JOINDER AND SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT
Exhibit 10.6
JOINDER AND SECOND AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AND SECURITY AGREEMENT
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS JOINDER AND SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY
AGREEMENT, dated as of September 14, 2004 (this
“Amendment”), is entered into by and between
CAPITALSOURCE FINANCE LLC, a Delaware limited liability company, (“Lender”), UNITED STATES
PHARMACEUTICAL GROUP, L.L.C d/b/a NATIONSHEALTH, a Delaware limited liability company and
NATIONSHEALTH HOLDINGS, L.L.C., a Florida limited liability company (jointly and severally,
“Borrower”) and NATIONSHEALTH, INC. (f/k/a MILLSTREAM ACQUISTION CORPORATION), a Delaware
corporation (“Nationshealth”).
WHEREAS, the parties hereto entered into that certain Revolving Credit and Security Agreement
dated as of the 30th day of April, 2004 (the “Original Credit Agreement”) whereby Lender
agreed to make loans, advances and other extensions of credit to Borrower thereunder; and
WHEREAS, Lender and Borrower entered into a certain Amended and Restated Revolving Credit and
Security Agreement dated as of the 29th of June, 2004 (as amended and in effect from
time to time, the “Agreement”) whereby Lender made available to Borrower a separate Overadvance
Facility and permitted Borrower to include its inventory within the Borrowing Base for the
Revolving Facility; and
WHEREAS, Lender and Borrower amended the Agreement in certain respects pursuant to a certain
First Amendment to Amended and Restated Revolving Credit and Security Agreement dated as of the
10th day of August, 2004; and
WHEREAS, on August 31, 2004, Millstream Acquisition Corporation (“MAC”) changed it name to
Nationshealth, Inc.;
WHEREAS, on August 31, 2004, N Merger, LLC, a wholly owned subsidiary of MAC, was merged with
and into NationsHealth Holdings, L.L.C. and as a result of the merger, NationsHealth Holdings,
L.L.C. continued as the surviving limited liability company; and
WHEREAS, as a condition of the Agreement, on or before the date the effective date of the
Merger, Nationshealth is required to become a borrower under the Agreement and join as a party to
the Agreement and the Loan Documents; and
WHEREAS, Lender, Borrower and Nationshealth desire to further amend the Agreement in certain
respects upon the terms and conditions set forth herein to provide for the foregoing; and
WHEREAS, Section 12.8 of the Agreement provides that no modification or amendment of the
Agreement shall be effective unless the same shall be in writing and signed by the parties thereto.
NOW, THEREFORE, in consideration of the premises and other mutual covenants contained herein,
the receipt and sufficiency are hereby acknowledged, Lender, Borrower and Nationshealth agree as
follows:
Section 1. Definitions. Unless otherwise defined herein, all capitalized terms used
and not defined herein shall have the meanings assigned to such terms in the Agreement.
Section 2. Amendments. Lender, Borrower and Nationshealth hereby agree to amend the
Agreement as follows:
The first paragraph of the Agreement is hereby amended by replacing such paragraph in its
entirety with the following:
THIS AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT (the “Agreement”) dated as
of June 29, 2004, is entered into among, UNITED STATES PHARMACEUTICAL GROUP, L.L.C d/b/a
NATIONSHEALTH, a Delaware limited liability company, NATIONSHEALTH HOLDINGS, L.L.C., a Florida
limited liability company and NATIONSHEALTH, INC. f/k/a MILLSTREAM ACQUISITION CORPORATION, a
Delaware corporation (jointly and severally, “Borrower”) and CAPITALSOURCE FINANCE LLC, a Delaware
limited liability company (the “Lender”).
Section 3. Joinder to Agreement. Lender, Borrower and Nationshealth hereby agree
that, as of the date hereof, Nationshealth shall be a party to the Agreement and that by its
execution and delivery of this Amendment it, as a Borrower, does hereby grant, pledge, and assign
to the Lender a first priority security interest in the Collateral in accordance with Section 2.9
of the Agreement. Nationshealth further agrees that from the date hereof and so long as any
Obligations remain outstanding, Nationshealth shall perform, comply with and be subject to and
bound by, jointly and severally, each of the representations, warranties, covenants, agreements,
waivers and other provisions of the Agreement as if Nationshealth were an original signatory
thereof as a Borrower. All references to the term “Borrower”, as used in the Agreement, shall
include Nationshealth.
Section 4. References to Other Loan Documents. Each of the other Loan Documents are
hereby modified in such a manner as to be consistent with all modifications and agreements
contained herein and to the extent that all references therein to and descriptions therein of the
Agreement and the Note shall be deemed to refer to and describe the Agreement, as modified by this
Amendment.
Section 5. Conditions to Effectiveness. This Amendment shall be effective on the date
(the “Effective Date”) upon which the following conditions precedent are satisfied:
(a) Borrower and Nationshealth shall have delivered to Lender an original copy of this
Amendment and each other agreement, document or instrument reasonably requested by the Lender in
connection with this Amendment executed by a duly authorized officer of each such entity, including
an Allonge to the Revolving Note and an Allonge to the Overadvance Note, each in form and substance
reasonably satisfactory to Lender.
(b) In accordance with the terms of Section 2.2(c)(ii) of the Loan Agreement, Lender shall
have received payment in full of the Initial Overadvance created by and relating to the Overadvance
Facility, including any applicable fees, charges or expenses payable to Lender in connection with
the Initial Overadvance.
(c) Lender shall have received copies of governing documents of Nationshealth and a copy of
the resolutions or unanimous consent of the [Board of Directors] of Nationshealth authorizing the
execution, delivery and performance of this Amendment and the transactions
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contemplated thereby attached to which is a certificate of the Secretary of Nationshealth
certifying (A) that such copies of the governing documents and resolutions or consent of or with
respect to Nationshealth are true, complete and accurate copies thereof, have not been amended or
modified since the date of such certificate and are in full force and effect and (B) as to the
incumbency and signature of the Persons executing the Loan Documents, in form and substance
acceptable to Lender.
(d) Lender shall have received a certified copy of a certificate of the Secretary of the State
of Delaware, dated within thirty (30) days before the date hereof, listing the certificate of
incorporation of Nationshealth and each amendment thereto on file in such official’s office and
certifying that (A) such amendments are the only amendments to such certificate of incorporation
and (B) Nationshealth is in good standing in the State of Delaware.
(e) The representations and warranties contained herein and in all other Loan Documents shall
be true and correct.
(f) No Default or Event of Default shall be in existence; and
(g) Lender shall have received all fees, charges and expenses payable to Lender as required by
this Amendment and in connection with this Amendment and the documentation related hereto,
including, but not limited to, legal fees and out-of-pocket costs (including in-house counsel fees
and expenses).
Section 6. Representations and Warranties.
(a) Notwithstanding any other provision of this Amendment, each of Borrower and Nationshealth
hereby (i) confirm and make all of the representations and warranties set forth in the Agreement
and other Loan Documents with respect to Borrower and Nationshealth and this Amendment as of the
date hereof and as of the Effective Date and confirm that they are true and correct and no Default
or Event of Default has occurred and is continuing as of the date hereof and as of the Effective
Date, and (ii) specifically represent and warrant to Lender that it has good and marketable title
to all of its respective Collateral, free and clear of any Lien or security interest in favor of
any other Person (other than Permitted Liens).
(b) Each of Borrower and Nationshealth hereby represent and warrant as of the date of this
Amendment and as of the Effective Date as follows: (i) it is duly incorporated or organized,
validly existing and in good standing under the laws of its jurisdiction of organization; (ii) the
execution, delivery and performance by it of this Amendment, as applicable, are within its powers,
have been duly authorized, and do not contravene (A) as applicable, its articles of organization,
certificate of incorporation, operating agreement, bylaws or other organizational documents, or (B)
any applicable law; (iii) no consent, license, permit, approval or authorization of, or
registration, filing or declaration with any Governmental Authority or other Person, is required in
connection with the execution, delivery, performance, validity or enforceability of this Amendment,
as applicable, by or against it; (iv) this Amendment has been duly executed and delivered by it;
(v) this Amendment constitutes its legal, valid and binding obligations enforceable against it in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally or by general principles of equity; and (vi) after giving effect to this
Amendment, it is not in default under the Agreement and no Default or Event of Default exists, has
occurred or is continuing.
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Section 7. Expenses. Borrower and Nationshealth shall pay all costs and expenses
incurred by Lender or any of its Affiliates, including, without limitation, documentation and
diligence fees and expenses, all search, audit, appraisal, recording, professional and filing fees
and expenses and all other out-of-pocket charges and expenses and reasonable attorneys’ fees and
expenses, in connection with entering into, negotiating, preparing, reviewing and executing this
Amendment contemplated hereby and all related agreements, documents and instruments, and all of the
same, to the extent incurred and not promptly reimbursed by Borrower or Nationshealth, may be
charged to Borrower’s or Nationshealth’s account and shall be part of the Obligations. If Lender
or any of its Affiliates uses in-house counsel for any of the purposes set forth above Borrower
expressly agrees that its Obligations include reasonable charges for such work commensurate with
the fees that would otherwise be charged by outside legal counsel selected by Lender or such
Affiliate in its sole discretion for the work performed.
Section 8. Reference to the Effect on the Agreement. Upon the effectiveness of this
Amendment, (i) each reference in the Agreement to “this Agreement,” “hereunder,” “hereof,” “herein”
or words of similar import shall mean and be a reference to the Agreement as amended by this
Amendment, and (ii) each reference in any other Loan Document to the “Agreement” shall mean and be
a reference to the Agreement as modified by this Amendment. Each reference herein to the Agreement
shall be deemed to mean the Agreement as amended by this Amendment. Except as specifically amended
hereby, the Agreement and all other Loan Documents shall remain in full force and effect and the
terms thereof are expressly incorporated herein and are ratified and confirmed in all respects.
This Amendment is not intended to be or to create, nor shall it be construed as or constitute, a
novation or an accord and satisfaction but shall constitute an amendment of the Agreement. The
parties hereto agree to be bound by the terms and conditions of the Agreement as amended by this
Amendment as though such terms and conditions were set forth herein in full. The execution,
delivery and effectiveness of this Amendment shall not, except as expressly provided in this
Amendment, operate as a waiver of any right, power or remedy of Lender nor preclude the future
exercise of any right, power, or privilege available to Lender whether under the Agreement, the
other Loan Documents or otherwise, nor constitute a waiver of any provision of the Agreement or any
other Loan Document or any other documents, instruments and agreements executed or delivered in
connection therewith or of any Default or Event of Default under any of the foregoing whether
arising before or after the Effective Date or as a result of performance hereunder.
Section 9. Governing Law. This Amendment and the Loan Documents shall be governed by
and construed in accordance with the internal laws of the State of Maryland without giving effect
to its choice of law provisions. Any judicial proceeding against Borrower or Nationshealth with
respect to the Obligations, any Loan Document or any related agreement may be brought in any
federal or state court of competent jurisdiction located in the State of Maryland. By execution
and delivery of this Amendment and each Loan Document to which it is a party, each of Borrower and
Nationshealth (i) accepts the non-exclusive jurisdiction of the aforesaid courts and irrevocably
agrees to be bound by any judgment rendered thereby, (ii) waives personal service of process, (iii)
agrees that service of process upon it may be made by certified or registered mail, return receipt
requested, pursuant to Section 12.5 of the Agreement, (iv) waives any objection to
jurisdiction and venue of any action instituted hereunder and agrees not to assert any defense
based on lack of jurisdiction, venue or convenience, and (v) agrees that this loan was made in
Maryland, that Lender has accepted in Maryland Loan Documents executed by Borrower and
Nationshealth and has disbursed Advances under the Loan Documents in Maryland. Nothing shall
affect the right of Lender to serve process in any manner permitted by law or shall limit the right
of Lender to bring proceedings against Borrower and Nationshealth in the courts of any other
jurisdiction having jurisdiction. Any judicial proceedings against Lender involving, directly
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or indirectly, the Obligations, any Loan Document or any related agreement shall be brought only in
a federal or state court located in the State of Maryland. All parties acknowledge that they
participated in the negotiation and drafting of this Amendment and the Loan Documents and that,
accordingly, no party shall move or petition a court construing this Amendment or the Loan
Documents to construe them more stringently against one party than against any other.
