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EXHIBIT 4.5
FIRST AMENDMENT
This FIRST AMENDMENT (this "Amendment"), dated as of April 27, 1998, is
between Matria Healthcare, Inc., a Delaware corporation (the "Borrower"), and
BankAmerica Business Credit, Inc., a Delaware corporation (the "Lender").
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to the Loan and Security
Agreement dated as of September 15, 1997 (the "Loan and Security Agreement");
and
WHEREAS, the parties hereto desire to amend the Loan and Security
Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which the parties hereto hereby acknowledge, the parties hereto
agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined
in this Amendment are used as defined in the Loan and Security Agreement. This
Amendment shall be interpreted in accordance with the conventions set forth in
Section 1.3 of the Loan and Security Agreement.
2. Amendments to Loan and Security Agreement.
2.1. The definition of "Availability" in Section 1.1 of
the Loan and Security Agreement is hereby amended by inserting the
following, immediately before the period at the end of such definition:
; provided, further, however, that for purposes of calculating
Availability, the aggregate amount of (i) Unbilled Accounts,
and (ii) Accounts with respect to which more than 120 days and
less than 151 days have elapsed since the Invoice Date
therefor, shall not exceed two million dollars ($2,000,000).
2.2. The definition of "Blocked Account Agreement" in
Section 1.1 of the Loan and Security Agreement is hereby amended and
restated to read in its entirety as follows:
"Blocked Account Agreement" means that certain Three Party
Agreement Relating to Lockbox Services among the Borrower, the
Lender and the Bank, as the same may be amended, amended and
restated or otherwise modified from time to time in accordance
with its terms.
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2.3. The definition of "Eligible Accounts" in Section 1.1
of the Loan and Security Agreement is hereby amended by replacing
clause (b) of such definition with "(b)[Reserved];" and by replacing
clause (t) of such definition with "(t) [Reserved];".
2.4. The definition of "Initial Payment Account" in
Section 1.1 of the Loan and Security Agreement is hereby amended and
restated in its entirety to read as follows:
"Initial Payment Account" means each bank account (or
"Account") of the Borrower identified in the Blocked Account
Agreement at the time the Blocked Account Agreement is
executed.
2.5. The definition of "Payment Account" in Section 1.1 of
the Loan and Security Agreement is hereby amended by adding the
following sentence to the end thereof:
Notwithstanding anything to the contrary in this Agreement,
unless the Lender otherwise directs the Borrower in writing,
each bank account (or "Account") of the Borrower identified in
the Blocked Account Agreement shall constitute a Payment
Account.
2.6. The definition of "Permitted Lien" in Section 1.1 of
the Loan and Security Agreement is hereby amended by: (i) replacing the
reference in clause (h) to Section 10.11 with a reference to Section
10.12; (ii) deleting "and" after clause (j) thereof; (iii) deleting the
period at the end of clause (k) thereof and substituting "; and"
therefor; and (iv) adding the following new clause (l) at the end
thereof:
(l) the rights and interests of lessors under operating leases
under which the Borrower is the lessee, provided that (i) at
all times the sum of the lease payments for the full terms of
all of such leases does not exceed one million two hundred
fifty thousand dollars ($1,250,000) and (ii) each such lease,
if secured, is secured only by the equipment subject to such
lease and is not secured by any other Collateral.
2.7. Section 2.2(b)(i)(A) of the Loan and Security
Agreement is hereby amended in its entirety to read as follows:
(A) the amount of the Borrowing which in the case of
LIBOR Rate Loans or Reference Rate Loans, shall be in an
amount of not less than two million five hundred thousand
dollars ($2,500,000) and in an integral multiple of five
hundred thousand dollars ($500,000) in excess thereof;.
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2.8. Section 3.3 of the Loan and Security Agreement is
hereby amended in its entirety to read as follows:
3.3 Maximum Interest Rate.
(a) Notwithstanding the provisions of Section 3.1
regarding the rates of interest applicable to the Loans, if at
any time the amount of such interest computed on the basis of
the Reference Rate or the LIBOR Rate would exceed the amount
of such interest computed upon the basis of the maximum rate
of interest permitted by applicable state or federal law in
effect from time to time, after taking into account, to the
extent required by applicable law, any and all fees, payments,
charges and calculations provided for in this Agreement or in
any other Loan Document (the "Maximum Rate"), the interest
payable under this Agreement shall be computed upon the basis
of the Maximum Rate, but any subsequent reduction in the
Reference Rate or in the LIBOR Rate shall not reduce such
interest thereafter payable hereunder below the amount
computed on the basis of the Maximum Rate until the aggregate
amount of such interest accrued and payable under this
Agreement equals the total amount of interest which would have
accrued if such interest had not been limited by the Maximum
Rate.
