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EXHIBIT 10.36
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Agreement"), dated as
of January 3, 2001, is entered into by and among AMERICAN MEDICAL SYSTEMS, INC.,
a Delaware corporation (the "Borrower"), each of the Persons identified as a
"Guarantor" on the signature pages hereto, each of the Persons identified as a
"Lender" on the signature pages hereto and BANK OF AMERICA, N.A., as Agent for
the Lenders (in such capacity, the "Agent").
RECITALS
A. The Borrower, the Guarantors, the Lenders and the Agent, are party
to that certain Credit Agreement dated as of March 24, 2000 (as previously
amended prior to the date hereof, the "Credit Agreement"). Unless otherwise
defined herein or the context otherwise requires, capitalized terms used in this
Agreement, including its preamble and recitals, have the meanings provided in
the Credit Agreement.
B. The Credit Parties have requested certain amendments to the Credit
Agreement.
C. The Required Lenders have agreed to amended the Credit Agreement on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto hereby agree as follows:
1. Amendment to Section 8.6. Section 8.6(j) of the Credit
Agreement is hereby amended and restated in its entirety and a new Section
8.6(k) is hereby added to the Credit Agreement, in each case, to read as
follows:
(j) Investments consisting of an Acquisition by the Borrower
or any Subsidiary of the Borrower, provided that (i) the Property
acquired (or the Property of the Person acquired) in such Acquisition
is used or useful in the same or a similar line of business as the
Borrower and its Subsidiaries were engaged in on the Closing Date (or
any reasonable extensions or expansions thereof), (ii) the Agent shall
have received all items in respect of the Capital Stock or Property
acquired in such Acquisition required to be delivered by the terms of
Section 7.12 and/or Section 7.13, (iii) in the case of an Acquisition
of the Capital Stock of another Person, the board of directors (or
other comparable governing body) of such other Person shall have duly
approved such Acquisition, (iv) the Borrower shall have delivered to
the Agent (A) a Pro Forma Compliance Certificate demonstrating that,
upon giving effect to such Acquisition on a Pro Forma Basis, the Credit
Parties would be in compliance with the financial covenants set forth
in Section 7.11(a) and (b) and (B) a certificate of an Executive
Officer of the Borrower demonstrating that upon giving effect to such
Acquisition, at least 90% of Consolidated EBITDA for four
fiscal-quarter period ending as of the most recent fiscal quarter end
preceding the date of such transaction with respect to which the Agent
has received the Required Financial Information shall have been audited
in accordance with GAAP by independent certified public accountants of
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recognized national standing reasonably acceptable to the Agent (whose
opinion shall not be limited as to the scope or qualified as to going
concern status), (v) the representations and warranties made by the
Credit Parties in any Credit Document shall be true and correct in all
material respects at and as if made as of the date of such Acquisition
(after giving effect thereto) except to the extent such representations
and warranties expressly relate to an earlier date, (vi) after giving
effect to such Acquisition, there shall be at least $7,000,000 of
availability existing under the Revolving Committed Amount and (vii)
the aggregate consideration (including cash and non-cash consideration
and any assumption of Indebtedness, but excluding consideration
consisting of (A) any Capital Stock of the Parent issued to the seller
of the Capital Stock or Property acquired in such Acquisition, (B) the
proceeds of any Equity Issuance by the Parent consummated subsequent to
the Initial Funding Date to the extent not required to be applied to
prepay of the Loans pursuant to the terms of Section 3.3(b)(v), (C) the
proceeds of any Asset Disposition, Excluded Asset Disposition or
Involuntary Disposition consummated subsequent to the Initial Funding
Date, (D) the proceeds of any Investor Subordinated Debt and (E) the
proceeds of any Equity Issuance by any Consolidated Party to any Credit
Party or any member of the Initial Investor Group) paid by the
Consolidated Parties shall not exceed (1) for any single Acquisition,
$5,000,000, or (2) for all Acquisitions occurring after the Closing
Date, $10,000,000 less the aggregate principal amount of all
Investments made pursuant to subsection (k) below; or
(k) Investments (other than Acquisitions) by the Credit
Parties in a principal amount not to exceed (i) for any single
Investment, $5,000,000 and (b) for all such Investments, an aggregate
principal amount of $10,000,000 less the aggregate consideration
(excluding consideration of the types described in clauses (A) through
(E) in subsection (j) above) paid by the Consolidated Parties in
connection with Permitted Acquisitions.
2. Effective Date. This Agreement shall be and become effective as of
the date hereof at such time as the Agent shall have received executed
counterparts (including facsimile signatures) of this Agreement, which
collectively shall have been duly executed on behalf of each of the Credit
Parties and the Required Lenders.
3. Construction. This Agreement is a Credit Document executed pursuant
to the Credit Agreement and shall (unless otherwise expressly indicated therein)
be construed, administered and applied in accordance with the terms and
provisions of the Credit Agreement.
4. Representations and Warranties. Each Credit Party hereby represents
and warrants that (i) each Credit Party that is party to this Agreement: (a) has
the requisite corporate power and authority to execute, deliver and perform this
Agreement, as applicable and (b) is duly authorized to, and has been authorized
by all necessary corporate action, to execute, deliver and perform this
Agreement, (ii) the representations and warranties contained in Section 6 of the
Credit Agreement are true and correct in all material respects on and as of the
date hereof upon giving effect to this Agreement as though made on and as of
such date (except for those which expressly relate to an earlier date) and (iii)
no Default or Event of Default exists under the Credit Agreement on and as of
the date hereof upon giving effect to this Agreement.
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5. Acknowledgment. The Guarantors acknowledge and consent to all of the
terms and conditions of this Agreement and agree that this Agreement does not
operate to reduce or discharge the Guarantors' obligations under the Credit
Agreement or the other Credit Documents. The Guarantors further acknowledge and
agree that the Guarantors have no claims, counterclaims, offsets, or defenses to
the Credit Documents and the performance of the Guarantors' obligations
thereunder or if the Guarantors did have any such claims, counterclaims, offsets
or defenses to the Credit Documents or any transaction related to the Credit
Documents, the same are hereby waived, relinquished and released in
consideration of the Lenders' execution and delivery of this Agreement.
6. Counterparts. This Agreement may be executed by the parties hereto
in several counterparts, each of which shall be deemed to be an original and all
of which shall constitute together but one and the same agreement.
7. Binding Effect. This Agreement, the Credit Agreement and the other
Credit Documents embody the entire agreement between the parties and supersede
all prior agreements and understandings, if any, relating to the subject matter
hereof. These Credit Documents represent the final agreement between the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of the parties. Except as expressly modified and amended in this
Agreement, all the terms, provisions and conditions of the Credit Documents
shall remain unchanged and shall continue in full force and effect.
8. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Remainder of page is intentionally left blank.]
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EXHIBIT 10.36
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
BORROWER: AMERICAN MEDICAL SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President - Finance, Treasurer
and Chief Financial Officer
GUARANTORS: AMERICAN MEDICAL SYSTEMS
INTERNATIONAL, INC. (FKA INFLUENCE, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
AMERICAN MEDICAL SYSTEMS
HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
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LENDERS: BANK OF AMERICA, N. A.,
individually in its capacity as a
Lender and in its capacity as Agent
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: Vice President
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
Name: XX Xxxxxx
Title: Senior Vice President
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