Exhibit 10.8
FIRST AMENDMENT and WAIVER dated as
of August 7, 2000 (this "AMENDMENT"), to the
Credit Agreement dated as of December 7,
1999 (the "CREDIT AGREEMENT"), among ▇▇▇▇▇▇
ACQUISITION HOLDINGS, INC., a Delaware
corporation, ▇▇▇▇▇▇ MEDICAL TECHNOLOGY,
INC., a Delaware corporation, the LENDERS
from time to time party thereto, THE CHASE
MANHATTAN BANK, a New York banking
corporation, as administrative agent and
collateral agent for such lenders and as
issuing bank, CHASE MANHATTAN BANK, PARIS
BRANCH, as the local facilities lender, and
BANK OF AMERICA, N.A., a national banking
association, as syndication agent.
A. Pursuant to the Credit Agreement, the Lenders and the Issuing Bank
have extended credit to the Borrower, and have agreed to extend credit to the
Borrower, in each case pursuant to the terms and subject to the conditions set
forth therein.
B. The Borrower has informed the Administrative Agent that it seeks an
amendment of the Credit Agreement as set forth herein.
C. The Required Lenders are willing to agree to such amendment pursuant
to the terms and subject to the conditions set forth herein.
D. Each capitalized term used and not otherwise defined herein shall
have the meaning assigned to such term in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT. (a) The definition of
"Management Investors" in Section 1.01 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"MANAGEMENT INVESTORS": means each of the following
individuals and such individual's Family Group: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
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(b) The following definition is hereby added to Section 1.01 of the
Credit Agreement in its appropriate alphabetical position:
"CERAMTEC SALE": means the sale by the Borrower to Ceramtec
AG, a corporation organized under the laws of the Federal Republic of
Germany ("Ceramtec"), of the premarket filing number G960199 filed with
the Food and Drug Administration on November 4, 1996 with respect to
the ceramic on ceramic system jointly developed by the Borrower and
Ceramtec.
(c) Schedule 6.01 to the Credit Agreement is hereby replaced
with Schedule 6.01 attached hereto; PROVIDED that upon the Amendment Effective
Date (as defined in Section 4 below), the terms of the preferred stock of
Holdings listed on Schedule 6.01 attached hereto shall be amended so that such
preferred stock shall no longer be Redeemable Preferred Stock.
(d) Section 6.05 of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
SECTION 6.05. ASSET SALES. Each of Holdings and the Borrower
will not, and will not permit any of the Subsidiaries to, sell,
transfer, lease or otherwise dispose of any asset, including any
capital stock of another Person, and the Borrower will not, and each of
Holdings and the Borrower will not permit any of the Subsidiaries to,
issue any additional shares of capital stock of the Borrower or such
Subsidiary or other ownership interest in the Borrower or such
Subsidiary, as the case may be, except:
(a) sales of inventory, used or surplus equipment and
Permitted Investments, in each case in the ordinary course of
business;
(b) sales, transfers and dispositions (including the
issuance of capital stock) to the Borrower or a Subsidiary;
PROVIDED that the fair market value of the assets subject to
any such sales, transfers or dispositions (i) to a Subsidiary
that is not a Loan Party shall (A) be deemed an investment in
such Subsidiary subject to the limitations of Section 6.04, to
the extent not compensated at fair market value in cash, and
(B) be made in compliance with Section 6.08 and (ii) to a
Cremascoli Loan Party from a WMT Loan Party shall not exceed
$10,000,000 in the aggregate (calculated on a net basis after
giving effect to the fair market value of any sale, transfer
or other disposition of assets to a WMT Loan Party from a
Cremascoli Loan Party), to the extent not compensated at fair
market value in cash;
(c) sales, transfers or dispositions of assets
constituting investments permitted under Section 6.04(g);
(d) following the Cremascoli Acquisition, sales of
accounts receivable of the Italian Receivables Subsidiary in
connection with the Italian Receivables Program;
(e) the Ceramtec Sale; and
(f) sales, transfers and dispositions of assets not
permitted by clauses (a) - (e) above not to exceed $2,000,000
or, following the Cremascoli Acquisition, $3,000,000 during
any fiscal year of Holdings;
PROVIDED that all sales, transfers, leases and other dispositions
permitted hereby shall be made for fair value and (other than sales,
transfers and other dispositions permitted under clauses (b) and (e))
for at least 80% cash consideration.
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SECTION 2. WAIVER. Any Default occurring on or after December 7, 1999
and prior to the Amendment Effective Date (as defined below) that would not have
occurred if Section 1(c) of this Amendment had been in effect during such period
is hereby waived by the undersigned Lenders.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to each other party hereto that, after giving effect to this Amendment,
(a) the representations and warranties set forth in Article III of the Credit
Agreement are true and correct in all material respects on and as of the date
hereof, except to the extent such representations and warranties expressly
relate to an earlier date (in which case such representations and warranties
were true and correct in all material respects as of the earlier date), and (b)
no Default or Event of Default has occurred and is continuing.
SECTION 4. EFFECTIVENESS. This Amendment shall become effective as of
the first date (the "Amendment Effective Date") that the following conditions
are satisfied: (i) the Administrative Agent or its counsel shall have received
counterparts of this Amendment that, when taken together, bear the signatures of
the Borrower, Holdings and the Required Lenders and (ii) the terms of the
preferred stock of Holdings listed on Schedule 6.01 attached hereto are amended
so that such preferred stock shall no longer be Redeemable Preferred Stock.
SECTION 5. EFFECT OF AMENDMENT. Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or otherwise affect the rights and remedies of the Lenders, the
Issuing Bank, the French Lender, Collateral Agent or the Administrative Agent,
under the Credit Agreement or any other Loan Document, and shall not alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing herein shall be deemed to entitle the
Borrower to a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained
in the Credit Agreement or any other Loan Document in similar or different
circumstances.
SECTION 6. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CHOICE OF LAW PROVISIONS THEREOF.
SECTION 8. HEADINGS. The headings of this Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
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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
day and year first above written.
▇▇▇▇▇▇ ACQUISITION HOLDINGS, INC.,
as Holdings,
by /s/ F. ▇▇▇▇▇ ▇▇▇▇
---------------------------
Name: F. ▇▇▇▇▇ ▇▇▇▇
Title: President & CEO
▇▇▇▇▇▇ MEDICAL TECHNOLOGY, INC.,
as the Borrower,
by /s/ F. ▇▇▇▇▇ ▇▇▇▇
---------------------------
Name: F. ▇▇▇▇▇ ▇▇▇▇
Title: President & CEO
THE CHASE MANHATTAN BANK,
as a Lender, as Administrative Agent,
Collateral Agent and Issuing Bank,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.,
as a Lender and as Syndication Agent,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Principal
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FLEET NATIONAL BANK,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
FIRST UNION NATIONAL BANK,
by /s/ ▇▇▇▇▇ ▇. Law
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Name: ▇▇▇▇▇ ▇. Law
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANKERS TRUST COMPANY,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
SUNTRUST BANK, NASHVILLE, N.A.,
by /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President