AMENDMENT NO. 3
TO
CREDIT FACILITIES AGREEMENT
(THAT WAS EFFECTIVE MARCH 20, 2001)
BY AND BETWEEN
BANK OF AMERICA, N.A.
AS ADMINISTRATIVE AGENT AND A LENDER
AND
THE OTHER LENDERS SIGNATORY THERETO
AND
YOUNG INNOVATIONS, INC.
AS BORROWER
In consideration of their mutual agreements herein and for other sufficient
consideration, the receipt of which is hereby acknowledged, YOUNG INNOVATIONS,
INC. ("Borrower"), BANK OF AMERICA, N.A. (as "Administrative Agent") and the
undersigned Lenders who signed the Original Loan Agreement, agree as follows:
1. DEFINITIONS; SECTION REFERENCES. The term "Original Loan Agreement" means the
Credit Facilities Agreement effective as of March 20, 2001, between Borrower,
Administrative Agent and the Lenders signatory thereto, as amended, including
without limitation, as amended by that certain Amendment No. 1 thereto effective
April 20, 2001 and that certain Amendment No. 2 thereto effective September 28,
2001. The term "this Amendment" means this Amendment. Capitalized terms used and
not otherwise defined herein have the meanings defined in the Original Loan
Agreement, except that the term "this Agreement" in the Original Loan Agreement
shall be deemed to mean the Original Loan Agreement as amended by this
Amendment. Section references are to sections of the Original Loan Agreement
unless otherwise indicated.
2. EFFECTIVE DATE OF THIS AMENDMENT. Provided that Administrative Agent has
received this Amendment fully executed by all parties hereto and each of the
documents and other items listed or described on Exhibit A hereto as being
required to be obtained, delivered or satisfied on or before the Effective Date
(as hereinafter defined), with each being satisfactory to Administrative Agent
and (as applicable) duly executed and (also as applicable) sealed, attested,
acknowledged, certified, or authenticated, this Amendment shall be effective
September 19, 2002 (the "Effective Date"). If this Amendment does not become
effective, the Original Loan Agreement shall continue in full force and effect
as it existed in the absence of this Amendment.
3. AMENDMENTS TO ORIGINAL LOAN AGREEMENT. The Original Loan Agreement is amended
as follows, all such amendments to be effective on the Effective Date unless
otherwise indicated:
3.1. REVISED DEFINITIONS. The definition of "Permitted Redemptions" in the
Glossary attached to the Original Loan Agreement as Exhibit 2.1 is hereby
deleted and replaced with the following:
PERMITTED REDEMPTIONS -- the redemption by Borrower from time to
time during the term of this Agreement pursuant to Redemption
Documents, in one or more transactions, of such of its shares as
may be purchased for consideration in an amount not to exceed
$27,000,000; such repurchases may be made using the proceeds of
this Agreement, however the total amount of consideration to be
paid for all such repurchases (including funds which are not
proceeds of this Agreement) may not exceed $27,000,000 unless
otherwise approved by the Required Lenders.
4. EFFECT OF AMENDMENT. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of
Administrative Agent or any Lender under the Original Loan Agreement or any of
the other Loan Documents, nor constitute a waiver of any provision of the
Original Loan Agreement, or any of the other Loan Documents. Each reference in
the Original Loan Agreement to "the Agreement", "hereunder", "hereof", "herein",
or words of like import, shall be read as referring to the Original Loan
Agreement as amended hereby.
5. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby represents and
warrants to Lenders that (i) execution, delivery and performance of this
Amendment, and all transactions contemplated by the Amendment, have been duly
authorized by all requisite action of Borrower; (ii) no consents are necessary
from any third parties for Borrower's execution, delivery or performance of this
Amendment or in connection with any transaction contemplated by this Amendment,
(iii) this Amendment and the Original Loan Agreement constitute the legal, valid
and binding obligations of Borrower enforceable against Borrower in accordance
with their terms, except to the extent that the enforceability thereof against
Borrower may be limited by bankruptcy, insolvency or other laws affecting the
enforceability of creditors rights generally or by equity principles of general
application, (iv) except as disclosed on the supplemental disclosure schedule
attached hereto as Exhibit B and the disclosure schedule attached to the
Original Loan Agreement, all of the representations and warranties contained in
Section 11 of the Original Loan Agreement, as amended hereby, are true and
correct with the same force and effect as if made on and as of the Effective
Date, and (v) there is no Existing Default and no Default or Event or Default
will occur immediately or with the passage of time or giving of notice as a
consequence of this Amendment becoming effective.
