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EXHIBIT 4.14
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT, dated as of the ____ day of June,
2001 (this "Amendment"), is made among MATRIA HEALTHCARE, INC., a Delaware
corporation ("Matria"), the Required Lenders (as defined in the Credit Agreement
referred to below), and FIRST UNION NATIONAL BANK, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent").
RECITALS
A. Matria, certain banks and other financial institutions, the
Administrative Agent, and Xxxxxx Trust and Savings Bank, as Co-Agent, are
parties to a Credit Agreement, dated as of January 19, 1999 (as amended, the
"Credit Agreement"), providing for the availability of certain credit
facilities to Matria and certain other Borrowers upon the terms and conditions
set forth therein. Capitalized terms used herein without definition shall have
the meanings given to them in the Credit Agreement.
B. Matria has requested that the Tranche B Lenders (as hereinafter
defined) make available a term loan facility in the aggregate principal amount
of $11,000,000, the proceeds of which will be used, together with proceeds from
a Borrowing of Revolving Loans, to purchase from Xxxxxx Medical Management,
L.L.C., ("Xxxxxx") 7,500 shares of Matria's Series A Preferred Stock and 15,000
shares of Matria's Series B Preferred Stock, pursuant to a Securities Purchase
Agreement, dated as of May 10, 2001, by and among Matria, Xxxxxx, Xxxx X. Xxxxxx
and SZ Investments, L.L.C. (as amended, modified or supplemented from time to
time in accordance with the terms of the Credit Agreement, the "Xxxxxx
Securities Purchase Agreement"), all as more completely set forth therein (the
"Xxxxxx Securities Purchase"). The Tranche B Lenders have agreed to make such
term loans, and the Required Lenders have agreed to amend the Credit Agreement
to provide for such term loans and to make certain other amendments thereto,
upon the terms and conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendments to Credit Agreement.
1.1 Amended Defined Terms.
(a) The definition of "Applicable Margin Percentage" in Section 1.1 of
the Credit Agreement is hereby amended and restated in its entirety as follows:
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"'Applicable Margin Percentage' shall mean, at any time, the applicable
percentage (a) to be added to the Base Rate pursuant to SECTION 2.8 for purposes
of determining the Adjusted Base Rate, (b) to be added to the IBOR Rate pursuant
to SECTION 2.8 for purposes of determining the Adjusted IBOR Rate, and (c) to be
added to the LIBOR Rate pursuant to SECTION 2.8 for purposes of determining the
Adjusted LIBOR Rate, in each case as determined under the following matrices
with reference to the Leverage Ratio and the applicable Class of Loan:
Tranche A Term Loans and Revolving Loans
Applicable Margin
Percentage for
Applicable Margin Foreign Currency
Percentage for Revolving Loans and
Leverage Ratio Base Rate Loans LIBOR Loans
-------------- ----------------- -------------------
Greater than or equal to 3.0 to 1.0 2.250% 3.250%
Greater than or equal to 2.5 to 1.0 but less
than 3.0 to 1.0 2.000% 3.000%
Greater than or equal to 2.0 to 1.0 but less
than 2.5 to 1.0 1.750% 2.750%
Greater than or equal to 1.5 to 1.0 but less
than 2.0 to 1.0 1.500% 2.500%
Less than 1.5 to 1.0 1.250% 2.250%
Tranche B Term Loans
Applicable Margin Applicable Margin
Percentage for Percentage for
Leverage Ratio Base Rate Loans LIBOR Loans
-------------- ----------------- -------------------
Greater than or equal to 3.0 to 1.0 2.500% 3.500%
Greater than or equal to 2.5 to 1.0 but less
than 3.0 to 1.0 2.250% 3.250%
Greater than or equal to 2.0 to 1.0 but less
than 2.5 to 1.0 2.000% 3.000%
Greater than or equal to 1.5 to 1.0 but less
than 2.0 to 1.0 1.750% 2.750%
Less than 1.5 to 1.0 1.500% 2.500%
On each Adjustment Date (as hereinafter defined), the Applicable Margin
Percentage for all Loans shall be adjusted effective as of such date (based upon
