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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Form 10-Q
(Mark One)
[X] |
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE |
|
SECURITIES EXCHANGE ACT OF 1934 |
||
For the Quarterly period ended March 31, 2002 |
||
[ ] |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE |
|
SECURITIES EXCHANGE ACT OF 1934 |
||
For the transition period from _________ to _________ |
Commission file number 1-9913
KINETIC CONCEPTS, INC.
(Exact name of registrant as specified in its charter)
Texas |
74-1891727 |
(State of Incorporation) |
(I.R.S. Employer Identification No.) |
8023 Vantage Drive
San Antonio, Texas 78230
Telephone Number: (210) 524-9000
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No ___
Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date.
Common Stock: 70,928,040 shares as of May 1, 2002
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTSCondensed Consolidated Balance Sheets
Condensed Consolidated Statements of Earnings
Condensed Consolidated Statements of Cash Flows
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
KINETIC CONCEPTS, INC.
INDEX
Page No. |
|||
PART I. |
FINANCIAL INFORMATION |
4 |
|
Item 1. |
Financial Statements |
4 |
|
Condensed Consolidated Balance Sheets |
4 |
||
Condensed Consolidated Statements of Earnings |
5 |
||
Condensed Consolidated Statements of Cash Flows |
6 |
||
Notes to Condensed Consolidated Financial Statements |
7 |
||
Parent Company Balance Sheet, March 31, 2002 |
17 |
||
Parent Company Balance Sheet, December 31, 2001 |
18 |
||
Parent Company Statement of Earnings, three months ended March 31, 2002 |
19 |
||
Parent Company Statement of Earnings, three months ended March 31, 2001 |
20 |
||
Parent Company Statement of Cash Flows, three months ended March 31, 2002 |
21 |
||
Parent Company Statement of Cash Flows, three months ended March 31, 2001 |
22 |
||
Item 2. |
Management's Discussion and Analysis of Financial Condition and Results of Operations |
24 |
|
Item 3. |
Quantitative and Qualitative Disclosures about Market Risk |
34 |
|
PART II. |
OTHER INFORMATION |
35 |
|
Item 6. |
Exhibits and Reports on Form 8-K |
35 |
|
SIGNATURES |
37 |
PART I - FINANCIAL INFORMATION
KINETIC CONCEPTS, INC. AND SUBSIDIARIES |
||||||||
(in thousands) |
||||||||
March 31, |
December 31, |
|||||||
2002 |
2001 |
|||||||
(unaudited) |
||||||||
Assets: |
||||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ 2,283 |
$ 199 |
||||||
Accounts receivable, net |
132,307 |
121,364 |
||||||
Inventories, net |
40,528 |
40,166 |
||||||
Prepaid expenses and other current assets |
14,466 |
9,337 |
||||||
_______ |
_______ |
|||||||
Total current assets |
189,584 |
171,066 |
||||||
_______ |
_______ |
|||||||
Net property, plant and equipment |
97,887 |
89,981 |
||||||
Loan issuance cost, less accumulated amortization |
||||||||
of $10,212 in 2002 and $9,634 in 2001 |
8,024 |
8,602 |
||||||
Goodwill, less accumulated amortization of $26,785 |
||||||||
in both 2002 and 2001 |
43,035 |
43,035 |
||||||
Other assets, less accumulated amortization of |
||||||||
$5,893 in 2002 and $5,113 in 2001 |
34,576 |
30,509 |
||||||
_______ |
_______ |
|||||||
$ 373,106 |
$ 343,193 |
|||||||
_____ |
_____ |
|||||||
Liabilities and Shareholders' Deficit: |
||||||||
Current liabilities: |
||||||||
Accounts payable |
$ 8,808 |
$ 8,429 |
||||||
Accrued expenses |
44,654 |
48,108 |
||||||
Current installments of long-term obligations |
4,000 |
2,750 |
||||||
Current installments of capital lease obligations |
167 |
171 |
||||||
Derivative financial instruments |
1,279 |
2,512 |
||||||
Income taxes payable |
11,717 |
8,761 |
||||||
_______ |
_______ |
|||||||
Total current liabilities |
70,625 |
70,731 |
||||||
_______ |
_______ |
|||||||
Long-term obligations, net of current installments |
524,637 |
503,875 |
||||||
Capital lease and other obligations, net of |
||||||||
current installments |
547 |
549 |
||||||
Deferred income taxes, net |
5,262 |
4,363 |
||||||
_______ |
_______ |
|||||||
601,071 |
579,518 |
|||||||
_______ |
_______ |
|||||||
Shareholders' deficit: |
||||||||
Common stock; issued and outstanding 70,925 |
||||||||
in both 2002 and 2001 |
71 |
71 |
||||||
Retained deficit |
(217,948) |
(226,381) |
||||||
Accumulated other comprehensive loss |
(10,088) |
(10,015) |
||||||
_______ |
_______ |
|||||||
(227,965) |
(236,325) |
|||||||
_______ |
_______ |
|||||||
$ 373,106 |
$ 343,193 |
|||||||
_____ |
_____ |
|||||||
See accompanying notes to condensed consolidated financial statements. |
KINETIC CONCEPTS, INC. AND SUBSIDIARIES |
|||||
Three months ended |
|||||
March 31, |
|||||
2002 |
2001 |
||||
Revenue: |
|||||
Rental and service |
$ 101,415 |
$ 81,344 |
|||
Sales and other |
25,726 |
21,893 |
|||
_______ |
_______ |
||||
Total revenue |
127,141 |
103,237 |
|||
_______ |
_______ |
||||
Rental expenses |
61,790 |
50,954 |
|||
Cost of goods sold |
9,605 |
8,135 |
|||
_______ |
_______ |
||||
71,395 |
59,089 |
||||
_______ |
_______ |
||||
Gross profit |
55,746 |
44,148 |
|||
Selling, general and administrative expenses |
31,192 |
23,891 |
|||
_______ |
_______ |
||||
Operating earnings |
24,554 |
20,257 |
|||
Interest income |
10 |
40 |
|||
Interest expense |
(10,308) |
(11,934) |
|||
Foreign currency loss |
(544) |
(925) |
|||
_______ |
_______ |
||||
Earnings before income taxes |
13,712 |
7,438 |
|||
Income taxes |
5,279 |
3,124 |
|||
_______ |
_______ |
||||
Net earnings |
$ 8,433 |
$ 4,314 |
|||
_____ |
_____ |
||||
Earnings per common share |
$ 0.12 |
$ 0.06 |
|||
_____ |
_____ |
||||
Earnings per common share -- |
|||||
assuming dilution |
$ 0.11 |
$ 0.06 |
|||
_____ |
_____ |
||||
Average common shares: |
|||||
Basic (weighted average |
|||||
outstanding shares) |
70,925 |
70,915 |
|||
|
_____ |
_____ |
|||
Diluted (weighted average |
|||||
outstanding shares) |
77,721 |
73,077 |
|||
_____ |
_____ |
||||
See accompanying notes to condensed consolidated financial statements. |
Table of Contents
KINETIC CONCEPTS, INC. AND SUBSIDIARIES |
|||||||
(in thousands) |
|||||||
(unaudited) |
|||||||
Three months ended |
|||||||
|
|||||||
2002 |
2001 |
||||||
Cash flows from operating activities: |
|||||||
Net earnings |
$ 8,433 |
$ 4,314 |
|||||
Adjustments to reconcile net earnings to net cash |
|||||||
provided by operating activities: |
|||||||
Depreciation |
7,537 |
7,156 |
|||||
Amortization |
1,475 |
1,618 |
|||||
Provision for uncollectible accounts receivable |
2,514 |
1,727 |
|||||
Change in assets and liabilities net of effects from |
|||||||
purchase of subsidiaries and unusual items: |
|||||||
Increase in accounts receivable, net |
(13,655) |
(10,539) |
|||||
Increase in inventories |
(499) |
(4,663) |
|||||
Increase in prepaid expenses and other |
(5,129) |
(6,941) |
|||||
Increase in accounts payable |
324 |
454 |
|||||
Increase (decrease) in accrued expenses |
(3,521) |
5,794 |
|||||
Increase in income taxes payable |
2,956 |
2,428 |
|||||
Increase (decrease) in deferred income taxes, net |
340 |
(748) |
|||||
______ |
______ |
||||||
Net cash provided by operating activities |
775 |
600 |
|||||
______ |
______ |
||||||
Cash flows from investing activities: |
|||||||
Additions to property, plant and equipment |
(16,269) |
(8,683) |
|||||
Decrease (increase) in inventory to be converted into |
|||||||
equipment for short-term rental |
(200) |
700 |
|||||
Dispositions of property, plant and equipment |
842 |
426 |
|||||
Businesses acquired in purchase transactions, net of cash |
|||||||
acquired |
(3,736) |
- |
|||||
Increase in other assets |
(1,229) |
(848) |
|||||
______ |
______ |
||||||
Net cash used by investing activities |
(20,592) |
(8,405) |
|||||
______ |
______ |
||||||
Cash flows from financing activities: |
|||||||
Borrowings of notes payable, long-term |
|||||||
and capital lease obligations |
22,005 |
8,420 |
|||||
______ |
______ |
||||||
Net cash provided by financing activities |
22,005 |
8,420 |
|||||
______ |
______ |
||||||
Effect of exchange rate changes on cash and cash equivalents |
(104) |
(418) |
|||||
______ |
______ |
||||||
Net increase in cash and cash equivalents |
2,084 |
197 |
|||||
Cash and cash equivalents, beginning of period |
199 |
2,139 |
|||||
______ |
______ |
||||||
Cash and cash equivalents, end of period |
$ 2,283 |
$ 2,336 |
|||||
____ |
____ |
||||||
Supplemental disclosure of cash flow information: |
|||||||
Cash paid during the first three months for: |
|||||||
Interest |
$ 4,924 |
$ 6,774 |
|||||
Income taxes |
$ 1,839 |
$ 1,189 |
|||||
See accompanying notes to condensed consolidated financial statements. |
KINETIC CONCEPTS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
(1) BASIS OF PRESENTATION
The financial statements presented herein include the accounts of Kinetic Concepts, Inc. and all subsidiaries (the "Company"). The unaudited condensed consolidated financial statements appearing in this quarterly report on Form 10-Q should be read in conjunction with the financial statements and notes thereto included in the Company's latest annual report on Form 10-K. Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted. The foregoing financial information reflects all adjustments (consisting only of normal recurring adjustments) which are, in the opinion of management, necessary for a fair presentation of the financial position and results of operations for the interim periods presented. Interim period operating results are not necessarily indicative of the results to be expected for the full fiscal year. Ce rtain reclassifications of amounts related to the prior year have been made to conform with the 2002 presentation. For additional information regarding Critical Accounting Policies, refer to Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations, beginning on page 24.
(2) ACQUISITIONS
In 1996, the Company acquired a 26% interest in the capital stock of Polymedics N.V., ("Polymedics"), a Belgium manufacturer of foam used in certain V.A.C. dressings. During the first quarter of 2002, the Company acquired the remaining 74% of Polymedics stock for approximately $3.7 million in cash. Polymedics' operating results did not have a material impact on the Company's results of operations for 2002, 2001 or 2000.
(3) ACCOUNTS RECEIVABLE COMPONENTS
Accounts receivable consist of the following (dollars in thousands):
March 31, |
December 31, |
||
2002 |
2001 |
||
Trade accounts receivable: |
|||
Facilities / dealers |
$ 75,667 |
$ 73,088 |
|
Third-party payers: |
|||
Medicare / Medicaid |
27,607 |
22,006 |
|
Managed Care commercial and other |
45,828 |
40,375 |
|
_______ |
_______ |
||
149,102 |
135,469 |
||
Medicare V.A.C. receivables prior to |
|||
October 1, 2000 |
14,351 |
14,351 |
|
Employee and other receivables |
2,219 |
2,075 |
|
_______ |
_______ |
||
165,672 |
151,895 |
||
Less: Allowance for doubtful receivables |
(19,014) |
(16,180) |
|
Medicare V.A.C. receivable allowance |
|||
prior to October 1, 2000 |
(14,351) |
(14,351) |
|
_______ |
_______ |
||
$ 132,307 |
$ 121,364 |
||
_____ |
_____ |
Table of Contents
(4) INVENTORY COMPONENTS
Inventories are stated at the lower of cost (first-in, first-out) or market (net realizable value). Inventories are comprised of the following (dollars in thousands):
March 31, |
December 31, |
||
2002 |
2001 |
||
Finished goods |
$ 15,782 |
$ 11,244 |
|
Work in process |
3,282 |
3,540 |
|
Raw materials, supplies and parts |
33,556 |
37,081 |
|
______ |
______ |
||
52,620 |
51,865 |
||
Less: Amounts expected to be converted |
|||
into equipment for short-term rental |
(11,000) |
(10,800) |
|
Reserve for excess and obsolete |
|||
inventory |
(1,092) |
(899) |
|
______ |
______ |
||
$ 40,528 |
$ 40,166 |
||
____ |
____ |
(5) LONG-TERM OBLIGATIONS
Long-term obligations consist of the following (dollars in thousands):
March 31, |
December 31, |
||
|
2002 |
2001 |
|
Senior Credit Facilities: |
|||
Revolving bank credit facility |
$ 34,500 |
$ 11,800 |
|
Term loans: |
|||
Tranche A due 2003 |
27,500 |
27,500 |
|
Tranche B due 2004 |
86,175 |
86,400 |
|
Tranche C due 2005 |
86,175 |
86,400 |
|
Tranche D due 2006 |
94,287 |
94,525 |
|
_______ |
_______ |
||
328,637 |
306,625 |
||
9 5/8% Senior Subordinated |
|||
Notes Due 2007 |
200,000 |
200,000 |
|
_______ |
_______ |
||
528,637 |
506,625 |
||
Less current installments |
(4,000) |
(2,750) |
|
_______ |
_______ |
||
$ 524,637 |
$ 503,875 |
||
_____ |
_____ |
Senior Credit Facilities
Indebtedness under the Senior Credit Facilities, as amended and restated, including the Revolving Credit Facility (other than certain loans under the Revolving Credit Facility designated in foreign currency) and the Term Loans, initially bear interest at a rate based upon (i) the Base Rate (defined as the higher of (x) the rate of interest publicly announced by Bank of America as its "reference rate" or (y) the federal funds effective rate from time to time plus 0.50%), plus 1.75% in respect of the Tranche A Term Loans and the loans under the Revolving Credit Facility (the "Revolving Loans"), 2.00% in respect of the Tranche B Term Loans, 2.25% in respect of the Tranche C Term Loans and 2.125% in respect of the Tranche D Term Loans, or at the Company's option, (ii) the Eurodollar Rate (as defined in the Senior Credit Facility Agreement) for one, two, three or six months, in each case plus 2.75% in respect of Tranche A Term Loans and Revolving Loans, 3 .00% in respect of Tranche B Term Loans, 3.25% in respect of the Tranche C Term Loans and 3.125% in respect to the Tranche D Term Loans. Certain Revolving Loans designated in foreign currency will initially bear interest at a
rate based upon the cost of funds for such loans plus 2.75%. Performance-based reductions of the interest rates under the Term Loans and the Revolving Loans are available.
In January 2001, the Company entered into an interest rate swap which fixed the base-borrowing rate on $150 million of the Company's variable rate debt at 5.36% and was effective from January 5, 2001 through December 31, 2001. On October 1, 2001, the Company terminated its $150 million, 5.36% interest rate swap to take advantage of lower interest rates and entered into two new interest rate swaps, which resulted in additional interest expense of $1.1 million in the fourth quarter of 2001. One interest rate swap fixes the base-borrowing rate on $150 million of the Company's variable rate debt at 3.57% per annum and is effective October 1, 2001 through December 31, 2002. The second interest rate swap fixes the rate on an additional $100 million of the Company's variable rate debt at 2.99% annually and is effective October 1, 2001 through December 31, 2002. As of March 31, 2002, these agreements effectively fix the base-borrowing rate on 76.1% of the Company's va riable rate debt. As a result of the interest rate protection agreements, the Company recorded additional interest expense of approximately $660,000 in the first quarter of 2002 and an interest expense benefit of approximately $90,000 in the first quarter of 2001.
The Term Loans, other than Tranche D, are subject to quarterly amortization payments which began on March 31, 1998. The Tranche D Term Loan amortizes at 1% per year beginning September 30, 2001 through December 31, 2005 with a final payment of $90.7 million due March 31, 2006. The Revolving Loans may be repaid and reborrowed. At March 31, 2002, the Company had three Letters of Credit in the amount of $5.5 million, and the aggregate availability under the Revolving Credit facility was $10.0 million.
Indebtedness of the Company under the Senior Credit Facilities Agreement is guaranteed by certain of the subsidiaries of the Company and is secured by (i) a first priority security interest in all of the tangible and intangible assets of the Company and its domestic subsidiaries (subject to certain customary exceptions), including, without limitation, intellectual property and real estate owned by the Company and its subsidiaries, (ii) a first priority perfected pledge of all capital stock of the Company's domestic subsidiaries and (iii) a first priority perfected pledge of up to 65% of the capital stock of foreign subsidiaries owned directly by the Company or its domestic subsidiaries.
The Senior Credit Agreement requires the Company to meet certain financial tests, including minimum levels of EBITDA (as defined therein), minimum interest coverage, maximum leverage ratio and capital expenditures. The Senior Credit Agreement also contains covenants which, among other things, limit the Company's ability to: incur additional indebtedness, make investments, announce or pay dividends, make loans and advances, make capital expenditures, enter into transactions with affiliates, dispose of its assets, enter into acquisitions, mergers or consolidation transactions, make prepayments on other indebtedness, create or permit to be created any liens on any of its properties, or undertake certain other matters customarily restricted in such agreements. At March 31, 2002, the Company is in compliance with all applicable covenants.
The Senior Credit Agreement also contains customary events of default, including payment defaults, any breach of representations and warranties, covenant defaults, cross-defaults to certain other indebtedness, certain events of bankruptcy and insolvency, failures under ERISA plans, judgment defaults, any change of control of the Company and failure of any guaranty, security document, security interest or subordination provision under the Senior Credit Agreement. In addition, the Senior Credit Agreement provides for mandatory repayments, subject to certain exceptions, of the Term Loans and the Revolving Credit Facility based on certain net asset sales outside the ordinary course of business of the Company and its subsidiaries, the net proceeds of certain debt and equity issuances and excess cash flows.
On June 15, 2001, the Company entered into an Amended and Restated Credit and Guarantee Agreement, which funded a $95 million Tranche D Term Loan as part of a refinancing of the Company's Senior Secured Credit Facilities. Proceeds from the Tranche D Term Loan were used to pay down existing indebtedness, including $60 million outstanding under the Tranche A Term Loan, approximately $8 million outstanding under the Acquisition Credit Facility and $26 million under the
Revolving Credit Facility with the remaining proceeds used to pay fees and expenses associated with this transaction. The Revolving Loans may be repaid and reborrowed.
On April 4, 2002, the Company entered into a Second Amended and Restated Credit and Guarantee Agreement (the "Amended Credit Agreement"). The Amended Credit Agreement funded a $30 million Tranche E Term Loan as part of a refinancing of the Company's Senior Secured Credit Facilities. Proceeds from the Tranche E Term Loan were used to pay down existing indebtedness of $29.6 million under the Revolving Credit Facility with the remaining proceeds used to pay fees and expenses associated with the transaction. The Tranche E Term Loan will initially bear interest at a rate based upon the Base Rate plus 2.25%, or at the Company's option, the Eurodollar Rate plus 3.25%. In addition, performance-based reductions of the interest rate under Term Loan E are available. The Tranche E Term Loan amortizes at 1% per year beginning June 30, 2002 with a final payment of $29.0 million due December 31, 2005.
9 5/8% Senior Subordinated Notes Due 2007
The 9 5/8% Senior Subordinated Notes (the "Notes") due 2007 are unsecured obligations of the Company, ranking subordinate in right of payment to all senior debt of the Company and will mature on November 1, 2007. Interest on the Notes accrues at the rate of 9 5/8% per annum and is payable semiannually in cash on each May 1 and November 1, to the persons who are registered Holders at the close of business on April 15 and October 15, respectively, immediately preceding the applicable interest payment date. Interest on the Notes accrues from and includes the most recent date to which interest has been paid or, if no interest has been paid, from and including the date of issuance.
The Notes are not entitled to the benefit of any mandatory sinking fund. In addition, at any time, or from time to time, the Company may acquire a portion of the Notes through open-market purchases.
(6) ACCOUNTING FOR GOODWILL AND OTHER INTANGIBLE ASSETS
Goodwill represents the excess purchase price over the fair value of net assets acquired. Effective January 1, 2002, the Company applied the provisions of Statement of Financial Accounting Standards No. 142, ("SFAS 142"), Goodwill and Other Intangible Assets in its accounting for goodwill. Under SFAS 142, goodwill and intangible assets that have indefinite useful lives are no longer subject to amortization over an estimated useful life. Rather, goodwill and indefinite-lived intangible assets are subject to, at least, an annual assessment for impairment. SFAS 142 provides specific guidance for testing goodwill for impairment. Intangible assets with finite useful lives will continue to be amortized over their useful lives. Goodwill has been tested for impairment during the first quarter of 2002 and will be tested for impairment at least annually.
The following table shows the effect of the adoption of SFAS 142 on the Company's net income as of March 31, 2001 as if the adoption had occurred on January 1, 2001 (dollars in thousands, except per share data):
|
Pro Forma |
March 31, 2001 |
|
Net earnings - as reported |
$ 4,314 |
Amortization |
862 |
_____ |
|
Adjusted net earnings |
$ 5,176 |
____ |
|
Earnings per common share - as reported |
$ 0.06 |
Amortization |
0.01 |
_____ |
|
$ 0.07 |
|
____ |
|
Earnings per common share - assuming dilution |
|
- as reported |
$ 0.06 |
Amortization |
0.01 |
_____ |
|
Adjusted earnings per common share - |
|
assuming dilution |
$ 0.07 |
____ |
The Company has recorded amortizable intangible assets which are included in Other Assets on the Condensed Consolidated Balance Sheets. Other assets include the following (dollars in thousands):
March 31, |
December 31, |
||
2002 |
2001 |
||
Patents, trademarks and other |
$ 8,986 |
$ 8,867 |
|
Accumulated amortization |
(5,893) |
(5,113) |
|
______ |
______ |
||
3,093 |
3,754 |
||
Other tangible, noncurrent assets |
31,483 |
26,755 |
|
______ |
______ |
||
Total other assets, net |
$ 34,576 |
$ 30,509 |
|
____ |
____ |
Amortization expense, related to finite-lived intangibles, was approximately $895,000 and $180,000 for the three months ended March 31, 2002 and 2001, respectively. The Company amortizes these intangible assets over 5 to 17 years, depending on the estimated economic life of the individual asset. The following table shows the estimated amortization expense, in total for all finite-lived intangible assets, to be incurred over the next five years (dollars in thousands):
Estimated |
|
Year ended |
Amortization |
December 31, |
Expense |
2002 |
$ 1,008 |
2003 |
$ 291 |
2004 |
$ 237 |
2005 |
$ 226 |
2006 |
$ 226 |
(See Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations, Critical Accounting Policies.)
(7) EARNINGS PER SHARE
The following table sets forth the reconciliation from basic to diluted average common shares and the calculations of net earnings per common share. Net earnings for basic and diluted calculations do not differ (dollars in thousands, except per share data):
Three months ended |
|||
2002 |
2001 |
||
Net earnings |
$ 8,433 |
$ 4,314 |
|
_____ |
_____ |
||
Average common shares: |
|||
Basic (weighted-average outstanding shares) |
70,925 |
70,915 |
|
Dilutive potential common shares from stock |
|||
options |
6,796 |
2,162 |
|
_____ |
_____ |
||
Diluted (weighted-average outstanding |
|||
shares) |
77,721 |
73,077 |
|
_____ |
_____ |
||
Earnings per common share |
$ 0.12 |
$ 0.06 |
|
_____ |
_____ |
||
Earnings per common share - assuming |
|||
dilution |
$ 0.11 |
$ 0.06 |
|
_____ |
_____ |
(8) COMMITMENTS AND CONTINGENCIES
The Company is a party to several lawsuits arising in the ordinary course of its business. Provisions have been made in the Company's financial statements for estimated exposures related to these lawsuits. In the opinion of management, the disposition of these matters will not have a material adverse effect on the Company's business, financial condition or results of operations. (See Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations, Legal Proceedings.)
The manufacturing and marketing of medical products necessarily entails an inherent risk of product liability claims. The Company currently has certain product liability claims pending for which provision has been made in the Company's financial statements. Management believes that resolution of these claims will not have a material adverse effect on the Company's business, financial condition or results of operations. The Company has not experienced any significant losses due to product liability claims and management believes that the Company currently maintains adequate liability insurance coverage.
Other than commitments for new product inventory, including disposable "for sale" products of $6.1 million, the Company has no material long-term capital commitments and can adjust its level of capital expenditures as circumstances dictate.
(9) OTHER COMPREHENSIVE INCOME
The components of other comprehensive income are as follows (dollars in thousands):
Three months ended |
|||
2002 |
2001 |
||
Net earnings |
$ 8,433 |
$ 4,314 |
|
Foreign currency translation adjustment |
(746) |
(1,626) |
|
Net derivative income (loss), net of |
|||
taxes of $200 in 2002 and $305 in 2001 |
371 |
(567) |
|
Reclassification adjustment for (gains) losses |
|||
included in income, net of taxes of |
|||
$232 in 2002 and $32 in 2001 |
430 |
(58) |
|
Reclassification adjustment for loss |
|||
recognized on termination of interest |
|||
rate swap, net of taxes of $78 |
(128) |
- |
|
_____ |
_____ |
||
Other comprehensive income |
$ 8,360 |
$ 2,063 |
|
____ |
____ |
The earnings associated with certain of the Company's foreign affiliates are considered to be permanently invested and no provision for U.S. Federal and State income taxes on these earnings or translation adjustments has been made.
As of March 31, 2002, derivative financial instruments valued at a liability of $1.3 million were recorded as a result of the Company's adoption of FASB Statement No. 133, "Accounting for Derivative Instruments and Hedging Activities." This liability is based upon the valuation of the Company's interest rate protection agreements associated with its Senior Credit Facilities. (See Notes 5 and 11.)
(10) SEGMENT AND GEOGRAPHIC INFORMATION
The Company is principally engaged in the rental and sale of innovative therapeutic systems throughout the United States and in 14 primary countries and Puerto Rico internationally.
The Company defines its business segments based on geographic management responsibility. The Company has two reportable segments: USA, which includes operations in the United States, and International, which includes operations for all international units. The Company measures segment profit as operating earnings, which is defined as income before interest income or expense, foreign currency gains and losses, income taxes and minority interest. All intercompany transactions are eliminated in computing revenues, operating earnings and assets. Information on segments and a reconciliation of consolidated totals are as follows (dollars in thousands):
Three months ended |
||||||||
2002 |
2001 |
|||||||
Revenue: |
||||||||
USA |
$ 99,179 |
$ 78,663 |
||||||
International |
27,962 |
24,574 |
||||||
_______ |
_______ |
|||||||
$127,141 |
$103,237 |
|||||||
_____ |
_____ |
|||||||
Operating Earnings: |
||||||||
USA |
$ 32,016 |
$ 24,980 |
||||||
International |
4,143 |
5,191 |
||||||
Other (1): |
||||||||
Executive |
(1,807) |
(3,416) |
||||||
Finance |
(3,671) |
(3,061) |
||||||
Manufacturing/Engineering |
(2,089) |
(464) |
||||||
Administration |
(4,038) |
(2,973) |
||||||
_______ |
_______ |
|||||||
Total Other |
(11,605) |
(9,914) |
||||||
_______ |
_______ |
|||||||
$ 24,554 |
$ 20,257 |
|||||||
_____ |
_____ |
(1) Other includes general headquarter expenses which are not allocated to the individual
segments and are included in selling, general and administrative expenses within the
Company's Condensed Consolidated Statements of Earnings (see page 5).
(11) DERIVATIVE FINANCIAL STATEMENTS
The Company adopted Statement of Financial Accounting Standards No. 133 (SFAS 133), "Accounting for Derivative Instruments and Hedging Activities," and its amendments, Statements 137 and 138, on January 1, 2001. SFAS 133 requires that all derivative instruments be recorded on the balance sheet at fair value. The Company has designated its interest rate swap agreements as cash flow hedge instruments. The swap agreements are used to manage exposure to interest rate movement by effectively changing the variable interest rate to a fixed rate. Changes in the effective portion of the fair value of the interest rate swap agreement will be recognized in other comprehensive income, net of tax effects, until the hedged item is recognized into earnings, whereas the ineffective portion is recognized into income as incurred.
The Company entered into a $150.0 million swap agreement on January 5, 2001; therefore, in accordance with the transition provisions of SFAS 133, no cumulative effect of an accounting change was necessary. The $150.0 million swap was designated as a cash flow hedge of interest payments through December 31, 2001 and qualified for the shortcut method of accounting for such derivatives. On October 1, 2001, the Company terminated its $150.0 million, 5.36% interest rate swap to take advantage of lower interest rates, which resulted in additional interest expense of $1.1 million in the
fourth quarter of 2001. The new $150.0 million swap was designated as a hedge of interest payments effective October 1, 2001 through December 31, 2002. The amount included in other comprehensive income as of September 30, 2001 continues to be recognized over the original date through which interest payments were hedged, as the hedged item (interest payments) continues to exist. Additionally, accumulated other comprehensive loss was reduced by approximately $550,000 as a loss on termination of interest rate swap.
Although no cash was exchanged, the new $150.0 million swap does not qualify for the shortcut method because the fair value of the new swap was not zero at inception (it had a negative value). The Company has elected to use the "hypothetical derivative" method to measure effectiveness, which allows the Company to use the change in the fair value of a "hypothetical derivative" (one which had no fair value at inception with terms mirroring the actual derivative that would be assumed to be perfectly effective) as a proxy for the change in the expected fair value of the hedged transactions. As of March 31, 2002, the hedged cash flows offset the change in the fair value of expected cash flows by 104.4%; therefore, the hedge was deemed "highly effective". Hedge ineffectiveness, of approximately $10,000 was immaterial and recognized as an increase of interest expense in the first quarter of 2002. The Company will continue to mark the $150.0 million derivati ve to its fair value and record an offsetting amount (based upon the lesser of the cumulative change in the derivative or the cumulative change in the hypothetical derivative) in other comprehensive income, net of any related tax effects. At March 31, 2002, the fair value of the swap agreement is in an unfavorable position and was adjusted to a liability of $1,033,000. Accumulated other comprehensive loss was adjusted $671,000 for the net derivative liability and deferred income taxes payable was adjusted $362,000 for the tax benefit related to the derivative liability. The reclassification adjustment for the loss recognized on the termination of the interest rate swap increased accumulated other comprehensive income liability by $128,000 ($206,000 less taxes of $78,000) in the first quarter of 2002.
Also on October 1, 2001, the Company entered into a new $100.0 million swap, which was designated as a cash flow hedge of interest payments through December 31, 2002 and qualified for the shortcut method of accounting for such derivatives. The critical terms of the interest rate swap agreements and the interest-bearing debt associated with the swap agreements are the same. As of March 31, 2002, the fair value of the swap agreement is in an unfavorable position and was adjusted to a liability of $246,000. Accumulated other comprehensive loss was adjusted $160,000 for the net derivative liability and deferred income taxes payable was adjusted $86,000 for the tax benefit related to the derivative liability. Because the swap agreement is deemed to be an effective cash flow hedge, there will be no income statement impact related to the hedge ineffectiveness. (See Note 9.)
