Exhibit 4
CREDIT AGREEMENT
Dated as of September 15, 1997
among
XXXXX & MINOR, INC.
as Borrower,
AND
CERTAIN OF ITS SUBSIDIARIES IDENTIFIED HEREIN
as Guarantors
THE BANKS IDENTIFIED HEREIN,
NATIONSBANK, N.A.,
as Agent,
BANK OF AMERICA NT & SA
and
CRESTAR BANK,
as Co-Agents,
AND
NATIONSBANK, N.A.,
as Administrative Agent
TABLE OF CONTENTS
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS..............................1
1.01 Definitions................................................1
1.02 Computation of Time Periods...............................20
1.03 Accounting Terms..........................................20
SECTION 2 CREDIT FACILITIES............................................20
2.01 Revolving Loan Commitment.................................20
2.02 Revolving Loan Advances...................................21
2.03 Conversion................................................23
2.04 Repayment of the Revolving Loans..........................23
2.05 Interest on Revolving Loans...............................23
2.06 Revolving Notes...........................................24
2.07 Swingline Loan Subfacility................................24
2.08 Competitive Loan Subfacility..............................26
2.09 Conditions of Lending.....................................29
2.10 Termination of Commitments................................29
2.11 Fees......................................................30
2.12 Prepayments...............................................30
2.13 Increased Costs, Illegality, etc..........................31
2.14 Capital Adequacy..........................................32
2.15 Compensation..............................................33
2.16 Net Payments..............................................33
2.17 Change of Lending Office; Right to Substitute Lender......34
2.18 Payments and Computations.................................35
2.19 Pro Rata Treatment........................................36
2.20 Sharing of Payments.......................................36
2.21 Foreign Lenders...........................................36
SECTION 3 GUARANTEE....................................................37
3.01 The Guarantee.............................................37
3.02 Obligations Unconditional.................................38
3.03 Reinstatement.............................................39
3.04 Certain Additional Waivers................................39
3.05 Remedies..................................................39
3.06 Rights of Contribution....................................39
3.07 Continuing Guarantee......................................40
SECTION 4 CONDITIONS PRECEDENT.........................................40
4.01 Conditions to Closing.....................................40
4.02 Conditions to Initial Loan Advance........................41
SECTION 5 REPRESENTATIONS AND WARRANTIES...............................42
5.01 Organization and Good Standing............................42
5.02 Due Authorization.........................................42
5.03 No Conflicts..............................................42
5.04 Consents..................................................42
5.05 Enforceable Obligations...................................43
5.06 Financial Condition.......................................43
5.07 No Default................................................43
5.08 Liens.....................................................43
5.09 Indebtedness..............................................43
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5.10 Litigation................................................43
5.11 Material Agreements.......................................44
5.12 Taxes.....................................................44
5.13 Compliance with Law.......................................44
5.14 ERISA.....................................................44
5.15 Subsidiaries..............................................44
5.16 Use of Proceeds; Margin Stock.............................45
5.17 Government Regulation.....................................45
5.18 Hazardous Substances......................................45
5.19 Patents, Franchises, etc..................................46
5.20 Solvency..................................................46
5.21 Investment................................................46
SECTION 6 AFFIRMATIVE COVENANTS.........................................46
6.01 Information Covenants.....................................46
6.02 Preservation of Existence and Franchises..................49
6.03 Books, Records and Inspections............................49
6.04 Compliance with Law.......................................49
6.05 Payment of Taxes and Other Indebtedness...................49
6.06 Insurance.................................................50
6.07 Maintenance of Property...................................50
6.08 Performance of Obligations................................50
6.09 ERISA.....................................................50
6.10 Use of Proceeds...........................................51
6.11 Financial Covenants.......................................51
6.12 Additional Credit Parties.................................52
SECTION 7 NEGATIVE COVENANTS...........................................53
7.01 Indebtedness..............................................53
7.02 Liens.....................................................54
7.03 Guaranty Obligations......................................54
7.04 Nature of Business........................................54
7.05 Consolidation, Merger, Sale or Purchase of Assets, etc....54
7.06 Advances, Investments and Loans...........................55
7.07 Prepayments and Amendments Relating to Other Debt.........56
7.08 Transactions with Affiliates..............................56
7.09 Ownership of Subsidiaries.................................57
7.10 Fiscal Year...............................................57
7.11 Subsidiary Dividends......................................57
7.12 Dividends.................................................57
7.13 Securitization Transaction................................57
SECTION 8 EVENTS OF DEFAULT............................................58
8.01 Events of Default.........................................58
8.02 Acceleration; Remedies....................................60
SECTION 9 AGENCY PROVISIONS............................................61
9.01 Appointment...............................................61
9.02 Delegation of Duties......................................62
9.03 Exculpatory Provisions....................................62
9.04 Reliance on Communications................................62
9.05 Notice of Default.........................................63
9.06 Non-Reliance on Agents and Other Banks....................63
9.07 Indemnification...........................................64
ii
9.08 Agents in their Individual Capacity.......................64
9.09 Successor Agent...........................................64
SECTION 10 MISCELLANEOUS...............................................65
10.01 Notices..................................................65
10.02 Right of Set-Off.........................................66
10.03 Benefit of Agreement.....................................66
10.04 No Waiver; Remedies Cumulative...........................69
10.05 Payment of Expenses, etc.................................69
10.06 Amendments, Waivers and Consents.........................70
10.07 Counterparts.............................................71
10.08 Headings.................................................71
10.09 Survival of Indemnification..............................71
10.10 Governing Law; Submission to Jurisdiction; Venue.........71
10.10 Severability.............................................72
10.11 Entirety.................................................72
10.12 Survival of Representations and Warranties...............72
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SCHEDULES
Schedule 2.01(a) Schedule of Banks and Commitments
Schedule 2.02(1) Form of Notice of Borrowing
Schedule 2.02(2) Form of Notice of Conversion
Schedule 2.06 Form of Revolving Note
Schedule 2.08(b)-1 Form of Competitive Bid Request
Schedule 2.08(b)-2 Form of Notice of Receipt of Competitive Bid Request
Schedule 2.08(c) Form of Competitive Bid
Schedule 2.08(e) Form of Competitive Bid Accept/Reject Letter
Schedule 4.01(b)(1) Form of Legal Opinion of Drew St. X. Xxxxxxx
Schedule 4.01(b)(2) Form of Legal Opinion of Hunton & Xxxxxxxx
Schedule 5.09 Schedule of Outstanding Indebtedness
Schedule 5.10 Schedule of Legal Proceedings
Schedule 5.15 Schedule of Subsidiaries
Schedule 5.18 Schedule of Environmental Exceptions
Schedule 6.01(c) Schedule of Borrowing Base Certificate
Schedule 6.01(d) Form of Officer's Compliance Certificate
Schedule 6.06 Schedule of Insurance
Schedule 6.12 Form of Joinder Agreement
Schedule 7.02 Schedule of Permitted Liens
Schedule 10.03 Form of Assignment and Acceptance Agreement
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of September 15, 1997 (the "Credit
Agreement"), is by and among XXXXX & MINOR, INC., a Virginia corporation (the
"Borrower"), CERTAIN OF ITS SUBSIDIARIES identified as a "Guarantor" in the
definition thereof and on the signature pages hereto (hereinafter sometimes
referred to individually as a "Guarantor" and collectively as the "Guarantors"),
the various banks and lending institutions identified on the signature pages
hereto (each a "Bank" and collectively, the "Banks"), NATIONSBANK, N.A. as agent
(in such capacity, the "Agent" or "Administrative Agent"), BANK OF AMERICA NT &
SA and CRESTAR BANK as co-agents (in such capacity, the "Co-Agents") and
NATIONSBANK, N.A., as administrative agent for the Banks (in such capacity, the
"Administrative Agent").
W I T N E S S E T H
WHEREAS, the Borrower has requested that the Banks provide a
$225,000,000 senior revolving credit facility for the purposes hereinafter
provided;
WHEREAS, the Banks have agreed to provide the requested credit facility
on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.01 Definitions.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Additional Credit Party" means each Person that becomes a Guarantor
after the Closing Date.
"Adjusted Eurodollar Rate" means for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate equal to the rate obtained
by dividing (a) the rate of interest determined by the Administrative Agent to
be the average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the per annum rates at which
deposits in U.S. dollars are offered to the Administrative Agent in the
interbank eurodollar market at 11:00 A.M. (Charlotte, North Carolina time) (or
as soon thereafter as is practicable), in each case two Business Days before the
first day of such Interest Period, in an amount substantially equal to such
Eurodollar Loan comprising part of such borrowing (including conversions,
extensions and renewals) and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Adjusted Eurodollar Rate Reserve Percentage
for such Interest Period. As used herein, "Adjusted Eurodollar Rate Reserve
Percentage" for the Interest Period for each Eurodollar Loan comprising part of
the same borrowing (including conversions, extensions and renewals), means the
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities consisting of or including
"eurocurrency liabilities", as such term is defined in Regulation D (or with
respect to any other category of liabilities which includes deposits by
reference to which the interest rate on Eurodollar Loans is determined) having a
term equal to the Interest Period for which such Adjusted Eurodollar Rate
Reserve Percentage is determined.
"Administrative Agent" means the administrative agent for the Banks
under this Credit Agreement as identified in the recital of parties hereinabove,
and any successors and assigns in such capacity.
"Administrative Agent's Fee Letter" means the letter agreement dated as
of September 15, 1997 between the Administrative Agent and the Borrower, as
amended, modified, supplemented or replaced from time to time.
"Administrative Agent's Fees" means such term as defined in Section
2.11(c).
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" means the agent for the Banks under this Credit Agreement as
identified in the recital of parties hereinabove, and any successors and assigns
in such capacity.
"Agents" means, collectively, the Agent, the Co-Agents and the
Administrative Agent.
"Applicable Federal Funds Rate" means, for any day, a per annum rate
equal to the sum of (i) the rate at which Federal funds are offered to the
Swingline Lender on an overnight basis as determined by such Swingline Lender,
plus (ii) one-eighth of one percent (1/8%).
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"Applicable Percentage" means for any day, the rate per annum set forth
below opposite the applicable Leverage Ratio then in effect, it being understood
that the Applicable Percentage for (i) Base Rate Loans shall be the percentage
set forth under the column "Base Rate Margin", (ii) Eurodollar Loans shall be
the percentage set forth under the column "Eurodollar and Fed Funds Swingline
Loan Margin", (iii) Fed Funds Swingline Loans shall be the percentage set forth
under "Eurodollar and Fed Funds Swingline Loan Margin" and (iv) the Commitment
Fee shall be the percentage set forth under the column "Commitment Fee":
Eurodollar and
Leverage Fed Funds Swingline Base Rate Commitment
Ratio Loan Margin Margin Fee
----- ----------- ------ ---
>.60 1.0625% .25% .25%
-
<.60 but >.55 .8125% .25% .225%
-
<.55 but >.50 .6875% 0% .200%
-
<.50 but >.45 .5625% 0% .175%
-
<.45 but >.40 .4375% 0% .150%
-
<.40 .3125% 0% .150%
The Applicable Percentage shall, in each case, be determined and adjusted
quarterly on the date five (5) Business Days after the date of delivery of the
quarterly compliance certificate and financial information provided in
accordance with Sections 6.01(a) and 6.01(b), as appropriate, provided that the
date of determination and adjustment shall not be later than the date 5 days
after the date by which the Borrowers are required to provide such quarterly or
annual compliance certificate and financial information (each an "Interest
Determination Date") based on the information contained in such quarterly or
annual financial information. The Applicable Percentage shall be effective from
an Interest Determination Date until the next such Interest Determination Date.
The Administrative Agent shall determine the appropriate Applicable Percentages
promptly upon receipt of the quarterly or annual financial information and
promptly notify the Borrower and the Banks of any change thereof. Such
determinations by the Administrative Agent shall be conclusive absent manifest
error.
"Assignee" means any bank or financial institution to which all or a
portion of the rights and obligations of a Bank under the terms of this Credit
Agreement have been assigned pursuant to Section 10.03(b) hereof.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Base Rate" means, for any day, a rate per annum (rounded upwards, if
necessary, to the nearest whole multiple of 1/16 of 1%) equal to the greater of
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(a) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% or (b)
the Prime Rate in effect on such day. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate for any
reason, including the inability of the Administrative Agent to obtain sufficient
quotations in accordance with the terms hereof, the Base Rate shall be
determined without regard to clause (a) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist. Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loan" means a Loan which bears interest based on the Base
Rate.
"Borrower" means Xxxxx & Minor, Inc., a Virginia corporation.
"Borrowing Base" means, at any time, the sum of 85% of Eligible
Receivables plus 50% of Eligible Inventory.
"Business Day" means any day other than a Saturday, a Sunday, a legal
holiday or a day on which banking institutions are authorized by law or other
governmental action to close in Richmond, Virginia, Charlotte, North Carolina or
New York, New York; except that in the case of Eurodollar Loans, such day is
also a day on which dealings between banks are carried on in U.S. dollar
deposits in the London interbank market.
"Capital Expenditures" means all expenditures for the purchase of
property, plant and equipment that would be capitalized in accordance with
generally accepted accounting principles, including without limitation
Capitalized Leases.
"Capitalized Lease" means any lease the payments and obligations with
respect to which would be required to be capitalized in accordance with
generally accepted accounting principles.
"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (ii) U.S. dollar denominated
(or foreign currency fully hedged) time deposits, certificates of deposit,
Eurodollar time deposits and Eurodollar certificates of deposit of (y) any
domestic commercial bank of recognized standing having capital and surplus in
excess of $250,000,000 or (z) any bank whose short-term commercial paper rating
from S&P is at least A-1 or the equivalent thereof or from Xxxxx'x is at least
P-1 or the equivalent thereof (any such bank being an "Approved Bank"), in each
case with maturities of not more than 364 days from the date of acquisition,
(iii) commercial paper and variable or fixed rate notes issued by any Approved
Bank (or by the parent company thereof) or any variable rate notes issued by, or
guaranteed by any domestic corporation rated A-1 (or the equivalent thereof) or
better by S&P or P-1 (or the equivalent thereof) or better by Moody's and
4
maturing within six months of the date of acquisition and (iv) repurchase
agreements with a bank or trust company (including a Bank) or a recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States of America
in which the Borrower shall have a perfected first priority security interest
(subject to no other liens or encumbrances) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the repurchase
obligations.
"Change of Control" means (i) any Person or two or more Persons acting
in concert shall have acquired beneficial ownership, directly or indirectly, of
Voting Stock of the Borrower (or other securities convertible into such Voting
Stock) representing 35% or more of the combined voting power of all Voting Stock
of the Borrower, (ii) during any period of up to 24 consecutive months,
commencing after the Closing Date, individuals who at the beginning of such 24
month period were directors of the Borrower cease to constitute a majority of
the board of directors of the Borrower and such event is a result (directly or
indirectly) of the acquisition of 5% or more of the combined voting power of the
Voting Stock by a Person or Persons who did not own at least 5% or more of the
combined voting power of the Voting Stock as of the Closing Date (specifically
excluding for purposes of this clause (ii) the effect of conversion of all or
any portion of the convertible preferred stock held by the Xxxxxxx family on the
Closing Date), or (iii) any Person or two or more Persons acting in concert
shall have acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or their
acquisition of, control over Voting Stock of the Borrower (or other securities
convertible into such securities) representing 35% or more of the combined
voting power of all Voting Stock of the Borrower. As used herein, "beneficial
ownership" shall have the meaning provided in Rule 13d-3 of the Securities and
Exchange Commission under the Securities and Exchange Act of 1934.
"Closing Date" means the date on which the conditions set forth in
Section 4.01 shall have been fulfilled.
"Co-Agent" means the co-agents for the Banks under this Credit
Agreement as identified and defined in the recital of the parties hereinabove,
and any successors and assigns in such capacity.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means the commitments of the Banks to make Revolving
Loans, of the Swingline Lender to make Swingline Loans and of the Banks to
purchase participation interests in the Swingline Loans.
"Commitment Fee" means such term as defined in Section 2.11(b).
"Commitment Period" means the period from and including the Closing
Date to but not including the earlier of (i) the Termination Date, or (ii) the
date on which the Revolving Commitments shall terminate in accordance with the
provisions of this Credit Agreement.
5
"Competitive Bid" means an offer by a Bank to make a Competitive Loan
pursuant to the terms of Section 2.08.
"Competitive Bid Rate" means, as to any Competitive Bid made by a Bank
in accordance with the provisions of Section 2.08, the fixed rate of interest
offered by the Bank making the Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with the provisions of Section 2.08(b).
"Competitive Bid Request Fee" means such fee, if any, agreed upon by
the Borrower and the Administrative Agent payable in connection with each
Competitive Bid Request.
"Competitive Loan" means a loan made by a Bank in its discretion
pursuant to the provisions of Section 2.08.
"Competitive Loan Banks" means, at any time, those Banks which have
Competitive Loans outstanding.
"Competitive Loan Maximum Amount" shall have the meaning assigned to
such term in Section 2.08(a).
"Consistent Basis" or "consistent basis" means, with regard to the
application of accounting principles, accounting principles consistent in all
material respects with the accounting principles used and applied in preparation
of the financial statements previously delivered to the Banks and referred to in
Section 5.06.
"Consolidated Borrower Group" means the Borrower and its Restricted
Subsidiaries.
"Consolidated Current Assets" means as of the date of determination
thereof the total amount of current assets of the Borrower and its Subsidiaries
on a consolidated basis determined in accordance with generally accepted
accounting principles.
"Consolidated Current Liabilities" means as of the date of
determination thereof the total amount of current liabilities of the Borrower
and its Subsidiaries on a consolidated basis determined in accordance with
generally accepted accounting principles.
"Consolidated Current Ratio" means, at any time, the ratio of
Consolidated Current Assets to Consolidated Current Liabilities.
"Consolidated Fixed Charges" means, for the applicable period ending as
of a Determination Date, the sum of (i) all Interest Expense on all Indebtedness
during such period, (ii) all Rentals (other than Rentals on Capitalized Leases
to the extent such Rentals are included in Interest Expense or as a current
maturity of a Capitalized Lease under subsection (iii) hereof) payable during
such period, (iii) current maturities of Funded Debt and current maturities of
Capitalized Leases as of such Determination Date, and (iv) all dividends paid in
cash or property and redemptions made of capital stock (other than dividends
6
paid to, or redemptions of capital stock owned by, the Borrower or a
wholly-owned Subsidiary) during such period, in each case for the Borrower and
its Subsidiaries on a consolidated basis determined in accordance with generally
accepted accounting principles.
"Consolidated Net Income" means, for the applicable period ending as of
a Determination Date, the net income of the Borrower and its Subsidiaries for
such period, determined on a consolidated basis in accordance with generally
accepted accounting principles, but excluding for purposes of determining
compliance with the Fixed Charge Coverage Ratio in Section 6.11(d) hereof:
(a) any extraordinary gains or losses on the sale or
other disposition of assets, and any taxes on such excluded gains and
any tax deductions or credits on account of any such excluded losses;
(b) the proceeds of any life insurance policy;
(c) net earnings of any business entity (other than a
Subsidiary) in which the Borrower or any Subsidiary has an ownership
interest unless such net earnings shall have actually been received by
the Borrower or such Subsidiary in the form of cash distributions; and
(d) any portion of the net earnings of any Subsidiary
which for any reason is unavailable for payment of dividends to the
Borrower or any other Subsidiary.
"Consolidated Net Income Available for Fixed Charges" means, for the
applicable period ending as of a Determination Date, the sum of Consolidated Net
Income
plus (to the extent deducted in determining
Consolidated Net Income) (i) all provisions for any federal, state or
other income taxes, (ii) depreciation, amortization and other non-cash
charges, including without limitation any accrual necessary for
purposes of conforming with Financial Accounting Standards Board
Statement Number 106 (as defined by generally accepted accounting
principles) to the extent that the accrued portion thereof constitutes
a non-cash charge, (iii) Interest Expense, and (iv) all Rentals,
minus (v) all Capital Expenditures,
for the Borrower and its Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles.
"Consolidated Net Worth" means total stockholders' equity for the
Borrower and its Subsidiaries on a consolidated basis as determined in
accordance with generally accepted accounting principles.
"Consolidated Tangible Net Worth" means total stockholders' equity
minus goodwill, patents, trade names, trade marks, copyrights, franchises,
organizational expense, deferred assets other than prepaid insurance and prepaid
taxes and such other assets as are properly classified as "intangible assets",
7
for the Borrower and its Subsidiaries on a consolidated basis as determined in
accordance with generally accepted accounting principles.
"Consolidated Total Assets" means, at any time, all items, which would
be classified as assets of the Borrower and its Subsidiaries on a consolidated
basis determined in accordance with generally accepted accounting principles.
"Consolidated Total Capitalization" means the sum of (i) Consolidated
Total Debt plus (ii) Consolidated Net Worth.
"Consolidated Total Debt" means all Indebtedness of the Borrower and
its Subsidiaries on a consolidated basis determined in accordance with generally
accepted accounting principles plus to the extent not included under generally
accepted accounting principles, items referenced in the definition of
"Indebtedness".
"Controlled Group" means (i) the controlled group of corporations as
defined in Section 414(b) of the Code and the applicable regulations thereunder,
or (ii) the group of trades or businesses under common control as defined in
Section 414(c) of the Code and the applicable regulations thereunder, of which
the Borrower is a part or may become a part.
"Credit Documents" means this Credit Agreement, the Notes, any Joinder
Agreement and all other related agreements and documents issued or delivered
hereunder or thereunder or pursuant hereto or thereto.
"Credit Party" means any of the Borrower and the Guarantors.
"Default" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulting Bank" means, at any time, any Bank that, at such time, (i)
has failed to make an Extension of Credit required pursuant to the terms of this
Credit Agreement, (ii) has failed to pay to the Agent or any Bank an amount owed
by such Bank pursuant to the terms of the Credit Agreement or any other of the
Credit Documents, or (iii) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or similar
official.
"Determination Date" means the last day of each quarterly fiscal period
of the Borrower.
"Dividend" means any payment by the Borrower or any of its non-wholly
owned Subsidiaries of a payment, distribution, or dividend (other than a
dividend or distribution payable solely in stock of the Person making such
payment, distribution or dividend) on, or any payment on account of the
purchase, redemption or retirement of, or any other distribution, any shares of
any class of stock or other ownership interest in the Borrower or any of its
Subsidiaries (including any such payment or distribution in cash or in property
or obligations of the Borrower or any of its Subsidiaries).
8
"Eligible Assignee" means any Bank or Affiliate or subsidiary of a
Bank; and any other commercial bank, financial institution or "accredited
investor" (as defined in Regulation D of the Securities and Exchange Commission)
with combined capital surplus in excess of $500,000,000 reasonably acceptable to
the Administrative Agent and the Borrower.
"Eligible Inventory" means, as of any date of determination, the
aggregate book value (based on a FIFO valuation) of all inventory of the Credit
Parties on a consolidated basis after deducting allowances or reserves relating
thereto, as shown on the books and records of the Credit Parties.
"Eligible Receivables" means as of any date of determination, the
aggregate net book value of all accounts, accounts receivable, receivables, and
obligations for payment created or arising from the sale of inventory or the
rendering of services in the ordinary course of business, owned by or owing to
the Credit Parties on a consolidated basis after deducting allowances or
reserves relating thereto, as shown on the books and records of such Credit
Parties.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"ERISA Affiliate" means each person (as defined in Section 3(9) of
ERISA) which together with the Borrower, any Subsidiary of the Borrower or
member of the Consolidated Borrower Group would be deemed to be a member of the
same "controlled group" within the meaning of Section 414(b), (c), (m) or (o) of
the Code.
"Eurodollar Loan" means a Loan which bears interest based on the
Adjusted Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.
"Extension of Credit" means any Loan advance.
"Fed Funds Swingline Loan" means a Loan which bears interest based on
the Applicable Federal Funds Rate.
