AMENDMENT
AMENDMENT No. 1 (this "Amendment"), effective as of March 1, 2003 (the
"Amendment Effective Date"), to that certain Credit Agreement (the "Credit
Agreement"), dated as of May 2, 2002, among (i) Xxxxx Xxxxxx, Inc., a Delaware
corporation (the "Borrower"), (ii) the several Guarantors from time to time
parties thereto (the "Guarantors"), (iii) JPMorgan Chase Bank ("JPMCB"), as Sole
Lead Arranger (in such capacity, the "Sole Lead Arranger"), Sole Bookrunner (in
such capacity, the "Sole Bookrunner"), Swingline Lender (in such capacity, the
"Swingline Lender"), Issuing Lender (in such capacity, the "Issuing Lender"),
and Administrative Agent for the Lenders thereunder (in such capacity, the
"Administrative Agent"), (iv) Fleet National Bank (in such capacity, the
"Syndication Agent") and (v) the several Lenders and other financial
institutions or entities from time to time parties thereto (the "Lenders").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make
certain extensions of credit to the Borrower; and
WHEREAS, the Borrower and Lenders have agreed that certain provisions of
the Credit Agreement will be amended in the manner provided for in this
Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
I. AMENDMENTS TO CREDIT AGREEMENT.
(a) Subsection 8.14 of the Credit Agreement is hereby amended by
deleting clause (d) thereof and inserting in lieu thereof, the following: "(d)
the Borrower may declare or pay cash dividends in any fiscal year to its
stockholders and purchase, redeem or otherwise acquire shares of its Equity
Interests or warrants, rights or options to acquire any such shares for cash;
provided that no such cash payments (1) in any fiscal quarter of the Borrower
(other than any such payments which are specified in clause (2) below) shall
exceed (x) the greater of (A) $25,000,000 and (B) 40 percent of the consolidated
net income of the Borrower and its Subsidiaries for the period of the four prior
consecutive fiscal quarters of the Borrower (determined on a consolidated basis
and as calculated consistent with the manner disclosed by the Borrower in its
Quarterly Reports on Form 10-Q and its Annual Reports on Form 10-K as filed by
the Borrower from time to time with the Securities and Exchange Commission),
less (y) any such cash payments previously made during such four fiscal quarter
period, or (2) may be made by the Borrower, in an aggregate amount exceeding
$120,000,000, to repurchase shares of the Company's common stock, $.01 par value
per share, from holders thereof pursuant to the Borrower's stock repurchase
program, as authorized by the Board of Directors of the Borrower on or about
March 3, 2003; provided further that not more than 2,000,000 of such shares may
be repurchased by the Borrower pursuant to such program. For the avoidance of
doubt, no cash payments made pursuant to the foregoing clause (2) shall reduce
cash payments made by the Borrower solely in reliance on the foregoing clause
(1).
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II. CONDITIONS TO EFFECTIVENESS.
This Amendment shall become effective as of the date (the "Amendment
Effective Date") at the time when the Borrower, the Guarantors, the
Administrative Agent and the Majority Lenders shall have executed and delivered
to the Administrative Agent this Amendment.
III. GENERAL.
1. Representation and Warranties. To induce the Administrative Agent and
the Lenders party hereto to enter into this Amendment, the Borrower hereby
represents and warrants to the Administrative Agent and all of the Lenders that
as of the Amendment Effective Date:
(a) Corporate Power; Authorization; Enforceable Obligations.
(1) Each of the Borrower and each Guarantor has the requisite
corporate power and authority, and the legal right, to make, deliver and perform
this Amendment and to perform the Loan Documents, as amended by this Amendment,
to which it is a party, and each such Person has taken all necessary corporate
action to authorize the execution, delivery and performance of this Amendment
and the performance of the Loan Documents, as so amended, to which it is a
party.
(2) No consent or authorization of, approval by, notice to,
filing with or other act by or in respect of, any Governmental Authority or any
other Person is required with respect to the Borrower or any of its Subsidiaries
in connection with the execution and delivery of this Amendment or with the
performance, validity or enforceability of the Loan Documents, as amended by
this Amendment.
(3) This Amendment and each Loan Document, as amended by this
Amendment, constitutes a legal, valid and binding obligation of each of the
Borrower and each Guarantor, as the case may be, enforceable against each such
Person in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting the enforcement of creditors' rights generally,
general equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(b) Representations and Warranties. Each of the representations and
warranties made by the Borrower or any Guarantor in or pursuant to the Loan
Documents is true and correct in all material respects on and as of the date
hereof as if made on and as of the date hereof (or, if such representation or
warranty is expressly stated to have been made as of a specific date, as of such
specific date).
2. Payment of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment, any other documents prepared in
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connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
3. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement and the
other Loan Documents are and shall remain in full force and effect.
4. Governing Law; Counterparts. (a) This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties
hereto on any number of separate counterparts (including by facsimile
transmission), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of copies of this Amendment signed
by all of the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
IN WITNESS WHEREOF, the parties hereto caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.
BORROWER:
XXXXX XXXXXX, INC.
By:
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Name:
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Title:
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GUARANTORS:
XXXXX XXXXXX, INC.
By:
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Name:
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Title:
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DENTRIX DENTAL SYSTEMS, INC.
By:
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Name:
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Title:
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HSI SERVICE CORP.
By:
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Name:
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Title:
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MICRO BIO-MEDICS, INC.
By:
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Name:
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Title:
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GIV HOLDINGS, INC.
By:
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Name:
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Title:
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LENDERS:
JPMORGAN CHASE BANK,
as Administrative Agent, Issuing Lender, Swingline Lender
and as a Lender
By:
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Name:
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Title:
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FLEET NATIONAL BANK, as Syndication Agent and as a Lender
By:
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Name:
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Title:
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CITIBANK N.A., as a Lender
By:
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Name:
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Title:
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HSBC BANK USA, as a Lender
By:
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Name:
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Title:
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MELLON BANK, N.A., as a Lender
By:
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Name:
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Title:
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THE BANK OF NEW YORK, as a Lender
By:
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Name:
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Title:
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XXXXX FARGO BANK, NATIONAL ASSOCIATION, as a Lender
By:
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Name:
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Title:
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ISRAEL DISCOUNT BANK OF NEW YORK, as a Lender
By:
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Name:
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Title:
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