction
whereby it will sell (the "Instromedix Sale") all or substantially all of the
business and assets of its Instromedix division ("Instromedix") to Card Guard
Technologies, Inc. ("Card Guard") pursuant to terms substantially the same as
those set forth in the "Summary of Alaris/Card Guard Transaction" attached
hereto as Exhibit A (the "Instromedix Sale Summary");
WHEREAS, the gross cash proceeds paid by Card Guard in
consideration of the Instromedix Sale will be $30,000,000 (the "Aggregate
Instromedix Purchase Price") and will be paid to the Borrower in two or more
installments (the first such installment payment, the "First Installment
Payment" and each subsequent installment payment, a "Subsequent Installment
Payment");
WHEREAS, $5,000,000 (subject to certain purchase price
adjustments as described in the Instromedix Sale Summary) of the Aggregate
Instromedix Purchase Price will constitute the aggregate amount of all the
Subsequent Installment Payments and will be, at the time of the First
Installment Payment, deposited in an interest-bearing escrow account to
secure the Borrower's indemnity, inventory supply and certain other
obligations to Card Guard in connection with the Instromedix Sale and will
not be paid to the Borrower until the completion of the development and
implementation of a new facility which will enable Card Guard to operate the
Instromedix Business on a stand-alone basis;
WHEREAS, The Borrower wishes to consummate a transaction
whereby it will sell (the "Creedmoor Sale") the Creedmoor Property owned by
it in Creedmoor, North Carolina;
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WHEREAS, the approval of the Required Banks is required (i)
to permit Borrower to consummate the Instromedix Sale and the Creedmoor Sale
and (ii) for the other amendments set forth in this Consent; and
WHEREAS, Holdings and the Borrower have requested that the
Banks grant, and the Banks are willing to grant (subject to the terms and
conditions hereof), a consent to permit the Instromedix Sale and the
Creedmoor Sale, and the parties hereto have further agreed to amend the
Credit Agreement as set forth herein:
NOW, THEREFORE, it is agreed:
1. Notwithstanding anything to the contrary contained in
Section 8.02 of the Credit Agreement, the Banks hereby agree that the
Borrower may consummate the Instromedix Sale as contemplated above provided
that:
a. such sale is on terms substantially similar to
those set forth in the Instromedix Sale Summary;
b. such sale will be for an amount at least equal to
the fair market value thereof (as determined in good faith by senior
management of the Borrower);
c. such sale will result in consideration at least
80% of which (taking the amount of cash, the principal amount of any
promissory notes and the fair market value, as determined in good
faith by senior management of the Borrower, of any other
consideration) shall be in the form of cash or cash equivalents (it
being understood that any assumed debt shall be considered cash for
this purpose);
d. on the date the Borrower receives the First
Installment Payment, the Borrower shall apply that portion of the Net
Proceeds (in calculating Net Proceeds in connection with the
Instromedix Sale, the costs associated with the divestiture of
Instromedix from the Borrower and the costs of the free services to be
provided in connection with such divestiture shall be considered cash
expenses of sale) from the Instromedix Sale received by the Borrower
on such date plus $5,000,000 (the "Prepayment Amount") to repay Term
Loans in accordance with Section 4.02(A)(c) of the Credit Agreement;
it being acknowledged and agreed that for the purposes of this clause
(d) and Section 4.02(A)(c) of the Credit Agreement, all Subsequent
Installment Payments shall be deemed to have been made
contemporaneously with the First Installment Payment and the Borrower
shall not be required to thereafter apply any Net Proceeds from any
Subsequent Installment Payment (or the Instromedix Sale) unless the
Proceeds therefrom (when added to the aggregate amount of all other
Subsequent Installment Payments) exceed $5,000,000; and
e. to the extent that it is determined that the
initial estimated amount of incremental income taxes payable as a
result of the Instromedix Sale (as set forth in a certificate to be
provided by the Borrower to the Agents prior to the Consent Effective
Date (as defined below)) exceed the actual amount of incremental
income taxes paid as a
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result of the Instromedix Sale, the difference shall be deemed to be
Net Proceeds of the Instromedix Sale and shall be applied as of such
date in accordance with Section 4.02(A)(c) of the Credit Agreement.