(12) SUBSEQUENT EVENTS
On April 4, 2002, the Company entered into a Second Amended and Restated Credit and Guarantee Agreement (the "Amended Credit Agreement"). The Amended Credit Agreement funded a $30 million Tranche E Term Loan as part of a refinancing of the Company's Senior Secured Credit Facilities. Proceeds from the Tranche E Term Loan were used to pay down existing indebtedness of $29.6 million under the Revolving Credit Facility with the remaining proceeds used to pay fees and expenses associated with the transaction. The Tranche E Term Loan amortizes at 1% per year beginning June 30, 2002 with a final payment of $29.0 million due December 31, 2005. Term Loan E will initially bear interest at a rate based upon the Base Rate plus 2.25%, or at the Company's option, the Eurodollar Rate plus 3.25%, however, performance-based reductions of the interest rate under Term Loan E are available.
(13) GUARANTOR CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
Kinetic Concepts, Inc. issued $200 million in subordinated debt securities to finance a tender offer to purchase certain of its common shares outstanding. In connection with the issuance of these securities, certain of its wholly-owned subsidiaries (the "guarantor subsidiaries") act as guarantors. Certain other subsidiaries (the "non-guarantor subsidiaries") do not guarantee such debt. The guarantor subsidiaries are wholly owned by the Company and the guarantees are full, unconditional,
and joint and several. The Company has not presented separate financial statements and other disclosures concerning the Subsidiary Guarantors because management has determined that such information is not material to investors.
Indebtedness of the Company under the Senior Credit Facilities Agreement is guaranteed by certain of the subsidiaries of the Company and is secured by (i) a first priority security interest in all, subject to certain customary exceptions, of the tangible and intangible assets of the Company and its domestic subsidiaries, including, without limitation, intellectual property and real estate owned by the Company and its subsidiaries, (ii) a first priority perfected pledge of all capital stock of the Company's domestic subsidiaries and (iii) a first priority perfected pledge of up to 65% of the capital stock of foreign subsidiaries owned directly by the Company or its domestic subsidiaries. The Senior Credit Agreement contains covenants which, among other things, limit the incurrence of additional indebtedness, investments, dividends, loans and advances, capital expenditures, transactions with affiliates, asset sales, acquisitions, mergers and consolidation s, prepayments of other indebtedness, liens and encumbrances and other matters customarily restricted in such agreements. The net assets of the guarantor subsidiaries are detailed on pages 17 and 18.
The following tables present the condensed consolidating balance sheets of Kinetic Concepts, Inc. as a parent company, its guarantor subsidiaries and its non-guarantor subsidiaries as of March 31, 2002 and December 31, 2001 and the related condensed consolidating statements of earnings and cash flows for the three-month periods ended March 31, 2002 and 2001, respectively. (See pages 17 to 22).
Condensed Consolidating Guarantor, Non-Guarantor And |
|||||||||
Parent Company Balance Sheet |
|||||||||
March 31, 2002 |
|||||||||
(in thousands) |
|||||||||
(unaudited) |
|||||||||
Kinetic |
|||||||||
Concepts, |
Reclassi- |
Kinetic |
|||||||
Inc. |
Non- |
fications |
Concepts, |
||||||
Parent |
Guarantor |
Guarantor |
and |
Inc. |
|||||
Company |
Sub- |
Sub- |
Elimi- |
and Sub- |
|||||
Borrower |
sidiaries |
sidiaries |
nations |
sidiaries |
|||||
ASSETS: |
|||||||||
Current assets: |
|||||||||
Cash and cash equivalents |
$ - |
$ - |
$ 5,748 |
$ (3,465) |
$ 2,283 |
||||
Accounts receivable, net |
- |
115,761 |
26,289 |
(9,743) |
132,307 |
||||
Inventories, net |
- |
21,387 |
19,141 |
- |
40,528 |
||||
Prepaid expenses and other |
|||||||||
current assets |
- |
8,883 |
5,583 |
- |
14,466 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Total current assets |
- |
146,031 |
56,761 |
(13,208) |
189,584 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Net property, plant and equipment |
- |
100,309 |
10,998 |
(13,420) |
97,887 |
||||
Loan issuance cost, net |
- |
8,024 |
- |
- |
8,024 |
||||
Goodwill, net |
- |
39,036 |
3,999 |
- |
43,035 |
||||
Other assets, net |
- |
33,358 |
1,218 |
- |
34,576 |
||||
Intercompany investments and |
|||||||||
advances |
(227,965) |
505,331 |
20,849 |
(298,215) |
- |
||||
________ |
________ |
________ |
________ |
________ |
|||||
|
$ (227,965) |
$ 832,089 |
$ 93,825 |
$ (324,843) |
$ 373,106 |
||||
______ |
______ |
______ |
______ |
______ |
|||||
LIABILITIES AND SHARE- |
|||||||||
HOLDERS EQUITY (DEFICIT): |
|||||||||
Accounts payable |
$ - |
$ 7,673 |
$ 4,600 |
$ (3,465) |
$ 8,808 |
||||
Accrued expenses |
- |
35,864 |
8,790 |
- |
44,654 |
||||
Current installments on long- |
|||||||||
term obligations |
- |
4,000 |
- |
- |
4,000 |
||||
Intercompany payables |
- |
27,188 |
- |
(27,188) |
- |
||||
Current installments of capital |
|||||||||
lease obligations |
- |
167 |
- |
- |
167 |
||||
Derivative financial instruments |
1,279 |
- |
- |
1,279 |
|||||
Income taxes payable |
- |
9,000 |
2,717 |
- |
11,717 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Total current liabilities |
- |
85,171 |
16,107 |
(30,653) |
70,625 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Long-term obligations, net of |
|||||||||
current installments |
- |
524,637 |
- |
- |
524,637 |
||||
Capital lease and other obligations, |
|||||||||
net of current installments |
- |
547 |
- |
- |
547 |
||||
Deferred income taxes, net |
- |
15,788 |
- |
(10,526) |
5,262 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
|
- |
626,143 |
16,107 |
(41,179) |
601,071 |
||||
Shareholders' equity (deficit) |
(227,965) |
205,946 |
77,718 |
(283,664) |
(227,965) |
||||
________ |
________ |
________ |
________ |
________ |
|||||
|
|||||||||
|
$ (227,965) |
$ 832,089 |
$ 93,825 |
$ (324,843) |
$ 373,106 |
||||
______ |
______ |
______ |
______ |
______ |
Condensed Consolidating Guarantor, Non-Guarantor And |
|||||||||
Kinetic |
|||||||||
Concepts, |
Reclassi- |
Kinetic |
|||||||
Inc. |
Non- |
fications |
Concepts, |
||||||
Parent |
Guarantor |
Guarantor |
and |
Inc. |
|||||
Company |
Sub- |
Sub- |
Elimi- |
and Sub- |
|||||
Borrower |
sidiaries |
sidiaries |
nations |
sidiaries |
|||||
ASSETS: |
|||||||||
Current assets: |
|||||||||
Cash and cash equivalents |
$ - |
$ - |
$ 5,301 |
$ (5,102) |
$ 199 |
||||
Accounts receivable, net |
- |
115,368 |
25,092 |
(19,096) |
121,364 |
||||
Inventories, net |
- |
22,432 |
17,734 |
- |
40,166 |
||||
Prepaid expenses and other |
|||||||||
current assets |
- |
4,550 |
4,787 |
- |
9,337 |
||||
_________ |
________ |
________ |
________ |
________ |
|||||
Total current assets |
- |
142,350 |
52,914 |
(24,198) |
171,066 |
||||
Net property, plant and equipment |
- |
93,893 |
9,184 |
(13,096) |
89,981 |
||||
Loan issuance cost, net |
- |
8,602 |
- |
- |
8,602 |
||||
Goodwill, net |
- |
39,381 |
3,654 |
- |
43,035 |
||||
Other assets, net |
- |
29,227 |
1,282 |
- |
30,509 |
||||
Intercompany investments and |
|||||||||
advances |
(236,325) |
500,348 |
24,291 |
(288,314) |
- |
||||
_________ |
________ |
________ |
________ |
________ |
|||||
|
$ (236,325) |
$ 813,801 |
$ 91,325 |
$(325,608) |
$ 343,193 |
||||
______ |
______ |
______ |
______ |
______ |
|||||
LIABILITIES AND SHARE- |
|||||||||
HOLDERS' EQUITY (DEFICIT): |
|||||||||
Accounts payable |
$ - |
$ 10,213 |
$ 3,318 |
$ (5,102) |
$ 8,429 |
||||
Accrued expenses |
- |
35,471 |
12,637 |
- |
48,108 |
||||
Current installments of long- |
|||||||||
term obligations |
- |
2,750 |
- |
- |
2,750 |
||||
Intercompany payables |
- |
39,584 |
- |
(39,584) |
- |
||||
Current installments of capital |
|||||||||
lease obligations |
- |
171 |
- |
- |
171 |
||||
Derivative financial instruments |
2,512 |
2,512 |
|||||||
Income taxes payable |
- |
7,227 |
1,534 |
- |
8,761 |
||||
_________ |
________ |
________ |
________ |
________ |
|||||
Total current liabilities |
- |
97,928 |
17,489 |
(44,686) |
70,731 |
||||
_________ |
________ |
________ |
________ |
________ |
|||||
Long-term obligations, net of |
|||||||||
current installments |
- |
503,875 |
- |
- |
503,875 |
||||
Capital lease and other obligations, |
|||||||||
net of current installments |
- |
549 |
- |
- |
549 |
||||
Deferred income taxes, net |
- |
15,186 |
- |
(10,823) |
4,363 |
||||
_________ |
________ |
________ |
________ |
________ |
|||||
|
- |
617,538 |
17,489 |
(55,509) |
579,518 |
||||
Shareholders' equity (deficit) |
(236,325) |
196,263 |
73,836 |
(270,099) |
(236,325) |
||||
_________ |
________ |
________ |
________ |
________ |
|||||
|
$ (236,325) |
$ 813,801 |
$ 91,325 |
$(325,608) |
$ 343,193 |
||||
______ |
______ |
______ |
______ |
______ |
Table of Contents
Condensed Consolidating Guarantor, Non-Guarantor And |
|||||||||
Parent Company Statement of Earnings |
|||||||||
For the three months ended March 31, 2002 |
|||||||||
(in thousands) |
|||||||||
(unaudited) |
|||||||||
Kinetic |
Historical |
||||||||
Concepts, |
Reclassi- |
Kinetic |
|||||||
Inc. |
Non- |
fications |
Concepts, |
||||||
Parent |
Guarantor |
Guarantor |
and |
Inc. |
|||||
Company |
Sub- |
Sub- |
Elimi- |
and Sub- |
|||||
Borrower |
sidiaries |
sidiaries |
nations |
sidiaries |
|||||
REVENUE: |
|||||||||
Rental and service |
$ - |
$ 82,750 |
$ 18,665 |
$ - |
$ 101,415 |
||||
Sales and other |
- |
21,619 |
9,282 |
(5,175) |
25,726 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Total revenue |
- |
104,369 |
27,947 |
(5,175) |
127,141 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Rental expenses |
- |
45,173 |
16,617 |
- |
61,790 |
||||
Cost of goods sold |
- |
9,663 |
3,084 |
(3,142) |
9,605 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
- |
54,836 |
19,701 |
(3,142) |
71,395 |
|||||
________ |
________ |
________ |
________ |
________ |
|||||
Gross profit |
- |
49,533 |
8,246 |
(2,033) |
55,746 |
||||
Selling, general and administrative |
|||||||||
expenses |
- |
28,520 |
2,672 |
- |
31,192 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Operating earnings |
- |
21,013 |
5,574 |
(2,033) |
24,554 |
||||
Interest income |
- |
2 |
8 |
- |
10 |
||||
Interest expense |
- |
(10,308) |
- |
- |
(10,308) |
||||
Foreign currency loss |
- |
(465) |
(79) |
- |
(544) |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Earnings before income |
|||||||||
taxes and equity in |
|||||||||
earnings of subsidiaries |
- |
10,242 |
5,503 |
(2,033) |
13,712 |
||||
Income taxes |
- |
4,266 |
1,796 |
(783) |
5,279 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Earnings (loss) before equity |
|||||||||
in earnings of subsidiaries |
- |
5,976 |
3,707 |
(1,250) |
8,433 |
||||
Equity in earnings of subsidiaries |
8,433 |
3,707 |
- |
(12,140) |
- |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Net earnings |
$ 8,433 |
$ 9,683 |
$ 3,707 |
$ (13,390) |
$ 8,433 |
||||
_____ |
_____ |
_____ |
_____ |
_____ |
Table of Contents
Condensed Consolidating Guarantor, Non-Guarantor And |
|||||||||
Parent Company Statement of Earnings |
|||||||||
For the three months ended March 31, 2001 |
|||||||||
(in thousands) |
|||||||||
(unaudited) |
|||||||||
Kinetic |
Historical |
||||||||
Concepts, |
Reclassi- |
Kinetic |
|||||||
Inc. |
Non- |
fications |
Concepts, |
||||||
Parent |
Guarantor |
Guarantor |
and |
Inc. |
|||||
Company |
Sub- |
Sub- |
Elimi- |
and Sub- |
|||||
Borrower |
sidiaries |
sidiaries |
nations |
sidiaries |
|||||
REVENUE: |
|||||||||
Rental and service |
$ - |
$ 64,193 |
$ 17,151 |
$ - |
$ 81,344 |
||||
Sales and other |
- |
19,050 |
7,011 |
(4,168) |
21,893 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Total revenue |
- |
83,243 |
24,162 |
(4,168) |
103,237 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Rental expenses |
- |
37,909 |
13,045 |
- |
50,954 |
||||
Cost of goods sold |
- |
9,340 |
2,603 |
(3,808) |
8,135 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
- |
47,249 |
15,648 |
(3,808) |
59,089 |
|||||
________ |
________ |
________ |
________ |
________ |
|||||
Gross profit |
- |
35,994 |
8,514 |
(360) |
44,148 |
||||
Selling, general and administrative |
|||||||||
expenses |
- |
22,193 |
1,698 |
- |
23,891 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Operating earnings |
- |
13,801 |
6,816 |
(360) |
20,257 |
||||
Interest income |
- |
15 |
25 |
- |
40 |
||||
Interest expense |
- |
(11,934) |
- |
- |
(11,934) |
||||
Foreign currency gain (loss) |
- |
(972) |
47 |
- |
(925) |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Earnings before income |
|||||||||
taxes and equity in |
|||||||||
earnings of subsidiaries |
- |
910 |
6,888 |
(360) |
7,438 |
||||
Income taxes |
- |
951 |
2,322 |
(149) |
3,124 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Earnings (loss) before equity |
|||||||||
in earnings of subsidiaries |
- |
(41) |
4,566 |
(211) |
4,314 |
||||
Equity in earnings of subsidiaries |
4,314 |
4,567 |
- |
(8,881) |
- |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Net earnings |
$ 4,314 |
$ 4,526 |
$ 4,566 |
$ (9,092) |
$ 4,314 |
||||
_____ |
_____ |
_____ |
_____ |
_____ |
Table of Contents
Condensed Consolidating Guarantor, Non-Guarantor And |
|||||||||
Parent Company Statement of Cash Flows |
|||||||||
For the three months ended March 31, 2002 |
|||||||||
(in thousands) |
|||||||||
(unaudited) |
|||||||||
Kinetic |
|||||||||
Concepts, |
Reclassi- |
Kinetic |
|||||||
Inc. |
Non- |
fications |
Concepts, |
||||||
Parent |
Guarantor |
Guarantor |
and |
Inc. |
|||||
Company |
Sub- |
Sub- |
Elimi- |
and Sub- |
|||||
Borrower |
sidiaries |
sidiaries |
nations |
sidiaries |
|||||
Cash flows from operating activities: |
|||||||||
Net earnings |
$ 8,433 |
$ 9,683 |
$ 3,707 |
$ (13,390) |
$ 8,433 |
||||
Adjustments to reconcile net earnings |
|
|
|
|
|
||||
to net cash provided by operating |
|||||||||
activities |
(8,433) |
(877) |
(2,891) |
4,543 |
(7,658) |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Net cash provided by operating |
|
|
|
|
|
||||
activities |
- |
8,806 |
816 |
(8,847) |
775 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Cash flows from investing activities: |
|||||||||
Additions to property, plant and |
|
|
|
|
|
||||
equipment |
- |
(12,754) |
(4,018) |
503 |
(16,269) |
||||
Increase in inventory to be converted |
|||||||||
into equipment for short-term rental |
- |
(200) |
- |
- |
(200) |
||||
Dispositions of property, plant and |
|||||||||
equipment |
- |
527 |
315 |
- |
842 |
||||
Businesses acquired in purchase |
|||||||||
transactions, net of cash acquired |
- |
(3,736) |
- |
- |
(3,736) |
||||
Increase in other assets |
- |
(947) |
(282) |
- |
(1,229) |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Net cash used by investing |
|||||||||
activities |
- |
(17,110) |
(3,985) |
503 |
(20,592) |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Cash flows from financing activities: |
|||||||||
Borrowings of notes payable, long-term |
|
|
|
|
|
||||
and capital lease obligations |
- |
22,005 |
- |
- |
22,005 |
||||
Proceeds (borrowings) on intercompany |
|||||||||
investments and advances |
(1,924) |
(11,674) |
3,440 |
10,158 |
- |
||||
Other |
1,924 |
(2,027) |
176 |
(73) |
- |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Net cash provided by financing |
|||||||||
activities |
- |
8,304 |
3,616 |
10,085 |
22,005 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Effect of exchange rate changes on |
|||||||||
cash and cash equivalents |
- |
- |
- |
(104) |
(104) |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Net increase in cash and |
|||||||||
cash equivalents |
- |
- |
447 |
1,637 |
2,084 |
||||
Cash and cash equivalents, |
|||||||||
beginning of period |
- |
- |
5,301 |
(5,102) |
199 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Cash and cash equivalents, end |
|||||||||
of period |
$ - |
$ - |
$ 5,748 |
$ (3,465) |
$ 2,283 |
||||
_____ |
_____ |
_____ |
_____ |
_____ |
Condensed Consolidating Guarantor, Non-Guarantor And |
|||||||||
Parent Company Statement of Cash Flows |
|||||||||
For the three months ended March 31, 2001 |
|||||||||
(in thousands) |
|||||||||
(unaudited) |
|||||||||
Kinetic |
|||||||||
Concepts, |
Reclassi- |
Kinetic |
|||||||
Inc. |
Non- |
fications |
Concepts, |
||||||
Parent |
Guarantor |
Guarantor |
and |
Inc. |
|||||
Company |
Sub- |
Sub- |
Elimi- |
and Sub- |
|||||
Borrower |
sidiaries |
sidiaries |
nations |
sidiaries |
|||||
Cash flows from operating activities: |
|||||||||
Net earnings |
$ 4,314 |
$ 4,526 |
$ 4,566 |
$ (9,092) |
$ 4,314 |
||||
Adjustments to reconcile net earnings |
|
|
|
|
|
||||
to net cash provided (used) by |
|||||||||
operating activities |
(4,314) |
(9,040) |
(1,751) |
11,391 |
(3,714) |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Net cash provided (used) by |
|
|
|
|
|
||||
operating activities |
- |
(4,514) |
2,815 |
2,299 |
600 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Cash flows from investing activities: |
|||||||||
Additions to property, plant and |
|
|
|
|
|
||||
equipment |
- |
(7,571) |
(1,641) |
529 |
(8,683) |
||||
Decrease in inventory to be converted |
|||||||||
into equipment for short-term rental |
- |
700 |
- |
- |
700 |
||||
Dispositions of property, plant and |
|||||||||
equipment |
- |
426 |
- |
- |
426 |
||||
Decrease (increase) in other assets |
- |
(1,121) |
273 |
- |
(848) |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Net cash used by investing |
|||||||||
activities |
- |
(7,566) |
(1,368) |
529 |
(8,405) |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Cash flows from financing activities: |
|||||||||
Borrowings of notes payable, long-term |
|
|
|
|
|
||||
and capital lease obligations |
- |
8,420 |
- |
- |
8,420 |
||||
Proceeds on intercompany |
|||||||||
investments and advances |
591 |
3,489 |
1,929 |
(6,009) |
- |
||||
Other |
(591) |
171 |
(4,687) |
5,107 |
- |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Net cash provided (used) by |
|||||||||
financing activities |
- |
12,080 |
(2,758) |
(902) |
8,420 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Effect of exchange rate changes on |
|||||||||
cash and cash equivalents |
- |
- |
- |
(418) |
(418) |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Net increase (decrease) in cash |
|||||||||
and cash equivalents |
- |
- |
(1,311) |
1,508 |
197 |
||||
Cash and cash equivalents, |
|||||||||
beginning of period |
- |
- |
6,156 |
(4,017) |
2,139 |
||||
________ |
________ |
________ |
________ |
________ |
|||||
Cash and cash equivalents, end |
|||||||||
of period |
$ - |
$ - |
$ 4,845 |
$ (2,509) |
$ 2,336 |
||||
_____ |
_____ |
_____ |
_____ |
_____ |
Table of Contents
This quarterly report on Form 10-Q contains forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934. When used in this Report, the words "estimate," "project," "anticipate," "expect", "intend", "believe" and similar expressions are intended to identify forward-looking statements.
All of the forward-looking statements contained in this report are based on estimates and assumptions made by management of the Company. These estimates and assumptions reflect management's best judgment based on currently known market and other factors. Although management believes such estimates and assumptions to be reasonable, they are inherently uncertain and involve risks and uncertainties beyond the Company's control. In addition, management's assumptions about future events may prove to be inaccurate. Management cautions all readers that the forward-looking statements contained in this report are not guarantees of future performance and the Company cannot assure any reader that such statements will be realized. In all likelihood, actual results will differ from those contemplated by such forward-looking statements. Any such differences could result from a variety of factors, including the following:
ITEM 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITIONResults of Operations
First Quarter of 2002 Compared to First Quarter of 2001
The following table sets forth, for the periods indicated, the percentage relationship of each item to total revenue as well as the change in each line item as compared to the first quarter of the prior year (dollars in thousands):
Three Months Ended March 31, |
||||||||
Variance |
||||||||
Revenue Relationship |
Increase (Decrease) |
|||||||
2002 |
2001 |
$ |
Pct |
|||||
Revenue: |
||||||||
Rental and service |
80 |
% |
79 |
% |
$ 20,071 |
25 |
% |
|
Sales and other |
20 |
21 |
3,833 |
18 |
||||
_______ |
_______ |
_______ |
||||||
Total revenue |
100 |
100 |
23,904 |
23 |
||||
Rental expenses |
49 |
49 |
10,836 |
21 |
||||
Cost of goods sold |
7 |
8 |
1,470 |
18 |
||||
_______ |
_______ |
_______ |
||||||
Gross profit |
44 |
43 |
11,598 |
26 |
||||
Selling, general and administrative |
|
|||||||
expenses |
25 |
23 |
7,301 |
31 |
||||
_______ |
_______ |
_______ |
||||||
Operating earnings |
19 |
20 |
4,297 |
21 |
||||
Interest income |
- |
|
- |
|
(30) |
(75) |
||
Interest expense |
(8) |
(12) |
1,626 |
14 |
||||
Foreign currency |
- |
(1) |
381 |
41 |
||||
_______ |
_______ |
_______ |
||||||
Earnings before income taxes |
11 |
7 |
6,274 |
|
84 |
|||
Income taxes |
4 |
3 |
2,155 |
69 |
||||
_______ |
_______ |
_______ |
||||||
Net earnings |
7 |
% |
4 |
% |
$ 4,119 |
95 |
% |
|
____ |
____ |
____ |
The Company's revenue is divided between two primary operating segments, USA and International. The following table sets forth, for the periods indicated, the amount of revenue derived from each of these segments (dollars in thousands):
Three months ended |
||||||
March 31, |
||||||
Variance |
||||||
2002 |
2001 |
Percent |
||||
USA |
||||||
V.A.C. |
$ 54,454 |
$ 31,063 |
75 |
% |
||
Surfaces / Other |
44,725 |
47,600 |
(6) |
|||
|
_______ |
_______ |
||||
Subtotal |
99,179 |
78,663 |
26 |
|||
_______ |
_______ |
|||||
International |
||||||
V.A.C. |
8,040 |
4,990 |
61 |
|||
Surfaces / Other |
19,922 |
19,584 |
2 |
|||
|
_______ |
_______ |
||||
Subtotal |
27,962 |
24,574 |
14 |
|||
_______ |
_______ |
|||||
Total Revenue |
$ 127,141 |
$ 103,237 |
23 |
% |
||
_____ |
_____ |
Total Revenue: Total revenue in the first quarter of 2002 was $127.1 million, an increase of $23.9 million, or 23.2%, from the prior-year period due to increased demand for the V.A.C. wound healing device. Rental revenue of $101.4 million increased $20.1 million, or 24.7%, from the first quarter of 2001 while sales revenue of $25.7 million increased $3.8 million, or 17.5%, compared to the same period one year ago.
Total domestic revenue for the first quarter of 2002 was $99.2 million, up $20.5 million, or 26.1%, from the prior-year quarter due to increased wound healing device revenue. Domestic rental revenue of $82.8 million increased $18.6 million, or 28.9%, due primarily to increased usage of the V.A.C. Average acute care surfaces rented during the period increased 3.1% compared to the prior year, however, the implementation of the new Novation contract has resulted in lower overall pricing in the acute care market.
Domestic sales revenue was $16.4 million for the first three months of 2002, an increase of approximately $1.9 million, or 13.5%, from the prior-year period. This increase was due to increased V.A.C. disposable sales which were partially offset by lower sales of vascular products. The V.A.C. growth was attributable to higher unit demand related to increased rental activity which resulted, in part, from Medicare's approval of reimbursement for the V.A.C. in the home setting.
Revenue from the Company's international operating unit, net of foreign currency exchange rate fluctuations, increased $3.4 million, or 13.8%, to approximately $28.0 million in first three months of 2002. The international revenue increase reflects higher patient surface rental units in a majority of the international division's markets and growth in the V.A.C. product lines, partially offset by unfavorable currency exchange fluctuations. Growth in rental volume for the period, primarily in overlays and the V.A.C., was partially offset by lower overall prices. The international sales increase was primarily due to increased V.A.C. demand, partially offset by unfavorable currency exchange fluctuations. On a constant exchange basis, total international revenue increased $4.6 million, or 19.0%, rental revenue increased $2.3 million, or 13.9%, and sales revenue increased approximately $2.3 million, or 30.8%.
Worldwide V.A.C. revenue for first three months of 2002 was $62.5 million, an increase of $26.4 million, or 73.3%, from the prior-year quarter. Domestic V.A.C. revenue of $54.5 million increased $23.4 million, or 75.3%, in the current quarter while international V.A.C. revenue of $8.0 million grew $3.0 million, or 61.1%, compared to the year-ago period.
Total revenue excluding V.A.C., i.e., revenue from surfaces and vascular devices, for first three months of 2002 was $64.6 million, a decrease of $2.5 million, or 3.8%, from the prior-year quarter. Domestic non-V.A.C. revenue of $44.7 million was down $2.9 million compared to the first quarter of 2001 due primarily to lower overall pricing in the acute care market, resulting from unfavorable product mix and the implementation of the new Novation contract, along with lower sales volumes in vascular and home care surface products. International non-V.A.C. revenue of approximately $19.9 million was up approximately $340,000, or 1.7%, due primarily to higher sales in Canada, Australia and the United Kingdom, partially offset by lower sales in Germany.
Rental Expenses: Rental, or "field", expenses of $61.8 million increased $10.8 million, or 21.3%, from $51.0 million in the prior-year quarter. The field expense increase was due primarily to increased labor, marketing, parts, disposables and product licensing expenses directly associated with the growth in V.A.C. revenue which were partially offset by currency fluctuations. Field expenses for the first three months of 2002 represented 60.9% of total rental revenue compared to 62.6% in the first quarter of 2001. This relative decrease is attributable to the increase in rental revenue combined with a relatively fixed cost structure.
Cost of Goods Sold: Cost of goods sold of $9.6 million in the first three months of 2002 increased $1.5 million, or 18.1%, from $8.1 million in the prior-year period due to higher sales volumes particularly related to use of the V.A.C. Sales margins were relatively constant at 62.7% in the first quarter of 2002 as compared to 62.8% in the prior year.
Gross Profit: Gross profit increased $11.6 million, or 26.3%, to $55.7 million in the first quarter of 2002 from $44.1 million in the first quarter of the prior year due primarily to the year-to-year increase in rental revenue resulting from increased demand for the V.A.C. Gross profit margin in the first three months of 2002 was 43.8%, up from 42.8% in the first quarter of 2001.
Selling, General and Administrative Expenses: Selling, general and administrative expenses increased $7.3 million, or 30.6%, to $31.2 million in the first quarter of 2002 from $23.9 million in the first quarter of 2001. This increase was due primarily to higher administrative labor costs, claims billings costs and consulting associated with the increased usage of the V.A.C. product line. The first quarter of 2002 also reflects an accounting change which requires that goodwill and indefinite-lived intangible assets no longer be amortized ratably over an estimated useful life. The effect of this change in the first quarter of 2002 was to lower goodwill amortization by approximately $860,000 as compared to the first quarter of the prior year. (See Note 6 of Notes to Condensed Consolidated Financial Statements). In addition, incentive compensation, engineering, depreciation, research and development expenses and provisions for bad debts and insurance expense were all higher in the current-year quarter when compared to the first quarter of 2001. Expenditures for research and development represented approximately 4% of the Company's total operating expenditures for the current quarter. On a comparable basis, as a percentage of total revenue, selling, general and administrative expenses were 24.5% in the first quarter of 2002 compared to 23.1% in the first quarter of 2001.
Operating Earnings: Operating earnings for the period increased $4.3 million, or 21.2%, to $24.6 million compared to $20.3 million in the prior-year quarter. The increase in operating earnings was directly attributable to the increase in rental revenue, largely offset by higher operating costs and expenses.
Interest Expense: Interest expense in the first quarter of 2002 was $10.3 million compared to $11.9 million in the prior year quarter. The interest expense decrease was due to lower interest rates associated with the Company's Senior Credit Facilities obtained through fixed-rate interest contracts. (See Note 5 of Notes to Condensed Consolidated Financial Statements.)
Net Earnings: Net earnings for the first quarter of 2002 increased approximately $4.1 million, or 95.5%, from the prior-year period to $8.4 million due to the increase in operating earnings discussed previously. Effective tax rates for the first quarter of 2002 and 2001 were 38.5% and 42.0%, respectively.
Financial Condition
The change in revenue and expenses experienced by the Company during the first three months of 2002 and other factors resulted in changes to the Company's balance sheet as follows:
Net accounts receivable at March 31, 2002 increased $10.9 million, or 9.0%, to $132.3 million as compared to $121.4 million at December 31, 2001. This increase is due primarily to higher overall revenue and an increase in V.A.C.-related receivables from third-party payers including Medicare, Insurance and Managed Care Organizations ("MCO's"). Gross domestic accounts receivable from third-party payers, including governmental and non-governmental entities, increased $11.1 million, or 17.7%, compared to the prior year-end. Of this increase, approximately $8.1 million, or 73.0%, represented billed but unpaid items. The remainder of the increase, or $3.0 million, was comprised of therapy days not yet billed pending receipt of required paperwork e.g., initial statement of ordering physician, assignment of benefits, and proof of delivery documents. Gross domestic accounts receivable from acute and extended care facilities and homecare dealers were $47.9 million at March 31, 2002, up approximately $700,000, or 1.5%, from the prior year end. Gross international trade accounts receivable at March 31, 2002 were $27.8 million, up $1.9 million, or 7.2%, from the end of 2001. For further discussion of accounts receivable, see "Critical Accounting Policies".
Prepaid expenses at March 31, 2002 increased approximately $5.2 million, or 54.9%, to $14.5 million as compared to $9.3 million at December 31, 2001. This increase was due primarily to the advance payment of 2002 domestic patent licensing fees on the V.A.C.
Net property, plant and equipment at March 31, 2002 increased $7.9 million, or 8.8%, to $97.9 million as compared to $90.0 million at December 31, 2001. This increase was due primarily to net capital expenditures of $15.6 million, comprised mainly of rental assets, made during the first quarter of 2002, partially offset by depreciation expense.
