- Defined Terms
. 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 ofExhibit 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 ofExhibit 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 onAnnex 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 onAnnex 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 timeminus (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 timeover (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 timeplus 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 ofExhibit B hereto.
"Borrowing Subsidiary Termination": a Borrowing Subsidiary Termination, substantially in the form ofExhibit 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 periodminus, 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 ofExhibit 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, andminus, 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 yearplus (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 yearplus (vi) the aggregate amount of all Capital Expenditures made during such fiscal yearplus (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 Acquisitionplus (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 ofExhibit 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 ofExhibit 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 contributionminus 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 proceedsminus (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 aproforma 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 inSchedule 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 outstandingplus (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 outstandingplus (x) the aggregate L/C Obligations of all th e Revolving Credit Lenders then outstandingplus (y) the aggregate principal amount of Swing Line Loans then outstandingplus (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 ofExhibit 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 inSchedule 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 Commitmentplus (x) the outstanding principal amount of such Lender's Original Term Loansplus (y) the outstanding principal amount of such Lender's Tranche D Term Loanplus (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 Lendersplus (x) the aggregate principal amount of Original Term Loans of all the Lenders then outstandingplus (y) the aggregate principal amount of Tranche D Term Loans of all the Lenders then outstandingplus (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 outstandingplus(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 outstandingplus (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 dateminus (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.
- Other Definitional Provisions
. (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.
- As used herein and in any other Loan Document, and any certificate or other document made or delivered pursuant hereto, accounting terms relating to the Company and its Subsidiaries not defined in subsection 1.1 and accounting terms partly defined in subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
- The words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified.
- The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
