EXHIBIT (b)(2)
CREDIT AGREEMENT SUPPLEMENT AND AMENDMENT, dated as of
May 24, 2005 (the "Credit Agreement Supplement") among
PolyMedica Corporation, a Massachusetts corporation (the
"Borrower"), the lenders from time to time party thereto (the
"Lenders"), and Bank of America, N.A., as Administrative Agent
(in such capacity, the "Administrative Agent") to the Credit
Agreement, dated as of April 12, 2005 (the "Credit Agreement")
among the Borrower, the Lenders, the Administrative Agent,
Swing Line Lender and L/C Issuer and certain other agents
parties thereto.
The Borrower has informed the Administrative Agent that it intends to
conduct a $150 million "Dutch Auction" of its shares to repurchase approximately
4.3 to 4.8 million of its Equity Interests (the "Share Repurchase"). The
Borrower has requested that Section 7.06(e) of the Credit Agreement be amended
to permit such Share Repurchase.
The Borrower has requested that the Credit Agreement be amended so as to
provide an increase in the Aggregate Commitments in an aggregate amount of up to
$50 million.
Each existing Lender that executes and delivers this Credit Agreement
Supplement specifically in the capacity of a Lender will be deemed to have
agreed to the terms of this Credit Agreement Supplement but will not be deemed
to have made any additional Commitment.
Each existing Lender that executes and delivers this Credit Agreement
Supplement specifically in the capacity of a participating lender (a
"Participating Lender") (a) will have agreed to the terms of this Credit
Agreement Supplement and (b) will have agreed to make a new Commitment, in
addition to its existing Commitment, in an aggregate amount as agreed to by such
Lender and determined by the Borrower and the Administrative Agent and notified
to such Lender (the "New Commitment").
The parties hereto have agreed, subject to the terms and conditions
hereof, to supplement and amend the Credit Agreement as provided herein and to
the waivers as provided herein.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement (the Credit Agreement,
as amended by, and together with, this Credit Agreement Supplement, and as
hereinafter amended, modified, extended or restated from time to time, being
called the "Amended Agreement").
Accordingly, the parties hereto hereby agree as follows:
SECTION 1.01. Amendment to Section 7.06. Section 7.06(e) is hereby amended
by deleting Section 7.06(e) in its entirety and replacing it with the following:
"(e) the Borrower may purchase, redeem or otherwise acquire for cash
Equity Interests issued by it in the Share Repurchase in an amount
not to exceed $150 million in the aggregate, and the Borrower may
make up to an additional $20 million of purchases, redemptions and
acquisitions for cash Equity Interests issued by it at any time
thereafter during the term of this Agreement; provided
that after giving effect to any and all such purchases, redemptions
or acquisitions under this clause (e) on a Pro Forma Basis no
Default exists."
SECTION 1.02. Amendment to Schedule 2.01. Schedule 2.01 (Commitments and
Applicable Percentages) to the Credit Agreement is hereby amended to read in its
entirety as set forth on Exhibit A attached hereto to reflect the Commitments of
each of the Lenders, including the New Commitments of any Participating Lenders,
in an aggregate principal amount at any one time outstanding not to exceed the
amount set forth opposite such Lender's name on Schedule 2.01.
SECTION 1.03. Representations and Warranties. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders, as follows:
(a) The representations and warranties of the Borrower contained in
Article V of the Amended Agreement, and in each other Loan Document or
which are contained in any document furnished at any time under or in
connection therewith, are true and correct in all material respects on and
as of the date hereof and on and as of the Effective Date (as defined
below) with the same effect as if made on and as of the date hereof or the
Effective Date, as the case may be, (i) except to the extent such
representations and warranties specifically refer to an earlier date, in
which case they are true and correct in all material respects as of such
earlier date, (ii) except the representations and warranties contained in
subsections (a) and (b) of Section 5.05 of the Amended Agreement shall be
deemed to refer to the most recent financial statements furnished pursuant
to subsections (a) and (b), respectively, of Section 6.01 of the Amended
Agreement, and (iii) together with any additional items that will be
disclosed on any updated Schedules required to be supplemented pursuant to
Section 6.02(b) on the next scheduled delivery date, as to which the
Borrower has notified the Administrative Agent in writing.
(b) After giving effect to this Credit Agreement Supplement, no
Default or Event of Default has occurred or is continuing under the
Amended Agreement.
(c) The execution, delivery and performance by the Borrower of this
Credit Agreement Supplement have been duly authorized by all necessary
corporate or other organizational action of the Borrower.
(d) No approval, consent, exemption or other action by, or notice
to, or filing with any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or
performance by the Borrower or any other Loan Party of this Credit
Agreement Supplement or any document related hereto other than the
approvals, consents, exemptions, actions, notices or filings which have
been duly obtained, taken, given or made and are in full force and effect.
(e) This Credit Agreement Supplement constitutes the legal, valid
and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its terms except as such enforceability may be limited
by Debtor Relief Laws and by principles of equity.
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(f) The execution, delivery, performance and compliance with the
terms and provisions, by the Borrower, of this Credit Agreement
Supplement, and the consummation of the transactions contemplated hereby
with respect to each Loan Party, do not and will not: (i) contravene the
terms of any of such Person's Organization Documents; (ii) conflict with
or result in any breach or contravention of, or the creation of any Lien
under, or require any payment to be made under (A) any Contractual
Obligation to which such Person is a party affecting such Person or the
properties of such Person or any of its Subsidiaries or (B) any order,
injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject; or (iii) violate
any Law, including, without limitation, Medicare Regulations.
SECTION 1.04. Effectiveness. This Credit Agreement Supplement shall become
effective only upon satisfaction of the following conditions precedent (the
first date upon which each such condition has been satisfied being herein called
the "Effective Date"):
(a) The Administrative Agent shall have received duly executed
counterparts of this Credit Agreement Supplement which, when taken
together, bear the authorized signatures of the Borrower, the Required
Lenders, any Participating Lenders with New Commitments and the
Administrative Agent.
(b) The representations and warranties set forth in Section 1.03
hereof are true and correct in all material respects on and as of the
Effective Date.
(c) Each Loan Party that has not executed and delivered this Credit
Agreement Supplement shall have entered into an instrument reasonably
satisfactory to the Administrative Agent pursuant to which it confirms
that it consents to this Credit Agreement Supplement and any new
Commitments and that the Loan Documents to which it is a party will
continue to apply in respect of the Amended Agreement and the Obligations
of such Loan Party.
(d) All corporate and other proceedings taken or to be taken in
connection with this Credit Agreement Supplement and all documents
incidental thereto, whether or not referred to herein, shall be reasonably
satisfactory in form and substance to the Required Lenders and any
Participating Lenders and their respective counsel.
(e) The Administrative Agent shall have received payment of all fees
and expenses referred to in a letter agreement dated May 18, 2005 among
Bank of America, N.A., Banc of America Securities LLC and the Borrower.
SECTION 1.05. Lender Consent. For purposes of determining compliance with
the conditions specified in Section 1.04, each Lender that has signed this
Credit Agreement Supplement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received notice from such
Lender prior to the proposed Effective Date specifying its objection thereto.
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SECTION 1.06. APPLICABLE LAW. THIS CREDIT AGREEMENT SUPPLMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 1.07. Counterparts. This Credit Agreement Supplement may be
executed in any number of counterparts, each of which shall constitute an
original but all of which when taken together shall constitute but one
agreement. Delivery by facsimile by any of the parties hereto of an executed
counterpart of this Credit Agreement Supplement shall be as effective as an
original executed counterpart hereof and shall be deemed a representation that
an original executed counterpart hereof will be delivered, but the failure to
deliver a manually executed counterpart shall not affect the validity,
enforceability or binding effect of this Credit Agreement Supplement.
SECTION 1.08. Credit Agreement. Except as expressly set forth herein, the
amendments provided herein shall not by implication or otherwise limit,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders or the Administrative Agent under the Amended Agreement or any other
Loan Document, nor shall they constitute a waiver of any Default or Event of
Default, nor shall they alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Amended
Agreement or any other Loan Document. Each of the amendments provided herein
shall apply and be effective only with respect to the provisions of the Amended
Agreement specifically referred to by such amendment. Except as expressly
amended herein, the Amended Agreement shall continue in full force and effect in
accordance with the provisions thereof. As used in the Amended Agreement, the
terms "Agreement", "herein", "hereinafter", "hereunder", "hereto" and words of
similar import shall mean, from and after the date hereof, the Amended
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement
Supplement to be duly executed by their duly authorized officers, all as of the
date first above written.
POLYMEDICA CORPORATION
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: Chief Financial Officer
-----------------------------------
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxx X. Zeschko
-------------------------------------
Name: Xxxx X. Zeschko
-------------------------------
Title: Assistant Vice President
------------------------------
BANK OF AMERICA, N.A., as Lender
By: Xxxxxxxxx X. Xxxx
-------------------------------------
Name:
-------------------------------
Title: SVP
------------------------------
BANK OF AMERICA, N.A., as Participating Lender
By: Xxxxxxxxx X. Xxxx
-------------------------------------
Name:
-------------------------------
Title: SVP
------------------------------
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Xxxxx Santa Xxxx
-------------------------------------
Name: Xxxxx Santa Xxxx
-------------------------------
Title: Director
------------------------------
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Participating Lender
By: /s/ Xxxxx Santa Xxxx
-------------------------------------
Name: Xxxxx Santa Xxxx
-------------------------------
Title: Director
------------------------------
CITIZENS BANK OF MASSACHUSETTS, as a
Lender
By: /s/ Xxxxxxx X. Granchell
-------------------------------------
Name: Xxxxxxx X. Granchell
-------------------------------
Title: Senior Vice President
------------------------------
CITIZENS BANK OF MASSACHUSETTS, as
Participating Lender
By: /s/ Xxxxxxx X. Granchell
-------------------------------------
Name: Xxxxxxx X. Granchell
-------------------------------
Title: Senior Vice President
------------------------------
KEYBANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ X.X. Xxxxxx
-------------------------------------
Name: X.X. Xxxxxx
-------------------------------
Title: SVP
------------------------------
KEYBANK NATIONAL ASSOCIATION, as
Participating Lender
By: /s/ X.X. Xxxxxx
-------------------------------------
Name: X.X. Xxxxxx
-------------------------------
Title: SVP
------------------------------
CIBC INC., as a Lender
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------
Title: Managing Director
------------------------------
CIBC World Markets Corp. As Agent
CIBC INC., as Participating Lender
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
SUNTRUST BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-------------------------------
Title: Director
------------------------------
SUNTRUST BANK, as Participating Lender
By: Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Title: Director
------------------------------
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as a Lender
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
-------------------------------
Title: Director
------------------------------
/s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx
Director
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Participating Lender
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
-------------------------------
Title: Director
------------------------------
/s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx
Director
UBS LOAN FINANCE LLC, as a Lender
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------
Title: Director, Banking Products
Services, US
------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------
Title: Director, Banking Products
Services, US
------------------------------
UBS LOAN FINANCE LLC, as Participating
Lender
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES
LENDER COMMITMENT APPLICABLE
PERCENTAGE
--------------------------------------------------------------------------------
Bank of America, N.A. $40,000,000.00 20.00000000%
Wachovia Bank, National Association $40,000,000.00 20.00000000%
Citizens Bank of Massachusetts $30,000,000.00 15.00000000%
KeyBank National Association $20,000,000.00 10.00000000%
Deutsche Bank Trust Company Americas $20,000,000.00 10.00000000%
SunTrust Bank $20,000,000.00 10.25641026%
CIBC Inc. $15,000,000.00 7.69230769%
UBS Loan Finance LLC $10,000,000.00 5.12820513%
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Total $195,000,000.00 100.000000000%