"Federal Funds Effective Rate" means, for any day, the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve Bank of New York, or, if such rate is not so released for any day which
is a Business Day, the arithmetic average (rounded upwards to the next 1/100th
of 1%), as determined by the Administrative Agent, of the quotations for the day
of such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fees" means all fees payable pursuant to Section 2.11.
"Fitch" means Fitch Investors Service, Inc., and any successor thereof.
9
"Fixed Charge Coverage Ratio" means the ratio of Consolidated Net
Income Available for Fixed Charges to Consolidated Fixed Charges.
"Funded Debt" means, for any Person, (i) all Indebtedness of such
Person for borrowed money or which has been incurred in connection with the
acquisition of assets, in each case having a final maturity of one or more years
from the date of origin thereof (or which is renewable or extendible at the
option of the obligor for a period or periods more than one year from the date
of origin), (ii) all Capitalized Lease obligations for such Person, and (iii)
all Guaranty Obligations by such Person of Funded Debt of others. Funded Debt
shall include, without duplication, payments in respect of Funded Debt which
constitute current liabilities of the obligor under generally accepted
accounting principles.
"Generally Accepted Accounting Principles" or "generally accepted
accounting principles" means generally accepted accounting principles at the
time in the United States. Except as otherwise expressly provided, all
references to generally accepted accounting principles shall be applied on a
consistent basis.
"Governmental Authority" means any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantor" means those corporations and entities identified as a
"Guarantor" on the signature pages hereto, being Xxxxx & Minor Medical, Inc., a
Virginia corporation, National Medical Supply Corporation, a Delaware
corporation, Xxxxx & Minor West, Inc., a California corporation, Koley's Medical
Supply, Inc., a Nebraska corporation, Xxxxx Physician Supply Company, an Ohio
corporation, X. Xxxxxxx & Company, a Michigan corporation, and Stuart Medical,
Inc., a Pennsylvania corporation; and each Additional Credit Party which has
executed a Joinder Agreement.
"Guaranty Obligations" means any obligations (other than (i)
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection and (ii) Standard Securitization Obligations relating to
Qualified Securitization Transactions) guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations of any other Person in any
manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (i) to purchase any such Indebtedness or
other obligation or any property constituting security therefor, (ii) to advance
or provide funds or other support for the payment or purchase of such
indebtedness or obligation or to maintain working capital, solvency or other
balance sheet condition of such other Person (including without limitation keep
well agreements and capital maintenance agreements), (iii) to lease or purchase
property, securities or services primarily for the purpose of assuring the owner
of such Indebtedness or obligation, or (iv) to otherwise assure or hold harmless
the owner of such Indebtedness or obligation against loss in respect thereof.
The amount of Guaranty Obligations hereunder shall be deemed to be an amount
equal to the stated or determinable amount of the Indebtedness or obligation in
respect of which such Guaranty Obligation is made or, if not stated or
10
determinable, the maximum reasonably anticipated amount in respect thereof
(assuming such other Person is required to perform thereunder) as determined in
good faith.
"Indebtedness" means without duplication, (i) all indebtedness for
borrowed money, (ii) all obligations evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily made, (iii)
the deferred purchase price of assets or services which in accordance with
generally accepted accounting principles would be shown to be a liability (on
the liability side of a balance sheet), (iv) all Guaranty Obligations, (v) the
maximum stated amount of all letters of credit issued or acceptance facilities
established for the account of such Person and, without duplication, all drafts
drawn thereunder (other than letters of credit (x) supporting other Indebtedness
of the Borrower or a Subsidiary or (y) offset by a like amount of cash or
government securities pledged or held in escrow to secure such letter of credit
and draws thereunder), (vi) all Capitalized Lease obligations, (vii) all
Indebtedness of another Person secured by any Lien on any property of the
Borrower or a Restricted Subsidiary, whether or not such Indebtedness has been
assumed, in an amount not to exceed the fair market value of the property of the
Borrower or Restricted Subsidiary securing such Indebtedness, (viii) all
obligations under take-or-pay or similar arrangements or under interest rate,
currency, or commodities agreements, (ix) indebtedness created or arising under
any conditional sale or title retention agreement, (x) all preferred stock which
by its terms requires redemption, mandatory sinking fund payments or the like,
by a fixed date prior to the Termination Date, (xi) the aggregate net amount of
indebtedness or obligations relating to the sale, contribution or other
conveyance of accounts receivable (or similar transaction) (exclusive of
intercompany obligations owing between the Securitization Subsidiary and a
Credit Party pursuant to a Qualified Securitization Transaction permitted
hereunder) regardless of whether such transaction is effected without recourse
or in a manner which would not be reflected on a balance sheet in accordance
with generally accepted accounting principles, (xii) the principal balance
outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product, where
such transaction is considered borrowed money indebtedness for tax purposes but
is classified as an operating lease in accordance with generally accepted
accounting principles; but specifically excluding from the foregoing trade
payables and accrued expenses arising or incurred in the ordinary course of
business.
"Initial Funding Date" means the date on which the conditions to
initial funding set forth in Section 4.02 hereof shall have been fulfilled (or
waived) and on which the initial Loan advance shall have been made.
"Interest Expense" means, for any period, all interest expense,
including the amortization of debt discount and premium and the interest
component under Capitalized Leases, determined in accordance with generally
accepted accounting principles plus the discount in connection with the sale of
Receivables and Receivables Related Assets in connection with a Qualified
Securitization Transaction.
"Interest Payment Date" means (i) as to Base Rate Loans and Fed Funds
Swingline Loans, the last day of each month and on the Termination Date and (ii)
11
as to Eurodollar Loans and Competitive Loans, on the last day of each Interest
Period for such Loan, the date of repayment and on the Termination Date, and in
addition where the applicable Interest Period is more than 3 months, then also
on the date 3 months from the beginning of the Interest Period, and each 3
months thereafter. If an Interest Payment Date falls on a date which is not a
Business Day, such Interest Payment Date shall be deemed to be the next
succeeding Business Day, except that in the case of Eurodollar Loans where the
next succeeding Business Day falls in the next succeeding calendar month, then
on the next preceding day.
"Interest Period" means (i) as to Eurodollar Loans, a period of one,
two, three or six months' duration, and also as to Eurodollar Loans of up to
$30,000,000, a period of 7-days' duration (provided that no more than one such
Revolving Loan with a 7-day Interest Period may be outstanding at any time), as
the Borrower may elect, commencing in each case, on the date of the borrowing
(including conversions, extensions and renewals), and (ii) as to Competitive
Loans, a period of not less than 7 nor more than 180 days' duration, as the
Borrower may request and the Competitive Bank may agree in accordance with the
provisions of Section 2.08; provided, however, (A) if any Interest Period would
end on a day which is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day (except that where the next succeeding
Business Day falls in the next succeeding calendar month, then on the next
preceding Business Day), (B) no Interest Period shall extend beyond the
Termination Date and (C) in the case of Eurodollar Loans, where an Interest
Period begins on a day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end, such Interest Period
shall end on the last day of such calendar month.
"Interest Rate Protection Agreement" means any interest rate swap,
collar or other interest protection agreement.
"Joinder Agreement" means a Joinder Agreement substantially in the form
of Schedule 6.12 hereto executed and delivered by an Additional Credit Party in
accordance with the provisions of Section 6.12.
"Leverage Ratio" means the ratio of Consolidated Total Debt to
Consolidated Total Capitalization.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise) or
charge of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any financing or similar
statement or notice filed under the Uniform Commercial Code as adopted and in
effect in the relevant jurisdiction or other similar recording or notice
statute, and any lease in the nature thereof) securing or purporting to secure
any Indebtedness.
"Loan" means a Revolving Loan, Swingline Loan and/or Competitive Loan,
as appropriate.
"Material Adverse Effect" means a material adverse effect on (i) the
operations or financial condition of the Borrower and its Restricted
Subsidiaries, or of the Borrower and its Subsidiaries, in each case taken as a
12
whole, (ii) the ability of the Borrower or Guarantors to perform their
respective obligations under this Credit Agreement, or (iii) the validity or
enforceability of this Credit Agreement, or any of the other Credit Documents,
in each case as to the obligations of the Borrower or the Guarantors hereunder
or thereunder, or the rights and remedies of the Banks hereunder or thereunder.
"Moody's" means Xxxxx'x Investors Service, Inc., and any successor
thereof.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
Controlled Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the Controlled Group
during such five year period.
"NationsBank" means NationsBank, N.A. or its successor.
"Non-Guarantor Subsidiaries" means Subsidiaries of the Borrower which
are not Guarantors, as referenced in Section 6.12(a).
"Non-U.S. Person" means any Person that is not a United States person
within the meaning of Section 7701(a)(30) of the Code.
"Note" or "Notes" means the Revolving Notes, individually or
collectively, as appropriate.
"Notice of Borrowing" shall have such meaning as provided in Sections
2.02(a) and Section 2.07(b).
"Notice of Conversion" shall have such meaning as provided in Section
2.03.
"Obligations" means, without duplication, all of the obligations of the
Borrower or other Credit Party to the Banks, the Administrative Agent and the
Co-Agents (including the obligations to pay principal of and interest on the
Loans, to pay and satisfy guaranty obligations in respect of the Loans, to pay
all Fees, to pay certain expenses and the obligations arising in connection with
various indemnities) whenever arising, under this Credit Agreement, the Notes or
any of the other Credit Documents to which the Borrower or other Credit Party is
a party.
"PBGC" means the Pension Benefit Guaranty Corporation established under
ERISA, and any successor thereto.
"Participant" means any Person to which a participation in all or any
part of a Bank's interests and obligations under the terms of this Credit
Agreement have been sold, transferred, granted, or assigned pursuant to Section
10.03(c) hereof.
"Participation Interest" means the extension of credit by a Bank by way
of purchase of a participation hereunder in Revolving Loans as provided in
Section 2.20 or in Swingline Loans as provided in Section 2.07(b)(iii).
13
"Permitted Investments" means (i) cash and Cash Equivalents, (ii)
receivables owing to the Borrower or its Restricted Subsidiaries or any of its
receivables and advances to suppliers, in each case if created, acquired or made
in the ordinary course of business and payable or dischargeable in accordance
with customary trade terms, (iii) subject to the limitations set out in Section
7.05(b), investments by the Borrower and its Restricted Subsidiaries in and to a
Credit Party, including any investment in a corporation which, after giving
effect to such investment, will become an Additional Credit Party (provided such
Additional Credit Party shall execute a Joinder Agreement), (iv) loans and
advances in the usual and ordinary course of business to officers, directors and
employees for expenses (including moving expenses related to a transfer)
incidental to carrying on the business of the Borrower or any Restricted
Subsidiary in an aggregate amount not to exceed $1,500,000 at any time
outstanding, (v) investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business, (vi) investments in a
Securitization Subsidiary or Special Purpose Vehicle relating to a Qualified
Securitization Transaction and (vii) additional loan advances and/or investments
of a nature not contemplated by the foregoing clauses hereof, provided that such
loans, advances and/or investments made pursuant to this clause (vii) shall not
exceed $3,000,000 in aggregate amount at any time outstanding. As used herein,
"investment" means all investments, in cash or by delivery of property made,
directly or indirectly in any Person, whether by acquisition of shares of
capital stock, indebtedness or other obligations or securities or by loan
advance, capital contribution or otherwise.
"Permitted Liens" means (i) Liens created by, under or in connection
with this Credit Agreement or the other Credit Documents in favor of the Banks;
(ii) Liens described on Schedule 7.02 attached hereto; (iii) Liens for taxes not
yet delinquent or Liens for taxes being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with generally
accepted accounting principles have been established (and as to which the
property subject to such lien is not yet subject to foreclosure, sale or loss on
account thereof); (iv) Liens in respect of property imposed by law arising in
the ordinary course of business such as materialmen's, mechanics',
warehousemen's and other like Liens provided that such Liens secure only amounts
not more than 30 days past due or are being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance
with generally accepted accounting principles have been established (and as to
which the property subject to such lien is not yet subject to foreclosure, sale
or loss on account thereof); (v) pledges or deposits made to secure payment of
worker's compensation insurance, unemployment insurance, pensions or social
security programs; (vi) Liens arising from good faith deposits in connection
with or to secure performance of tenders, statutory obligations, surety and
appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the ordinary
course of business (other than obligations in respect of the payment of borrowed
money); (vii) easements, rights-of-way, restrictions (including zoning
14
restrictions), minor defects or irregularities in title and other similar
charges or encumbrances not, in any material respect, impairing the use of such
property for its intended purposes or interfering with the ordinary conduct of
business of the Borrower and its Subsidiaries taken as a whole; (viii) Liens
regarding operating or financing leases permitted by this Credit Agreement; (ix)
leases or subleases granted to others in the ordinary course of business not
interfering in any material respect with the business or operations of the
Borrower or its Subsidiaries; (x) purchase money Liens securing purchase money
indebtedness to the extent permitted under Section 7.01; (xi) Liens in favor of
customs and revenue authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods; (xii) any judgment
lien which does not create an Event of Default under Section 8.01(h) of this
Credit Agreement, (xiii) Liens related to a Qualified Securitization Transaction
and (xiv) Liens in favor of a Bank or Affiliate of a Bank hereunder, but only
(A) to the extent such Liens secure obligations under Interest Rate Protection
Agreements permitted under Section 7.01, (B) to the extent such Liens are on the
same collateral as to which the Banks also have a Lien and (C) to the extent
such provider of an Interest Rate Protection Agreement and the Banks hereunder
share pari passu in collateral subject to such Liens.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated), or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means any single-employer plan as defined in Section 4001 of
ERISA, which is maintained, or at any time during the five calendar years
preceding the date of this Credit Agreement was maintained, for employees of the
Borrower, any Subsidiary or an ERISA Affiliate.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by NationsBank as its prime rate in effect at its
principal office in Charlotte, North Carolina; each change in the Prime Rate
shall be effective on the date such change is publicly announced as effective.
The Prime Rate is not necessarily the best or lowest rate offered by
NationsBank.
"Pro Forma Basis" means, with respect to any transaction, that such
transaction shall be deemed to have occurred as of the first day of the
four-fiscal quarter period ending as of the end of the fiscal quarter most
recently ended prior to the date of such transaction with respect to which the
Administrative Agent has received the financial information required under
Section 6.01. As used herein, "transaction" means any Dividend as referred in
Section 7.12.
"Qualified Securitization Transaction" means any transaction or series
of transactions that has been or may be entered into by the Borrower or any of
its Subsidiaries in connection with which the Borrower or any of its
Subsidiaries may sell, convey or otherwise transfer to (i) a Securitization
Subsidiary or (ii) any other Person, or may grant a security interest in, any
Receivables or interests therein (whether such Receivables are then existing or
15
arising in the future) of the Borrower or any of its Subsidiaries, and any
assets related thereto including, without limitation, all security interests in
merchandise or services financed thereby, the proceeds of such Receivables, and
other assets which are customarily sold or in respect of which security
interests are customarily granted in connection with securitization transactions
involving such assets; provided that (A) in connection therewith, there shall be
no recourse to the Borrower or any Restricted Subsidiary other than pursuant to
Standard Securitization Obligations, (B) such Qualified Securitization
Transaction shall not be supported by Guaranty Obligations of the Borrower or
any of its Restricted Subsidiaries other than pursuant to Standard
Securitization Obligations, (C) the Administrative Agent and the Required Banks
shall be reasonably satisfied with the structure thereof and documentation
therefor, including the discount at which such accounts receivable are sold or
the advance rate against which borrowings are advanced and the applicable
termination events which shall, in any event, be consistent with those
prevailing in the market for similar transactions, and (D) the accounts
receivable purchase agreement or other similar agreements relating thereto shall
not be amended or modified in a manner materially adverse to the Banks and their
interests hereunder as determined by the Agent in its reasonable discretion
(including any change in (w) the amount of Receivables and Receivables Related
Assets covered thereby, (x) the discount rate at which such Receivables and
Receivables Related Assets are sold, (y) the advance rate against which amounts
are advanced, (z) the applicable termination events, and any other items
materially adverse to the interests of the Banks) except with the prior written
consent of the Administrative Agent and the Required Banks. The series of
transactions contemplated in the Securitization Agreements are Qualified
Securitization Transactions.
"Receivables" means any right of payment whether constituting an
account, chattel paper, instrument, general intangible or otherwise, arising
from the sale, lease or financing by the Borrower or any Subsidiary of the
Borrower of merchandise or rendering of services, and monies due thereunder.
"Receivables Related Assets" means (i) any rights arising under the
documentation governing or relating to such Receivables (including rights in
respect of Liens securing such Receivables and other credit support in respect
of such Receivables), (ii) any proceeds of such Receivables and any lockboxes or
accounts in which such proceeds are deposited, (iii) spread accounts and other
similar accounts (and any amounts on deposit therein) established in connection
with a Qualified Securitization Transaction, (iv) any warranty, indemnity,
dilution and other intercompany claim arising out of the documentation
evidencing such Qualified Securitization Transaction, and (v) other assets that
are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
16
"Regulation G" means Regulation G of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
"Rentals" means, as of the date of determination thereof, all fixed
payments (including as such all payments which the lessee is obligated to make
to the lessor on termination of the lease or surrender of the leased property)
payable by a Person, as lessee or sublessee under a lease of real or personal
property, but shall be exclusive of any amounts required to be paid by such
Person (whether designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges. Fixed rents under
any so-called "percentage leases" shall be computed solely on the basis of the
minimum rents, if any, required to be paid by the lessee regardless of sales
volume or gross revenues.
"Required Banks" means Banks holding in the aggregate at least 51% of
the Commitments (other than with respect to Swingline Loans) or, if the
aggregate Commitments have been terminated, Banks in the aggregate holding at
least 51% of the principal amount of the Loans then outstanding (taking into
account Participation Interests therein); provided that the Commitments of, or
outstanding Loans owing to, a Defaulting Bank shall be excluded for purposes of
making determinations hereunder.
"Responsible Officer" means, with respect to the subject matter of any
representation, warranty, covenant, agreement, obligation or certificate of any
Credit Party contained in or delivered pursuant to any of the Credit Documents,
the President, any Executive Vice President, Senior Vice President, Vice
President, Chief Financial Officer, Treasurer, Controller, or any other officer
of the Consolidated Borrower Group who in the normal performance of his
operational responsibilities would have knowledge of such matter and the
requirements with respect thereto.
"Restricted Subsidiary" means any Subsidiary other than a
Securitization Subsidiary (i) which is organized under the laws of the United
States or any State thereof; (ii) which conducts substantially all of its
business and has substantially all of its assets within the United States; and
(iii) of which more than 50% (by number of votes) of the Voting Stock is
beneficially owned, directly or indirectly, by the Borrower.
"Revolving Committed Amount" means collectively the aggregate amount of
all of the Banks' commitments, and individually the amount of each such Bank's
commitment to make Revolving Loans specified in Schedule 2.01, as such amounts
may from time to time be reduced in accordance with the provisions of Sections
2.10 and 2.12(b) hereof.
17
"Revolving Loan" means a revolving credit loan made by the Banks
pursuant to the provisions of Section 2.01.
"Revolving Note" means the promissory notes of the Borrower in favor of
each of the Banks provided pursuant to Section 2.06, individually or
collectively, as appropriate, as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to time.
"S&P" means Standard & Poor's Corporation, and any successor thereof.
"Securitization Agreements" means (i) the Amended and Restated Purchase
and Sale Agreement among Xxxxx & Minor Medical, Inc., Stuart Medical, Inc., the
Borrower and O&M Funding Corp., dated May 28, 1996, and (ii) the Amended and
Restated Receivables Purchase Agreement among O&M Funding Corp., Xxxxx & Minor
Medical, Inc., Xxxxx & Minor, Inc. Receivables Capital Corporation and Bank of
America National Trust and Savings Association, dated as of May 28, 1996, (iii)
the Amended and Restated Parallel Asset Purchase Agreement among O&M Funding
Corp., Xxxxx & Minor Medical, Inc., the Borrower, the Parallel Purchasers from
time to time parties thereto and Bank of America National Trust and Savings
Association, dated as of May 28, 1996 and (iv) such other agreements and
documents executed or delivered under or in connection with the aforementioned
agreements, as any such agreement referred to in clauses (i) through (iv) may be
amended, supplemented or otherwise modified from time to time.
"Securitization Subsidiary" means (x) O&M Funding Corp. and (y) any
other wholly owned Subsidiary of the Borrower which engages in no activities
other than those reasonably related to or in connection with the entering into
of securitization transactions and which is designated by the Board of Directors
of the Borrower (as provided below) as a Securitization Subsidiary (a) no
portion of the Indebtedness or any other obligations (contingent or otherwise)
of which (i) is guaranteed by the Borrower or any other Subsidiary of the
Borrower other than pursuant to Standard Securitization Obligations, (ii) is
recourse to or obligates the Borrower or any other Subsidiary of the Borrower in
any way other than pursuant to Standard Securitization Obligations or (iii)
subjects any property or asset of the Borrower or any other Subsidiary of the
Borrower, directly or indirectly, contingently or otherwise, to any Lien or to
the satisfaction thereof, other than pursuant to Standard Securitization
Obligations, (b) to or with which neither the Borrower nor any other Subsidiary
of the Borrower (i) provides credit support or (ii) has any contract, agreement,
arrangement or understanding other than on terms that are fair and reasonable
and that are no less favorable to the Borrower or such Subsidiary than could be
obtained from an unrelated Person (other than, in the case of subclauses (i) and
(ii) of this clause (b), representations, warranties and covenants (including
those relating to servicing) entered into in the ordinary course of business in
connection with a Qualified Securitization Transaction and intercompany notes
relating to the sale of Receivables to such Securitization Subsidiary) and (c)
to which neither the Borrower nor any Subsidiary of the Borrower has any
obligation to maintain or preserve such Securitization Subsidiary's financial
condition or to cause such Securitization Subsidiary to achieve certain levels
18
of operating results. Any such designation by the Board of Directors of the
Borrower (other than with respect to O&M Funding Corp.) shall be evidenced to
the Administrative Agent by filing with the Administrative Agent a certified
copy of the resolutions of the Board of Directors of the Borrower giving effect
to such designation.
"Senior Subordinated Notes" means those $150,000,000 10.875% Senior
Subordinated Notes of the Borrower due 2006.
"Special Purpose Vehicle" means a trust, partnership or other entity
established by the Borrower or its Subsidiaries to implement a Qualified
Securitization Transaction.
"Standard Securitization Obligations" means representations,
warranties, covenants, indemnities and other obligations entered into by the
Borrower or any Subsidiary which are reasonably customary in asset
securitization transactions involving accounts receivable.
"Subordinated Debt" means (i) the indebtedness evidenced by the Senior
Subordinated Notes and (ii) any other Indebtedness which by its terms is
specifically subordinated in right of payment to the prior payment of the Loans
and obligations hereunder and under the other Credit Documents on terms and
conditions satisfactory to the Required Banks.
"Subsidiary" means, as to any Person, (i) any corporation more than 50%
of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (ii) any partnership, association, joint venture or
other entity in which such person directly or indirectly through Subsidiaries
has more than 50% equity interest at any time. Except as otherwise expressly
provided, all references herein to "Subsidiary" shall mean a Subsidiary of the
Borrower; provided, however, that any Special Purpose Vehicle shall not be
considered to be a Subsidiary of the Company for purposes of this Credit
Agreement.
"Swingline Committed Amount" means the amount of the Swingline Lender's
commitment to make Swingline Loans as specified in Section 2.07(a), as such
amount may from time to time be reduced in accordance with the provisions of
Section 2.10 hereof.
"Swingline Lender" means NationsBank, or such other Bank as the
Borrower has requested and as to which such requested successor Swingline Lender
and the Required Banks may agree, and their respective successors and assigns.
There shall be no more than one Swingline Lender at any time.
