Exhibit 4.1
EXECUTION COPY
THIRD AMENDMENT AND
CONSENT
TO AMENDED AND RESTATED CREDIT
AGREEMENT
THIS THIRD AMENDMENT AND CONSENT
TO AMENDED AND RESTATED CREDIT AGREEMENT (this “ Amendment ”), dated
as of July 14, 2008, is entered into among Owens &
Minor Medical, Inc. and Owens & Minor Distribution, Inc.
(the “ Borrowers ”), Owens & Minor,
Inc. (the “ Parent ”), certain subsidiaries of
the Parent party hereto (together with the Parent, the “
Guarantors ”), the banks identified on the signature
pages hereto (the “ Banks ”) and Bank of
America, N.A., as Administrative Agent. Terms used but not
otherwise defined herein shall have the meanings provided in the
Credit Agreement described below.
W I T N E S S E T
H
WHEREAS , the Borrowers, the Parent, the other
Guarantors, the Banks party thereto, and the Administrative Agent
entered into that certain Amended and Restated Credit Agreement
dated as of May 4, 2004 (as amended by that certain First
Amendment dated as of April 3, 2006, as amended by that
certain Second Amendment dated as of January 29, 2007 and as
may be further amended, restated, supplemented or otherwise
modified from time to time, the “ Existing Credit
Agreement ”);
WHEREAS , the Borrowers have requested, and the Required
Banks have agreed, to amend the Existing Credit Agreement as
provided herein; and
NOW, THEREFORE
, in consideration of the agreements
hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
PART 1
DEFINITIONS
SUBPART 1.1
Certain Definitions . Unless
otherwise defined herein or the context otherwise requires, the
following terms used in this Amendment, including its preamble and
recitals, have the following meanings:
“ Amended Credit
Agreement ” means the Existing Credit Agreement as
amended hereby.
“ Third Amendment Effective
Date ” is defined in Subpart 4.1 .
SUBPART 1.2
Other Definitions . Unless
otherwise defined herein or the context otherwise requires, terms
used in this Amendment, including its preamble and recitals, have
the meanings provided in the Existing Credit Agreement.
PART 2
AMENDMENTS TO EXISTING CREDIT
AGREEMENT
Effective on (and subject to the
occurrence of) the Third Amendment Effective Date, the Existing
Credit Agreement is hereby amended in accordance with this Part
2 .
SUBPART 2.1
Section 1.1 of the Existing
Credit Agreement is hereby amended by adding the following
definitions of “ Additional Commitment Bank ”,
“ Existing Termination Date ”, “
Extension Date”, “ Extending Bank
”, ““ Increase Effective Date ”,
“ Investment Grade ”, “ Non-Consenting
Bank ”, “ Non-Extending Bank ” “
Notice Date ” “ Permitted Asset Swap
” and “ Third Amendment Effective Date ”
in appropriate alphabetical order:
“ Additional Commitment
Bank ” has the meaning set forth in
Section 2.11(d).
“ Existing Termination
Date ” has the meaning set forth in
Section 2.11(a).
“ Extending Bank
” has the meaning set forth in
Section 2.11(e).
“ Extension Date
” has the meaning set forth in
Section 2.11(a).
“ Increase Effective
Date ” has the meaning set forth in
Section 2.10.
“ Investment Grade
” means a senior unsecured long term debt rating of at least
Baa3 from Moody’s and BBB- from S&P.
“ Non-Consenting Bank
” has the meaning set forth in Section 11.18.
“ Non-Extending Bank
” has the meaning set forth in
Section 2.11(b).
“ Notice Date ”
has the meaning set forth in Section 2.11(b).
“ Permitted Asset Swap
” means any transfer of properties or assets by any member of
the Consolidated Group in which at least 90% of the consideration
received by the transferor consists of properties or assets (other
than cash) that will be used in a business that is related,
ancillary or complementary to the business of the Borrowers or any
of their Subsidiaries on the Third Amendment Effective Date (or any
reasonable extension, development or expansion thereof); provided
that the aggregate fair market value (as determined in good faith
by the Board of Directors of the relevant Credit Party) of the
property or assets transferred in such exchange is not greater than
that of the assets or property received.
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“Third Amendment Effective
Date” means July 14, 2008.
SUBPART 2.2
The definition of “
Eligible Inventory ” set forth in Section 1.1 of
the Existing Credit Agreement is hereby deleted in its
entirety.
SUBPART 2.3
The definition of “
Extension of Credit ” set forth in Section 1.1 of
the Existing Credit Agreement is hereby amended by replacing such
definition in its entirety with the following:
“ Extension of Credit
” means, as to any Bank, the making of, or participation in,
a Loan by such Bank or the issuance or extension of, or
participation in, a Letter of Credit by such Bank.