6. REAFFIRMATION. Borrower hereby acknowledges and confirms that (i) except as
expressly amended hereby, the Original Loan Agreement and other Loan Documents
remain in full force and effect, (ii) the Original Loan Agreement, as amended
hereby, is in full force and effect, (iii) Borrower has no defenses to its
obligations under the Original Loan Agreement and the other Loan Documents, and
(iv) Borrower has no claim of any nature against Administrative Agent or any
Lender arising from or in connection with the Original Loan Agreement or the
other Loan Documents.
7. COUNTERPARTS. This Amendment may be executed by the parties hereto on any
number of separate counterparts, and all such counterparts taken together shall
constitute one and the same instrument. It shall not be necessary in making
proof of this Amendment to produce or account for more than one counterpart
signed by the party to be charged.
8. COUNTERPART FACSIMILE EXECUTION. This Amendment, or a signature page thereto
intended to be attached to a copy of this Amendment, signed and transmitted by
facsimile machine or telecopier shall be deemed and treated as an original
document. The signature of any Person thereon, for purposes hereof, is to be
considered as an original signature, and the document transmitted is to be
considered to have the same binding effect as an original signature on an
original document. At the request of any party hereto, any facsimile or telecopy
document is to be re-executed in original form by the Persons who executed the
facsimile or telecopy document. No party hereto may raise the use of a facsimile
machine or telecopier or the fact that any signature was transmitted through the
use of a facsimile or telecopier machine as a defense to the enforcement of this
Amendment.
9. GOVERNING LAW. This Amendment and the rights and obligations of the parties
hereunder shall be governed by and construed and interpreted in accordance with
the internal laws of the State of Missouri applicable to contracts made and to
be performed wholly within such state, without regard to choice or conflict of
laws provisions.
10. FINAL EXPRESSION; NO COURSE OF DEALING. This Amendment is intended by the
parties as a final expression of their agreement evidenced hereby and is
intended as a complete and exclusive statement of the terms and conditions
thereof.
11. INCORPORATION BY REFERENCE. Administrative Agent, the undersigned Lenders
and Borrower hereby agree that all of the terms of the Loan Documents are
incorporated in and made a part of this Amendment by this reference.
12. STATUTORY NOTICE. The following notice is given pursuant to Section 432.045
of the Missouri Revised Statutes; nothing contained in such notice will be
deemed to limit or modify the terms of the Loan Documents or this Amendment:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER(S))
AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS
WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
BORROWER AND LENDER HEREBY AFFIRM THAT THERE IS NO UNWRITTEN ORAL
CREDIT AGREEMENT BETWEEN BORROWER AND LENDER WITH RESPECT TO THE
SUBJECT MATTER OF THIS AMENDMENT.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by appropriate duly authorized officers as of the Effective Date.
YOUNG INNOVATIONS, INC. BANK OF AMERICA, N.A., as Administrative
by its Executive Vice President Agent
and Chief Financial Officer by its Vice President
/s/ Xxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx, Xx. ----------------------------------------
----------------------------- Name: Xxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxx, Xx.
BANK OF AMERICA, N.A., as a Lender
by its Senior Vice President
/s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
THE NORTHERN TRUST COMPANY, XXXXXX TRUST AND SAVINGS BANK,
AS A LENDER AS A LENDER
by its Vice President by its Vice President
/s/ Xxxxxxx XxXxxxxxx /s/ Xxxxx Xxxxxxxxx
----------------------------- ----------------------------------------
Name: Xxxxxxx XxXxxxxxx Name: Xxxxx Xxxxxxxxx