"Swingline Loan" means a swingline revolving credit loan made by the
Swingline Lender pursuant to the provisions of Section 2.07.
"Taxes" shall have such meaning as provided in Section 2.16.
19
"Termination Date" means May 24, 2001, or if extended in the sole
discretion of the Banks as provided in Section 2.01, such later date as to which
the Termination Date may be extended.
"Threshold Requirement" means such term as defined in Section 6.12.
"Upfront Fee" means such term as defined in Section 2.11(a).
"Voting Stock" means the voting stock or other securities of any class
or classes, the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate directors (or
Persons performing similar functions).
1.02 Computation of Time Periods.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding."
1.03 Accounting Terms.
Accounting terms used but not otherwise defined herein shall have the
meanings provided by, and be construed in accordance with, generally accepted
accounting principles. References herein to "consolidating" financial statements
shall mean and include financial statements for each business segment of the
subject Person.
SECTION 2
CREDIT FACILITIES
2.01 Revolving Loan Commitment.
During the Commitment Period, subject to the terms and conditions
hereof, each Bank severally agrees to make credit loans (each a "Revolving Loan"
and, collectively, the "Revolving Loans") to the Borrower for the purposes
hereinafter set forth; provided, however, that (i) with regard to the Banks
collectively, the amount of the Revolving Loans outstanding shall not at any
time exceed TWO HUNDRED TWENTY-FIVE MILLION DOLLARS ($225,000,000) in the
aggregate (as such aggregate maximum amount may be reduced from time to time as
hereinafter provided, the "Revolving Committed Amount"), and (ii) with regard to
each Bank individually, each such Bank's pro rata share of outstanding Revolving
Loans shall not at any time exceed such Bank's Revolving Committed Amount; and
provided, further, that notwithstanding anything herein to the contrary, the sum
of Revolving Loans plus Swingline Loans plus Competitive Loans shall not at any
time exceed the lesser of the aggregate Revolving Committed Amount or the
Borrowing Base. Revolving Loans hereunder may consist of Base Rate Loans or
Eurodollar Loans (or a combination thereof) as the Borrower may request, and may
be repaid and reborrowed in accordance with the provisions hereof.
21
The Borrower may, not more than 90 days but not less than 60 days prior
to the third anniversary date of the Closing Date and each anniversary date
thereafter, by notice to the Administrative Agent, make written request of the
Banks to extend the Termination Date for an additional period of one year. The
Administrative Agent will give prompt notice to each of the Banks of its receipt
of any such request for extension of the Termination Date. Each Bank shall make
a determination not later than 30 days prior to the then applicable anniversary
date as to whether or not it will agree to extend the Termination Date as
requested; provided, however, that failure by any Bank to make a timely response
to the Borrower's request for extension of the Termination Date shall be deemed
to constitute a refusal by the Bank to extend the Termination Date. If, in
response to a request for an extension of the Termination Date, one or more
Banks shall fail to agree to the requested extension (the "Disapproving Banks"),
then provided that the requested extension is approved by Banks holding at least
75% of the Commitments hereunder (the "Approving Banks"), the Borrower may, at
its own expense with the assistance of the Administrative Agent, within a period
of 30 days thereafter, make arrangements for another bank or financial
institution agreeable to the extension of such Termination Date and reasonably
acceptable to the Administrative Agent, to acquire, in whole or in part, the
Loans and Commitments of the Disapproving Banks, whereupon after giving effect
to the assignment of the Disapproving Banks' Loans and Commitments in accordance
with the terms hereof the Termination Date shall be extended and the credit
facility continued hereunder at existing levels. If on the other hand the
Borrower is unable to make arrangements for the replacement of the Disapproving
Banks in accordance with the terms hereof, then the Borrower shall have the
option of (i) continuing the credit facility hereunder at existing levels until
the Termination Date then in effect without extension, or (ii) upon payment to
the Disapproving Banks of the amount of Loans and other amounts owing to them
and termination of their Commitments hereunder, extending and continuing the
credit facility hereunder at a lower aggregate amount equal to the Commitments
held by the Approving Banks until the new Termination Date as extended. Where
any such arrangements are made for another bank or financial institution to
acquire the Loans and Commitments of a Disapproving Bank, or any portion
thereof, then upon payment of the Loans and other amounts owing to it and
termination of its Commitments relating thereto, such Disapproving Bank shall
promptly transfer and assign, in whole or in part, as requested, without
recourse (in accordance with and subject to the provisions of Section 10.03),
all or part of its interests, rights and obligations under this Credit Agreement
to such bank or financial institution which shall assume such assigned
obligations and become a "Bank" under this Credit Agreement (which assignee may
be another Bank, if a Bank accepts such assignment); provided, that such
assignment shall not conflict with any law, rule or regulation or order of any
court or other Governmental Authority.
2.02 Revolving Loan Advances.
(a) Notices. Whenever the Borrower desires a Revolving Loan advance
hereunder, it shall give written notice (or telephone notice promptly confirmed
in writing) to the Administrative Agent (a "Notice of Borrowing") not later than
12:00 Noon (Charlotte, North Carolina time) on the Business Day of the requested
advance in the case of Base Rate Loans and on the third Business Day prior to
the requested advance in the case of Eurodollar Loans. Each such notice shall be
irrevocable and shall specify (i) that a Revolving Loan is requested, (ii) the
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date of the requested advance (which shall be a Business Day), (iii) the
aggregate principal amount of Revolving Loans requested, and (iv) whether the
Loan requested shall consist of Base Rate Loans, Eurodollar Loans or a
combination thereof, and if Eurodollar Loans are requested, the Interest Periods
with respect thereto. If the Borrower shall fail to specify in any Notice of
Borrowing (A) an applicable Interest Period in the case of a Eurodollar Loan,
then such notice shall be deemed to be a request for an Interest Period of one
month, or (B) the type of Revolving Loan requested, then such notice shall be
deemed to be a request for a Base Rate Loan hereunder. The Administrative Agent
shall as promptly as practicable give each Bank notice of each requested
Revolving Loan advance, of such Bank's pro rata share thereof and of the other
matters covered in the Notice of Borrowing.
(b) Minimum Amounts. Revolving Loan advances shall be in a
minimum aggregate amount of $5,000,000 and integral multiples of $1,000,000 in
excess thereof.
(c) Advances. Each Bank will make its pro rata share of each Revolving
Loan advance available to the Administrative Agent by 2:00 P.M. (Charlotte,
North Carolina time) on the date specified in the Notice of Borrowing by deposit
in U.S. dollars of immediately available funds at the offices of the
Administrative Agent in Charlotte, North Carolina, or at such other address in
the United States as the Administrative Agent may designate in writing. All
Revolving Loan advances shall be made by the Banks pro rata on the basis of each
Bank's respective share of the aggregate Revolving Committed Amount. No Bank
shall be responsible for the failure or delay by any other Bank in its
obligation to make Revolving Loan advances hereunder; provided, however, that
the failure of any Bank to fulfill its commitments hereunder shall not relieve
any other Bank of its commitments hereunder. Unless the Administrative Agent
shall have been notified by any Bank prior to the date of any such Revolving
Loan advance that such Bank does not intend to make available to the
Administrative Agent its portion of the Revolving Loan advance to be made on
such date, the Administrative Agent may assume that such Bank has made such
amount available to the Administrative Agent on the date of such Revolving Loan
advance, and the Administrative Agent, in reliance upon such assumption, may (in
its sole discretion without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by a Bank, the Administrative Agent
shall be entitled to recover such corresponding amount from such Bank. If such
Bank does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent will promptly notify the
Borrower and the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover
from such Bank or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by the Administrative Agent to the Borrower to the
date such corresponding amount is recovered by the Administrative Agent, at a
per annum rate equal to (i) if paid by such Bank, within two (2) Business Days
22
of making such corresponding amount available to the Borrower, the overnight
Federal Funds Effective Rate, and thereafter the Base Rate, and (ii) if paid by
the Borrower, the then applicable rate calculated in accordance with Section
2.05.
2.03 Conversion.
The Borrower shall have the option, on any Business Day, to extend
existing Eurodollar Loans into a subsequent Interest Period or to convert
Revolving Loans of one type into Revolving Loans of another type; provided,
however, that (i) except as provided in Section 2.13(iii), Eurodollar Loans may
be converted into Base Rate Loans only on the last day of an Interest Period
applicable thereto, (ii) Eurodollar Loans may be extended, and Base Rate Loans
may be converted into Eurodollar Loans, only if no Default or Event of Default
is in existence on the date of extension or conversion, (iii) Revolving Loans
extended as, or converted into, Eurodollar Loans shall be in such minimum
amounts as provided in Section 2.02(b), and (iv) any request for extension of or
conversion to a Eurodollar Loan which shall fail to specify an Interest Period
shall be deemed to be a request for an Interest Period of one month. Each such
extension or conversion shall be effected by the Borrower by giving written
notice (or telephone notice promptly confirmed in writing) to the Administrative
Agent (including requests for extensions and renewals, a "Notice of Conversion")
prior to 10:00 A.M. (Charlotte, North Carolina time) on the Business Day of, in
the case of Base Rate Loans, and on the third Business Day prior to, in the case
of Eurodollar Loans, the date of the proposed extension or conversion,
specifying the date of the proposed extension or conversion, the Revolving Loans
to be so extended or converted, the types of Revolving Loans into which such
Revolving Loans are to be converted and, if appropriate, the applicable Interest
Periods with respect thereto. Each request for extension or conversion shall be
deemed to be a reaffirmation by the Borrower that no Default or Event of Default
then exists and is continuing and that the representations and warranties set
forth in Section 5 are true and correct in all material respects (except to the
extent they relate to an earlier period). In the event the Borrower fails to
request extension of or conversion to any Eurodollar Loan in accordance with
this Section, or any such conversion or extension is not permitted or required
by this Section, then such Revolving Loans shall be automatically converted into
Base Rate Loans at the end of their Interest Period or remain as Base Rate
Loans, as the case may be. The Administrative Agent shall give each Bank notice
as promptly as practicable of any such proposed conversion affecting any
Revolving Loans.
2.04 Repayment of the Revolving Loans.
The Revolving Loans shall be due and payable in full on the Termination
Date.
2.05 Interest on Revolving Loans.
The Revolving Loans shall bear interest at a per annum rate equal to:
(a) Base Rate Loans. During such periods as Revolving Loans shall
consist of Base Rate Loans, the sum of the Base Rate plus the Applicable
Percentage; and
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(b) Eurodollar Loans. During such periods as Revolving Loans
shall consist of Eurodollar Loans, the sum of the Adjusted Eurodollar Rate plus
the Applicable Percentage;
provided, however, that from and after any failure to make any payment of
principal or interest in respect of any of the Loans hereunder when due, whether
at scheduled or accelerated maturity or on account of any mandatory prepayment,
the principal of and, to the extent permitted by law, interest on, the Revolving
Loans shall bear interest, payable on demand, at a per annum rate two percent
(2%) in excess of the rate otherwise applicable hereunder. Interest on Revolving
Loans shall be payable in arrears on each Interest Payment Date.
2.06 Revolving Notes.
Revolving Loans by each Bank shall be evidenced by a duly executed
promissory note of the Borrower to each such Bank dated as of the Closing Date
substantially in the form of Schedule 2.06 (such promissory note, as amended,
modified, extended, renewed or replaced from time to time is hereinafter
referred to individually as a "Revolving Note" and collectively as the
"Revolving Notes").
2.07 Swingline Loan Subfacility.
(a) Swingline Commitment. During the Commitment Period, subject to the
terms and conditions hereof, the Swingline Lender, in its individual capacity,
agrees to make certain revolving credit loans to the Borrower (each a "Swingline
Loan" and, collectively, the "Swingline Loans") for the purposes hereinafter set
forth; provided, however, (i) the aggregate amount of Swingline Loans
outstanding at any time shall not exceed THIRTY MILLION DOLLARS ($30,000,000)
(the "Swingline Committed Amount"), and (ii) the sum of Revolving Loans plus
Swingline Loans plus Competitive Loans outstanding at any time shall not exceed
the lesser of the Revolving Committed Amount or the Borrowing Base. Swingline
Loans hereunder may consist of Base Rate Loans or Fed Funds Swingline Loans (or
a combination thereof) as the Borrower may request, and may be repaid and
reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower desires a
Swingline Loan advance hereunder it shall give written notice (or
telephone notice promptly confirmed in writing) to the Swingline Lender
and to the Administrative Agent not later than 12:00 Noon (Charlotte,
North Carolina time) on the Business Day of the requested Swingline
Loan advance. Each such notice shall be irrevocable and shall specify
(A) that a Swingline Loan advance is requested, (B) the date of the
requested Swingline Loan advance (which shall be a Business Day), (C)
the aggregate principal amount of the Swingline Loan advance requested
and (D) whether the Swingline Loan shall consist of Base Rate Loans,
Fed Funds Swingline Loans or a combination thereof. The Swingline
Lender shall initiate the transfer of funds representing the Swingline
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Loan advance to the Borrower by 1:30 p.m. (Charlotte, North Carolina
time) on the Business Day specified by the Borrower in the applicable
Notice of Borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance shall
be in a minimum principal amount of $250,000 and integral multiples of
$100,000 in excess thereof.
(iii) Repayment of Swingline Loans. Each Swingline Loan
advance shall be due and payable on the earliest of (A) 30 days from
the date of advance thereof, (B) the date of the next Revolving Loan
advance hereunder, if sooner, or (C) the Termination Date. If, and to
the extent, any Swingline Loan advances shall be outstanding on the
date of any Revolving Loan advance, such Swingline Loans shall first be
repaid from the proceeds of such Revolving Loan advance prior to
distribution to the Borrower. If, and to the extent, Revolving Loans
are not requested prior to the Termination Date or the end of any such
30 day period from the date of any such Swingline Loan advance, the
Borrower shall be deemed to have requested a Revolving Loan comprised
solely of Base Rate Loans in the amount of such Swingline Loan advance
then outstanding, the proceeds of which shall be used to repay the
Swingline Lender for such Swingline Loan. In addition, the Swingline
Lender may, at any time, in its sole discretion, by written notice to
the Borrower and the Administrative Agent, demand repayment of its
Swingline Loans by way of a Revolving Loan advance, in which case the
Borrower shall be deemed to have requested a Revolving Loan advance
comprised solely of Base Rate Loans in the amount of such Swingline
Loans; provided, however, that any such demand shall be deemed to have
been given one Business Day prior to the Termination Date and upon the
occurrence of any Event of Default described in Section 8.01(f) and
also upon acceleration of the Obligations hereunder, whether on account
of an Event of Default described in Section 8.01(f) or any other Event
of Default, and the exercise of remedies in accordance with the
provisions of Section 8.02 hereof (each such Revolving Loan advance
made on account of any such deemed request therefor as provided herein
being hereinafter referred to as a "Mandatory Borrowing"). Each Bank
hereby irrevocably agrees to make such Revolving Loans promptly upon
any such request or deemed request on account of each Mandatory
Borrowing in the amount and in the manner specified in the preceding
sentence and on the same such date notwithstanding (I) the amount of
Mandatory Borrowing may not comply with the minimum amount for advances
of Revolving Loans otherwise required hereunder, (II) whether any
conditions specified in Section 2.09 are then satisfied, (III) whether
a Default or an Event of Default then exists, (IV) failure for any such
request or deemed request for Revolving Loan to be made by the time
otherwise required in Section 2.02(a), (V) the date of such Mandatory
Borrowing, or (VI) any reduction in the Revolving Committed Amount or
termination of the Commitments relating thereto immediately prior to
such Mandatory Borrowing or contemporaneous therewith. In the event
that any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code with respect
to the Borrower or any other Credit Party), then each Bank hereby
agrees that it shall forthwith purchase (as of the date the Mandatory
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Borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender such participations in the
outstanding Swingline Loans as shall be necessary to cause each such
Bank to share in such Swingline Loans ratably based upon its respective
Revolving Committed Amount (determined before giving effect to any
termination of the Commitments pursuant to Section 8.02), provided that
(A) all interest payable on the Swingline Loans shall be for the
account of the Swingline Lender until the date as of which the
respective participation is purchased, and (B) at the time any purchase
of participations pursuant to this sentence is actually made, the
purchasing Bank shall be required to pay to the Swingline Lender
interest on the principal amount of participation purchased for each
day from and including the day upon which the Mandatory Borrowing would
otherwise have occurred to but excluding the date of payment for such
participation, at the rate equal to, if paid within two (2) Business
Days of the date of the Mandatory Borrowing, the Federal Funds
Effective Rate, and thereafter at a rate equal to the Base Rate.
(c) Interest on Swingline Loans. Swingline Loans shall bear interest
at a per annum rate equal to:
(i) Base Rate Loans. During such periods as a Swingline Loan
shall consist of Base Rate Loans, the sum of the Base Rate plus the
Applicable Percentage; and
(ii) Fed Funds Swingline Loans. During such period as a
Swingline Loan shall consist of Fed Funds Swingline Loans, the sum of
the Applicable Federal Funds Rate plus the Applicable Percentage;
provided, however, that from and after any failure to make any payment of
principal or interest in respect of any of the Loans hereunder when due, whether
at scheduled or accelerated maturity or on account of any mandatory prepayment,
the principal of and, to the extent permitted by law, interest on, Swingline
Loans shall bear interest, payable on demand, at a per annum rate two percent
(2%) in excess of the rate otherwise applicable hereunder. Interest on Swingline
Loans shall be payable in arrears on each Interest Payment Date.
(d) Swingline Note. The Swingline Loans shall be evidenced by the
Revolving Note.
2.08 Competitive Loan Subfacility.
(a) Competitive Loans. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth herein, so long as
the Leverage Ratio is not greater than .45:1.0, the Borrower may, during the
Commitment Period, request and each Bank may, in its sole discretion, agree to
make, Competitive Loans to the Borrower; provided, however, that (i) the
aggregate principal amount of outstanding Competitive Loans shall not at any
time exceed the aggregate Revolving Committed Amount (the "Competitive Loan
Maximum Amount"), and (ii) the sum of Revolving Loans plus Swingline Loans plus
Competitive Loans shall not at any time exceed the lesser of the aggregate
Revolving Committed Amount or the Borrowing Base. Each Competitive Loan shall be
26
not less than $5,000,000 in the aggregate and integral multiples of $1,000,000
in excess thereof (or the remaining portion of the Competitive Loan Maximum
Amount, if less).
(b) Competitive Bid Requests. The Borrower may solicit Competitive Bids
by delivery of a Competitive Bid Request substantially in the form of Exhibit
2.08(b)-1 to the Agent by 12:00 Noon (Charlotte, North Carolina time) on a
Business Day not less than one (1) nor more than four (4) Business Days prior to
the date of a requested Competitive Loan borrowing. A Competitive Bid Request
shall specify (i) the date of the requested Competitive Loan borrowing (which
shall be a Business Day), (ii) the amount of the requested Competitive Loan
borrowing and (iii) the applicable Interest Periods requested and shall be
accompanied by payment of the Competitive Bid Request Fee. The Agent shall,
promptly following its receipt of a Competitive Bid Request under this
subsection (b), notify the Banks of its receipt and the contents thereof and
invite the Banks to submit Competitive Bids in response thereto. A form of such
notice is provided in Exhibit 2.08(b)-2. No more than three (3) Competitive Bid
Requests (e.g., the Borrower may request Competitive Bids for no more than three
(3) different Interest Periods at a time) shall be submitted at any one time and
Competitive Bid Requests may be made no more frequently than once every five (5)
Business Days.
(c) Competitive Bid Procedure. Each Bank may, in its sole discretion,
make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid must be received by the Agent not later than
10:00 A.M. (Charlotte, North Carolina time) on the Business Day next succeeding
the date of receipt by the Agent of the related Competitive Bid Request. A Bank
may offer to make all or part of the requested Competitive Loan borrowing and
may submit multiple Competitive Bids in response to a Competitive Bid Request.
The Competitive Bid shall specify (i) the particular Competitive Bid Request as
to which the Competitive Bid is submitted, (ii) the minimum (which shall be not
less than $1,000,000 and integral multiples of $500,000 in excess thereof) and
maximum principal amounts of the requested Competitive Loan or Loans as to which
the Bank is willing to make, and (iii) the applicable interest rate or rates and
Interest Period or Periods therefor. A form of such Competitive Bid is provided
in Exhibit 2.08(c). A Competitive Bid submitted by a Bank in accordance with the
provisions hereof shall be irrevocable. The Agent shall promptly notify the
Borrower of all Competitive Bids made and the terms thereof. The Agent shall
send a copy of each of the Competitive Bids to the Borrower for its records as
soon as practicable.
(d) Submission of Competitive Bids by Agent. If the Agent, in its
capacity as a Bank, elects to submit a Competitive Bid in response to any
Competitive Bid Request, it shall submit such Competitive Bid directly to the
Borrower one-half of an hour earlier than the latest time at which the other
Banks are required to submit their Competitive Bids to the Agent in response to
such Competitive Bid Request pursuant to subsection (c) above.
(e) Acceptance of Competitive Bids. The Borrower may, in its sole and
absolute discretion, subject only to the provisions of this subsection (e),
accept or refuse any Competitive Bid offered to it. To accept a Competitive Bid,
the Borrower shall give written notification (or telephonic notice promptly
confirmed in writing) substantially in the form of Exhibit 2.08(e) of its
acceptance of any or all such Competitive Bids to the Agent by 11:00 A.M.
27
(Charlotte, North Carolina time) on the date on which notice of election to make
a Competitive Bid is to be given to the Agent by the Banks; provided, however,
(i) the failure by the Borrower to give timely notice of its acceptance of a
Competitive Bid shall be deemed to be a refusal thereof, (ii) the Borrower may
accept Competitive Bids only in ascending order of rates, (iii) the aggregate
amount of Competitive Bids accepted by the Borrower shall not exceed the
principal amount specified in the Competitive Bid Request, (iv) the Borrower may
accept a portion of a Competitive Bid in the event, and to the extent,
acceptance of the entire amount thereof would cause the Borrower to exceed the
principal amount specified in the Competitive Bid Request, subject however to
the minimum amounts provided herein (and provided that where two or more Banks
submit such a Competitive Bid at the same Competitive Bid Rate, then pro rata
between or among such Banks) and (v) no bid shall be accepted for a Competitive
Loan unless such Competitive Loan is in a minimum principal amount of $1,000,000
and integral multiples of $500,000 in excess thereof, except that where a
portion of a Competitive Bid is accepted in accordance with the provisions of
subsection (iv) hereof, then in a minimum principal amount of $500,000 and
integral multiples of $100,000 in excess thereof (but not in any event less than
the minimum amount specified in the Competitive Bid), and in calculating the pro
rata allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to subsection (iv) hereof, the amounts shall be
rounded to integral multiples of $100,000 in a manner which shall be in the
discretion of the Borrower. A notice of acceptance of a Competitive Bid given by
the Borrower in accordance with the provisions hereof shall be irrevocable. The
Agent shall, not later than 12:00 Noon (Charlotte, North Carolina time) on the
date of receipt by the Agent of a notification from the Borrower of its
acceptance and/or refusal of Competitive Bids, notify each affected Bank of its
receipt and the contents thereof. Upon its receipt from the Agent of
notification of the Borrower's acceptance of its Competitive Bid in accordance
with the terms of this subsection (e), each successful bidding Bank will
thereupon become bound, subject to the other applicable conditions hereof, to
make the Competitive Loan in respect of which its bid has been accepted.
(f) Funding of Competitive Loans. Each Bank which is to make a
Competitive Loan shall make its Competitive Loan borrowing available to the
Agent for the account of the Borrower at the office of the Agent specified in
Schedule 2.1(a), or at such other office as the Agent may designate in writing,
by 1:30 P.M. (Charlotte, North Carolina time) on the date specified in the
Competitive Bid Request in Dollars and in funds immediately available to the
Agent. Such borrowing will then be made available to the Borrower by crediting
the account of the Borrower on the books of such office with the aggregate of
the amount made available to the Agent by the applicable Competitive Loan Banks
and in like funds as received by the Agent.