At March 31, 2002 and December 31, 2001, goodwill, net of accumulated amortization, was $43.0 million, which represented 11.5% and 12.5% of total assets, respectively. For further discussion of goodwill, see Note 6 of Notes to Condensed Consolidated Financial Statements and "Critical Accounting Policies".
Accrued expenses at March 31, 2002 were $44.7 million compared to $48.1 million at December 31, 2001. This decrease was due to bonus and V.A.C. product licensing fee payments made during the first quarter of 2002, partially offset by accrued interest expense recorded on the $200 million in subordinated notes, which is paid semi-annually in May and November.
As of March 31, 2002, a liability of $1.3 million related to a derivative financial instrument was recorded as a result of the adoption of SFAS 133, Accounting for Derivative Instruments and Hedging Activities. This liability was established based upon a valuation of the Company's interest rate protection agreement associated with its Senior Credit Facilities. (See Notes 5 and 11 of Notes to Condensed Consolidated Financial Statements.)
Income taxes payable at March 31, 2002 of $11.7 million increased approximately $2.9 million, as compared to $8.8 million at December 31, 2001. This increase was due primarily to the current period earnings level.
Long-term debt obligations, including current maturities, increased $22.0 million to $528.6 million as of March 31, 2002 due primarily to borrowings on the revolving credit facility to fund working capital investments and capital expenditures, partially offset by scheduled amortization payments.
Net deferred income taxes at March 31, 2002 of $5.3 million increased 20.6% as compared to $4.4 million at December 31, 2001. This increase was due to the realization of temporary tax timing differences.
The Company has not used any off-balance sheet arrangements other than the investments in non-recourse leveraged leases and its debt agreements contain no credit rating triggers.
Liquidity and Capital Resources
General
The Company's principal capital requirements consist of capital expenditures, primarily for rental assets and systems infrastructure, debt service requirements and working capital. The working capital is required principally to finance accounts receivable and inventory. The Company's working capital requirements vary from period to period depending on production volumes, the timing of shipments and the payment cycles of various customers and payers.
Sources of Capital
During the next twelve months, the Company's principal sources of liquidity are expected to be cash flows from operating activities and borrowings under the Senior Credit Facilities. In addition, on April 4, 2002, the Company entered into an add-on $30 million Tranche E Term Loan. The proceeds from the Tranche E Term Loan were used to pay down existing indebtedness under the Revolving Credit Facility and pay fees and expenses associated with the transaction. Based upon the current level of operations, the Company anticipates that cash flow from operations and the availability under its Revolving Credit Facility will be adequate to meet its anticipated cash requirements for debt repayments, working capital and capital expenditures through 2003.
Due to the anticipated dramatic growth in V.A.C. demand during this period, slower payment cycles from certain payers and the increased capital expenditures and working capital required to support and maintain such growth, the Company's ability to generate cash flow sufficient to meet its 2004 debt amortization requirements may be at risk and therefore, the Company may need to increase borrowing or refinance its debt in future periods.
The Company's primary sources of capital have been funds from operations and its Senior Credit Facilities. At March 31, 2002, cash and cash equivalents of $2.3 million were available for general corporate purposes. Availability under the revolving credit facility at March 31, 2002 was $10.0 million. Also at March 31, 2002, the Company was committed to purchase approximately $6.1 million of inventory associated with new products during the next twelve months. The Company did not have any other material purchase commitments.
Working Capital
At March 31, 2002, the Company had current assets of $189.6 million and current liabilities of $70.6 million resulting in a working capital surplus of $119.0 million, compared to a surplus of $100.3 million at December 31, 2001. An increase in accounts receivable accounted for the majority of this change. Operating cash flows were $775,000 for the first quarter of 2002 compared to $600,000 in the prior-year quarter. This increase was due to higher earnings, partially offset by working capital requirements, primarily accounts receivable associated with the V.A.C. product line and lower payables.
Capital Expenditures
During the first quarter of 2002, the Company made net capital expenditures of $15.6 million compared to $7.6 million the prior-year quarter. The majority of this increase was due to purchases of materials for the V.A.C. and other high-demand rental products as well as expenditures related to the build-out of the Company's newly-leased customer service facility and purchases of computer hardware and software. Over the next twelve months, the Company also has commitments to purchase new product inventory, including disposable "for sale" products of $6.1 million. Other than commitments for new product inventory, the Company has no material long-term capital
commitments and can adjust the level of capital expenditures as circumstances warrant. The Company expects future demand for medical devices and associated disposables to increase.
Debt Service
Scheduled principal payments under the Company's Senior Credit Facilities as of December 31, 2001 are $2.8 million, $42.1 million and $86.5 million for the years 2002, 2003 and 2004, respectively. Based upon the current level of operations, the Company anticipates that cash flow from operations and the availability under its Revolving Credit Facility will be adequate to meet its anticipated cash requirements for debt repayments, working capital and capital expenditures through 2003. Due to the anticipated dramatic growth in V.A.C. demand during this period, slower payment cycles from certain payers and the increased capital expenditures and working capital required to support and maintain such growth, the Company's ability to generate cash flow sufficient to meet its 2004 debt amortization requirements may be at risk and therefore, the Company may need to increase borrowing or refinance its debt in future periods. The availability of such funding cannot be assured. Such additional borrowings would increase the Company's required payments to service debt and could negatively impact the Company's earnings and overall cash position. To address this issue, the Company is reviewing its order entry, billing and collection processes to reduce costs, shorten payment cycles and maximize cash flows. In addition, the Company will evaluate monetizing certain owned assets (for example, its headquarters building) to help ensure that debt service, working capital and capital expenditure requirements are funded going forward.
The Senior Credit Facilities originally totaled $400.0 million and consisted of (i) a $50.0 million six-year Revolving Credit Facility, (ii) a $50.0 million six-year Acquisition Facility, (iii) a $120.0 million six-year amortizing Term Loan A, (iv) a $90.0 million seven-year amortizing Term Loan B and (v) a $90.0 million eight-year amortizing Term Loan C (collectively, the "Term Loans"). On June 15, 2001, the Company entered into an Amended and Restated Credit and Guarantee Agreement, which funded a $95 million Tranche D Term Loan as part of a refinancing of the Company's Senior Secured Credit Facilities. Proceeds from the Tranche D Term Loan were used to pay down existing indebtedness, including $60 million outstanding under the Tranche A Term Loan, approximately $8 million outstanding under the Acquisition Credit Facility and $26 million under the Revolving Credit Facility with the remaining proceeds used to pay fees and expenses associated with this transaction. The Revolving Loans may be repaid and reborrowed.
On April 4, 2002, the Company entered into a Second Amended and Restated Credit and Guarantee Agreement (the "Amended Credit Agreement"). The Amended Credit Agreement funded a $30 million Tranche E Term Loan as part of a refinancing of the Company's Senior Secured Credit Facilities. Proceeds from the Tranche E Term Loan were used to pay down existing indebtedness of $29.6 million under the Revolving Credit Facility with the remaining proceeds used to pay fees and expenses associated with the transaction. The Tranche E Term Loan will initially bear interest at a rate based upon the Base Rate plus 2.25%, or at the Company's option, the Eurodollar Rate plus 3.25%. In addition, performance-based reductions of the interest rate under Term Loan E are available. The Tranche E Term Loan amortizes at 1% per year beginning June 30, 2002 with a final payment of $29.0 million due December 31, 2005.
At March 31, 2002, the Revolving Credit Facility had a balance of $34.5 million. The Company may borrow additional funds under the Revolving Credit Facility at any time up to the borrowing limits thereunder. Additionally, three Letters of Credit in the aggregate amount of $5.5 million were issued and outstanding at the request of the Company under the Revolving Credit Facility. Accordingly, as of March 31, 2002, the aggregate availability under the Revolving Credit Facility was $10.0 million.
Indebtedness under the Senior Credit Facilities, as amended and restated, including the Revolving Credit Facility (other than certain loans under the Revolving Credit Facility designated in foreign currency) and the Term Loans, initially bear interest at a rate based upon (i) the Base Rate (defined as the higher of (x) the rate of interest publicly announced by Bank of America as its "reference rate" or (y) the federal funds effective rate from time to time plus 0.50%), plus 1.75% in respect of the Tranche A Term Loans and the loans under the Revolving Credit Facility (the "Revolving Loans"),
2.00% in respect of the Tranche B Term Loans, 2.25% in respect of the Tranche C Term Loans and 2.125% in respect of the Tranche D Term Loans, or at the Company's option, (ii) the Eurodollar Rate (as defined in the Senior Credit Facility Agreement) for one, two, three or six months, in each case plus 2.75% in respect of Tranche A Term Loans and Revolving Loans, 3.00% in respect of Tranche B Term Loans, 3.25% in respect of the Tranche C Term Loans and 3.125% in respect to the Tranche D Term Loans. The Tranche E Term Loan will initially bear interest at a rate based upon the Base Rate plus 2.25%, or at the Company's option, the Eurodollar Rate plus 3.25%. Certain Revolving Loans designated in foreign currency will initially bear interest at a rate based upon the cost of funds for such loans plus 2.75%. Performance-based reductions of the interest rates under the Term Loans and the Revolving Loans are available.
In January 2001, the Company entered into an interest rate swap which fixed the base-borrowing rate on $150 million of the Company's variable rate debt at 5.36% and was effective from January 5, 2001 through December 31, 2001. On October 1, 2001, the Company terminated its $150 million, 5.36% interest rate swap to take advantage of lower interest rates and entered into two new interest rate swaps, which resulted in additional interest expense of $1.1 million in the fourth quarter of 2001. One interest rate swap fixes the base-borrowing rate on $150 million of the Company's variable rate debt at 3.57% per annum and is effective October 1, 2001 through December 31, 2002. The second interest rate swap fixes the rate on an additional $100 million of the Company's variable rate debt at 2.99% annually and is effective October 1, 2001 through December 31, 2002. As of March 31, 2002, these agreements effectively fix the base-borrowing rate on 76.1% of the Co mpany's variable rate debt. As a result of the interest rate protection agreements, the Company recorded additional interest expense of approximately $660,000 in the first quarter of 2002 and an interest expense benefit of approximately $90,000 in the first quarter of 2001.
Indebtedness of the Company under the Senior Credit Facilities Agreement is guaranteed by certain of the subsidiaries of the Company and is secured by (i) a first priority security interest in all of the tangible and intangible assets of the Company and its domestic subsidiaries (subject to certain customary exceptions), including, without limitation, intellectual property and real estate owned by the Company and its subsidiaries, (ii) a first priority perfected pledge of all capital stock of the Company's domestic subsidiaries and (iii) a first priority perfected pledge of up to 65% of the capital stock of foreign subsidiaries owned directly by the Company or its domestic subsidiaries.
The Senior Credit Agreement requires the Company to meet certain financial tests, including minimum levels of EBITDA (as defined therein), minimum interest coverage, maximum leverage ratio and capital expenditures. The Senior Credit Agreement also contains covenants which, among other things, limit the Company's ability to: incur additional indebtedness, make investments, announce or pay dividends, make loans and advances, make capital expenditures, enter into transactions with affiliates, dispose of its assets, enter into acquisitions, mergers or consolidation transactions, make prepayments on other indebtedness, create or permit to be created any liens on any of its properties, or undertake certain other matters customarily restricted in such agreements. At March 31, 2002, the Company is in compliance with all applicable covenants.
The Senior Credit Agreement also contains customary events of default, including payment defaults, any breach of representations and warranties, covenant defaults, cross-defaults to certain other indebtedness, certain events of bankruptcy and insolvency, failures under ERISA plans, judgment defaults, any change of control of the Company and failure of any guaranty, security document, security interest or subordination provision under the Senior Credit Agreement. In addition, the Senior Credit Agreement provides for mandatory repayments, subject to certain exceptions, of the Term Loans and the Revolving Credit Facility based on certain net asset sales outside the ordinary course of business of the Company and its subsidiaries, the net proceeds of certain debt and equity issuances and excess cash flows.
As part of the 1997 Recapitalization transactions, the Company issued $200.0 million of 9 5/8% Senior Subordinated Notes (the "Notes") due 2007. The Notes are unsecured obligations of the Company, ranking subordinate in right of payment to all senior debt of the Company and will mature
on November 1, 2007. As of December 31, 2001, the entire $200.0 million of Senior Subordinated Notes was issued and outstanding. The Notes are not entitled to the benefit of any mandatory sinking fund. The Notes will be redeemable, at the Company's option, in whole at any time or in part from time to time, on and after November 1, 2002, upon not less than 30 nor more than 60 days' notice, at the following redemption prices (expressed as percentages of the principal amount thereof) if redeemed during the twelve- month period commencing on November 1 of the year set forth below, plus, in each case, accrued and unpaid interest thereon, if any, to the date of redemption.
Year |
Percentage |
2002 |
104.813% |
2003 |
103.208% |
2004 |
101.604% |
2005 and thereafter |
100.000% |
At any time, or from time to time, the Company may acquire a portion of the Notes through open-market purchases. In order to effect the foregoing redemption with the proceeds of any equity offering, the Company shall make such redemption not more than 120 days after the consummation of any such equity offering.
Known Trends or Uncertainties
The health care industry continues to face various challenges, including increased pressure on health care providers to control costs as a result of the ongoing implementation of the Balanced Budget Act of 1997 and related legislation, the accelerating migration of patients from acute care facilities into extended care (e.g., skilled nursing facilities and rehabilitation centers) and home care settings, the consolidation of health care providers and national and regional group purchasing organizations and the growing demand for clinically proven therapies which lower the total cost of providing care.
Reimbursement
The Company currently rents and sells the V.A.C. in all care settings and market acceptance of this product has been better than expected. This is evidenced by the significant revenue growth experienced in the six years that the product has been available domestically. Effective October 1, 2000, the Company received Medicare Part B reimbursement codes, an associated coverage policy and allowable rates for the V.A.C. and V.A.C. disposables in the home care setting. As a result of this coverage, the Company began to place V.A.C. units with Medicare-eligible patients in the home during the fourth quarter of 2000. Although it is difficult to predict the impact which Medicare pricing will have on other payers, the Company does not believe that the new rates will have a material adverse impact on the Company's business.
Euro Currency
On January 1, 1999, the European Economic and Monetary Union ("EMU") entered a three-year transition period during which a new common currency, the "Euro", was introduced in participating countries and fixed conversion rates were established through the European Central Bank ("ECB") between existing local currencies and the Euro. The Euro has traded on currency exchanges since that time. Until December 31, 2001, local currencies remained legal tender. During the transition period, goods and services could be paid for with the Euro or local currency under the EMU's "no compulsion, no prohibition" principle. Effective January 1, 2002, the Euro became the new legal tender.
Based on its evaluation to date, management believes that the introduction of the Euro will not have a long-term material adverse impact on the Company's financial position, results of operations or cash flows. However, the prevailing exchange rate for the Euro versus the U.S. dollar has, until very recently, declined and uncertainty exists as to the effects the Euro will have in the marketplace, and
there is no guarantee that every issue has been foreseen and corrected or that other third parties will address the conversion successfully.
The Company anticipates the Euro will simplify financial issues related to cross-border trade in the EMU and reduce the transaction costs and administrative time necessary to manage this trade and related risks. However, the Company believes that the associated savings will not be material to corporate results.
Critical Accounting Policies
Accounts Receivable
The Company utilizes a combination of factors in evaluating the collectibility of accounts receivable. For unbilled receivables, items that remain unbilled for more than 90 days, or beyond required billing windows, are reversed out of revenue and receivables. For billed receivables, the Company generally recognizes reserves for bad debt based on the length of time that the receivables are past due. The reserves range in value from 0% for current amounts to 100% for amounts over 180 days past due for certain payer groups. The reserve rates vary by payer group and the Company's historical experience on a weighted average basis. In addition, the Company has recorded specific reserves for bad debt when it becomes aware of a customer's inability to satisfy its debt obligations e.g., bankruptcy filings. If circumstances change (i.e., higher than expected denials, payment defaults or an unexpected material adverse change in a major customer's or payer's ability to meet its obligations), the Company's estimates of the realizability of amounts due from trade receivables could be reduced by a material amount.
Goodwill And Other Intangible Assets
At March 31, 2002 and December 31, 2001, goodwill, net of accumulated amortization, was $43.0 million, or 11.5% and 12.5%, of total assets, respectively. Goodwill represents the excess purchase price over the fair value of net assets acquired. Effective January 1, 2002, the Company applied the provisions of Statement of Financial Accounting Standards No. 142 ("SFAS 142"), Goodwill and Other Intangible Assets in its accounting for goodwill. Under SFAS 142, goodwill and intangible assets that have indefinite useful lives are no longer subject to amortization over their estimated useful life. Rather, goodwill and intangible assets that have indefinite useful lives are and will be tested at least annually for impairment. SFAS 142 provides specific guidance for testing goodwill for impairment. Intangible assets with finite useful lives will continue to be amortized over their useful lives. Goodwill has been tested for impairment during the f irst quarter of 2002 and will be tested for impairment at least annually using the prescribed two-step process. The first step is an impairment screening which compares an estimation of the fair value of a reporting unit with the reporting unit's carrying value. The Company has determined that its reporting units are to be defined as the two operating segments - USA and International. If the fair value of a reporting unit exceeds its carrying amount, the goodwill of the reporting unit is not considered impaired, and as a result, the second step of the impairment test is not required. If required, the second step compares the fair value of reporting unit goodwill with the carrying amount of that goodwill. If the Company determines that reporting unit goodwill is impaired, the fair value of reporting unit goodwill would be measured by comparing the discounted expected future cash flows of the reporting unit with the carrying value of reporting unit goodwill. Any excess in the carrying value of reporting u nit goodwill to the estimated fair value would be recognized in expense at the time of the recognition.
The goodwill of a reporting unit will be tested between the annual test if an event occurs or circumstances change that would likely reduce the fair value of a reporting unit below its carrying amount. Examples of such events or circumstances include, but are not limited to: a significant adverse change in legal factors or business climate, an adverse regulatory action or unanticipated competition.
Inventory
The Company reviews its inventory balances monthly for excess and/or obsolete inventory levels. For products that are not rented, i.e., sales products, except where firm orders are on-hand, inventory quantities in excess of the last twelve months demand are considered excess and are reserved at 50% of cost. For rental products, the Company reviews both product usage and product life cycle to classify inventory as active, inactive, discontinued or obsolete. Obsolescence reserve balances are established on an increasing basis from 0% for active, high-demand products to 100% for obsolete products. In addition, judgmental reserve balances are established for "high risk" items, for example, products that have a fixed shelf life as determined by the manufacturer.
Legal Proceedings
On February 21, 1992, Novamedix Limited ("Novamedix") filed a lawsuit against the Company in the United States District Court for the Western District of Texas. Novamedix manufactures the principal product which directly competes with the PlexiPulse. The suit alleges that the PlexiPulse infringes several patents held by Novamedix, that the Company breached a confidential relationship with Novamedix and a variety of ancillary claims. Novamedix seeks injunctive relief and monetary damages. A judicial stay is in effect with respect to all patent claims in this case. Although it is not possible to reliably predict the outcome of this litigation or the damages which could be awarded, the Company believes that its defenses to these claims are meritorious and that the litigation will not have a material adverse effect on the Company's business, financial condition or results of operations.
On August 16, 1995, the Company filed a civil antitrust lawsuit against Hillenbrand Industries, Inc. and one of its subsidiaries, Hill-Rom. The suit was filed in the United States District Court for the Western District of Texas. The suit alleges that Hill-Rom used its monopoly power in the standard hospital bed business to gain an unfair advantage in the specialty hospital bed business. Specifically, the allegations set forth in the suit include a claim that Hill-Rom required hospitals and purchasing groups to agree to exclusively rent specialty beds in order to receive substantial discounts on products over which they have monopoly power - hospital beds and head wall units. The suit further alleges that Hill-Rom engaged in activities which constitute predatory pricing and refusals to deal. Hill-Rom has filed an answer denying the allegations in the suit. Discovery is substantially complete and the trial has been scheduled for August 2002. Althou gh it is not possible to reliably predict the outcome of this litigation or the damages which might be awarded, the Company believes that its claims are meritorious.
On October 31, 1996, the Company received a counterclaim which had been filed by Hillenbrand Industries, Inc. in the antitrust lawsuit which the Company filed in 1995. The counterclaim alleges that the Company's antitrust lawsuit and other actions were designed to enable KCI to monopolize the specialty therapeutic surface market. Although it is not possible to reliably predict the outcome of this litigation, the Company believes that the counterclaim is without merit.
On January 7, 1998, Mondomed N.V. filed an opposition in the European Patent Office (the "Opposition") to a European patent covering the V.A.C. owned by Wake Forest University and licensed by the Company. They were joined in this Opposition by Paul Hartmann A.G. on December 16, 1998. On February 13, 2002, the Opposition Division of the European Patent Office issued a non-binding Preliminary Opinion in favor of the Company. The parties are permitted to respond to the Preliminary Opinion and a hearing will be held prior to the issuance of a Final Opinion. Although it is not possible to reliably predict the outcome of the Opposition, the Company believes that the Opposition is without merit.
The Company is a party to several lawsuits arising in the ordinary course of its business. Provisions have been made in the Company's financial statements for estimated exposures related to these lawsuits. In the opinion of management, the disposition of these matters will not have a material adverse effect on the Company's business, financial condition or results of operations.
The manufacturing and marketing of medical products necessarily entails an inherent risk of product liability claims. The Company currently has certain product liability claims pending for which provision has been made in the Company's financial statements. Management believes that resolution of these claims will not have a material adverse effect on the Company's business, financial condition or results of operations. The Company has not experienced any significant losses due to product liability claims and management believes that the Company currently maintains adequate liability insurance coverage.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to various market risks, including fluctuations in interest rates and variability in currency exchange rates. The Company has established policies, procedures and internal processes governing its management of market risks and the use of financial instruments to manage its exposure to such risks.
Interest Rate Risk
On October 1, 2001, the Company terminated its $150 million, 5.36% interest rate swap to take advantage of lower interest rates and entered into two new interest rate swaps, which resulted in additional interest expense of $1.1 million in the fourth quarter of 2001. One interest rate swap fixes the base-borrowing rate on $150 million of the Company's variable rate debt at 3.57% per annum and is effective October 1, 2001 through December 31, 2002. The second interest rate swap fixes the rate on an additional $100 million of the Company's variable rate debt at 2.99% annually and is effective October 1, 2001 through December 31, 2002. As of March 31, 2002, these agreements effectively fix the base-borrowing rate on 76.1% of the Company's variable rate debt. As a result of the interest rate protection agreements the Company believes that movements in short term interest rates will not materially affect the financial position of the Company.
Foreign Currency And Market Risk
The Company has direct operations in Western Europe, Canada and Australia and distributor relationships in many other parts of the world. The Company's foreign operations are measured in their applicable local currencies. As a result, the Company's financial results could be affected by factors such as changes in foreign currency exchange rates or weak economic conditions in the foreign markets in which the Company has operations. Exposure to these fluctuations is managed primarily through the use of natural hedges, whereby funding obligations and assets are both managed in the applicable local currency.
The Company maintains no other derivative instruments to mitigate its exposure to translation and/or transaction risk. International operations reported operating profit of $4.1 million for the first quarter of 2002. It is estimated that a 10% fluctuation in the value of the dollar relative to these foreign currencies at March 31, 2002 would change the Company's net income for the first quarter of 2002 by approximately $210,000. The Company's analysis does not consider the implications that such fluctuations could have on the overall economic activity that could exist in such an environment in the U.S. or the foreign countries or on the results of operations of these foreign entities.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
A list of all exhibits filed or included as part of this quarterly report on Form 10-Q is as follows:
Exhibit |
Description |
3.1 |
Restatement of Articles of Incorporation (filed as Exhibit 3.2 to the Company's Registration Statement on Form S-1, as amended (Registration No. 33-21353), and incorporated herein by reference). |
3.2 |
Restated By-Laws of the Company (filed as Exhibit 3.3 to the Company's Registration Statement on Form S-1, as amended (Registration No. 33-21353), and incorporated herein by reference). |
4.1 |
Specimen Common Stock Certificate of the Company (filed as Exhibit 4.1 to the Annual Report on Form 10-K for the year ended December 31, 1988, and incorporated herein by reference). |
10.1 |
KCI Employee Benefits Trust Agreement (filed as Exhibit 10.21 to the Company's Annual Report on Form 10-K/A dated December 31, 1994, and incorporated herein by reference). |
10.2 |
Letter, dated November 22, 1994, from the Company to Christopher M. Fashek outlining the terms of his employment (filed as Exhibit 10.23 to the Company's Annual Report on Form 10-K/A dated December 31, 1994, and incorporated herein by reference). |
10.3 |
Deferred Compensation Plan (filed as Exhibit 99.2 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1995 and incorporated herein by reference). |
10.4 |
Kinetic Concepts, Inc. Senior Executive Stock Option Plan (filed as Exhibit 10.31 to the Company's Annual Report on Form 10-K for the year ended December 31, 1996, and incorporated herein by reference). |
10.5 |
Form of Option Instrument with respect to Senior Executive Stock Option Plan (filed as Exhibit 10.32 to the Company's Annual Report on Form 10-K for the year ended December 31, 1996, and incorporated herein by reference). |
10.6 |
Kinetic Concepts Management Equity Plan effective October 1, 1997 (filed as Exhibit 10.33 on Form 10-K for the year ended December 31, 1997, and incorporated herein by reference). |
10.7 |
Director Equity Agreement, dated May 12, 1998, between the Company and Charles N. Martin (filed as Exhibit 10.8 on Form 10-K for the year ended December 31, 1998, and incorporated herein by reference). |
Exhibits (continued)
10.8 |
Letter, dated June 4, 1998, from the Company to William M. Brown outlining the terms of his employment (filed as Exhibit 10.10 on Form 10-K for the year ended December 31, 1998, and incorporated herein by reference). |
10.9 |
Supplier Agreement, dated December 1, 1998, between Novation, LLC and Kinetic Concepts, Inc. (filed as Exhibit 10.11 on Form 10-K for the year ended December 31, 1998, and incorporated herein by reference). |
10.10 |
Letter, dated March 28, 2000, from the Company to Dennert O. Ware outlining the terms of his employment (filed as Exhibit 10.12 on Form 10-Q for the quarter ended March 31, 2000, and incorporated herein by reference). |
10.11 |
Third Amendment to the Credit and Guarantee Agreement dated as of February 24, 2000 by and among the Company, several banks and financial institutions, as Lenders, Bank of America, as administrative agent and Bankers Trust Company, as syndication agent (filed as Exhibit 10.13 on Form 10-Q for the quarter ended March 31, 2000, and incorporated herein by reference). |
10.12 |
Kinetic Concepts, Inc. CEO Special Bonus Plan (filed as Exhibit 10.12 on Form 10-K for the year ended December 31, 2000, and incorporated herein by reference). |
10.13 |
Kinetic Concepts, Inc. 2000 Special Bonus Plan (filed as Exhibit 10.13 on Form 10-K for the year ended December 31, 2000, and incorporated herein by reference). |
10.14 |
Form of Option Instrument with Respect to the Kinetic Concepts, Inc. Management Equity Plan (filed as Exhibit 10.14 on Form 10-K for the year ended December 31, 2000, and incorporated herein by reference). |
10.15 |
Amended and Restated Credit and Guarantee Agreement dated as of June 15, 2001 by and among the Company, several banks and financial institutions, as Lenders, Bank of America, ad administrative agent and Bankers Trust Company, as syndication agent (filed as Exhibit 10.15 on Form 10-Q for the quarter ended June 30, 2001, and incorporated by reference). |
10.16 |
Supplier Agreement, dated September 1, 2001, between Novation, LLC and KCI USA, Inc. (filed as Exhibit 10.16 on Form 10-Q for the quarter ended September 30, 2001, and incorporated by reference). |
*10.17 |
Second Amended and Restated Credit and Guarantee Agreement dated as of April 4, 2002 by and among the Company, several banks and financial institutions, as Lenders, Bank of America, as administrative agent and Bankers Trust Company, as syndication agent. |
21.1 |
List of Subsidiaries (filed as Exhibit 21.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 2001, and incorporated herein by reference). |
Note: (*) Exhibits filed herewith.
(b) REPORTS ON FORM 8-K
No reports on Form 8-K have been filed during the quarter for which this report is filed.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
KINETIC CONCEPTS, INC. |
|
(REGISTRANT) |
|
|
|
By: |
/s/ DENNERT O. WARE |
|
_________________________________ |
Dennert O. Ware |
|
|
|
|
|
By: |
/s/ WILLIAM M. BROWN |
|
__________________________________ |
|
William M. Brown |
Date: May 14, 2002
Exhibit 10.17
EXECUTION COPY
KINETIC CONCEPTS, INC.
THE SUBSIDIARY BORROWERS
FROM TIME TO TIME PARTIES HERETO
SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT
April 4, 2002
(amending and restating
the Amended and Restated Credit and Guarantee Agreement, dated as of June 12, 2001)
BANK OF AMERICA, N.A.
AS ADMINISTRATIVE AGENT
BANKERS TRUST COMPANY AS SYNDICATION AGENT
BANC OF AMERICA SECURITIES LLC AS JOINT LEAD ARRANGER AND JOINT BOOK MANAGER
AND
DEUTSCHE BANC ALEX. BROWN INC. AS JOINT LEAD ARRANGER AND JOINT BOOK MANAGER
TABLE OF CONTENTS
Page
section 1. DEFINITIONS *
1.1 Defined Terms *
1.2 Other Definitional Provisions *
section 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS *
2.1 Revolving Credit Commitments *
2.2 Procedure for Revolving Credit Borrowing *
2.3 Commitment Fee *
2.4 Termination or Reduction of Commitments; Repayment of Revolving Loans *
2.5 L/C Commitment *
2.6 Procedure for Issuance of Letters of Credit *
2.7 Letter of Credit Fees, Commissions and Other Charges *
2.8 L/C Participations *
2.9 Reimbursement Obligation of the Company *
2.10 Obligations Absolute *
2.11 Letter of Credit Payments *
2.12 Application *
2.13 Fronted Offshore Currency Subfacility *
2.14 Procedure for Fronted Offshore Loan Borrowings *
2.15 Fronted Offshore Loan Fees. Commissions and Other Charges *
2.16 Participations in Fronted Offshore Loans *
2.17 Swing Line Commitment *
2.18 Procedure for Swing Line Borrowing; Prepayment of Swing Line Loans *
2.19 Repayment of Swing Line Loans; Participations in Swing Line Borrowings *
section 3. AMOUNT AND TERMS OF TERM LOAN COMMITMENTS *
3.1 Term Loans *
3.2 Procedure for Tranche E Term Loan Borrowing *
3.3 Repayment of Tranche A Term Loans *
3.4 Repayment of Tranche B Term Loans *
3.5 Repayment of Tranche C Term Loans *
3.6 Repayment of Tranche D Term Loans *
3.7 Repayment of Tranche E Term Loans *
section 4. [INTENTIONALLY OMITTED] *
section 5. [INTENTIONALLY OMITTED] *
section 6. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF
CREDIT *
6.1 Evidence of Debt *
6.2 Optional Prepayments *
6.3 Mandatory Prepayments of Loans and Reductions of Revolving Credit Commitments *
6.4 Conversion and Continuation Options *
6.5 Minimum Amounts and Maximum Number of Tranches *
6.6 Interest Rates and Payment Dates *
6.7 Computation of Interest and Fees *
6.8 Inability to Determine Interest Rate *
6.9 Pro Rata Treatment and Payments *
6.10 Illegality *
6.11 Requirements of Law *
6.12 Taxes *
6.13 Indemnity *
6.14 Offshore Currency Spot Rate *
6.15 Subsidiary Borrowers *
6.16 Mitigation Obligations; Replacement of Lenders *
section 7. REPRESENTATIONS AND WARRANTIES *
7.1 Financial Condition *
7.2 No Change; Solvency *
7.3 Existence; Compliance with Law *
7.4 Corporate Power; Authorization; Enforceable Obligations *
7.5 No Legal Bar *
7.6 No Material Litigation *
7.7 No Labor Controversy *
7.8 No Default *
7.9 Ownership of Property; Liens *
7.10 Intellectual Property *
7.11 No Burdensome Restrictions *
7.12 Taxes *
7.13 Federal Regulations *
7.14 ERISA *
7.15 Investment Company Act; Other Regulations *
7.16 Subsidiaries *
7.17 Purpose of Tranche E Term Loans and Revolving Loans *
7.18 Environmental Matters *
7.19 Regulation H *
7.20 No Material Misstatements *
7.21 [Intentionally Omitted]. *
7.22 Ownership of the Company *
7.23 Collateral *
7.24 Senior Debt; No Other Designated Senior Debt *
7.25 Chief Executive Office *
section 8. CONDITIONS PRECEDENT *
8.1 Conditions to Effectiveness *
8.2 Conditions to Each Extension of Credit *
8.3 Additional Conditions to Each Subsidiary Borrower Credit Event *
section 9. AFFIRMATIVE COVENANTS *
9.1 Financial Statements *
9.2 Certificates; Other Information *
9.3 Payment of Obligations *
9.4 Conduct of Business and Maintenance of Existence *
9.5 Maintenance of Property; Insurance *
9.6 Inspection of Property; Books and Records; Discussions *
9.7 Notices *
9.8 Environmental Laws *
9.9 Further Assurances *
9.10 Additional Collateral *
section 10. NEGATIVE COVENANTS *
10.1 Financial Condition Covenants *
10.2 Limitation on Indebtedness *
10.3 Limitation on Liens *
10.4 Limitation on Guarantee Obligations *
10.5 Limitation on Fundamental Changes *
10.6 Limitation on Sale of Assets *
10.7 Limitation on Dividends *
10.8 Limitation on Capital Expenditures *
10.9 Limitation on Investments, Loans and Advances *
10.10 Limitation on Optional Payments and Modifications of Subordinated and Other Debt
Instruments *
10.11 Limitation on Transactions with Affiliates *
10.12 Limitation on Sales and Leasebacks *
10.13 Limitation on Changes in Fiscal Year *
10.14 Limitation on Negative Pledge Clauses *
10.15 Limitation on Lines of Business *
10.16 [Intentionally Omitted]. *
10.17 Limitation on Subsidiary Distributions *
10.18 Limitation on Management Fees *
10.19 Limitation on Activities of Special Purpose Subsidiaries *
10.20 Designated Senior Debt *
10.21 Chief Executive Office *
section 11. EVENTS OF DEFAULT *
section 12. THE AGENTS *
12.1 Appointment *
12.2 Delegation of Duties *
12.3 Exculpatory Provisions *
12.4 Reliance by Agents *
12.5 Notice of Default *
12.6 Non-Reliance on Agents and Other Lenders *
12.7 Indemnification *
12.8 Agent in Its Individual Capacity *
12.9 Successor Administrative Agent *
12.10 Syndication Agent and Arrangers *
section 13. GUARANTEE *
13.1 Guarantee *
13.2 No Subrogation, Contribution, Reimbursement or Indemnity *
13.3 Amendments, etc. with respect to the Subsidiary Borrower Obligations: Waiver of
Rights *
13.4 Guarantee Absolute and Unconditional *
13.5 Reinstatement *
section 14. MISCELLANEOUS *
14.1 Amendments and Waivers *
14.2 Notices *
14.3 No Waiver; Cumulative Remedies *
14.4 Survival of Representations and Warranties *
14.5 Payment of Expenses and Taxes *
14.6 Successors and Assigns; Participations and Assignments *
14.7 Adjustments; Set-off *
14.8 Counterparts *
14.9 Severability *
14.10 Integration *
14.11 GOVERNING LAW *
14.12 Submission To Jurisdiction; Waivers *
14.13 Acknowledgements *
14.14 WAIVERS OF JURY TRIAL *
14.15 Confidentiality *
14.16 Conversion of Currencies *
14.17 Limitation on Obligations of Subsidiary Borrowers *
14.18 Usury Savings Clause *
14.19 Release of Mortgages *
14.20 Certain Amendments *
ANNEXES
ANNEX A - Pricing Grid
SCHEDULES
1.l(a) - Commitments
7.1 Sales, Transfers and Dispositions
7.2 Treasury Stock Purchases for 1997
7.9 Owner Real Property
7.10 Claims with respect to Intellectual Property
7.16 Subsidiaries
7.18 Environmental Matters
7.22 Ownership of the Company
10.2(e) - Existing Indebtedness
10.3(f) - Existing Liens
10.4(a) - Existing Guarantee Obligations
10.6(f) - Scheduled Asset Sales
10.9(n) - Existing Investments
14.2 Addresses for Notices
EXHIBITS
A - Form of Addendum
B - Form of Borrowing Subsidiary Agreement
C - Form of Borrowing Subsidiary Termination
D - Form of Fronting Lender Addendum
E - Form of Amended and Restated Guarantee and Collateral Agreement
F - Form of Mortgage
G-l - Form of Revolving Credit Note
G-2 - Form of Tranche A Term Note
G-3 - Form of Tranche B Term Note
G-4 - Form of Tranche C Term Note
G-5 - Form of Tranche D Term Note
G-6 Form of Tranche E Term Note
G-7 Form of Swing Line Note
G-8 Form of Fronted Loan Note
H - Form of Closing Certificate
I-1 - Form of Legal Opinion of Shearman & Sterling
I-2 - Form of Legal Opinion of Dennis Noll
I-3 - Form of Legal Opinion of Cox & Smith Incorporated
I-4 - Form of Legal Opinion of Young Conaway Stargatt & Taylor, LLP
J - Form of Assignment and Assumption
K - Form of Swing Line Loan Participation Certificate
L - Form of Exemption Certificate
M - Form of Consent and Acknowledgment
N - Form of Lien Perfection Certificate
SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT, dated as of April 4, 2002, among KINETIC CONCEPTS, INC., a Texas corporation (the "Company"), the Subsidiary Borrowers (as defined hereinafter) from time to time parties to this Agreement, the several banks and other financial institutions from time to time parties to this Agreement (the "Lenders"), BANK OF AMERICA, N.A., a national banking association ("Bank of America"), as administrative agent for the Lenders hereunder, and BANKERS TRUST COMPANY, a New York banking corporation ("Bankers Trust"), as syndication agent for the Lenders hereunder.
W I T N E S S E T H:
WHEREAS, the Company and the Subsidiary Borrowers have requested that the Lenders amend and restate the Amended and Restated Credit and Guarantee Agreement, dated as of June 12, 2001 (as amended, restated, modified or supplemented prior to the date hereof, the "Original Amended and Restated Credit Agreement") among the Company, the Subsidiary Borrowers parties thereto, the Lenders parties thereto, Bank of America, as Administrative Agent, and Bankers Trust, as Syndication Agent, which amended and restated the Credit and Guarantee Agreement, dated as of November 3, 1997 (the "Original Credit Agreement") among the Company, the Subsidiary Borrowers parties thereto, the Lenders parties thereto, Bank of America National Trust and Savings Association (Bank of America being the successor thereto), as Administrative Agent, and Bankers Trust, as Syndication Agent, as amended by the First Amendment, dated as of October 7, 1998, the Second Amendment and Waiver, dated as of October 1 , 1999, the Third Amendment, dated as of February 24, 2000, in the manner provided for herein; and
WHEREAS, the Lenders are willing to amend and restate the Original Amended and Restated Credit Agreement in its entirety upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereto hereby agree that, subject to the satisfaction of the conditions set forth in subsection 8.1, the Original Amended and Restated Credit Agreement is hereby amended and restated to read in its entirety as follows:
. As used in this Agreement, the following terms shall have the following meanings:
"Accepting Tranche B Lenders", "Accepting Tranche C Lenders", "Accepting Tranche D Lenders" and "Accepting Tranche E Lenders": as defined in subsection 6.3(i).
"Acquired EBITDA": with respect to any Permitted Acquisition by the Company or any of its Subsidiaries during any period, the portion of consolidated net income of the Prior Owner thereof for such period attributable to the Capital Stock or assets acquired by the Company or such Subsidiary pursuant to such Permitted Acquisition, as the case may be, plus, to the extent deducted in computing such portion of consolidated net income for such period, the sum of (a) income tax expense, (b) interest expense and (c) depreciation and amortization expense, all as determined with respect to such Capital Stock or assets while under the ownership of the Prior Owner in accordance with GAAP.
"Acquired Interest Expense": with respect to any Permitted Acquisition by the Company or any of its Subsidiaries during any period, the sum of (a) the portion of interest expense, both expensed and capitalized, of the Prior Owner thereof for such period determined in accordance with GAAP (including that portion of payments under Financing Leases of the Prior Owner attributable to interest expense of Prior Owner for such period in accordance with GAAP) attributable to any Indebtedness of the Prior Owner which is assumed by the Company or any of its Subsidiaries pursuant to such Permitted Acquisition and (b) the Interest Expense that would have been incurred by the Company from the beginning of such period through the date of consummation of such Permitted Acquisition had the Indebtedness incurred by the Company or any of its Subsidiaries to finance such Permitted Acquisition been incurred on the first day of such period (assuming the rate of interest applicable to such Indebtedness during such period was equal to the rate of interest applicable to such Indebtedness on the date of consummation of such Permitted Acquisition).
"Acquisition": as to any Person, the acquisition (in a single transaction or a series of related transactions) by such Person of (a) at least 50% of the outstanding Capital Stock of any other Person, (b) all or substantially all of the assets of any other Person or (c) assets constituting one or more business units or divisions of any other Person.
"Acquisition Loan": as defined in the Original Credit Agreement.
"Addendum": an instrument, substantially in the form of Exhibit A, by which a Lender becomes a party to this Agreement or consents to the execution of this Agreement, as the case may be.
"Adjustment Date": the second Business Day following receipt by the Administrative Agent of both (a) the financial statements required to be delivered pursuant to subsection 9.1 (a) or 9.1(b), as the case may be, for the most recently completed fiscal period and (b) the compliance certificate required to be delivered pursuant to subsection 9.2(b) with respect to such fiscal period.
"Administrative Agent": Bank of America, together with its affiliates, as the administrative agent for the Lenders under this Agreement and the other Loan Documents.
"Administrative Agent's Payment Office": (a) in respect of payments in Dollars, the address for payments set forth in subsection 14.2 or such other address as the Administrative Agent may from time to time specify in accordance with subsection 14.2, and (b) in the case of payments in any Eligible Offshore Currency, such address as the Administrative Agent may from time to time specify in accordance with subsection 14.2.
"Affected Eurodollar Loans": as defined in subsection 6.3(h).
"Affected Offshore Currency": as defined in subsection 6.8.
"Affected Offshore Loans": as defined in subsection 6.3(h).
"Affiliate": as to any Person, any other Person (other than a Subsidiary) which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, "control" of a Person means the power, directly or indirectly, either to (a) vote 20% or more of the securities having ordinary voting power for the election of directors of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
"Agent-Related Persons": the Agents and any successor agent pursuant to subsection 12.9, together with their respective Affiliates (including the Arrangers), and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agents": collectively, the Administrative Agent and the Syndication Agent.
"Aggregate Revolving Credit Outstandings": as to any Revolving Credit Lender at any time, an amount equal to the sum of (a) the aggregate principal amount (or the Dollar Equivalent thereof, in the case of Revolving Offshore Loans) of all Revolving Loans made by such Revolving Credit Lender then outstanding, (b) such Revolving Credit Lender's Revolving Credit Commitment Percentage of the L/C Obligations then outstanding, (c) such Revolving Credit Lender's Revolving Credit Commitment Percentage of the aggregate principal amount of all Swing Line Loans then outstanding and (d) such Revolving Credit Lender's Revolving Credit Commitment Percentage of the Dollar Equivalent of the aggregate principal amount of all Fronted Offshore Loans then outstanding.
"Agreement": this Second Amended and Restated Credit and Guarantee Agreement, as amended, restated, supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in subsection 14.16.
"Amended and Restated Guarantee and Collateral Agreement": the Amended and Restated Guarantee and Collateral Agreement, to be executed and delivered by the Company and each of the Domestic Subsidiaries, substantially in the form of Exhibit E, as the same may be amended, restated, supplemented or otherwise modified from time to time.
"Applicable Creditor": as defined in subsection 14.16.
"Applicable Margin": (a) in the case of the Revolving Loans (excluding Revolving Offshore Loans) and Tranche A Term Loans, (i) 1.00%, if such Loans are Base Rate Loans and (ii) 2.00%, if such Loans are Eurodollar Loans; (b) in the case of the Tranche B Term Loans, (i) 1.75% if such Loans are Base Rate Loans and (ii) 2.75% if such Loans are Eurodollar Loans; (c) in the case of Tranche C Term Loans and Tranche E Term Loans, (i) 2.00% if such Loans are Base Rate Loans and (ii) 3.00% if such Loans are Eurodollar Loans; (d) in the case of Tranche D Term Loans, (i) 1.875% if such Loans are Base Rate Loans and (ii) 2.875% if such Loans are Eurodollar Loans; and (e) if such Loans are Revolving Offshore Loans, 2.00%; provided that, (x) the Applicable Margin for all Loans will be adjusted, on each Adjustment Date occurring after the Second Restatement Date, to the Applicable Margin set forth on Annex A opposite the Leverage Ratio Level of the Company in effect on such Adjustment Date, and, provided, further, that, in the event the financial statements required to be delivered pursuant to subsection 9.1(a) or 9.1(b), as applicable, and the related compliance certificate required pursuant to subsection 9.2(b) are not delivered when due, then, during the period from the date on which such financial statements were required to be delivered until two Business Days following the date upon which they actually are delivered, the Applicable Margin shall be (A) in the case of Revolving Loans (excluding Revolving Offshore Loans) and Tranche A Term Loans, (i) 1.75% if such Loans are Base Rate Loans and (ii) 2.75% if such Loans are Eurodollar Loans, (B) in the case of Tranche B Term Loans, (i) 2.00% if such Loans are Base Rate Loans and (ii) 3.00% if such Loans are Eurodollar Loans, (C) in the case of Tranche C Term Loans and Tranche E Term Loans (i) 2.25% if such Loans are Base Rate Loans and (ii) 3.25% if such Loans are Eurodollar Loans, (D) in the case of Tranche D Term Loans, (i) 2. 125% if such Loans are Base Rate Loans and (ii) 3.125% if such Loans are Eurodollar Loans and (E) in the case of Revolving Offshore Loans, 2.75%, and (y) if any Event of Default shall have occurred and be continuing on any Adjustment Date, no reduction in the Applicable Margin on any Loan which would otherwise become effective on such Adjustment Date pursuant to clause (x) above shall become effective unless such Event of Default is cured or waived prior to the next succeeding Adjustment Date.
"Applicable Rate": 0.30%, provided that, the Applicable Rate will be adjusted, on each Adjustment Date occurring after the Second Restatement Date, to the Applicable Rate set forth on Annex A opposite the Leverage Ratio Level of the Company in effect on such Adjustment Date, and, provided, further, that, (x) in the event the financial statements required to be delivered pursuant to subsection 9.1(a) or 9.l(b), as applicable, and the related compliance certificate required pursuant to subsection 9.2(b) are not delivered when due, then, during the period from the date on which such financial statements were required to be delivered until two Business Days following the date upon which they actually are delivered, the Applicable Rate shall be 0.50% and (y) if any Event of Default shall have occurred and be continuing on any Adjustment Date, no reduction in the Applicable Rate which would otherwise become effective on such Adjustment Date pursuant to clause (x) abo ve shall become effective unless such Event of Default is cured or waived prior to the next succeeding Adjustment Date.
"Arrangers": Banc of America Securities LLC and Deutsche Banc Alex. Brown Inc., in their capacity as joint lead arrangers and joint book managers under this Agreement.
"Assignee": as defined in subsection 14.6(c).
"Available Cash": at any time, (a) the sum of (i) so long as no Default or Event of Default shall have then occurred and be continuing, the aggregate Available Revolving Credit Commitments of the Revolving Credit Lenders at such time and (ii) the aggregate amount of unrestricted cash and Cash Equivalents of the Company and its Subsidiaries at such time minus (b) the aggregate amount of taxes that would then be payable if the cash or Cash Equivalents of the Foreign Subsidiaries were paid as a dividend to the Company or any of its Domestic Subsidiaries as a result of the payment of such dividend.
"Available Revolving Credit Commitment": as to any Revolving Credit Lender at any time, an amount equal to the excess, if any, of (a) the amount of such Revolving Credit Lender's Revolving Credit Commitment in effect at such time over (b) the Aggregate Revolving Credit Outstandings of such Revolving Credit Lender at such time; collectively, as to all the Revolving Credit Lenders, the "Available Revolving Credit Commitments".
"Bank of America": as defined in the preamble to this Agreement.
"Bankers Trust": as defined in the preamble to this Agreement.
"Banking Day": (a) with respect to any borrowings, disbursements and payments in respect of and calculations and interest rates pertaining to Base Rate Loans, any Business Day, (b) with respect to any borrowings, disbursements and payments in respect of and calculations, interest rates and Interest Periods pertaining to Eurodollar Loans, any Business Day which is also a day on which dealings are carried on in the London Interbank market, (c) with respect to any disbursements and payments in respect of and calculations, interest rates and Interest Periods pertaining to any Revolving Offshore Loan, any Business Day which is also a day on which commercial banks are open for foreign exchange business in London, England, and on which dealings in the relevant Offshore Currency are carried on in the applicable offshore foreign exchange interbank market in which disbursement of or payment in such Offshore Currency will be made or received hereunder and (d) with respect to any borrowings, disburse ments and payments in and calculations, interest rates and Interest Periods pertaining to any Fronted Offshore Loan, any Business Day which is also a day on which commercial banks are open for in, and on which dealings in the relevant Fronted Offshore Currency are carried on in, the location of the Fronting Lender's Payment Office with respect to such Fronted Offshore Currency.
"Base Rate": for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (i) the rate of interest publicly announced by Bank of America as its "reference rate" and (ii) the Federal Funds Effective Rate in effect from time to time plus 0.5%; any change in the Base Rate due to a change in the Federal Funds Effective Rate shall be effective as of the opening of business on the effective day of such change in the Federal Funds Effective Rate.
"Base Rate Loans": Loans the rate of interest applicable to which is based upon the Base Rate.
"Base Year": as defined in subsection 6.3(b).
"Benefitted Lender": as defined in subsection 14.7(a).
"Borrowing Date": any Banking Day specified in a notice pursuant to subsection 2.2, 2.14, 2.18 or 3.2 as a date on which the Company requests the Lenders to make Loans hereunder.
"Borrowing Subsidiary Agreement": a Borrowing Subsidiary Agreement, substantially in the form of Exhibit B hereto.
"Borrowing Subsidiary Termination": a Borrowing Subsidiary Termination, substantially in the form of Exhibit C hereto.
"Business": as defined in subsection 7.18(b).
"Business Day": a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close.
"Buyers": the New Investor Group and the Rollover Shareholders.
"Calculation Date": with respect to each Offshore Currency, the last Business Day of each calendar month and any other Business Day which the Administrative Agent designates as a Calculation Date for such Offshore Currency, provided that the second Banking Day preceding each Borrowing Date with respect to any Offshore Currency Loans in an Offshore Currency shall also be a "Calculation Date" with respect to such Offshore Currency.
"Capital Expenditures": as to any Person for any period, gross expenditures (whether paid in cash or other consideration or accrued by such Person and its Subsidiaries, but without duplication) for the rental, lease, purchase (including by way of the acquisition of securities of a Person), construction or use of any property during such period, the value or cost of which, in accordance with GAAP, would appear on such Person's consolidated balance sheet in the category of property, plant or equipment at the end of such period, provided that the foregoing shall not be reduced for any sales or dispositions of any category of property, plant or equipment, provided, further, that the foregoing shall exclude any expenditures for raw materials or work-in-process, provided, further, that the foregoing shall exclude any expenditures for Permitted Acquisitions.
"Capital Stock": any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing.
"Cash Collateral Account": as defined in subsection 6.3(a).
"Cash Equivalents": (a) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, (b) certificates of deposit and eurodollar time deposits with maturities of one year or less from the date of acquisition and overnight bank deposits of any Lender or of any commercial bank having capital and surplus in excess of $500,000,000, (c) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days with respect to securities issued or fully guaranteed or insured by the United States Government, (d) commercial paper of a domestic issuer rated at least A-2 by Standard and Poor's Rating Group ("S&P") or at least P-2 by Moody's Investors Service, Inc. ("Moody's"), (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or at least A by Moody's, (f) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition or (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.
"Cash Interest Expense": of the Company for any period, Consolidated Interest Expense of the Company for such period minus, in each case to the extent included in determining such Consolidated Interest Expense for such period, the sum of the following: (a) non-cash expenses for interest payable in kind and (b) amortization of debt discount and fees.
"Casualty Event": with respect to any property of any Person, the receipt by such Person of insurance proceeds, or proceeds of a condemnation award or other compensation in connection with any loss of or damage to, or any condemnation or other taking of, such property.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Collateral": all assets of the Loan Parties, now owned or hereinafter acquired, upon which a Lien is purported to be created by any Security Document.
"Commitments": the collective reference to the Revolving Credit Commitments and the Term Loan Commitments; individually, a "Commitment".
"Commonly Controlled Entity": an entity, whether or not incorporated, which is under common control with the Company within the meaning of Section 4001 of ERISA or is part of a group which includes the Company and which is treated as a single employer under Section 414 of the Code.
"Company": as defined in the preamble to this Agreement.
"Company's Headquarters": the Company's main headquarters located at 8023 Vantage Drive in San Antonio, Texas (including land and improvements), together with parcels of real property (including land and improvements) adjacent thereto (including across any street), owned by the Company or by any Subsidiary of the Company.
"Consent and Acknowledgment": the Consent and Acknowledgment to be executed and delivered by each of the Company's Subsidiaries which is a party to any Security Document, substantially in the form of Exhibit M, as amended, restated, supplemented or otherwise modified from time to time.
"Consolidated": means such term as it applies to the Company and its Subsidiaries on a consolidated basis, after eliminating all intercompany items.
"Continuing Directors": as defined in subsection 11(m).
"Contractual Obligation": as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
"Cost of Funds": with respect to any Offshore Currency, the rate of interest determined by the Administrative Agent or the relevant Fronting Lender in respect thereof (which determination shall be conclusive absent manifest error) to be the cost to the Administrative Agent or such Fronting Lender of obtaining funds denominated in such Offshore Currency for the period or, if applicable, the relevant Interest Period or Periods during which any relevant amount in such Offshore Currency is outstanding.
"Default": any of the events specified in Section 11, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.
"Designated Lenders": as defined in subsection 8.1 (a).
"Dollar Equivalent": at any time as to any amount denominated in an Offshore Currency, the equivalent amount in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate for the purchase of Dollars with such Offshore Currency on the most recent Calculation Date for such Offshore Currency.
"Dollars" and "$": dollars in lawful currency of the United States of America.
"Domestic Subsidiary": any Subsidiary of the Company organized under the laws of any jurisdiction within the United States.
"EBITDA": with respect to any period, the sum of, without duplication, (a) Consolidated Net Income of the Company for such period plus, in each case to the extent deducted in determining such Consolidated Net Income for such period, the sum of the following (without duplication): (i) Consolidated Interest Expense of the Company, (ii) consolidated income tax expense of the Company and its Consolidated Subsidiaries, (iii) consolidated depreciation and amortization expense of the Company and its Consolidated Subsidiaries, (iv) the unrealized foreign currency losses of the Company and its Consolidated Subsidiaries, and (v) all other non-cash charges and expenses of the Company and its Consolidated Subsidiaries, provided that the aggregate amount of non-cash charges and expenses that may be added back pursuant to this clause (v) in connection with the calculation of EBITDA of the Company subsequent to February 24, 2000 may not exceed $25,000,000, and minus, to the extent included in determining such Consolidated Net Income for such period, any unrealized foreign currency gains and any non-cash income or non-cash gains, all as determined on a consolidated basis in accordance with GAAP, plus (b) with respect to any Permitted Acquisitions made by the Company or any of its Subsidiaries during such period, the Acquired EBITDA of the Capital Stock or assets acquired pursuant to such Permitted Acquisitions while under the ownership of the Prior Owner thereof for the portion of such period prior to the consummation of such Permitted Acquisition, provided that EBITDA with respect to any period during which any Permitted Acquisition is consummated shall not include any interest income in respect of any cash (other than proceeds of Indebtedness incurred to finance any such Permitted Acquisition) used to finance such Permitted Acquisition.
"Eligible L/C Currency": each of the lawful currencies of Canada (Canadian Dollar), the Republic of France (French Franc), the Federal Republic of Germany (German Mark), the Republic of Italy (Italian Lira), the participating member states of the European Union (the euro) and the United Kingdom of Great Britain and Northern Ireland (British Pounds Sterling).
"Eligible Offshore Currency": each of the lawful currencies of the United Kingdom of Great Britain and Northern Ireland (British Pounds Sterling), the Republic of France (French Franc), the Federal Republic of Germany (German Mark), the participating member states of the European Union (the euro) and any other currency approved by all the Revolving Credit Lenders.
"EMD CV": European Medical Distributors, CV, a Dutch limited partnership.
"Environmental Laws": any and all foreign, Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of the environment, or of human health or employee health and safety as they may be affected by the environment or by Materials of Environmental Concern, as has been, is now, or may at any time hereafter be, in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a Eurodollar Loan or a Revolving Offshore Loan, the aggregate (without duplication) of the rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including, without limitation, basic, supplemental, marginal and emergency reserves under any regulations of the Board of Governors of the Federal Reserve System or other Governmental Authority having jurisdiction with respect thereto) dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each Interest Period pertaining to a Eurodollar Loan, the rate per annum equal to the rate for deposits in Dollars for the period commencing on the first day of such Interest Period and ending on the last day of such Interest Period which appears on Telerate Page 3750 as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period. If at least two rates appear on such Telerate Page for such Interest Period, the "Eurodollar Base Rate" shall be the arithmetic mean of such rates. If the "Eurodollar Base Rate" cannot be determined in accordance with the immediately preceding sentences with respect to any Interest Period, the "Eurodollar Base Rate" with respect to each day during such Interest Period shall be the rate per annum equal to the rate at which Bank of America is offered Dollar deposits at or about 12:00 Noon, Central time, two Banking Days prior to the beginning of s uch Interest Period in the interbank eurodollar market where the eurodollar and foreign currency and exchange operations in respect of its Eurodollar Loans are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to the amount of its Eurodollar Loan to be outstanding during such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for such day in accordance with the following formula (rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 11, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Company:
(a) the sum of (i) EBITDA for such fiscal year, plus (ii) any decreases in Working Capital during such fiscal year,
minus
(b) the sum of, without duplication, (i) to the extent deducted in determining Consolidated Net Income of the Company for such fiscal year, the aggregate amount of Cash Interest Expense for such fiscal year plus (ii) scheduled principal amortization of Term Loans and Acquisition Loans during such fiscal year (whether or not such payments are made, but after giving effect to any reduction in such scheduled principal amortization as a result of voluntary prepayments), plus (iii) any voluntary prepayments of Term Loans and Acquisition Loans made during such fiscal year, plus (iv) any prepayments of Revolving Loans to the extent the Revolving Credit Commitments were concurrently reduced at the option of the Company by a like amount during such fiscal year, plus (v) the sum of, without duplication, (A) the aggregate amount paid, or required to be paid, in cash in respect of income taxes during such fiscal year and (B) the aggregate amount of taxes that would be payable if the portion of Consolidated Net Income of the Company for such fiscal year which was earned by Foreign Subsidiaries was paid as a dividend to the Company or any of its Domestic Subsidiaries during such fiscal year plus (vi) the aggregate amount of all Capital Expenditures made during such fiscal year plus (vii) any increases in Working Capital during such fiscal year, plus (viii) the Acquired EBITDA of all Capital Stock or assets acquired pursuant to any Permitted Acquisitions made during such fiscal year while under the ownership of the Prior Owner thereof for the portion of such fiscal year prior to the consummation of each such Permitted Acquisition plus (ix) the excess of (A) the aggregate amount of cash used to consummate Permitted Acquisitions during such fiscal year over (B) the increase in Working Capital during such fiscal year which is attributable to such Permitted Acquisitions.
"Federal Funds Effective Rate": for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average 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.
"Fee Payment Date": the fifteenth day of each April, July, October and January.
"Financing Lease": any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee.
"Foreign Currency Protection Agreements": as to any Person, all foreign exchange contracts, currency swap agreements or other similar agreements or arrangements designed to protect such Person against fluctuations in currency values.
"Foreign Subsidiary": any Subsidiary of the Company organized under the laws of any jurisdiction outside the United States of America.
"Fronted Loan Note": as defined in subsection 6.1(e).
"Fronted Loan Participants": with respect to each Fronted Offshore Loan, the collective reference to all Revolving Credit Lenders.
"Fronted Offshore Currency": with respect to each Fronting Lender, the Offshore Currency or Currencies specified in the applicable Fronting Lender Addendum executed by such Fronting Lender.
"Fronted Offshore Currency Subfacility": the lending facility described in subsection 2.13.
"Fronted Offshore Currency Sublimit": with respect to each Fronting Lender and any Fronted Offshore Currency, the amount specified by such Fronting Lender for such Fronted Offshore Currency in the applicable Fronting Lender Addendum executed by such Fronting Lender.
"Fronted Offshore Loans": as defined in subsection 2.13.
"Fronting Lender": with respect to a particular Fronted Offshore Currency, each Lender (or an Affiliate thereof) which executes and delivers a Fronting Lender Addendum with respect to such Fronted Offshore Currency, provided that, unless the Administrative Agent otherwise agrees, there shall be no more than one Fronting Lender for any Fronted Offshore Currency.
"Fronting Lender Addendum": a Fronting Lender Addendum, substantially in the form of Exhibit D hereto (with such changes as may be agreed by the Administrative Agent, the relevant Fronting Lender and the relevant Subsidiary Borrower).
"Fronting Lender's Payment Office": in the case of payments in a Fronted Offshore Currency, such address as the relevant Fronting Lender may from time to time specify for such purpose pursuant to the applicable Fronting Lender Addendum executed by such Fronting Lender.
"FX Trading Office": the Bank of America Foreign Exchange Trading Desk in Chicago, Illinois, or such other of Bank of America's offices as the Administrative Agent may designate as such from time to time.
"GAAP": generally accepted accounting principles in the United States of America in effect from time to time.
"Governmental Authority": any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee": (a) the Amended and Restated Guarantee and Collateral Agreement, (b) the Consent and Acknowledgment or (c) any other guarantee delivered to the Administrative Agent (including the guarantee of the Company set forth in Section 13 of this Agreement) guaranteeing the Obligations.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the "primary obligations") of any other third Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (x) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (y) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person's maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing person in good faith.
"Guarantor": any Person (other than the Company) which is now or hereafter becomes a party to the Amended and Restated Guarantee and Collateral Agreement.
"IMD CV": International Medical Distributors, CV, a Dutch limited partnership.
"Indebtedness": of any Person at any date, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices), (b) any other indebtedness of such Person which is evidenced by a note, bond, debenture or similar instrument, (c) all obligations of such Person under Financing Leases, (d) all obligations of such Person in respect of acceptances issued or created for the account of such Person, (e) all obligations of such Person in respect of Foreign Currency Protection Agreements, Interest Rate Protection Agreements and any other commodity or other hedging arrangement and (f) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof (the amount of any Indebtedness pursuant to this clause (f) shall be equal to th e lesser of (i) the amount of such liabilities and (ii) the fair market value of such property). For purposes of this Agreement, the amount of any Indebtedness referred to in clause (e) of the preceding sentence shall be the net amounts (including by offset of amounts payable thereunder), including any net termination payments, required to be paid to a counterparty rather than any notional amount with regard to which payments may be calculated.