2. Notwithstanding anything to the contrary contained in
Section 8.02 of the Credit Agreement, the Banks hereby agree that the
Borrower may consummate the Creedmoor Sale as contemplated above provided
that:
a. such sale is consummated no later than December
31, 2000;
b. such sale will be for an amount at least equal
to the fair market value thereof (as determined in good faith by
senior management of the Borrower);
c. such sale will result in consideration at least
80% of which (taking the amount of cash, the principal amount of any
promissory notes and the fair market value, as determined in good
faith by senior management of the Borrower, of any other
consideration) shall be in the form of cash or cash equivalents (it
being understood that any assumed debt shall be considered cash for
this purpose); and
d. the Net Proceeds from assets sold are applied to
repay Term Loans as provided in Section 4.02(A)(c) of the Credit
Agreement.
3. Notwithstanding anything to the contrary contained in
Section 8.04 of the Credit Agreement, the Banks hereby acknowledge and agree
that in connection with the Instromedix Sale and as described in the
Instromedix Sale Summary, Holdings shall be permitted to guarantee the
payment and performance obligations of the Borrower incurred in connection
with the Instromedix Sale.
4. Notwithstanding anything to the contrary contained in
the definition of "Consolidated Fixed Charges" appearing in Section 10 of the
Credit Agreement, for the purposes of calculating Consolidated Fixed Charges
of Holdings and its Subsidiaries and determining whether Holdings and its
Subsidiaries are in compliance with Section 8.12 of the Credit Agreement, the
Banks hereby acknowledge and agree that the incremental taxes payable as a
result of the Instromedix Sale shall be deemed to be paid in Holdings' fiscal
quarter ending September 30, 2000, notwithstanding the fact that such income
tax payment obligations shall be paid by Holdings in a quarter or quarters
other than Holdings' fiscal quarter ending September 30, 2000.
5. Section 10 of the Credit Agreement is hereby amended by
deleting the definition of "Cash Equivalents" in its entirety and inserting
the new definition of "Cash Equivalents" in lieu thereof:
"Cash Equivalents" shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (PROVIDED, that the
full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than twelve months from
the date of acquisition, (ii) U.S. dollar denominated time deposits,
certificates of deposit, eurodollar
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time deposits, overnight bank deposits and bankers' acceptances of
(x) any Bank or (y) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from
Moody's is at least P-1 or the equivalent thereof (any such bank or
Bank, an "Approved Bank"), in each case with maturities of not more
than twelve months from the date of acquisition, (iii) commercial
paper issued by any Approved Bank or by the parent company of any
Approved Bank and commercial paper issued by, or guaranteed by, any
industrial or financial company with a short-term commercial paper
rating of at least A-1 or the equivalent thereof by S&P or at least
P-1, or the equivalent thereof by Moody's, or guaranteed by any
industrial company with a long term unsecured debt rating of at least
A or A2, or the equivalent of each thereof, from S&P or Moody's, as
the case may be, and in each case maturing within twelve months after
the date of acquisition, (iv) marketable direct obligations issued by
any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof
maturing within twelve months from the date of acquisition thereof
and, at the time of acquisition, having short-term commercial paper
rating from S&P at least A-1 or the equivalent thereof or from
Moody's at least P-1 or the equivalent thereof; (v) repurchase
obligations with respect to underlying securities of the type
described in clauses (i), (ii), (iii) and (iv) of any Approved Bank
or securities dealer whose short-term commercial paper rating from
S&P is at least A-1 or the equivalent thereof or from Moody's at
least P-1 or the equivalent thereof, with a term of not more than
seven days and (vi) investments in money market funds substantially
all the assets of which are comprised of securities of the types
described in clauses (i) through (v) above.
6. The Banks hereby acknowledge and agree that the
Collateral that is sold pursuant to the Instromedix Sale and the Creedmoor
Sale will, upon the application of the Net Proceeds therefrom (or, in the
case of the Instromedix Sale, upon application of the Prepayment Amount) as
provided in this Consent, be sold free and clear of the Liens created by the
Security Agreement and the Mortgage covering the Creedmoor Property and the
Collateral Agent, at the request and expense of the Borrower, will duly
assign, transfer and deliver to the Borrower (without recourse and without
any representation or warranty) such Collateral.