(g) Maturity of Competitive Loans. Each Competitive Loan shall mature
and be due and payable in full on the last day of the Interest Period applicable
thereto, unless accelerated sooner pursuant to Section 9.2. Unless the Borrower
shall give notice to the Agent otherwise, the Borrower shall be deemed to have
requested a Revolving Loan borrowing in the amount of the maturing Competitive
Loan, the proceeds of which will be used to repay such Competitive Loan.
28
(h) Interest on Competitive Loans. Subject to the provisions of
Section 3.1, Competitive Loans shall bear interest in each case at the
Competitive Bid Rate applicable thereto. Interest on Competitive Loans shall be
payable in arrears on each Interest Payment Date.
(i) Competitive Loan Notes. The Competitive Loans made by each Bank
shall be evidenced by the Revolving Note.
2.09 Conditions of Lending.
(a) Conditions. The obligation to make any Extension of Credit
hereunder is subject to satisfaction of the following conditions:
(i) receipt of a Notice of Borrowing pursuant to Section
2.02(a) or 2.07(b)(i) or a Competitive Bid Request pursuant to Section
2.8(b);
(ii) the representations and warranties set forth in Section 5
hereof shall be true and correct in all material respects as of such
date (except for those which expressly relate to an earlier date);
(iii) immediately after giving effect to the requested
Extension of Credit, (A) with regard to each Bank individually, the
Bank's pro rata share of the outstanding Revolving Loans and Swingline
Loans shall not exceed such Bank's Revolving Committed Amount, and (B)
with regard to the Banks collectively, (I) the sum of Revolving Loans
plus Swingline Loans plus Competitive Loans then outstanding shall not
exceed the lesser of the aggregate Revolving Committed Amount or the
Borrowing Base, and (II) the aggregate amount of Swingline Loans shall
not exceed the Swingline Committed Amount and (III) the aggregate
amount of Competitive Loans shall not exceed the Competitive Loan
Maximum Amount; and
(iv) no Default or Event of Default shall exist and be
continuing either prior to or after giving effect thereto.
(b) Reaffirmation. Each request for a Revolving Loan advance or
Swingline Loan advance pursuant to a Notice of Borrowing or a Notice of
Conversion and each Competitive Bid Request shall be deemed to be representation
and warranty by the Borrower of the correctness of the matters specified in this
subsections (a)(ii), (iii) and (iv) hereof.
2.10 Termination of Commitments.
The Borrower may from time to time permanently reduce the Revolving
Committed Amount and/or the Swingline Committed Amount in whole or in part (in
minimum aggregate amounts of $10,000,000 and integral multiples of $1,000,000 in
excess thereof) upon 3 Business Days' prior written notice to the Administrative
Agent and, in the case of a reduction in the Swingline Commitment, also to the
Swingline Lender.
29
2.11 Fees.
(a) Upfront Fee. The Borrower agrees to pay in immediately available
funds to the Administrative Agent for the benefit of the Banks on or before the
Closing Date an upfront fee (the "Upfront Fee") in the amounts provided in the
Administrative Agent's Fee Letter between the Borrower and the Administrative
Agent.
(b) Commitment Fees. In consideration for the Commitments by the Banks
hereunder, the Borrower agrees to pay to the Administrative Agent quarterly in
arrears on the 15th day of the month following the last day of each of the
Borrower's fiscal quarters for the ratable benefit of the Banks a commitment fee
(the "Commitment Fee") equal to the Applicable Percentage per annum on the
average daily unused amount of the Revolving Committed Amount for the prior
quarter. For purposes of computation of the Commitment Fee, neither Swingline
Loans nor Competitive Loans shall be counted toward or considered usage under
the Revolving Loan facility.
(c) Administrative Agent's Fee. The Borrower agrees to pay to the
Administrative Agent, for its own account, the administrative and other fees
referred to in the Administrative Agent's Fee Letter other than the Upfront Fee
(the "Administrative Agent's Fees").
2.12 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the right to prepay
Loans and Competitive Loans in whole or in part from time to time without
premium or penalty; provided, however, that (A) Eurodollar Loans and Competitive
Loans may only be prepaid (y) on the last day of an Interest Period applicable
thereto or (z) on a day that is not the last day of an Interest Period
applicable thereto if the Borrower pays to the applicable Banks any amounts due
under Section 2.15(ii) (and, in the case of Competitive Loans, with the consent
of the Bank affected thereby), and (B) each such partial prepayment shall be a
minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in
excess thereof (or the amount then outstanding, if less). Amounts prepaid on the
Loans may be reborrowed in accordance with the provisions hereof. If the
Borrower shall fail to specify the manner of application, prepayments shall be
applied first to Base Rate Loans and Fed Funds Swingline Loans, then to
Eurodollar Loans and Competitive Loans.
(b) Mandatory Prepayments. If at any time (i) the sum of Revolving
Loans plus Swingline Loans plus Competitive Loans shall exceed the lesser of the
aggregate Revolving Committed Amount or the Borrowing Base, (ii) the aggregate
amount of Swingline Loans shall exceed the Swingline Committed Amount, or (iii)
the aggregate amount of Competitive Loans shall exceed the Competitive Loan
Maximum Amount, then in any such instance the Borrower shall immediately make
payment on the Loans in an amount sufficient to eliminate the difference. In the
case of a mandatory payment required on account of subsection (ii), the amount
required to be paid hereby shall serve to temporarily reduce the Revolving
Committed Amount (for purposes of borrowing availability hereunder, but not for
purposes of computation of fees) by the amount of the payment required until
such time as the situation described in subsection (ii) shall no longer exist.
30
Payments made under this subsection 2.12(b) shall be applied first to Revolving
Loans, then to Swingline Loans, then to Competitive Loans, and with respect to
the types of Loans, first to Base Rate Loans and Fed Funds Swingline Loans, then
to Eurodollar Loans and then to Competitive Loans. The Administrative Agent
will, to the extent it may have knowledge, as a courtesy and not as a
requirement, give prompt notice to the Borrower of any situation which may give
rise to a mandatory prepayment under this Section 2.12(b); provided, however,
delivery of any such notice by the Administrative Agent shall not constitute any
kind of condition to the Borrower's obligation to make such mandatory
prepayment, which obligation shall exist and be immediately owing
notwithstanding the failure or inability of the Administrative Agent to give
such notice.
(c) Notice. The Borrower will provide notice to the Administrative
Agent of any prepayment by 10:00 a.m. (Charlotte, North Carolina time) on the
date of prepayment.
2.13 Increased Costs, Illegality, etc.
In the event any Bank shall determine (which determination shall be
final and conclusive and binding on all the parties hereto absent manifest
error) that:
(i) Unavailability. On any date for determining the appropriate
Adjusted Eurodollar Rate for any Interest Period, that by reason of any changes
arising on or after the date of this Credit Agreement affecting the interbank
Eurodollar market, dollar deposits in the principal amount requested are not
generally available in the interbank Eurodollar Market, or adequate and fair
means do not exist for ascertaining the applicable interest rate on the basis
provided for in the definition of Adjusted Eurodollar Rate; then Eurodollar
Loans will no longer be available, and request for a Eurodollar Loan shall be
deemed requests for Base Rate Loans, until such time as such Bank shall notify
the Borrower that the circumstances giving rise thereto no longer exist.
(ii) Increased Costs. At any time that such Bank shall incur increased
costs or reductions in the amounts received or receivable hereunder with respect
to any Eurodollar Loans because of (x) any change since the date of this Credit
Agreement in any applicable law, governmental rule, regulation, guideline or
order (or in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline or
order) including without limitation the imposition, modification or deemed
applicability of any reserves, deposits or similar requirements (excluding
taxes) as related to Eurodollar Loans (such as, for example, but not limited to,
a change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the computation
of the Adjusted Eurodollar Rate and/or (y) other circumstances (excluding taxes)
arising after the date of this Credit Agreement affecting such Bank, the
31
interbank Eurodollar market or the position of such Bank in such market; then
the Borrower shall pay to such Bank promptly upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Bank may determine in its
reasonable discretion) as may be required to compensate such Bank for such
increased costs or reductions in amounts receivable hereunder (written notice as
to the additional amounts owed to such Bank, showing the basis for calculation
thereof, shall, absent manifest error, be final and conclusive and binding on
all parties hereto; provided, however, that such determinations are made on a
reasonable basis).
(iii) Illegality. At any time after the date of this Credit Agreement,
that the making or continuance of any Eurodollar Loan has become unlawful by
compliance by such Bank in good faith with any law, governmental rule,
regulation, guideline or order (or would conflict with any such governmental
rule, regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or has become impossible as
a result of a contingency occurring after the date of this Credit Agreement
which materially and adversely affects the interbank Eurodollar market; then
Eurodollar Loans will no longer be available, requests for Eurodollar Loans
shall be deemed requests for Base Rate Loans and the Borrower may, and upon
direction of the Bank, shall, as promptly as possible and, in any event within
the time period required by law, have any such Eurodollar Loans then outstanding
converted into Base Rate Loans.
2.14 Capital Adequacy.
If after the date of this Credit Agreement, any Bank has determined
that the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such Bank could
have achieved but for such adoption, effectiveness, change or compliance (taking
into consideration such Bank's policies with respect to capital adequacy), then
from time to time, within 15 days after demand by such Bank, the Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
for such reduction. Upon determining in good faith that any additional amounts
will be payable pursuant to this Section, such Bank will give prompt written
notice thereof to the Borrower, which notice shall set forth the basis of the
calculation of such additional amounts, although the failure to give any such
notice shall not release or diminish any of the Borrower's obligations to pay
additional amounts pursuant to this Section. Determination by any such Bank of
amounts owing under this Section shall, absent manifest error, be final and
conclusive and binding on the parties hereto; provided, however, that such
determinations are made on a reasonable basis. Failure on the part of any Bank
to demand compensation for any period hereunder shall not constitute a waiver of
such Bank's rights to demand any such compensation in such period or in any
32
other period; provided, however, that if such demand is made more than 180 days
after the Bank had knowledge of the occurrence of any event described above
regarding capital adequacy, the Borrower shall not be obligated to reimburse the
Bank for amounts incurred prior to the date on which the Borrower receives such
demand for compensation under this Section 2.14.
2.15 Compensation.
The Borrower shall compensate each Bank, upon its written request
(which request shall set forth the basis for requesting such compensation), for
all reasonable losses, expenses and liabilities (including, without limitation,
any loss, expense or liability incurred by reason of the liquidation or
reemployment of deposits or other funds required by the Bank to fund its
Eurodollar Loans and Competitive Loans) which such Bank may sustain:
(i) if for any reason a borrowing of Eurodollar Loans or Competitive
Loans does not occur on a date specified therefor in a Notice of Borrowing, or
Notice of Conversion or Competitive Bid Request (as accepted);
(ii) if any repayment or conversion of any Eurodollar Loan or
Competitive Loan occurs on a date which is not the last day of an Interest
Period applicable thereto including without limitation in connection with any
demand, repayment, acceleration or otherwise;
(iii) if any prepayment of any Eurodollar Loan or Competitive Loan is
not made on any date specified in a notice of prepayment given by the Borrower;
or
(iv) as a consequence of (x) any other default by the Borrower to repay
its Loans when required by the terms of this Credit Agreement or (y) an election
made pursuant to this Section.
Calculation of all amounts payable to a Bank under this Section shall be made as
though the Bank has actually funded its relevant Eurodollar Loan or Competitive
Loan, through the purchase of a Eurodollar deposit bearing interest at the
Adjusted Eurodollar Rate in an amount equal to the amount of that Loan, having a
maturity comparable to the relevant Interest Period and, through the transfer of
such Eurodollar deposit from an offshore office of that Bank to a domestic
office of that Bank in the United States of America; provided, however, that
each Bank may fund each of its Eurodollar Loans and Competitive Loans in any
manner it sees fit and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this Section.
2.16 Net Payments.
(i) Except as otherwise provided herein, all payments made by the
Borrower hereunder to a Bank will be made without setoff or counterclaim. In
addition, all payments made by the Borrower hereunder to a Bank also shall be
made free and clear of and without deduction for any and all current or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto excluding: (A) taxes imposed on or measured by all or part
of the gross or net income (but not including any such tax in the nature of a
withholding tax) of such Bank or franchise taxes imposed on such Bank by the
jurisdiction under the laws of which such Bank is organized or has its
33
applicable lending office or any political subdivision thereof, (B) taxes that
are imposed on such Bank with respect to transactions unrelated to this Credit
Agreement and (C) in the case of a Bank that is a Non-U.S. Person or that has
participated all or any part of its interests and obligations under the terms of
this Credit Agreement to a Participant that is a Non-U.S. Person, taxes imposed
upon income effectively connected with such Bank's or such Participant's conduct
of a business in the United States or taxes that would not have been imposed
absent the failure of such Bank or such Participant to provide the documentation
required by Section 2.21 or Section 10.03(c)(ii) hereof, respectively (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings, and
liabilities collectively or individually referred to herein as "Taxes"). If the
Borrower shall be required to withhold or deduct Taxes from any sum payable to a
Bank hereunder, (i) the sum payable shall be increased as may be necessary so
that the amount received is equal to the sum which would have been received had
no withholdings or deductions been made, (ii) the Borrower shall make such
necessary withholdings or deductions, and (iii) the Borrower shall pay the full
amount withheld or deducted to the relevant authority according to applicable
law so that such Bank shall not be required to make any deduction or payment of
Taxes.
(ii) The Borrower hereby agrees to indemnify each Bank for the full
amount of Taxes and any liability (including penalties, interest, and expenses
(including reasonable attorney's fees and expenses)) arising therefrom or with
respect thereto paid or payable by such Bank, whether or not such Taxes were
correctly or legally asserted by the relevant Governmental Authority; provided,
however, that such Bank made written demand for indemnification within 180 days
after the earlier of (A) the date on which such Bank pays such Taxes and (B) the
date on which the relevant authority makes written demand upon such Bank for
payment of such Taxes. A certificate as to the amount of any Taxes and
liabilities arising therefrom or with respect thereto paid or payable by a Bank
that is prepared by such Bank, absent manifest error, shall be final,
conclusive, and binding for all purposes. Indemnification by the Borrower
hereunder shall be made within a reasonable period after the date the relevant
Bank makes written demand therefor.
If any such Bank receives a refund or credit (against any other tax) of any
Taxes paid by the Borrower hereunder, the Bank shall promptly pay the full
amount of such refund (including any interest received thereon) or credit to the
Borrower.
2.17 Change of Lending Office; Right to Substitute Lender.
(a) Each Bank agrees that, upon the occurrence of any event giving rise
to the operation of Section 2.13(ii) or (iii) or 2.16, it will, if requested by
the Borrower, use reasonable efforts (subject to overall policy considerations
of such Bank) to designate another lending office for any Loans affected by such
event, provided that such designation is made on such terms that such Bank and
its lending office suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequence of the event giving rise to the operation
of any such Section. Except in the case of a change of lending office made at
34
the request of the Borrower, no change in lending office will be made if greater
costs and expenses would result under Section 2.13(ii) or (iii) or 2.16 on
account of any such change in designation. Nothing in this Section shall affect
or postpone any of the obligations of the Borrower or the right of any Bank
provided in Section 2.13, 2.14 or 2.16.
(b) In addition to the Borrower's rights under Section 2.17(a), upon
the occurrence of any event giving rise to the operation of Section 2.13(ii) or
(iii) or 2.16, the Borrower may, within a period of sixty (60) days following
the Borrower's obtaining knowledge of the occurrence of the event giving rise to
the operation of such provisions, at its own expense, make arrangements for
another bank or financial institution reasonably acceptable to the
Administrative Agent to purchase and accept the rights and obligations under
this Credit Agreement of any Bank entitled to payment under Section 2.13(ii) or
(iii) or Section 2.16, whereupon such Bank shall assign to the bank or financial
institution designated by the Borrower its rights and obligations hereunder
pursuant to the provisions of Section 10.03(b) of this Credit Agreement.
2.18 Payments and Computations.
Except as otherwise specifically provided herein, all payments
hereunder shall be made to the Administrative Agent in U.S. dollars in
immediately available funds at its offices at XxxxxxxXxxx Xxxxx, XX0-000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx not later than 2:00 p.m. (Charlotte, North Carolina
time) on the date when due. Payments received after such time shall be deemed to
have been received on the next succeeding Business Day. The Administrative Agent
may (but shall not be obligated to) debit the amount of any such payment which
is not made by such time to any ordinary deposit account of the Borrower
maintained with the Administrative Agent (with notice to the Borrower). The
Borrower shall, at the time it makes any payment under this Credit Agreement,
specify to the Administrative Agent the Loans, Fees or other amounts payable by
the Borrower hereunder to which such payment is to be applied (and in the event
that it fails so to specify, or if such application would be inconsistent with
the terms hereof, the Administrative Agent shall distribute such payment to the
Banks in such manner as the Administrative Agent may determine to be appropriate
in respect of obligations owing by the Borrower hereunder, subject to the terms
of Section 2.20). The Administrative Agent will thereafter cause to be
distributed promptly like funds relating to the payment of principal or interest
or fees ratably to the Banks entitled to receive such payments in accordance
with the terms of this Credit Agreement. Whenever any payment hereunder shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day (subject to accrual of
interest and Fees for the period of such extension), except that in the case of
Eurodollar Loans, if the extension would cause the payment to be made in the
next following calendar month, then such payment shall instead be made on the
next preceding Business Day. Except as expressly provided otherwise herein, all
computations of interest and fees shall be made on the basis of actual number of
days elapsed over a year of 365/366 days, in the case of interest on Base Rate
Loans, and over a year of 360 days in all other instances. Interest shall accrue
from and include the date of advance, but exclude the date of payment.
35
2.19 Pro Rata Treatment.
Except to the extent otherwise provided herein, each Revolving Loan
(including without limitation each Mandatory Borrowing), each payment or
prepayment of principal of any Revolving Loan, each payment of interest on the
Revolving Loans, each payment of Commitment Fees, each reduction of the
Revolving Committed Amount, and each conversion or continuation of any Revolving
Loan, shall be allocated pro rata among the relevant Banks in accordance with
the respective applicable Revolving Committed Amount (or, if the Commitments of
such Banks have expired or been terminated, in accordance with the principal
amounts of the outstanding Revolving Loans and Participation Interests of such
Banks).
2.20 Sharing of Payments.
The Banks agree among themselves that, in the event that any Bank shall
obtain payment in respect of any Revolving Loan through the exercise of a right
of set-off, banker's lien, counterclaim or otherwise in excess of its pro rata
share as provided for in this Credit Agreement, such Bank shall promptly
purchase from the other Banks a participation in such Loans and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Banks share such payment in accordance
with their respective ratable shares as provided for in this Credit Agreement.
The Banks further agree among themselves that if payment to a Bank obtained by
such Bank through the exercise of a right of set-off, banker's lien,
counterclaim or otherwise as aforesaid shall be rescinded or must otherwise be
restored, each Bank which shall have shared the benefit of such payment shall,
by repurchase of a participation theretofore sold, return its share of that
benefit to each Bank whose payment shall have been rescinded or otherwise
restored. The Borrower and each other Credit Party agrees that any Bank so
purchasing such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including set-off, banker's lien or
counterclaim, with respect to such participation as fully as if such Bank were a
holder of such Revolving Loan or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit Agreement,
if any Bank or the Administrative Agent shall fail to remit to the
Administrative Agent or any other Bank an amount payable by such Bank or the
Administrative Agent to the Administrative Agent or such other Bank pursuant to
this Credit Agreement on the date when such amount is due, such payments shall
be made together with interest thereon for each date from the date such amount
is due until the date such amount is paid to the Administrative Agent or such
other Bank at a rate per annum equal to the Federal Funds Effective Rate.
2.21 Foreign Lenders.
Each Bank (which, for purposes of this Section 2.21, shall include any
Affiliate of a Bank that makes any Eurodollar Loan advance pursuant to the terms
of this Credit Agreement) that is a Non-U.S. Person shall submit to the Borrower
and the Administrative Agent on or before the Closing Date (or, in the case of a
Non-U.S. Person that will become a Bank under the terms of this Credit Agreement
after the Closing Date pursuant to an assignment under Section 10.03(b) hereof,
on or before the date of such assignment), either: (A) two copies of either
United States Internal Revenue Service Form 1001 or Form 4224 (whichever is
36
applicable) or (B) in the case of a Bank claiming an exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a Form W-8 (or any subsequent versions thereof
or successors thereto) and a certificate representing that such Bank is not a
bank for purposes of Section 881(C)(3)(A) of the Code, is not a 10% shareholder
(within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, and is
not a controlled foreign corporation related to the Borrower (within the meaning
of Section 864(d)(4) of the Code), in either case properly completed and duly
executed by such Bank and entitling such Bank to receive a complete exemption
from U.S. federal withholding tax on payments by the Borrower under this Credit
Agreement. Each Bank that is organized under the laws of the United States or
any state thereof or the District of Columbia shall deliver to the Borrower
promptly upon request (or, in the case of a Person that is organized under the
laws of the United States or any state thereof or the District of Columbia and
will become a Bank under the terms of this Credit Agreement after the Closing
Date pursuant to an assignment under Section 10.03(b) hereof, on or before the
date of such assignment) an original copy of Internal Revenue Service Form W-9
(or applicable successor form) properly completed and duly executed by such
Bank. Each Bank also shall, from time to time submit to the Borrower and the
Administrative Agent such additional duly completed and signed copies of such
forms (or such successor forms or other documents as shall be adopted from time
to time by the relevant United States taxing authorities) as may be (1)
reasonably requested in writing by the Borrower or the Administrative Agent, (2)
appropriate under then current United States laws or regulations or (iii)
required due to the obsolescence or invalidity of any form previously delivered
by such Bank. Upon the reasonable request of the Borrower or the Administrative
Agent, each Bank that has not provided the forms or other documents, as provided
above, on the basis of being a United States person shall submit to the Borrower
and the Administrative Agent a certificate to the effect that it is such a
"United States person."
SECTION 3
GUARANTEE
3.01 The Guarantee.
Each of the Guarantors hereby jointly and severally guarantees to each
Bank and the Administrative Agent as hereinafter provided the prompt payment of
the Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration or otherwise) strictly in accordance with the terms
thereof. The Guarantors hereby further agree that if any of the Obligations are
not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, as a mandatory prepayment, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents, to the extent the obligations of a Guarantor
37
shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including, without limitation, the
Bankruptcy Code).
3.02 Obligations Unconditional.
The obligations of the Guarantors under Section 3.01 hereof are joint
and several, absolute and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of any of the Credit Documents, or any
other agreement or instrument referred to therein, or any substitution, release
or exchange of any other guarantee of or security for any of the Obligations,
and, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the intent of
this Section 3.02 that the obligations of the Guarantors hereunder shall be
absolute and unconditional under any and all circumstances. Each Guarantor
agrees that such Guarantor shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrower or any other Guarantor of the
Obligations for amounts paid under this Guaranty until such time as the Banks
have been paid in full, all Commitments under the Credit Agreement have been
terminated and no Person or Governmental Authority shall have any right to
request any return or reimbursement of funds from the Banks in connection with
monies received under the Credit Documents. Without limiting the generality of
the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to any Guarantor,
the time for any performance of or compliance with any of the Obligations shall
be extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any of the
Credit Documents or any other agreement or instrument referred to in the Credit
Documents shall be done or omitted;
(iii) the maturity of any of the Obligations shall be accelerated, or
any of the Obligations shall be modified, supplemented or amended in any
respect, or any right under any of the Credit Documents, or any other agreement
or instrument referred to in the Credit Documents shall be waived or any other
guarantee of any of the Obligations or any security therefor shall be released
or exchanged in whole or in part or otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Administrative Agent or
any Bank or Banks as security for any of the Obligations shall fail to attach or
be perfected; or
(v) any of the Obligations shall be determined to be void or voidable
(including, without limitation, for the benefit of any creditor of any
38
Guarantor) or shall be subordinated to the claims of any Person (including,
without limitation, any creditor of any Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Agent or any Bank exhaust any right,
power or remedy or proceed against any Person under any of the Credit Documents
or any other agreement or instrument referred to in the Credit Documents or
against any other Person under any other guarantee of, or security for, any of
the Obligations.
