EXHIBIT 10.1
AMENDMENT NO. 1 dated as of July
31, 2002 (this "Amendment"), to the Credit
Agreement dated as of August 1, 2001 (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 5.07 of the Credit Agreement requires Holdings and
the Borrower to maintain in full force and effect certain levels of insurance
with respect to, among other things, their and their subsidiaries' properties
and products liability risks. In particular, Section 5.07 of the Credit
Agreement requires that Holdings and the Borrower maintain with the same or
other financially sound and reputable insurance companies the products liability
insurance that was in existence on the Effective Date of the Credit Agreement.
C. Holdings and the Borrower have informed the Administrative
Agent that, as a result of significant increases in the premiums for their
insurance policies, in their reasonable business judgment, it would be
commercially reasonable and prudent, and it would be consistent with general
industry practice, to reduce the current amount of their insurance coverages
and/or to increase the current deductibles thereunder. Accordingly, Holdings and
the Borrower have informed the Administrative Agent they seek an amendment of
Section 5.07 of the Credit Agreement as set forth herein.
D. The Required Lenders are willing to agree to such amendment
pursuant to the terms and subject to the conditions set forth herein.
E. Each capitalized term used and not otherwise defined herein
shall have the meaning assigned to such term in the Credit Agreement.
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. Amendment. Section 5.07 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
SECTION 5.07. Insurance. Each of Holdings and the Borrower
will, and will cause each of the Subsidiaries to, at all times maintain
in full force and effect, with financially sound and reputable
insurance companies, products liability
insurance and insurance on all property owned, occupied or controlled
by it in at least such amounts (including deductibles) and against at
least such risks insured against in the same general area by companies
engaged in the same or a similar business and such other insurance as
may be required by law. Each of Holdings and the Borrower will, and
will cause each Subsidiary to, furnish to the Administrative Agent,
upon written request of the Administrative Agent, a summary of the
insurance carried together with certificates of insurance and other
evidence of such insurance, if any, naming the Administrative Agent as
an additional insured and/or loss payee.
SECTION 2. Representations and Warranties. Each of Holdings
and the Borrower represents and warrants to each other party hereto that, 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.
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 the Borrower, Holdings 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 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.
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/ F. Xxxxx Xxxx
-----------------------------------
Name: F. Xxxxx Xxxx
Title: President, Chief Executive
Officer, and Director
XXXXXX MEDICAL TECHNOLOGY,
INC.,
by
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
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/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice-President
SIGNATURE PAGE TO
AMENDMENT NO. 1 DATED AS OF
JULY 31, 2002, TO THE XXXXXX
MEDICAL TECHNOLOGY, INC. CREDIT
AGREEMENT DATED AS OF
AUGUST 1, 2001
Name of Lender: Fleet National Bank
---------------------------------------------------------
by /s/ Xxxxx X. Xxxxxxx
------------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Name of Lender: U.S. Bank National Association
---------------------------------------------------------
by /s/ Xxxxxxxxxxx X. Xxxx
------------------------------------------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Assistant Vice President
Name of Lender: Credit Suisse First Boston
---------------------------------------------------------
by /s/ Xxxxxx Xxxx /s/ Xxxxxxx Xxxxx
------------------------------------------------------
Name: Xxxxxx Xxxx Xxxxxxx Xxxxx
Title: Director Associate
Name of Lender: SunTrust Bank, Inc.
---------------------------------------------------------
by /s/ W. Xxxxxx Xxxxxxx
------------------------------------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Director
AMENDMENT NO. 2 dated as of May 23,
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 (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. Holdings has informed the Administrative Agent that it
intends to establish a new investment policy, approved by its Board of Directors
on October 24, 2002, for the investment of temporarily idle or surplus funds of
Holdings, the Borrower and the Subsidiaries (such policy, and any other similar
policy from time to time approved by the Board of Directors of Holdings and
reasonably acceptable to the Administrative Agent being referred to as the
"Investment Policy").
C. Holdings also has informed the Administrative Agent that
certain foreign Subsidiaries intend to sell certain of their accounts
receivable.
D. Accordingly, Holdings and the Borrower have informed the
Administrative Agent that they seek amendments of Section 1.01, Section
6.01(a)(vii), Section 6.04(a) and Section 6.05(d) of the Credit Agreement as set
forth herein.
E. The Required Lenders are willing to agree to such
amendments pursuant to the terms and subject to the conditions set forth herein.
F. Each capitalized term used and not otherwise defined herein
shall have the meaning assigned to such term in the Credit Agreement, as amended
hereby.
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 "Italian Receivables Subsidiary" and
"Italian Receivables Program" are deleted in their entirety.