SUBPART 2.4
The definition of “
Permitted Investments ” set forth in Section 1.1
of the Existing Credit Agreement is hereby amended by replacing
subsection (viii) of such definition in its entirety with the
following:
(viii) Investments of a nature not
contemplated in the foregoing subsections; provided ,
however, to the extent that the Consolidated Total Leverage Ratio
on a Pro Forma Basis after giving effect to any such Investment is
greater than 2.25:1.00, the aggregate amount of such Investments
permitted pursuant to the clause (viii) shall not exceed the
greater of (A) the Investments permitted under this clause
(viii) and made prior to the date that the Consolidated Total
Leverage Ratio referred to in this clause (viii) exceeded
2.25:1.00 and (B) $15,000,000 in the aggregate at any time
outstanding.
SUBPART 2.5
The definition of “
Permitted Liens ” set forth in Section 1.1 of the
Existing Credit Agreement is hereby amended by (a) deleting
“and” from the end of clause (xv) of such Section,
(b) renumbering clause (xvi) of such Section to
(xviii) and (c) adding the following as the new clauses
(xvi) and (xvii) of such Section:
(xvi) Liens on real property located
at 9120 Lockwood Boulevard, Mechanicsville, Virginia 23116 owned by
Owens & Minor Medical, Inc. secured by a mortgage not to
exceed $40,000,000 in the aggregate at any one time
outstanding;
(xvii) other Liens on Property of
any Person securing Indebtedness of any member of the Consolidated
Group not to exceed $25,000,000 in the aggregate at any one time
outstanding; and
SUBPART 2.6
The definition of “ Pro
Forma Basis ” set forth in Section 1.1 of the
Existing Credit Agreement is hereby amended by replacing subsection
(iv) of such definition in its entirety with the
following:
(iv) any Investment permitted by
clause (viii) of the definition of Permitted Investments
and
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SUBPART 2.7
The definition of “
Responsible Officer ” set forth in Section 1.1 of
the Existing Credit Agreement is hereby amended by replacing such
definition in its entirety with the following:
“ 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 Chief Executive Officer, the
President, Executive Vice President, Chief Financial Officer,
Controller, General Counsel or Treasurer of the Borrower or the
Parent.
SUBPART 2.8
The definition of “ Senior
Subordinated Notes ” set forth in Section 1.1 of the
Existing Credit Agreement is hereby amended by replacing such
definition in its entirety with the following:
“ Senior Subordinated
Notes ” means those $200,000,000 8.5% Senior Subordinated
Notes of the Parent due 2011 that were paid in full on or about
April 15, 2006.
SUBPART 2.9
Amendment to
Section 2.1(b) .
Subsection (b) of Section 2.1 of the Existing Credit
Agreement is hereby amended by deleting the reference to
“FIFTY MILLION DOLLARS ($50,000,000)” and replacing it
with “SEVENTY-FIVE MILLION DOLLARS
($75,000,000)”.
SUBPART 2.10
Amendment to Section 2 .
Section 2 of the Existing Credit Agreement is hereby amended
to add the following as Subsection 2.10:
2.10 Increase in
Commitments.
(a) Request for Increase .
Provided there exists no Default, upon notice to the Administrative
Agent (which shall promptly notify the Banks), the Borrowers may
from time to time, request an increase in the aggregate Commitments
by an amount (for all such requests) not exceeding $100,000,000;
provided that (i) any such request for an increase
shall be in a minimum amount of $25,000,000, and (ii) the
Borrowers may make a maximum of three such requests. At the time of
sending such notice, the Borrowers (in consultation with the
Administrative Agent) shall specify the time period within which
each Bank is requested to respond (which shall in no event be less
than ten Business Days from the date of delivery of such notice to
the Banks).
(b) Bank Elections to
Increase . Each Bank shall notify the Administrative Agent
within such time period whether or not it agrees to increase its
Commitment and, if so, whether by an amount equal to, greater than,
or less than its pro rata share of such requested increase. Any
Bank not responding within such time period shall be deemed to have
declined to increase its Commitment.
(c) Notification by
Administrative Agent; Additional Banks . The Administrative
Agent shall notify the Borrowers and each Bank of the Banks’
responses to each request made hereunder. To achieve the full
amount of a requested increase and
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subject to the approval of the
Administrative Agent, the Issuing Bank and the Swingline Bank
(which approvals shall not be unreasonably withheld), the Borrowers
may also invite additional Eligible Assignees to become Banks
pursuant to a joinder agreement in form and substance reasonably
satisfactory to the Administrative Agent and its
counsel.
(d) Effective Date and
Allocations . If the aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the
Borrowers shall determine the effective date (the “
Increase Effective Date ”) and the final allocation of
such increase. The Administrative Agent shall promptly notify the
Borrowers and the Banks of the final allocation of such increase
and the Increase Effective Date.
