EXHIBIT 10.1
EXECUTION COPY
AMENDMENT NO. 3 dated as of
September 11, 2003 (this "Amendment"), to
the Credit Agreement dated as of August 1,
2001, as amended by Amendment No. 1 dated as
of July 31, 2002 and Amendment No. 2 dated
as of May 23, 2003 (as so amended, the
"Credit Agreement"), among XXXXXX MEDICAL
GROUP, INC., a Delaware corporation, XXXXXX
MEDICAL TECHNOLOGY, INC., a Delaware
corporation, the LENDERS from time to time
party thereto, and JPMORGAN CHASE BANK, a
New York banking corporation formerly known
as The Chase Manhattan Bank, as
administrative agent and collateral agent
for such lenders and as issuing bank.
A. Pursuant to the Credit Agreement, the Lenders and the
Issuing Bank have extended credit to the Borrower, and have agreed to extend
credit to the Borrower, in each case pursuant to the terms and subject to the
conditions set forth therein.
B. Section 1.01 of the Credit Agreement defines the term
"Change in Control" to mean, among other things, an event whereby the Sponsor
and its Affiliates shall fail to own and have the right to vote shares
representing more than 30% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of Holdings.
C. The occurrence of a Change in Control constitutes a Default
and an Event of Default under paragraph (n) of Article VII of the Credit
Agreement.
D. Holdings has informed the Administrative Agent that the
Sponsor and its Affiliates have reduced their ownership interest in Holdings and
that on the date hereof the Sponsor and its Affiliates own and have the right to
vote shares representing approximately 26.85% of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of Holdings.
E. Pursuant to a Waiver dated as of August 29, 2003, the
Lenders have agreed to waive the Default and Event of Default under the Credit
Agreement arising from the occurrence of a Change in Control described in the
immediately preceding paragraph of this introductory statement.
F. Holdings and the Borrower desire to change the definition
of the term "Change in Control" and, accordingly, have informed the
Administrative Agent that they seek an amendment of Section 1.01 of the Credit
Agreement as set forth herein.
G. The Required Lenders are willing to agree to such amendment
pursuant to the terms, subject to the conditions and to the extent set forth
herein.
H. Each capitalized term used and not otherwise defined herein
shall have the meaning assigned to such term in the Credit Agreement, as amended
hereby.
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Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments. (a) Section 1.01 of the Credit
Agreement is hereby amended as follows:
(i) The definitions of "Co-Investor," "Continuing
Shareholders" and "Permitted Investors" are deleted in their entirety.
(ii) The definition of "Change in Control" is hereby amended
and restated in its entirety to read as follows:
"Change in Control" means any of the following events:
(a) any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the Effective Date), other than
the Sponsor and its Affiliates, an employee benefit plan of Holdings,
or a trustee or other fiduciary holding securities under an employee
benefit plan of Holdings, becomes, directly or indirectly, the
beneficial owner of shares representing more than 40% of the aggregate
ordinary voting power represented by the issued and outstanding capital
stock of Holdings;
(b) (i) occupation of a majority of the seats (other than
vacant seats) on the board of directors of Holdings or the Borrower by
Persons who were neither (x) nominated by the board of directors of
Holdings or the Borrower, as the case may be, nor (y) appointed by
directors so nominated or (ii) the occurrence of any change in control
or similar event (however denominated) with respect to Holdings or the
Borrower under and as defined in any other indenture or agreement in
respect of Material Indebtedness to which Holdings, the Borrower or a
Subsidiary is a party; or
(c) Holdings shall cease to directly own 100% of the issued
and outstanding capital stock of the Borrower.
SECTION 2. Representations and Warranties. Each of Holdings
and the Borrower represents and warrants to each other party hereto that (i)
this Amendment has been duly executed and delivered by each of Holdings and the
Borrower and constitutes a legal, valid and binding obligation of Holdings and
the Borrower, enforceable against it in accordance with its terms and (ii) after
giving effect to this Amendment (a) the representations and warranties set forth
in Article III of the Credit Agreement are true and correct in all material
respects on and as of the date hereof, except to the extent such representations
and warranties expressly relate to an earlier date (in which case such
representations and warranties were true and correct in all material respects as
of the earlier date), and (b) no Default or Event of Default has occurred and is
continuing.
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SECTION 3. Effectiveness. This Amendment shall become
effective as of the date set forth above on the date that the Administrative
Agent or its counsel shall have received counterparts of this Amendment that,
when taken together, bear the signatures of Holdings, the Borrower and the
Required Lenders.
SECTION 4. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Issuing Bank, Collateral Agent or the Administrative Agent, under
the Credit Agreement or any other Loan Document, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Credit Agreement or any other Loan Document, all
of which are ratified and affirmed in all respects and shall continue in full
force and effect. Nothing herein shall be deemed to entitle Holdings or the
Borrower to a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained
in the Credit Agreement or any other Loan Document in similar or different
circumstances.
SECTION 5. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 6. Applicable Law . THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF.
SECTION 7. Headings . The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
XXXXXX MEDICAL GROUP INC.,
by /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Executive Vice-President and
Chief Financial Officer
XXXXXX MEDICAL TECHNOLOGY,
INC.,
by /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Executive Vice-President and
Chief Financial Officer
JPMORGAN CHASE BANK,
as a Lender, as Administrative Agent,
Collateral Agent and Issuing Bank,
by /s/ Xxx Xxx
---------------------------
Name: Xxx Xxx
Title: Managing Direcor
SIGNATURE PAGE TO
AMENDMENT NO. 3 DATED AS OF
September 11, 2003, TO THE XXXXXX
MEDICAL TECHNOLOGY, INC. CREDIT
AGREEMENT DATED AS OF
AUGUST 1, 2001
Name of Lender: Credit Suisse First Boston, acting through its
Cayman Island Branch
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by /s/ Xxxxxxxxxxx Xxxxx
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Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
by /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Associate
Name of Lender: Fleet National Bank
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by /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Name of Lender: STONE TOWER CLO LTD.
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by Stone Tower Debt Advisors LLC
as its Collateral Manager
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
Name of Lender: Sun Trust Bank
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by /s/ W. Xxxxxx Xxxxxxx
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Name: W. Xxxxxx Xxxxxxx
Title: Director