Section 10. Jury Trial. EACH PARTY TO THIS AMENDMENT HEREBY EXPRESSLY WAIVES ANY RIGHT
TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION ARISING UNDER THE LOAN DOCUMENTS OR IN ANY WAY
CONNECTED WITH OR INCIDENTAL TO THE DEALINGS OF THE PARTIES WITH RESPECT TO THE LOAN DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED THEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM
OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS
AMENDMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENTS OF THE PARTIES TO THE WAIVER OF THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY.
Section 11. Headings and Counterparts. The captions in this Amendment are intended
for convenience and reference only and do not constitute and shall not be interpreted as part of
this Amendment and shall not affect the meaning or interpretation of this Amendment. This
Amendment may be executed in one or more counterparts, all of which taken together shall constitute
but one and the same instrument. This Amendment may be executed by facsimile transmission, which
facsimile signatures shall be considered original executed counterparts for all purposes, and each
party to this Amendment agrees that it will be bound by its own facsimile signature and that it
accepts the facsimile signature of each other party to this Amendment.
Section 12. Amendments. This Amendment may not be changed, modified, amended,
restated, waived, supplemented, discharged, canceled or terminated orally or by any course of
dealing or in any other manner other than by the written agreement of Lender and Borrower. This
Amendment shall be considered part of the Agreement for all purposes under the Agreement.
Section 13. Entire Agreement. This Amendment, the Agreement and the other Loan
Documents constitute the entire agreement between the parties with respect to the subject matter
hereof and thereof and supersedes all prior agreements and understandings, if any, relating to the
subject matter hereof and thereof and may not be contradicted by evidence of prior, contemporaneous
or subsequent oral agreements between the parties. There are no unwritten oral agreements between
the parties.
Section 14. Miscellaneous. Whenever the context and construction so require, all
words used in the singular number herein shall be deemed to have been used in the plural, and vice
versa, and the masculine gender shall include the feminine and neuter and the neuter shall include
the masculine and feminine. This Amendment shall inure to the benefit of Lender, all future
holders of any Note, any of the Obligations or any of the Collateral and all Transferees, and each
of their respective successors and permitted assigns. Neither Borrower nor Nationshealth may
assign, delegate or transfer this Amendment or any of its rights or obligations under this
Amendment without the prior written consent of Lender. No rights are intended to be created under
this Amendment for the benefit of any third party donee, creditor or incidental beneficiary of
Borrower, Nationshealth or any Guarantor. Nothing contained in this Amendment
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shall be construed as a delegation to Lender of Nationshealth’s or any Borrower’s or any
Guarantor’s duty of performance, including, without limitation, any duties under any account or
contract in which Lender has a security interest or Lien. This Amendment shall be binding upon
Borrowers, Nationshealth and their respective successors and assigns.
[SIGNATURES APPEAR ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Joinder and Second Amendment to Revolving
Credit and Security Agreement to be executed by their respective officers thereunto duly authorized
as of the date first written above.
| LENDER | CAPITALSOURCE FINANCE LLC, a Delaware limited liability company |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Chief Operating Officer | |||
| BORROWER: | UNITED STATES PHARMACEUTICAL
GROUP, L.L.C. d/b/a NATIONSHEALTH, a Delaware limited liability company |
|||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | CEO | |||
| NATIONSHEALTH HOLDINGS, L.L.C., a Florida limited liability company |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | CEO | |||
| NATIONSHEALTH: | NATIONSHEALTH, INC. f/k/a
MILLSTREAM ACQUISITION CORPORATION, a Delaware corporation |
|||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | CEO | |||
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