EXHIBIT 4.13
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT (this
"AMENDMENT NO. 1"), dated as of December 31, 2002, by and between HFG HEALTHCO-4
LLC, a Delaware limited liability company (together with its successors and
assigns, the "LENDER") and MATRIA HEALTHCARE, INC., as authorized representative
of the Borrowers (in such capacity, together with its permitted successors and
assigns, the "AUTHORIZED REPRESENTATIVE").
PRELIMINARY STATEMENTS.
(A) Matria Healthcare, Inc., a Delaware corporation
(together with its permitted successors and assigns, the "PARENT"), Diabetes
Acquisition, Inc., a Georgia corporation and wholly-owned subsidiary of the
Parent (together with its permitted successors and assigns, "DAI"), Xxxxxx
Medical Acquisition Company, a Georgia corporation and wholly-owned subsidiary
of DAI (together with its permitted successors and assigns, "XXXXXX"), Diabetes
Management Solutions, Inc., a Delaware corporation and wholly-owned subsidiary
of Xxxxxx (together with its permitted successors and assigns, "DMS"), Diabetes
Self Care, Inc., a Virginia corporation and wholly-owned subsidiary of Xxxxxx
(together with its permitted successors and assigns, "DSC"), Matria
Laboratories, Inc., a Delaware corporation and wholly-owned subsidiary of DSC
(together with its permitted successors and assigns, "MLI"), Facet Technologies,
LLC, a Georgia limited liability company whose interests are wholly-owned by the
Parent (together with its permitted successors and assigns, "FACET"), Matria of
New York, Inc., a New York corporation and wholly-owned subsidiary of the Parent
(together with its permitted successors and assigns, "MNY"), Matria Healthcare
of Illinois, Inc., a Georgia corporation and wholly-owned subsidiary of the
Parent (together with its permitted successors and assigns, "MII"), Quality
Oncology, Inc., a Delaware corporation and wholly-owned subsidiary of the Parent
(together with its permitted successors and assigns, "QO") (the Parent, DAI,
Gainor, DMS, DSC, MLI, Facet, MNY, MII and QO, each individually a "BORROWER"
and jointly and severally, the "BORROWERS"), the Authorized Representative and
the Lender entered into a Loan and Security Agreement dated as of October 22,
2002 (as amended, restated, modified or supplemented from time to time, the
"AGREEMENT"). Terms not defined herein are used as defined in the Agreement.
(B) The parties to the Agreement have agreed to amend the
Agreement as described herein.
NOW, THEREFORE, the parties hereto hereby acknowledge and
agree as follows:
1. Exhibit I to the Agreement is amended by adding the
following additional defined term in the appropriate alphabetical order:
"TEST PERIOD" means, for any determination of the ratio of
Debt to EBITDA or the Fixed Charge Coverage Ratio, the period of four
consecutive fiscal quarters of the Parent ended at the end of the
relevant fiscal quarter or fiscal year of the Parent, except that for
purposes of calculating the ratio of Debt to
EBITDA and the Fixed Charge Coverage Ratio for the three fiscal
quarters ending March 31, 2003, June 30, 2003, and September 30, 2003,
the "TEST PERIOD" shall be the period commencing on January 1, 2003,
and ending on the last day of such respective fiscal quarter of Parent.
In clarification of the foregoing, for purposes of calculating the
ratio of Debt to EBITDA and the Fixed Charge Coverage Ratio for the
period ending December 31, 2002, "TEST PERIOD" shall mean the
twelve-month period ending on such date.
2. Exhibit I to the Agreement is further amended by
amending the definition of "Fixed Charge Coverage Ratio" in its entirety to read
as follows:
"FIXED CHARGE COVERAGE RATIO" means, as determined as of the
end of each Test Period, for the Test Period then ended, the quotient
obtained by dividing (i) EBITDA for such period, by (ii) the sum of (x)
Interest Expense for such period, (y) the current portion of long term
Debt as of the end of such period, and (z) capital expenditures for
such period, provided, that for any such determination to be made as of
the Test Periods ending March 31, 2003, June 30, 2003, and September
30, 2003, EBITDA, Interest Expense, the current portion of long term
Debt and capital expenditures for such period shall be annualized.
3. Clause (p) of Exhibit V to the Agreement is amended
in its entirety to read as follows:
(p) The ratio of Debt to EBITDA for the Parent and its
Subsidiaries for (x) the Test Periods prior to and including the fiscal
quarter ending September 30, 2003, is greater than 4.5:1.0, and (y) all
Test Periods thereafter, is greater than 3.5:1.0; provided, that, for
any such determination to be made as of the Test Periods ending March
31, 2003, June 30, 2003, and September 30, 2003, EBITDA for such period
shall be annualized.
4. Clause (q) of Exhibit V to the Agreement is amended
in its entirety to read as follows:
(q) The Fixed Charge Coverage Ratio for the Parent and
its Subsidiaries for (x) the Test Period ending December 31, 2002, is
less than 0.85:1.0, (y) the Test Period ending March 31, 2003, is less
than 1.1:1.0, and (z) all Test Periods thereafter is less than 1.2:1.0.
5. This Amendment No. 1 is effective as of the date
first above written.
6. The Authorized Representative, for itself and on
behalf of each of the Borrowers, reaffirms and restates the representations and
warranties contained in Exhibits III and VII to the Agreement, as amended by
this Amendment No. 1, and all such representations and warranties shall be true
and correct on the date hereof with the same force and effect as if made on such
date (except to the extent that any such representation and warranty is
expressly stated to have been made as of a specific date, in which case such
representation and warranty shall be true and correct in all material respects
as of such date). The Authorized Representative, for
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itself and on behalf of each of the Borrowers, represents and warrants (which
representations and warranties shall survive the execution and delivery hereof)
to the Lender that:
a. No event has occurred and is continuing, or would
result from the execution of this Amendment No. 1,
that constitutes a Default or an Event of Default;
b. It has the power and authority to execute, deliver
and carry out the terms and provisions of this
Amendment No. 1 for itself and on behalf of the
Borrowers, and it and each of the Borrowers has taken
or caused to be taken all necessary action to
authorize the execution, delivery and performance of
this Amendment No. 1;
c. No consent of any other person (including, without
limitation, shareholders or creditors of the
Authorized Representative or any of the Borrowers),
and no action of, or filing with any governmental or
public body or authority is required to authorize, or
is otherwise required in connection with the
execution, delivery and performance of this Amendment
No. 1;
d. This Amendment No. 1 and any other instruments and
documents contemplated hereby have been duly executed
and delivered by a duly authorized officer on behalf
of the Authorized Representative, and constitutes a
legal, valid and binding obligation of the Authorized
Representative and each of the Borrowers enforceable
against each such party in accordance with its terms,
subject to bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting the
enforcement of creditors' rights generally and the
exercise of judicial discretion in accordance with
general principles of equity; and
e. The execution, delivery and performance of this
Amendment No. 1 and any other instruments and
documents contemplated hereby will not violate any
law, statute or regulation, or any order or decree of
any court or governmental instrumentality, or
conflict with, or result in the breach of, or
constitute a default under any contractual obligation
of the Authorized Representative or any Borrower.
7. The Borrowers shall pay to the Lender an amendment
fee in the amount of $25,000 upon the execution of this Amendment No. 1.
8. Nothing herein shall be deemed to be a waiver of any
Default or Event of Default, or any covenant or agreement contained in the
Agreement, and the Authorized Representative, for itself and each of the
Borrowers, hereby agrees that all of the covenants and agreements contained in
the Agreement, as amended hereby, and the other Documents are hereby ratified
and confirmed in all respects and shall remain in full force and effect in
accordance with their respective terms.
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9. All references to the Agreement in the Agreement and
the other Documents shall mean the Agreement as amended hereby and as it may in
the future be amended, restated, supplemented or modified from time to time.
10. This Amendment No. 1 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 taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Amendment No. 1 by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment No. 1.
11. THIS AMENDMENT NO. 1 SHALL, IN ACCORDANCE WITH
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS
OF LAWS PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF
ANY OTHER JURISDICTION.
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IN WITNESS WHEREOF, the undersigned parties have caused this
Amendment No. 1 to be duly executed by their authorized officers thereunto duly
authorized, as of the date first above written.
LENDER: HFG HEALTHCO-4 LLC
By: _______________________________
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
AUTHORIZED REPRESENTATIVE: MATRIA HEALTHCARE, INC.
By: _______________________________
Name: _________________________
Title: ________________________
