Exhibit 10.1 FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made and
entered into as of this 28th day of June, 2001, among PSS WORLD MEDICAL, INC., a
Florida corporation ("Borrower"), the Subsidiaries of Borrower party hereto
(collectively, "Guarantors"), the Lenders party to this Agreement (the
"Lenders"), and BANK OF AMERICA, N.A., as Agent for the Lenders (the "Agent").
W I T N E S S E T H :
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WHEREAS, Borrower, Guarantors, the Lenders and the Agent entered into that
certain Credit Agreement, dated as of May 24, 2001, pursuant to which the
Lenders agreed to make certain loans to Borrower (as amended, modified,
supplemented and restated from time to time, the "Credit Agreement"); and
WHEREAS, Borrower, Guarantors, the Lenders and the Agent desire to enter
into this Amendment for the purpose of amending the Credit Agreement in certain
respects.
NOW, THEREFORE, in consideration of the foregoing premises, and other good
and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise expressly defined
herein shall have the respective meanings given to such terms in the Credit
Agreement.
2. The Credit Agreement is amended to reflect that General Electric Capital
Corporation shall serve as the Syndication Agent for the Lenders thereunder and
Fleet Capital Corporation shall serve as the Documentation Agent for the Lenders
thereunder.
3. The Credit Agreement is amended by deleting Section 1.2(i) and inserting
the following in lieu thereof:
(i) Agent Advances.
(i) Subject to the limitations set forth below, the Agent is
authorized by the Borrower and the Lenders, from time to time in the
Agent's sole discretion, (A) after the occurrence of a Default or an
Event of Default, or (B) at any time that any of the other conditions
precedent set forth in Article 8 have not been satisfied, to make Base
Rate Revolving Loans to the Borrower on behalf of the Lenders, in an
aggregate amount outstanding at any time not to exceed the lesser of
$15,000,000 and 10% of the Borrowing Base (provided that the Aggregate
Revolver Outstandings (including such Agent Advances) plus the
Aggregate Permanent Working Capital Loan Outstandings shall not exceed
the Total Facility), which the Agent, in its reasonable business
judgment, deems necessary or desirable (1) to preserve or protect the
Collateral, or any portion thereof, (2) to enhance the likelihood of,
or maximize the amount of, repayment of the Loans and other
Obligations (including through Base Rate Revolving Loans for the
purpose of enabling the Borrower to meet payroll and associated tax
obligations), or (3) to pay any other amount chargeable to the
Borrower pursuant to the terms of this Agreement, including costs,
fees and expenses as described in Section 14.7 (any of such advances
are herein referred to as "Agent Advances"); provided, that the
Required Lenders may at any time revoke the Agent's authorization to
make Agent Advances. Any such revocation must be in writing and shall
become effective prospectively upon the Agent's receipt thereof.
(ii) The Agent Advances shall be secured by the Agent's Liens in
and to the Collateral and shall constitute Base Rate Revolving Loans
and Obligations hereunder.
4. The Credit Agreement is amended by deleting Section 1.4(b) and inserting
the following in lieu thereof:
(b) Amounts; Outside Expiration Date. The Agent shall not have any
obligation to issue or cause to be issued any Letter of Credit or to
provide Credit Support for any Letter of Credit at any time if: (i)
the maximum face amount of the requested Letter of Credit is greater
than the Unused Letter of Credit Subfacility at such time; (ii) the
maximum undrawn amount of the requested Letter of Credit and all
commissions, fees, and charges due from the Borrower in connection
with the opening thereof would cause the Aggregate Revolver
Outstandings to exceed the Maximum Revolver Amount at such time; or
(iii) such Letter of Credit has an expiration date less than 30 days
prior to the Stated Termination Date or more than 12 months from the
date of issuance for standby letters of credit and 180 days for
documentary letters of credit. With respect to any Letter of Credit
which contains any "evergreen" or automatic renewal provision, each
Lender shall be deemed to have consented to any such extension or
renewal unless any such Lender shall have provided to the Agent
written notice that it declines to consent to any such extension or
renewal at least thirty (30) days prior to the date on which the
Letter of Credit Issuer is entitled to decline to extend or renew the
Letter of Credit, provided, that, no such extension or renewal shall
cause the expiration date of such Letter of Credit to extend beyond
the 30th day prior to the Stated Termination Date. If all of the
requirements of this Section 1.4 are met and no Default or Event of
Default has occurred and is continuing, no Lender shall decline to
consent to any such extension or renewal.
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5. The Credit Agreement is amended by deleting Section 7.13(e) and
inserting the following in lieu thereof:
(e) Debt incurred to finance the Permitted Note Repurchase described in
clause (d)(iv) of the definition of "Permitted Note Repurchase" set
forth in Annex A hereto;
6. The Credit Agreement is amended by adding the following new Section
12.21:
12.21 Co-Agents. Neither General Electric Capital Corporation, as
Syndication Agent, nor Fleet Capital Corporation, as Documentation
Agent, shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those
applicable to all Lenders as such. Without limiting the foregoing,
neither General Electric Capital Corporation, as Syndication Agent,
nor Fleet Capital Corporation, as Documentation Agent, shall have or
be deemed to have any fiduciary relationship with any Lender or any
other Person. Each Lender acknowledges that it has not relied, and
will not rely, on General Electric Capital Corporation, as Syndication
Agent, or Fleet Capital Corporation, as Documentation Agent, in
deciding to enter into this Agreement or in taking or not taking
action hereunder.
