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EXECUTION COPY
SECOND AMENDMENT AND CONSENT (this
"Amendment") dated as of December 31, 1998 to the
Credit Agreement dated as of January 21, 1998 (as
previously amended, the "Credit Agreement"), among
XXXXXX SCIENTIFIC INTERNATIONAL INC. (the "Company"),
certain Subsidiaries of the Company, the lenders from
time to time party thereto, THE CHASE MANHATTAN BANK,
as administrative agent, XXX XXXXX XXXXXXXXX XXXX XX
XXXXXX, as Canadian Administrative Agent, CHASE
MANHATTAN INTERNATIONAL LIMITED, as U. K.
Administrative Agent, XXXXXXX XXXXX CAPITAL
CORPORATION, as Syndication Agent and DLJ CAPITAL
FUNDING, INC. as Documentation Agent.
A. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement.
B. Pursuant to the Credit Agreement, the Banks have
extended credit to the Borrowers, and have agreed to extend credit to the
Borrowers, in each case pursuant to the terms and subject to the conditions set
forth therein.
C. The Company intends to distribute to its stockholders
the stock of ProcureNet, Inc. (formerly named Strategic Procurement Services
Holdings Inc.), a Delaware corporation and one of the entities comprising the
Xxxxxx Technology Group. Prior to such distribution, ProcureNet, Inc. will hold
the stock of one or more entities comprising the Xxxxxx Technology Group.
D. The Company has requested that the Banks amend the
Credit Agreement and grant a consent under the Credit Agreement, in each case as
set forth below.
E. The Required Banks are willing to agree to such
amendment and grant such consent, in each case subject to the terms and
conditions set forth herein.
Accordingly, the parties hereto agree as follows:
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SECTION 1. AMENDMENT. (a) Clause (o) of Section 8.02 of the
Credit Agreement is hereby amended by inserting immediately following the words
"those assets and properties owned by SourceSys on October 31, 1998," the words
"those assets and properties owned by Structured Computer Systems at the time of
its acquisition by the Xxxxxx Technology Group,".
(b) Clause (o) of Section 8.02 of the Credit Agreement is
hereby amended by adding "other than (in the case of a dividend permitted by
Section 8.07(h)) the Xxxxxx Technology Group Indebtedness" at the end thereof.
(c) Section 8.03 of the Credit Agreement is hereby
amended by:
(i) deleting at the end of clause (q) thereof the word
"and";
(ii) deleting the period at the end of clause (r) thereof
and substituting therefor "and"; and
(iii) inserting at the end thereof the following new
clause (s):
"(s) Liens on the property and assets of the
Xxxxxx Technology Group in favor of the Company or
any of its Subsidiaries."
(d) Section 8.06 of the Credit Agreement is hereby
amended by:
(i) inserting in clause (h) following "collectively," the
following: "so long as the relevant party to such loan or advance
continues to be a Subsidiary,"; and
(ii) deleting clause (r) and substituting therefor the
following:
"(r) after the payment of the dividend or
dividends contemplated by Section 8.07(h), the
Company or any Subsidiary may hold an equity interest
in ProcureNet, Inc. so long as such equity interest
is received by the Company without the payment of any
consideration therefor (other than a de minimis
consideration)."
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(e) Section 8.07 of the Credit Agreement is hereby
amended by:
(i) deleting the word "and" at the end of clause (f)
thereof;
(ii) deleting the period at the end of clause (g) thereof
and substituting therefor "; and"; and
(iii) inserting at the end thereof the following new
clause (h):
"(h) the Company may make a dividend or dividends to
its shareholders comprised solely of stock in one or more of
the entities comprising the Xxxxxx Technology Group; PROVIDED
that the following conditions shall be satisfied in connection
with each such dividend: (i) at the time thereof and after
giving effect thereto the assets and properties comprising the
Xxxxxx Technology Group or applicable portion thereof
(including the assets and properties of each Person included
therein) shall include only those assets and properties
comprising the Xxxxxx Technology Group prior to the date of
this Agreement, those assets owned by SourceSys on October 31,
1998, those assets and properties owned by Structured Computer
Systems at the time of its acquisition by the Xxxxxx
Technology Group and any assets and properties acquired by the
Xxxxxx Technology Group in the ordinary course of its business
subsequent to the date of this Agreement; (ii) at the time
thereof and after giving effect thereto no Person included in
the Xxxxxx Technology Group or applicable portion thereof
shall be a party to or otherwise bound by any contract or
other transaction involving the Company or any other
Subsidiary that would not be permitted under Section 8.08 if
entered into at such time (determined on the basis that such
Person is an Affiliate); and (iii) after giving effect thereto
neither the Company nor any Subsidiary thereof shall be
obligated upon any Indebtedness to or of any Person included
in the Xxxxxx Technology Group or applicable portion
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thereof other than the Xxxxxx Technology Group Indebtedness."
