EXHIBIT 10.26
EXECUTION VERSION
FIRST AMENDMENT
FIRST AMENDMENT, dated as of December 10, 2001 (the "First Amendment"), to
the THREE YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT (the
"Credit Agreement"; unless otherwise defined herein, capitalized terms which are
defined in the Credit Agreement are used herein as defined therein) dated as of
July 31, 2001, among XXXXXX HOLDINGS, INC., a Delaware corporation (the
"Company"), XXXXXX, INC., a Delaware corporation ("Zimmer" and together with the
Company, the "U.S. Borrowers"), XXXXXX X.X., a company organized under the laws
of Japan (the "Japanese Borrower"), ZIMMER LTD., a company incorporated under
the laws of England and Wales (the "Euro Borrower"), the BORROWING SUBSIDIARIES
(as defined herein), the lenders parties thereto (the "Lenders"), JPMORGAN CHASE
BANK (formerly known as THE CHASE MANHATTAN BANK), a New York banking
corporation, as administrative agent for the Lenders (in such capacity, the
"General Administrative Agent"), JPMORGAN CHASE BANK, TOKYO BRANCH (formerly
known as THE CHASE MANHATTAN BANK, TOKYO BRANCH), as administrative agent for
the Japanese Lenders (in such capacity, the "Japanese Administrative Agent"),
CHASE MANHATTAN INTERNATIONAL LIMITED, as administrative agent for the Euro
Lenders (in such capacity, the "Euro Administrative Agent"), BANK OF AMERICA,
N.A., as syndication agent for the Lenders (in such capacity, the "Syndication
Agent"), JPMORGAN CHASE BANK (formerly known as THE CHASE MANHATTAN BANK), as
competitive advance facility agent (in such capacity, the "Advance Agent"), ABN
AMRO BANK N.V., as co-Documentation Agent, FLEET NATIONAL BANK, as
co-Documentation Agent and SUNTRUST BANK, as co-Documentation Agent.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make,
and have made, certain loans and other extensions of credit to the Company; and
WHEREAS, the Company has requested, and, upon this First Amendment becoming
effective, the Lenders have agreed, that certain provisions of the Credit
Agreement be amended in the manner provided for in this First Amendment;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and in consideration of the premises, the parties
hereto hereby agree as follows:
ARTICLE I.
AMENDMENTS
SECTION 1.1. Amendment to Section 1.1 of the Credit Agreement. The
definition of "Interest Period" in Section 1.1 of the Credit Agreement is hereby
amended by (a) inserting the text "either (x) on the day that is two weeks
thereafter or (y)" immediately after the word "ending" in clause (a) thereof and
(b) inserting the text "in each case" immediately after the comma after the
words "months thereafter" in clause (a) thereof.
SECTION 1.2. Amendment to Section 12.4(a) of the Credit Agreement. Section
12.4(a) of the Credit Agreement is hereby amended by inserting the following new
text immediately prior to the period at the end thereof:
"; provided, that for the purposes of determining the Consolidated
Leverage Ratio (i) as at the last day of the fiscal quarter of the
Company ending December 31, 2001, Consolidated EBITDA for such period
shall be deemed to equal Consolidated EBITDA for the fiscal quarter of
the Company ending on such date multiplied by four; (ii) as at the
last day of the two consecutive fiscal quarter period of the Company
ending March 31, 2002, Consolidated EBITDA for such period shall be
deemed to equal Consolidated EBITDA for such two consecutive fiscal
quarters of the Company ending on such date multiplied by two; and
(iii) as at the last day of the three consecutive fiscal quarter
period of the Company ending June 30, 2002, Consolidated EBITDA for
such period shall be deemed to equal Consolidated EBITDA for such
three consecutive fiscal quarters of the Company ending on such date
multiplied by 4/3".
ARTICLE II.
MISCELLANEOUS
SECTION 2.1. Conditions to Effectiveness of the First Amendment. This First
Amendment shall become effective as of the date first set forth above (the
"First Amendment Effective Date") at such time that the General Administrative
Agent shall have received counterparts of this First Amendment duly executed and
delivered by a duly authorized officer of each of the U.S. Borrowers, the Euro
Borrower, the Japanese Borrower, the Required Lenders and the Administrative
Agents.
