EXHIBIT 10.1
CONSENT AND WAIVER AGREEMENT
AND
AMENDMENT NO. 6
TO LOAN AND SECURITY AGREEMENT
CONSENT AND WAIVER AGREEMENT AND AMENDMENT NO. 6 TO LOAN AND
SECURITY AGREEMENT, dated as of December 31, 2004 (this "AGREEMENT"), by and
among MATRIA HEALTHCARE, INC., a Delaware corporation (together with its
permitted successors and assigns, "PARENT"), DIABETES ACQUISITION, INC., a
Georgia corporation (together with its permitted successors and assigns, "DAI"),
XXXXXX MEDICAL ACQUISITION COMPANY, a Georgia corporation (together with its
permitted successors and assigns, "XXXXXX"), DIABETES MANAGEMENT SOLUTIONS,
INC., a Delaware corporation (together with its permitted successors and
assigns, "DMS"), DIABETES SELF CARE, INC., a Virginia corporation (together with
its permitted successors and assigns, "DSC"), MATRIA LABORATORIES, INC., a
Delaware corporation (together with its permitted successors and assigns,
"MLI"), FACET TECHNOLOGIES, LLC, a Georgia limited liability company (together
with its permitted successors and assigns, "FACET"), MATRIA OF NEW YORK, INC., a
New York corporation (together with its permitted successors and assigns,
"MNY"), MATRIA HEALTHCARE OF ILLINOIS, INC., a Georgia corporation (together
with its permitted successors and assigns, "MII"), QUALITY ONCOLOGY, INC., a
Delaware corporation (together with its permitted successors and assigns, "QO")
(Parent, DAI, Gainor, DMS, DSC, MLI, Facet, MNY, MII and QO, each individually
an "BORROWER" and jointly and severally, the "BORROWERS"), Parent, in its
capacity as authorized representative of the Borrowers (the "AUTHORIZED
REPRESENTATIVE"), MATRIA HOLDING COMPANY, INC., a Delaware corporation (together
with its permitted successors and assigns, "HOLDCO"), and HFG HEALTHCO-4, LLC, a
Delaware limited liability company (together with its successors and assigns,
the "LENDER").
WITNESSETH
WHEREAS, the Borrowers, and the Authorized Representative, in its
capacity as the authorized representative of the Borrowers, and the Lender are
parties to that certain Loan and Security Agreement, dated as of October 22,
2002 (including all annexes, exhibits and schedules thereto, and as amended,
restated, supplemented or otherwise modified from time to time, including,
without limitation, by that certain Amendment No. 1 to Loan and Security
Agreement dated as of December 31, 2002, that certain Amendment No. 2 to Loan
and Security Agreement dated as of December 31, 2003, that certain Consent and
Waiver Agreement and Amendment No. 3 to Loan and Security Agreement dated as of
April 23, 2004, that certain Consent and Waiver Agreement and Amendment No. 4 to
Loan and Security Agreement dated as of April 29, 2004, that certain Consent
Agreement dated as of June 22, 2004, and that certain that certain Consent and
Waiver Agreement and Amendment No. 5 to Loan and Security Agreement dated as of
June 30, 2004, the "LOAN AND SECURITY AGREEMENT");
WHEREAS, Parent, Holdco, and Matria MergerSub, Inc., a Delaware
corporation and a newly formed Subsidiary of Parent ("MERGERSUB"), intend to
enter into that certain Agreement of Merger and Plan of Reorganization dated as
of December 31, 2004 (as attached as Exhibit A hereto, the "MERGER AGREEMENT"),
pursuant to which Parent desires to create a new holding company structure (a)
by merging MergerSub with and into the Parent and (b) by converting the
outstanding capital stock of the Parent into a like number of shares of capital
stock of Holdco, with the result beign that the Parent shall become a
wholly-owned subsidiary of Holdco, all on the terms of and subject to the
conditions of the Merger Agreement (such transaction, the "MERGER");
WHEREAS, pursuant to the terms of the Merger Agreement, the name of
Parent shall be changed to Matria Women's and Children's Health, Inc. (the "NAME
CHANGE", and, together with the Merger, the "MERGER TRANSACTIONS");
WHEREAS, the consummation of the Merger Transactions would be in
violation of the Loan and Security Agreement, and Lender has agreed to consent
to the consummation of Merger Transactions, and to make certain conforming
amendments to the Loan and Security Agreement, in each case on the terms and
conditions provided for herein;
NOW THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the Borrowers, the Authorized Representative and the Lender
hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Loan and Security Agreement, as
amended hereby.
2. Consents.
(a) As of the Agreement Effective Date (as hereinafter defined), the
Lender hereby consents to the formation of, pursuant to Section 6.01 of the Loan
and Security Agreement, to the Acquisition of each of Holdco and MergerSub by
Parent and acknowledges and agrees that such Acquisition shall constitute a
Permitted Acquisition pursuant to clause (b) of the definition of such term, and
acknowledges that no Event of Default has arisen as a result of the Acquisition
of Holdco or MergerSub prior to the Agreement Effective Date.
(b) As of the Agreement Effective Date (as hereinafter defined), the
Lender hereby consents, pursuant to Section 6.01 of the Loan and Security
Agreement and notwithstanding anything set forth to the contrary in clauses (b)
(solely with respect to the final sentence thereof, to the extent that such
clause (b) requires Parent to provide the Lender with 30 days' prior Written
Notice of Parent changing its name from "Matria Healthcare, Inc." to "Matria
Women's and Children's Health, Inc."), (r) and (z) of Exhibit IV and clause (m)
of Exhibit V to the Loan and Security Agreement, to the Parent consummating the
Merger Transactions.
3. Amendments to Loan and Security Agreement.
a. Each and every reference in the Loan and Security Agreement
to "Matria Healthcare, Inc." shall be deemed to be a reference to "Matria
Women's and Children's Health, Inc."
b. The last sentence of clause (b) of Exhibit IV to the Loan
and Security Agreement is hereby amended and restated to read in its entirety as
follows:
It will keep its exact name as set forth on the signature page of this
Agreement (or, in the case of the Parent, it will keep its exact name as
"Matria Women's and Children's Health, Inc.") and will not change its name
without providing 30 days' prior Written Notice to
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the Lender and taking and completing all actions reasonably requested by
the Lender or otherwise necessary to protect, maintain and perfect the
Lender's security interest in the Receivables and other Collateral.
4. Confirmation and Reaffirmation of Obligations. Without affecting
in any way any provisions of the Documents pursuant to which the obligations of
the Borrowers thereunder are agreed to be absolute and unconditional
irrespective of any amendment thereof:
a. Parent, hereby confirms and agrees that, notwithstanding
(i) the consummation of the Merger Transactions and (ii) the effectiveness of
this Agreement, each of the Documents which Parent has heretofore executed and
delivered, and the obligations of Parent thereunder, are, and shall continue to
be, in full force and effect and shall apply to the Documents as amended hereby,
and each of such Documents is hereby ratified and confirmed by the Parent and
such obligations are ratified and confirmed as obligations of Parent.
b. Without limiting the foregoing, Parent agrees that the
security interests and rights of set-off granted by Former Parent pursuant to
the Documents, including, without limitation, the Loan and Security Agreement
and the Pledge Agreement -- Parent, are hereby ratified and reaffirmed by Parent
in all respects and shall remain in full force and effect as a continuing
security interests and rights of set-off.
c. Each of the other Borrowers hereby confirms and agrees
that:
i. notwithstanding (x) the consummation of the Merger
Transactions and (y) the effectiveness of this Agreement, each of the
Documents and the obligations of such Borrowers thereunder, are, and shall
continue to be, in full force and effect and shall apply to the Documents
as amended hereby, and each of such Documents is hereby ratified and
confirmed by such Borrower and such obligations are ratified and confirmed
as obligations of such Borrower; and
ii. the security interests and rights of set-off granted
by such Borrower pursuant to the Documents are hereby ratified and
reaffirmed by such Borrower in all respects and shall remain in full force
and effect as continuing security interests and rights of set-off.
5. Confirmation of Parent as Authorized Representative. Each
Borrower hereby irrevocably designates and confirms Parent as the "Authorized
Representative" under this Agreement to deliver and receive all notices and
Written Notices on behalf of such Borrower and to receive on behalf of such
Borrower and distribute all distributions of the Borrowers in accordance with
the respective interests of the Borrowers. Parent hereby makes the
representations and warranties of the Authorized Representative contained in the
Loan and Security Agreement and agrees to continue to perform all of the
obligations of the Authorized Representative pursuant to the Loan and Security
Agreement. Each Borrower hereby unconditionally releases the Lender, the Program
Manager and any member of the Lender Group with respect to any claims,
obligations or duties that such Persons may otherwise have been deemed to
possess absent the designation and appointment contained in this Section 5.
6. Remedies. This Agreement shall constitute a Document. The breach
by Holdco, Parent or any other Borrower of any representation, warranty,
covenant or agreement in
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this Agreement shall constitute an immediate Event of Default hereunder and
under the other Documents.
7. Representations and Warranties. To induce the Lender to enter
into this Agreement, each Borrower, including Parent, jointly and severally and
giving effect to this Agreement, makes the following representations and
warranties to the Lender:
a. The execution, delivery and performance by it of this
Agreement and the performance of the Loan and Security Agreement, as amended
hereby, the Documents and the other documents to be delivered by it hereunder
and thereunder and the actions contemplated hereby and thereby, including, in
the case of Parent, the Merger Agreement and each other document or instrument
executed and delivered in connection therewith (i) are within its corporate or
company powers, (ii) have been duly authorized by all necessary corporate or
company action, (iii) do not contravene (1) its charter or its bylaws, or its
operating agreement, as applicable, (2) any law, rule or regulation applicable
to it, (3) the Indenture or any contractual restriction binding on or affecting
it or its Property, or (4) any order, writ, judgment, award, injunction or
decree binding on or affecting it or its Property, and (iv) do not result in or
require the creation of any Lien upon or with respect to any of its Properties,
other than in favor of the Lender pursuant to this Agreement, the Loan and
Security Agreement, as amended hereby, or the Documents. This Agreement has been
duly executed and delivered by it. It has previously furnished, or will furnish
on the date hereof, to the Lender a true, correct and complete copy of its
charter, bylaws or operating agreement, as applicable, including all amendments
thereto.
b. This Agreement, the Loan and Security Agreement, as amended
hereby, and the Documents constitute the legal, valid and binding obligation of
the Borrowers, enforceable against the Borrowers in accordance with their
respective terms, except as limited by bankruptcy, insolvency, moratorium,
fraudulent conveyance or other laws relating to the enforcement of creditors'
rights generally and general principles of equity (regardless of whether
enforcement is sought at equity or law).
c. No event has occurred and is continuing, or would result
from the execution of this Agreement, that constitutes a Default or Event of
Default.
d. Except as disclosed on Schedule III to the Loan and
Security Agreement, there is no pending or, to its knowledge, threatened action
or proceeding or injunction, writ or restraining order affecting it before any
court, Governmental Entity or arbitrator which could reasonably be expected to
result in a Material Adverse Effect, or which purports to affect the legality,
validity or enforceability of this Agreement or the Loan and Security Agreement,
as amended hereby, or any other Document executed in connection herewith or
therewith, and it is not currently the subject of, or has any present intention
of commencing, an insolvency proceeding or petition in bankruptcy.
e. After giving effect to this Agreement, the representations
and warranties of each Borrower contained in the Loan and Security Agreement and
each other Document are true and correct on and as of the Agreement Effective
Date with the same effect as if such representations and warranties had been
made on and as of such date, except that any such representation or warranty
which is expressly made only as of a specified date need be true only as of such
date.
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f. Parent is located in the State of formation set forth in
the initial paragraph of this Agreement for the purposes of Section 9-307 of the
UCC as in effect in the State of New York. The office where Parent keeps its
records concerning the Transferred Receivables are located at the address or
addresses referred to in Schedule III hereto.
8. No Other Waivers or Consents. Except as expressly provided
herein, the Loan and Security Agreement and the other Documents shall be
unmodified and shall continue to be in full force and effect in accordance with
their terms. In addition, except as specifically provided herein, this Agreement
shall not be deemed a (i) waiver of any term or condition of any Document or
(ii) consent to any deviation from the terms of the Loan and Security Agreement
or any of the other Documents on the part of Parent or any other Borrower, and
shall not be deemed to prejudice any right or rights which the Lender may now
have or may have in the future under or in connection with the Loan and Security
Agreement or any other Document or any of the instruments or agreements referred
to therein, as the same may be amended from time to time.
9. Expenses. Each Borrower hereby reconfirms its respective
obligations pursuant to Section 6.05 of the Loan and Security Agreement to pay
and reimburse the Lender for all reasonable costs and out-of-pocket expenses
(including, without limitation, reasonable counsel fees and expenses) incurred
in connection with the negotiation, preparation, execution and delivery of this
Agreement and all other documents and instruments delivered in connection
herewith.
10. Effectiveness. This Agreement shall become effective as of the
date first set forth above (the "AGREEMENT EFFECTIVE DATE") only upon
satisfaction in full in the judgment of the Lender of each of the following
conditions:
a. The Lender shall have received copies by facsimile of duly
executed signature pages of this Agreement from each Borrower, the Authorized
Representative and the Lender.
b. The representations and warranties of or on behalf of the
Borrowers in this Agreement shall be true and correct on and as of the Agreement
Effective Date.
11. Covenants of Borrowers following Effectiveness. Within
twenty-one (21) days after the date hereof, the Borrowers agree that they shall
supply the Lender with the following:
a. copies of agreements with each of the depositary banks
party to each of the Control Agreements and the Depositary Agreements to Parent
is a party, pursuant to which each such depositary bank acknowledges Parent as
an account holder thereunder and confirms and reaffirms its obligations under
the applicable Control Agreements and Depositary Agreements.
b. a certificate issued by the Secretary of State of the state
of Parent's (i) organization, dated as of a recent date, as to the legal
existence and good standing of Parent entity, and (ii) locale of operation, if
different from its state of organization, as to the foreign qualification,
authorization and good standing of Parent in such locale (which certificates may
be dated not more than 20 days prior to the Closing Date), provided that with
respect to such
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jurisdictions in which Parent is authorized to do business as a foreign
corporation, such certificates shall be delivered within 30 days following the
Agreement Effective Date.
c. certified copies of the charter and by-laws of Parent,
certified copies of resolutions of the Board of Directors of Parent approving
this Agreement and the Merger Agreement and certified copies of all documents
evidencing other necessary company or corporate action and governmental
approvals, if any, with respect to this Agreement and the Merger Agreement.
d. a certificate of the Secretary or Assistant Secretary, or
manager, of Parent, certifying the names and true signatures of the officers of
Parent authorized to sign this Agreement and the other documents to be delivered
by it hereunder.
e. a favorable opinion of Xxxxxxxx Xxxxxxx LLP.
f. all UCC-3 amendment statements as it shall deem necessary
or reasonably desirable in order to correctly identify Parent under the UCC.
12. Further Assurances.
a. Parent and the other Borrowers shall, at their cost and
expense, upon the reasonable request of the Lender, duly execute and deliver, or
cause to be duly executed and delivered, to the Lender such further instruments
and do and cause to be done such further acts as may be reasonably necessary or
proper to enforce the obligations undertaken by the Borrowers and to further
maintain and perfect the Lender's Lien hereunder.
b. Holdco hereby agrees:
i. within fifteen Business Days after the Agreement
effective date, to deliver to the Lender, (x) a guarantee agreement from
Holdco, guaranteeing the payment and performance of the Lender Debt, and
otherwise in form and substance satisfactory to the Lender, and (y) a
pledge agreement in favor of the Lender with respect to the capital stock
of Parent and any other Borrower in which Holdco holds any equity
intererest, together with all related stock certificate deliveries and
undated stock powers executed in blank, duly executed by Holdco, in each
case satisfactory in form and substance to the Lender; and
ii. not to create or suffer to exist any Liens upon or
with respect to, its equity holdings in Parent.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO ANY CONFLICTS OF LAWS PRINCIPLES THEREOF.
14. Counterparts. This Agreement may be executed by the parties
hereto on any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. Delivery of
an executed counterpart of a signature page
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to this Agreement by telecopier or electronic mail shall be effective as
delivery of a manually executed counterpart of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
HFG HEALTHCO-4 LLC
By: HFG HEALTHCO-4, INC., a member
By: /s/ XXXXXXX XXXXXXXX
----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
[CONSENT AND WAIVER AGREEMENT AND AMENDMENT NO. 6
TO LOAN AND SECURITY AGREEMENT]
MATRIA HEALTHCARE, INC. FACET TECHNOLOGIES, LLC
By: /s/ XXXXXX X. XXXXX
----------------------------
Name: Xxxxxx X. Xxxxx By: /s/ XXXXXX X. XXXXX
Title: Chairman and Chief -----------------------------
Executive Officer Matria Healthcare, Inc.,
the Sole Managing Member
By: Xxxxxx X. Xxxxx
Its: Chairman and
Chief Executive Officer
DIABETES ACQUISITION, INC. MATRIA OF NEW YORK, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------- -----------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Title: President Title: President
XXXXXX MEDICAL ACQUISITION COMPANY MATRIA HEALTHCARE OF ILLINOIS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------- -----------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Title: President Title: President
DIABETES MANAGEMENT SOLUTIONS, INC. QUALITY ONCOLOGY, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------- -----------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Title: President Title: Chairman
DIABETES SELF CARE, INC. MATRIA HOLDING COMPANY, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXX
---------------------------- -----------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Title: President Title: President
MATRIA LABORATORIES, INC.
By: /s/ XXXXXX X. XXXXX
----------------------------
Name: Xxxxxx X. Xxxxx
Title: President