(f) Section 8.08 is hereby amended by (i) deleting the
word "and" immediately preceding "(v)" and (ii) deleting the period at the end
of clause (v), and substituting therefor,"; (vi) the Xxxxxx Technology Group
Indebtedness; and (vii) certain other transitional agreements between the
Company or any Subsidiary and the Xxxxxx Technology Group in connection with the
payment of the dividend or dividends contemplated by Section 8.07(h), PROVIDED
that the Company's Board of Directors shall determine that such agreements are
fair and reasonable to, and in the best interests of, the Company."
(g) Section 10(A) is hereby amended by:
(i) in the definition of "Xxxxxx Technology Group" (A)
inserting ", Structured Computer Systems" after the words "SourceSys",
(B) deleting "and a Wholly-Owned Subsidiary" following "Xxxxxx
Technology Group Inc., a Delaware corporation" and following "Strategic
Procurement Services Inc., a Delaware corporation", (C) deleting
"Strategic Procurement Services Holdings Inc., a Delaware corporation
and a Wholly-Owned Subsidiary" and replacing it with "ProcureNet, Inc.,
a Delaware corporation (formerly known as Strategic Procurement
Services Holdings Inc.)" and (D) deleting ", a division of Xxxxxx
Scientific Company" following "Electronic Commerce Division"; and
(ii) inserting in the appropriate alphabetical order the
following definitions:
"Xxxxxx Technology Group Indebtedness" means
Indebtedness, in an aggregate principal amount not to exceed
$22 million (not including any interest payable in kind, which
may be paid until December 31, 2001), owed to the Company or
any of its Subsidiaries by one or more entities comprising the
Xxxxxx Technology Group, which Indebtedness shall consist of
an $8 million revolving credit facility and up to $14 million
of term notes (with equity conversion rights)."
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"Structured Computer Systems" means Structured
Computer Systems, Inc., a Connecticut corporation."
SECTION 2. CONSENT. (a) The Required Banks hereby waive the
provisions of Sections 8.02, 8.06 and 8.15 to the extent necessary to permit the
acquisition by the Company or any Subsidiary of Structured Computer Systems for
an aggregate purchase price not to exceed $10 million; PROVIDED, that Structured
Computer Systems will be included in the entities comprising the dividend or
dividends contemplated by Section 8.07(h) and such dividend or dividends are
declared and paid within six months after the closing of the acquisition of
Structured Computer Systems.
(b) The undersigned Banks hereby consent to (i) the
release of each of the entities comprising the Xxxxxx Technology Group from its
obligations under the Security Documents, the release of the security interest
in all collateral owned by such entity and the release of any security interests
in the securities issued by such entity, in each case upon the dividend of all
of the shares of the stock of such entity (or of any entity which owns all of
the shares of stock of such entity) to the Company's shareholders in accordance
with Section 8.07(h) of the Credit Agreement as added by this Amendment and (ii)
the execution and delivery by the Collateral Agent of any and all documents and
agreements which the Collateral Agent determines to be necessary or appropriate
to effect such release.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Each of the
Borrowers hereby represents and warrants to each Bank, on and as of the date
hereof, that:
(a) This Amendment has been duly authorized, executed and
delivered by each Borrower, and each of this Amendment and the Credit Agreement
as amended by this Amendment constitutes a legal, valid and binding obligation
of each Borrower, enforceable in accordance with its terms, except to the extent
that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws generally affecting
creditors' rights and by equitable principles
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(regardless of whether enforcement is sought in equity or at law).
(b) The representations and warranties of the Borrowers
contained in the Credit Agreement are true and correct in all material respects
on and as of the date hereof.
(c) After giving effect to this Amendment, no Default has
occurred and is continuing.
SECTION 4. EFFECTIVENESS. This Amendment shall become
effective on the date (the "Amendment Effective Date") that each of the
following conditions is met:
(a) The Administrative Agent shall have received
counterparts hereof signed by each of the Borrower and the Required Banks and
any consents required under the receivables financing entered into by Xxxxxx
Scientific Company L.L.C. on January 21, 1998.