3.03 Reinstatement.
The obligations of the Guarantors under this Section 3 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and each
Guarantor agrees that it will indemnify the Administrative Agent and each Bank
on demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Administrative Agent or such Bank
in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
3.04 Certain Additional Waivers.
Each Guarantor further agrees that such Guarantor shall have no right
of recourse to security for the Obligations, except through the exercise of the
rights of subrogation pursuant to Section 3.02.
3.05 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Banks, on the other hand, the Obligations may be declared to be forthwith due
and payable as provided in Section 8.02 hereof (and shall be deemed to have
become automatically due and payable in the circumstances provided in said
Section 8.02) for purposes of Section 3.01 hereof notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing the
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Obligations being
deemed to have become automatically due and payable), the Obligations (whether
or not due and payable by any other Person) shall forthwith become due and
payable by the Guarantors for purposes of said Section 3.01.
3.06 Rights of Contribution.
The Guarantors hereby agree, as among themselves, that if any Guarantor
shall become an Excess Funding Guarantor (as defined below), each other
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
succeeding provisions of this Section 3.06), pay to such Excess Funding
Guarantor an amount equal to such Guarantor's Pro Rata Share (as defined below
39
and determined, for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Guarantor) of such Excess Payment
(as defined below). The payment obligation of any Guarantor to any Excess
Funding Guarantor under this Section 3.06 shall be subordinate and subject in
right of payment to the prior payment in full of the obligations of such
Guarantor under the other provisions of this Section 3, and such Excess Funding
Guarantor shall not exercise any right or remedy with respect to such excess
until payment and satisfaction in full of all of such obligations. For purposes
hereof, (i) "Excess Funding Guarantor" shall mean, in respect of any obligations
arising under the other provisions of this Section 3 (hereafter, the
"Obligations"), a Guarantor that has paid an amount in excess of its Pro Rata
Share of the Obligations; (ii) "Excess Payment" shall mean, in respect of any
Obligations, the amount paid by an Excess Funding Guarantor in excess of its Pro
Rata Share of such Obligations; and (iii) "Pro Rata Share", for the purposes of
this Section 3.06, shall mean, for any Guarantor, the ratio (expressed as a
percentage) of (a) the amount by which the aggregate present fair saleable value
of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (b) the amount by which the aggregate present fair saleable value
of all assets and other properties of the Borrower and all of the Guarantors
exceeds the amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of the Borrower and the Guarantors hereunder) of the Borrower and
all of the Guarantors, all as of the Closing Date (if any Guarantor becomes a
party hereto subsequent to the Closing Date, then for the purposes of this
Section 3.06 such subsequent Guarantor shall be deemed to have been a Guarantor
as of the Closing Date and the information pertaining to, and only pertaining
to, such Guarantor as of the date such Guarantor became a Guarantor shall be
deemed true as of the Closing Date).
3.07 Continuing Guarantee.
The guarantee in this Section 3 is a continuing guarantee, and shall
apply to all Obligations whenever arising.
SECTION 4
CONDITIONS PRECEDENT
4.01 Conditions to Closing.
The closing of this credit facility is subject to satisfaction of the
following conditions (in form and substance acceptable to the Administrative
Agent:
(a) Executed Credit Documents. Receipt by the Administrative Agent of
copies of the Credit Agreement, the Notes and the other Credit Documents, if any
(in sufficient numbers to provide a fully executed original to each Bank) as
executed by the Borrower and the other Credit Parties.
40
4.02 Conditions to Initial Loan Advance.
The obligation of the Banks to make the initial Loan advance is
subject, at the time of the making of such initial Loan advance, to satisfaction
of the following conditions (in form and substance acceptable to the
Administrative Agent and the Required Banks):
(a) No Default; Representations and Warranties. Both at the time of the
making of such Loan and after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents then in effect shall be true
and correct in all material respects.
(b) Opinions of Counsel. Receipt by the Administrative Agent of the
opinions of Drew St.X. Xxxxxxx, Esq., Senior Vice President and General Counsel
of the Borrower, and Hunton & Xxxxxxxx, special counsel to the Borrower and the
Guarantors, substantially in the forms of Schedules 4.01(b)(1) and (2),
respectively, (in sufficient numbers to provide a fully executed original to
each Bank).
(c) Corporate Documents. Receipt by the Administrative Agent of the
following:
(i) Articles of Incorporation. Copies of the articles
of incorporation or charter documents of the Borrower and the
Guarantors certified to be true and complete as of a recent date by the
appropriate governmental authority of the state of its incorporation.
(ii) Resolutions. Copies of resolutions of the Board
of Directors of the Borrower and the Guarantors approving and adopting
the Credit Documents, the transactions contemplated therein and
authorizing execution and delivery thereof, certified by a secretary or
assistant secretary as of the Closing Date to be true and correct and
in force and effect as of such date and containing therein
certification of the incumbency and specimen signatures of the officers
of the Credit Parties executing the Credit Documents.
(iii) Bylaws. A copy of the bylaws of the Borrower
and the Guarantors certified by a secretary or assistant secretary as
of the Closing Date to be true and correct and in force and effect as
of such date.
(iv) Good Standing. Copies of (i) certificates of
good standing, existence or its equivalent with respect to the Borrower
and the Guarantors certified as of a recent date by the appropriate
governmental authorities of the state of incorporation and each other
state in which the failure to so qualify and be in good standing would
have a Material Adverse Effect and (ii) a certificate indicating
payment of all corporate franchise taxes in such states of
incorporation certified as of a recent date by the appropriate
governmental taxing authorities, to the extent generally available from
such authorities.
(d) Termination of Existing Credit Facilities. Receipt by the
Administrative Agent of evidence of repayment and termination of commitments
41
under the existing revolving credit facility extended to Xxxxx & Minor, Inc. by
NationsBank, N.A., as Agent, Bank of America NT & SA and Crestar Bank as
Co-Agents and the other lenders party thereto.
SECTION 5
REPRESENTATIONS AND WARRANTIES
Each Credit Party hereby represents and warrants to the Agents and each
Bank that:
5.01 Organization and Good Standing.
Such Credit Party is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of its incorporation, is duly
qualified and in good standing as a foreign corporation authorized to do
business in every jurisdiction where the failure to so qualify would have a
Material Adverse Effect, and has the requisite corporate power and authority to
own its properties and to carry on its business as now conducted and as proposed
to be conducted.
5.02 Due Authorization.
Such Credit Party (i) has the requisite corporate power and authority
to execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party and to incur the obligations herein and therein
provided for, and (ii) is duly authorized to, and has been authorized by all
necessary corporate action, to execute, deliver and perform this Credit
Agreement and the other Credit Documents to which it is a party.
5.03 No Conflicts.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (i)
violate or conflict with any provision of its articles of incorporation or
bylaws, (ii) violate, contravene or materially conflict with any law, regulation
(including without limitation Regulation U or Regulation X), order, writ,
judgment, injunction, decree or permit applicable to it, (iii) violate,
contravene or materially conflict with contractual provisions of, or cause an
event of default under, any indenture, loan agreement, mortgage, deed of trust,
contract or other agreement or instrument to which it is a party or by which it
may be bound, the violation of which would have a Material Adverse Effect, (iv)
result in or require the creation of any lien, security interest or other charge
or encumbrance (other than those contemplated in or created in connection with
the Credit Documents) upon or with respect its properties, the creation of which
would have a Material Adverse Effect.
5.04 Consents.
No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or governmental authority or third
party in respect of such Credit Party is required in connection with the
42
execution, delivery or performance of this Credit Agreement or any of the other
Credit Documents by the Borrower or any Guarantor, or if required, such consent,
approval and authorization has been obtained.
5.05 Enforceable Obligations.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
such Credit Party enforceable against such Credit Party in accordance with their
respective terms, except as may be limited by bankruptcy or insolvency laws or
similar laws affecting creditors' rights generally or by general equitable
principles.
5.06 Financial Condition.
The financial statements and financial information provided to the
Banks, consisting of, among other things, an audited consolidated balance sheet
of the Borrower and its Subsidiaries dated as of December 31, 1996 together with
related consolidated statements of income, stockholders' equity and changes in
financial position or cash flow certified by KPMG Peat Marwick, certified public
accountants, are true and correct in all material respects and fairly represent
the financial condition of the Borrower and its Subsidiaries as of such date;
such financial statements were prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as noted therein);
and since the date of such financial statements there have occurred no changes
or circumstances which have had or are likely to have a Material Adverse Effect.
5.07 No Default.
No Default or Event of Default presently exists.
5.08 Liens.
Except for Permitted Liens, such Credit Party has good and marketable
title to all of its properties and assets free and clear of all liens,
encumbrances, mortgages, pledges, security interests and other adverse claims of
any nature.
5.09 Indebtedness.
Such Credit Party has no Indebtedness (including without limitation
Guaranty Obligations, reimbursement or other contingent obligations) except (a)
as disclosed in the financial statements referenced in Section 5.06 and as set
forth in Schedule 5.09 and (b) Indebtedness related to a Qualified
Securitization Transaction.
5.10 Litigation.
Except as disclosed in Schedule 5.10, there are no actions, suits or
legal, equitable, arbitration or administrative proceedings, pending or, to the
knowledge of a Responsible Officer of such Credit Party, threatened against such
Credit Party or any of its Restricted Subsidiaries which, if adversely
determined, would likely have a Material Adverse Effect. For purposes hereof, in
43
the case of proceedings involving only monetary damages, $5,000,000 or more in
any instance shall be considered as having a Material Adverse Effect. Since the
date of this Credit Agreement (or the date of the most recent update hereunder),
there has been no material adverse change in the status of any actions, suits,
investigations, litigation or proceedings disclosed hereunder which is likely to
result in a Material Adverse Effect.
5.11 Material Agreements.
Such Credit Party is not in default in any material respect under any
contract, lease, loan agreement, indenture, mortgage, security agreement or
other material agreement or obligation to which it is a party or by which any of
its properties is bound which default would have a Material Adverse Effect.
5.12 Taxes.
Such Credit Party has filed, or caused to be filed, all material tax
returns (federal, state, local and foreign) required to be filed and paid all
amounts of taxes shown thereon to be due (including interest and penalties) and
has paid all other material taxes, fees, assessments and other governmental
charges (including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) owing (or necessary to preserve any liens in favor of the
Banks) by it, except for such taxes (i) which are not yet delinquent or (ii) as
are being contested in good faith and by proper proceedings, and against which
adequate reserves are being maintained in accordance with generally accepted
accounting principles. Such Credit Party is not aware of any proposed material
tax assessments against it or any other members of the Consolidated Borrower
Group.
5.13 Compliance with Law.
Such Credit Party is in substantial compliance with all laws, rules,
regulations, orders and decrees (including without limitation environmental
laws) applicable to it, or to its properties, the failure to comply with which
would have a Material Adverse Effect.
5.14 ERISA.
(i) No Reportable Event (as defined in ERISA) has occurred and
is continuing with respect to any Plan; (ii) no Plan has an unfunded current
liability (determined under Section 412 of the Code) or an accumulated funding
deficiency, (iii) no proceedings have been instituted, or, to the knowledge of
any Responsible Officer of such Credit Party, planned, to terminate any Plan,
(iv) neither such Credit Party nor any member of a Controlled Group, nor any
duly-appointed administrator of a Plan has instituted or intends to institute
proceedings to withdraw from any Multiemployer Plan; and (v) each Plan has been
maintained and funded in all material respects with its terms and with the
provisions of ERISA applicable thereto.
5.15 Subsidiaries.
Set forth in Schedule 5.15 is a complete and accurate list of all
Subsidiaries of each of such Credit Party. Further, the Non-Guarantor
Subsidiaries (not including any Securitization Subsidiary), as a group, do not
44
exceed the Threshold Requirement as provided in Section 6.12. Information on the
attached Schedule includes state of incorporation; the shares of each class of
capital stock or other equity interests outstanding; the number and percentage
of outstanding shares of each class owned (directly or indirectly) by such
Credit Party; and the number and effect, if exercised, of all outstanding
options, warrants, rights of conversion or purchase and similar rights. The
outstanding capital stock and other equity interests of all such Subsidiaries is
validly issued, fully paid and non-assessable and is owned by such Credit Party,
directly or indirectly, free and clear of all liens, security interests and
other charges or encumbrances (other than those arising under or contemplated in
connection with the Credit Documents).
5.16 Use of Proceeds; Margin Stock.
The proceeds of the Loans hereunder will be used solely for the
purposes specified in Section 6.10. None of such proceeds will be used for the
purpose of purchasing or carrying any "margin stock" as defined in Regulation U,
Regulation X or Regulation G, or for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry "margin stock"
or for any other purpose which might constitute this transaction a "purpose
credit" within the meaning of Regulation U, Regulation X or Regulation G. Such
Credit Party does not own "margin stock" except as identified in the financial
statements referred to in Section 5.06 hereof and, as of the date hereof, the
aggregate value of all "margin stock" owned by such Credit Party and its
Subsidiaries does not exceed 25% of the value of all such Credit Party's and its
Subsidiaries' assets.
5.17 Government Regulation.
Such Credit Party is not subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Investment Company Act
of 1940 or the Interstate Commerce Act, each as amended. In addition, such
Credit Party is not (i) an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended, and is not
controlled by such a company, or (ii) a "holding company," or a "Subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "Subsidiary" or a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
5.18 Hazardous Substances.
Except as disclosed on Schedule 5.18 or except as would not reasonably
be expected to have a Material Adverse Effect, to the knowledge of any
Responsible Officer of such Credit Party, the real property owned or leased by
such Credit Party and its Subsidiaries or on which it or its Subsidiaries
operates (the "Subject Property") (i) is free from "hazardous substances" as
defined in the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. xx.xx. 9601 et seq., as amended, and the regulations
promulgated thereunder; (ii) no portion of the Subject Property is subject to
federal, state or local regulation or liability because of the presence of
stored, leaked or spilled petroleum products, waste materials or debris, "PCB's"
or PCB items (as defined in 40 C.F.R. ss.763.3), underground storage tanks,
"asbestos" (as defined in 40 C.F.R. ss.763.63) or the past or present
accumulation, spillage or leakage of any such substance; (iii) such Credit Party
45
and its Subsidiaries are in substantial compliance with all federal, state and
local requirements relating to protection of health or the environment in
connection with the operation of their businesses; and (iv) no Responsible
Officer of such Credit Party knows of any complaint or investigation regarding
real property which it or any other Credit Party owns or leases or on which it
or any other Credit Party operates.
5.19 Patents, Franchises, etc.
Such Credit Party possesses all material patents, trademarks, service
marks, trade names, copyrights, licenses and other rights, free from burdensome
restrictions, that are reasonably necessary for the operation of its business as
presently conducted and as proposed to be conducted. Such Credit Party has
obtained all material licenses, permits, franchises or other governmental
authorizations necessary to the ownership of its respective property and to the
conduct of its business except as would not reasonably be expected to have a
Material Adverse Effect.
5.20 Solvency.
Such Credit Party and each of its Restricted Subsidiaries, both
collectively and individually, is and, after consummation of this Credit
Agreement and after giving effect to all Indebtedness incurred hereunder, will
be, solvent.
5.21 Investments.
All investments of such Credit Party are Permitted Investments.
SECTION 6
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans, together with interest, fees
and other obligations hereunder, have been paid in full and the Commitments
hereunder shall have terminated:
6.01 Information Covenants.
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent and each Bank:
(a) Annual Financial Statements. As soon as available and in any event
within 90 days after the close of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such fiscal year together with related consolidated statements of income and
retained earnings and of cash flows for such fiscal year, setting forth in
comparative form consolidated figures for the preceding fiscal year, all in
reasonable detail and examined by KPMG Peat Marwick, or other independent
certified public accountants of recognized national standing reasonably
46
acceptable to the Required Banks and whose opinion shall be to the effect that
such consolidated financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis (except
for changes with which such accountants concur). It is specifically understood
and agreed that failure of the annual financial statements to be accompanied by
an opinion and certificate of such accountants in form and substance as provided
herein shall constitute a Default hereunder.
(b) Quarterly Financial Statements. As soon as available and in any
event within 45 days after the end of each of the first three fiscal quarters of
the Borrower, a consolidated and consolidating balance sheet of the Borrower and
its Subsidiaries, and consolidated and consolidating statements of income and
retained earnings and a consolidated statement of cash flows for the Borrower
and its Subsidiaries, each for such quarterly period and for the portion of the
fiscal year ending with such period (except in the case of consolidated
statements of cash flow, in which case such statements shall be prepared on a
year to date basis), in each case setting forth in comparative form consolidated
figures for the corresponding period of the preceding fiscal year (except that
the balance sheet shall be compared to that at prior year end), all in
reasonable form and detail acceptable to the Required Banks, and accompanied by
a certificate of the chief financial officer, treasurer, controller or chief
accounting officer of the Borrower, to the best of his knowledge and belief, as
being true and correct in all material respects, in the case of consolidated
statements, and as having been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, subject to changes
resulting from normal year-end audit adjustments. As used in this Section
6.01(b), the term "consolidating" shall be deemed to include Xxxxx & Minor
Medical, Inc. and Stuart Medical, Inc. only. All consolidating statements
delivered under this Section 6.01(b) shall be prepared based on the Borrower's
internal practices consistently applied and may not be in strict conformity with
generally accepted accounting principles.
(c) Borrowing Base Certificates. As soon as practicable and in any
event within 15 days after the end of each fiscal quarter of the Borrower, a
statement of the Borrowing Base and its components as of the end of the
immediately preceding fiscal quarter, substantially in the form of Schedule
6.01(c) hereto, certified by the chief financial officer, treasurer, controller
or chief accounting officer of the Borrower as being, to the best of his
knowledge and belief, true and correct in all material respects as of such date.
(d) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 6.01(a) and (b) hereof, a certificate of the
chief financial officer, treasurer, controller or chief accounting officer of
the Borrower substantially in the form of Schedule 6.01(d) to the effect that no
Default or Event of Default exists, or if any Default or Event of Default does
exist specifying the nature and extent thereof and what action the Borrower
proposes to take with respect thereto. In addition, the Officer's Certificate
shall demonstrate compliance of the financial covenants contained in Section
6.11 by calculation thereof as of the end of each such fiscal period.
47
(e) Accountant's Certificate. Within the period for delivery of the
annual financial statements provided in Section 6.01(a), a certificate of the
accountants conducting the annual audit stating that they have reviewed this
Credit Agreement and stating further whether, in the course of their audit, they
have become aware of any Default or Event of Default arising as a result of a
violation of the financial covenants contained in Section 6.11 of this Credit
Agreement and, if any such Default or Event of Default exists, specifying the
nature and extent thereof.
(f) SEC and Other Reports. Promptly upon transmission thereof, copies
of any filings and registrations with, and reports to, (i) the Securities and
Exchange Commission, or any successor agency, by the Borrower or any of its
Subsidiaries, and copies of all financial statements, proxy statements, notices
and reports as the Borrower or its Subsidiaries shall send to its shareholders
or to the holders of any other Indebtedness (including specifically without
limitation, any Subordinated Debt) in their capacity as such holders and (ii)
the United States Environmental Protection Agency, or any state or local agency
responsible for environmental matters, the United States Occupational Health and
Safety Administration, or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities concerning
environmental, health or safety matters.
(g) Other Information. With reasonable promptness upon any such
request, such other information regarding the business, properties or financial
condition of the Borrower and its Subsidiaries as the Administrative Agent or
the Required Banks may reasonably request.
(h) Notice of Default or Litigation. Upon any Responsible Officer of a
Credit Party obtaining knowledge thereof, such Credit Party will give written
notice to the Administrative Agent (i) immediately, but in any event within 3
Business Days, of the occurrence of an event or condition consisting of a
Default or Event of Default, specifying the nature and existence thereof and
what action the Borrower proposes to take with respect thereto, and (ii)
promptly, but in any event within 5 Business Days, of the occurrence of any of
the following with respect to any member of the Consolidated Borrower Group: (A)
the pendency or commencement of any litigation, arbitral or governmental
proceeding against any member of the Consolidated Borrower Group which if
adversely determined is likely to have a Material Adverse Effect, (B) any levy
of an attachment, execution or other process against its assets having a value
of $500,000 or more, (C) the occurrence of an event or condition which shall
constitute a default or event of default under any Indebtedness of any member of
the Consolidated Borrower Group which, if accelerated as a result of such event
of default would have a Material Adverse Effect, (D) any development in its
business or affairs which has resulted in, or which any Credit Party reasonably
believes may result in, a Material Adverse Effect, or (E) the institution of any
proceedings against any member of the Consolidated Borrower Group with respect
to, or the receipt of notice by a Responsible Officer of such Person of
potential liability or responsibility for violation, or alleged violation of any
federal, state or local law, rule or regulation, including but not limited to,
regulations promulgated under the Resource Conservation and Recovery Act of
48
1976, 42 U.S.C. xx.xx. 6901 et seq., regulating the generation, handling or
disposal of any toxic or hazardous waste or substance or the release into the
environment or storage of any toxic or hazardous waste or substance, the
violation of which would likely have a Material Adverse Effect, or (F) any
notice or determination concerning the imposition of any withdrawal liability by
a multiemployer Plan against any member of the Consolidated Borrower Group or
any of its ERISA Affiliates, the determination that a multiemployer Plan is, or
is expected to be, in reorganization within the meaning of Title IV or ERISA,
the termination of any Plan, and the amount of liability incurred or which may
be incurred in connection with any such event.
6.02 Preservation of Existence and Franchises.
Except as otherwise permitted under Section 7.05, each member of the
Consolidated Borrower Group will do all things necessary in any material respect
to preserve and keep in full force and effect its existence, rights, franchises
and authority for the normal conduct of its business.
6.03 Books, Records and Inspections.
Each member of the Consolidated Borrower Group will keep complete and
accurate books and records of its transactions in accordance with good
accounting practices on the basis of generally accepted accounting principles
applied on a consistent basis (including the establishment and maintenance of
appropriate reserves). Each member of the Consolidated Borrower Group will
permit on reasonable notice and, prior to the occurrence or during the
continuance of an Event of Default, during normal business hours, officers or
designated representatives of Administrative Agent or any Bank to visit and
inspect its books of account and records and any of its properties or assets (in
whomever's possession) and to discuss the affairs, finances and accounts of such
member of the Consolidated Borrower Group with, and be advised as to the same
by, its and their officers, directors and independent accountants.
6.04 Compliance with Law.
Each member of the Consolidated Borrower Group will comply with all
applicable laws, rules, regulations and orders of, and all applicable
restrictions imposed by all applicable Governmental Authorities applicable to it
and its property (including applicable statutes, regulations, orders and
restrictions relating to environmental standards and controls) if noncompliance
with any such law, rule, regulation or restriction would have a Material Adverse
Effect.
6.05 Payment of Taxes and Other Indebtedness.
Each member of the Consolidated Borrower Group will pay and discharge
(i) all material taxes, assessments and governmental charges or levies imposed
upon it, or upon its income or profits, or upon any of its properties, before
they shall become delinquent, (ii) all lawful claims (including claims for
labor, materials and supplies) which, if unpaid, might give rise to a Lien or
charge upon any of its properties, and (iii) except as prohibited hereunder, all
49
of its other Indebtedness as it shall become due; provided, however, that
members of the Consolidated Borrower Group shall not be required to pay any such
tax, assessment, charge, levy, claim or Indebtedness which is being contested in
good faith by appropriate proceedings and as to which adequate reserves therefor
have been established in accordance with generally accepted accounting
principles, unless the failure to make any such payment (a) shall give rise to
an immediate right to foreclosure on a Lien securing such amounts or (b)
otherwise would have a Material Adverse Effect.