(e) Conditions to Effectiveness
of Increase . As a condition precedent to such increase, the
Borrowers shall deliver to the Administrative Agent a certificate
of each Credit Party dated as of the Increase Effective Date (in
sufficient copies for each Bank) signed by the Chief Executive
Officer, the President, Executive Vice President, Chief Financial
Officer, Controller, General Counsel or Treasurer of such Credit
Party (i) certifying and attaching the resolutions adopted by
such Credit Party approving or consenting to such increase, and
(ii) in the case of the Borrowers, certifying that, before and
after giving effect to such increase, (A) the representations
and warranties contained in Section VI and the other Credit
Documents are true and correct in all material respects on and as
of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier
date, in which case they are true and correct in all material
respects as of such earlier date, and except that for purposes of
this Section 2.10 , the representations and warranties
contained in subsections (a) and (b) of
Section 6.7 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b),
respectively, of Section 7.1 , and (B) no Default
exists. The Borrowers shall prepay any Loans outstanding on the
Increase Effective Date (and pay any additional amounts required
pursuant to Section 3.12 ) to the extent necessary to
keep the outstanding Loans ratable with any revised percentage of
the Banks’ Commitments arising from any nonratable increase
in the Commitments under this Section.
(f) Conflicting Provisions .
This Section shall supersede any provisions in
Section 3.14 or 11.6 to the contrary.
SUBPART 2.11
Amendment to
Section 2 .
Section 2 of the Existing Credit Agreement is hereby amended
to add the following as Subsection 2.11:
2.11 Extension of Termination
Date.
(a) Requests for Extension .
The Borrower may, by notice to the Administrative Agent (who shall
promptly notify the Banks) not later than 120 days prior to the
Termination Date (the “ Extension Date ), request that
each Bank extend such Bank’s Termination Date for an
additional year from the Termination Date then in effect hereunder
(the “ Existing Termination Date ”).
(b) Bank Elections to Extend
. Each Bank, acting in its sole and individual discretion, shall,
by notice to the Administrative Agent given not later than the date
(the
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“ Notice Date ”)
that is 15 Business Days from the date which such Bank received
notice from the Administrative Agent of the Borrower’s
request for an extension of the Existing Termination Date, advise
the Administrative Agent whether or not such Bank agrees to such
extension. Each Bank that determines not to so extend its
Termination Date (a “ Non-Extending Bank ”)
shall notify the Administrative Agent of such fact promptly after
such determination (but in any event no later than the Notice
Date), and any Bank that does not so advise the Administrative
Agent on or before the Notice Date shall be deemed to be a
Non-Extending Bank. The election of any Bank to agree to such
extension shall not obligate any other Bank to so agree.
(c) Notification by
Administrative Agent . The Administrative Agent shall notify
the Borrower of each Bank’s determination under this
Section 2.11 no later than the date 15 days prior to the
applicable Extension Date (or, if such date is not a Business Day,
on the next preceding Business Day).
(d) Additional Commitment
Banks . The Borrower shall have the right on or before the
Extension Date (effective as of the Extension Date) to replace the
Commitments of any Non-Extending Banks with, and at its option add
as “ Banks ” under this Agreement, one or more
Eligible Assignees (each, an “ Additional Commitment
Bank ”) as provided in Section 11.18, each of which
Additional Commitment Banks shall have entered into an Assignment
and Assumption pursuant to which such Additional Commitment Bank
shall, effective as of the applicable Extension Date, undertake a
Commitment (and, if any such Additional Commitment Bank is already
a Bank, its Commitment shall be in addition to such Bank’s
Commitment hereunder on such date).
(e) Minimum Extension
Requirement . If (and only if) the total of the Commitments of
the Banks that have agreed so to extend their Termination Date
(each, an “ Extending Bank ”) and the additional
Commitments of the Additional Commitment Banks shall be more than
50% of the aggregate amount of the Commitments in effect
immediately prior to the applicable Extension Date, then, effective
as of such Extension Date, the Termination Date of each Extending
Bank and of each Additional Commitment Bank shall be extended to
the date falling one year after the Existing Termination Date
(except that, if such date is not a Business Day, such Termination
Date as so extended shall be the next preceding Business Day) and
each Additional Commitment Bank shall thereupon become a “
Bank ” for all purposes of this Agreement;
provided , however , that there shall be no change in
the Termination Date of any Non-Extending Bank.
(f) Conditions to Effectiveness
of Extensions . Notwithstanding the foregoing, the extension of
the Termination Date pursuant to this Section shall not be
effective with respect to any Bank unless:
(i) no Default exists on the date of
such extension and after giving effect thereto;
(ii) the representations and
warranties contained in Article VI and the other Loan Documents are
true and correct in all material respects on and as of
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the Extension Date, except to the
extent that such representations and warranties specifically refer
to an earlier date, in which case they are true and correct in all
material respects as of such earlier date; and
(iii) to the extent the Commitments
of any Non-Extending Bank shall not be replaced with Commitments
from one or more Additional Commitment Banks on the applicable
Extension Date as provided for in Section 2.11(d), and thus
there shall be no change in the applicable Termination Date for
such Non-Extending Bank, it is understood