(b) The Administrative Agent shall have received
interest, fees and other amounts due and payable under this Amendment and the
Credit Agreement on or prior to the Amendment Effective Date including, to the
extent invoiced, all reasonable out of pocket costs and expenses of the
Administrative Agent (including, without limitation, the reasonable fees of
Cravath, Swaine & Xxxxx, counsel for the Administrative Agent).
SECTION 5. EXPENSES. The Company acknowledges that Section
12.01 of the Credit Agreement applies to this Amendment and hereby agrees to pay
all out-of-pocket expenses reasonably incurred by the Administrative Agent,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent, in connection with the preparation,
execution and delivery of this Amendment.
SECTION 6. MISCELLANEOUS. (a) This Amendment constitutes the
entire agreement and understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
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(b) Section headings used herein are for convenience of
reference only and are not to affect the construction of, or to be taken into
consideration in interpreting, this Amendment.
(c) THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(d) Each reference to a party hereto shall be deemed to
include its successors and assigns, all of whom shall be bound by this Amendment
and to whose benefit the provisions of this Amendment shall inure.
(e) This Amendment may be executed in any number of
counterparts, each of which shall be an original but all of which, when taken
together, shall constitute but one instrument.
(f) Except as specifically amended or modified hereby, the
Credit Agreement shall continue in full force and effect in accordance with the
provisions thereof.
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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
date first above written.
XXXXXX SCIENTIFIC INTERNATIONAL INC.,
By: /s/ Xxxx X. XxXxxxx
------------------------------------------
Name:
Title:
XXXXXX SCIENTIFIC U.K., LIMITED,
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXX SCIENTIFIC LIMITED,
By: /s/ Xxxx X. XxXxxxx
------------------------------------------
Name: Xxxx X. XxXxxxx
Title:
ACROS ORGANICS N.V.,
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXX SCIENTIFIC S.A.,
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title:
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XXXXXX SCIENTIFIC GmbH,
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXX SCIENTIFIC KOREA LTD.,
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name:
Title:
XXXXXX SCIENTIFIC B.V.,
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
CASA ROCAS S.A. DE C.V.,
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXX GENETICS ASIA Pte Ltd.,
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXX SCIENTIFIC Pte Ltd.,
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXXX XX,
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title:
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THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Bank,
By: /s/ Xxxx Xxxxxxxxx Xxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxxx Xxxxx
Title: Vice President
XXXXXXX XXXXX CAPITAL CORPORATION, as
Syndication Agent and as a Bank,
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
DLJ CAPITAL FUNDING, INC., as
Documentation Agent and as a Bank,
By:
------------------------------------------
Name:
Title:
ABN AMRO BANK N.V.,
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Group Vice President
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA,
By: /s/ X.X. Xxxxxx
------------------------------------------
Name: X.X. Xxxxxx
Title: Authorized Signatory
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BANK OF AMERICA, NATIONAL TRUST AND SAVINGS ASSOCIATION,
By: /s/ Xxxx X. Pacalyko
------------------------------------------
Name: Xxxx X. Pacalyko
Title: Managing Director
BANKBOSTON, N.A.,
By:
------------------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS,
as Co-Agent,
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
By:
------------------------------------------
Name:
Title:
PARIBAS,
By: /s/ Xxxx X. XxXxxxxxx, III
------------------------------------------
Name: Xxxx X. XxXxxxxxx, III
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
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BHF- BANK AKTIENGESELLSCHAFT, NEW YORK BRANCH,
By: /s/ Xxx Dobijanskyj
------------------------------------------
Name: Xxx Dobijanskyj
Title: Assistant Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Treasurer
BALANCED HIGH YIELD FUND I LTD,
By: BHF-Bank
Aktiengesellschaft,
acting through its
New York Branch,
as attorney-in-fact,
By: /s/ Xxx Dobijanskyj
------------------------------------------
Name: Xxx Dobijanskyj
Title: Assistant Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Treasurer
BALANCED HIGH YIELD FUND II LTD,
By: BHF-Bank
Aktiengesellschaft,
acting through its
New York Branch,
as attorney-in-fact,
By: /s/ Xxx Dobijanskyj
------------------------------------------
Name: Xxx Dobijanskyj
Title: Assistant Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Treasurer
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CIBC INC.,
CIBC Xxxxxxxxxxx Corp,
as Agent,
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Director