(ii) The following definitions are inserted in their proper
alphabetical order:
"Foreign Receivables Subsidiary" means Cremascoli or
any subsidiary of Cremascoli organized under the laws of a
jurisdiction other than the United States of America or any
State thereof or the District of Columbia.
"Foreign Receivables Program" means the sale of
accounts receivable by a Foreign Receivables Subsidiary
pursuant to a program reasonably acceptable to the
Administrative Agent and any amendment, modification or
replacement of such program; provided that any such amendment,
modification or replacement shall not be materially adverse to
the interests of the Lenders and shall also be subject to the
prior written approval of the Administrative Agent.
(iii) The definition of "Permitted Investments" is hereby
amended and restated in its entirety to read as follows:
"Permitted Investments" means:
(a) direct obligations of, or obligations the
principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any agency
or instrumentality thereof to the extent such obligations are
backed by the full faith and credit of the United States of
America), in each case maturing within 36 months from the date
of acquisition thereof;
(b) investments in commercial paper maturing within
nine months from the date of acquisition thereof and having,
at such date of acquisition, the highest credit rating
obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within six months from
the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or
any State thereof (a "U.S. Commercial Bank") that, at such
date of issuance, guarantee or placement, has a long term
rating of A or better by S&P or Xxxxx'x, is a member of the
Federal Deposit Insurance Corporation and is among the 50
largest U.S. Commercial Banks ranked according to total
assets;
(d) Eurodollar time deposits maturing within 14 days
from the date of acquisition thereof placed with any
international commercial bank that, at such date of placement,
has a long term rating of A or better by S&P or Moody's or a
comparable rating by a comparable rating agency
and that is among the 50 largest international banks ranked
according to total assets;
(e) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in
clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above;
(f) tax exempt securities, in an aggregate amount not
to exceed $10,000,000 at any time outstanding, maturing within
15 months from the date of acquisition thereof and having, at
such date of acquisition, a rating of AA or better by S&P and
Aa or better by Moody's;
(g) corporate bonds, in an aggregate amount not to
exceed $10,000,000 at any time outstanding, maturing within 36
months from the date of acquisition thereof and having, at
such date of acquisition, a rating of AA or better by S&P and
Aa or better by Moody's;
(h) floating rate notes, in an aggregate amount not
to exceed $10,000,000 at any time outstanding, maturing within
24 months from the date of acquisition thereof and having, at
such date of acquisition, a rating of AA or better by S&P and
Aa or better by Moody's; and
(i) shares of money market mutual, money market
preferred, or similar funds, in an aggregate amount not to
exceed $25,000,000 at any time outstanding, having assets in
excess of $500,000,000 and which invest substantially all of
their assets in investments satisfying the requirements of
clauses (a) through (h) of this definition.
(b) Section 6.01(a)(vii) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
(vii) Indebtedness of the Foreign Receivables
Subsidiaries in connection with the Foreign Receivables
Programs in an amount not to exceed (Euro)20,000,000;
(c) Section 6.04(a) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
(a) Permitted Investments held in accordance with the
Investment Policy (as defined in Amendment No. 2 dated as of
May 23, 2003, to the Agreement);
(d) Section 6.05(d) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
(d) sales of accounts receivable of the Foreign
Receivables Subsidiaries in connection with the Foreign
Receivables Programs;
SECTION 2. Representations and Warranties. Each of Holdings
and the Borrower represents and warrants to each other party hereto that, 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.
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.
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/ F. Xxxxx Xxxx
---------------------------------------
Name: F. Xxxxx Xxxx
Title: President and CEO
XXXXXX MEDICAL TECHNOLOGY,
INC.,
by /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Vice President and
CFO
JPMORGAN CHASE BANK,
as a Lender, as Administrative Agent,
Collateral Agent and Issuing Bank,
by /s/ Xxx Xxx
---------------------------------------
Name: Xxx Xxx
Title: Managing Director
SIGNATURE PAGE TO
AMENDMENT NO. 2 DATED AS OF
MAY 23, 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
---------------------------------------------------------------
by /s/ Xxxxxxxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
by /s/ Xxxxxxxx X. Pieza
-------------------------------------------
Name: Xxxxxxxx X. Pieza
Title: Associate
Name of Lender: Fleet National Bank
-----------------------------------------------
by /s/ X. X. Xxxxxxx
-------------------------------------------
Name: X. X. Xxxxxxx
Title: Senior Vice President
Name of Lender: Sun Trust Bank
-----------------------------------------------
by /s/ Xxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Portfolio Manager
Name of Lender: U.S. Bank
-----------------------------------------------
by /s/ Xxxxx Xxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Banking Officer