the calculation of the Leverage Ratio as of the last day of the fiscal period to
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which such Adjustment Date relates) in accordance with the above matrices;
provided, however, that, notwithstanding the foregoing or anything else
herein to the contrary, if at any time Matria shall have failed to deliver
the financial statements and a Compliance Certificate as required by
SECTION 6.1(a) or SECTION 6.1(b), as the case may be, and SECTION 6.2(a),
then at the election of the Required Lenders, at all times from and
including the date on which such statements and Compliance Certificate are
required to have been delivered to the date on which the same shall have
been delivered, each Applicable Margin Percentage shall be determined in
accordance with the above matrices as if the Leverage Ratio were greater
than or equal to 3.0:1.0 (notwithstanding the actual Leverage Ratio). For
purposes of this definition, "Adjustment Date" shall mean, with respect to
any fiscal period of Matria, the tenth (10th) day (or, if such day is not
a Business Day, on the next succeeding Business Day) after delivery by
Matria in accordance with SECTION 6.1(a) or SECTION 6.1(b), as the case may
be, of (i) financial statements as of the end of and for such fiscal period
and (ii) a duly completed Compliance Certificate with respect to such
fiscal period. Until the first Adjustment Date occurring after the Sixth
Amendment Effective Date, each Applicable Margin Percentage shall be
determined in accordance with the above matrices based upon the Leverage
Ratio as set forth in the Covenant Compliance Worksheet delivered with
respect to the fiscal quarter ended March 31, 2001."
(b) The definition of "Class" in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"'Class,' with respect to any Loan, shall mean and refer to whether
such Loan is a Tranche A Term Loan, a Tranche B Term Loan, a Revolving Loan
or a Swingline Loan, each of which constitutes a Class."
(c) The definition of "Fee Letter" in Section 1.1 of the Credit Agreement
is hereby amended and restated in its entirety as follows:
"'Fee Letter' shall mean the letter from First Union to Matria, dated
December 21, 1998, as supplemented by letter from First Union to Matria
dated June 13, 2001, relating to certain fees payable by Matria in respect
of the transactions contemplated by this Agreement, as further amended,
modified or supplemented from time to time."
(d) The definition of "Loans" in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"'Loans' shall mean any or all of the Tranche A Term Loans, the
Tranche B Term Loans, the Revolving Loans and the Swingline Loans, as the
context may require."
(e) The definition of "Notes" in Section 1.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
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" 'Notes' shall mean any or all of the Tranche A Term Notes, the
Tranche B Term Notes, the Revolving Credit Notes and the Swingline Note, as
the context may require."
1.2 New Defined Terms. The following defined terms are hereby added to
Section 1.1 of the Credit Agreement in proper alphabetical order:
" 'Xxxxxx Securities Purchase' shall have the meaning given to such
term in the recitals to the Sixth Amendment."
" 'Xxxxxx Securities Purchase Agreement' shall have the meaning given
to such term in the recitals to the Sixth Amendment."
" 'Sixth Amendment' shall mean the Sixth Amendment to Credit
Agreement, dated as of June , 2001, among Matria, the Lenders party
thereto, and the Administrative Agent."
" 'Sixth Amendment Effective Date' shall mean the date upon which the
conditions to the effectiveness of the Sixth Amendment set forth in SECTION
3 thereof are satisfied or waived in accordance with their terms."
" 'Tranche A Maturity Date' shall mean, from and after the Sixth
Amendment Effective Date, the 'Term Loan Maturity Date' (within the meaning
of such term under the Credit Agreement immediately prior to giving effect
to the Sixth Amendment)."
" 'Tranche A Term Loans' shall mean, from and after the Sixth
Amendment Effective Date, the 'Term Loans' (within the meaning of such term
under the Credit Agreement immediately prior to giving effect to the Sixth
Amendment)."
" 'Tranche A Term Notes' shall mean, from and after the Sixth
Amendment Effective Date, the 'Term Notes' (within the meaning of such term
under the Credit Agreement immediately prior to giving effect to the Sixth
Amendment)."
" 'Tranche B Lender' shall mean any Lender having a Tranche B Term
Loan Commitment and/or holding outstanding Tranche B Term Loans."
" 'Tranche B Maturity Date' shall mean March 31, 2004."
" 'Tranche B Term Loan Commitment' shall mean, with respect to any
Tranche B Lender at any time, the amount set forth opposite such Lender's
name on SCHEDULE A to the Sixth Amendment or, if such Lender has entered
into one or more Assignment and Acceptances, the amount set forth for such
Lender at such time in the Register maintained by the Administrative Agent
pursuant to SECTION 12.7(b) as such Lender's "Tranche B Term Loan
Commitment," as such amount may be reduced at or prior to such time
pursuant to the terms hereof."
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"'Tranche B Term Loans' shall have the meaning given to such term in
SECTION 2A.1."
"'Tranche B Term Notes' shall mean the promissory notes of Matria in
substantially the form of EXHIBIT B to the Sixth Amendment, together with
any amendments, modifications and supplements thereto, substitutions
therefor and restatements thereof."
1.3 Tranche A Term Loans. Section 2.1(a) of the Credit Agreement is hereby
amended by adding the following at the end thereof:
"From and at all times after the Sixth Amendment Effective Date, all
Term Loans outstanding on the Sixth Amendment Effective Date (but before
giving effect to the Sixth Amendment and the making of the Tranche B Term
Loans) shall, for all purposes of this Agreement and the other Credit
Documents, automatically be deemed to constitute Tranche A Term Loans."
1.4 Tranche A Term Notes.
(a) Section 2.4(a) of the Credit Agreement is hereby amended and restated
in its entirety as follows:
"The Loans made by each Lender shall be evidenced (i) in the case of
Tranche A Term Loans, by a Tranche A Term Note appropriately completed in
substantially the form of EXHIBIT A-1, (ii) in the case of Tranche B Term
Loans, by a Tranche B Term Note appropriately completed in substantially
the form of EXHIBIT B to the Sixth Amendment, (iii) in the case of Dollar
Revolving Loans, by a Dollar Revolving Credit Note appropriately completed
in substantially the form of EXHIBIT A-2, (iv) in the case of Foreign
Currency Revolving Loans, by a Foreign Currency Revolving Credit Note
appropriately completed in substantially the form of EXHIBIT A-3, and (v)
in the case of Swingline Loans, by a Swingline Note appropriately
completed in substantially the form of EXHIBIT A-4. From and at all times
after the Sixth Amendment Effective Date, all Term Notes outstanding
on the Sixth Amendment Effective Date (but before giving effect to the
Sixth Amendment and the making of the Tranche B Term Loans) shall, for all
purposes of this Agreement and the other Credit Documents, automatically
be deemed to constitute Tranche A Term Notes."
(b) EXHIBIT A-1 to the Credit Agreement is hereby replaced in its entirety
by EXHIBIT A hereto.
1.5 Mandatory Prepayments. Clause (i) of Section 2.6(h) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"(i) first, to reduce the outstanding principal amount of the Tranche
A Term Loans and the Tranche B Term Loans on a pro rata basis, with such
reduction to be applied to the scheduled principal payments on the Tranche
A Term Loans and the Tranche B Term Loans (as set forth in SECTIONS 2.6(a)
and
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2A.5(a), respectively) on a pro rata basis according to the amount of each
such scheduled payment,"
1.6 Voluntary Prepayments. The first sentence of Section 2.7(b) of the
Credit Agreement is hereby amended and restated in its entirety as follows:
"Each prepayment of the Term Loans made pursuant to subsection (a)
above shall be applied to reduce the outstanding principal amount of the
Tranche A Term Loans and the Tranche B Term Loans on a pro rata basis, with
such reduction to be applied to the scheduled principal payments on the
Tranche A Term Loans and the Tranche B Term Loans (as set forth in SECTIONS
2.6(a) and 2A.5(a), respectively) on a pro rata basis according to the
amount of each such scheduled payment."
1.7 Interest Periods.
(a) Clause (v) of Section 2.10 of the Credit Agreement is hereby amended
and restated in its entirety as follows:
"(v) (1) no Interest Period may be selected with respect to the
Tranche A Term Loans that would end after a scheduled date for repayment of
principal of the Tranche A Term Loans occurring on or after the first day
of such Interest Period unless, immediately after giving effect to such
selection, the aggregate principal amount of Tranche A Term Loans that are
Base Rate Loans or that have Interest Periods expiring on or before such
principal repayment date equals or exceeds the principal amount required to
be paid on such principal repayment date; and (2) no Interest Period may be
selected with respect to the Tranche B Term Loans that would end after a
scheduled date for repayment of principal of the Tranche B Term Loans
occurring on or after the first day of such Interest Period unless,
immediately after giving effect to such selection, the aggregate principal
amount of Tranche B Term Loans that are Base Rate Loans or that have
Interest Periods expiring on or before such principal repayment date equals
or exceeds the principal amount required to be paid on such principal
repayment date;"
(b) Clause (vi) of Section 2.10 of the Credit Agreement is hereby amended
and restated in its entirety as follows:
"(vi) the Borrower may not select any Interest Period that expires
after (1) the Tranche A Maturity Date (with respect to LIBOR Loans that are
Tranche A Term Loans), (2) the Tranche B Maturity Date (with respect to
LIBOR Loans that are Tranche B Term Loans), or (3) the Revolving Credit
Maturity Date (with respect to Fixed Rate Loans that are Revolving Loans);
and"
1.8 Use of Proceeds. Section 2.14(b) of the Credit Agreement is hereby
amended by adding the following at the end thereof:
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"; provided that proceeds of Revolving Loans may be used to finance a
portion of the purchase price of the Xxxxxx Securities Purchase so long as,
immediately after giving effect to the Borrowing of such Revolving Loans,
the aggregate principal outstanding Dollar Amount of Revolving Loans does
not exceed $40,000,000."
1.9 Tranche B Term Loans. The following is hereby added as a new Article
IIA to the Credit Agreement immediately after Section 2.18:
"ARTICLE IIA
TRANCHE B TERM LOANS
2A.1 Commitment. Each Tranche B Lender severally agrees, subject to
and on the terms and conditions of this Agreement, to make a loan (each, a
"Tranche B Term Loan," and collectively, the "Tranche B Term Loans") to
Matria on the Sixth Amendment Effective Date in a principal amount not to
exceed its Tranche B Term Loan Commitment. No Tranche B Term Loans shall be
made at any time after the Sixth Amendment Effective Date. To the extent
repaid, Tranche B Term Loans may not be reborrowed.
2A.2 Borrowing.
(a) In order to make the Borrowing of the Tranche B Term Loans,
Matria will give the Administrative Agent an appropriately completed Notice
of Borrowing not later than 11:00 a.m., Charlotte time, at least one
Business Day prior thereto; provided, however, that such request may, at
the discretion of the Administrative Agent, be given later than the time
specified hereinabove; and provided further that (i) the aggregate
principal amount of the Borrowing of the Tranche B Term Loans shall be in
the amount of the aggregate Tranche B Term Loan Commitments and (ii) the
Tranche B Term Loans shall be made initially as Base Rate Loans. Upon its
receipt of the Notice of Borrowing, the Administrative Agent will promptly
notify each Tranche B Lender of the proposed Borrowing.
(b) Not later than 1:00 p.m., Charlotte time, on the requested
Borrowing Date (which shall be the Sixth Amendment Effective Date), each
Tranche B Lender will make available to the Administrative Agent at its
office referred to in SECTION 12.5 (or at such other location as the
Administrative Agent may designate) an amount, in Dollars and in
immediately available funds, equal to the amount of the Tranche B Term Loan
to be made by such Lender. To the extent the Tranche B Lenders have made
such amounts available to the Administrative Agent as provided hereinabove,
the Administrative Agent will make the aggregate of such amounts available
to Matria in accordance with SECTION 2.3(a) and in like funds as received
by the Administrative Agent.
2A.3 Tranche B Term Notes. Each Tranche B Term Note issued to a
Tranche B Lender shall (i) be executed by Matria, (ii) be payable to the
order of such Lender, (iii) be dated as of the Sixth Amendment Effective
Date (or, in the
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case of a Tranche B Term Note issued after the Sixth Amendment Effective Date,
dated the effective date of the applicable Assignment and Acceptance), (iv) be
in a stated principal amount equal to such Lender's Tranche B Term Loan
Commitment (or, in the case of a Tranche B Term Note issued after the Sixth
Amendment Effective Date, in an amount equal to the unpaid principal amount of
such Lender's Tranche B Term Loan), (v) bear interest in accordance with the
provisions of SECTION 2.8, as the same may be applicable from time to time to
the Tranche B Term Loan made by such Lender, and (vi) be entitled to all of the
benefits of this Agreement and the other Credit Documents and subject to the
provisions hereof and thereof.
2A.4 Termination of Tranche B Term Loan Commitments. The Tranche B
Term Loan Commitments shall be automatically and permanently terminated on the
Sixth Amendment Effective Date (or, if earlier, on July 31, 2001), unless the
Tranche B Term Loans have been made in full on or prior to such date.
2A.5 Scheduled Repayments.
(a) Except to the extent due or paid sooner pursuant to the
provisions of this Agreement, Matria will repay the aggregate outstanding
principal of the Tranche B Term Loans in the amounts and on the dates set forth
below:
Date Payment Amount
---- --------------
October 1, 2001 $ 864,406
January 1, 2002 $ 864,406
April 1, 2002 $ 864,406
July 1, 2002 $ 864,406
October 1, 2002 $ 864,406
January 1, 2003 $ 864,407
April 1, 2003 $ 864,407
July 1, 2003 $1,237,289
October 1, 2003 $1,237,289
January 1, 2004 $1,237,289
March 31, 2004 $1,237,289
(b) Except to the extent due or paid sooner pursuant to the
provisions of this Agreement, the aggregate outstanding principal of the Tranche
B Term Loans shall be due and payable in full on the Tranche B Maturity Date.
2A.6 Use of Proceeds. The proceeds of the Tranche B Term Loans shall
be used solely to finance all or a portion of the purchase price of the Xxxxxx
Securities Purchase."
1.10 Leverage Ratio. Section 7.1 of the Credit Agreement is hereby
amended and restated in its entirety as follows:
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"7.1 Leverage Ratio. Matria will not permit the Leverage Ratio as
of the last day of any fiscal quarter, beginning with the fiscal quarter
ending June 30, 2001, to be greater than 2.75 : 1.0."
1.11 Senior Leverage Ratio. Section 7.2 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"7.2 Senior Leverage Ratio. Matria will not permit the Senior
Leverage Ratio as of the last day of any fiscal quarter, beginning with the
fiscal quarter ending June 30, 2001, to be greater than 2.35 : 1.0."
1.12 Restricted Payments. Clause (iv) of Section 8.6(a) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
"(iv) Matria (A) may consummate the Xxxxxx Securities Purchase and
(B) may additionally redeem (y) shares of the Series A Preferred Stock
pursuant to the provisions of paragraph 6(b) of paragraph A of the
Certificate of Designations for the Series A Preferred Stock or (z) shares
of the Series B Preferred Stock pursuant to the provisions of paragraph
6(b) of paragraph A of the Certificate of Designations for the Series B
Preferred Stock, but in either case under this clause (B) only so long as
(1) not less than thirty (30) days prior to the proposed redemption date,
the Administrative Agent shall have received written notice from Matria
stating that an event has occurred that requires such redemption and
describing such event, and (2) the Required Lenders (or the Administrative
Agent on their behalf) shall have delivered to Matria a written instrument
consenting to their sole discretion to the event giving rise to such
redemption requirement and waiving any rights under this Agreement arising
therefrom;
1.13 General. Notwithstanding the revised definitions of "Tranche A
Maturity Date" and "Tranche A Term Loans" set forth in Section 1.2 above:
(a) The references to "Term Loan Maturity Date" in Section 12.6(a) and
12.7(d) of the Credit Agreement shall be deemed references to either or both the
Tranche A Maturity Date and the Tranche B Maturity Date, as the context
requires; and
(b) The references to "Term Loans" in the definition of "Consolidated
Fixed Charges" and in Sections 2.2(a)(i), 2.3(b), 2.5(b), 2.6(h) (second
sentence), 2.7(a), 2.10(opening paragraph), 12.7(a) and 12.7(c) shall be deemed
references to either or both the Tranche A Term Loans and the Tranche B Term
Loans, as the context requires.
2. Representations and Warranties. To induce the Administrative Agent
and the Lenders to enter into this Amendment and to induce the Tranche B Lenders
to make the Tranche B Term Loans, Matria represents and warrants to the
Administrative Agent and the Lenders as follows:
(a) Organization and Power. Each of Matria and its Subsidiaries (i) is a
corporation or limited liability company duly organized, validly existing and in
good standing under the laws
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of the jurisdiction of its organization, (ii) has the full corporate or limited
liability company power and authority to execute, deliver and perform this
Amendment and the other Credit Documents contemplated thereby (collectively,
the "Sixth Amendment Credit Documents") to which it is or will be a party, to
own and hold its property and to engage in its business as presently conducted,
and (iii) is duly qualified to do business as a foreign corporation or limited
liability company and is in good standing in each jurisdiction where the nature
of its business or the ownership of its properties requires it to be so
qualified, except where the failure to be so qualified would not, individually
or in the aggregate, be reasonably likely to have a Material Adverse Effect.
(b) Authorization; Enforceability. Each of Matria and its Subsidiaries
has taken, or on the Sixth Amendment Effective Date will have taken, all
necessary corporate or limited liability company action to execute, deliver and
perform each of the Sixth Amendment Credit Documents to which it is or will be
a party, and has, or on the Sixth Amendment Effective Date (or any later date
of execution and delivery) will have, validly executed and delivered each of
the Sixth Amendment Credit Documents to which it is or will be a party. Each of
the Credit Agreement (after giving effect to this Amendment) and this Amendment
constitutes, and each of the other Sixth Amendment Credit Documents upon
execution and delivery will constitute, the legal, valid and binding obligation
of each of Matria and its Subsidiaries that is a party hereto or thereto,
enforceable against it in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally, by general equitable
principles or by principles of good faith and fair dealing.
(c) No Violation. The execution, delivery and performance by each of
Matria and its Subsidiaries of this Amendment and each of the other Sixth
Amendment Credit Documents to which it is or will be a party, and compliance by
it with the terms hereof and thereof, do not and will not (i) violate any
provision of its articles or certificate of incorporation or organization,
bylaws or operating agreement or contravene any other Requirement of Law
applicable to it, (ii) conflict with, result in a breach of or constitute (with
notice, lapse of time or both) a default under any indenture, agreement or other
instrument to which it is a party, by which it or any of its properties is bound
or to which it is subject, (iii) result in a Limitation on any Licenses
applicable to the business, operations or properties of Matria or any of its
Subsidiaries or adversely affect the ability of Matria or any of its
Subsidiaries to participate in any Third Party Payor Arrangement, of (iv) except
for the Liens granted in favor of the Administrative Agent pursuant to the
Security Documents, result in or require the creation or imposition of any Lien
upon any of its properties or assets.