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE,
By: /s/ Xxxxxxx Xxxx
------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
By:
------------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED,
By:
------------------------------------------
Name:
Title:
ELC (CAYMAN) LTD.,
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
DEEPROCK & COMPANY,
By: Xxxxx Xxxxx Management
as Investment Advisor,
By: /s/ Payson X. Xxxxxxxxx
------------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
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ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG,
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
By: /s/ Xxxxxx XxXxxxxx
------------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Corporate Banking Officer
FLEET NATIONAL BANK,
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
FRANKLIN FLOATING RATE TRUST,
By:
------------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN LIMITED,
By: /s/ Takuya Hunjo
------------------------------------------
Name: Takuya Hunjo
Title: Senior Vice President
KZH CNC LLC,
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
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XXX XXXXXXXX-0 LLC,
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC,
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
KZH LANGDALE LLC,
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
KZH SOLEIL LLC,
By:
------------------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
NEW YORK BRANCH,
By:
------------------------------------------
Name:
Title:
MARINE MIDLAND BANK,
By:
------------------------------------------
Name:
Title:
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MELLON BANK, N.A.,
By: /s/ R. Xxxx Xxxxxxxx
------------------------------------------
Name: R. Xxxx Xxxxxxxx
Title: Vice President
KZH ING-2 LLC,
By:
------------------------------------------
Name:
Title:
ML CLO XV PILGRIM AMERICA (CAYMAN) LTD.
By: Pilgrim Investments, Inc.
as its Investment Manager,
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
By: /s/ V. S. Soo
------------------------------------------
Name: V. S. Soo
Title: Banking Officer
NATEXIS BANQUE BFCE,
By: /s/ Xxxxx X. Xxxxxx, Xx.
------------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President
By: /s/ Xxxxx XxXxxx
------------------------------------------
Name: Xxxxx XxXxxx
Title: Assistant Treasurer
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NATIONSBANK, N.A.,
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
NEW YORK LIFE INSURANCE COMPANY,
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION,
By: New York Life Insurance Company,
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
PPM AMERICA, INC. as attorney in fact,
on behalf of Xxxxxxx National Life Insurance Company,
By:
------------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING III, Limited
by IncoSuez Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
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INDOSUEZ CAPITAL FUNDING IV,
By: /s/ Xxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
XXXXXX XXXXXXX XXXX XXXXXX PRIME INCOME TRUST,
By:
------------------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH,
By:
------------------------------------------
Name:
Title:
TORONTO-DOMINION (TEXAS) INC.,
By:
------------------------------------------
Name:
Title:
THE TRAVELERS INSURANCE COMPANY,
By:
------------------------------------------
Name:
Title:
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CONTINENTAL ASSURANCE COMPANY SEPARATE ACCOUNT (E),
By: TCW Asset Management Company as
Attorney-in-Fact
By: /s/ Xxxx X. Gold
------------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
SPS SWAPS,
By: /s/ Xxxx Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxx Xxxxxxx
Title: Vice President
ALLIANCE INVESTMENTS LIMITED
By: /s/ Xxxx Berebransky
------------------------------------------
Name: Xxxx Berebransky
Title: Vice President
CITY NATIONAL BANK,
By:
------------------------------------------
Name:
Title:
FIRSTRUST BANK,
Boston Management and Research as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
------------------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
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SENIOR DEBT PORTFOLIO,
By:
------------------------------------------
Name:
Title:
XXX XXXXXX PRIME RATE INCOME TRUST,
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President & Director
BANK OF TOKYO-MITSUBISHI TRUST,
By:
------------------------------------------
Name:
Title:
ARCHIMEDES FUNDING II, LTD.,
By:
------------------------------------------
Name:
Title:
CAPTIVA III FINANCE, LTD.,
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director
XXX XXXXXX CLO I, LIMITED,
By: Xxx Xxxxxx Management, Inc. as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President & Director
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PILGRIM HIGH INCOME INVESTMENTS, LTD
By: Pilgrim Investments, Inc.
as its Investment Manager,
By:
------------------------------------------
Name:
Title:
MITSUBISHI TRUST AND BANKING CORPORATION,
By:
------------------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: /s/ Xxxxx X.X. Xxxxxx
------------------------------------------
Name: Xxxxx X.X. Xxxxxx
Title: Director