6.06 Insurance.
Each member of the Consolidated Borrower Group will at all times
maintain in full force and effect insurance (including worker's compensation
insurance, liability insurance, casualty insurance and business interruption
insurance) in such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in accordance with normal
industry practice unless higher limits or other types of coverage are required
by the terms of the other Credit Documents or are otherwise reasonably required
by the Required Banks. The present coverage of the members of the Consolidated
Borrower Group is outlined as to carrier, policy number, expiration date, type
and amount on Schedule 6.06 hereto and is acceptable to the Banks as of the
Closing Date.
6.07 Maintenance of Property.
Each member of the Consolidated Borrower Group will maintain and
preserve its properties and equipment used or useful in any material portion of
its business (in whomsoever's possession as they may be) in good repair, working
order and condition, normal wear and tear, obsolescence and replacement
excepted, and will make, or cause to be made, in such properties and equipment
from time to time all repairs, renewals, replacements, extensions, additions,
betterments and improvements thereto as may be needed or proper, to the extent
and in the manner customary for companies in similar businesses.
6.08 Performance of Obligations.
Each member of the Consolidated Borrower Group will perform in all
material respects all of its obligations (including, except as may be otherwise
prohibited or contemplated hereunder, payment of Indebtedness in accordance with
its terms) under the terms of all material agreements, indentures, mortgages,
security agreements or other debt instruments to which it is a party or by which
it is bound if the failure to do so would have a Material Adverse Effect.
6.09 ERISA.
Each Credit Party and ERISA Affiliate will, (a) at all times, make
prompt payment of all contributions required under all employee pension benefit
plans (as defined in Section 3(2) of ERISA) ("Pension Plans") and required to
meet the minimum funding standard set forth in ERISA with respect to each Plan;
(b) promptly upon request, furnish the Administrative Agent and the Banks copies
of each annual report/return (Form 5500 Series), as well as all schedules and
50
attachments required to be filed with the Department of Labor and/or the
Internal Revenue Service pursuant to ERISA, and the regulations promulgated
thereunder, in connection with each of its Pension Plans for each Plan Year; (c)
notify the Administrative Agent immediately of any fact, including, but not
limited to, any Reportable Event (as defined in ERISA) arising in connection
with any Plan, which might constitute grounds for termination thereof by the
PBGC or for the appointment by the appropriate United States District Court of a
trustee to administer such Plan, together with a statement, if requested by the
Bank, as to the reason therefor and the action, if any, proposed to be taken
with respect thereof; and (d) furnish to the Administrative Agent, upon its
request, such additional information concerning any of the Pension Plans as may
be reasonably requested. The Borrower will not, nor will it permit any of its
Subsidiaries or ERISA Affiliates to (I) terminate a Plan if any such termination
would have a Material Adverse Effect, or (II) cause or permit to exist any
Reportable Event (as defined in ERISA) or other event or condition which
presents a material risk of termination at the request of the PBGC.
6.10 Use of Proceeds.
The proceeds of the Loans hereunder shall be used for the purpose of
(i) refinancing and replacing the existing credit facility extended to Xxxxx &
Minor, Inc. by NationsBank and the other lenders and other existing bank
indebtedness, (ii) general working capital purposes, (iii) capital expenditures
and (v) other general corporate purposes.
6.11 Financial Covenants.
(a) Consolidated Current Ratio. The Borrower will maintain a
Consolidated Current Ratio, as determined on each Determination Date, of at
least 1.4 to 1.0.
(b) Consolidated Tangible Net Worth. The Borrower will maintain
Consolidated Tangible Net Worth, as determined on each Determination Date, of
not less than $53,500,000; provided, however, the minimum Consolidated Tangible
Net Worth required hereunder shall be increased on the last day of each of the
Borrower's fiscal quarters to occur after March 31, 1996, by an amount equal to
50% of Consolidated Net Income for the fiscal quarter then ended (or if
Consolidated Net Income for such period is a deficit figure, then zero).
(c) Leverage Ratio. As of each Determination Date during the periods
set out below, the Leverage Ratio will not exceed:
Leverage Ratio
--------------
For the fiscal quarter ending
on June 30, 1996 through and
including the fiscal quarter
ending on March 31, 1998 .65 to 1.0
For the fiscal quarter ending
on June 30, 1998 and thereafter .60 to 1.0
51
(d) Fixed Charge Coverage Ratio. As of each Determination Date for
the Applicable Period set forth below, the Fixed Charge Coverage Ratio will not
be less than:
Fixed Charge
Coverage Ratio
--------------
For the fiscal quarter ending
on June 30, 1997 1.1 to 1.0
For the fiscal quarter ending
on September 30, 1997 through
and including the fiscal quarter
ending on December 31, 1997 1.2 to 1.0
For the fiscal quarter ending
on March 31, 1998 through and
including the fiscal quarter
ending on December 31, 1998 1.3 to 1.0
For the fiscal quarter ending on
March 31, 1999 and thereafter 1.5 to 1.0
The Applicable Period for which the Fixed Charge Coverage Ratio shall be
determined shall be for the period of four consecutive fiscal quarters ending as
of the Determination Date, except that determination of current maturities of
Funded Debt and current maturities of Capitalized Leases under subsection (iii)
of the definition of Consolidated Fixed Charges shall be as of the applicable
Determination Date.
6.12 Additional Credit Parties.
(a) Additional Subsidiaries. Where the Subsidiaries (other than a
Securitization Subsidiary) which are not Guarantors hereunder (the
"Non-Guarantor Subsidiaries") shall, as a group, at any time constitute more
than either (i) 5% of the consolidated gross revenues for the Borrower and its
Subsidiaries, (ii) 5% of consolidated net income for the Borrower and its
Subsidiaries, or (iii) 5% of consolidated assets for the Borrower and its
Subsidiaries (collectively, the "Threshold Requirement"), the Borrower will
promptly notify the Administrative Agent thereof, and promptly cause one or more
of the Non-Guarantor Subsidiaries (other than a Securitization Subsidiary) to
become a "Guarantor" hereunder by way of execution of a Joinder Agreement, such
that immediately after the joinder of such Subsidiaries as Guarantors hereunder,
the remaining Non-Guarantor Subsidiaries shall not, as a group, exceed the
Threshold Requirement. The Borrower may at any time, at its option, cause a
Non-Guarantor Subsidiary to sign a Joinder Agreement at which time such
Subsidiary shall become a Guarantor and a Credit Party under this Credit
Agreement.
(b) Guaranties Relating to Other Debt. Where a Non-Guarantor Subsidiary
shall give a guaranty or become obligated under Guaranty Obligations relating to
other Indebtedness (including specifically without limitation, the Senior
Subordinated Notes), the Borrower will promptly notify the Administrative Agent
52
thereof, and promptly cause such Non-Guarantor Subsidiary to become a
"Guarantor" hereunder by way of execution of a Joinder Agreement.
SECTION 7
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans, together with interest, fees
and other obligations hereunder, have been paid in full and the Commitments
hereunder shall have terminated:
7.01 Indebtedness.
Neither the Borrower nor any of its Restricted Subsidiaries will
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the
other Credit Documents;
(b) Indebtedness existing as of the Closing Date as referenced
in Section 5.09 (and renewals, refinancings or extensions thereof on
terms and conditions no more favorable to such Person than such
existing Indebtedness (taking into account reasonable market conditions
existing at such time) and in a principal amount not in excess of that
outstanding as of the date of such renewal, refinancing or extension);
(c) Indebtedness in respect of current accounts payable or
accrued (other than for borrowed money or purchase money obligations)
and incurred in the ordinary course of business, provided, that all
such liabilities, accounts and claims shall be paid when due (or in
conformity with customary trade terms);
(d) Purchase money Indebtedness and capital lease obligations
relating to Capitalized Leases incurred to finance the purchase or
lease of fixed assets provided that (i) the total of all such
Indebtedness and obligations shall not exceed an aggregate principal
amount of $10,000,000 at any one time outstanding; (ii) such
Indebtedness and obligations when incurred shall not exceed the
purchase price of the asset financed; and (iii) no such Indebtedness
and obligations shall be refinanced for a principal amount in excess of
the principal balance outstanding thereon at the time of such
refinancing; and
(e) (i) Indebtedness evidenced by the Senior Subordinated
Notes and (ii) other Subordinated Debt acceptable to the Required
Lenders in their sole discretion;
(f) Indebtedness and obligations relating to Qualified
Securitization Transactions, provided that the aggregate principal
amount outstanding pursuant to all facilities under such Qualified
Securitization Transactions shall not exceed $150,000,000 at any time;
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(g) Unsecured intercompany Indebtedness among the Credit
Parties;
(h) Other short term unsecured indebtedness for borrowed money
(including Guaranty Obligations) by the Borrower which does not exceed
$10,000,000 in the aggregate at any time outstanding; and
(i) Obligations under or arising in connection with Interest
Rate Protection Agreements entered into in order to manage existing or
anticipated interest rate risks and not for speculative purposes and
relating to Indebtedness otherwise permitted under this Section 7.01.
7.02 Liens.
Neither the Borrower nor any of its Restricted Subsidiaries will
contract, create, incur, assume or permit to exist any Lien with respect to any
of its property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or after acquired, except for Permitted Liens.
7.03 Guaranty Obligations.
Neither the Borrower nor any of its Restricted Subsidiaries will enter
into or otherwise become or be liable in respect of any Guaranty Obligations
(excluding specifically therefrom endorsements in the ordinary course of
business of negotiable instruments for deposit or collection) other than (i)
those in favor of the Banks in connection herewith, (ii) guaranty of
indebtedness of account debtors of the Credit Parties relating to the financing
or refinancing of trade receivables owing to the Credit Parties in an aggregate
amount not to exceed $1,000,000, (iii) guaranty by the Credit Parties in respect
of the Indebtedness evidenced by the Senior Subordinated Notes and in respect of
Obligations under or arising in connection with Interest Rate Protection
Agreements permitted hereunder, (iv) guaranty by a Credit Party of operating
lease obligations of another Credit Party entered into in the ordinary course of
business, and (v) other Guaranty Obligations to the extent permitted pursuant to
Section 7.01.
7.04 Nature of Business.
Neither the Borrower nor any of its Restricted Subsidiaries will
substantively alter the character of its business in any material respect from
that conducted as of the Closing Date.
7.05 Consolidation, Merger, Sale or Purchase of Assets, etc.
Neither the Borrower nor any of its Restricted Subsidiaries will
(a) dissolve, liquidate, or wind up its affairs, sell,
transfer, lease or otherwise dispose of all or any substantial part of
its property or assets (other than in the ordinary course of business
for fair consideration), or agree to any of the foregoing at a future
time, except for (i) the sale or disposition of machinery and equipment
no longer useful in the conduct of its business, (ii) sales, transfers
or other dispositions of property where the proceeds of such sale,
54
transfer or other disposition are reinvested within 90 days in property
of the Borrower or a Restricted Subsidiary of substantially equal value
and (iii) the sale of Receivables and Receivables Related Assets
pursuant to the terms of a Qualified Receivables Transaction permitted
hereunder. As used herein, "substantial part" shall mean if the book
value of such assets, when added to the book value of all other assets
sold, leased or otherwise disposed of by the Borrower and its
Restricted Subsidiaries (other than in the ordinary course of business)
during the period beginning on the date of this Credit Agreement and
ending on the date of such sale, lease or other disposition, exceeds at
any time an amount equal to 5% of Consolidated Total Assets determined
as of the end of the immediately preceding fiscal year; or
(b) purchase, lease or otherwise acquire (in a single
transaction or a series of related transactions) all or any substantial
part of the property or assets of any Person (other than purchases or
other acquisitions of inventory, leases, materials, property and
equipment in the ordinary course of business, except as otherwise
limited or prohibited herein), or enter into any transaction of merger
or consolidation, or agree to do any of the foregoing at a future time,
except for (i) Capital Expenditures to the extent of the limitations
set out in Section 6.11(d) by way of inclusion of Capital Expenditures
in the definition of "Consolidated Net Income Available for Fixed
Charges" as used therein, (ii) investments, acquisitions and transfers
or dispositions of properties permitted pursuant to Section 7.06, (iii)
the merger or consolidation of a Restricted Subsidiary into, or a sale,
transfer or lease of all or a substantial part of its properties (at
fair value) to, a Credit Party, (iv) the sale of Receivables and
Receivables Related Assets pursuant to the terms of a Qualified
Securitization Transaction permitted hereunder, and (v) the merger of
any Person into a Credit Party, provided that the Credit Party shall be
the surviving corporation, and management and control of the Credit
Party shall remain substantially unchanged and no Default or Event of
Default shall exist either immediately prior to or after giving effect
to such merger. Notwithstanding the foregoing, other than Capital
Expenditures permitted pursuant to Section 6.11(d) by way of inclusion
of Capital Expenditures in the definition of "Consolidated Net Income
Available for Fixed Charges" as used therein, investments pursuant to
Section 7.06, in the case of an acquisition by the Borrower or its
Restricted Subsidiaries, whether by way of asset purchase, stock or
securities purchase or merger or consolidation, the aggregate
consideration paid in connection with such acquisitions whether in
cash, securities, property or other consideration, shall not exceed 20%
of Consolidated Tangible Net Worth in any fiscal year. The Borrower
will, in connection with any such material purchase, lease or
acquisition and prior to giving effect thereto, deliver to the
Administrative Agent a pro forma statement demonstrating compliance
with the provisions hereof.
7.06 Advances, Investments and Loans.
Neither the Borrower nor any of its Restricted Subsidiaries will lend
money or credit or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to any Person except for Permitted Investments.
55
7.07 Prepayments and Amendments Relating to Other Debt.
The Borrower will not, without the prior written consent of the
Required Banks, nor will it permit any of its Restricted Subsidiaries to,
(a) after the issuance thereof, amend or modify, or permit any
amendment to or modification of, any of the terms of any Subordinated Debt
(including specifically without limitation, the Indebtedness evidenced by the
Senior Subordinated Notes) or any other senior Funded Debt, if reasonably
adverse to the Banks and their interests hereunder;
(b) make, or give any notice with respect thereto, any voluntary or
optional payment, prepayment, redemption, defeasance or acquisition for value of
(including by way of deposit of money or securities with a trustee with respect
thereto before due for the purpose of paying when due) or exchange of any other
Indebtedness for borrowed money, other than prepayments in respect of capital
lease obligations relating to Capital Leases not to exceed $10,000,000 in the
aggregate in any fiscal year;
(c) make any payment, prepayment, redemption, defeasance or acquisition
for value (including without limitation by way of deposit of money or securities
with a trustee with respect thereto before due for the purpose of paying when
due), or refund, refinance or exchange of any Subordinated Debt other than (i)
regularly scheduled non-default principal payments and regularly scheduled
non-default semiannual interest payments on the Senior Subordinated Notes and
(ii) so long as
(A) no Default or Event of Default shall exist either
immediately prior to or immediately after giving effect
thereto, and
(B) the Borrower shall have demonstrated compliance
with the financial covenants set out in Section 6.11 on a Pro
Forma Basis after giving effect thereto,
prepayments and redemption in respect of the Senior Subordinated Notes, provided
that the aggregate amount of all such prepayments and redemptions shall not
exceed $25,000,000 in any calendar year.
7.08 Transactions with Affiliates.
Other than transactions relating to a Qualified Securitization
Transaction, no member of the Consolidated Borrower Group will enter into any
transaction or series of transactions, whether or not in the ordinary course of
business, with any officer, director, shareholder, Subsidiary or Affiliate other
than on terms and conditions substantially as favorable as would be obtainable
in a comparable arm's-length transaction with a Person other than an Affiliate.
56
7.09 Ownership of Subsidiaries.
Neither the Borrower nor any of its Restricted Subsidiaries will sell,
transfer or otherwise dispose of, any shares of capital stock of any
Subsidiaries or permit any Subsidiaries to issue, sell or otherwise dispose of,
any shares of capital stock of any Subsidiary to any Person other than a
Subsidiary. The Borrower will not create, form or acquire, nor will it permit
any of its Subsidiaries to create, form or acquire, any Subsidiary, unless such
Subsidiary is either (i) promptly joined as an Additional Credit Party pursuant
to the requirements of Section 6.12, if such joinder is required thereby or (ii)
a Securitization Subsidiary.
7.10 Fiscal Year.
Neither the Borrower nor any of its Restricted Subsidiaries will change
its fiscal year.
7.11 Subsidiary Dividends.
Neither the Borrower nor any of the other Credit Parties will enter
into, assume or otherwise become subject to, or permit any of their respective
Subsidiaries (other than a Securitization Subsidiary pursuant to a Qualified
Securitization Transaction permitted hereunder) to enter into, assume or
otherwise become subject to, any agreement prohibiting or otherwise restricting
the payment of dividends by any of the Borrower's Subsidiaries (other than a
Securitization Subsidiary pursuant to a Qualified Securitization Transaction
permitted hereunder), except as may be provided herein or in the indenture
relating to the Senior Subordinated Notes.
7.12 Dividends.
The Borrower will not make or pay, nor will it permit any non-wholly
owned Subsidiary to make or pay, any Dividend, unless (i) no Default or Event of
Default shall exist either immediately prior to or immediately after giving
effect thereto, and (ii) the Borrower shall have demonstrated compliance with
the financial covenants set out in Section 6.11 on a Pro Forma Basis after
giving effect thereto.
7.13 Securitization Transaction.
As part of the refinancing contemplated by this Credit Agreement, the
Borrower and two of its Restricted Subsidiaries are entering into a Qualified
Securitization Transaction pursuant to the Securitization Agreements. The
execution and delivery of the Securitization Agreement and the performance by
the Borrower and its Subsidiaries of their obligations under the Securitization
Agreements and any related agreements shall not constitute a default under this
Credit Agreement; provided, however, that any default which shall occur with
respect to the Securitization Agreements resulting from any action or inaction
by any of the Borrower or its Restricted Subsidiaries shall constitute an Event
of Default hereunder.
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SECTION 8
EVENTS OF DEFAULT
8.01 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of
any principal of any of the Loans, or
(ii) default, and such default shall
continue for three (3) or more days, in the payment when due
of any interest on the Loans, or of any fees or other amounts
owing hereunder, under any of the other Credit Documents or in
connection herewith; or
(b) Representations. Any representation, warranty or statement made or
deemed to be made by any Credit Party herein, in any of the other Credit
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material respect
on the date as of which it was made or deemed to have been made; or
(c) Covenants. Any Credit Party shall
(i) default in the due performance or
observance of any term, covenant or agreement contained in
Sections 6.01(h), 6.02, 6.10 or 7.01 through 7.11, inclusive,
or
(ii) default in the due performance or
observance of any of the financial covenants contained in
Section 6.11 and the continuance thereof for a period of 15
days after knowledge thereof by a Responsible Officer (but in
no event later than 15 days after the date by which the
Borrower is required to deliver annual or quarterly financial
statements in accordance with Sections 6.01(a) and (b), as
appropriate) without the Borrower having obtained an effective
waiver hereunder; or
(iii) default in the due performance or
observance by it of any term, covenant or agreement (other
than those referred to in subsections (a), (b) or (c)(i) or
(ii) of this Section 8.01) contained in this Credit Agreement
and such default shall continue unremedied for a period of at
least 30 days after the earlier of a Responsible Officer
becoming aware of such default or notice thereof by the
Administrative Agent; provided, however, that if such default
cannot be cured within such period, the Borrower or other
Credit Party may have such additional period of time not to
exceed 30 days after the expiration of such original 30 day
period, and such default shall not constitute an Event of
Default hereunder, so long as the applicable Credit Party
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shall commence within such original 30 day period, and
diligently pursue, appropriate curative efforts; or
(d) Other Credit Documents. (i) Any Credit Party shall default in the
due performance or observance of any term, covenant or agreement in any of the
other Credit Documents (subject to applicable grace or cure periods, if any), or
(ii) any Credit Document shall fail to be in full force and effect or to give
the Administrative Agent and/or the Banks the liens, rights, powers and
privileges purported to be created thereby; or
(e) Guaranties. The guaranty given by the Credit Parties hereunder or
by any Additional Credit Party hereafter or any material provision thereof shall
cease to be in full force and effect, or any Guarantor thereunder or any Person
acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under such guaranty, or any Guarantor shall default in
the due performance or observance of any term, covenant or agreement on its part
to be performed or observed pursuant to any guaranty; or
(f) Bankruptcy, etc. The Borrower or any Restricted Subsidiary shall
commence a voluntary case concerning itself under the Bankruptcy Code; or an
involuntary case is commenced against the Borrower or any Restricted Subsidiary
under the Bankruptcy Code and the petition is not dismissed within 90 days after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of all or substantially all of the property of
the Borrower or any Restricted Subsidiary; or the Borrower or any Restricted
Subsidiary commences any other proceeding under any reorganization, arrangement,
adjustment of the debt, relief of creditors, dissolution, insolvency or similar
law of any jurisdiction whether now or hereafter in effect relating to the
Borrower or any Restricted Subsidiary; or there is commenced against the
Borrower or any Restricted Subsidiary any such proceeding which remains
undismissed for a period of 90 days; or the Borrower or any Restricted
Subsidiary is adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or the Borrower or any
Restricted Subsidiary suffers appointment of any custodian or the like for it or
for any substantial part of its property to continue unchanged or unstayed for a
period of 90 days; or the Borrower or any Restricted Subsidiary makes a general
assignment for the benefit of creditors; or any corporate action is taken by the
Borrower or any Restricted Subsidiary for the purpose of effecting any of the
foregoing; or
(g) Defaults under Other Agreements. With respect to any Indebtedness
(other than Indebtedness outstanding under this Credit Agreement) in excess of
$10,000,000 in the aggregate for the Borrower and its Restricted Subsidiaries,
(i) the Borrower or any of its Restricted Subsidiaries shall (A) default in any
payment (beyond the applicable grace period with respect thereto, if any) with
respect to any such Indebtedness, or (B) default in the observance or
performance relating to such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default or other
59
event or condition is to cause, or permit, the holder or holders of such
Indebtedness (or trustee or agent on behalf of such holders) to cause, any such
Indebtedness to become due prior to its stated maturity; or (ii) any such
Indebtedness shall be declared due and payable, or required to be prepaid other
than by a regularly scheduled required prepayment, prior to the stated maturity
thereof; or
(h) Judgments. One or more judgments or decrees shall be entered
against the Borrower or any Restricted Subsidiary involving a liability of
$500,000 or more in the aggregate (to the extent not paid or fully covered by
insurance provided by a carrier who has acknowledged coverage) and any such
judgments or decrees shall not have been vacated, discharged or stayed or bonded
pending appeal within 30 days from the entry thereof; or
(i) ERISA. (i) Any Credit Party or any member of the Controlled Group
shall fail to pay when due an amount or amounts aggregating in excess of
$500,000 which it shall have become liable to pay under Title IV of ERISA; or
notice of intent to terminate a Plan or Plans which in the aggregate have
unfunded liabilities in excess of $500,000 (individually and collectively, a
"Material Plan") shall be filed under Title IV of ERISA by any such member of
the Consolidated Borrower Group or any member of the Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the Controlled Group to incur a current
payment obligation in excess of $500,000; or
(j) Ownership. There shall occur a Change of Control; or
(k) Default under Senior Subordinated Notes. The occurrence of an
event of default under the Senior Subordinated Notes; or
(l) Default under Securitization Agreement. The occurrence of an event
of default under any of the Securitization Agreements.