(b) No agreements, conditions, provisions or
stipulations contained in this Agreement or any other
instrument, document or agreement between the Borrower and the
Lender or default of the Borrower, or the exercise by the
Lender of any right (including in respect of the acceleration
of payment of principal or interest) under or in connection
with this Agreement or any other Loan Document, or the arising
of any contingency whatsoever, shall entitle the Lender to
collect, in any event, interest exceeding the Maximum Rate and
in no event shall the Borrower be obligated to pay interest
exceeding such Maximum Rate, and all agreements, conditions or
stipulations, if any, which may in any event or contingency
whatsoever operate to bind, obligate or compel the Borrower to
pay a rate of interest exceeding the Maximum Rate, shall be
without binding force or effect, at law or in equity, to the
extent only of the excess of interest over such Maximum Rate.
In the event any interest is charged in excess of the Maximum
Rate ("Excess"), the Borrower acknowledges and stipulates that
any such charge shall be the result of an accidental and bona
fide error, and such Excess shall be, first, applied to reduce
the principal then unpaid hereunder; second, applied to reduce
the other Obligations; and third, returned to the Borrower, it
being the intention of the parties hereto not to enter at any
time into a usurious or otherwise illegal relationship. The
Borrower recognizes that, considering, among other things,
fluctuations in the Reference Rate, the LIBOR Rate or the
Maximum Rate, such an unintentional result could inadvertently
occur. The Borrower covenants that (i) the credit or return of
any Excess shall constitute the acceptance by the Borrower of
such Excess, and (ii) the Borrower shall not seek or pursue
any other
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remedy, legal or equitable, against the Lender, based in whole
or in part upon the charging or receiving of any interest in
excess of the maximum authorized by applicable law. For the
purpose of determining whether or not any Excess has been
contracted for, charged or received by the Lender, all
interest at any time contracted for, charged or received by
the Lender in connection with this Agreement shall be
amortized, prorated, allocated and spread in equal parts
during the entire term of this Agreement.
(c) The provisions of this Section 3.3 shall be
deemed to be incorporated into every document or communication
relating to the Obligations which sets forth or prescribes any
account, right or claim or alleged account, right or claim of
the Lender with respect to the Borrower (or any other obligor
in respect of Obligations), whether or not any provision of
this Section 3.3 is referred to therein. All such documents
and communications and all figures set forth therein shall,
for the sole purpose of computing the extent of the
liabilities and obligations of the Borrower (or other obligor)
asserted by the Lender thereunder, be automatically recomputed
by the Borrower or other obligor, and by any court considering
the same, to give effect to the adjustments or credits
required by this Section 3.3.
(d) If applicable state or federal law is
amended in the future to allow a greater rate of interest to
be charged under this Agreement or any other Loan Document
than is presently allowed by applicable state or federal law,
then the limitation of interest under this Section 3.3 shall
be increased to the maximum rate of interest allowed by
applicable state or federal law as amended, which increase
shall be effective hereunder on the effective date of such
amendment, and all interest charges owing to the Lender by
reason thereof shall be payable upon demand.
2.9. Section 7.1(d) of the Loan and Security Agreement is
hereby amended by deleting the first sentence thereof and substituting
therefor the following new sentence:
Notwithstanding the foregoing, but subject to the next
sentence, nothing contained herein shall be deemed to
constitute the grant of security interest in favor of the
Lender (x) with respect to the Borrower's interest in any
license pursuant to which the Borrower is a licensee or in any
lease pursuant to which the Borrower is a lessee or any
agreement pursuant to which the Borrower markets the product
of any Person which is not an Account Debtor or (y) with
respect to the Borrower's ownership interest in Adeza
Biomedical Corporation, a Delaware corporation.
2.10. Section 7.9(a) of the Loan and Security Agreement is
hereby amended by adding the following new sentence to the end thereof:
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The Borrower hereby represents and warrants to the Lender that
Account Debtor Notices, signed by the Borrower, have been
delivered to all of the Account Debtors, including the
Specified Account Debtors (but excluding any Government
Account Debtors or Self-Pay Account Debtors).
2.11. Section 9.29 of the Loan and Security Agreement is
hereby amended by adding the following new sentence to the end thereof:
On the basis of a comprehensive review and assessment
undertaken by the Borrower of the Borrower's computer
applications and inquiry made of the Borrower's material
suppliers, vendors and customers, the Borrower reasonably
believes that the "Year 2000 problem" (that is, the risk that
computer applications used by any Person may be unable to
recognize and perform properly date- sensitive functions
involving certain dates prior to and any date after December
31, 1999) shall not result in a Material Adverse Effect.
2.12. Section 10.9 of the Loan and Security Agreement is
hereby amended by inserting the following immediately prior to the
period at the end thereof:
; provided that the Borrower may repurchase its capital stock
in Permitted Stock Repurchases if, and only if, upon any such
repurchase the Borrower shall immediately cancel such
repurchased capital stock and file all documents and take all
other actions required under applicable law in order to give
effect to such cancellation.
2.13. Section 10.19 of the Loan and Security Agreement is
hereby amended by adding the following new sentence immediately prior
to the last sentence thereof:
Notwithstanding any other provision of this Agreement, upon
any repurchase of its capital stock the Borrower shall
immediately cancel such repurchased capital stock and file all
documents and take all other actions required under applicable
law in order to give effect to such cancellation.
2.14. Section 12.1 of the Loan and Security Agreement is
hereby amended by (i) deleting the period at the end of clause (l)
thereof and substituting a semicolon therefor; (ii) deleting "or" after
clause (o) thereof; (iii) deleting the period at the end of clause (p)
thereof and substituting "; or" therefor; and (iv) adding the following
new clause (q) at the end thereof:
(q) the Lender shall not have received, on or prior to
May 27, 1998, all of the following items, in each case in form
and substance reasonably satisfactory to the Lender: (i) the
Blocked Account Agreement; (ii) a certificate of insurance
(covering the Borrower and its Subsidiaries) and a related
"standard insurance
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endorsement/loss payable clause" (including a provision to the
effect that any notices required to be given to the insurance
company by any named insured are waived as to the Lender); and
(iii) a "bring-down" opinion from Xxxxxxxx Xxxxxxx LLP to the
effect that the opinions set forth in its opinion letter to
the Lender dated April 27, 1997 also apply to the Blocked
Account Agreement.
2.15. Section 13(b) of the Loan and Security Agreement is
hereby amended by replacing the reference therein to Section 15.11 with
a reference to Section 15.10.
2.16. Section 15.4 of the Loan and Security Agreement is
hereby amended by deleting "New York" and substituting therefor
"Illinois."
2.17. Section 15.5 of the Loan and Security Agreement is
hereby amending by deleting "New York" and substituting therefor
"Illinois", and by deleting "Southern District of New York" and
substituting therefor "Northern District of Illinois".
3. Effect of Amendment; Ratification. On and after the Effective
Date (as defined below), (a) all references to the Loan and Security Agreement
in the Exhibits thereto and in any other Loan Document shall be deemed to refer
to the Loan and Security Agreement as amended hereby, and (b) the phrases "this
Loan and Security Agreement" or "this Agreement", as the case may be, and the
words "hereof", "herein", "hereunder" and words of similar import, as used in
the Loan and Security Agreement shall mean the Loan and Security Agreement as
amended hereby. As amended by this Amendment, the Loan and Security Agreement is
hereby ratified, approved and confirmed in all respects.
4. Absence of Events and Events of Default. The Borrower hereby
represents and warrants to the Lender that, on and as of the Effective Date (as
defined below), no Event or Event of Default has occurred and is continuing.
5. Effective Date. The amendments set forth herein shall become
effective on the date (the "Effective Date") when: (a) the Lender shall have
executed this Amendment; and (b) the Lender shall have received counterparts of
this Amendment executed by the Borrower (or notice of such execution
satisfactory to the Lender).
6. Incorporation by Reference. This Amendment shall be considered
to be a Loan Document. Without limiting the effect of any provisions of the Loan
and Security Agreement, and without limiting the fact that this Amendment is a
Loan Document, Sections 7.9, 9.1, 9.2, 9.3, 9.4, 15.3, 15.4, 15.5, 15.6, 15.9,
15.11, 15.13, 15.15 and 15.16 of the Loan and Security Agreement (as amended
hereby) are hereby incorporated into this Amendment by this reference, with the
references in such Sections to the Loan and Security Agreement or any other Loan
Documents applying instead with equal force to this Amendment. All
representations and warranties so incorporated by reference shall be deemed to
be made to the Lender and to be made as of the Effective Date.
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7. Amendments and Waivers. This Amendment shall not be amended,
modified or waived except by written consent of both parties hereto.
8. Closing Certificates. Each officer's certificate signed by an
officer of the Borrower or the Guarantor and delivered to the Lender pursuant to
Section 11.1 of the Loan and Security Agreement shall be dated the date of this
Amendment unless the Lender otherwise consents.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
MATRIA HEALTHCARE, INC.
By:
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Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
BANKAMERICA BUSINESS CREDIT, INC.
By:
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Xxxxxx X. Xxxxxx
Vice President
