[CONFORMED COPY]
FIRST AMENDMENT AND CONSENT
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FIRST AMENDMENT AND CONSENT (this "Consent"), dated as of June 9,
1998, among XXXXXX XXXXXX VISIONCARE, INC. ("Holdings"), XXXXXX-XXXXXX
CORPORATION (the "Borrower"), the financial institutions party to the Credit
Agreement referred to below (the "Banks") and BANKERS TRUST COMPANY, as agent
(the "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 Agent are parties
to a Credit Agreement, dated as of February 19, 1997 and amended and restated as
of September 10, 1997 (as modified, supplemented and amended to, but not
including, the date hereof, the "Credit Agreement");
WHEREAS, the Borrower has requested that the Agent and the Banks agree
to the amendments and grant the consents provided herein, and the Agent and the
Banks (subject to the terms and conditions hereof) are willing to agree to such
amendments and grant such consent;
NOW, THEREFORE, it is agreed:
1. On the Consent Effective Date (as hereinafter defined), the
Revolving Loan Commitment of Bankers Trust Company shall be increased from
$20,000,000 to $55,000,000, and in connection therewith, the Borrower shall in
coordination with the Agent and the Banks repay outstanding Revolving Loans of
certain Banks, and, if necessary, incur additional Revolving Loans from other
Banks, in each case so that the Banks participate in each Borrowing of Revolving
Loans pro rata on the basis of the Revolving Loan Commitments (after giving
effect to this Consent). It is hereby agreed that any breakage costs incurred by
the Banks in connection with the repayment of Revolving Loans contemplated by
this Section 1 shall be for the account of the Borrower. On the Consent
Effective Date, Annex I to the Credit Agreement shall be deemed amended to read
as set forth in Annex I hereto to give effect to the foregoing.
2. Notwithstanding anything to the contrary contained in Section
8.06 of the Credit Agreement, in addition to any other Dividends permitted under
such Section, (a) at any time and from time to time Holdings may redeem or
purchase shares of Holdings Common Stock, provided that the aggregate amount
expended by Holdings to redeem or purchase such Holdings Common Stock pursuant
to this Consent shall not exceed $35,000,000, and (b) so long as no Default or
Event of Default then exists or would result therefrom, the Borrower may pay
cash Dividends to Holdings so long as the cash proceeds thereof are promptly
used by Holdings for the purpose described in clause (a) above.
3. In order to induce the Agent and the Banks to enter into this
Consent, the Borrower hereby represents and warrants that (i) no Default or
Event of Default exists on the Consent Effective Date (as defined below) both
before and after giving effect to this Consent and (ii) all of the
representations and warranties contained in the Credit Agreement or the other
Credit Documents are true and correct in all material respects on the date
hereof and on the Consent Effective Date with the same effect as though such
representations and warranties had been made on and as of such date (it being
understood that any representation or warranty made as of a specific date shall
be true and correct in all material respects as of such specific date).
4. 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.
5. 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 instrument. A complete set of
counterparts shall be lodged with each of the Borrower and the Agent.
6. 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.
7. This Consent shall become effective on the date (the "Consent
Effective Date") when each of the following conditions precedent have been
satisfied:
(a) each of Holdings, the Borrower, the Required Banks and
Bankers Trust Company shall have signed a copy hereof (whether the
same or different copies) and shall have delivered (including by way
of telecopier) the same to the Agent;
(b) the Borrower shall have delivered to Bankers Trust Company a
new Revolving Note reflecting its increased Revolving Loan Commitment,
which Note shall be issued in exchange for the Revolving Note
currently held by Bankers Trust Company; and
(c) the Borrower shall have delivered to the Agent a certified
copy of resolutions duly adopted by the Borrower authorizing the
increase in the Total Revolving Loan Commitment contemplated by this
Consent.
8. From and after the Consent Effective Date, all references in the
Credit Agreement and each of the Credit Documents to the Credit Agreement shall
be deemed to be references to such Credit Agreement as amended hereby.
***
-2-
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.
XXXXXX XXXXXX VISIONCARE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Chief Financial Officer
XXXXXX XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Chief Financial Officer
BANKERS TRUST COMPANY,
individually and as Agent
By: /s/ Xxxx Xxx Xxxxx
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Name: Xxxx Xxx Xxxxx
Title: Managing Director
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx XxXxxxxxx
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Name: Xxxxx XxXxxxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President
LASALLE NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: First Vice President
NATIONAL BANK OF CANADA
By: /s/ Xxxxxx X. Xxxx, Xx.
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Name: Xxxxxx X. Xxxx, Xx.
Title: Assistant Vice President
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
SOCIETE GENERALE
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
BANK POLSKA KASA OPIEKI, SA
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President & Senior Lending Officer
ANNEX I
LIST OF BANKS
Revolving Loan
Bank Commitment
---- --------------
Bankers Trust Company $ 55,000,000
Bank Polska Kasa Opieki, SA $ 5,000,000
The First National Bank of Chicago $ 22,000,000
Fleet National Bank $ 20,000,000
Xxxxxx Trust and Savings Bank $ 20,000,000
Societe Generale $ 20,000,000
LaSalle National Bank $ 16,000,000
National Bank of Canada $ 12,000,000
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Total $170,000,000
