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AMENDMENT NO. 7 AND CONSENT
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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:
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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: 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
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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:
