EXHIBIT 4
AMENDMENT AND CONSENT
THIS AMENDMENT AND CONSENT dated as of June 30, 1999 (this
"Amendment") relating to the Credit Agreement referenced below is by and among
XXXXX & MINOR, INC., a Virginia corporation (the "Borrower"), the Subsidiaries
of the Borrower identified on the signature pages hereto (the "Guarantors"), the
various banks and lending institutions identified on the signature pages hereto
(the "Banks") and NATIONSBANK, as Administrative Agent (in such capacity, the
"Administrative Agent"). Terms used but not otherwise defined shall have the
meanings provided 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 September
15, 1997 (as amended and modified the "Credit Agreement") among the Borrower,
the Guarantors, the Banks, Bank of America NT & SA and Crestar Bank, as
co-agents, and NationsBank, N.A., as Administrative Agent;
WHEREAS, the Borrower and Xxxxx & Minor Medical, Inc. have entered
into an agreement to acquire (the "Medix Acquisition") substantially all of the
assets of Medix, Inc. ("Medix"), pursuant to the terms of that certain Asset
Purchase Agreement dated as of July 5, 1999 by and between the Borrower and
Medix (the "Purchase Agreement") for total consideration of approximately $85
million, consisting of approximately $65 million in cash and the assumption of
approximately $20 million of Indebtedness;
WHEREAS, the total consideration of the Medix Acquisition is in
excess of the limit set forth in Section 7.05(b) of the Credit Agreement;
WHEREAS, the Borrower has requested that the Required Banks consent
to the Medix Acquisition and certain modifications to the Credit Agreement in
connection with the Medix Acquisition;
WHEREAS, the Required Banks have consented 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 is hereby
acknowledged, the parties hereto agree as follows:
1. The Credit Agreement is amended in the following respects:
1.1 The following definition is added to Section
1.01:
"Medix Acquisition" means the acquisition by the
Borrower of substantially all of the assets of Medix, Inc.
pursuant to the terms of that certain Asset Purchase
Agreement dated as of July 5, 1999 by and among the
Borrower, Xxxxx & Minor Medical, Inc. and Medix, Inc.
1.2 Section 6.11(b) is amended to read as follows:
(b) Consolidated Tangible Net Worth. The Borrower
will maintain Consolidated Tangible Net Worth, as
determined on each Determination Date to occur on or after
September 30, 1999, of not less than $75,000,000; 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 thereafter
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).
1.3 Clauses (h) and (i) of Section 7.01 are renumbered as
clauses (i) and (j), and a new clause (h) is added to read
as follows:
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(h) Purchase money Indebtedness assumed in
connection with the Medix Acquisition provided that (i) the
total of all such Indebtedness shall not exceed an
aggregate principal of $20,000,000 and (ii) the total of
all such Indebtedness shall be repaid in full within ten
(10) days of the closing date of the Medix Acquisition.
1.4 A new clause (d) is added to Section 10.03 to
read as follows:
(d) Notwithstanding anything to the contrary
contained herein, any Bank, (a "Granting Lender") may grant
to a special purpose funding vehicle (an "SPC") the option
to fund all or any part of any Loan that such Granting
Lender would otherwise be obligated to fund pursuant to
this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to fund any Loan, and
(ii) if an SPC elects not to exercise such option or
otherwise fails to fund all or any part of such Loan, the
Granting Lender shall be obligated to fund such Loan
pursuant to the terms hereof. The funding of a Loan by an
SPC hereunder shall utilize the Revolving Credit Commitment
of the Granting Lender to the same extent, and as if, such
Loan were funded by such Granting Lender. Each party hereto
hereby agrees that no SPC shall be liable for any indemnity
or payment under this Agreement for which a Lender would
otherwise be liable for so long as, and to the extent, the
Granting Lender provides such indemnity or makes such
payment. Nothing contained herein shall relieve the
Granting Lender of its obligations under the Credit
Agreement. Neither the Administrative Agent nor the Credit
Parties shall have any duty to acknowledge or evidence the
interest of the SPC as separate or apart from the interest
of the Granting Lender. Notwithstanding anything to the
contrary contained in this Agreement, any SPC may disclose
on a confidential basis any non-public information relating
to its funding of Loans to any rating agency, commercial
paper dealer or provider of any surety or guarantee to such
SPC. This paragraph may not be amended without the prior
written consent of each Granting Lender, all or any part of
whose Loan is being funded by an SPC at the time of such
amendment.
2. The Required Banks hereby consent to the Medix Acquisition
pursuant to the terms of the Purchase Agreement for total consideration of
approximately $85 million, consisting of approximately $65 million in cash and
the assumption of approximately $20 million of Indebtedness. The Required Banks
further agree that the total consideration up to $85 million paid in the Medix
Acquisition shall not be included in any calculation of the limit on aggregate
consideration paid in connection with acquisitions set forth in Section 7.05(b).
3. This Amendment shall be effective upon satisfaction of the
following conditions:
(a) execution of this Amendment by the Credit Parties
and the Required Banks; and
(b) receipt by the Administrative Agent, for the
ratable benefit of each of the Banks which executes this Amendment,
of an amendment fee equal to 5 basis points (0.05%) on the aggregate
amount of Commitments of each Bank which executes this Amendment.
4. The Borrower hereby represents and warrants in connection
herewith that as of the date hereof (after giving effect hereto) (i) the
representations and warranties set forth in Section 5 of the Credit Agreement
are true and correct in all material respects (except those which expressly
relate to an earlier date), and (ii) no Default or Event of Default presently
exists under the Credit Agreement.
5. Except as expressly modified hereby, all of the terms and
provisions of the Credit Agreement remain in full force and effect.
6. The Borrower agrees to pay all reasonable costs and
expenses in connection with the preparation, execution and delivery of this
Amendment, including the reasonable fees and expenses of the Administrative
Agent's legal counsel.
6. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original. It shall not be necessary in making proof of this Amendment to produce
or account for more than one such counterpart.
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7. This Amendment, as the Credit Agreement, shall be deemed to
be a contract under, and shall for all purposes be construed in accordance with,
the laws of the Commonwealth of Virginia.
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
first above written.
BORROWER: XXXXX & MINOR, INC.,
-------- a Virginia corporation
By: /s/Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President & 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: /s/Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President & Treasurer
of each of the Guarantors listed above
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BANKS: NATIONSBANK, N.A.,
----- individually in its capacity as a
Bank and in its capacity as Agent and
Administrative Agent
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal
BANK OF AMERICA NT & SA
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal
CRESTAR BANK
By: /s/T. Xxxxxxx Xxxxxxx
-------------------------------------------
Name: T. Xxxxxxx Xxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/Xxx Xxxxx Xxxxxx
-------------------------------------------
Name: Xxx Xxxxx Xxxxxx
Title: Vice President
MELLON BANK, N.A.
By: /s/Xxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE SANWA BANK LTD.
By: /s/Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/X. Xxxxxx Xxxxxx
-------------------------------------------
Name: X. Xxxxxx Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/J. R. Trimble
-------------------------------------------
Name: J. R. Trimble
Title: Senior Relationship Manager
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