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AMENDMENT
AND
LIMITED WAIVER NO. 2
This AMENDMENT
AND LIMITED WAIVER NO.2, dated as of November 18, 2005 (this
"Agreement"), among (a) POLYMEDICA
CORPORATION, a Massachusetts corporation (the
"Borrower"), (b) the Lenders (such
capitalized term and all other capitalized
terms not otherwise defined herein to have
the meanings provided in the recitals
and in Article I below) who are signatories
to this Agreement, and (c) BANK OF
AMERICA, N.A., as administrative agent (in
such capacity, the "Administrative
Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the
Borrower, the lenders from time to time party thereto
(collectively, the "Lenders"), the
Administrative Agent and the other Initial
Agents have entered into a Credit Agreement
dated as of April 12, 2005, and
Credit Agreement Supplement and Amendment
thereto dated as of May 24, 2005 (as
so amended and supplemented, the "Credit
Agreement");
WHEREAS, the
Borrower has failed to cause its newly acquired subsidiary
National Diabetic Pharmacies, LLC, a
Virginia limited liability company (the
"Newly Acquired Subsidiary") to execute and
deliver a Joinder Agreement and to
take such other actions as may be required
pursuant to Section 6.12, 6.13 and
6.14 of the Credit Agreement, within the
thirty (30) day time period specified
in Sections 6.12 and 6.13 of the Credit
Agreement;
WHEREAS, the
Borrower has requested that the Required Lenders agree to (a)
amend the Credit Agreement as hereinafter
set forth to provide for (i) a revised
amount of permitted Equity Interest
repurchases, and (ii) two additional
permitted Interest Periods, and (b) waive
for a limited period the thirty (30)
day requirement set forth in Sections 6.12
and 6.13 of the Credit Agreement
regarding delivery of the supporting
documentation for the Newly Acquired
Subsidiary;
WHEREAS, the
Lenders signatory to this Agreement are, on the terms and
conditions stated below, willing to grant
the requests of the Borrower;
NOW THEREFORE,
for good and valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, each party to this Agreement
agrees as follows:
ARTICLE I
DEFINITIONS
1.01
DEFINITIONS. The following terms (whether or not underscored)
when
used in this Agreement, including its
preamble and recitals, shall have the
following meanings (such definitions to be
equally applicable to the singular
and plural forms thereof):
"Consent" means
a Consent to this Agreement in the form of Exhibit A
hereto.
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"Second
Amendment Effective Date" means the date on which the
conditions
precedent to the effectiveness of this
Agreement as specified in Article IV
herein have been satisfied.
"Initial Agents"
means, collectively, the agents party to the Credit
Agreement on the Closing Date: (a) Bank of
America, N.A., as Administrative
Agent, (b) Banc of America Securities LLC
and Wachovia Capital Markets, LLC, as
Joint Lead Arrangers, (c) Wachovia Bank,
National Association, as Syndication
Agent, and (d) Citizens Bank of
Massachusetts, as Documentation Agent.
"Responsible
Officer's Certificate" means a certificate of a Responsible
Officer of the Borrower in the form of
Exhibit B hereto.
1.02 OTHER
DEFINITIONS. Unless otherwise defined herein or the context
otherwise requires, terms used in this
Agreement, including its preamble and
recitals, have the meanings provided in the
Credit Agreement.
1.03 OTHER
INTERPRETIVE PROVISIONS. The rules of construction in Sections
1.02 to 1.06 of the Credit Agreement shall
be equally applicable to this
Agreement.
ARTICLE II
AMENDMENTS
Effective as of
the Second Amendment Effective Date, the Credit Agreement
is hereby amended as follows:
2.01 RESTRICTED
PAYMENTS. Section 7.06 of the Credit Agreement is amended
by replacing subsection (e) thereof as
follows:
"(e) the Borrower may purchase, redeem or otherwise acquire for
cash,
Equity Interests
issued by it not to exceed $100 million in the aggregate
during the time
period beginning on the Second Amendment Effective Date and
continuing
through the term of this Agreement; provided after giving
effect
to any and all
additional purchases, redemptions or acquisitions, on a Pro
Forma Basis, no
Default shall exist."
2.02 INTEREST
PERIODS. Section 2.02 of the Credit Agreement is amended by
replacing subsection (e) thereof as
follows:
"(e) After giving effect to all Borrowings, all conversions of
Loans
from one Type to
the other, and all continuations of Loans as the same
Type, there
shall not be more than seven Interest Periods in effect with
respect to
Loans."
ARTICLE III
LIMITED WAIVER
3.01 LIMITED
WAIVER. Effective as of the Second Amendment Effective Date,
the undersigned, solely with respect to the
deliveries and other actions
required under (a) Sections 6.12, 6.13 and
6.14 of the Credit Agreement
(including any provisions referred to
therein) and
2
Amendment and
Limited Waiver No. 2
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(b) the Collateral Documents, waive any
Default or Event of Default arising from
the Borrower's and any Subsidiary's
non-compliance with such provisions in
connection with the Acquisition of the
Newly Acquired Subsidiary through
November 29, 2005, provided that on or
prior to such date, the Borrower takes
all actions and makes all deliveries
required under the aforementioned
provisions of the Credit Agreement in
accordance with such provisions.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 CONDITIONS
OF EFFECTIVENESS. This Agreement is subject to the
provisions of Section 10.01 of the Credit
Agreement, and shall become effective
when, and only when, each of the following
conditions shall have been satisfied:
(a) the Administrative Agent shall have received counterparts of
this
Agreement
executed by the Borrower and the Required Lenders;
(b) the Administrative Agent shall have received counterparts of
the
Consent executed
by each Guarantor;
(c) the Administrative Agent shall have received a Responsible
Officer's
Certificate executed by a Responsible Officer of the Borrower;
and
(d) the representations and warranties of the Loan Parties
contained
in Section 5.04
hereof shall be true and correct in all material respects.
ARTICLE V
MISCELLANEOUS
5.01 LOAN
DOCUMENT. On the Second Amendment Effective Date, this
Agreement
and the Consent become "Loan Documents", as
defined in the Credit Agreement, and
this Agreement is a Loan Document executed
pursuant to the Credit Agreement and
shall (unless otherwise expressly indicated
herein) be construed, administered
and applied in accordance with the terms
and provisions thereof.
5.02 EFFECT OF
AGREEMENT. (a) The Credit Agreement, as specifically amended
by this Agreement, is and shall continue to
be in full force and effect and is
hereby in all respects ratified and
confirmed.
(b) The execution, delivery and effectiveness of this Agreement
shall
not, except as
expressly provided herein, operate as a waiver of any right,
power or remedy
of any Lender or the Administrative Agent under any of the
Loan Documents,
nor constitute a waiver of any provision of any of the Loan
Documents.
5.03 COSTS AND
EXPENSES. On the Second Amendment Effective Date, the
Borrower agrees to pay all reasonable costs
and expenses of the Administrative
Agent in connection with the preparation,
execution and delivery of this
Agreement and the other instruments and
documents to be delivered hereunder
(including, without limitation, the
reasonable fees, changes
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