7. In order to induce the Banks to enter into this Consent,
each of Holdings and the Borrower hereby represents and warrants that (i) the
representations, warranties and agreements contained in the Credit Agreement
and the other Credit Documents are true and correct in all material respects
on and as of the Consent Effective Date, both before and after giving effect
to this Amendment, and (ii) there exists no Default or Event of Default on
the Consent Effective Date, both before and after giving effect to this
Consent.
8. This Consent 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.
9. This Consent 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
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instrument. A complete set of counterparts shall be lodged with Holdings, the
Borrower and the Agents
10. THIS CONSENT 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.
11. This Consent shall become effective on the date (the
"Consent Effective Date") when each of Holdings, the Borrower, the Agents and
the Required Banks shall have signed a counterpart hereof (whether the same
or different counterparts) and shall have delivered (including by way of
telecopier) the same to the Administrative Agent at the Notice Office.
12. From and after the Consent Effective Date, all
references in the Credit Agreement and in the other Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Consent to be duly executed and delivered as of the date
first above written.
ALARIS MEDICAL, INC.
By
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Name:
Title:
ALARIS MEDICAL SYSTEMS, INC.
By
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Name:
Title:
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By
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Name:
Title:
PARIBAS,
Individually and as Documentation Agent
By
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Name:
Title:
By
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Name:
Title:
PARIBAS CAPITAL FUNDING
By
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Name:
Title:
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GENERAL ELECTRIC CAPITAL CORPORATION
By
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Name:
Title:
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UNION BANK OF CALIFORNIA, N.A.
By
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Name:
Title:
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U.S. BANK NATIONAL ASSOCIATION
By
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Name:
Title:
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IBJ WHITEHALL BANK & TRUST COMPANY
By
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Name:
Title:
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MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By
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Name:
Title:
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SENIOR HIGH INCOME PORTFOLIO, INC.
By
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Name:
Title:
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ELF FUNDING TRUST I
By: Highland Capital Management L.P.,
as Collateral Manager
By
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Name:
Title:
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JACKSON NATIONAL LIFE INSURANCE COMPANY
By: PPM America, Inc., as attorney in fact,
on behalf of Jackson National Life
Insurance Company
By
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Name:
Title:
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CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company, its
Investment Manager
By
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Name:
Title:
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METROPOLITAN LIFE INSURANCE COMPANY
By
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Name:
Title:
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OCTAGON INVESTMENT PARTNERS II
By: Octagon Credit Investors, LLC, as
Subinvestment Manager
By
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Name:
Title:
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OCTOGAN LOAN TRUST
By: Octagon Credit Investors, as Manager
By
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Name:
Title:
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INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital, as Portfolio Advisor
By
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Name:
Title:
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PRIME INCOME TRUST
By: Morgan Stanley Dean Witter Advisors Inc.
By
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Name:
Title:
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By
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Name:
Title:
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COMMERCIAL LOAN FUNDING TRUST I
By: Lehman Commercial Paper Inc., not in single
capacity but solely as Administrative Agent
By
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Name:
Title:
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PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.,
as Collateral Manager
By
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Name:
Title:
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PAM CAPITAL FUNDING L.P.
By: Highland Capital Management, L.P.,
as Collateral Agent
By:
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Name:
Title:
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KZH CRESCENT-3 LLC
By:
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Name:
Title:
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By:
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Name:
Title:
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EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management, as Investment
Advisor
By:
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Name:
Title:
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OXFORD STRATEGIC INCOME FUND
By: Eaton Vance Management, as Investment
Advisor
By:
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Name:
Title:
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TRANSAMERICA BUSINESS CREDIT CORPORATION
By
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Name:
Title:
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INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital as Portfolio Advisor
By:
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Name:
Title:
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INDOSUEZ CAPITAL FUNDING IV, LP
By: Indosuez Capital as Portfolio Advisor
By
--------------------------------
Name:
Title:
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MERRILL LYNCH DEBT STRATEGIES FUND III, INC.
By
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Name:
Title:
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UNITED OF OMAHA LIFE INSURANCE COMPANY
By: TCW Asset Management Company, its
Investment Manager
By
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Name:
Title:
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SEQUILS I LTD
By: TCW Asset Management Company, its
Investment Manager
By
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Name:
Title:
