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EXHIBIT 4.2
AMENDMENT NO. 1
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. 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 all of the
documents and other items listed or described on Exhibit A hereto on or before
the date set forth on Exhibit A for delivery of such documents or other items,
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 April 20, 2001 (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.
3.1. COMMERCIAL LETTER OF CREDIT FEE. Section 5.3 is hereby deleted and
replaced with the following:
5.3 COMMERCIAL LETTER OF CREDIT FEE. Borrower shall pay to
Administrative Agent for the account of Letter of Credit
Issuer and each other Lender a non-refundable, recurring
Commercial Letter of Credit Fee for each commercial Letter of
Credit issued by Letter of Credit Issuer that is equal to
.25% of the average daily maximum amount available to be
drawn under such commercial Letter of Credit computed at a
per annum rate for each day from the date of issuance to the
date of expiration. Such Commercial Letter of Credit Fee
shall be payable quarterly, in arrears, on the last Business
Day of each calendar quarter (for the immediately preceding
quarter or portion thereof), until the earlier of its
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expiration or the Revolving Loan Maturity Date. The
Commercial Letter of Credit Fee will be distributed by
Administrative Agent to Lenders in accordance with their pro
rata shares of the Aggregate Revolving Loan Commitment.
3.2. EXTENSION OF MATURITY. The date "April 30, 2002", each place it
appears in Section 6.1.2, is deleted and replaced with the date "April
30, 2004".
3.3. NEW DEFINED TERM. The following new defined terms are hereby added
in alphabetical order to the defined terms listed in Section 15.1:
Adjusted Net Worth means Net Worth plus the Treasury
Securities Amount.
Treasury Securities Amount means, on any date of
determination, the lesser of (i) the Dollar amount of
Borrower's treasury securities on such date determined in
accordance with GAAP minus $3,537,000, and (ii) $15,000,000.
3.4. NEW FINANCIAL COVENANT. The following new Section 15.4 is added
immediately after Section 15.3:
15.4. MINIMUM ADJUSTED NET WORTH. Borrower's Adjusted Net
Worth, measured at the end of each fiscal quarter of Borrower
shall not be less than an amount equal to the sum of (A)
$54,393,000, and (B) 75% of Borrower's cumulative Net Income
(without deduction for fiscal quarters in which there is no
positive Net Income) for all fiscal quarters of Borrower
ended after December 31, 2000.
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 of this Amendment has 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, (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
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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; NO THIRD PARTY RIGHTS. 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.
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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 and Chief Agent
Financial Officer by its Vice President
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Name: Xxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxx, Xx.
BANK OF AMERICA, N.A., as a Lender
by its Corporate Banking Officer
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Name: Xxxxx X. Xxxxxxx
THE NORTHERN TRUST COMPANY, AS A LENDER XXXXXX TRUST AND SAVINGS BANK, AS A LENDER
by its Vice President by its Vice President
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Name: Xxxxxxx XxXxxxxxx Name: Xxxxx X. Xxxxxxxxx
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EXHIBIT A
DOCUMENTS AND REQUIREMENTS LIST
TO BE DELIVERED OR OBTAINED ON OR BEFORE MAY 21, 2001:
1) Certificate of the Secretary of Borrower, certifying (a) that its articles
or certificate of incorporation and bylaws of Borrower previously certified
in connection with the execution of the Loan Agreement have not been
amended, (b) the resolutions adopted by the Board of Directors of Borrower,
authorizing the execution, delivery and performance of the Amendment by
Borrower, are attached to the certificate and remain in full force and
effect, and (c) a certificate of incumbency specifying the names, titles,
and true signatures of the incumbent corporate officers authorized to sign
the Amendment on behalf of Borrower is attached to the certificate.
2) Legal opinion in the form of the Legal Opinion Specification attached
hereto.
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ATTACHMENT TO DOCUMENTS AND REQUIREMENTS LIST
LEGAL OPINION SPECIFICATION FOR AMENDMENT NO. 1
Legal opinion of counsel to Borrower must be on firm letterhead and meet these
requirements or otherwise be satisfactory to Administrative Agent:
1. Address to Bank of America, N.A. as Administrative Agent for itself and
other Lenders at ______________________________________________,
Attention: ______________________
2. Refer to Amendment No. 1 (and define it as the "Amendment" in the legal
opinion) and the Loan Agreement and use definitions in Loan Agreement.
3. Give opinions with respect to each applicable Covered Person on the
subjects covered in all of the following example paragraphs:
a. Borrower is a Missouri corporation, duly formed, validly
existing and in good standing under the Laws of the state of
its organization and is duly qualified and authorized to do
business and is in good standing as a corporation in all
states or countries where the nature and extent of the
business transacted by it or the ownership of its assets makes
such qualification necessary, except where the failure to so
qualify will not have a Material Adverse Effect.
b. Borrower has all requisite power, authority and legal capacity
and legal rights to execute, deliver and perform the terms of
the Amendment.
c. All action on the part of Borrower requisite for its
execution, delivery and performance of the Amendment has been
duly taken.
d. The execution, delivery and performance of the Amendment by
Borrower will not (a) violate, be in conflict with, result in
the breach of, or constitute (with due notice or lapse of
time, or both) a default under (i) its Charter Documents or
(ii) any franchise, agreement, indenture, or other instrument
to which it is a party or by which it or any of its property
is bound or affected or (iii) any Law or other legal
requirement applicable to it, or (b) result in the creation or
imposition of a Security Interest of any nature whatsoever
upon its property or assets.
e. Borrower has duly executed and delivered the Amendment and the
Amendment constitutes the Borrower's legal, valid and binding
obligation enforceable against it in accordance with its
terms.
f. The Person who signed the Amendment as an officer of Borrower
is duly authorized on behalf of Borrower to execute, deliver
and perform such document on behalf of Borrower and Borrower
is duly authorized to perform its obligations under the
Amendment and to incur the obligations and make the
representations, warranties and covenants made by it in the
Amendment.
g. No consent, approval or other authorization of or by, or
registration or filing with, any Governmental Authority or
other Person is required in connection with the execution,
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delivery and performance by Borrower of the Amendment that has
not already been obtained and a copy thereof delivered to
Administrative Agent.
h. No notice to or consent of any Guarantor is required in
connection with the Amendment to continue the enforceability
against such Guarantor of any Loan Document to which such
Guarantor is a party (including any Guaranty).
i. There are no actions, proceedings or investigations pending or
threatened against Borrower which might adversely affect the
validity or enforceability of the Amendment, the ability of
Borrower to perform its obligations under the Amendment or
which might adversely affect the business, operations,
revenues, financial condition, property or business prospects
of Borrower.
4. Add appropriate exceptions and limitations, all of which must be
acceptable to Administrative Agent.
5. Signature by a partner of the firm in his individual name or in the
name of the firm.
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EXHIBIT B
(SUPPLEMENTAL DISCLOSURE SCHEDULE)
There are no supplemental disclosures if nothing is listed below.
