FIRST AMENDMENT TO TERM LOAN AGREEMENT
THIS FIRST AMENDMENT TO TERM LOAN AGREEMENT dated as of February 2, 2006
(the "Amendment") is entered into among Matria Healthcare, Inc., a Delaware
corporation (the "Borrower"), the Guarantors party hereto, the Lenders party
hereto and Bank of America, N.A., as Administrative Agent and Collateral Agent.
All capitalized terms used herein and not otherwise defined herein shall have
the meanings given to such terms in the Term Loan Agreement (as defined below).
RECITALS
WHEREAS the Borrower, the Guarantors, the Lenders and Bank of America,
N.A, in its capacity as Administrative Agent and Collateral Agent entered into
that certain Term Loan Agreement dated as of January 19, 2006 (as amended or
modified from time to time, the "Term Loan Agreement"); and
WHEREAS, the Borrower has requested that the Lenders amend the Term Loan
Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendments. The Term Loan Agreement is hereby amended as follows:
(a) The definition of "Intercreditor Agreement" in Section 1.01 of
the Term Loan Agreement is hereby amended to read as follows:
"Intercreditor Agreement" means the Intercreditor Agreement,
dated as of the Closing Date, among the Collateral Agent, the First
Lien Collateral Agent, the Control Agent and the Borrower, as
amended in accordance with the terms hereof and thereof.
(b) The definition of "Related Parties" in Section 1.01 of the Term
Loan Agreement is hereby amended to read as follows:
"Related Parties" means, with respect to any Person, such
Person's Affiliates and the partners, directors, officers,
employees, agents, trustees and advisors of such Person and of such
Person's Affiliates.
(c) Section 8.03(f) of the Term Loan Agreement is hereby amended as
follows:
(f) Indebtedness under the First Lien Loan Documents in an
aggregate principal amount not to exceed $520,000,000 at any one
time outstanding as increased, amended or refinanced in accordance
with the terms of the Intercreditor Agreement;
(d) The language preceding the proviso in Section 11.06(f) of the
Term Loan Agreement is hereby amended to read as follows:
Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender,
including, without limitation, any pledge or assignment to secure
obligations to a Federal Reserve Bank;
(e) Clause (a) in the first sentence of Section 11.07 of the Term
Loan Agreement is hereby amended to read as follows:
(a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, trustees, advisors
and representatives and to any direct or indirect contractual
counterparty (or such contractual counterparty's professional
advisor) under any Swap Contract relating to Loans outstanding under
this Agreement (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of
such Confidential Information and instructed to keep such
Confidential Information confidential),
2. Consent. (a) Notwithstanding the terms of Section 2.03(c) of the Term
Loan Agreement, the Lenders hereby agree that the Borrower may prepay the Term
Loan on the date hereof in an aggregate principal amount of $20,000,000 without
having to pay the Lenders any prepayment fee or premium in connection with such
prepayment, (b) the Lenders hereby consent to and approve the First Amendment to
Credit Agreement dated as of the date hereof entered into among the Borrower,
the Guarantors, the First Lien Lenders and Bank of America, N.A., in its
capacity as First Lien Agent and the First Lien Collateral Agent, a copy of
which is attached hereto as Exhibit A (the "First Amendment to Credit
Agreement") and (c) the Lenders hereby (i) consent to and approve the First
Amendment to Intercreditor Agreement dated as of the date hereof entered into
among the Collateral Agent, the First Lien Collateral Agent, the Control Agent
and the Borrower, a copy of which is attached hereto as Exhibit B ("First
Amendment to Intercreditor Agreement") and (ii) authorize and direct the
Collateral Agent and the Control Agent to enter into the First Amendment to
Intercreditor Agreement on behalf of the Lenders.
3. Conditions Precedent. This Amendment shall be effective upon
satisfaction of the following conditions precedent:
(a) Receipt by the Administrative Agent of counterparts of this
Amendment duly executed by the Borrower, the Guarantors, the Lenders and
the Administrative Agent; and
(b) Receipt by the Administrative Agent of a copy, certified by a
Responsible Officer of the Borrower as true and complete, of the First
Amendment to Credit Agreement.
4. Miscellaneous.
(a) The Term Loan Agreement, and the obligations of the Loan Parties
thereunder and under the other Loan Documents, are hereby ratified and
confirmed and shall remain in full force and effect according to their
terms.
(b) Each Guarantor (a) acknowledges and consents to all of the terms
and conditions of this Amendment, (b) affirms all of its obligations under
the Loan Documents and (c) agrees that this Amendment and all documents
executed in connection herewith do not operate to reduce or discharge its
obligations under the Term Loan Agreement or the Loan Documents.
(c) Each Loan Party hereby represents and warrants as follows:
(i) Each Loan Party has taken all necessary action to
authorize the execution, delivery and performance of this Amendment.
2
(ii) This Amendment has been duly executed and delivered by
the Loan Parties and constitutes each of the Loan Parties' legal,
valid and binding obligations, enforceable in accordance with its
terms, except as such enforceability may be limited by Debtor Relief
Laws and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(iii) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or
governmental authority or third party is required in connection with
the execution, delivery or performance by any Loan Party of this
Amendment.
(d) The Loan Parties represent and warrant to the Lenders that (i)
the representations and warranties of the Loan Parties set forth in
Article VI of the Term Loan Agreement and in each other Loan Document are
true and correct in all material respects as of the date hereof with the
same effect as if made on and as of the date hereof, except to the extent
such representations and warranties expressly relate solely to an earlier
date and (ii) no event has occurred and is continuing which constitutes a
Default or an Event of Default.
(e) This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all
of which shall constitute one and the same instrument. Delivery of an
executed counterpart of this Amendment by telecopy shall be effective as
an original and shall constitute a representation that an executed
original shall be delivered.
(f) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
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Each of the parties hereto has caused a counterpart of this Amendment to
be duly executed and delivered as of the date first above written.
BORROWER: MATRIA HEALTHCARE, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman and CEO
GUARANTORS: MATRIA WOMEN'S AND CHILDREN'S HEALTH, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
MATRIA CASE MANAGEMENT, INC.,
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
MIAVITA, INC.,
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
MATRIA HEALTH ENHANCEMENT COMPANY,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
DIABETES ACQUISITION, INC.,
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
XXXXXX MEDICAL ACQUISITION COMPANY,
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
FACET TECHNOLOGIES, LLC,
a Georgia limited liability company
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
MATRIA HEALTHCARE OF ILLINOIS, INC.,
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
MATRIA OF NEW YORK, INC.,
a New York corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
QUALITY ONCOLOGY, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
WINNINGHABITS, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
XXXXXXXXXXXXX.XXX, LTD.,
a Texas limited partnership
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
WINNINGHABITS GP, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
WINNINGHABITS LP, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
CORSOLUTIONS MEDICAL, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman and CEO
CORSOLUTIONS INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman and CEO
HEALTH AND PRODUCTIVITY CORPORATION OF AMERICA, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman and CEO
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
LENDERS: BANK OF AMERICA, N.A.,
as a Lender, Swing Line Lender and L/C Issuer
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