"Insolvency": with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 7.10.
"Interest Expense": of the Company for any period, the sum of (a) the amount of interest expense, both expensed and capitalized, of the Company and its Consolidated Subsidiaries determined on a consolidated basis in accordance with GAAP for such period, plus, without duplication, that portion of payments under Financing Leases of the Company and its Consolidated Subsidiaries attributable to interest expense of the Company and its Consolidated Subsidiaries for such period in accordance with GAAP and (b) the Acquired Interest Expense of the Company and its Subsidiaries for such period.
"Interest Payment Date": (a) as to any Base Rate Loan or Swing Line Loan, the fifteenth Banking Day of each March, June, September and December, (b) as to any Eurodollar Loan or Revolving Offshore Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any Eurodollar Loan or Revolving Offshore Loan having an Interest Period longer than three months, each day which is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period, and (d) as to any Fronted Offshore Loan, the date or dates specified in the applicable Fronting Lender Addendum.
"Interest Period": (a) with respect to any Eurodollar Loan or Revolving Offshore Loan:
(i) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan or Revolving Offshore Loan and ending one, two, three or six months thereafter, as selected by the Company in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan or Revolving Offshore Loan and ending one, two, three or six months thereafter, as selected by the Company by irrevocable written notice to the Administrative Agent not less than three Banking Days prior to the last day of the then current Interest Period with respect thereto;
provided that, the foregoing provisions relating to Interest Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan would otherwise end on a day that is not a Banking Day, such Interest Period shall be extended to the next succeeding Banking Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Banking Day;
(2) any Interest Period pertaining to a Eurodollar Loan that begins on the last Banking Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Banking Day of a calendar month; and
(3) the Company shall select Interest Periods so as not to require a payment or prepayment of any Eurodollar Loan during an Interest Period for such Loan.
(b) with respect to any Fronted Offshore Loan, the interest periods (if any) specified in the applicable Fronting Lender Addendum.
"Interest Rate Protection Agreement": any interest rate protection agreement, interest rate future, interest rate option, interest rate cap or collar or other interest rate hedge arrangement, to or under which the Company or any of its Subsidiaries is a party or a beneficiary.
"Investments": as defined in subsection 10.9.
"ISP": the International Standby Practices of the International Chamber of Commerce (ISP 98).
"Issuing Bank": Bank of America, any of its affiliates or any other Lender which shall be appointed in accordance with the provisions hereof to act as Issuing Bank.
"Judgment Currency": as defined in subsection 14.16.
"KCI Holding": KCI Holding Company, Inc., a Delaware corporation.
"KCII Holdings LLC": KCII Holdings, L.L.C., a Delaware limited liability company.
"KCII": KCI International, Inc., a Delaware corporation.
"KCI International": KCI International Holding Company, a Delaware corporation.
"L/C Obligations": at any time, the sum of (a) the aggregate amount then available to be drawn under all outstanding Letters of Credit (or the Dollar Equivalent thereof, in the case of Letters of Credit issued in Offshore Currencies) and (b) the aggregate amount of Reimbursement Obligations in respect of Letters of Credit (or the Dollar Equivalent thereof, in the case of Letters of Credit issued in Offshore Currencies) which have not then been reimbursed by the Company pursuant to subsection 2.9.
"L/C Participants": the collective reference to all the Revolving Credit Lenders other than the Issuing Bank.
"L/C Sublimit": at any time, the lesser of (a) $10,000,000 and (b) the Revolving Credit Commitments then in effect.
"Lenders": as defined in the preamble to this Agreement and including, without limitation, the Issuing Bank, provided that, for purposes of subsections 6.10, 6.11, 6.12 and 6.13, all Fronting Lenders shall, in their capacities as such, be deemed to be "Lenders".
"Letter of Credit Application": an application in such form as the Issuing Bank may specify from time to time, requesting the Issuing Bank to open a Letter of Credit.
"Letters of Credit": as defined in subsection 2.5(a).
"Leverage Ratio": at any time, the ratio of (a) Total Funded Debt at such time to (b) EBITDA for the most recent period of four consecutive fiscal quarters.
"Leverage Ratio Level": as to the Company, the existence of Leverage Ratio Level I, Leverage Ratio Level II, Leverage Ratio Level III, Leverage Ratio Level IV or Leverage Ratio Level V, as the case may be.
"Leverage Ratio Level I": as to the Company, shall exist on an Adjustment Date if the Leverage Ratio for the period of four consecutive fiscal quarters ending on the last day of the period covered by the financial statements relating to such Adjustment Date is greater than or equal to 5.50 to 1.00.
"Leverage Ratio Level II": as to the Company, shall exist on an Adjustment Date if the Leverage Ratio for the period of four consecutive fiscal quarters ending on the last day of the period covered by the financial statements relating to such Adjustment Date is less than 5.50 to 1.00 but greater than or equal to 5.00 to 1.00.
"Leverage Ratio Level III": as to the Company, shall exist on an Adjustment Date if the Leverage Ratio for the period of four consecutive fiscal quarters ending on the last day of the period covered by the financial statements relating to such Adjustment Date is less than 5.00 to 1.00 but greater than or equal to 4.50 to 1.00.
"Leverage Ratio Level IV": as to the Company, shall exist on an Adjustment Date if the Leverage Ratio for the period of four consecutive fiscal quarters ending on the last day of the period covered by the financial statements relating to such Adjustment Date is less than 4.50 to 1.00 but greater than or equal to 4.00 to 1.00.
"Leverage Ratio Level V": as to the Company, shall exist on an Adjustment Date if the Leverage Ratio for the period of four consecutive fiscal quarters ending on the last day of the period covered by the financial statements relating to such Adjustment Date is less than 4.00 to 1.00.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any Financing Lease having substantially the same economic effect as any of the foregoing).
"Loan": any loan made by any Lender, Swing Line Lender or Fronting Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Consent and Acknowledgment, any Notes, any Borrowing Subsidiary Agreements, any Letter of Credit Applications, any Fronting Lender Addenda, any Letters of Credit, any Swing Line Loan Participation Certificates and the Security Documents.
"Loan Notices": notices from the Company with respect to borrowings, commitments, conversions and continuations, such as notices of borrowings, notices of termination or reduction of Revolving Credit Commitments, notices requesting the issuance of Letters of Credit, notices with respect to whether a Loan is to be a Eurodollar Loan, notices regarding continuing Eurodollar Loans and Revolving Offshore Loans, and notices regarding the conversion of Eurodollar Loans to Base Rate Loans and the conversion of Base Rate Loans to Eurodollar Loans.
"Loan Parties": the Company and each Subsidiary of the Company which is a party to a Loan Document; individually, a "Loan Party".
"Material Adverse Effect": a material adverse effect on (a) the business, assets, property, condition (financial or otherwise) or prospects of the Company and its Subsidiaries taken as a whole or (b) the validity or enforceability of this or any of the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes (including, without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde insulation), that is regulated pursuant to or could give rise to liability under any applicable Environmental Law, whether or not such substance, material, or waste is defined as hazardous or toxic under any applicable Environmental Law.
"Merger Date": the date of the merger involving the Company consummated in connection with the Recapitalization.
"Moody's": as defined in the definition of "Cash Equivalents."
"Mortgages": the collective reference to the fee and ground leasehold mortgages, deeds of trust and other similar documents executed and delivered from time to time by the Company and the Guarantors in favor of the Administrative Agent, substantially in the form of Exhibit F (including, without limitation, any such documents executed in connection with the Original Credit Agreement or the Original Amended and Restated Credit Agreement) or, if such Exhibit is not appropriate under applicable law in the jurisdiction in which the relevant real property is located, in such other form as shall be reasonably satisfactory to the Company and the Administrative Agent, as each of the same may be amended, restated, supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in Section 4001 (a)(3) of ERISA.
"Net Cash Proceeds": (a) with respect to any sale or other disposition of assets by the Company or any of its Subsidiaries, the net amount equal to the aggregate amount received in cash (including Cash Equivalents and any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or the subsequent sale or disposition of any non-cash consideration or Investments received in connection therewith or otherwise, but only as and when received) minus the sum of (i) the fees, commissions and other out-of-pocket expenses incurred by the Company or such Subsidiary in connection with such sale or other disposition, (ii) federal, state and local taxes incurred in connection with such sale or other disposition, whether payable at such time or thereafter, (iii) purchase price adjustments reasonably expected to be payable by such Loan Party in connection therewith (it being understood that if such amount is n ot subsequently paid, such amount shall constitute "Net Cash Proceeds" at the time such payment is no longer required) and (iv) in the case of any such sale or other disposition of assets subject to a Lien securing any Indebtedness (which Lien and Indebtedness are permitted by this Agreement), any amounts required to be repaid by the Company or such Subsidiary in respect of such Indebtedness (other than Indebtedness under this Agreement) in connection with such sale or other disposition;
(b) with respect to any issuance of any Indebtedness or Capital Stock by any Loan Party or any of its Subsidiaries or any capital contribution made to any Loan Party or any of its Subsidiaries, the net amount equal to the aggregate amount received in cash (including Cash Equivalents and any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or the subsequent sale or disposition of any non-cash consideration or Investments received in connection therewith or otherwise, but only as and when received) in connection with such issuance or capital contribution minus the documented fees, commissions and other out-of-pocket expenses incurred by such Loan Party and its Subsidiaries in connection with such issuance or capital contribution; and
(c) with respect to proceeds received by any Loan Party or any of its Subsidiaries in respect of a Casualty Event, the amount of such proceeds minus (i) the documented out-of-pocket fees and expenses incurred by such Loan Party and its Subsidiaries in connection with the collection of such proceeds, (ii) any such proceeds received in respect of insurance which are required to be paid to any co-insured Persons or other loss payees with respect to such insurance, and (iii) in the case of any Casualty Event relating to any asset subject to a Lien securing any Indebtedness (which Lien and Indebtedness are permitted by this Agreement), any amounts required to be repaid by the Company or such Subsidiary in respect of such Indebtedness (other than Indebtedness under this Agreement) in connection with such Casualty Event.
"Net Income": of the Company for any period, the net income of the Company and its Consolidated Subsidiaries, determined on a consolidated basis in accordance with GAAP for such period, provided, however, that the net income of the Company and its Consolidated Subsidiaries shall only include 50% of any net income resulting from the collection of some or all of the $14,700,000 of outstanding receivables due from Medicare Part B related to rates and services pertaining to the Vacuum Assisted Closure Device prior to December 31, 1999.
"New Investor Group": the Sponsors and their affiliates and investors which participated and invested in the Recapitalization.
"Non-Excluded Taxes": as defined in subsection 6.12(a).
"Non-Executing Persons": as defined in subsection 8.1(a)
"Notes": the collective reference to the Revolving Credit Notes, the Swing Line Note, the Term Notes and the Fronted Loan Notes.
"Obligations": the unpaid principal of and interest on (including, without limitation, interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any Subsidiary Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Company and the Subsidiary Borrowers to the Agents, or the Issuing Bank or to any Lender or Fronting Lender (or to any Affiliate of a Lender which enters into any Foreign Currency Protection Agreement or Interest Rate Protection Agreement with the Company or any Subsidiary Borrower), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Do cument, any Letters of Credit, any Foreign Currency Protection Agreement or Interest Rate Protection Agreement entered into with any Lender or any Affiliate of any Lender or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees, charges and disbursements of counsel to any Agent or to any Lender that are required to be paid by the Company or any Subsidiary Borrower pursuant hereto) or otherwise.
"Offshore Base Rate": with respect to each day during each Interest Period pertaining to a Revolving Offshore Loan, the rate of interest per annum (rounded upwards to the nearest 1/32 of 1%) determined by the Administrative Agent as the rate at which deposits in the applicable Eligible Offshore Currency in the approximate amount of Bank of America's Revolving Offshore Loan for such Interest Period would be offered by Bank of America (or such other office as may be designated for such purpose by Bank of America) to major banks in the interbank market where Bank of America conducts its foreign currency operations in respect of such Eligible Offshore Currency at their request at approximately 11:00 a.m. (local time) two Banking Days prior to the commencement of such Interest Period (or such other time as shall be customary for funding in such currency in such market).
"Offshore Currency": a currency other than Dollars that is freely tradable or exchangeable into Dollars.
"Offshore Currency Equivalent": at any time as to any amount denominated in Dollars, the equivalent amount in the relevant Offshore Currency or Currencies as determined by the Administrative Agent at such time on the basis of the Spot Rate for the purchase of such Offshore Currency or Currencies with Dollars on the date of determination thereof.
"Offshore Currency Loans": Loans denominated in an Offshore Currency.
"Offshore Currency Sublimit": at any time, the lesser of (a) $20,000,000 and (b) the Revolving Credit Commitments then in effect.
"Offshore Rate": with respect to each day during each Interest Period pertaining to a Revolving Offshore Loan, a rate per annum determined for such day in accordance with the following formula (rounded upward to the nearest l/100th of 1%):
Offshore Base Rate
1.00 - Eurocurrency Reserve Requirements
"Original Amended and Restated Credit Agreement": as defined in the recitals to this Agreement.
"Original Closing Date": November 6, 1997.
"Original Credit Agreement": as defined in the recitals to this Agreement.
"Original Restatement Date": June 12, 2001.
"Original Term Loans": the Tranche A Term Loans, the Tranche B Term Loans and the Tranche C Term Loans.
"Outstanding Swing Line Loans": as defined in subsection 2.19.
"Participant": as defined in subsection 14.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition": any Acquisition, provided that (a) the Company satisfies, and will continue to satisfy, after giving effect (on a pro forma basis) to such Acquisition and any Indebtedness incurred in connection therewith, the financial covenants set forth in subsection 10.1 through the Tranche D Final Maturity Date as set forth in a certificate of the Chief Financial Officer of the Company delivered to the Administrative Agent at least five Business Days prior to the consummation of such Acquisition, (b) such Acquisition is approved by the Board of Directors (or a majority of holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such Acquisition, (c) no Default or Event of Default has then occurred and is continuing or would result therefrom, (d) the purchase price (including assumed indebtedness and the fair market value of the non-cash consideration in connection with such Acquisition) of suc h Acquisition does not exceed $15,000,000 individually and the purchase price of all such Acquisitions (i) in any given fiscal year does not exceed $25,000,000 in the aggregate and (ii) since the Original Closing Date does not exceed $70,000,000 in the aggregate (provided that, if the Company or any of its Subsidiaries receives Net Cash Proceeds of capital contributions by, or from the issuance of any Capital Stock to, the Buyers after the Original Closing Date, such aggregate limitation in clause (ii) above shall be increased by the aggregate amount of such Net Cash Proceeds, but such increase shall not be in excess of $25,000,000 in the aggregate), (e) the Available Cash in effect at the time of such Acquisition (and after giving effect thereto) is at least $10,000,000 and (f) the Company and its Subsidiaries shall be in compliance with the requirements of subsection 9.10 after giving effect to such Acquisition.
"Person": an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Company or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prior Owner": with respect to any Permitted Acquisition by the Company or any of its Subsidiaries, the Person or Persons which was or were the owner(s) of the Capital Stock or assets acquired by the Company or such Subsidiary pursuant to such Permitted Acquisition.
"Projections": as defined in subsection 7.20.
"Properties": as defined in subsection 7.18(a).
"Recapitalization": the leveraged recapitalization transaction of the Company consummated pursuant to the Transaction Agreement, dated as of October 2, 1997, among the Company and the Sponsors.
"Register": as defined in subsection 14.6(d).
"Regulation S-X": Regulation S-X under the Securities Act as in effect from time to time.
"Regulation T": Regulation T of the Board of Governors of the Federal Reserve System as in effect from time to time.
"Regulation U": Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.
"Regulation X": Regulation X of the Board of Governors of the Federal Reserve System as in effect from time to time.
"Reimbursement Obligations": the obligation of the Company to reimburse the Issuing Bank pursuant to subsection 2.9 for amounts drawn under Letters of Credit.
"Related Fund": with respect to any Lender that is a fund, any other fund that invests in loans and is managed by the same investment adviser that manages such Lender or by an affiliate of such investment adviser.
"Reorganization": with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. 2615.
"Required Lenders": at any time, Lenders the Voting Percentages of which aggregate at least 51%.
"Required Revolving Credit Lenders": at any time, Revolving Credit Lenders the Revolving Credit Commitment Percentages of which aggregate at least 51%.
"Required Tranche A Lenders": at any time, Tranche A Lenders the Tranche A Commitment Percentages of which aggregate at least 51%.
"Required Tranche B Lenders": at any time, Tranche B Lenders the Tranche B Commitment Percentages of which aggregate at least 51%.
"Required Tranche C Lenders": at any time, Tranche C Lenders the Tranche C Commitment Percentages of which aggregate at least 51%.
"Required Tranche D Lenders": at any time, Tranche D Lenders the Tranche D Commitment Percentages of which aggregate at least 51%.
"Required Tranche E Lenders": at any time, Tranche E Lenders the Tranche E Commitment Percentages of which aggregate at least 51%.
"Requirement of Law": as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
"Reset Date": as defined in subsection 6.14(a).
"Responsible Officer": (a) with respect to the Company, the chief executive officer, the president or any senior vice president of the Company or, with respect to financial matters, the chief financial officer, the vice president of accounting, the vice president of finance or the treasurer of the Company and (b) with respect to any Subsidiary Borrower, the chief executive officer, the president or manager or comparable officer of such Subsidiary Borrower or, with respect to financial matters, the chief financial officer of such Subsidiary Borrower.
"Revolving Credit Commitment": as to any Lender, the obligation of such Lender to (a) make Revolving Loans, (b) issue or participate in Letters of Credit, (c) participate in Fronted Offshore Loans and (d) participate in Swing Line Loans, in an aggregate principal and/or face amount at any one time outstanding not to exceed the amount set forth under such Lender's name in Schedule 1.1(a) opposite the heading "Revolving Credit Commitment" (in each case as such amount may be adjusted from time to time as provided herein); collectively, as to all such Lenders, the "Revolving Credit Commitments".
"Revolving Credit Commitment Percentage": as to any Revolving Credit Lender:
(a) at any time prior to the termination of the Revolving Credit Commitments, the percentage which (i) such Revolving Credit Lender's Revolving Credit Commitment then constitutes of (ii) the Revolving Credit Commitments of all the Lenders, and
(b) at any time after the termination of the Revolving Credit Commitments, the percentage which (i) the aggregate principal amount (or the Dollar Equivalent thereof, in the case of Offshore Currency Loans) of such Revolving Credit Lender's Revolving Loans then outstanding plus (y) the product of (A) such Revolving Credit Lender's Revolving Credit Commitment Percentage immediately prior to the termination of the Revolving Credit Commitments (giving effect to any permitted assignments after such termination) times (B) the sum of (1) the L/C Obligations, (2) the aggregate principal amount of Swing Line Loans then outstanding and (3) the Dollar Equivalent of the aggregate principal amount of Fronted Offshore Loans then outstanding then constitutes of (ii) the sum of (w) the aggregate principal amount (or the Dollar Equivalent thereof, in the case of Offshore Currency Loans) of Revolving Loans of all the Revolving Credit Lenders then outstanding plus (x) the aggregate L/C Obligations of all th e Revolving Credit Lenders then outstanding plus (y) the aggregate principal amount of Swing Line Loans then outstanding plus (z) the Dollar Equivalent of the aggregate principal amount of Fronted Offshore Loans then outstanding.
"Revolving Credit Commitment Period": the period from and including the Original Closing Date to but not including the Revolving Credit Termination Date.
"Revolving Credit Lender": any Lender having a Revolving Credit Commitment or that holds outstanding Revolving Loans hereunder.
"Revolving Credit Note": as defined in subsection 6.1(e).
"Revolving Credit Termination Date": the earlier of (a) December 31, 2003 and (b) the date upon which the Revolving Credit Commitments shall be terminated pursuant to this Agreement.
"Revolving Loans": as defined in subsection 2.1(a).
"Revolving Offshore Loan": Revolving Loans denominated in an Eligible Offshore Currency the rate of interest applicable to which is based upon the Offshore Rate with respect to such Eligible Offshore Currency.
"Rollover Shareholders": the stockholders of the Company immediately prior to the consummation of the Recapitalization, who agreed to become stockholders of the Company after giving effect to the Recapitalization.
"Second Restatement Date": the date on which the conditions precedent set forth in subsection 8.1 shall be satisfied.
"Securities Act": the Securities Act of 1933, as amended from time to time.
"Security Documents": the collective reference to the Mortgages, the Amended and Restated Guarantee and Collateral Agreement and all other security documents hereafter delivered to the Administrative Agent granting a Lien on any asset or assets of any Person to secure the obligations and liabilities of the Company and its Subsidiaries hereunder and under any of the other Loan Documents or to secure any guarantee of any such obligations and liabilities, including, without limitation, any security document delivered pursuant to subsection 9.10.
"Senior Subordinated Note Indenture": the Indenture, dated as of November 5, 1997, between the Company and Marine Midland Bank, as trustee, for the issuance of the Senior Subordinated Notes.
"Senior Subordinated Notes": the 9.625% senior subordinated unsecured notes issued by the Company pursuant to the Senior Subordinated Note Indenture.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent": with respect to any Person on a particular date, the condition that on such date, (a) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature, and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person's property would constitute an unreasonably small amount of capital.
"Special Purpose Subsidiaries": KCI International and KCII Holdings LLC.
"Sponsors": Fremont Purchaser II, Corp. and RCBA Purchaser I, L.P.
"Spot Rate": (a) as to any Eligible Offshore Currency, the rate quoted by Bank of America as the spot rate for the purchase by Bank of America of Dollars with such Eligible Offshore Currency or the purchase by Bank of America of such Eligible Offshore Currency with Dollars, as the case may be, through its FX Trading Office at approximately 10:00 A.M., Central time, on such date as of which the foreign exchange computation is made for delivery two Banking Days later and (b) as to any Fronted Offshore Currency, the rate quoted by the relevant Fronting Lender as the spot rate for the purchase by such Fronting Lender of Dollars with such Fronted Offshore Currency or the purchase by such Fronting Lender of such Fronted Offshore Currency with Dollars, as the case may be, at the time specified in such Fronting Lender's Fronting Lender Addendum and on such date as of which the foreign exchange computation is made for delivery two Banking Days later.
"Subordinated Debt": (a) any unsecured Indebtedness of the Company with terms and conditions at least as favorable to the Lenders as those applicable to the Senior Subordinated Notes and (b) any other unsecured Indebtedness of the Company, no part of the principal of which is required to be paid (whether by way of mandatory sinking fund, mandatory redemption, mandatory prepayment or otherwise) prior to the earlier of (i) the tenth anniversary of the Original Closing Date and (ii) one year after the date of the final scheduled installment of Loans under this Agreement; the payment of the principal of and interest on which and other obligations of the Company in respect thereof are subordinated to the prior payment in full of the Obligations on terms and conditions at least as favorable to the Lenders as those applicable to the Senior Subordinated Notes; and all other terms and conditions of which are reasonably satisfactory in form and substance to the Required Lenders (as evidenced by the ir prior written approval thereof).
"Subordinated Debt Documentation": the agreements, indentures and other documentation pursuant to which any Subordinated Debt is issued.
"Subsidiary": as to any Person, a corporation, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of the Company.
"Subsidiary Borrower": at any time, any Foreign Subsidiary of the Company designated as a Subsidiary Borrower by the Company pursuant to subsection 6.15 that has not ceased to be a Subsidiary Borrower pursuant to such subsection or Section 11.
"Subsidiary Borrower Obligations": the unpaid principal of and interest on the Fronted Offshore Loans and all other obligations and liabilities of the Subsidiary Borrowers to the Agents, the Lenders and the Fronting Lenders (including, without limitation, interest accruing at the then applicable rate provided in this Agreement after the maturity of the Fronted Offshore Loans and interest accruing at the then applicable rate provided in this Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the relevant Subsidiary Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the other Loan Documents, or any other document made, delivered or given in connection herewith or t herewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to any Agent or any Lender that are required to be paid by the Subsidiary Borrowers pursuant to the terms of this Agreement of any other Loan Document).
"Swing Line Commitment": at any time, the obligation of the Swing Line Lender to make Swing Line Loans pursuant to subsection 2.17.
"Swing Line Lender": Bank of America, in its capacity as provider of the Swing Line Loans.
"Swing Line Loans": as defined in subsection 2.17.
"Swing Line Loan Participation Certificate": a certificate, substantially the form of Exhibit K.
"Swing Line Note": as defined in subsection 6.1(e).
"Syndication Agent": Bankers Trust, together with its affiliates, as the syndication agent for the Lenders under this Agreement.
"S&P": as defined in the definition of "Cash Equivalents."
"Term Loan Commitments": the collective reference to the Tranche A Commitments, the Tranche B Commitments, the Tranche C Commitments, the Tranche D Commitments and the Tranche E Commitments.
"Term Loan Lenders": the collective reference to the Tranche A Lenders, the Tranche B Lenders, the Tranche C Lenders, the Tranche D Lenders and the Tranche E Lenders.
"Term Loans": collectively, the Tranche A Term Loans, the Tranche B Term Loans, the Tranche C Terms Loans, the Tranche D Term Loans and the Tranche E Term Loans; individually, a "Term Loan".
"Term Notes": as defined in subsection 6.1(e).
"Title Insurance Company": as defined in the Original Credit Agreement.
"Total Funded Debt": on any date, with respect to the Company and its Subsidiaries on a Consolidated basis, all Indebtedness of the Company and its Subsidiaries which by its terms or by the terms of any instrument or agreement relating thereto matures more than one year after the date of incurrence thereof, and any such Indebtedness maturing within one year from the date of incurrence which is directly or indirectly renewable or extendible at the option of such Person to a date more than one year from such date of incurrence (including an option of such Person under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of more than one year from such date of incurrence) and all Guarantee Obligations of the Company and its Subsidiaries on such date in respect of any such Indebtedness of Persons other than the Company and its Subsidiaries.
"Tranche": the collective reference to Eurodollar Loans or Revolving Offshore Loans of the same currency the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day); Tranches may be identified as "Eurodollar Tranches" or "Offshore Tranches", as the case may be.
"Tranche A Commitment": as to any Lender, the obligation of such Lender to make a Tranche A Term Loan to the Company pursuant to subsection 3.1 of the Original Credit Agreement; collectively, as to all such Lenders, the "Tranche A Commitments". The Tranche A Commitments were fully drawn on the Original Closing Date.
"Tranche A Commitment Percentage": as to any Tranche A Lender, the percentage which the outstanding principal amount of such Tranche A Lender's Tranche A Term Loan then constitutes of the aggregate principal amount of Tranche A Term Loans of all the Tranche A Lenders then outstanding.
"Tranche A Lender": any Lender that holds outstanding Tranche A Term Loans.
"Tranche A Term Loan": any Tranche A Term Loan made on the Original Closing Date pursuant to Section 3.1 of the Original Credit Agreement.
"Tranche A Term Note": as defined in subsection 6.1(e).
"Tranche B/C/D/E Escrow Account": as defined in subsection 6.3(i).
"Tranche B/C/D/E Prepayment Date": as defined in subsection 6.3(i).
"Tranche B/C/D/E Prepayment Option Notice": as defined in subsection 6.3(i).
"Tranche B Commitment": as to any Lender, the obligation of such Lender to make a Tranche B Term Loan to the Company pursuant to subsection 3.1 of the Original Credit Agreement; collectively, as to all such Lenders, the "Tranche B Commitments". The Tranche B Commitments were fully drawn on the Original Closing Date.
"Tranche B Commitment Percentage": as to any Tranche B Lender, the percentage which the outstanding principal amount of such Tranche B Lender's Tranche B Term Loan then constitutes of the aggregate principal amount of Tranche B Term Loans of all the Tranche B Lenders then outstanding.
"Tranche B Lender": any Lender that holds outstanding Tranche B Term Loans.
"Tranche B Prepayment Amount": as defined in subsection 6.3(i).
"Tranche B Term Loan": any Tranche B Term Loan made on the Original Closing Date pursuant to Section 3.1 of the Original Credit Agreement.
"Tranche B Term Note": as defined in subsection 6.1(e).
"Tranche C Commitment": as to any Lender, the obligation of such Lender to make a Tranche C Term Loan to the Company pursuant to subsection 3.1 of the Original Credit Agreement; collectively, as to all such Lenders, the "Tranche C Commitments". The Tranche C Commitments were fully drawn on the Original Closing Date.
"Tranche C Commitment Percentage": as to any Tranche C Lender, the percentage which the outstanding principal amount of such Tranche C Lender's Tranche C Term Loan then constitutes of the aggregate principal amount of Tranche C Term Loans of all the Tranche C Lenders then outstanding.
'Tranche C Lender": any Lender that holds outstanding Tranche C Term Loans.
"Tranche C Prepayment Amount": as defined in subsection 6.3(i).
"Tranche C Term Loan": any Tranche C Term Loan made on the Original Closing Date pursuant to Section 3.1 of the Original Credit Agreement.
"Tranche C Term Note": as defined in subsection 6.1(e).
"Tranche D Commitment": as to any Lender, the obligation of such Lender to make a Tranche D Term Loan to the Company pursuant to subsection 3.1(b) of the Original Amended and Restated Credit Agreement; collectively, as to all such Lenders, the "Tranche D Commitments". The Tranche D Commitments were fully drawn on the Original Restatement Date.
"Tranche D Commitment Percentage": as to any Tranche D Lender, the percentage which the outstanding principal amount of such Tranche D Lender's Tranche D Term Loan then constitutes of the aggregate principal amount of Tranche D Term Loans of all the Tranche D Lenders then outstanding.
"Tranche D Final Maturity Date": March 31, 2006.
"Tranche D Lender": any Lender that holds outstanding Tranche D Term Loans.
"Tranche D Prepayment Amount": as defined in subsection 6.3(i).
"Tranche D Term Loan": any Tranche D Term Loan made on the Original Restatement Date.
"Tranche D Term Note": as defined in subsection 6.1(e).
"Tranche E Commitment": as to any Lender the obligation of such Lender to make a Tranche E Term Loan to the Company pursuant to subsection 3.1(b) in an aggregate amount equal to the amount set forth under such Lender's name in Schedule 1.1(a) opposite the heading "Tranche E Commitment"; collectively, as to all such Lenders, the "Tranche E Commitments". The aggregate amount of the Tranche E Commitments on the Second Restatement Date is $30,000,000.
"Tranche E Commitment Percentage": as to any Tranche E Lender, the percentage which such Tranche E Lender's Tranche E Commitment then constitutes of the Tranche E Commitments of all the Tranche E Lenders (or, after the Tranche E Term Loans are made, the percentage which the outstanding principal amount of such Tranche E Lender's Tranche E Term Loan then constitutes of the aggregate principal amount of Tranche E Term Loans of all the Tranche E Lenders then outstanding).
"Tranche E Lender": any Lender having a Tranche E Commitment hereunder or that holds outstanding Tranche E Term Loans.
"Tranche E Prepayment Amount": as defined in subsection 6.3(i).
"Tranche E Term Loan": as defined in subsection 3.1(b).
"Tranche E Term Note": as defined in subsection 6.1(e).
"Transferee": as defined in subsection 14.6(f).
"Type": as to any Loan, its nature as an Base Rate Loan, a Eurodollar Loan, a Revolving Offshore Loan or a Fronted Offshore Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500, as the same may be amended from time to time.
"Voting Percentage": as to any Lender:
(a) at any time prior to the termination of the Revolving Credit Commitments, the percentage which (i) the sum of (w) such Lender's Revolving Credit Commitment plus (x) the outstanding principal amount of such Lender's Original Term Loans plus (y) the outstanding principal amount of such Lender's Tranche D Term Loan plus (z) such Lender's Tranche E Term Loan Commitment (or, after the Tranche E Term Loans are made, the outstanding principal amount of such Lender's Tranche E Term Loan) then constitutes of (ii) the sum of (w) the Revolving Credit Commitments of all the Lenders plus (x) the aggregate principal amount of Original Term Loans of all the Lenders then outstanding plus (y) the aggregate principal amount of Tranche D Term Loans of all the Lenders then outstanding plus (z) the Tranche E Term Loan Commitments of all the Lenders (or, after the Tranche E Term Loans are made, the aggregate principal amount of Tranche E Term Loans of all the Lenders then outstandi ng), and
(b) at any time after the termination of the Revolving Credit Commitments, the percentage which (i) the sum of (x) the aggregate principal amount (or the Dollar Equivalent thereof, in the case of Offshore Currency Loans) of such Lender's Loans (other than Swing Line Loans and Fronted Offshore Loans) then outstanding plus (y) the product of (A) such Lender's Revolving Credit Commitment Percentage immediately prior to the termination of the Revolving Credit Commitments (giving effect to any permitted assignments after such termination) times (B) the sum of (1) the L/C Obligations, (2) the aggregate principal amount of Swing Line Loans then outstanding and (3) the Dollar Equivalent of the aggregate principal amount of Fronted Offshore Loans then outstanding then constitutes of (ii) the sum of (x) the aggregate principal amount (or the Dollar Equivalent thereof, in the case of Offshore Currency Loans) of Loans of all the Lenders then outstanding plus (y) the aggregate L/C Obligations of all t he Lenders then outstanding.
"Working Capital": at any date, the sum of (a) all amounts which would, in conformity with GAAP, be included under current assets (other than cash and Cash Equivalents) on a balance sheet of the Company and its Subsidiaries on a Consolidated basis on such date minus (b) all amounts which would, in conformity with GAAP, be included under current liabilities on a balance sheet (other than Indebtedness) of the Company and its Subsidiaries on a Consolidated basis on such date.
. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Documents or any certificate or other document made or delivered pursuant hereto.
. (a) Subject to the terms and conditions hereof, each Revolving Credit Lender severally agrees to make revolving credit loans (each a "Revolving Loan") to the Company (and, in the case of Revolving Offshore Loans, to the Subsidiary Borrowers) from time to time during the Revolving Credit Commitment Period in an aggregate principal amount (or the Dollar Equivalent thereof, in the case of Revolving Offshore Loans) at any one time outstanding which, when added to such Revolving Credit Lender's Revolving Credit Commitment Percentage of the sum of (i) the then outstanding L/C Obligations, (ii) the aggregate principal amount of Swing Line Loans then outstanding and (iii) the Dollar Equivalent of the then aggregate outstanding principal amount of Fronted Offshore Loans, does not exceed the amount of such Revolving Credit Lender's Revolving Credit Commitment, provided that, after giving effect to such Revolving Loan and the use of proceeds thereof, the Dollar Equivalent of the aggre gate outstanding principal amount of Offshore Currency Loans does not exceed the Offshore Currency Sublimit. During the Revolving Credit Commitment Period, the Company (and, in the case of Revolving Offshore Loans, the Subsidiary Borrowers) may use the Revolving Credit Commitments by borrowing, prepaying and reborrowing the Revolving Loans in whole or in part, all in accordance with the terms and conditions hereof.
. The Company (and, in the case of Revolving Offshore Loans, the Subsidiary Borrowers) may borrow under the Revolving Credit Commitments during the Revolving Credit Commitment Period on any Banking Day, provided that the Company shall give the Administrative Agent irrevocable written notice (which notice must be received by the Administrative Agent prior to 12:00 Noon, Central time, (a) three Banking Days prior to the requested Borrowing Date, if all or any part of the requested Revolving Loans are to be initially Eurodollar Loans, (b) four Banking Days prior to the requested Borrowing Date, if all or any part of the requested Revolving Loans are to be initially Revolving Offshore Loans or (c) one Banking Day prior to the requested Borrowing Date, otherwise), specifying (i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar Loans, Base Rate Loans, Revolving Offshore Loans or a combination thereof and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans or Revolving Offshore Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Interest Periods therefor and, in the case of Revolving Offshore Loans, the type and amount of the Eligible Offshore Currency or Currencies in which such Revolving Offshore Loans are to be denominated. Each borrowing under the Revolving Credit Commitments shall be in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if the then Available Revolving Credit Commitments are less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans or Revolving Offshore Loans, $1,000,000 (or the Offshore Currency Equivalent thereof, in the case of Revolving Offshore Loans) or a whole multiple of $1,000,000 (or the lesser of (i) 1,000,000 units of the relevant Eligible Offshore Currency and (ii) the Offshore Currency Equivalent of $1,000,000 in the relevant Eligible Offshore Currency, in t he case of Revolving Offshore Loans) in excess thereof. Upon receipt of any such notice from the Company, the Administrative Agent shall promptly notify each Revolving Credit Lender thereof. Each Revolving Credit Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Company or the relevant Subsidiary Borrower, as the case may be, at the office of the Administrative Agent specified in subsection 14.2 prior to 1:00 P.M., Central time, on the Borrowing Date requested by the Company in funds immediately available to the Administrative Agent in Dollars or in the Eligible Offshore Currency, as the case may be. Such borrowing will then be made available to the Company or the relevant Subsidiary Borrower by the Administrative Agent crediting the account of the Company or the relevant Subsidiary Borrower on the books of such office (or such other account as may be designated by the Company or the relevant Subsidiary Borrower and as may be acceptable to the Administrative Agent) with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in like funds as received by the Administrative Agent.
. The Company shall pay to the Administrative Agent for the account of each Revolving Credit Lender a commitment fee for the period from and including the first day of the Revolving Credit Commitment Period to the Revolving Credit Termination Date, computed at a rate per annum equal to the Applicable Rate on the average daily amount of such Revolving Credit Lender's Available Revolving Credit Commitment during the period for which payment is made (calculated as if no Swing Line Loans were outstanding during such period), payable quarterly in arrears on each Fee Payment Date and on the Revolving Credit Termination Date (or such earlier date on which the Revolving Credit Commitments terminate as provided herein).
. (a) The Company shall have the right, upon not less than five Business Days' written notice to the Administrative Agent (which will promptly notify the Revolving Credit Lenders thereof), to terminate the Revolving Credit Commitments or, from time to time, to reduce the amount of the Revolving Credit Commitments, provided that no such termination or reduction shall be permitted if, after giving effect thereto and to any prepayments of Loans made on the effective date thereof, the Aggregate Revolving Credit Outstandings of all the Revolving Credit Lenders would exceed the Revolving Credit Commitments then in effect. Any such reduction shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce permanently the Revolving Credit Commitments then in effect.
. (a) Subject to the terms and conditions hereof, the Issuing Bank, in reliance on the agreements of the other Revolving Credit Lenders set forth in subsection 2.8(a), agrees to issue letters of credit ("Letters of Credit") for the account of the Company on any Business Day during the Revolving Credit Commitment Period in such form as may be approved from time to time by the Issuing Bank, provided that (i) the Issuing Bank shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (A) the L/C Obligations would exceed the L/C Sublimit or (B) the Aggregate Revolving Credit Outstandings of all the Revolving Credit Lenders at such time would exceed the Revolving Credit Commitments at such time and (ii) the Issuing Bank shall not issue any Letter of Credit unless it shall have received notice from the Administrative Agent that the issuance of such Letter of Credit will not violate clause (i) above.
. The Company or any Subsidiary may from time to time request that the Issuing Bank issue a Letter of Credit by (a) delivering to the Issuing Bank at its address for notices specified herein in such manner as may be agreed by or be acceptable to the Issuing Bank (including by electronic transmission) a Letter of Credit Application, completed to the reasonable satisfaction of the Issuing Bank, and such other certificates, documents and other papers and information as the Issuing Bank may reasonably request and (b) concurrently delivering a written notice to the Administrative Agent that such Letter of Credit has been requested. Upon receipt of any such Letter of Credit Application, the Issuing Bank agrees to process such Letter of Credit Application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit requested thereby (but in no event shall the Issuing Bank be required to issue any Letter of Credit earlier than three Business Days after its receipt of the Letter of Credit Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed by the Issuing Bank and the Company with respect thereto. The Issuing Bank shall furnish a copy of each Letter of Credit issued by the Issuing Bank to the Company and the Administrative Agent promptly following the issuance thereof.
. (a) The Company shall pay to the Issuing Bank with respect to each Letter of Credit issued by it under this Agreement, for the account of the Issuing Bank, a fronting fee with respect to the period from the date of issuance of such Letter of Credit to the expiration or termination date of such Letter of Credit, computed at a rate of 0.25% per annum on the average aggregate amount available to be drawn under such Letter of Credit during the period for which such fee is calculated. Such fronting fee shall be payable in arrears on each Fee Payment Date to occur after the issuance of such Letter of Credit and on the Revolving Credit Termination Date (or on such earlier date as the Revolving Credit Commitments shall terminate as provided herein) and shall be nonrefundable.
. (a) The Issuing Bank irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce the Issuing Bank to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Bank, on the terms and conditions hereinafter stated, for such L/C Participant's own account and risk, an undivided interest equal to such L/C Participant's Revolving Credit Commitment Percentage of the Issuing Bank's obligations and rights under each Letter of Credit issued hereunder and the amount of each draft paid by the Issuing Bank thereunder. Each L/C Participant unconditionally and irrevocably agrees with the Issuing Bank that, if a draft is paid under any Letter of Credit for which the Issuing Bank is not reimbursed in full by the Company in accordance with the terms of this Agreement, such L/C Participant shall pay to the Issuing Bank upon demand at the Issuing Bank's address for notices specified herein an amount equ al to such L/C Participant's then Revolving Credit Commitment Percentage of the amount of such draft, or any part thereof, which is not so reimbursed. Each L/C Participant's obligation to make the payment referred to in the immediately preceding sentence shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such L/C Participant or the Company may have against the Issuing Bank or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries, (iv) any breach of this Agreement by any Loan Party or any other Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
. (a) The Company agrees to reimburse the Issuing Bank on each date on which the Issuing Bank notifies the Company of the date and amount of a draft presented under any Letter of Credit and paid by the Issuing Bank for the amount of such draft so paid and any taxes, fees, charges or other costs or expenses incurred by the Issuing Bank in connection with such payment. Each such payment shall be made to the Issuing Bank at its address for notices specified herein in the currency in which the relevant Letter of Credit is issued and in immediately available funds, provided that if the Company does not reimburse the Issuing Bank for any draft paid by the Issuing Bank under any Letter of Credit issued by such Issuing Bank in an Offshore Currency on the date required pursuant to subsection 2.9(b), the Issuing Bank shall convert such Reimbursement Obligation into Dollars at the rate of exchange then available to the Issuing Bank in the interbank market where its foreign currency exchange operations i n respect of such Offshore Currency are then being conducted and the Company shall thereafter be required to reimburse the Issuing Bank in Dollars for such Reimbursement Obligation with interest pursuant to subsection 2.9(b).
. (a) The Company's obligations under subsections 2.5, 2.6, 2.7, 2.8, 2.9, 2.10 and 2.11 shall be absolute and unconditional under any and all circumstances and irrespective of any set-off, counterclaim or defense to payment which the Company may have or have had against the Issuing Bank, any L/C Participant or any beneficiary of a Letter of Credit.
. If any draft shall be presented for payment under any Letter of Credit, the responsibility of the Issuing Bank to the Loan Parties in connection with such draft shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are in conformity with such Letter of Credit.
. To the extent that any provision of any Letter of Credit Application related to any Letter of Credit is inconsistent with the provisions of this Section 2, the provisions of this Section 2 shall apply.
. Subject to the terms and conditions hereof, each Fronting Lender agrees to make loans ("Fronted Offshore Loans") to the Subsidiary Borrowers from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding the Dollar Equivalent of which shall not exceed, with respect to each Fronted Offshore Currency, the related Fronted Offshore Currency Sublimit of such Fronting Lender with respect to such Fronted Offshore Currency, provided that, (i) after giving effect to any such Fronted Offshore Loan, the Aggregate Revolving Credit Outstandings of all the Revolving Credit Lenders at such time do not exceed the Revolving Credit Commitments at such time, (ii) after giving effect to such Fronted Offshore Loan and the use of proceeds thereof, the Dollar Equivalent of the aggregate outstanding principal amount of Offshore Currency Loans does not exceed the Offshore Currency Sublimit and (iii) no Fronting Lender shall make any Front ed Offshore Loan unless it shall have received notice from the Administrative Agent that the making of such Fronted Offshore Loan will not violate clause (i) or (ii) above. During the Revolving Credit Commitment Period, the Subsidiary Borrowers may use the Fronted Offshore Currency Subfacility by borrowing, prepaying and reborrowing Fronted Offshore Loans in whole or in part, all in accordance with the terms and conditions hereof.
. Each Subsidiary Borrower may borrow under the Fronted Offshore Currency Subfacility during the Revolving Credit Commitment Period on any Banking Day, provided that such Subsidiary Borrower or its authorized designee shall give the relevant Fronting Lender and the Administrative Agent irrevocable written notice (which notice must be received by the Fronting Lender and the Administrative Agent prior to the applicable time specified therefor in such Fronting Lender's Fronting Lender Addendum) specifying (a) the amount to be borrowed and the Fronted Offshore Currency with respect thereto, (b) the requested Borrowing Date and (c) the initial Interest Periods (if any) with respect thereto, provided, further, that, notwithstanding anything to the contrary in any Fronting Lender Addendum, no Fronting Lender shall be required to make a Fronted Offshore Loan until it shall have received the notice described in clause (iii) of the proviso to the first sentence of subsection 2.13, upon rec eipt of which such Fronting Lender shall make the relevant Fronted Offshore Loan in accordance with the terms of the applicable Fronting Lender Addendum or as soon thereafter as practicable. Each borrowing under the Fronted Offshore Currency Subfacility from a Fronting Lender shall be in such minimum amounts as shall be specified in the applicable Fronting Lender's Fronting Lender Addendum. The proceeds of each Fronted Offshore Loan will be made available by the Fronting Lender in respect thereof to the relevant Subsidiary Borrower at such Fronting Lender's Payment Office at such time on the Borrowing Date and in such funds as are specified in such Fronting Lender's Fronting Lender Addendum.
. (a) The Company shall (or shall cause the relevant Subsidiary Borrower to) pay to the relevant Fronting Lender with respect to each Fronted Offshore Loan made by such Fronting Lender, for the account of such Fronting Lender, a fronting fee in the relevant Fronted Offshore Currency with respect to the period from and including the date of such Fronted Offshore Loan to but excluding the date of repayment thereof computed at a rate of 0.25% per annum on the average daily principal amount of such Fronted Offshore Loan outstanding during the period for which such fee is calculated. Such fronting fee shall be payable in arrears on each Fee Payment Date to occur after the making of such Fronted Offshore Loan and on the Revolving Credit Termination Date (or on such earlier date as the Revolving Credit Commitments shall terminate as provided herein) and shall be nonrefundable.
. (a) Each Fronting Lender irrevocably agrees to grant and hereby grants to each Fronted Loan Participant (other than such Fronting Lender), and, to induce such Fronting Lender to make Fronted Offshore Loans hereunder, each such Fronted Loan Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from such Fronting Lender, on the terms and conditions hereinafter stated, for such Fronted Loan Participant's own account and risk, an undivided interest equal to such Fronted Loan Participant's Revolving Credit Commitment Percentage of such Fronting Lender's obligations and rights in respect of each Fronted Offshore Loan made by such Fronting Lender hereunder. Each such Fronted Loan Participant unconditionally and irrevocably agrees with each Fronting Lender that, if any amount in respect of the principal, interest or fees owing to such Fronting Lender in respect of a Fronted Offshore Loan is not paid when due in accordance with the terms of this Agreement, such Fronted Loan Participant shall pay to the Administrative Agent for the account of such Fronting Lender upon demand an amount in the relevant Offshore Currency equal to such Fronted Loan Participant's Revolving Credit Commitment Percentage of such unpaid amount. Each Fronted Loan Participant's obligation to make the payment referred to in the immediately preceding sentence shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Fronted Loan Participant or any Subsidiary Borrower may have against the Fronting Lender, any Subsidiary Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of the Company or any Subsidiary Borrower, (iv) any breach of this Agreement or any other Loan Document by any Loan Party or any other Lender or (v) any other circumstan ce, happening or event whatsoever, whether or not similar to any of the foregoing. In the event that it would be illegal for a Fronted Loan Participant to purchase and remit to the Fronting Lender the relevant Offshore Currency or the relevant Offshore Currency is not available to it, the Fronted Loan Participant may pay the Fronting Lender the Dollar Equivalent of the amount in the relevant Offshore Currency, determined as of the date of the relevant payment.
. Subject to the terms and conditions hereof, the Swing Line Lender agrees to make swing line loans in Dollars ("Swing Line Loans") to the Company from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding not to exceed $5,000,000, provided that, (a) after giving effect to any such Swing Line Loans, the Aggregate Revolving Credit Outstandings of all the Revolving Credit Lenders at such time do not exceed the Revolving Credit Commitments at such time and (b) the Swing Line Lender shall not make any Swing Line Loan unless it shall have received notice from the Administrative Agent that the making of such Swing Line Loan will not violate clause (a) above. During the Revolving Credit Commitment Period, the Company may use the Swing Line Commitment by borrowing, prepaying the Swing Line Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. All Swing Line Loans shall be Bas e Rate Loans and may not be converted into Loans that bear interest at any other rate.
. The Company may borrow under the Swing Line Commitment during the Revolving Credit Commitment Period on any Business Day, provided that the Company shall give the Swing Line Lender and the Administrative Agent irrevocable written notice (which notice must be received by the Swing Line Lender prior to 12:00 Noon, Central time) on the requested Borrowing Date specifying the amount of the requested Swing Line Loan which shall be in an aggregate minimum amount of $500,000 or a whole multiple of $50,000 in excess thereof. The proceeds of the Swing Line Loan will be made available by the Swing Line Lender to the Company at the office of the Swing Line Lender by 2:00 P.M. (Central time) on the Borrowing Date by crediting the account of the Company at such office with such proceeds. The Company may at any time and from time to time, prepay the Swing Line Loans, in whole or in part, without premium or penalty, by notifying the Swing Line Lender prior to 1:00 P.M. (Central time) on any Business Day of the date and amount of prepayment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments shall be in an aggregate principal amount of $500,000 or a whole multiple of $50,000 in excess thereof.
. (a) The Company hereby unconditionally promises to pay to the Administrative Agent for the account of the Swing Line Lender the then unpaid principal amount of the Swing Line Loans on the Revolving Credit Termination Date (or such earlier date on which the Swing Line Loans become due and payable pursuant to Section 11). The Company hereby further agrees to pay interest on the unpaid principal amount of Swing Line Loans from time to time outstanding from the date of borrowing thereof until payment in full thereof at the rates per annum, and on the dates, set forth in subsections 6.6 and 6.9. The Swing Line Lender, at any time in its sole and absolute discretion may, on behalf of the Company (which hereby irrevocably authorizes the Swing Line Lender to act on its behalf) request each Revolving Credit Lender (including the Swing Line Lender) to make a Revolving Loan (which shall be a Base Rate Loan) in an amount equal to such Revolving Credit Lender's Revolving Credit Commitment Percentage of the agg regate principal amount of the Swing Line Loans outstanding on the date such notice is given (the "Outstanding Swing Line Loans"). Unless any of the events described in paragraph (f) of Section 11 shall have occurred with respect to the Company (in which event the procedures of paragraph (c) of this subsection 2.19 shall apply) each Revolving Credit Lender shall make the proceeds of its Revolving Loan available to the Administrative Agent for the account of the Swing Line Lender at the Administrative Agent's Payment Office prior to 1:00 P.M. (Central time) in funds immediately available in Dollars on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Loans shall be immediately applied to repay the outstanding Swing Line Loans. Effective on the day such Revolving Loans are made, the portion of the Swing Line Loans so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note. The Company authorizes t he Swing Line Lender to charge the Company's accounts with the Swing Line Lender (up to the amount available in each such account) in order to immediately pay the amount of its outstanding Swing Line Loans to the extent amounts received from the Revolving Credit Lenders are not sufficient to repay in full such outstanding Swing Line Loans.
. (a) Original Term Loans. All Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans and Tranche D Term Loans outstanding under the Original Amended and Restated Credit Agreement on the Second Restatement Date shall remain outstanding hereunder on the terms set forth herein.
. The Company shall give the Administrative Agent irrevocable written notice (which notice must be received by the Administrative Agent prior to 12:00 Noon, Central time, (y) three Banking Days prior to the Second Restatement Date, if all or any part of the Tranche E Term Loans are to be initially Eurodollar Loans or (z) one Banking Day prior to the Second Restatement Date, otherwise) requesting that the Tranche E Lenders make the Tranche E Term Loans on the Second Restatement Date and specifying (i) whether the Tranche E Term Loans are to be initially Eurodollar Loans, Base Rate Loans or a combination thereof and (ii) if the Tranche E Term Loans are to be entirely or partly Eurodollar Loans the amount of such Type of Loan and the length of the initial Interest Periods therefor. Upon receipt of such notice, the Administrative Agent shall promptly notify each Tranche E Lender thereof. On the Second Restatement Date, each Tranche E Lender shall make available to the Administrative Agent at its office specified in subsection 14.2 the amount in immediately available funds equal to the Tranche E Term Loans to be made by such Tranche E Lender. The Administrative Agent shall on such date credit the account of the Company on the books of such office of the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by such Tranche E Lenders and in like funds as received by the Administrative Agent.
. The Company hereby unconditionally promises to pay to the Administrative Agent for the account of the Tranche A Lenders the remaining outstanding principal amount of the Tranche A Term Loans in four consecutive quarterly installments payable at the end of March, June, September and December of 2003 (or such earlier date on which the Tranche A Term Loans become due and payable pursuant to Section 11) in the amounts of $1,250,000, $8,750,000, $8,750,000 and $8,750,000, respectively. The Company hereby further agrees to pay interest on the unpaid principal amount of the Tranche A Term Loans from time to time outstanding from the Second Restatement Date until payment in full thereof at the rates per annum, and on the dates, set forth in subsections 6.6 and 6.9.
. The Company hereby unconditionally promises to pay to the Administrative Agent for the account of the Tranche B Lenders the remaining outstanding principal amount of the Tranche B Term Loans in eleven consecutive quarterly installments payable at the end of March, June, September and December of each year (or such earlier date on which Tranche B Term Loans become due and payable pursuant to Section 11) with the aggregate amount payable in each year under this Agreement and/or the Original Amended and Restated Credit Agreement set forth below equal to the amount set forth below opposite such year (and the installments in each year being equal, except that the first three installments in 2004 shall be equal to $225,000 and the final installment shall be equal to $83,925,000):
Year Amount
2002 $ 900,000
2003 900,000
2004 84,600,000
The Company hereby further agrees to pay interest on the unpaid principal amount of the Tranche B Term Loans from time to time outstanding from the Second Restatement Date until payment in full thereof at the rates per annum, and on the dates, set forth in subsections 6.6 and 6.9.
. The Company hereby unconditionally promises to pay to the Administrative Agent for the account of the Tranche C Lenders the remaining outstanding principal amount of the Tranche C Term Loans in fifteen consecutive quarterly installments payable at the end of March, June, September and December of each year (or such earlier date on which the Tranche C Term Loans become due and payable pursuant to Section 11) with the aggregate amount payable in each year under this Agreement and/or the Original Amended and Restated Credit Agreement set forth below equal to the amount set forth below opposite such year (and the installments in each year being equal, except that the first three installments in 2005 shall be equal to $225,000 and the final installment shall be equal to $83,025,000):
Year Amount
2002 $ 900,000
2003 900,000
2004 900,000
2005 83,700,000
The Company hereby further agrees to pay interest on the unpaid principal amount of the Tranche C Term Loans from time to time outstanding from the Second Restatement Date until payment in full thereof at the rates per annum, and on the dates, set forth in subsections 6.6 and 6.9.
. The Company hereby unconditionally promises to pay to the Administrative Agent for the account of the Tranche D Lenders the remaining outstanding principal amount of the Tranche D Term Loans in sixteen consecutive quarterly installments payable at the end of March, June, September and December of each year under this Agreement and/or the Original Amended and Restated Credit Agreement (or such earlier date on which the Tranche D Term Loans become due and payable pursuant to Section 11), with the aggregate amount payable in each year equal to the amount set forth below opposite such year (and the installments in each year being equal), and the remaining outstanding amount of the Tranche D Term Loans shall be repayable on the Tranche D Final Maturity Date as set forth below:
Year Amount
2002 $ 950,000
2003 950,000
2004 950,000
2005 950,000
Tranche D Final
Maturity Date 90,725,000
The Company hereby further agrees to pay interest on the unpaid principal amount of the Tranche D Term Loans from time to time outstanding from the Second Restatement Date until payment in full thereof at the rates per annum, and on the dates, set forth in subsections 6.6 and 6.9.
. The Company hereby unconditionally promises to pay to the Administrative Agent for the account of the Tranche E Lenders the principal amount of the Tranche E Term Loans in fifteen consecutive quarterly installments payable at the end of March, June, September and December of each year (or such earlier date on which the Tranche E Term Loans become due and payable pursuant to Section 11), commencing June 30, 2002, with the aggregate amount payable in each year equal to the amount set forth below opposite such year (and the installments in each year being equal, except that the first three installments in 2005 shall be equal to $75,000 and the final installment shall be equal to $28,950,000):
Year Amount
2002 $ 225,000
2003 300,000
2004 300,000
2005 29,175,000
The Company hereby further agrees to pay interest on the unpaid principal amount of the Tranche E Term Loans from time to time outstanding from the Second Restatement Date until payment in full thereof at the rates per annum, and on the dates, set forth in subsections 6.6 and 6.9.
. (a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Company (and, in the case of Revolving Offshore Loans, the relevant Subsidiary Borrower) to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.
. (a) The Company or any Subsidiary Borrower may prepay the Loans made to it in whole or in part without premium or penalty, in the case of Eurodollar Loans and Revolving Offshore Loans on the last day of any Interest Period with respect thereto (except that the Company may make a prepayment of Eurodollar Loans and Revolving Offshore Loans on a day other than the last day of the Interest Period with respect thereto as long as it complies with subsection 6.13(c)) and, in the case of Base Rate Loans (other than Swing Line Loans), on any Business Day, provided that (i) the Company shall have given (x) at least three Business Days' irrevocable written notice to the Administrative Agent (in the case of Eurodollar Loans and Revolving Offshore Loans) and (y) one Business Day's irrevocable notice to the Administrative Agent (in the case of Base Rate Loans), (ii) such notice specifies, in the case of any prepayment of Loans, the date and amount of prepayment and whether the prepayment is (x) of Term L oans, Revolving Loans or a combination thereof, and in each case if a combination thereof, the amount allocable to each, (y) of Eurodollar Loans, Revolving Offshore Loans, Base Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each (and in the case of a prepayment of Revolving Loans which are Eurodollar Loans, the principal amount of such prepayment allocable to each Eurodollar Tranche of Revolving Loans) and (iii) each prepayment is in a minimum principal amount of $1,000,000 (or the Offshore Currency Equivalent thereof, in the case of Revolving Offshore Loans) and a multiple of $ 1,000,000 in excess thereof (or the lesser of (A) 1,000,000 units in the relevant Eligible Offshore Currency and (B) the Offshore Currency Equivalent of $1,000,000 in the relevant Eligible Offshore Currency, in the case of Revolving Offshore Loans). Upon the receipt of any such notice, the Administrative Agent shall promptly notify each of the relevant Lenders thereo f. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with any amounts payable pursuant to subsection 6.13 and, in the case of prepayments of the Term Loans only, accrued interest to such date on the amount prepaid. Subject to subsection 6.3(i), partial prepayments of the Term Loans pursuant to this subsection shall be applied to the prepayment in full of outstanding Term Loans pro rata (based on outstanding principal amount). Any such prepayment of Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D Term Loans and Tranche E Term Loans shall first be applied to any installment thereof due within 90 days of the date of such prepayment and second to the respective then remaining installments of principal thereof pro rata. Amounts prepaid pursuant to this subsection 6.2 on account of the Term Loans may not be reborrowed. Revolving Loans may not be prepaid if any Swing Line Loans are outstanding at such time.
. (a) If, on any day, (i) the Dollar Equivalent of the aggregate outstanding principal amount of Offshore Currency Loans exceeds an amount equal to 103% of the Offshore Currency Sublimit or (ii) the Aggregate Revolving Credit Outstandings of all the Revolving Credit Lenders exceeds the Revolving Credit Commitments on such date, the Company shall, without notice or demand, immediately repay (or cause the relevant Subsidiary Borrower to repay) such of the outstanding Loans in an aggregate principal amount such that, after giving effect thereto, (x) the Dollar Equivalent of the aggregate outstanding principal amount of Offshore Currency Loans does not exceed the Offshore Currency Sublimit and (y) the Aggregate Revolving Credit Outstandings of all the Revolving Credit Lenders do not exceed the Revolving Credit Commitments, together with interest accrued to the date of such payment or prepayment on the principal so prepaid and any amounts payable under subsection 6.13 in connection therewith. Any prepaym ent of Revolving Loans pursuant to clause (ii) of the immediately preceding sentence shall first be applied to prepay any outstanding Swing Line Loans. The Company may in lieu of prepaying Offshore Currency Loans in order to comply with this paragraph deposit amounts in the relevant Offshore Currencies in a Cash Collateral Account in accordance with the next succeeding sentence equal to the aggregate principal amount of Offshore Currency Loans required to be prepaid. To the extent that after giving effect to any prepayment of Loans required by this paragraph, the Aggregate Revolving Credit Outstandings of all the Revolving Credit Lenders at such time exceed the Revolving Credit Commitments at such time, the Company shall, without notice or demand, immediately deposit in a Cash Collateral Account upon terms reasonably satisfactory to the Administrative Agent an amount equal to the lesser of (A) the sum of the aggregate then outstanding L/C Obligations and the aggregate principal amount of Offshore Currency Lo ans then outstanding and (B) the amount of such remaining excess. The Administrative Agent shall apply any cash deposited in the Cash Collateral Account (to the extent thereof) to pay any Reimbursement Obligations which are or become due thereafter and/or to repay Offshore Currency Loans at the end of the Interest Periods therefor, provided that, (x) the Administrative Agent shall release to the Company from time to time such portion of the amount on deposit in the Cash Collateral Account to the extent such amount is not required to be so deposited in order for the Company to be in compliance with this paragraph and (y) the Administrative Agent may so apply such cash at any time after the occurrence and during the continuation of an Event of Default. "Cash Collateral Account" means an account established by the Company with the Administrative Agent and over which the Administrative Agent shall have exclusive dominion and control, including the right of withdrawal for application in ac cordance with this subsection 6.3(a).
. (a) The Company may elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving the Administrative Agent at least two Banking Days' prior irrevocable written notice of such election, provided that any such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with respect thereto. The Company may elect from time to time to convert Base Rate Loans to Eurodollar Loans by giving the Administrative Agent at least three Banking Days' prior irrevocable written notice of such election. Any such notice of conversion to Eurodollar Loans shall specify the length of the initial Interest Period or Interest Periods therefor. Upon receipt of any such notice, the Administrative Agent shall promptly notify each Lender thereof. All or any part of outstanding Eurodollar Loans and Base Rate Loans may be converted as provided herein, provided that (i) no Loan may be converted into a Eurodollar Loan when any Event of Default has occurred and is conti nuing and the Administrative Agent has or the Required Lenders have determined that such a conversion is not appropriate and (ii) no Loan may be converted into a Eurodollar Loan after the date that is one month prior to (a) the Revolving Credit Termination Date (in the case of conversions of Revolving Loans) or (b) the date of the final installment of principal of the relevant Term Loans (in the case of conversions of Term Loans).
. All borrowings, conversions and continuations of Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of the Loans comprising each Eurodollar Tranche shall be equal to $10,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event shall there be (i) more than 15 Eurodollar Tranches outstanding at any time, (ii) more than two Eurodollar Tranche each outstanding at any time of Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D Term Loans or Tranche E Term Loans, or (iii) more than 3 Offshore Tranches in any single Eligible Offshore Currency at any time.
. (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the Applicable Margin.
. (a) Whenever it is calculated on the basis of the reference rate referred to in the definition of "Base Rate," interest shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed; and, otherwise, interest, commitment fees and letter of credit fees and commissions shall be calculated on the basis of a 360-day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Company and the Lenders of each determination of a Eurodollar Rate or of an Offshore Rate. Any change in the interest rate on a Loan resulting from a change in the Base Rate or the Eurocurrency Reserve Requirements shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Company and the Lenders of the effective date and the amount of each such change in interest rate.
. If prior to the first day of any Interest Period:
then the Administrative Agent (or the relevant Fronting Lender in the cause of clause (c) above) shall give telecopy or telephonic notice thereof to the Company and the Lenders (and, in the case of any notice by a Fronting Lender, the Administrative Agent) as soon as practicable thereafter. If such notice is given (y) pursuant to either clause (a) or (b) of this subsection 6.8 in respect of Eurodollar Loans, then (i) any Eurodollar Loans requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (ii) any Loans that were to have been converted on the first day of such Interest Period to Eurodollar Loans shall be continued as Base Rate Loans and (iii) any outstanding Eurodollar Loans shall be converted, on the first day of such Interest Period, to Base Rate Loans and (z) in respect of any Offshore Currency Loans, then (i) any Offshore Currency Loans in an Affected Offshore Currency requested to be made on the first day of such Interest Period shall not be made and (ii) a ny outstanding Offshore Currency Loans in an Affected Offshore Currency shall be due and payable on the first day of such Interest Period. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans or Offshore Currency Loans in an Affected Offshore Currency shall be made or continued as such, nor shall the Company have the right to convert Base Rate Loans to Eurodollar Loans.
. (a) Each borrowing of Revolving Loans by the Company (or, in the case of Revolving Offshore Loans, any Subsidiary Borrower) from the Revolving Credit Lenders hereunder shall be made, each payment by the Company on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments shall be allocated by the Administrative Agent, pro rata according to the Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the Company on account of principal of and interest on any Revolving Loan shall be allocated pro rata according to the Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the Company on account of principal of and interest on any Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D Term Loans or Tranche E Term Loan s shall be allocated by the Administrative Agent pro rata according to their respective Tranche A Commitment Percentages, Tranche B Commitment Percentages, Tranche C Commitment Percentages, Tranche D Commitment Percentages or Tranche E Commitment Percentages. All payments (including prepayments) to be made by the Company or any Subsidiary Borrower hereunder (other than payments on Fronted Offshore Loans as provided in subsection 6.9(c)) and under any Notes, whether on account of principal, interest, fees, Reimbursement Obligations or otherwise, shall be made without set-off or counterclaim and shall be made prior to 2:00 P.M., Central time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders at the Administrative Agent's Payment Office, in Dollars or, in the case of payments of principal and interest on Offshore Currency Loans, in the currency in which the Loans are denominated, and in immediately available funds. Payments received by the Administrative Agent after such time shall be deemed to have been received on the next Business Day. The Administrative Agent agrees to pay to the Lenders payments received on their behalf promptly after receipt. If any payment hereunder (other than payments on Eurodollar Loans or Revolving Offshore Loans) becomes due and payable on a day other than a Banking Day, the maturity of such payment shall be extended to the next succeeding Banking Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Eurodollar Loan or a Revolving Offshore Loan becomes due and payable on a day other than a Banking Day, the maturity of such payment shall be extended to the next succeeding Banking Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension would be to extend such payment into another calendar month, in which event such paym ent shall be made on the immediately preceding Banking Day.
. Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain Eurodollar Loans or Offshore Currency Loans as contemplated by this Agreement, (a) the commitment of such Lender hereunder to make such Type of Loans, continue such Type of Loans as such and convert Base Rate Loans to Eurodollar Loans shall forthwith be cancelled, (b) such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law and (c) such Lender's Loans then outstanding as Offshore Currency Loans, if any, shall be due on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Loan or repayment of an Offshore Currency Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Company shall (or shall cause the relevant Subsidiary Borrower to) pay to such Lender such amounts, if any, as may be required pursuant to subsection 6.13. During any such period of illegality, any Loans that, but for the application of the preceding sentence would have been maintained as Eurodollar Loans, shall be made and maintained by the affected Lender as Base Rate Loans.
. (a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
. (a) All payments made by the Company or the Subsidiary Borrowers under this Agreement, any Notes, any Letters of Credit or any Letter of Credit Applications shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings ("Taxes"), now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender as a result of a present or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or re ceived a payment under, or enforced, this Agreement or any Note) (any such non-excluded Taxes, "Non-Excluded Taxes"). If any Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder or under any Note, any Letters of Credit or any Letter of Credit Applications, (A) the Company or the relevant Subsidiary Borrower shall withhold and deduct any such Taxes from such amounts, (B) the Company or relevant Subsidiary Borrower shall pay or deposit with the appropriate taxing authority in a timely manner the full amount of Taxes so withheld or deducted, (C) the Company or the relevant Subsidiary Borrower shall promptly send to the Administrative Agent a certified copy of an original official receipt received by the Company or such Subsidiary Borrower (or other documentation reasonably acceptable to the Administrative Agent) showing payment thereof, and (D) if such Taxes are Non-Excluded Taxes, the amounts so payable to the Administrative Agent or th e relevant Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement, provided, however, that the Company and the Subsidiary Borrowers shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States of America or a state thereof if such Lender fails to comply with the requirements of paragraph (b) of this subsection. If the Company or any Subsidiary Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the Company and such Subsidiary Borrower shall indemnify the Administrative Agent and the relevant Lenders for any incremental taxes, interest or penalties that may become payable by the Adminis trative Agent or any Lender as a result of any such failure. The agreements in this subsection shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
unless in any such case an event (including, without limitation, any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the Company and the Administrative Agent. Each Person that shall become a Lender or a Participant pursuant to subsection 14.6 shall, upon the effectiveness of the related transfer, be required to provide all of the forms and statements required pursuant to this subsection, provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased.
. The Company agrees to indemnify each Lender and to hold each Lender harmless from any loss or expense which such Lender may sustain or incur as a consequence of (a) default by the Company in making a borrowing of, conversion into or continuation of Eurodollar Loans or Offshore Currency Loans after the Company has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Company in making any prepayment after the Company has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of Eurodollar Loans or Offshore Currency Loans on a day which is not the last day of an Interest Period with respect thereto. Such indemnification may include an amount equal to the excess, if any, of (i) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender) which would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
. (a) (i) No later than 4:00 P.M., Central time, on each Calculation Date with respect to an Eligible Offshore Currency, the Administrative Agent shall determine the Spot Rate as of such Calculation Date with respect to such Eligible Offshore Currency and (ii) no later than the time specified in the applicable Fronting Lender Addendum, on each Calculation Date with respect to a Fronted Offshore Currency, the Fronting Lender with respect to such Offshore Currency shall determine the Spot Rate as of such Calculation Date with respect to such Fronted Offshore Currency and shall promptly notify the Administrative Agent thereof, provided that, upon receipt of a borrowing request pursuant to subsection 2.14, the relevant Fronting Lender shall determine the Spot Rate with respect to the relevant Fronted Offshore Currency in accordance with the Fronting Lender Addendum and shall promptly notify the Administrative Agent thereof (it being acknowledged and agreed that the Administrative Agent shall use such Spot Rate for the purposes of determining compliance with subsection 2.13 with respect to such borrowing request and issuing the notice described in clause (iii) of the proviso to the first sentence of subsection 2.13). The Spot Rates so determined shall become effective on the first Business Day immediately following the relevant Calculation Date (a "Reset Date") and shall remain effective until the next succeeding Reset Date.
. The Company may designate any Foreign Subsidiary of the Company as a Subsidiary Borrower by delivery to the Administrative Agent of a Borrowing Subsidiary Agreement executed by such Foreign Subsidiary and the Company and upon such delivery such Foreign Subsidiary shall for all purposes of this Agreement be a Subsidiary Borrower and a party to this Agreement until the Company shall have executed and delivered to the Administrative Agent a Borrowing Subsidiary Termination with respect to such Foreign Subsidiary, whereupon such Foreign Subsidiary shall cease to be a Subsidiary Borrower and a party to this Agreement. The Administrative Agent shall promptly notify the affected Lenders at each such designation. Notwithstanding the preceding sentence, no Borrowing Subsidiary Termination will become effective as to any Subsidiary Borrower at a time when any Subsidiary Borrower Obligation of such Subsidiary Borrower shall be outstanding hereunder, provided that such Borrowing Subsidiary Termination s hall nevertheless be effective to terminate such Subsidiary Borrower's right to make further borrowings under this Agreement. Each Subsidiary Borrower shall be permitted only to borrow Revolving Offshore Loans in the currency of the jurisdiction which is both its jurisdiction of organization and the jurisdiction where it has its principal operations.
. (a) If any Lender or a Participant in such Lender's Loans requests compensation under subsection 6.11, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof causes the occurrence of one of the events described in clause (a), (b) or (c) of subsection 6.11, or if the Company or any Subsidiary Borrower is required to pay any additional amount to any Lender or a Participant in such Lender's Loans or any Governmental Authority for the account of any Lender or Participant pursuant to subsection 6.12, then such Lender or Participant shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the reasonable judgment of such Lender or Participant, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to subsection 6.11 or 6.12 or would render inapplicable the adopti on, change, interpretation or application of the Requirement of Law that necessitated the occurrence of one of the events described in clause (a), (b) or (c) of subsection 6.11, as the case may be, in the future and (ii) would not subject such Lender or Participant to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or Participant. The Company hereby agrees to pay all reasonable costs and expenses incurred by any Lender or Participant in connection with any such designation or assignment.
To induce the Agents and the Lenders to enter into this Agreement and to induce the Lenders to make their extensions of credit hereunder, the Company hereby represents and warrants to the Administrative Agent and each Lender that:
. The Consolidated balance sheet of the Company and its Consolidated Subsidiaries as at December 31, 2001 and the related Consolidated statements of earnings and of cash flows for the fiscal year ended on such date, reported on by Ernst & Young LLP, copies of which have heretofore been furnished to each Lender, present fairly the Consolidated financial condition of the Company and its Consolidated Subsidiaries as at such date, and the Consolidated results of their operations and their Consolidated cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved as required by GAAP (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). Neither the Company nor any of its Consolidated Subsidiaries had, at the date of the most recent balance sheet referred to above, any material Guarantee Ob ligation, contingent liability or liability for taxes, or any long-term lease or unusual forward or long-term commitment, including, without limitation, any Interest Rate Protection Agreement or foreign currency swap or exchange transaction, which is not reflected in the foregoing statements or in the notes thereto. Except as set forth in Schedule 7.1, during the period from December 31, 2001 to and including the date hereof there has been no sale, transfer or other disposition by the Company or any of its Consolidated Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the Consolidated financial condition of the Company and its Consolidated Subsidiaries at December 31, 2001.
. Since December 31, 2001, there has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect and during the period from December 31, 2001 to and including the date hereof, except as set forth in Schedule 7.2, no dividends or other distributions have been declared, paid or made upon the Capital Stock of the Company or any of its Subsidiaries nor has any of the Capital Stock of the Company or any of its Subsidiaries been redeemed, retired, purchased or otherwise acquired for value by the Company or any of its Subsidiaries. As of the Second Restatement Date, after giving effect to the transactions contemplated by the Loan Documents to occur on the Second Restatement Date, and as of each Borrowing Date, the Company and its Subsidiaries will be Solvent on a Consolidated basis.
. The Company and each of its Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the corporate or partnership (as the case may be) power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign corporation or partnership (as the case may be) and in good standing (to the extent applicable) under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification except to the extent its failure to be so qualified and/or in good standing could not reasonably be expected to have a Material Adverse Effect and (d) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effe ct.
. The Company has the corporate power and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and to borrow hereunder and has taken all necessary corporate action to authorize the borrowings on the terms and conditions of this Agreement and any Notes and to authorize the execution, delivery and performance of the Loan Documents to which it is a party. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the borrowings hereunder or with the execution, delivery, performance, validity or enforceability of the Loan Documents other than filings and recordings to perfect the Liens created by the Loan Documents. This Agreement has been, and each other Loan Documents to which it is a party will be, duly executed and delivered on behalf of the Company. This Agreement constitutes, and each other Loan Document to which it is a party when executed an d delivered will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
. The execution, delivery and performance of the Loan Documents, the borrowings hereunder and the use of the proceeds thereof will not violate any Requirement of Law or Contractual Obligation of the Company or of any of its Subsidiaries and will not result in, or require, the creation or imposition of any Lien, except pursuant to the Security Documents, on any of its or their respective properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Company, threatened by or against the Company or any of its Subsidiaries or against any of its or their respective properties or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby or (b) which could reasonably be expected to have a Material Adverse Effect.
. There are no strikes or other labor disputes against the Company or any of its Subsidiaries pending or, to the knowledge of the Company, threatened that (individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect. Hours worked by and payment made to employees of the Company and its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters that (individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect. All payments due from the Company or any of its Subsidiaries on account of employee health and welfare insurance that (individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect if not paid have been paid or accrued as a liability on the books of the Company or the relevant Subsidiary.
. Neither the Company nor any of its Subsidiaries is in default under or with respect to any of its Contractual Obligations in any respect which could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing.
. The Company and each of its Subsidiaries has good record and marketable title in fee simple to, or a valid leasehold interest in, all its real property, and good title to, or a valid leasehold interest in, all its other property, and none of such property is subject to any Lien except as permitted by subsection 10.3. Schedule 7.9 sets forth a true and complete list of all real property owned by the Company and its Subsidiaries as of the Second Restatement Date.
. The Company and each of its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, patents, copyrights, technology, know-how and processes necessary for the conduct of its business as currently conducted except for those the failure to own or license which could not reasonably be expected to have a Material Adverse Effect (the "Intellectual Property"). Except as set forth in Schedule 7.10, no claim has been asserted and is pending by any Person challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, nor does the Company know of any valid basis for any such claim. The use of such Intellectual Property by the Company and its Subsidiaries does not infringe on the rights of any Person, except for such claims and infringements that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
. No Requirement of Law or Contractual Obligation of the Company or any of its Subsidiaries could reasonably be expected to have a Material Adverse Effect.
. The Company and each of its Subsidiaries has filed or caused to be filed all tax returns which, to the knowledge of the Company, are required to be filed and has paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any such taxes, fees and other charges, the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Company or its Subsidiaries, as the case may be); no tax Lien has been filed, and, to the knowledge of the Company, no claim is being asserted, with respect to any such tax, fee or other charge.
. No part of the proceeds of any Loans will be used for "buying" or "carrying" any "margin stock" within the respective meanings of each of the quoted terms under Regulation U in violation of Regulation U. If requested by any Lender or the Administrative Agent, the Company will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form U-l, as applicable, referred to in Regulation U.
. Except for matters which could not reasonably be expected to have a Material Adverse Effect, neither a Reportable Event nor an "accumulated funding deficiency" (within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during the five-year period prior to the date on which this representation is made or deemed made with respect to any Plan (other than any Multiemployer Plan), and each Plan (other than any Multiemployer Plan) has complied in all material respects with the applicable provisions of ERISA and the Code. No termination of a Single Employer Plan under Section 4041(c) or 4042 of ERISA has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period. The present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits. Neither the Company nor any Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan, and, to the best of the Company's knowledge, neither the Company nor any Commonly Controlled Entity would become subject to any liability under ERISA if the Company or any such Commonly Controlled Entity were to withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding the date on which this representation is made or deemed made. No such Multiemployer Plan is in Reorganization or Insolvent.
. No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any Federal or State statute or regulation (other than Regulation X) which limits its ability to incur Indebtedness.
. Schedule 7.16 sets forth all of the Subsidiaries of the Company, and all of the joint ventures in which the Company or any of its Subsidiaries has an interest, at the Second Restatement Date and (with respect to the making of any Loan) as of each Borrowing Date, the jurisdiction of their organization and the direct or indirect ownership interest of the Company therein.
. The proceeds of the Tranche E Term Loans shall be used by the Company (i) to pay fees and expenses relating to the Tranche E Term Loan Facility and this Agreement to be paid on the Second Restatement Date in accordance with Section 8.1(b), (ii) to prepay Revolving Loans outstanding as of such date without any corresponding reduction of Revolving Credit Commitments and (iii) to the extent there are any remaining proceeds after the payments referred to in clauses (i) and (ii) above, to finance the working capital needs and general corporate purposes of the Company and its Subsidiaries in the ordinary course of business (including the financing of Permitted Acquisitions) and, in the case of Fronted Offshore Loans, to finance the working capital needs of the relevant Subsidiary Borrower. The proceeds of the Original Term Loans were used for the purposes described in the Original Credit Agreement and the proceeds of the Tranche D Term Loans were used for the purposes described in the Original Amended a nd Restated Credit Agreement.
. Except as set forth in Schedule 7.18:
. No Mortgage encumbers improved real property which is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards and in which flood insurance has been made available under the National Flood Insurance Act of 1968.
. The written information, reports, financial statements, exhibits and schedules furnished by or on behalf of the Company and each other Loan Party to the Administrative Agent and the Lenders in connection with the negotiation of any Loan Document or any document related thereto or included therein or delivered pursuant thereto do not contain, and will not contain as of the Second Restatement Date, any material misstatement of fact and do not, taken as a whole, omit, and will not, taken as a whole, omit as of the Second Restatement Date, to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading. It is understood that no representation or warranty is made concerning the forecasts, estimates, pro forma information, projections and statements as to anticipated future performance or conditions (the "Projections"), and the assumptions on which they were based, contained in any such information, reports, financial statements, exhibits or schedules, except that, as of the date such Projections were generated, (a) such Projections were based on the good faith assumptions of the management of the Company, and (b) the assumptions on which the Projections were based were believed by such management to be reasonable (it being understood that the Projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Company and that no assurance is given by the Company that such Projections will be realized).
. Schedule 7.22 sets forth the number of shares of the Capital Stock of the Company, and the type thereof, owned by the Buyers on the Second Restatement Date, and (with respect to the making of any Loan) as of each Borrowing Date, and, except as set forth in Schedule 7.22, there will be no shares of the Capital Stock of the Company issued and outstanding on the Second Restatement Date or (with respect to the making of any Loan) as of each Borrowing Date, as the case may be, that are not listed on such Schedule.
. The provisions of each of the Security Documents constitute in favor of the Administrative Agent for the ratable benefit of the Lenders, a legal, valid and enforceable security interest in all right, title, and interest of the Company or any of the other Loan Parties which is a party to such Security Document, as the case may be, in the Collateral described in such Security Document. Except as otherwise provided in the Security Documents, each of the Security Documents constitutes a perfected security interest in all right, title and interest of the Company or such other Loan Parties, as the case may be, in the Collateral described therein, and except for (i) Liens permitted by subsection 10.3 which have priority over the Liens on the Collateral by operation of law and (ii) Liens described in Schedule 10.3(f), a perfected first Lien on all right, title and interest of the Company or such other Loan Parties, as the case may be, in the Collateral described in each Security Document.
. The Obligations constitute "Senior Indebtedness", "Designated Senior Debt" and "Designated Guarantor Senior Debt" under and as defined in the Senior Subordinated Note Indenture and in any other Subordinated Debt Documentation. No other Indebtedness of any Loan Party constitutes or has been designated as "Designated Senior Debt" or "Designated Guarantor Senior Debt" under and as defined in the Senior Subordinated Note Indenture or any other Subordinated Debt Documentation.
. The chief executive office of the Company and the office where it maintains its records is located at 8023 Vantage Drive, San Antonio, Texas 78230. The Company is only organized in the State of Texas and "Kinetic Concepts, Inc." is the name of the Company as it appears in official filings in the State of Texas.
. The effectiveness of the amendments to the Original Amended and Restated Credit Agreement effected hereby and the obligations of the Tranche E Term Lenders to make Tranche E Term Loans hereunder shall be subject to the satisfaction, immediately prior to or concurrently with the making of the Tranche E Term Loans on the Second Restatement Date, of the following conditions precedent (except that the amendments to subsection 14.1 shall not become effective unless all the Lenders under the Original Amended and Restated Credit Agreement consent to the execution of this Agreement):
(i) the executed legal opinion of Shearman & Sterling, counsel to the Company and its Subsidiaries, substantially in the form of Exhibit I-1;
(ii) the executed legal opinion of Dennis Noll, general counsel of the Company and its Subsidiaries, substantially in the form of Exhibit I-2;
(iii) the executed legal opinion of Cox & Smith Incorporated, counsel to the Company and its Subsidiaries, substantially in the form of Exhibit I-3; and
(iv) the executed legal opinion of Young Conaway Stargatt & Taylor, LLP, counsel to the Company and its Subsidiaries, substantially in the form of Exhibit I-4.
Each such legal opinion shall cover such other matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require.
. The agreement of each Lender to make any Loan or any other extension of credit requested to be made by it on any date (including, without limitation, the extensions of credit being made on the Second Restatement Date), and of the Issuing Bank to issue any Letter of Credit requested to be issued by it on any date, is subject to the satisfaction of the following conditions precedent:
Each borrowing by and Letter of Credit issued on behalf of the Company or any Subsidiary Borrower hereunder shall constitute a representation and warranty by the Company and such Subsidiary Borrower, as the case may be, as of the date thereof that the conditions contained in this subsection have been satisfied.
. The agreement of each Lender to make the initial extension of credit requested to be made by it to any Subsidiary Borrower on any date is also subject to the satisfaction of the following conditions precedent:
The Company hereby agrees that, so long as the Commitments remain in effect or any Letter of Credit remains outstanding and unpaid or any amount is owing to any Lender or the Administrative Agent hereunder or under any other Loan Document, the Company shall and (except in the case of delivery of financial information, reports and notices in respect of the Company) shall cause each of its Subsidiaries to:
. Furnish to the Administrative Agent, with an electronic and a hard copy:
all such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP (except, in the case of any such unaudited financial statements, for the absence of footnotes and, except as approved by such accountants or officer, as the case may be, and disclosed therein).
. Furnish to the Administrative Agent, with an electronic and a hard copy:
. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its material obligations of whatever nature, except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the Company and its Subsidiaries.
. Continue to (a) engage in businesses which are in the same, similar or reasonably related or complementary businesses as the businesses in which the Company and its Subsidiaries are engaged on the date hereof and (b) preserve, renew and keep in full force and effect its corporate or partnership (as the case may be) existence and take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business except as otherwise permitted pursuant to subsection 10.5 except to the extent that failure to do so could not, in the aggregate, be reasonably expected to have a Material Adverse Effect; comply with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith could not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
. Keep all property useful and necessary in its business in good working order and condition (ordinary wear and tear excepted); maintain with financially sound and reputable insurance companies (or, to the extent consistent with prudent business practice, a program of self-insurance) insurance on all the Collateral in accordance with the requirements of Section 5.3 of the Amended and Restated Guarantee and Collateral Agreement and the requirements of each of the Mortgages and on all its other property in at least such amounts (including as to amounts of deductibles) and against at least such risks (but including in any event commercial general liability, product liability and business interruption) as are consistent with prudent business practice; and furnish to each Lender, upon written request, full information as to the insurance carried.
. Keep proper books, records and accounts in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its business and activities; and permit representatives of any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time and as often as may reasonably be desired and to discuss the business, operations, properties and financial and other condition of the Company and its Subsidiaries with officers and employees of the Company and its Subsidiaries and with its independent certified public accountants.
. Promptly give notice to the Administrative Agent, with a copy for each Lender, of:
Each notice pursuant to this subsection shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company proposes to take with respect thereto.
. (a) Comply with, and use its best efforts to ensure compliance by all tenants and subtenants, if any, with, all applicable Environmental Laws and obtain and comply with and maintain, and use its best efforts to ensure that all tenants and subtenants obtain and comply with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws except to the extent that failure to do so would not be reasonably expected to have a Material Adverse Effect.
. Upon the reasonable request of the Administrative Agent, promptly perform or cause to be performed any and all acts and execute or cause to be executed any and all documents (including, without limitation, financing statements and continuation statements) for filing under the provisions of the Uniform Commercial Code or any other Requirement of Law which are necessary or advisable to maintain in favor of the Administrative Agent, for the benefit of the Lenders, Liens on the Collateral that are duly perfected in accordance with all applicable Requirements of Law.
. (a) With respect to any assets, other than leasehold interests, acquired after the Original Closing Date by the Company or any of its Domestic Subsidiaries that are intended to be subject to the Lien created by any of the Security Documents but which are not so subject (other than any assets described in paragraph (b) or (c) of this subsection), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Security Documents or such other documents as the Administrative Agent (including Mortgages) shall reasonably deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such assets, (ii) take all actions reasonably necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law as contemplated by such Security Documents, including, without limitation, the filing of financing statements in such jurisdi ctions as may be reasonably requested by the Administrative Agent, (iii) in the case of a Mortgage, deliver to the Administrative Agent such surveys, policies and other documents as the Administrative Agent would have received pursuant to subsections 8.1(v), 8.1(w), 8.1(x) and 8.1(y) of the Original Credit Agreement if the relevant parcel of real property has been subject to a Mortgage on the Original Closing Date, all in form and substance reasonably satisfactory to the Administrative Agent and (iv) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
The Company hereby agrees that, so long as the Commitments remain in effect or any Letter of Credit remains outstanding and unpaid or any amount is owing to any Lender or the Administrative Agent hereunder or under any other Loan Document, the Company shall not, and (except with respect to subsection 10.1) shall not permit any of its Subsidiaries to, directly or indirectly:
. (a) Interest Coverage. Permit for any period of four consecutive fiscal quarters ending at the end of any fiscal quarter set forth below the ratio of (i) EBITDA of the Company for such period to (ii) Consolidated Cash Interest Expense of the Company for such period to be less than the ratio set forth opposite such period below:
Fiscal Quarter Ending Interest Coverage Ratio
December 31, 2001 2.00 to 1.00
March 31, 2002 2.00 to 1.00
June 30, 2002 2.00 to 1.00
September 30, 2002 2.00 to 1.00
December 31, 2002 2.25 to 1.00
March 31, 2003 2.25 to 1.00
June 30, 2003 2.25 to 1.00
September 30, 2003 2.25 to 1.00
December 31, 2003 2.50 to 1.00
March 31, 2004 2.50 to 1.00
June 30, 2004 2.50 to 1.00
September 30, 2004 2.50 to 1.00
December 31, 2004 2.75 to 1.00
March 31, 2005 2.75 to 1.00
June 30, 2005 2.75 to 1.00
September 30, 2005 2.75 to 1.00
December 31, 2005 and each Fiscal
Quarter ending thereafter 3.00 to 1.00
Fiscal Quarter Ending Ratio
December 31, 2001 5.00 to 1.00
March 31, 2002 5.00 to 1.00
June 30, 2002 5.00 to 1.00
September 30, 2002 5.00 to 1.00
December 31, 2002 4.50 to 1.00
March 31, 2003 4.50 to 1.00
June 30, 2003 4.50 to 1.00
September 30, 2003 4.50 to 1.00
December 31, 2003 4.00 to 1.00
March 31, 2004 4.00 to 1.00
June 30, 2004 4.00 to 1.00
September 30, 2004 4.00 to 1.00
December 31, 2004 and each Fiscal
Quarter ending thereafter 3.50 to 1.00
Fiscal Quarter Ending EBITDA
December 31, 2001 99,000,000
March 31, 2002 99,000,000
June 30, 2002 99,000,000
September 30, 2002 99,000,000
December 31, 2002 107,000,000
March 31, 2003 107,000,000
June 30, 2003 107,000,000
September 30, 2003 107,000,000
December 31, 2003 115,000,000
March 31, 2004 115,000,000
June 30, 2004 115,000,000
September 30, 2004 115,000,000
December 31, 2004 119,000,000
March 31, 2005 119,000,000
June 30, 2005 119,000,000
September 30, 2005 119,000,000
December 31, 2005 124,000,000
. Create, incur, assume or suffer to exist any Indebtedness, except:
provided that no such Indebtedness shall constitute Indebtedness incurred in connection with a "Qualified Securitization Transaction" (as defined in the Senior Subordinated Note Indenture or any other Subordinated Debt Documentation).
. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except for:
. Create, incur, assume or suffer to exist any Guarantee Obligation except:
. Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of, all or substantially all of its property, business or assets, or make any material change in its present method of conducting business, except:
. Convey, sell, lease, assign, transfer or otherwise dispose of any of its property, business or assets (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person other than the Company or any wholly owned Subsidiary, except:
. Declare or pay any dividend (other than dividends payable solely in common stock of the Company) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any shares of any class of Capital Stock of the Company or any warrants or options to purchase any such Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Company or any Subsidiary, except that the Company may (i) repurchase, redeem or otherwise acquire or retire for value any Capital Stock of the Company held by employees of the Company or any of its Subsidiaries pursuant to any employee equity subscription agreement, stock option agreement or stock ownership arrangement, provided that (A) the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock from and afte r the Original Closing Date shall not exceed $10,000,000, and (B) no Event of Default shall have then occurred and be continuing or would result therefrom and (ii) exchange Capital Stock of the Company held by any employee of the Company or any of its Subsidiaries for other Capital Stock of the Company.
. Make or commit to make a Capital Expenditure, excluding (i) any such Capital Expenditure in connection with any asset acquired in connection with normal replacement and maintenance programs properly charged to current operations and (ii) Capital Expenditures in the ordinary course of business not exceeding, in the aggregate for the Company and its Subsidiaries during any of the fiscal years of the Company set forth below, the amount set forth opposite such fiscal year below:
Fiscal Year Amount
2001 30,000,000
2002 55,000,000
2003 65,000,000
2004 and each
Fiscal Year thereafter 70,000,000
provided, that up to 100% of any such amount if not so expended in the fiscal year for which it is permitted above, may be carried over for expenditure in the three succeeding fiscal years.
. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in, any Person (an "Investment"), except:
. (a) Make any optional payment or prepayment on or redemption, purchase or defeasance of any Senior Subordinated Notes (other than any refinancing thereof with the Net Cash Proceeds of any Subordinated Debt permitted under subsection 10.2(j)(ii)) or any other Subordinated Debt, (b) amend, modify or change, or consent or agree to any amendment, modification or change to any of the terms relating to any Senior Subordinated Notes or any other Subordinated Debt (other than any such amendment, modification or change which would extend the maturity or reduce the amount of any payment of principal thereof or which would reduce the rate or extend the date for payment of interest thereon or otherwise would not be adverse to the Lenders), or (c) amend the subordination provisions of the Senior Subordinated Notes, the Senior Subordinated Note Indenture or any other Subordinated Debt Documentation.
. Except to the extent permitted under subsection 10.18, enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of property or the rendering of any service, with any Affiliate unless such transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary course of the Company's or such Subsidiary's business and (c) upon fair and reasonable terms no less favorable to the Company or such Subsidiary, as the case may be, than it would obtain in a comparable arm's length transaction with a Person which is not an Affiliate.
. Enter into any arrangement with any Person providing for the leasing by the Company or any Subsidiary of real or personal property which has been or is to be sold or transferred by the Company or such Subsidiary to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of the Company or such Subsidiary, except for the sale and leaseback of the Company's Headquarters.
. Permit the fiscal year of the Company to end on a day other than December 31 in any calendar year.
. Enter into with any Person any agreement, other than (a) this Agreement, (b) purchase money mortgages or Financing Leases permitted by this Agreement (in which cases, any prohibition or limitation shall only be effective against the assets financed thereby), (c) the Senior Subordinated Note Indenture and the other Subordinated Debt Documentation (so long as any the relevant provisions in such Subordinated Debt Documentation is substantially the same as the comparable provisions contained in the Senior Subordinated Note Indenture) and (d) agreements with respect to the Indebtedness permitted under subsection 10.2(d) (which restrictions may only limit the granting of Liens on the assets of a Foreign Subsidiary), which prohibits or limits the ability of the Company or any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired.
