Exhibit 4.6
[EXECUTION COPY]
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT, dated as of September 29, 1997 (this "AMENDATORY
AGREEMENT"), to the Existing Credit Agreement (as defined below), is made among
▇▇▇▇▇▇ HEALTH PRODUCTS INC., a Delaware corporation (as assignee of ▇▇▇▇▇▇
Health Products Group Inc.'s rights and obligations under the Credit Agreement,
the "U.S. BORROWER"), VITA HEALTH COMPANY (1985) LTD., a Manitoba corporation
(the "CANADIAN BORROWER", and together with the U.S. Borrower, the "BORROWERS"),
the various financial institutions signatories hereto (the "LENDERS") and THE
BANK OF NOVA SCOTIA, as U.S. Agent and Canadian Agent for the Lenders, as
applicable.
W I T N E S S E T H:
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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 June 30, 1997 (as amended,
supplemented, amended and restated or otherwise modified to the date hereof, the
"EXISTING CREDIT AGREEMENT");
WHEREAS, the Borrower has requested that the Lenders amend the Letter of
Credit expiration provision contained in the Existing Credit Agreement; 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 (the Existing Credit Agreement, as so amended by this
Amendatory Agreement, 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 Amendatory Agreement shall have the following
meanings (such meanings to be equally applicable to the singular and plural form
thereof):
"AMENDATORY AGREEMENT" is defined in the PREAMBLE.
"AMENDMENT NO. 1" is defined in SUBPART 3.1.
"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.
"LENDERS" is defined in the PREAMBLE.
"FIRST AMENDMENT EFFECTIVE DATE" is defined in SUBPART 3.1.
"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 Amendatory Agreement with such
meanings.
PART II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the First Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with SUBPART 2.1; except as so amended, the Existing Credit Agreement shall
continue in full force and effect in accordance with its terms.
SUBPART 2.1. AMENDMENT TO SECTION 4.1. Section 4.1 of the Existing Credit
Agreement is hereby amended by deleting the reference to "one year" in subclause
(y) contained therein and inserting "two years" in place thereof.
PART III
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CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. FIRST AMENDMENT EFFECTIVE DATE. This Amendatory Agreement
(and the amendments and modifications contained herein) shall become effective,
and shall thereafter be referred to as "AMENDMENT NO. 1", on the date (the
"FIRST AMENDMENT EFFECTIVE DATE") when all of the conditions set forth in this
SUBPART 3.1 have been satisfied.
SUBPART 3.1.1. EXECUTION OF COUNTERPARTS. The Administrative Agent shall
have received counterparts of this Amendatory Agreement, duly executed and
delivered on behalf of each of the Borrowers, the Required Lenders and the
Issuer.
SUBPART 3.1.2. 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 Amendatory Agreement
shall be satisfactory to the Agents and their counsel.
PART IV
MISCELLANEOUS
SUBPART 4.1. CROSS-REFERENCES. References in this Amendatory Agreement to
any Part or Subpart are, unless otherwise specified or otherwise required by the
context, to such Part or Subpart of this Amendatory Agreement.
SUBPART 4.2. LOAN DOCUMENT PURSUANT TO EXISTING CREDIT AGREEMENT. This
Amendatory Agreement 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 4.3. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Each of the
Borrowers represents and warrants on the First Amendment Effective Date for its
Subsidiaries and itself, both before and after giving effect to this Amendatory
Agreement, as follows:
(a) the representations and warranties set forth in Article VIII of
the Credit Agreement (excluding, however, those contained in Section 8.7)
and in each other Loan Document are, in each case, true and correct in all
material respects (unless stated to relate solely to an earlier date, in
which case such representations and warranties were true and correct in all
material respects as of such earlier date);
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(b) except as disclosed by the U.S. Borrower to the Agents and the
Lenders pursuant to Section 8.7 of the Credit Agreement,
(i) no labor controversy, litigation, arbitration or governmental
investigation or proceeding is pending or, to the knowledge of the
U.S. Borrower, threatened against Parent or the U.S. Borrower or any
of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, or which would adversely affect the legality,
validity or enforceability of the Credit Agreement, the Notes or any
other Loan Document; and
(ii) no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation or proceeding
disclosed pursuant to Section 8.7 of the Credit Agreement which could
reasonably be expected to have a Material Adverse Effect; and
(c) no Default has occurred and is continuing, and neither Parent nor
the U.S. Borrower or any of its Subsidiaries is in material violation of
any law or governmental regulation or court order or decree, which
violation would, individually or in the aggregate, have a Material Adverse
Effect.
SUBPART 4.4. SUCCESSORS AND ASSIGNS. This Amendatory Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 4.5. COUNTERPARTS. This Amendatory Agreement 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 4.6. GOVERNING LAW. THIS AMENDATORY AGREEMENT 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 Amendatory
Agreement 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:
VITA HEALTH COMPANY (1985) LTD.
By /s/
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Title:
THE BANK OF NOVA SCOTIA, as U.S. Agent,
Canadian Agent, U.S. Issuer, Canadian Issuer,
a U.S. Lender and a Canadian Lender
By /s/
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Title: Senior Relationship Manager
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SALOMON BROTHERS HOLDING
COMPANY INC
By /s/
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Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By /s/
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Title: VP
BANK OF MONTREAL
By
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Title:
FLEET NATIONAL BANK
By /s/
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Title: Senior Vice President
LASALLE NATIONAL BANK
By /s/
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Title: Senior Vice President
COMERICA BANK
By /s/
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Title: Corporate Banking Officer
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED, NEW YORK BRANCH
By /s/
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Title: Deputy General Manager
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SOCIETE GENERALE
By /s/
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Title: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
CREDITANSTALT BANKVEREIN
By /s/
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Title: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Associate
By /s/
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Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
IMPERIAL BANK, a California Banking
Corporation
By /s/
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Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
DEEPROCK & COMPANY
By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
as Investment Advisor
By /s/
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Title: ▇▇▇▇▇ ▇. Page
Vice President
NORTHERN LIFE INSURANCE COMPANY
By: ING Capital Advisors, Inc.,
as Investment Advisor
By
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Title:
FLOATING RATE PORTFOLIO
By: Chancellor LGT Senior Secured
Management Inc., as attorney in fact
By /s/
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Title: Assistant Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By /s/
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Title: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
Managing Director
KZH-CRESCENT CORPORATION
By /s/
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Title: Authorized Agent
ALLSTATE LIFE INSURANCE COMPANY
By /s/
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Name:
By /s/
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Name:
Its Authorized Signatories
KZH-CRESCENT CORPORATION
By
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Title:
PAMCO CAYMAN LTD.
By: Protective Asset Management L. L.C.,
as Collateral Manager
By /s/
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Title: ▇▇▇▇ ▇. ▇▇▇▇▇ CFA
Executive Vice President
Protective Asset Management Company
CERES FINANCE LTD.
By /s/
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Title: ▇▇▇▇ ▇. Cullimane
Director