Exhibit 4.4
FIRST AMENDMENT
THIS FIRST AMENDMENT (this "Amendment") dated as of June 12, 2001, to the
Credit Agreement referenced below, is by and among Xxxxx & Minor, Inc., a
Virginia corporation (the "Borrower"), the Subsidiaries of the Borrower
identified as "Guarantors" on the signature pages hereto, the Banks identified
herein and Bank of America, N.A., as Administrative Agent (in such capacity, the
"Administrative Agent"). Terms used herein but not otherwise defined herein
shall have the meanings provided to such terms in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a $225 million credit facility has been extended to the Borrower
pursuant to the terms of that Credit Agreement dated as of April 24, 2000 (as
amended, modified and supplemented, the "Credit Agreement") among the Borrower,
the Subsidiaries of the Borrower identified therein, the Banks identified
therein and Bank of America, N.A., as Administrative Agent;
WHEREAS, the Borrower has requested certain modifications to the Credit
Agreement; and
WHEREAS, the Required Banks have agreed to the requested modifications on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendments.
1.1 The Applicable Percentage for the Commitment Fee as set forth in the
pricing grid in the definition of "Applicable Percentage" in Section 1.1 of the
Credit Agreement is increased by 2.5 basis points (0.025%) at each Pricing Level
and, after giving effect to such increase, the pricing grid shall read as
follows:
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Consolidated Eurodollar Base
Pricing Total Leverage Rate Rate Commitment Utilization
Level Ratio Margin Margin Fee Fee
----- ----- ------ ------ --- ---
I greater than 3.25 1.50% 0.00% 0.300% 0.250%
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II greater than 2.50 but less than or equal to 3.25 1.25% 0.00% 0.275% 0.250%
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III greater than 1.75 but less than or equal to 2.50 1.00% 0.00% 0.250% 0.250%
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IV less than or equal to 1.75 0.75% 0.00% 0.225% 0.250%
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1.2 In the definition of "Pro Forma Basis" in Section 1.1 of the Credit
Agreement:
(a) The second sentence thereof is amended to read as follows:
As used herein, "transaction" shall mean (i) any merger or
consolidation as referred to in Section 8.4, (ii) any Asset
Disposition as referred to in Section 8.5, (iii) any
Acquisition as referred to in Section 8.4 or (iv) any
prepayment or redemption of any Senior Subordinated Notes or
Junior Subordinated Notes as referred to in Section 8.7.
(b) The "and" at the end of clause (A) thereof is deleted, the "."
at the end of clause (B) thereof is deleted and replaced with ";" and
a new clause (C) is added thereto to read as follows:
(C) for purposes of any calculation of the Consolidated Senior
Leverage Ratio in respect of any prepayment or redemption of any
Senior Subordinated Notes or Junior Subordinated Notes referred
to in Section 8.7, any Indebtedness incurred by any member of the
Consolidated Group in connection with such transaction shall be
deemed to have replaced such Subordinated Debt as of the first
day of the applicable period.
1.3 Clause (b) of Section 7.10 of the Credit Agreement is amended to read
as follows:
(b) Consolidated Net Worth. The Borrower will maintain at all
times Consolidated Net Worth of not less than the sum of
(i) $267,000,000 plus (ii) as of the end of each fiscal quarter
beginning with the fiscal quarter ended March 31, 2000, an amount
equal to fifty percent (50%) of Consolidated Net Income (to the extent
positive) for such fiscal quarter, such increases to be cumulative,
plus (iii) an amount equal to one hundred percent (100%) of the net
proceeds from Equity Transactions occurring after the Closing Date,
minus (iv) the amount of any payments made by the Borrower to
repurchase Junior Subordinated Debentures to the extent such
repurchase is permitted under Section 8.7(b)(iv).
1.4 In clause (b) of Section 8.7 of the Credit Agreement, clauses (iv) and
(v) thereof are renumbered as clauses (v) and (vi) thereof and a new clause (iv)
is added thereto to read as follows:
(iv) prepayments and redemptions of the Junior Subordinated
Debentures not to exceed $50,000,000 in the aggregate in any fiscal
year, provided that, prior to the making of any such prepayment or
redemption, the Borrower shall have (A) demonstrated compliance with
the financial covenants hereunder on a Pro Forma Basis after giving
effect to such prepayment or redemption, and (B) delivered to the
Administrative Agent a certificate of the chief financial officer (or
equivalent) of the Borrower containing reasonably detailed
calculations demonstrating that the Consolidated Senior Leverage Ratio
on a Pro Forma Basis after giving effect to such prepayment or
redemption is less than 2.50:1.0 (such certification shall also
include a reaffirmation of the representations and warranties
hereunder as of such date before and after giving effect to such
transaction).
2. Consent. The Borrower has requested that the Required Banks consent to
the issuance of up to $300,000,000 in aggregate principal amount of senior
subordinated notes (the "New Senior Subordinated Notes") to (a) refinance the
10.875% Senior Subordinated Notes of the Borrower due 2006 (the "Existing Senior
Subordinated Notes"), (b) finance the redemption or repurchase of up to
$50,000,000 in aggregate principal amount of Junior Subordinated Debentures, (c)
reduce the amount outstanding under the Borrower's accounts receivable
securitization facility, and (d) finance working capital and other corporate
purposes. Pursuant to Sections 8.1(d)(i) and 8.7(b) of the Credit Agreement,
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the Borrower is permitted to refinance the Existing Senior Subordinated Notes
provided that (i) the terms and conditions of the New Senior Subordinated Notes
are no less favorable to the Borrower and its Subsidiaries than the terms and
conditions of the Existing Senior Subordinated Notes and (ii) the principal
amount of the New Senior Subordinated Notes does not exceed the then outstanding
principal amount of the Existing Senior Subordinated Notes. However, the
principal amount of the New Senior Subordinated Notes will exceed the
outstanding principal amount of the Existing Senior Subordinated Notes.
Notwithstanding Sections 8.1(d)(i) and 8.7(b) of the Credit Agreement, the
Required Banks hereby consent to the issuance of the New Senior Subordinated
Notes and the terms, conditions and documentation therefor, provided that (a)
the proceeds therefrom are used to refinance the Existing Senior Subordinated
Notes in full, (b) the terms and conditions of the New Senior Subordinated Notes
are no less favorable to the Borrower and its Subsidiaries than the terms and
conditions of the Existing Senior Subordinated Notes and (c) the subordination
provisions of the New Senior Subordinated Notes are identical in all material
respects to the subordination provisions of the Existing Senior Subordinated
Notes. The Credit Parties and the Required Banks agree that immediately upon
the issuance of the New Senior Subordinated Notes, the term "Senior Subordinated
Notes" as defined in Section 1.1 of the Credit Agreement shall include the New
Senior Subordinated Notes.
3. Conditions Precedent. This Amendment shall be effective as of
the date set forth above upon satisfaction of the following conditions
precedent:
(a) receipt by the Administrative Agent of multiple
counterparts of this Amendment executed by the Credit Parties and the
Required Banks; and
(b) receipt by the Administrative Agent, for the ratable
benefit of each Bank that executes this Amendment, of an amendment fee
equal to one-tenth of one percent (0.10%) on the aggregate Commitments of
the Banks that execute this Amendment.
4. Representations and Warranties. The Credit Parties hereby
affirm that the representations and warranties set forth in the Credit Documents
are true and correct in all material respects as of the date hereof (except
those which expressly relate to an earlier period).
5. Reaffirmation of Guaranty. Each of the Guarantors (i)
acknowledges and consents to all of the terms and conditions of this Amendment,
(ii) affirms all of its obligations under the Credit Documents and (iii) agrees
that this Amendment and all documents executed in connection herewith do not
operate to reduce or discharge such Guarantor's obligations under the Credit
Documents.
6. No Other Modifications. Except as modified hereby, all of the
terms and provisions of the Credit Documents (including schedules and exhibits
thereto) shall remain in full force and effect.
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart.
8. Governing Law. This Amendment shall be deemed to be a contract
made under, and for all purposes shall be construed in accordance with the laws
of, the Commonwealth of Virginia.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
irst above written.
BORROWER: XXXXX & MINOR, INC.,
-------- a Virginia corporation
By:________________________________
Name:
Title:
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
STUART MEDICAL, INC.,
a Pennsylvania corporation
By:_________________________________
Name:
Title:
of each of the Guarantors
BANKS: BANK OF AMERICA, N.A.,
----- individually in its capacity as a Bank
and in its capacity as Administrative Agent
By:________________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:________________________________________
Name:
Title:
SUNTRUST BANK
By:________________________________________
Name:
Title:
BANK ONE, NA
By:________________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:________________________________________
Name:
Title:
THE BANK OF NEW YORK
By:________________________________________
Name:
Title:
WACHOVIA BANK, N.A.
By:________________________________________
Name:
Title:
