EXHIBIT 10.5c
NINTH AMENDMENT TO FIFTH AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS NINTH AMENDMENT TO FIFTH AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Ninth Amendment") is made as of July 9, 2002, by and among
FLEET CAPITAL CORPORATION, a Rhode Island corporation (the "Lender"), and D&K
HEALTHCARE RESOURCES, INC., a Delaware corporation ("D&K"), JARON, INC., a
Florida corporation ("Jaron"), XXXXXX DRUG CO., a South Dakota corporation
("Xxxxxx"), DIVERSIFIED HEALTHCARE, LLC, a Kentucky limited liability company
("DH"), and MEDICAL & VACCINE PRODUCTS, INC. d/b/a DEVICTORIA MEDICAL, a Puerto
Rico corporation ("MVP"; D&K, Jaron, Xxxxxx, XX and MVP are sometimes
hereinafter referred to individually as "Borrower" and collectively as
"Borrowers").
Preliminary Statements
A. Lender, D&K, Jaron, Xxxxxx, XX and MVP are parties to that certain
Fifth Amended and Restated Loan and Security Agreement dated as of September 30,
2000, as amended by that certain First Amendment to Fifth Amended and Restated
Loan and Security Agreement, dated as of March 7, 2001, as amended by that
certain Second Amendment to Fifth Amended and Restated Loan and Security
Agreement, dated as of May 7, 2001, as amended by that certain Third Amendment
to the Fifth Amended and Restated Loan and Security Agreement, dated as of June
12, 2001, as amended by that certain Fourth Amendment to Fifth Amended and
Restated Loan and Security Agreement, dated as of June 15, 2001, as amended by
that certain Fifth Amendment to Fifth Amended and Restated Loan and Security
Agreement dated as of June 29, 2001, as amended by that certain Sixth Amendment
to Fifth Amended and Restated Loan and Security Agreement dated as of September
28, 2001, as amended by that certain Seventh Amendment to Fifth Amended and
Restated Loan and Security Agreement, dated as of November 20, 2001, as amended
by that certain Eighth Amendment to Fifth Amended and Restated Loan and Security
Agreement, dated as of January 14, 2002 (as amended, and as hereafter amended,
restated or renewed from time to time, the "Loan Agreement"). Capitalized terms
used herein and not otherwise defined shall have the meanings given to them in
the Loan Agreement.
B. Borrowers and Lender have agreed to restructure and amend the Loans
and the Loan Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Amendments to Loan Agreement. The Loan Agreement and the Appendix to
the Loan Agreement are hereby amended as follows:
(a) Total Credit Facility. Effective July 9, 2002, the
references to $150,000,000.00 on the cover page of the Loan Agreement
and in the unnumbered paragraph following Section 1 are each hereby
deleted and $200,000,000.00 is inserted therefor.
(b) Fee Letter. The definition of "Fee Letter" in Appendix A
[RELATING TO GENERAL DEFINITIONS] is deleted and replaced with the
following:
Fee Letter - that certain fee letter from Borrowers
to Lender dated on or about the date of the Ninth Amendment.
(c) Total Credit Facility. Effective July 9, 2002, the
definition of "Total Credit Facility" in Appendix A [RELATING TO
GENERAL DEFINITIONS] is deleted and replaced with the following:
Total Credit Facility - $200,000,000.
2. Conditions Precedent to Effectiveness of Agreement. This Ninth
Amendment shall not be effective unless and until each of the following
conditions shall have been satisfied in Lender's sole discretion:
(a) Opinion of Counsel. Lender shall have received an opinion
of counsel to Borrowers, in form and substance satisfactory to Lender,
pursuant to which Borrowers' counsel shall opine as to, among other
things, (i) the good standing of Borrowers, (ii) Borrowers'
authorizations of this Ninth Amendment, (iii) the execution and
delivery of this Ninth Amendment, and (iv) the enforceability of the
Loan Agreement as amended by this Ninth Amendment against Borrowers.
(b) Resolutions of the Board or Members. Lender shall have
received a resolution from each of the board of directors or of the
members of each Borrower authorizing the execution and delivery of this
Ninth Amendment.
(c) Officer's Certificate. Borrowers shall have delivered to
Lender an Officer's Certificate in form and content acceptable to
Lender, pursuant to which the chief executive officer of each Borrower
shall have certified certain documents, instruments, agreements and
resolutions to Lender.
(d) Fee Letter. Lender shall have received the Fee Letter
executed by Borrowers and all fees and expenses which are payable
thereunder and under the Loan Agreement.
(e) Amended and Restated Participation Agreement. Lender shall
have received a Third Amendment to Second Amended and Restated
Participation Agreement, fully executed and delivered, in form and
content acceptable to Lender, between and among Lender, U.S. Bank d/b/a
Firstar Bank, N.A., Bank One, Kentucky, N.A., LaSalle Business Credit,
Inc., PNC Business Credit, Inc., and Union Planters Bank, N.A.
3. Representations and Warranties. Borrowers hereby represent and
warrant to Lender as follows:
(a) Recitals. The Recitals in this Ninth Amendment are true
and correct in all respects.
(b) Incorporation of Representations. All representations and
warranties of Borrowers in the Loan Agreement are incorporated herein
in full by this reference and are true and correct as of the date
hereof.
(c) Corporate Power; Authorization. Borrowers have the
organizational power,
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and have been duly authorized by all requisite organizational action,
to execute and deliver this Ninth Amendment and to perform the
obligations hereunder and thereunder. This Ninth Amendment has been
duly executed and delivered by Borrowers.
(d) Enforceability. This Ninth Amendment is the legal, valid
and binding obligation of Borrowers, enforceable against Borrowers in
accordance with its terms.
(e) No Violation. Borrowers' execution, delivery and
performance of this Ninth Amendment does not and will not (i) violate
any law, rule, regulation or court order to which Borrowers are
subject; (ii) conflict with or result in a breach of any Borrower's
Articles of Incorporation, Bylaws, Articles of Organization or
Operating Agreement or any agreement or instrument to which any
Borrower is party or by which it or its properties are bound, or (iii)
result in the creation or imposition of any lien, security interest or
encumbrance on any property of Borrowers, whether now owned or
hereafter acquired, other than liens in favor of Lender.
(f) Obligations Absolute. The obligation of Borrowers to repay
the Loans, together with all interest accrued thereon, is absolute and
unconditional, and there exists no right of setoff or recoupment,
counterclaim or defense of any nature whatsoever.
4. No Claims. Borrowers acknowledge that there are no existing claims,
defenses (personal or otherwise) or rights of set-off or recoupment whatsoever
with respect to any of the Loan Documents. Borrowers agree that this Ninth
Amendment in no way acts as a release or relinquishment of any Liens in favor of
the Lender securing payment of the Obligations.
5. Miscellaneous. Except as expressly set forth herein, there are no
agreements or understandings, written or oral, between any Borrower and Lender
relating to the Loan Agreement and the other Loan Documents that are not fully
and completely set forth herein or therein. Except to the extent specifically
waived or amended herein or in any of the documents, instruments, or agreements
delivered in connection herewith, all terms and provisions of the Loan Agreement
and the other Loan Documents are hereby ratified and reaffirmed and shall remain
in full force and effect in accordance with the respective terms thereof. This
Ninth Amendment may be executed in one or more counterparts, and by different
parties on different counterparts. All such counterparts shall be deemed to be
original documents and together shall constitute one and the same agreement. A
signature of a party delivered by facsimile or other electronic transmission
shall be deemed to be an original signature of such party.
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IN WITNESS WHEREOF, this Ninth Amendment has been executed and
delivered by the duly authorized representatives of the parties as of the date
first above written.
FLEET CAPITAL CORPORATION
By: /s/ XXXXXX X. XXXXXXXXXX
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Xxxxxx X. Xxxxxxxxxx, Senior Vice President
D & K HEALTHCARE RESOURCES, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: SR Vice President & CFO
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JARON, INC.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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XXXXXX DRUG CO.
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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DIVERSIFIED HEALTHCARE, LLC
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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MEDICAL & VACCINE PRODUCTS, INC. d/b/a
DEVICTORIA MEDICAL
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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