EXHIBIT 4.3
[EXECUTION COPY]
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT, dated as of February 11, 2000 (this
"AMENDMENT"), to the Existing Credit Agreement (as defined below), is made
among ▇▇▇▇▇▇ HEALTH PRODUCTS INC., a Delaware corporation (the "U.S.
BORROWER"), VITA HEALTH PRODUCTS INC., a Manitoba corporation (the "CANADIAN
BORROWER", and together with the U.S. Borrower, the "BORROWERS") and the
Lenders (such capitalized term and other capitalized terms used in this
preamble and the recitals below to have the meanings set forth in, or as
defined by reference in, ARTICLE I) signatories hereto.
W I T N E S S E T H:
WHEREAS, the Borrowers, the U.S. Lenders, the Canadian Lenders, the
U.S. Agent, the Canadian Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, as
Documentation Agent, and Salomon Brothers Holding Company Inc., as
Syndication Agent, are parties to a Credit Agreement, dated as of May 15,
1998 (as amended, supplemented, amended and restated or otherwise modified
prior to the date hereof, the "EXISTING CREDIT AGREEMENT");
WHEREAS, the Borrowers have requested that the Lenders amend the
Credit Agreement as set forth below and consent to certain waivers set forth
herein; and
WHEREAS, the Lenders have agreed, subject to the terms and
conditions hereinafter set forth, to amend the Existing Credit Agreement in
certain respects as provided below and grant such waivers (the Existing
Credit Agreement, as so amended by this Amendment, being referred to as the
"CREDIT AGREEMENT");
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. CERTAIN DEFINITIONS. The following terms (whether or
not underscored) when used in this Amendment shall have the following
meanings (such meanings to be equally applicable to the singular and plural
form thereof):
"AMENDMENT" is defined in the PREAMBLE.
"BORROWERS" is defined in the PREAMBLE.
"CANADIAN BORROWER" is defined in the PREAMBLE.
"CREDIT AGREEMENT" is defined in the THIRD RECITAL.
"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"THIRD AMENDMENT" is defined in SUBPART 4.1.
"THIRD AMENDMENT EFFECTIVE DATE" is defined in SUBPART 4.1.
"U.S. BORROWER" is defined in the PREAMBLE.
SUBPART 1.2. OTHER DEFINITIONS. Terms for which meanings are
provided in the Existing Credit Agreement are, unless otherwise defined
herein or the context otherwise requires, used in this Amendment with such
meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Third Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with SUBPART 2.1 through 2.4; except as so amended, the Existing Credit
Agreement shall continue in full force and effect in accordance with its
terms.
SUBPART 2.1. AMENDMENTS TO ARTICLE I. Article I of the Existing
Credit Agreement is hereby amended as follows:
SUBPART 2.1.1. Section 1.1 of the Existing Credit Agreement is
hereby amended by inserting the following definitions in such Section in the
appropriate alphabetical sequence:
"THIRD AMENDMENT" means the Third Amendment to the Credit
Agreement, dated as of February 11, 2000, among the Borrowers and the
Lenders party thereto.
"THIRD AMENDMENT EFFECTIVE DATE" is defined in Section 4.1 of
the Third Amendment.
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SUBPART 2.1.1. The definition of "EBITDA" contained in Section 1.1
of the Existing Credit Agreement is hereby amended by inserting the following
new sentence at the end thereof:
"For purposes of computing EBITDA (and any financial calculations or
components required to be made or included therein), EBITDA shall be
determined, with respect to the applicable period, after giving PRO
FORMA effect to each Permitted Acquisition and Permitted Disposition of
a Person, business or asset consummated during such period, together
with all transactions relating thereto consummated during such period
(including any incurrence, assumption, refinancing or repayment of
Indebtedness), as if such Permitted Acquisition, Permitted Disposition
and related transactions had been consummated on the first day of such
period."
SUBPART 2.1.1. The definition of "Adjusted Net Worth" contained in
Section 1.1 of the Existing Credit Agreement is hereby amended by deleting
the ";" at the end of the clause "of the U.S. Borrower and its Subsidiaries
that have been so delivered" and replacing it with ", plus, cumulative cash
equity contributions received after the Effective Date by the U.S. Borrower;".
SUBPART 2.2. AMENDMENTS TO ARTICLE II. Section 2.2.3 of the Existing
Credit Agreement is hereby amended by deleting the words "twelve months"
appearing in the first sentence therein and inserting the words "six months"
in replacement thereof.
SUBPART 2.3. AMENDMENTS TO ARTICLE III. Section 3.2.2 of the
Existing Credit Agreement is hereby amended by deleting the words "twelve
months" appearing in the first sentence therein and inserting the words "six
months" in replacement thereof.
SUBPART 2.4. AMENDMENTS TO ARTICLE XII. (a) Clause (a) of Section
12.11.1 of the Existing Credit is hereby amended by deleting the words
"financial institutions; and" appearing at the end of such clause and
replacing them with "funds that are regularly engaged in making, purchasing
or investing in loans, or other financial institutions; and"; (b) Clause (d)
of Section 12.11.1 of the Existing Credit Agreement is hereby amended by
adding the words "and Section 12.16" following the words "if applicable"; and
(c) Section 12.16 of the Existing Credit is hereby amended by inserting the
following sentence at the end of such Section: "Each Lender represents to
each other party hereto that it is aware that the Confidential Information
includes material non-public information and that the United States
securities laws prohibit (with certain exceptions) any Person who has
received any material, non-public information about an issuer from purchasing
or selling securities of such issuer or from communicating such information
to any other Person."