SECTION 2.2. Representations and Warranties. The Company represents and
warrants to each Lender that as of the First Amendment Effective Date: (a) this
First Amendment constitutes the legal, valid and binding obligation of the
Credit Parties, enforceable against each Credit Party in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws affecting
creditors' rights generally, by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and an implied
covenant of good faith and fair dealing; (b) the representations and warranties
made by each Credit Party in the Loan Documents are true and correct in all
material respects on and as of the date hereof (except to the extent that such
representations and warranties are expressly stated to relate to an earlier
date, in which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date) and (c) no
Default or Event of Default shall have occurred and be continuing as of the date
hereof.
SECTION 2.3. Counterparts. This First Amendment may be executed by one or
more of the parties to this First Amendment 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 the copies of this First Amendment signed by all the parties shall be lodged
with the Company and the General Administrative Agent. The execution and
delivery of this First Amendment by any Lender shall be binding upon each of its
successors and assigns and binding in respect of all of its commitments and
Loans, including any acquired subsequent to its execution and delivery hereof
and prior to the effectiveness hereof.
SECTION 2.4. Continuing Effect; No Other Amendments. Except to the extent
the Credit Agreement is expressly amended hereby, all of the terms and
provisions of the Credit Agreement and the other Loan Documents are and shall
remain in full force and effect. This First Amendment shall constitute a Loan
Document.
SECTION 2.5. Payment of Expenses. The Company agrees to pay and reimburse
the General Administrative Agent for all of its out-of-pocket costs and
reasonable expenses incurred to date in connection with this First Amendment and
the other Loan Documents, including, without limitation, the reasonable fees and
disbursements of legal counsel to the General Administrative Agent.
SECTION 2.6. GOVERNING LAW. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
XXXXXX HOLDINGS, INC., as a Borrower and
a Guarantor
By:
-------------------------------
Name
Title:
XXXXXX, INC., as a Borrower and a Guarantor
By:
-------------------------------
Name
Title:
XXXXXX X.X.
By:
-------------------------------
Name
Title:
ZIMMER LTD.
By:
-------------------------------
Name
Title:
JPMORGAN CHASE BANK, individually and
as General Administrative Agent
By:
-------------------------------
Name:
Title:
JPMORGAN CHASE BANK, TOKYO
BRANCH, as Japanese Administrative Agent
By:
-------------------------------
Name:
Title:
CHASE MANHATTAN INTERNATIONAL
LIMITED, as Euro Administrative Agent
By:
-------------------------------
Name:
Title:
BANK OF AMERICA, N.A., individually and as
Syndication Agent
By:
-------------------------------
Name:
Title:
ABN AMRO BANK N.V., as Documentation
Agent
By:
-------------------------------
Name:
Title:
FLEET NATIONAL BANK, as Documentation
Agent
By:
-------------------------------
Name:
Title:
SUNTRUST BANK, as Documentation Agent
By:
-------------------------------
Name:
Title:
BNP PARIBAS
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
SUMITOMO MITSUI BANKING
CORPORATION
By:
-------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
By:
-------------------------------
Name:
Title:
BANK OF CHINA, NEW YORK BRANCH
By:
-------------------------------
Name:
Title:
BANCA NAZIONALE DEL LAVORO S.P.A.,
NEW YORK BRANCH
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.,
New York Branch
By:
-------------------------------
Name:
Title:
BAYERISCHE HYPO-UND VEREINSBANK
AG, NEW YORK BRANCH
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
COMERICA BANK
By:
-------------------------------
Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH
By:
-------------------------------
Name:
Title:
KEY BANK NATIONAL ASSOCIATION
By:
-------------------------------
Name:
Title:
NATIONAL CITY BANK OF INDIANA
By:
-------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
-------------------------------
Name:
Title:
THE NORINCHUKIN BANK, NEW YORK
BRANCH
By:
-------------------------------
Name:
Title:
THE SANWA BANK, LIMITED, NEW YORK
BRANCH
By:
-------------------------------
Name:
Title:
FIRSTAR BANK, N.A.
By:
-------------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By:
-------------------------------
Name:
Title:
FIFTH THIRD BANK
By:
-------------------------------
Name:
Title:
UNICREDITO ITALIANO
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
BANK HAPOALIM B.M.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