7. The Credit Agreement is amended by deleting Section 14.11(a) and
inserting the following in lieu thereof:
(a) The Borrower agrees to defend, indemnify and hold the
Agent-Related Persons, the Syndication Agent, the Documentation Agent,
and each Lender, and each of their respective officers, directors,
employees, counsel, representatives, agents and attorneys-in-fact
(each, an "Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may
at any time (including at any time following repayment of the Loans
and the termination, resignation or replacement of the Agent or
replacement of any Lender) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or
the transactions contemplated hereby, or any action taken or omitted
by any such Person under or in connection with any of the foregoing,
including with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related
to or arising out of this Agreement, any other Loan Document, or the
Loans or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that the
Borrower shall have no obligation hereunder to any Indemnified Person
with respect to Indemnified Liabilities resulting solely from the
gross negligence or willful misconduct of such Indemnified Person. The
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agreements in this Section 14.11 shall survive payment of all other
Obligations and the termination of this Agreement.
8. The Credit Agreement is amended by deleting Section 14.11(c) and
inserting the following in lieu thereof:
(c) Unless an Event of Default (other than an Event of Default under
Section 9.1(c)) exists at the time of any settlement, the Borrower
shall not be liable under this Agreement for any settlement made by
any Indemnified Person without the Borrower's prior written consent
(which consent shall not be unreasonably withheld). The Borrower
agrees to indemnify and hold harmless any Indemnified Person from and
against any loss or liability by reason of the settlement of any claim
or action with the consent of the Borrower. The Borrower shall not
settle any claim or action without the prior written consent of the
applicable Indemnified Person, which consent shall not be unreasonably
withheld.
9. The Credit Agreement is amended by deleting the definition of "Lender"
and "Lenders" and replacing them with the following:
"Lender" and "Lenders" have the meanings specified in the introductory
paragraph hereof and shall include the Agent to the extent of any
Agent Advance outstanding and the Bank to the extent of any
Non-Ratable Loan outstanding.
10. The Credit Agreement is amended by deleting the definition of "Required
Lenders" and replacing it with the following:
"Required Lenders" means at any time Lenders whose Pro Rata Shares
aggregate more than 55%.
11. The Borrower (a) agrees to use its commercially reasonable efforts to
obtain a landlord's agreement with respect to its location at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, in form and substance satisfactory to the
Agent, on or before August 1, 2001, and (b) acknowledges that, in the event that
the Borrower is unable to deliver such a satisfactory landlord's agreement, the
Agent shall have the right in accordance with the terms of the Credit Agreement
to establish a Reserve in such amount as it deems appropriate in its reasonable
credit judgment.
12. The effectiveness of this Amendment is expressly conditioned upon the
assignment by Bank of America, pursuant to one or more Assignments and
Acceptances, of such amounts of its Commitment such that, after such assignment,
the Commitments of the Lenders shall be as set forth on Schedule 1.1 attached
hereto. Upon the effectiveness of this Amendment, Schedule 1.1 attached hereto
shall supersede and replace Schedule 1.1 attached to the Credit Agreement.
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13. To induce the Agent and the Lenders to enter into this Amendment,
Borrower and Guarantors hereby represent and warrant that, as of the date
hereof, there exists no Default or Event of Default under the Credit Agreement.
14. Borrower and Guarantors hereby restate, ratify, and reaffirm each and
every term, condition, representation and warranty heretofore made by each of
them under or in connection with the execution and delivery of the Credit
Agreement, as modified hereby, and the other Loan Documents, as fully as though
such representations and warranties had been made on the date hereof and with
specific reference to this Amendment, except to the extent that any such
representation or warranty relates solely to a prior date.
15. Except as expressly set forth herein, the Credit Agreement and the
other Loan Documents shall be and remain in full force and effect as originally
written, and shall constitute the legal, valid, binding and enforceable
obligations of Borrower and Guarantors to the Agent and the Lenders.
16. Borrower agrees to pay on demand all reasonable costs and expenses of
the Agent in connection with the preparation, execution, delivery and
enforcement of this Amendment and all other Loan Documents and any other
transactions contemplated hereby, including, without limitation, the reasonable
fees and out-of-pocket expenses of legal counsel to the Agent.
17. Borrower and Guarantors agree to take such further action as the Agent
shall reasonably request in connection herewith to evidence the agreements
herein contained.
18. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
19. This Amendment shall be binding upon and inure to the benefit of the
successors and permitted assigns, and legal representatives and heirs, of the
parties hereto.
20. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of Georgia.
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IN WITNESS WHEREOF, Borrower, Guarantors, the Agent and the Lenders have
caused this Amendment to be duly executed as of the date first above written.
BORROWERS:
PSS WORLD MEDICAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
GUARANTORS:
DIAGNOSTIC IMAGING, INC.
GULF SOUTH MEDICAL SUPPLY, INC.
THE ▇▇▇▇▇▇▇ X-▇▇▇ COMPANY OF TEXAS
PSS HOLDING, INC.
PSS SERVICE, INC.
PHYSICIAN SALES & SERVICE, INC.
THRIFTYMED, INC.
WORLDMED, INC.
WORLDMED INTERNATIONAL, INC.
DI SERVICE GROUP, INC.
DXR IMAGING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President of each of the
above-listed Guarantors
[Signatures Continued on Next Page]
PSS DELAWARE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
PHYSICIAN SALES & SERVICE LIMITED PARTNERSHIP
By: PSS World Medical, Inc., its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
AGENT:
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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SCHEDULE 1.1
COMMITMENTS
Lender Commitment Pro Rata Share
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Bank of America, N.A. $45,000,000 30.000%
General Electric Capital Corporation $32,500,000 21.667%
Fleet Capital Corporation $32,500,000 21.667%
First Union National Bank $20,000,000 13.333%
GMAC Commercial Credit LLC $20,000,000 13.333%
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$150,000,000 100%
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