PART III
WAIVER
SUBPART 3.1. WAIVER. By its signature below, each Lender hereby
waives the requirement pursuant to Section 9.1.7 of the Existing Credit
Agreement that the U.S. Borrowers provide a leasehold Mortgage on the Real
Property acquired in connection with the Granutec Acquisition and set forth
on SCHEDULE I hereto.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1. THIRD AMENDMENT EFFECTIVE DATE. This Amendment (and the
amendments and modifications contained herein) shall become effective as of
December 16, 1999 (the "THIRD AMENDMENT EFFECTIVE DATE"), and shall
thereafter be referred to as "THIRD AMENDMENT", when all of the conditions
set forth in this SUBPART 4.1 have been satisfied.
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SUBPART 4.1.1. EXECUTION OF COUNTERPARTS. The Agents shall have
received counterparts of this Amendment, duly executed and delivered on
behalf of each of the Borrowers and the Required Lenders.
SUBPART 4.1.2. LEGAL DETAILS, ETC. All documents executed or
submitted pursuant hereto shall be satisfactory in form and substance to the
Agents and their counsel. The Agents and their counsel shall have received
all information and such counterpart originals or such certified or other
copies or such materials, as the Agents or their counsel may reasonably
request, and all legal matters incident to the transactions contemplated by
this Amendment shall be satisfactory to the Agents and their counsel.
PART V
MISCELLANEOUS
SUBPART 5.1. CROSS-REFERENCES. References in this Amendment to any
Part or Subpart are, unless otherwise specified or otherwise required by the
context, to such Part or Subpart of this Amendment.
SUBPART 5.2. LOAN DOCUMENT PURSUANT TO EXISTING CREDIT AGREEMENT.
This Amendment is a Loan Document executed pursuant to the Existing Credit
Agreement and shall be construed, administered and applied in accordance with
all of the terms and provisions of the Existing Credit Agreement.
SUBPART 5.3. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Each of
the Borrowers represents and warrants on the Third Amendment Effective Date
that all of the statements contained in clauses (a) through (c) of Section
7.2.1 of the Credit Agreement are true and correct.
SUBPART 4.3. FULL FORCE AND EFFECT; LIMITED WAIVER. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Credit Agreement and the
other Loan Documents shall remain unamended and unwaived and shall continue
to be, and shall remain, in full force and effect in accordance with their
respective terms. The waiver set forth herein shall be limited precisely as
provided for herein to the provisions expressly amended herein and shall not
be deemed to be an amendment to, waiver of, consent to or modification of any
other term or provision of the Credit Agreement, any other Loan Document
referred to therein or herein or of any transaction or further or future
action on the part of any Obligor which would require the consent of the
Lenders under the Credit Agreement or any of the other Loan Documents.
SUBPART 5.4. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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SUBPART 5.5. COUNTERPARTS. This Amendment may be executed by the
parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SUBPART 5.6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
▇▇▇▇▇▇ HEALTH PRODUCTS INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Treasurer
VITA HEALTH PRODUCTS INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Treasurer
THE BANK OF NOVA SCOTIA, as U.S. Agent,
Canadian Agent, a U.S. Lender and a
Canadian Lender
By /s/ ▇▇▇▇ ▇▇▇▇▇
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Title: Managing Director
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SCHEDULE I
1. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
2. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
CITICORP U.S.A., INC.
By -----------------------------------
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
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Title: Vice President
FLEET NATIONAL BANK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
LASALLE BANK N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: First Vice President
COMERICA BANK
By -----------------------------------
Title:
SOCIETE GENERALE
By -----------------------------------
Title:
By -----------------------------------
Title:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By -----------------------------------
Title:
By -----------------------------------
Title:
IMPERIAL BANK, a California Banking
Corporation
By /s/ Gah ▇. ▇▇▇▇-▇▇▇▇▇▇▇
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Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By /s/ ▇▇▇▇▇ ▇. Page
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Title: Vice President
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
as Investment Advisor
By /s/ ▇▇▇▇▇ ▇. Page
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Title: Vice President
NORTHERN LIFE INSURANCE COMPANY
By: ING Capital Advisors, Inc.,
as Investment Advisor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President & Portfolio Manager
ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors, Inc.,
as Collateral Manager
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President & Portfolio Manager
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors, Inc.,
as Collateral Manager
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President & Portfolio Manager
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC
By: ING Capital Advisors, Inc.,
as Investment Advisor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President & Portfolio Manager
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors, Inc.,
as Collateral Manager
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President & Portfolio Manager
FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured
Management Inc., as attorney in fact
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Managing Director
KZH CRESCENT LLC
By -----------------------------------
Title:
KZH CRESCENT-2 LLC
By -----------------------------------
Title:
KZH CRESCENT-3 LLC
By -----------------------------------
Title:
KZH ING-2 LLC
By -----------------------------------
Title:
KZH III LLC
By -----------------------------------
Title:
KZH ING-1 LLC
By -----------------------------------
Title:
ALLSTATE LIFE INSURANCE COMPANY
By -----------------------------------
Title:
CERES FINANCE LTD.
By -----------------------------------
Title:
BANK OF AMERICA NT & SA
By -----------------------------------
Title:
UNION BANK OF CALIFORNIA, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇
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Title: Vice President
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
By: TCW Asset Management Company, as
Attorney-in-Fact
By /s/ ▇▇▇▇ ▇. Gold
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Title: Managing Director
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
SEQUILS I, LTD.
By: TCW Advisors, Inc.,
as its Collateral Manager
By /s/ ▇▇▇▇ ▇. Gold
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Title: Managing Director
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
UNITED OF OMAHA LIFE
INSURANCE COMPANY
By: TCW Asset Management Company,
as its Investment Advisor
By /s/ ▇▇▇▇ ▇. Gold
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Title: Managing Director
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
SOVEREIGN BANK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Senior Vice President