EXHIBIT 10.1
AMENDMENT NO. 5 dated as of March 29, 2005 (this
"Amendment"), to the Credit Agreement dated as of August 1,
2001, as heretofore 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, JPMORGAN CHASE BANK, N.A., as
administrative agent and collateral agent, and the other
parties thereto.
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 and the Borrower have informed the Administrative Agent the
they seek an amendment of Section 1.01 of the Credit Agreement to amend the
definitions of the terms "Material Indebtedness" and "Permitted Investments", in
each case as set forth herein.
C. The Required Lenders are willing to agree to such amendments
pursuant to the terms, subject to the conditions and to the extent set forth
herein.
D. 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. Amendments. Section 1.01 of the Credit Agreement is hereby
amended as follows:
(a) The definition of "Material Indebtedness is hereby amended and
restated in its entirety to read as follows:
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more
Hedging Agreements, of any one or more of Holdings, the Borrower and
the Subsidiaries in an aggregate principal amount exceeding
$20,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of Holdings, the Borrower or any
Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that
Holdings, the Borrower or such Subsidiary would be required to pay if
such Hedging Agreement were terminated at such time."
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(b) 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), 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, a credit rating of at least A-1 by Standard & Poor's and
P1 by Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits, in each case maturing within six months
from the date of acquisition thereof, issued or guaranteed by or placed
with 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 acquisition, 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 (a "Qualified U.S.
Commercial Bank");
(d) money market deposit accounts or money market funds issued
or offered by (i) any U.S. Commercial Bank that, at the date of
investment, is a Qualified U.S. Commercial Bank or (ii) any domestic
office of any investment bank that, at the date of investment, has a
long term rating of A or better by S&P or Moody's, has total capital in
excess of $500,000,000 and is a member of the Securities Investor
Protection Corporation;
(e) 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 global banks ranked according
to total assets;
(f) 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 Qualified U.S. Commercial Bank;
(g) tax free auction rate securities, variable rate demand
notes, other tax exempt securities and taxable auction rate securities
that, in each case, are liquid within 15 months from the date of
acquisition thereof and having, at such date of acquisition, a
long-term investment credit rating of AA or better by S&P and Aa or
better by Moody's or guaranteed by an irrevocable letter of credit
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issued by a U.S. Commercial Bank;
(h) municipal bonds and corporate bonds, in each case,
maturing within 36 months from the date of acquisition thereof and
having, at such date of acquisition, a long-term investment credit
rating of AA or better by S&P and Aa or better by Moody's;
(i) floating rate notes maturing within 24 months from the
date of acquisition thereof and having, at such date of acquisition, a
long-term investment credit rating of AA or better by S&P and Aa or
better by Moody's; and
(j) shares of money market preferred or similar funds maturing
within six 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."
SECTION 2. Representations and Warranties. Each of Holdings and the
Borrower represents and warrants to each other party hereto that (a) 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 (b) after
giving effect to this Amendment (i) 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 (ii) 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 on which the following conditions are
satisfied:
(a) the Administrative Agent (or its counsel) shall have
received from each of Holdings, the Borrower and the Required Lenders a
counterpart of this Amendment signed on behalf of such party; and
(b) the Administrative Agent shall have received all fees and
other invoiced amounts required to be reimbursed by any Loan Party
under the Credit Agreement.
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
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Agreement or any other Loan Document in similar or different circumstances.
SECTION 5. Counterparts. This Amendment may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page of this
Amendment by telecopy shall be as effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 6. Application Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Headings. Section headings used herein are for convenience
of reference only, are not part of this Amendment and shall not affect the
construction of, or be taken into consideration in interpreting, this Amendment.
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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/ Xxxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President and CEO
XXXXXX MEDICAL TECHNOLOGY, INC.,
by /s/ Xxxxx X. Xxxx
---------------------------
Name: Xxxxx X. Xxxx
Title: General Counsel and Secretary
JPMORGAN CHASE BANK, N.A.,
as a Lender and as Administrative Agent,
by /s/ Xxxxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
SIGNATURE PAGE TO
AMENDMENT NO. 5 TO
THE XXXXXX MEDICAL TECHNOLOGY, INC.
CREDIT AGREEMENT DATED AS OF
AUGUST 1, 2001
Name of Lender: SunTrust Bank
By /s/ W. Xxxxxx Xxxxxxx
--------------------------
Name: W. Xxxxxx Xxxxxxx
Title: Director
SIGNATURE PAGE TO
AMENDMENT NO. 5 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 Islands Branch
by /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Director
by /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Associate
SIGNATURE PAGE TO
AMENDMENT NO. 5 TO
THE XXXXXX MEDICAL TECHNOLOGY, INC.
CREDIT AGREEMENT DATED AS OF
AUGUST 1, 2001
Name of Lender: Bank of America NA
by /s/ Xxxxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxxxx X. Xxxx
Title: SVP