8.02 Acceleration; Remedies.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Required Banks or
cured to the satisfaction of the Required Banks (pursuant to the voting
procedures in Section 10.06), the Administrative Agent may, and upon the request
and direction of the Required Banks, shall, by written notice to the Borrower
take any of the following actions without prejudice to the rights of the
Administrative Agent or any Bank to enforce its claims against the Credit
Parties, except as otherwise specifically provided for herein:
60
(i) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(ii) Acceleration of Loans. Declare the unpaid principal of
and any accrued interest in respect of all Loans and any and all other
indebtedness or obligations of any and every kind owing by the Borrower
to any of the Banks hereunder to be due whereupon the same shall be
immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the
Borrower.
(iii) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents and all
rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
8.01(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid Fees and
other indebtedness or obligations owing to the Banks hereunder shall immediately
become due and payable without the giving of any notice or other action by the
Administrative Agent or the Banks.
SECTION 9
AGENCY PROVISIONS
9.01 Appointment.
Each Bank hereby designates and appoints NationsBank, N.A. as agent (in
such capacity as Agent hereunder, the "Agent"), Bank of America NT & SA and
Crestar Bank as co-agents (in such capacity as Co-Agent hereunder, the
"Co-Agents") and NationsBank, N.A. as administrative agent (in such capacity as
Administrative Agent hereunder, the "Administrative Agent") of such Bank to act
as specified herein and the other Credit Documents, and each such Bank hereby
authorizes the Agent, the Administrative Agent and the Co-Agents, respectively,
as the agent for such Bank, to take such action on its behalf under the
provisions of this Credit Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated by the
terms hereof and of the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere herein and in the other Credit Documents, neither the Agent,
the Co-Agents nor the Administrative Agent shall have any duties or
responsibilities, except those expressly set forth herein and therein, or any
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any of the other Credit Documents, or shall otherwise exist
against the Agents. To the extent that the provisions of this Section relate to
intercreditor or other issues as between and among the Agents and the Banks,
they are solely for the benefit of the Agents and the Banks and none of the
Credit Parties shall have any rights as a third party beneficiary of the
provisions hereof. In performing its functions and duties under this Credit
Agreement and the other Credit Documents, the Agent, the Administrative Agent
61
and the Co-Agents shall act solely as agents of the Banks and do not assume and
shall not be deemed to have assumed any obligation or relationship of agency or
trust with or for the Borrower or any other Credit Party.
9.02 Delegation of Duties.
The Agents may execute any of their respective duties hereunder or
under the other Credit Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agents shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
9.03 Exculpatory Provisions.
Neither the Agent, the Co-Agents nor the Administrative Agent nor any
of their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection herewith or in connection with
any of the other Credit Documents (except for its or such Person's own gross
negligence or willful misconduct), or (ii) responsible in any manner to any of
the Banks for any recitals, statements, representations or warranties made by
any of the Credit Parties contained herein or in any of the other Credit
Documents or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection herewith or in connection with the other Credit Documents, or
enforceability or sufficiency hereof or of any of the other Credit Documents, or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. Neither the Agent, the Co-Agents nor the Administrative Agent shall
be responsible to any Bank for the effectiveness, genuineness, validity,
enforceability, collectability or sufficiency of this Credit Agreement, or any
of the other Credit Documents or for any representations, warranties, recitals
or statements made herein or therein or made by the Borrower or any Credit Party
in any written or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents in connection herewith
or therewith furnished or made by the Agent, the Co-Agents or the Administrative
Agent to the Banks or by or on behalf of the Credit Parties to the Agent, the
Co-Agents or the Administrative Agent or any Bank or be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained herein or therein or as to the use
of the proceeds of the Loans or of the existence or possible existence of any
Default or Event of Default or to inspect the properties, books or records of
the Credit Parties.
9.04 Reliance on Communications.
The Agent, the Co-Agents and the Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation reasonably believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to the Borrower or any of the other Credit Parties, independent accountants and
other experts selected by the Administrative Agent with reasonable care). The
Administrative Agent may deem and treat the Banks as the owner of their
62
respective interests hereunder for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent in accordance with Section 10.03(b) hereof. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Credit Agreement or under any of the other Credit Documents
unless it shall first receive such advice or concurrence of the Required Banks
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Banks against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or under any of the other Credit Documents in accordance with
a request of the Required Banks (or to the extent specifically provided in
Section 10.06, all the Banks) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Banks (including their
successors and assigns).
9.05 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Bank or a Credit Party referring
to the Credit Document, describing such Default or Event of Default and stating
that such notice is a "notice of default." In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Banks. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Banks.
9.06 Non-Reliance on Agents and Other Banks.
Each Bank expressly acknowledges that neither the Agent, the Co-Agents
nor the Administrative Agent nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any representations
or warranties to it and that no act by the Agent, the Co-Agents or the
Administrative Agent or any affiliate thereof hereinafter taken, including any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Agent, the Co-Agents or the Administrative
Agent to any Bank. Each Bank represents to the Agent, the Co-Agents and the
Administrative Agent that it has, independently and without reliance upon the
Agent, the Co-Agents or the Administrative Agent or any other Bank, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Borrower
and made its own decision to make its Loans hereunder and enter into this Credit
Agreement. Each Bank also represents that it will, independently and without
reliance upon the Agent, the Co-Agents or the Administrative Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business, assets,
operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Banks by the Administrative
63
Agent hereunder, neither the Agent, the Co-Agents nor the Administrative Agent
shall have any duty or responsibility to provide any Bank with any credit or
other information concerning the business, operations, assets, property,
financial or other conditions, prospects or creditworthiness of the Borrower
which may come into the possession of the Agent, the Co-Agents nor the
Administrative Agent or any of their respective officers, directors, employees,
agents, attorneys-in-fact or affiliates.
9.07 Indemnification.
The Banks agree to indemnify the Agent, the Co-Agents and the
Administrative Agent in their respective capacities as such (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), ratably according to their respective Commitments, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including without limitation at any time following the payment
of the Obligations) be imposed on, incurred by or asserted against the Agent,
the Co-Agents or the Administrative Agent in their respective capacities as such
in any way relating to or arising out of this Credit Agreement or the other
Credit Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Agent, the Co-Agents or the Administrative Agent under or in
connection with any of the foregoing; provided that no Bank shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or willful misconduct of the Agent, a Co-Agent or the
Administrative Agent. If any indemnity furnished to the Agent, the Co-Agents or
the Administrative Agent for any purpose shall, in the opinion of the Agent, the
Co-Agents or the Administrative Agent, be insufficient or become impaired, the
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished. The agreements in this Section shall survive the payment of the
Obligations and all other amounts payable hereunder and under the other Credit
Documents.
9.08 Agents in their Individual Capacity.
The Agent, the Co-Agents and the Administrative Agent and their
respective affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower or any other members of the
Consolidated Borrower Group as though the Agent, the Co-Agents or the
Administrative Agent were not the Agent, a Co-Agent or Administrative Agent
hereunder. With respect to the Loans made and all Obligations owing to it, the
Agent, the Co-Agent or the Administrative Agent shall have the same rights and
powers under this Credit Agreement as any Bank and may exercise the same as
though they were not the Agent, a Co-Agent or Administrative Agent, and the
terms "Bank" and "Banks" shall include the Agent, the Co-Agents and the
Administrative Agent in their individual capacity.
9.09 Successor Agent.
The Agent, the Administrative Agent and any Co-Agent may, at any time,
resign upon 30 days' written notice to the Banks and the Borrower, and be
64
removed with or without cause by the Required Banks upon 30 days' written notice
to the Borrower and the Agent, the Co-Agent or Administrative Agent. Upon any
such resignation or removal, the Required Banks, with the consent of the
Borrower (which consent shall not be unreasonably withheld or delayed), shall
have the right to appoint a successor Agent, Co-Agent or Administrative Agent.
If no successor Agent, Co-Agent or Administrative Agent shall have been so
appointed by the Required Banks, and shall have accepted such appointment,
within 30 days after the notice of resignation or notice of removal, as
appropriate, then the retiring Agent or Administrative Agent shall select a
successor Agent or Administrative Agent, with the consent of the Borrower (which
consent shall not be unreasonably withheld or delayed), provided such successor
is a Bank hereunder or a commercial bank organized under the laws of the United
States of America or of any State thereof and has a combined capital and surplus
of at least $400,000,000. There is no requirement for a successor Co-Agent to be
appointed. Upon the acceptance of any appointment as Agent, Co-Agent or
Administrative Agent hereunder by a successor, such successor Co-Agent or
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, Co-Agent or
Administrative Agent, and the retiring Agent, Co-Agent or Administrative Agent
shall be discharged from its duties and obligations as Agent, Co-Agent or
Administrative Agent, as appropriate, under this Credit Agreement and the other
Credit Documents and the provisions of this Section 9.09 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent,
Co-Agent or Administrative Agent under this Credit Agreement.
SECTION 10
MISCELLANEOUS
10.01 Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted via telecopy (or other facsimile device) to the
number set out below, (iii) the day following the day on which the same has been
delivered prepaid to a reputable national overnight air courier service, or (iv)
the third Business Day following the day on which the same is sent by certified
or registered mail, postage prepaid, in each case to the respective parties at
the address, in the case of the Borrower and the Administrative Agent, set forth
below, and in the case of the Banks, set forth on Schedule 2.01(a), or at such
other address as such party may specify by written notice to the other parties
hereto:
if to the Borrower or the Guarantors:
Xxxxx & Minor, Inc.
0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
65
if to the Agent, the Administrative Agent or the Swingline Lender:
NationsBank, N.A.
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
NationsBank, N.A.
NationsBank Healthcare Finance Group
0000 Xxxxxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
10.02 Right of Set-Off.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, the Borrower
agrees that upon the occurrence and during the continuance of an Event of
Default and the commencement of the remedies described in Section 8.02 hereof,
each Bank is authorized at any time and from time to time, without presentment,
demand, protest or other notice of any kind (all of which rights being hereby
expressly waived), to set-off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or owing by
such Bank (including, without limitation branches, agencies or Affiliates of
such Bank wherever located) to or for the credit or the account of the Borrower
against obligations and liabilities of the Borrower to such Bank hereunder,
under the Notes, the other Credit Documents or otherwise, irrespective of
whether such Bank shall have made any demand hereunder and although such
obligations, liabilities or claims, or any of them, may be contingent or
unmatured, and any such set-off shall be deemed to have been made immediately
upon the occurrence of an Event of Default even though such charge is made or
entered on the books of such Bank subsequent thereto. The Borrower hereby agrees
that any Person purchasing a participation in the Loans and Commitments
hereunder pursuant to Section 10.03(c) or Section 2.20. may exercise all rights
of set-off with respect to its participation interest as fully as if such Person
were a Bank hereunder. The Administrative Agent and the Banks agree to give
written notice to the appropriate Credit Party of any exercise of set-off,
bankers' lien or other similar right; provided, however, that any such notice
need not be given in advance of the exercise thereof.
10.03 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
66
the parties hereto; provided that the Borrower may not assign and transfer any
of its interests without prior written consent of the Banks; provided further
that the rights of each Bank to transfer, assign or grant participations in its
rights and/or obligations hereunder shall be limited as set forth in this
Section 10.03, provided however that nothing herein shall prevent or prohibit
any Bank from (i) pledging its Loans hereunder to a Federal Reserve Bank in
support of borrowings made by such Bank from such Federal Reserve Bank, or (ii)
granting assignments or participation in such Bank's Loans and/or Commitments
hereunder to its parent company and/or to any affiliate of such Bank which is at
least 50% owned by such Bank or its parent company.
(b) Assignments. Each Bank may with the prior written consent of the
Administrative Agent, and so long as no Event of Default then exists, the
Borrower, which consent shall not be unreasonably withheld or delayed, assign
all or a portion of its rights and obligations hereunder pursuant to an
assignment agreement (an "Assignment") substantially in the form of Schedule
10.03(b) to one or more Eligible Assignees, provided that (i) any such
prospective assignment shall first be offered to the other Banks on the same
terms and conditions as are available to the prospective assignee, (ii) so long
as no Event of Default shall then exist and be continuing, after a period of 15
days from first offering such assignment interest to the Banks as provided in
the foregoing subsection (i) hereof, the assigning Bank shall give notice to the
Borrower of any such prospective assignment and the Borrower may, at its own
expense with the assistance of the Administrative Agent, within a period of 30
days thereafter, make arrangements for another bank or financial institution
reasonably acceptable to the Administrative Agent to purchase and accept such
assignment interest (at par without payment of any fee, other than the $1,500
transfer fee to the Administrative Agent described below, on account thereof),
(iii) any such assignment shall be in a minimum aggregate amount of $10,000,000
of the Commitments and in integral multiples of $1,000,000 above such amount,
and (iv) each such assignment shall be of a constant not varying the percentage
of all of the assigning Bank's rights and obligations under this Credit
Agreement. The Administrative Agent shall maintain a copy of each Assignment and
the names and addresses of the Banks, and the Commitment of, and principal
amount of the Loans owing to, each Bank pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be conclusive in the
absence of manifest error and the Credit Parties, the Agents and the Banks may
treat each person whose name is recorded in the Register pursuant to the terms
hereof as a Bank hereunder for all purposes of this Credit Agreement. The
Register shall be available for inspection by the Borrower and any Bank, at any
reasonable time and from time to time upon reasonable prior notice. Any such
assignment hereunder shall be effective upon (i) the written consent of the
Borrower and the Administrative Agent as provided above, (ii) delivery to the
Administrative Agent of a copy of the Assignment together with a transfer fee of
$1,500 payable by the assigning Bank to the Administrative Agent for its own
account and (iii) the Administrative Agent's recordation of the name of the
assignee in the Register. The assigning Bank will give prompt notice to the
Administrative Agent and the Borrower of any Assignment. Upon the effectiveness
67
of any such assignment (and after notice to the Borrower as provided herein),
the assignee shall become a "Bank" for all purposes of this Credit Agreement and
the other Credit Documents and, to the extent of such assignment, the assigning
Bank shall be relieved of its obligations hereunder to the extent of the Loans
and Commitment components being assigned. Along such lines the Borrower agrees
that upon notice of any such assignment and surrender of the appropriate Note or
Notes, it will promptly provide to the assigning Bank and to the assignee
separate promissory notes in the amount of their respective interests
substantially in the form of the original Note (but with notation thereon that
it is given in substitution for and replacement of the original Note or any
replacement notes thereof). All surrendered Notes shall be canceled and returned
to the Borrower.
(c) Participations.
(i) Each Bank may sell, transfer, grant or assign participations in all
or any part of such Bank's interests and obligations hereunder; provided that
(i) such selling Bank shall remain a "Bank" for all purposes under this Credit
Agreement (such selling Bank's obligations under the Credit Documents remaining
unchanged) and the participant shall not constitute a Bank hereunder, (ii) no
such participant shall have, or be granted, rights to approve any amendment or
waiver relating to this Credit Agreement or the other Credit Documents except to
the extent any such amendment or waiver would (A) reduce the principal of or
rate of interest on or fees in respect of any Loans in which the participant is
participating, (B) postpone the date fixed for any payment of principal
(including extension of the Termination Date or the date of any mandatory
prepayment), interest or fees in which the participant is participating, or (C)
release all or substantially all of the collateral or guaranties (except as
expressly provided in the Credit Documents) supporting any of the Loans or
Commitments in which the participant is participating, (iii) sub-participations
by the participant (except to an affiliate, parent company or affiliate of a
parent company of the participant) shall be prohibited and (iv) any such
participations shall be in a minimum aggregate amount of $5,000,000 of the
Commitments and in integral multiples of $1,000,000 in excess thereof (except in
the case of Competitive Loans as to which there shall be no minimum amount). In
the case of any such participation, except as provided in Section 10.02, the
participant shall not have any rights under this Credit Agreement or the other
Credit Documents (the participant's rights against the selling Bank in respect
of such participation to be those set forth in the participation agreement with
such Bank creating such participation) and all amounts payable by the Borrower
hereunder shall be determined as if such Bank had not sold such participation.
(ii) Each prospective participant that is a Non-U.S. Person must submit
to the Borrower and the Administrative Agent on or before the effective date of
the related participation either: (A) two copies of either United States
Internal Revenue Service Form 1001 or Form 4224 (whichever is applicable) or (B)
in the case of a participant claiming an exemption from U.S. federal withholding
tax under Section 871(h) or 881(c) of the Code with respect to payments of
68
"portfolio interest", a Form W-8 (or any subsequent versions thereof or
successors thereto) and a certificate representing that such participant is not
a bank for purposes of Section 881(c)(3)(A) of the Code, is not a 10 percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower, and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code), in either case properly
completed and duly executed by such participant and entitling such participant
to receive a complete exemption from U.S. federal withholding tax with respect
to payments received pursuant to such participation. Each prospective
participant that is organized under the laws of the United States or any state
thereof or the District of Columbia shall deliver to the Borrower on or before
the date of the related participation an original copy of the Internal Revenue
Service Form W-9 (or applicable successor form) properly completed and duly
executed by such participant. Each participant also shall, from time to time,
submit to the Borrower and the Administrative Agent such additional duly
completed and signed copies of such forms (or such successor forms or other
documents as shall be adopted from time to time by the relevant United States
taxing authorities) as may be (i) reasonably requested in writing by the
Borrower or the Administrative Agent, (ii) appropriate under then current United
States laws or regulations, or (iii) required due to the obsolescence or
invalidity of any form previously delivered by such participant. Upon the
reasonable request of the Borrower or the Administrative Agent, each participant
that has not provided the forms or other documents, as provided above, on the
basis of being a United States person shall submit to the Borrower and the
Administrative Agent a certificate to the effect that it is such a "United
States person."
10.04 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any Bank
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any Guarantor and the
Administrative Agent or any Bank shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder or
under any other Credit Document preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Bank would otherwise
have. No notice to or demand on the Borrower in any case shall entitle the
Borrower or any Guarantor to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Administrative
Agent or the Banks to any other or further action in any circumstances without
notice or demand.
10.05 Payment of Expenses, etc.
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent in connection with the negotiation,
preparation, execution and delivery and administration of this Credit Agreement
and the other Credit Documents and the documents and instruments referred to
therein (including, without limitation, the reasonable fees and expenses of
00
Xxxxx & Xxx Xxxxx, XXXX, special counsel to the Administrative Agent) and any
amendment, waiver or consent relating hereto and thereto including, but not
limited to, any such amendments, waivers or consents resulting from or related
to any work-out, renegotiation or restructure relating to the performance by the
Borrower under this Credit Agreement and of the Administrative Agent and the
Banks in connection with enforcement of the Credit Documents and the documents
and instruments referred to therein (including, without limitation, in
connection with any such enforcement, the reasonable fees and disbursements of
counsel for the Administrative Agent and each of the Banks, including in-house
counsel); (ii) pay and hold each of the Banks harmless from and against any and
all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Banks harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Bank) to pay such taxes; and (iii)
indemnify each Bank, its officers, directors, employees, representatives and
agents from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them as a result of,
or arising out of, or in any way related to, or by reason of, any investigation,
litigation or other proceeding (whether or not any Bank is a party thereto)
related to the entering into and/or performance of any Credit Document or the
use of proceeds of any Loans (including other extensions of credit) hereunder or
the consummation of any other transactions contemplated in any Credit Document,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding (but excluding (i) any costs or expenses associated with the transfer
of a participation interest under Section 10.03(a)(ii) or 10.03(c), and (ii) any
such losses, liabilities, claims, damages or expenses to the extent incurred by
reason of gross negligence or willful misconduct on the part of the Person to be
indemnified).
10.06 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing signed by the Required Banks, provided that no such amendment, change,
waiver, discharge or termination shall, without the consent of each Bank
affected thereby, (i) extend the scheduled maturities (including the final
maturity and any mandatory prepayments) of any Loan, or any portion thereof, or
reduce the rate or extend the time of payment of interest (other than as a
result of waiving the applicability of any post-default increase in interest
rates) thereon or fees hereunder or reduce the principal amount thereof, or
increase the Commitments or the Revolving Committed Amount of the Banks over the
amount thereof in effect (it being understood and agreed that a waiver of any
Default or Event of Default or of a mandatory reduction in the total commitments
shall not constitute a change in the terms of any Commitment of any Bank), (ii)
release of Stuart Medical, Inc. or substantially all of the other Guarantors
from their guaranty obligations hereunder, (iii) amend, modify or waive any
provision of this Section or Section 2.13, 2.14, 2.15, 2.16, 2.19, 8.01(a),
9.07, 10.02 and 10.03, (iv) reduce any percentage specified in, or otherwise
modify, the definition of Required Banks, (v) consent to the assignment or
transfer by the Borrower (or Guarantor) of any of its rights and obligations
under (or in respect of) this Credit Agreement or (vi) release all or
70
substantially all of the collateral, if any, pledged to secure the Loans and
Obligations hereunder. No provision of Section 9 may be amended without the
consent of the Administrative Agent.
10.07 Counterparts.
This Credit Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart.
10.08 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
10.09 Survival of Indemnification.
All indemnities set forth herein, including, without limitation, in
Sections 2.13, 2.15 or 10.05 shall survive the execution and delivery of this
Credit Agreement, and the making of the Loans, the repayment of the Loans and
other obligations and the termination of the Commitment hereunder.
10.10 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
VIRGINIA. Any legal action or proceeding with respect to this Credit Agreement
or any other Credit Document may be brought in the courts of the Commonwealth of
Virginia in City of Richmond, or of the United States for the Eastern District
of Virginia, and, by execution and delivery of this Credit Agreement, each of
the Credit Parties hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of such courts. Each
of the Credit Parties further irrevocably consents to the service of process out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
it at the address set out for notices pursuant to Section 10.01, such service to
become effective 30 days after such mailing. Nothing herein shall affect the
right of the Agent to serve process in any other manner permitted by law or to
commence legal proceedings or to otherwise proceed against the Borrower in any
other jurisdiction.
(b) Each of the Credit Parties hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Credit Agreement or any other Credit Document brought in the courts referred to
in subsection (a) hereof and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
71
(c) EACH OF THE AGENTS, EACH OF THE BANKS AND EACH OF THE CREDIT
PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT,
ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.10 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
10.11 Entirety.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
10.12 Survival of Representations and Warranties.
All representations and warranties made by the Borrower herein shall
survive delivery of the Notes and the making of the Loans hereunder.
72
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER:
XXXXX & MINOR, INC.,
a Virginia corporation
By________________________________
Xxxxxxx X. Xxxxxx
Vice President and Treasurer
GUARANTORS:
XXXXX & MINOR MEDICAL, INC.,
a Virginia corporation
NATIONAL MEDICAL SUPPLY CORPORATION,
a Delaware corporation
XXXXX & MINOR WEST, INC.,
a California corporation
KOLEY'S MEDICAL SUPPLY, INC.,
a Nebraska corporation
XXXXX PHYSICIAN SUPPLY COMPANY,
an Ohio corporation
X. XXXXXXX & COMPANY,
a Michigan corporation
STUART MEDICAL, INC.,
a Pennsylvania corporation
By___________________________________
Vice President and Treasurer
of each of the Companies listed above
Signature Pages to
Xxxxx & Minor, Inc. Credit Agreement
BANKS:
NATIONSBANK, N.A.,
individually in its capacity as a
Bank and in its capacity as Agent and
Administrative Agent
By______________________________________
Xxxxx X. Xxxx,
Senior Vice President
BANK OF AMERICA NT & SA,
individually in its capacity as a
Bank and in its capacity as a Co-Agent
By_______________________________________
Title____________________________________
CRESTAR BANK,
individually in its capacity as a
Bank and in its capacity as a Co-Agent
By________________________________________
Title_____________________________________
FIRST UNION NATIONAL BANK
By________________________________________
Title_____________________________________
Signature Pages to
Xxxxx & Minor, Inc. Credit Agreement
PNC BANK, NATIONAL ASSOCIATION
By___________________________________
Title________________________________
THE BANK OF NEW YORK
By___________________________________
Title________________________________
MELLON BANK, N.A.