. Enter into any business, either directly or through any Subsidiary, except for those businesses which are in the same, similar or reasonably related or complementary businesses as the businesses in which the Company and its Subsidiaries are engaged on the date of this Agreement or which are directly related thereto.
. Enter into or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Subsidiary to (a) pay dividends or make any other distributions in respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to, the Company or any other Subsidiary of the Company, (b) make loans or advances to the Company or any other Subsidiary of the Company or (c) transfer any of its assets to the Company or any other Subsidiary of the Company, except for such encumbrances or restrictions existing under or by reason of any restrictions existing under the Loan Documents and for customary provisions in leases and other contracts restricting the assignment thereof.
. Pay management or similar fees to the New Investor Group or any of their Affiliates in an aggregate amount in excess of $2,000,000 in any twelve month period beginning on November 1 of any year and ending on October 31 of the succeeding year.
. In the case of any Special Purpose Subsidiary, incur any Indebtedness (other than Indebtedness permitted under subsections 10.2(a) and 10.2(b)), incur any Guarantee Obligations (other than Guarantee Obligations permitted under subsections 10.4(d) and 10.4(f)), grant any Liens (other than Liens granted pursuant to the Security Documents) or engage in any business or own any assets other than its ownership of the Capital Stock of Subsidiaries of the Company and assets and activities incidental thereto.
. Designate any Indebtedness of any Loan Party (other than Indebtedness under this Agreement) as "Designated Senior Debt" or "Designated Guarantor Senior Debt" under and as defined in the Senior Subordinated Note Indenture or any other Subordinated Debt Documentation, in each case without the prior written consent of the Administrative Agent and the Required Lenders.
. Move its chief executive office and the office at which it maintains its records relating to the transactions contemplated by this Agreement and the Security Documents or change its state of organization unless (a) not less than 45 days' prior written notice of its intention to do so, clearly describing the new location or state, shall have been given to the Administrative Agent and each Lender and (b) such action, reasonably satisfactory to the Administrative Agent and each Lender to maintain any security interest in the property subject to the Security Documents at all times fully perfected and in full force and effect shall have been taken.
If any of the following events shall occur and be continuing:
then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (f) of this Section with respect to the Company or any Subsidiary Borrower, automatically the Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including, without limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) shall immediately become due and payable, and (B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Company declare the Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; and (ii) with the consent of the Requ ired Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Company, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including, without limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to the preceding paragraph, the Company shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. The Company hereby grants to the Administrative Agent, for the benefit of the Issuing Bank and the L/C Participants, a security interest in such cash collateral to secure all Obligations under this Agreement and the other Loan Documents. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other Obligations. Within a reasonable period after all such Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other Obligations shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Company. The Company shall execute and deliver to the Administrative Agent, for the account of the Issuing Bank and the L/C Participants, such further documents and instruments as the Administrative Agent may request to evidence the creation and perfection of the within security interest in such cash collateral account.
Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived.
. Each Lender hereby irrevocably designates and appoints each Agent as the agent of such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes each Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to such Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, neither Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against either Agent. Without limiting the foregoing, the use of the term &quo t;agent" with respect to either Agent is used as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties. The Agents and the Lenders hereby acknowledge and agree that the Administrative Agent shall be the only Agent which shall be a "Representative" of the Lenders under the Senior Subordinated Note Indenture (after execution and delivery thereof) and any other Subordinated Debt Documentation (after execution and delivery thereof).
The Issuing Bank and the Fronting Lenders shall act on behalf of the Lenders with respect to Letters of Credit and Fronted Offshore Loans issued or made under this Agreement and the documents associated therewith. It is understood and agreed that the Issuing Bank and the Fronting Lenders (a) shall have all of the benefits and immunities (i) provided to the Agents in this Section 12 with respect to acts taken or omissions suffered by the Issuing Bank and Fronting Lenders in connection with Letters of Credit and Fronted Offshore Loans issued or made under this Agreement and the documents associated therewith as fully as if the term "Agents", as used in this Section 12, included the Issuing Bank and the Fronting Lenders with respect to such acts or omissions and (ii) as additionally provided in this Agreement and (b) shall have all of the benefits of the provisions of subsection 12.7 or Section 13 as fully as if the term "Agents", as used in subsection 12.7 or Section 13, included the Iss uing Bank and the Fronting Lenders.
. Each Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Neither Agent shall be responsible for the negligence or misconduct of any agents or attorneys in-fact selected by it with reasonable care.
. Neither 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 with this Agreement or any other Loan Document (except for its or such Person's own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by the Company or any other Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of the Company or any other Loan Party to perform its obligations hereunder or the reunder. No Agent-Related Person shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of the Company or any other Loan Party.
. Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any Note, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation 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 Company or any other Loan Party), independent accountants and other experts selected by such Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. Each Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the relevant Lenders as it deems appropri ate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the relevant Lenders entitled to so act, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.
. Neither Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless such Agent has received notice from a Lender or the Company referring to this Agreement, 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 notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Lenders entitled to so act, provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders (except to the extent that this Agreement expressly requires that such actions be taken or not be taken only with the consent or upon the authorization of the Required Lenders).
. Each Lender expressly acknowledges that neither 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 such Agent or any such other Person hereinafter taken, including any review of the affairs of the Company or any other Loan Party, shall be deemed to constitute any representation or warranty by such Agent or any such other Person to any Lender. Each Lender represents to the Agents that it has, independently and without reliance upon any Agent-Related Person or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Company and the other Loan Parties and made its own decision to make its extensions of credit hereunder and enter into this Agreement. Each Lender also represents that it will, independently a nd without reliance upon any Agent-Related Person or any other Lender, 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 Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Company and the other Loan Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Agents hereunder, the Agents shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Company or any other Loan Party which may come into the possession of the Agents or any of their respective officers, directors, employees, agents, attorney s-in-fact or Affiliates.
. Whether or not the transactions contemplated hereby are consummated, the Lenders agree to indemnify each Agent-Related Person (to the extent not reimbursed by the Company or the Subsidiary Borrowers and without limiting the obligation of the Company and the Subsidiary Borrowers to do so), ratably according to their respective Voting Percentages in effect on the date on which indemnification is sought, 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 Loans) be imposed on, incurred by or asserted against such Agent-Related Person in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan 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 such Agen t-Related Person under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements to the extent resulting from the relevant Agent-Related Person's gross negligence or willful misconduct. The agreements in this subsection shall survive the payment of the Loans and all other amounts payable hereunder.
. Each Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Company and the other Loan Parties as though such Agent were not an Agent hereunder and under the other Loan Documents and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, each Agent and its Affiliates may receive information regarding the Company or the other Loan Parties or their respective Affiliates (including information that may be subject to confidentiality obligations in favor of the Company or the other Loan Parties or their respective Affiliates) and acknowledge that neither Agent nor their respective Affiliates shall be under an obligation to provide such information to them. With respect to the Loans made by it and with respect to any Letter of Credit issued or participated in by it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an Agent, and the terms "Lender" and "Lenders" shall include each Agent in its individual capacity.
. The Administrative Agent may resign as Administrative Agent upon 10 days' notice to the Lenders. If the Administrative Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent (provided that it shall have been approved by the Company (which approval shall not be unreasonably withheld)), shall succeed to the rights, powers and duties of the Administrative Agent hereunder. If no successor agent is appointed prior to the effective date of the resignation of the Administrative Agent, the Administrative Agent may appoint, after consulting with the Lenders and the Company, a successor agent from among the Lenders. Effective upon such appointment by the Required Lenders or by the Administrative Agent, the term "Administrative Agent" shall mean such successor agent, and the former Administrative Agent's rights, powers and duties as Adm inistrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans. After any retiring Administrative Agent's resignation as Administrative Agent, the provisions of this Section 12 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement and the other Loan Documents. If no successor agent has accepted appointment as Administrative Agent by the date which is 10 days following a retiring Administrative Agent's notice of resignation, the retiring Administrative Agent's resignation shall nevertheless thereupon become effective and the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor agent as provided for above.
. Notwithstanding anything to the contrary contained herein, none of the entities listed on the cover page of this Agreement as a "Syndication Agent" or "Joint Lead Arranger and Joint Book Manager", in their capacities as such, shall have any duties or obligations of any kind under this Agreement.
. (a) To induce the Agents and the Lenders to execute and deliver this Agreement and to make the extensions of credit provided for herein to the Subsidiary Borrowers, the Company hereby unconditionally and irrevocably guarantees to the Agents and the Lenders and their respective successors, permitted transferees and permitted assigns, the prompt and complete payment and performance by the Subsidiary Borrowers when due (whether at the stated maturity, by acceleration or otherwise) of the Subsidiary Borrower Obligations. The Company further agrees to pay any and all reasonable expenses (including, without limitation, all reasonable fees and disbursements of counsel) which may be paid or incurred by any Agent or any Lender in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the Subsidiary Borrower Obligations and/or enforcing any rights with respect to, or collecting against, the Company under this Section 13. This Guarantee shall remain in full force and effect until the Subsidiary Borrower Obligations are paid in full, the Commitments are terminated and no Letter of Credit remains outstanding, notwithstanding that from time to time prior thereto the Subsidiary Borrowers may be free from any Subsidiary Borrower Obligations. For purposes of this Section 13, each Fronting Lender shall be deemed to be a "Lender".
. Notwithstanding anything to the contrary in this Section 13, the Company shall not be entitled to be subrogated to any of the rights of any Agent or any Lender against any Subsidiary Borrower or any other Guarantor or any collateral security or guarantee or right of offset held by any Agent or any Lender for the payment of the Subsidiary Borrower Obligations, nor shall the Company seek or be entitled to seek any contribution or reimbursement from any Subsidiary Borrower or any other Guarantor in respect of payments made by the Company hereunder, until all amounts owing to the Agents and the Lenders by the Subsidiary Borrowers on account of the Subsidiary Borrower Obligations are paid in full, the Commitments are terminated and no Letter of Credit remains outstanding. If any amount shall be paid to the Company on account of such subrogation rights at any time when all of the Subsidiary Borrower Obligations shall not have been paid in full, the Commitments shall not have been terminated or any Letter of Credit is outstanding, such amount shall be held by the Company in trust for the Agents and the Lenders, segregated from other funds of the Company, and shall, forthwith upon receipt by the Company, be turned over to the Administrative Agent, for the benefit of the Lenders, in the exact form received by the Company (duly indorsed by the Company to the Administrative Agent, if required), to be applied against the Subsidiary Borrower Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine. The provisions of this subsection shall survive the termination of the guarantee contained in this Section 13 and the payment in full of the Subsidiary Borrower Obligations and the termination of the Commitments.
. The Company shall remain obligated hereunder notwithstanding that, without any reservation of rights against the Company, and without notice to or further assent by the Company, any demand for payment of any of the Subsidiary Borrower Obligations made by any Agent or any Lender may be rescinded by such Agent or such Lender, and any of the Subsidiary Borrower Obligations continued, and the Subsidiary Borrower Obligations, or the liability of any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by any Agent or any Lender, and this Agreement, the other Loan Documents, and any other documents executed and delivered in connection herewith or therewith may be amended, modified, supplemented or terminated, in whole or in part, as the Administrative Agent (or the relevant Lenders, as the case may be) may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by any Agent or any Lender for the payment of the Subsidiary Borrower Obligations may be sold, exchanged, waived, surrendered or released. No Agent or Lender nor any of their respective Affiliates shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Subsidiary Borrower Obligations or for the guarantee contained in this Section 13 or any property subject thereto. When making any demand hereunder against the Company, any Agent or any Lender may, but shall be under no obligation to, make a similar demand on the relevant Subsidiary Borrower or any other guarantor, and any failure by any Agent or any Lender to make any such demand or to collect any payments from such Subsidiary Borrower or any such other guarantor or any release of such Subsidiary Borrower or such other guarantor shall not relieve the Company of its obliga tions or liabilities under this Section 13, and shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of any Agent or any Lender against the Company. For the purposes hereof "demand" shall include the commencement and continuance of any legal proceedings.
. The Company waives, to the fullest extent permitted by applicable law, any and all notice of the creation, renewal, extension or accrual of any of the Subsidiary Borrower Obligations and notice of or proof of reliance by any Agent or any Lender upon the guarantee contained in this Section 13 or acceptance of the guarantee contained in to this Section 13. The Subsidiary Borrower Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 13 and all dealings between the Subsidiary Borrowers, on the one hand, and the Agents and the Lenders, on the other hand, shall likewise be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this Section 13. The Company waives, to the fullest extent permitted by applicable law, diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Subsidiary Borrowers with respect to the Subsidiary Borrower Obligations. The Guarantee contained in this Section 13 shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity, regularity or enforceability of this Agreement, any Note, any other Loan Document, any of the Subsidiary Borrower Obligations or any guarantee or right of offset with respect thereto at any time or from time to time held by any Agent or any Lender, (b) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Subsidiary Borrowers against any Agent or any Lender or (c) any other circumstance whatsoever (with or without notice to or knowledge of the Subsidiary Borrowers) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Subsidiary Borrowers for the Subsidiary Borrower Obligations, or of the Company under the guarantee contained in this Section 13 , in bankruptcy or in any other instance. When pursuing its rights and remedies hereunder against the Company, any Agent and any Lender may, but shall be under no obligation to, pursue such rights and remedies as it may have against the Subsidiary Borrowers or any other Person or against any guarantee for the Subsidiary Borrower Obligations or any right of offset with respect thereto, and any failure by any Agent or any Lender to pursue such other rights or remedies or to collect any payments from the Subsidiary Borrowers or any such other Person or to realize upon any such guarantee or to exercise any such right of offset, or any release of the Subsidiary Borrowers or any such other Person or of any such guarantee or right of offset, shall not relieve the Company of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of any Agent or any Lender against the Company. The guarantee contained in this Section 13 shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Company and its successors, and shall inure to the benefit of the Agents and the Lenders, and their respective successors, permitted transferees and permitted assigns, until all the Subsidiary Borrower Obligations and the obligations of the Company under this Section 13 shall have been satisfied by payment in full, the Commitments shall be terminated and no Letter of Credit shall be outstanding, notwithstanding that from time to time during the term of this Agreement the Subsidiary Borrowers may be free from any Subsidiary Borrower Obligations.
. The guarantee contained in this Section 13 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Subsidiary Borrower Obligations is rescinded or must otherwise be restored or returned by any Agent or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Subsidiary Borrower or upon or as a result of the appointment of a receiver, intervener or conservator of, or trustee or similar officer for, such Subsidiary Borrower or any substantial part of its property, or otherwise, all as though such payments had not been made.
. Neither this Agreement nor any other Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this subsection. The Required Lenders may, or, with the written consent of the Required Lenders, the Administrative Agent may, from time to time, (a) enter into with the Company, Subsidiary Borrowers and the other Loan Parties written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of, amending, supplementing, modifying or adding any provisions of or to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders, the Company or of the Subsidiary Borrowers hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that no such waiver and no such amendment, supplement or modification shall (i) reduce the amount or extend the scheduled date of maturity of any Loan or any Reimbursement Obligation, or reduce the stated rate of any interest or fee payable hereunder or extend the scheduled date of any payment thereof or increase the amount or extend the expiration date of any Lender's Commitment, in each case without the consent of each Lender directly affected thereby, or (ii) consent to the assignment or transfer by the Company or any Subsidiary Borrower of any of its rights and obligations under this Agreement and the other Loan Documents or release all or substantially all of the Collateral or release any material Guarantor, in each case without the written consent of all the Lenders, or (iii) amend, modify or waive any provision of this subsection or reduce the percentage specified in the definition of Required Lenders without the written consent of all the Lenders, or (iv) amend, modify or waive any provision of Section 12 without the written consent of the then Administrative Agent or (v) amend, modify or waive subsection 6.3(e) or 6.9 without the consent of the Required Tranche A Lenders, the Required Tranche B Lenders, the Required Tranche C Lenders, the Required Tranche D Lenders and the Required Tranche E Lenders, or amend, modify or waive any provision of subsection 6.3(i) without the consent of the Required Tranche B Lenders, the Required Tranche C Lenders, the Required Tranche D Lenders and the Required Tranche E Lenders or reduce the percentage specified in the definition of Required Tranche A Lenders, Required Tranche B Lenders, Required Tranche C Lenders, Required Tranche D Lenders or the Required Tranche E Lenders without the consent of all the Tranche A Lenders and/or all the Tranche B Lenders and/or all the Tranche C Lenders and/or all the Tranche D Lenders and/or all the Tranche E Lenders respectively, or (vi) amend, modify or waive subsection 3.3, 3.4, 3.5, 3.6 or 3.7 withou t the consent of Lenders the Voting Percentages of which aggregate at least 66-2/3% or (vii) amend, modify or waive Section 2 or subsection 6.3(e) or 6.9 without the consent of the Required Revolving Credit Lenders, or amend, modify or waive the definition of Eligible Offshore Currency or reduce the percentage specified in the definition of Required Revolving Credit Lenders without the consent of all the Revolving Credit Lenders or (viii) amend, modify or waive subsection 2.5 through 2.12 or subsection 12.1 without the consent of the Issuing Bank or (ix) amend, modify or waive subsections 2.13 through 2.16, 6.2(b), or 12.1 without the consent of each Fronting Lender adversely affected thereby or (x) amend, modify or waive any provision of subsection 2.17, 2.18 or 2.19 without the consent of the Swing Line Lender. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Company and the Subsidiary Borrowers, the Lenders, the Age nts and all future holders of the Loans. In the case of any waiver, the Company, the Subsidiary Borrowers, the Lenders and the Agents shall be restored to their former positions and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
. All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by facsimile transmission) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made (a) in the case of delivery by hand or by overnight courier, when delivered, (b) in the case of delivery by mail, three Business Days after being deposited in the mails, postage prepaid, or (c) in the case of delivery by facsimile transmission, when sent and receipt has been confirmed, addressed as follows in the case of the Company and the Subsidiary Borrowers and the Administrative Agent, and as set forth in Schedule 14.2 in the case of the other parties hereto, or to such other address as may be hereafter notified by the respective parties hereto:
The Company and the 8023 Vantage Drive
Subsidiary Borrowers: San Antonio, Texas 78230-4726
Attention: Chief Executive Officer
Telephone: (210) 524-9000
Telecopy: (210) 255-6998
with a copy to:
8023 Vantage Drive
San Antonio, Texas 78230-4726
Attention: General Counsel
Telephone: (210) 255-6331
Telecopy: (210) 255-6993
The Administrative Agent: with respect to all matters other than Loan Notices:
Bank of America, N.A.
1455 Market Street
CA5-701-12-09
San Francisco, California 94103
Attention: Agency Management
Telephone: (415) 436-3484
Telecopy: (415) 503-5005
with a copy to:
Bank of America, N.A.
100 North Tryon Street, 17th Floor
Charlotte, NC 28255
Attention: Lawrence J. Gordon
Telephone: (704) 388-1115
Telecopy: (704) 388-6002
with respect to Loan Notices (other than in connection with Letters of Credit):
Bank of America, N.A.
101 North Tryon St., 15th Floor
Charlotte, NC 28255
Attention: Agency Services
Telephone: (704) 388-3918
Telecopy: (704) 409-0295
with respect to Loan Notices in connection with Letters of Credit:
Bank of America, N.A.
Trade Operations-Los Angeles #22621
333 S. Beaudry Avenue, 19th Floor
Mail Code: CA9-703-19-23
Los Angeles, CA 90017-1466
Telephone: (800) 541-6096, option 1
Telecopy: (213) 345-6684
provided that any notice, request or demand to or upon the Administrative Agent or the Lenders pursuant to subsection 2.2, 2.4, 2.6, 2.14, 2.18, 3.2, 6.2 or 6.4 shall not be effective until received.
. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
. All representations and warranties made hereunder, in the other Loan Documents (or in any amendment, modification or supplement hereto or thereto) and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans hereunder.
. Subject to subsection 14.17, the Company and the Subsidiary Borrowers jointly and severally agree (a) to pay or reimburse the Agents and Agent-Related Persons for all their out-of-pocket costs and expenses incurred in connection with the development, preparation, syndication and execution and delivery of, and any amendment, supplement, waiver or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including, without limitation, the reasonable fees and disbursements of counsel to the Agents (including the reasonable allocated fees and expenses of in-house counsel), (b) to pay or reimburse each Lender and the Agents for all their respective costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any such other documents, including, without limita tion, the fees and disbursements of counsel to each Lender and of counsel to the Administrative Agent (including the allocated fees and expenses of in-house counsel), (c) to pay, indemnify, and hold each Lender, the Issuing Bank, each Fronting Lender, the Agents and each Agent-Related Person harmless from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, (d) to pay or reimburse each Lender, each Fronting Lender and the Issuing Bank for any costs and expenses incurred by such Lender in funding any payment in an Offshore Currency pursuant to subsection 2.9(a), 2.16(a) or 2.16(b), and to pay or reimburse each Lender, each Fronting Lender and the Issuing Bank for any costs and expenses incurred in connection with any conversion of any amount to Dollars paid pursuant to subsection 2.9(a), 2.16(a) or 2.16(b) and (e) TO PAY, INDEMNIFY, AND HOLD EACH LENDER, THE ISSUING BANK, EACH FRONTING LENDER, THE AGENTS AND THE AGENT-RELATED PERSONS AND THEIR RESPECTIVE DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL OTHER LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WITH RESPECT TO THE EXECUTION, DELIVERY, ENFORCEMENT, PERFORMANCE AND ADMINISTRATION OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, THE RECAPITALIZATION DOCUMENTATION (AS DEFINED IN THE ORIGINAL CREDIT AGREEMENT), THE RECAPITALIZATION (AS DEFINED IN THE ORIGINAL CREDIT AGREEMENT) OR THE USE OR PROPOSED USE OF THE PROCEEDS OF THE LOANS IN CONNECTION WITH THE TRANSACTIONS CONTEM PLATED HEREBY AND THEREBY AND ANY SUCH OTHER DOCUMENTS, REGARDLESS OF WHETHER ANY AGENT OR LENDER IS A PARTY TO THE LITIGATION OR OTHER PROCEEDING GIVING RISE THERETO AND REGARDLESS OF WHETHER ANY SUCH LITIGATION OR OTHER PROCEEDING IS BROUGHT BY THE COMPANY OR A SUBSIDIARY BORROWER OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, ANY OF THE FOREGOING RELATING TO THE VIOLATION OF, NONCOMPLIANCE WITH OR LIABILITY UNDER, ANY ENVIRONMENTAL LAW APPLICABLE TO THE OPERATIONS OF THE COMPANY, ANY OF ITS SUBSIDIARIES OR ANY OF THE PROPERTIES (ALL THE FOREGOING IN THIS CLAUSE (E), COLLECTIVELY, THE "INDEMNIFIED LIABILITIES"), PROVIDED THAT THE COMPANY AND THE SUBSIDIARY BORROWERS SHALL HAVE NO OBLIGATION HEREUNDER TO THE AGENTS, ANY LENDER, THE ISSUING BANK OR ANY FRONTING LENDER OR ANY OF THEIR RESPECTIVE DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES AND AGENTS WITH RESPECT TO INDEMNIFIED LIABILITIES ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PERSON. WITHOUT LIMITING THE FOR EGOING, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND EACH SUBSIDIARY BORROWER AGREES NOT TO ASSERT, AND HEREBY WAIVES, AND SHALL CAUSE EACH OF ITS SUBSIDIARIES NOT TO ASSERT AND TO WAIVE, ALL RIGHTS OF CONTRIBUTION OR ANY OTHER RIGHTS OF RECOVERY WITH RESPECT TO ALL CLAIMS, DEMANDS, PENALTIES, FINES, LIABILITIES, SETTLEMENTS, DAMAGES, COSTS AND EXPENSES OF WHATEVER KIND OR NATURE, UNDER OR RELATED TO ENVIRONMENTAL LAWS, THAT ANY OF THEM MIGHT HAVE BY STATUTE OR OTHERWISE AGAINST ANY AGENT OR LENDER. The agreements in this subsection shall survive repayment of the Loans and all other amounts payable hereunder.
. (a) This Agreement shall be binding upon and inure to the benefit of the Company, each Subsidiary Borrower, the Lenders, the Agents and their respective successors and assigns, except that neither the Company nor any Subsidiary Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender.
. (a) If any Lender (a "Benefitted Lender") shall at any time receive any payment of all or part of its Loans, its Reimbursement Obligations or other amounts owing to it hereunder in respect of any participating interest in any Loan, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in subsection 1.1(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other relevant Lender, if any, in respect of such other relevant Lender's relevant Loans, Reimbursement Obligations or other amounts owing to it hereunder in respect of any participating interest in any Loan, or interest thereon, such Benefitted Lender shall purchase for cash from the other relevant Lenders a participating interest in such portion of each such other relevant Lender's relevant Loans, Reimbursement Obligations or other amounts owing to it hereunder in respect of any participating interest in any Loan, or shall provide such other relevant Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the relevant Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with the Company and the Administrative Agent.
. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
. This Agreement and the other Loan Documents represent the agreement of the Company, the Subsidiary Borrowers, the Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Lender relative to subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.
. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
. The Company and each Subsidiary Borrower hereby irrevocably and unconditionally:
. The Company and each Subsidiary Borrower hereby acknowledges that:
. THE COMPANY, EACH SUBSIDIARY BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
. Each Lender agrees to keep confidential all non-public information provided to it by the Company and the Subsidiary Borrowers pursuant to this Agreement, provided that nothing herein shall prevent any Lender from disclosing any such information (i) to the Administrative Agent or any other Lender, (ii) to any Transferee or prospective Transferee which agrees to comply with the provisions of this subsection, (iii) to its employees, directors, agents, attorneys, accountants and other professional advisors, (iv) upon the request or demand of any Governmental Authority having jurisdiction over such Lender, (v) in response to any order of any court or other Governmental Authority or as may otherwise be required pursuant to any Requirement of Law, (vi) in connection with any litigation or similar proceeding to which each Lender is a party, (vii) which has been publicly disclosed other than in breach of this Agreement, (viii) to the National Association of Insurance Commissioners or any similar orga nization or any nationally recognized rating agency that requires access to information about such Lender's investment portfolio or (ix) in connection with the exercise of any remedy hereunder.
. (a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one currency into another currency, each party hereto (including any Subsidiary Borrower) agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which, in accordance with normal banking procedures in the relevant jurisdiction, the first currency could be purchased with such other currency on the Banking Day immediately preceding the day on which final judgment is given.
. Notwithstanding any provision contained herein or in any of other the Loan Documents to the contrary, in no event shall any Subsidiary Borrower be liable or otherwise responsible, nor shall any assets of such Subsidiary Borrower be pledged as Collateral or deemed to be Collateral for any Obligations other than Obligations for principal, interest, fees and commissions with respect to Loans made directly to such Subsidiary Borrower and for costs and expenses related solely to such Loans, and in no event shall any of the provisions contained herein be construed or interpreted to cause any Subsidiary Borrower to be considered a pledgor or guarantor of any Obligation of the Company, any Guarantor or any other Person pursuant to Section 956(d) of the Internal Revenue Code of 1986, as amended, or pursuant to any regulations thereunder, including, but not limited to, Regulation 1.956-2(c).
. It is the intention of the parties hereto to comply with applicable usury laws (now or hereafter enacted); accordingly, notwithstanding any provision to the contrary in this Agreement, any Notes, any of the other Loan Documents or any other document related hereto or thereto, in no event shall this Agreement or any such other document require the payment or permit the collection of interest in excess of the maximum amount permitted by such laws. If from any circumstances whatsoever, fulfillment of any provision of this Agreement, any Notes, any of the other Loan Documents or of any other document pertaining hereto or thereto, shall involve transcending the limit of validity prescribed by applicable law for the collection or charging of interest, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit of such validity, and if from any such circumstances the Administrative Agent and the Lenders shall ever receive anything of value as interest or deemed interest by applicable la w under this Agreement, any Notes, any of the other Loan Documents or any other document pertaining hereto or otherwise an amount that would exceed the highest lawful rate, such amount that would be excessive interest shall be applied to the reduction of the principal amount owing under the Loans or on account of any other indebtedness of the Company or any Subsidiary Borrower, and not to the payment of interest, or if such excessive interest exceeds the unpaid balance of principal of such indebtedness, such excess shall be refunded to the Company or the relevant Subsidiary Borrower. In determining whether or not the interest paid or payable with respect to any indebtedness of the Company or any Subsidiary Borrower to the Administrative Agent and the Lenders, under any specified contingency, exceeds the highest lawful rate, the Company, the Administrative Agent and the Lenders shall, to the maximum extent permitted by applicable law, (a) characterize any non-principal payment as an expense, fee or premium ra ther than as interest, (b) exclude voluntary prepayments and the effects thereof, (c) amortize, prorate, allocate and spread the total amount of interest throughout the full term of such indebtedness so that interest thereon does not exceed the maximum amount permitted by applicable law, and/or (d) allocate interest between portions of such indebtedness, to the end that no such portion shall bear interest at a rate greater than that permitted by applicable law.
. (a) At such time as the Loans, the Reimbursement Obligations and the other Obligations shall have been paid in full, the Commitments have been terminated and no Letter of Credit shall be outstanding, the Administrative Agent shall, at the request and sole expense of any Loan Party, take such actions as are reasonably necessary or desirable to release the relevant Collateral from the Liens created by the Mortgages, and cause the Mortgages and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent and each Loan Party thereunder to terminate.
. (a) In the event that the amendments to subsection 14.1 of the Original Amended and Restated Credit Agreement did not become effective in accordance with the terms of the Original Amended and Restated Credit Agreement, each Lender under the Original Credit Agreement which consented to the execution of the Original Amended and Restated Agreement agreed with the Tranche D Lenders that it would not approve any amendment to the Original Amended and Restated Credit Agreement without the consent of the Required Tranche D Lenders or all the Tranche D Lenders, as the case may be, if such consent would have been required under subsection 14.1 of the Original Amended and Restated Credit Agreement had such subsection become effective.
[Signature pages to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
KINETIC CONCEPTS, INC.
By: /s/ William M. Brown
Name: William M. Brown
Title: Vice President and
Chief Financial Officer
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Larry J. Gordon
Name: Larry J. Gordon
Title: Principal
BANKERS TRUST COMPANY, as Syndication Agent
By: /s/ Mary Kay Coyle
Name: Mary Kay Coyle
Title: Managing Director
ANNEX A
PRICING GRID
Leverage Ratio Level |
Revolving Loans (other than Revolving Offshore Loans), Tranche A Term Loans |
Tranche B Term Loans |
Tranche C Term Loans and Tranche E Term Loans |
Tranche D Term Loans |
Revolving Offshore Loans |
Applicable Rate |
||||
Applicable Margin for Eurodollar Loans |
Applicable Margin for Base Rate Loans |
Applicable Margin for Eurodollar Loans |
Applicable Margin for Base Rate Loans |
Applicable Margin for Eurodollar Loans |
Applicable Margin for Base Rate Loans |
Applicable Margin for Eurodollar Loans |
Applicable Margin for Base Rate Loans |
|||
Leverage Ratio Level I |
2.75% |
1.75% |
3.00% |
2.00% |
3.25% |
2.25% |
3.125% |
2.125% |
2.75% |
0.50% |
Leverage Ratio Level II |
2.50% |
1.50% |
3.00% |
2.00% |
3.25% |
2.25% |
3.125% |
2.125% |
2.50% |
0.375% |
Leverage Ratio Level III |
2.25% |
1.25% |
3.00% |
2.00% |
3.25% |
2.25% |
3.125% |
2.125% |
2.25% |
0.375% |
Leverage Ratio Level IV |
2.00% |
1.00% |
2.75% |
1 .75% |
3.00% |
2.00% |
2.875% |
1.875% |
2.00% |
0.30% |
Leverage Ratio Level V |
1.75% |
0.75% |
2.50% |
1.50% |
2.75% |
1.75% |
2.625% |
1.625% |
1.75% |
0.30% |
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