By___________________________________
Title________________________________
THE FIRST NATIONAL BANK OF CHICAGO
By___________________________________
Title________________________________
THE SANWA BANK LTD.
By___________________________________
Title________________________________
Signature Pages to
Xxxxx & Minor, Inc. Credit Agreement
SIGNET BANK
By______________________________________
Title___________________________________
WACHOVIA BANK, N.A.
By_____________________________________
Title__________________________________
THE BANK OF NOVA SCOTIA
By____________________________________
Title_________________________________
Schedule 2.01(a)
Schedule of Banks and
Commitments
Address Revolving
for Funding Address for Committed
Bank and Payments Other Notices Amount
---- ------------ ------------- ------
NationsBank, N.A. NationsBank, N.A. NationsBank, N.A. $25,000,000
000 X. Xxxxx Xxxxxx NationsBank Healthcare Finance Group
Independence Center 0000 Xxxxxxxxx Xxxxx
XX0-000-00-00 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxx Attn: Xxxxxxx X. Xxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Bank of America NT & SA Bank of America NT & SA Bank of America NT & SA $22,500,000
0000 Xxxxxxx Xxxxxxxxx 0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Suite 3800
Attn: Xxxxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000 Attn: Xxxx Xxxxxx
Fax: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000
Crestar Bank Crestar Bank $22,500,000
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
The Bank of Nova Scotia The Bank of Nova Scotia $20,000,000
00xx Xxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
First Union National Bank First Union National Bank $20,000,000
000 Xxxx Xxxx Xxxxxx
0xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Lowndes Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
PNC Bank, National Association PNC Bank, National $20,000,000
Association
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
The Bank of New York The Bank of New York $15,000,000
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Mellon Bank, X.X. Xxxxxx Bank, N.A. $15,000,000
Mellon Bank Center
0000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
The First National Bank of Chicago The First National Bank of Chicago $20,000,000
000 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
The Sanwa Bank Ltd. The Sanwa Bank Ltd. $15,000,000
Atlanta Agency Atlanta Agency
4750 Georgia-Pacific Center
000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Phone: (000)000-0000
Fax: (000)000-0000
Signet Bank Signet Bank $15,000,000
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Link
Phone: (000) 000-0000
Fax: (000) 000-0000
Wachovia Bank, N.A. Wachovia Bank, N.A. $15,000,000
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx-Xxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
-------------------
$225,000,000
Schedule 2.02(1)
FORM OF NOTICE OF BORROWING
NationsBank, N.A., NationsBank, N.A.,
as Administrative Agent for as Swingline Lender
the Lenders referred to below 000 X. Xxxxx Xxxxxx, 15th Floor
000 X. Xxxxx Xxxxxx, 00xx Floor Independence Center, NC1-001-15-04
Independence Center, NC1-001-15-04 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: Xxxxxxx Xxxx
Attention: Xxxxxxx Xxxx Agency Services
Agency Services
Ladies and Gentlemen:
The undersigned, XXXXX & MINOR, INC. (the "Borrower"), refers to the
Credit Agreement dated as of September 15, 1997 (as it may be amended, modified,
extended or restated from time to time, the "Credit Agreement"), among the
Borrower, the other Credit Parties party thereto, the Banks party thereto, and
NationsBank, N.A., as Administrative Agent. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Credit Agreement. The Borrower hereby gives you notice that it requests a
Revolving Loan advance or a Swingline Loan advance pursuant to the provisions of
Section 2.02 or 2.07 of the Credit Agreement, as appropriate, and in that
connection sets forth below the terms on which such advance is requested to be
made:
(A) Type of Loan Advance Requested (Check One)
_____ Revolving Loan
_____ Swingline Loan
(B) Date of Borrowing
(which is a Business Day) _______________________
(C) Principal Amount of
Borrowing(1) _______________________
-------------
(1) In the case of Revolving Loans, a minimum of $5,000,000 and $1,000,000
increments in excess thereof (or the remaining Revolving Committed Amount,
if less) and in the case of Swingline Loans, a minimum of $250,000 and
$100,000 increments in excess thereof (or the remaining Swingline
Committed Amount, if less).
(D) Interest rate basis (Check One)
_____ Eurodollar Loan(2)
_____ Base Rate Loan
(E) Interest Period and the
last day thereof(3) _______________________
----------------------
(2) Fixed rate for applicable Interest Period in the case of Revolving Loans.
Floating rate applicable in the case of Swingline Loans.
(3) Revolving Loans only. Subject to the provisions and definitions of the
Credit Agreement, but generally one, two, three or six months' duration for
Fixed Eurodollar Loans, and also with respect to a single Eurodollar Loan of
up to $30,000,000 under the Revolving Loan facility also for 7 days
duration.
Upon acceptance of any or all of the Loans made by the Banks in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions to lending specified in Section 2.09(b) of the
Credit Agreement have been satisfied.
Very truly yours,
XXXXX & MINOR, INC.
By:__________________________________
Title:
Schedule 2.02(2)
FORM OF NOTICE OF CONVERSION
NationsBank, N.A., NationsBank, N.A.,
as Administrative Agent for as Swingline Lender
the Lenders referred to below 000 X. Xxxxx Xxxxxx, 15th Floor
000 X. Xxxxx Xxxxxx, 00xx Floor Independence Center, NC1-001-15-04
Independence Center, NC1-001-15-04 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: Xxxxxxx Xxxx
Attention: Xxxxxxx Xxxx Agency Services
Agency Services
Ladies and Gentlemen:
The undersigned, XXXXX & MINOR, INC. (the "Borrower"), refers to the
Credit Agreement dated as of September 15, 1997 (as it may be amended, modified,
extended or restated from time to time, the "Credit Agreement"), among the
Borrower, the other Credit Parties party thereto, the Banks party thereto, and
NationsBank, N.A., as Administrative Agent. Capitalized terms used herein and
not otherwise defined herein shall have the meanings assigned to such terms in
the Credit Agreement. The Borrower hereby gives you notice pursuant to Section
2.03 of the Credit Agreement that it requests an extension or conversion of a
Revolving Loan outstanding under the Credit Agreement, and in that connection
sets forth below the terms on which such extension or conversion is requested to
be made:
(A) Type of Loan (Check One)
_____ Revolving Loan
_____ Swingline Loan
(B) Date of Extension or Conversion
(which is the last day of the _______________________
the applicable Interest Period)
(C) Principal Amount of
Extension or Conversion(4) _______________________
(D) Interest rate basis (Check One) ______________________
_____ Eurodollar Loan(5)
------------------
(4) In the case of Revolving Loans, a minimum of $5,000,000 and $1,000,000
increments in excess thereof (or the remaining Revolving Committed Amount,
if less) and in the case of Swingline Loans, a minimum of $250,000 and
$100,000 increments in excess thereof (or the remaining Swingline Committed
Amount, if less).
(5) Fixed rate for applicable Interest Period in the case of Revolving Loans.
Floating rate applicable in the case of Swingline Loans.
_____ Base Rate Loan
(E) Interest Period and the
last day thereof(6) _______________________
Upon acceptance of extension or conversion of any or all of the Loans
made by the Banks in response to this request, the Borrower shall be deemed to
have represented and warranted that the conditions to lending specified in
Section 2.09(b) of the Credit Agreement have been satisfied.
Very truly yours,
XXXXX & MINOR, INC.
By:__________________________________
Title:
-------------------------
(6) Revolving Loans only. Subject to the provisions and definitions of the
Credit Agreement, but generally one, two, three or six months' duration for
Eurodollar Loans, and also with respect to a single Eurodollar Loan of up to
$30,000,000 under the Revolving Loan facility also for 7 days duration.
Schedule 2.06
FORM OF REVOLVING NOTE
September 15, 1997
FOR VALUE RECEIVED, the undersigned Borrower, hereby promises to pay to
the order of ________________________, and its successors and assigns, on or
before the Termination Date to the office of the Administrative Agent in
immediately available funds as provided in the Credit Agreement,
(i) in the case of Revolving Loans, such Bank's Revolving
Committed Amount or, if less, the aggregate unpaid principal amount of
all Revolving Loans made by such Bank to the undersigned;
(ii) in the case of Swingline Loans, if such Bank is the
Swingline Lender, the aggregate Swingline Committed Amount or, if less,
the aggregate unpaid principal amount of all Swingline Loans made to
the undersigned; and
(iii) in the case of Competitive Loans, the aggregate unpaid
principal amount of all Competitive Loans made by such Bank to the
undersigned;
together with interest thereon at the rates and as provided in the Credit
Agreement.
This Note is one of the Revolving Notes referred to in the Credit
Agreement dated as of September 15, 1997 (as amended and modified, the "Credit
Agreement") among XXXXX & MINOR, INC., a Virginia corporation, the Guarantors
and Banks identified therein and NationsBank, N.A., as Administrative Agent.
Terms used but not otherwise defined herein shall have the meanings provided in
the Credit Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; provided that
any failure to endorse such information shall not affect the obligation of the
undersigned Borrower to pay amounts evidenced hereby.
Upon the occurrence of an Event of Default, all amounts evidenced by
this Note may, or shall, become immediately due and payable as provided in the
Credit Agreement without presentment, demand, protest or notice of any kind, all
of which are waived by the undersigned Borrower. In the event payment of amounts
evidenced by this Note is not made at any stated or accelerated maturity, the
undersigned Borrower agrees to pay, in addition to principal and interest, all
costs of collection, including reasonable attorneys' fees.
This Note and the Loans and amounts evidenced hereby may be transferred
only as provided in the Credit Agreement.
This Note shall be governed by, and construed and interpreted in
accordance with, the law of the Commonwealth of Virginia.
IN WITNESS WHEREOF, the undersigned Borrower has caused this Note to be
duly executed as of the date first above written.
XXXXX & MINOR, INC.,
a Virginia corporation
By_________________________________
Name:
Title:
SCHEDULE A TO REVOLVING NOTE OF XXXXX & MINOR, INC.
DATED September 15, 1997
Person
Making Interest Payments Balance
Date Notation Amount Period Rate Principal Interest of Note
---- -------- ------ ------ ---- --------- -------- -------
Schedule 2.08(b)-1
FORM OF COMPETITIVE BID REQUEST
NationsBank, N.A.,
as Administrative Agent for the Banks
000 Xxxxx Xxxxx Xxxxxx
Independence Center, 15th Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Agency Services
Re: Credit Agreement dated as of September 15, 1997 (as amended
and modified the "Credit Agreement") among XXXXX & MINOR,
INC., the Guarantors and Banks identified therein and
NationsBank, N.A., as Administrative Agent. Terms used but not
otherwise defined shall have the meanings provided in the
Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby gives you notice pursuant to Section 2.08(b) of
the Credit Agreement it requests solicitation of Competitive Bids under the
Credit Agreement, and in connection therewith sets forth below the terms on
which the related Competitive Loan borrowing is requested to be made:
(A) Date of Competitive Loan borrowing
(which is a Business Day) __________________________
(B) Principal amount of
Competitive Loan borrowing __________________________
(C) Interest Period and the last
day thereof __________________________
In accordance with the requirements of Section 5.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (b) of such Section, and confirms that the matters
referenced in subsections (c), (d), (e) and (f) of such Section, are true and
correct.
XXXXX & MINOR, INC.
By:___________________________________
Name:
Title:
Schedule 2.08(b)-2
FORM OF NOTICE OF RECEIPT OF COMPETITIVE BID REQUEST
[Name of Bank]
[Address]
Attention:
Re: Credit Agreement dated as of September 15, 1997 (as amended
and modified the "Credit Agreement") among XXXXX & MINOR,
INC., the Guarantors and Banks identified therein and
NationsBank, N.A., as Administrative Agent. Terms used but not
otherwise defined shall have the meanings provided in the
Credit Agreement.
Dear Sirs:
XXXXX & MINOR, INC., a Virginia corporation, being Borrower under the
above-referenced Credit Agreement made a Competitive Bid Request on
_______________, 19__, pursuant to Section 2.08(b) of the Credit Agreement, and
in that connection you are invited to submit a Competitive Bid by 10:00 A.M.
(Charlotte, North Carolina time) ______________, 19__ [Date of Proposed
Competitive Loan Borrowing]. Your Competitive Bid must comply with Section
2.08(c) of the Credit Agreement and the terms set forth below on which the
Competitive Bid Request was made:
(A) Date of Competitive Borrowing _________________________
(B) Principal amount of Competitive Borrowing _________________________
(C) Interest Period and the last day thereof _________________________
NATIONSBANK, N.A., as Administrative Agent
By:_____________________________________
Name:
Title:
Schedule 2.08(c)
FORM OF COMPETITIVE BID
NationsBank, N.A.,
as Agent for the Banks
000 Xxxxx Xxxxx Xxxxxx
Independence Center, 15th Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Agency Services
Re: Credit Agreement dated as of September 15, 1997 (as amended
and modified the "Credit Agreement") among XXXXX & MINOR,
INC., the Guarantors and Banks identified therein and
NationsBank, N.A., as Administrative Agent. Terms used but not
otherwise defined shall have the meanings provided in the
Credit Agreement.
Ladies and Gentlemen:
The undersigned, [Name of Bank], hereby makes a Competitive Bid
pursuant to Section 2.08(c) of the Credit Agreement, in response to the
Competitive Bid Request made by the Borrower on _____________________, 19__, and
in that connection sets forth below the terms on which such Competitive Bid is
made:
(A) Principal Amount ______________________________
(B) Competitive Bid Rate ______________________________
(C) Interest Period and last day thereof ______________________________
The undersigned hereby confirms that is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.08(e)
of the Credit Agreement.
[NAME OF BANK]
By:___________________________________
Name:
Title:
Schedule 2.08(e)
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
NationsBank, N.A.,
as Agent for the Banks
000 Xxxxx Xxxxx Xxxxxx
Independence Center, 15th Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Agency Services
Re: Credit Agreement dated as of September 15, 1997 (as amended
and modified the "Credit Agreement") among XXXXX & MINOR,
INC., the Guarantors and Banks identified therein and
NationsBank, N.A., as Administrative Agent. Terms used but not
otherwise defined shall have the meanings provided in the
Credit Agreement.
Ladies and Gentlemen:
In accordance with Section 2.08(e) of the Credit Agreement, in
connection with our Competitive Bid Request dated __________________ and in
accordance with Section 2.08(e) of the Credit Agreement, we hereby accept the
following bids for maturity on [date]:
Principal Amount Competitive Bid Rate Bank
---------------- -------------------- ----
$ [%]
$ [%]
We hereby reject the following bids:
Principal Amount Competitive Bid Rate Bank
---------------- -------------------- ----
$ [%]
$ [%]
XXXXX & MINOR, INC.
By:____________________________________
Name:
Title:
Schedule 4.01(b)(1)
Form of Legal Opinion of Drew St. X. Xxxxxxx
Schedule 4.01(b)(2)
Form of Legal Opinion of Hunton & Xxxxxxxx
Schedule 5.09
Schedule of Outstanding Indebtedness
Schedule 5.10
Schedule of Legal Proceedings
Schedule 5.15
Schedule of Subsidiaries
Schedule 5.18
Schedule of Environmental Exceptions
Schedule 6.01(c)
Form of Borrowing Base Certificate
For the calendar month ended _______________, 19__.
I, the undersigned, the _______________________ of XXXXX & MINOR, INC.
(the "Borrower"), certify as of the date hereof and prior to giving effect to
any payment due as of the date hereof under the Credit Agreement dated as of
September 15, 1997 (as it may be amended, modified, extended or restated from
time to time, the "Credit Agreement"; all capitalized terms used herein shall
have the meanings given to such terms in the Credit Agreement) among the
Borrower, the other Credit Parties party thereto, the Banks party thereto and
NationsBank, N.A., as Administrative Agent:
Eligible Inventory
------------------
Aggregate Net Book Value of Inventory of the Credit Parties on a
consolidated basis after deducting allowances and
reserves relating thereto $____________
LIFO Reserve $____________
Total Eligible Inventory $____________
Eligible Receivables
--------------------
Aggregate Net Book Value of Accounts
Receivable of the Credit Parties on a
consolidated basis after deducting
allowances and reserves relating thereto $____________
Total Borrowing Base
--------------------
Borrowing Base Advance Rate -
85% of foregoing Eligible Receivables $_____________
Borrowing Base Advance Rate -
50% of foregoing Eligible Inventory + $_____________
Total Borrowing Base $______________
With reference to this Borrowing Base certificate, I hereby certify on behalf of
the Borrower that, to the best of my knowledge and belief, the above statements
are true and correct in all material respects as of the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this _____ day of
____________, 199_.
XXXXX & MINOR, INC.
By________________________
Title_____________________
Schedule 6.01(d)
Form of Officer's Compliance Certificate
For the fiscal quarter ended _________________, 1997.
I, ______________________, [Title] of XXXXX & MINOR, INC. (the
"Borrower") hereby certify that, to the best of my knowledge and belief, with
respect to that certain Credit Agreement dated as of September 15, 1997 (as it
may be amended, modified, extended or restated from time to time, the "Credit
Agreement"; all of the defined terms in the Credit Agreement are incorporated
herein by reference) among the Borrower, the other Credit Parties party thereto,
the Banks party thereto and NationsBank, N.A., as Administrative Agent:
a. The company-prepared consolidated financial statements
which accompany this certificate are true and correct in
all material respects and have been prepared in accordance
with generally accepted accounting principles applied on a
consistent basis. The company-prepared consolidating
statements which accompany this certificate are true and
correct in all material respects and have been prepared
consistent with the Borrower's internal practices
consistently applied and may not be in strict conformity
with generally accepted accounting principles. Both sets of
such financial statements are subject to changes resulting
from normal year-end audit adjustments.
b. Since ___________ (the date of the last similar
certification, or, if none, the Closing Date) no Default or
Event of Default has occurred under the Credit Agreement;
and
Delivered herewith are detailed calculations demonstrating compliance by the
Credit Parties with the financial covenants contained in Section 6.11 of the
Credit Agreement as of the end of the fiscal period referred to above.
This ______ day of ___________, 199_.
XXXXX & MINOR, INC.
--------------------------------
Title:
Attachment to Officer's Certificate
Computation of Financial Covenants
Schedule 6.06
Schedule of Insurance
Schedule 6.12
Form of Joinder Agreement
THIS JOINDER AGREEMENT (the "Agreement"), dated as of _____________,
19__, is by and between _____________________, a ___________________ (the
"Subsidiary"), and NATIONSBANK, N.A., in its capacity as Administrative Agent
under that certain Credit Agreement (as it may be amended, modified, extended or
restated from time to time, the "Credit Agreement"), dated as of September 15,
1997, by and among XXXXX & MINOR, INC., a Virginia corporation (the "Borrower"),
the other Credit Parties party thereto, the Banks party thereto and NationsBank,
N.A., as Administrative Agent. All of the defined terms in the Credit Agreement
are incorporated herein by reference.
The Subsidiary is an Additional Credit Party, and, consequently, the
Credit Parties are required by Section 6.12 of the Credit Agreement to cause the
Subsidiary to become a "Guarantor".
Accordingly, the Subsidiary hereby agrees as follows with the
Administrative Agent, for the benefit of the Banks:
1. The Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Credit Agreement, the Subsidiary will be deemed to be a party
to the Credit Agreement and a "Guarantor" for all purposes of the Credit
Agreement, and shall have all of the obligations of a Guarantor thereunder as if
it had executed the Credit Agreement. The Subsidiary hereby ratifies, as of the
date hereof, and agrees to be bound by, all of the terms, provisions and
conditions contained in the Credit Agreement, including without limitation (i)
all of the representations and warranties set forth in Section 5 of the Credit
Agreement as they relate to such Subsidiary, (ii) all of the affirmative and
negative covenants set forth in Sections 6 and 7 of the Credit Agreement and
(iii) all of the undertakings and waivers set forth in Section 3 of the Credit
Agreement (subject to the limitations set forth therein). Without limiting the
generality of the foregoing terms of this paragraph 1, the Subsidiary hereby (i)
subject to the limitation set forth in Section 3.07 of the Credit Agreement,
jointly and severally together with the other Guarantors, guarantees to each
Bank, the Administrative Agent and the Co-Agents, as provided in Section 3 of
the Credit Agreement, the prompt payment and performance of the Obligations in
full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise) strictly in accordance with the terms thereof and
(ii) agrees that if any of the Obligations are not paid or performed in full
when due (whether at stated maturity, as a mandatory prepayment, by acceleration
or otherwise), the Subsidiary will, jointly and severally together with the
other Guarantors, promptly pay and perform the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Obligations, the same will be promptly paid in full when
due (whether at extended maturity, as a mandatory prepayment, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
2. This Credit Agreement may be executed in two or more counterparts,
each of which shall constitute an original but all of which when taken together
shall constitute one contract.
105
IN WITNESS WHEREOF, the Subsidiary has caused this Credit Agreement to
be duly executed by its authorized officers, and the Administrative Agent, for
the benefit of the Banks, has caused the same to be accepted by its authorized
officer, as of the day and year first above written.
[SUBSIDIARY]
By____________________________
Title_________________________
Acknowledged and accepted:
NATIONSBANK, N.A.,
as Administrative Agent
By______________________________
Title___________________________
106
Schedule 7.02
Schedule of Permitted Liens
107
Schedule 10.03(b)
Form of Assignment and Acceptance
THIS ASSIGNMENT AND ACCEPTANCE dated as of ________, 199_ is entered
into between ________________ ("Assignor") and ____________________
("Assignee").
Reference is made to the Credit Agreement dated as of September 15,
1997, as amended and modified from time to time thereafter (the "Credit
Agreement") among XXXXX & MINOR, INC., the other Credit Parties party thereto,
the Banks party thereto and NationsBank, N.A., as Administrative Agent. Terms
defined in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth below, the interests
set forth below (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth below in the Commitments of the Assignor on the effective
date of the assignment designated below (the "Effective Date") and the Revolving
Loans owing to the Assignor and in the Swingline Loans in which Assignor has or
may have a participation interest which are outstanding on the Effective Date,
together with unpaid interest accrued on the assigned Loans to the Effective
Date and the amount, if any, set forth below of the Fees accrued to the
Effective Date for the account of the Assignor. Each of the Assignor and the
Assignee hereby makes and agrees to be bound by all the representations,
warranties and agreements set forth in Section 10.03(b) of the Credit Agreement,
a copy of which has been received by each such party. The Assignee has submitted
to the Borrower and the Administrative Agent the documents required pursuant to
Section 10.03(c) of the Credit Agreement. From and after the Effective Date (i)
the Assignee, if it is not already a Bank under the Credit Agreement, shall be a
party to and be bound by the provisions of the Credit Agreement and, to the
extent of the interests assigned by this Assignment and Acceptance, have the
rights and obligations of a Bank thereunder and (ii) the Assignor shall, to the
extent of the interests assigned by this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the Commonwealth of Virginia.
3. Terms of Assignment
(a) Date of Assignment:
(b) Legal Name of Assignor:
(c) Legal Name of Assignee:
(d) Effective Date of Assignment:
108
(e) Revolving Committed Amount
Percentage Assigned (expressed
as a percentage of the total
Commitment of the Banks to
make Revolving Loans and set
forth to at least 8 decimals) %
(f) Revolving Committed Amount
Percentage of Assignor after
Assignment (set forth to at
least 8 decimals) %
(g) Total Revolving Loans outstanding
as of Effective Date $_____________
(h) Principal Amount of Revolving
Loans assigned on Effective
Date (the amount set forth
in (g) multiplied by the
percentage set forth in (e)) $_____________
The terms set forth above are hereby agreed to:
____________________, as Assignor
By:_____________________________________
Title:__________________________________
_____________________, as Assignee
By:_____________________________________
Title:__________________________________
CONSENTED TO:
NATIONSBANK, N.A.,
as Administrative Agent
By:____________________________________
Title:_________________________________
109
XXXXX & MINOR, INC.
By:____________________________________
Title:_________________________________
110