(d) Governmental and Third-Party Authorization. No consent, approval,
authorization or other action by, notice to, or registration or filing with, any
Governmental Authority or other Person is or will be required as a condition to
or otherwise in connection with the due execution, delivery and performance by
each of Matria and its Subsidiaries of this Amendment or any of the other Sixth
Amendment Credit Documents to which it is or will be a party or the legality,
validity or enforceability hereof or thereof.
(e) Litigation. There are no actions, investigations, suits or proceedings
pending or, to the knowledge of Matria, threatened, at law, in equity or in
arbitration, before any court, other
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Governmental Authority or other Person, (i) against or affecting Matria, any of
its Subsidiaries or any of their respective properties that would, if adversely
determined, be reasonably likely to have a Material Adverse Effect, or (ii)
with respect to this Amendment or any of the other Credit Documents.
(f) Subsidiaries. SCHEDULE B sets forth a list, as of the Sixth Amendment
Effective Date, of all of the Subsidiaries of Matria and, as to each such
Subsidiary, the percentage ownership (direct and indirect) of Matria in each
class of its capital stock and each direct owner thereof, and separately
identifies each such Subsidiary that is an Inactive Subsidiary. Except for the
shares of capital stock expressly indicated on SCHEDULE B, there are no shares
of capital stock, warrants, rights, options or other equity securities, or
other Capital Stock of any Subsidiary of Matria outstanding or reserved for any
purpose. All outstanding shares of capital stock of each Subsidiary of Matria
are duly and validly issued, fully paid and nonassessable. Except as set forth
on SCHEDULE B, as of the Sixth Amendment Effective Date, neither Matria nor any
Subsidiary is engaged in any joint venture, partnership or similar arrangement
with any other Person. As of the Sixth Amendment Effective Date, the aggregate
face amount of all accounts receivable owned by Inactive Subsidiaries does
not exceed $500,000.
(g) Solvency. Each of Matria and its Subsidiaries, after giving effect to
the consummation of the transactions contemplated by this Amendment, (i) has
capital sufficient to carry on its businesses as conducted and as proposed to
be conducted, (ii) has assets with a fair saleable value, determined on a going
concern basis, (y) not less than the amount required to pay the probable
liability on its existing debts as they become absolute and matured and (z)
greater than the total amount of its liabilities (including identified
contingent liabilities, valued at the amount that can reasonably be expected to
become absolute and matured), and (iii) does not intend to, and does not believe
that it will, incur debts or liabilities beyond its ability to pay such debts
and liabilities as they mature.
(h) No Material Adverse Change. There has been no Material Adverse Change
since December 31, 2000, and there exists no event, condition or state of facts
that could reasonably be expected to result in a Material Adverse Change.
(i) Other Representations and Warranties. Each of the representations and
warranties contained in the Credit Agreement and in the other Credit Documents
is true and correct on and as of the date hereof with the same effect as if made
on and as of the date hereof (except to the extent any such representation or
warranty is expressly stated to have been made as of a specific date, in which
case such representation or warranty is true and correct as of such date).
(j) No Default. No Default or Event of Default has occurred and is
continuing.
3. Conditions of Effectiveness, Borrowing. The effectiveness of this
Amendment and the obligation of each Tranche B Lender to make Tranche B Term
Loans on the Sixth Amendment Effective Date are subject to the satisfaction of
the following conditions precedent:
(a) The Administrative Agent shall have received the following, each dated
as of the Sixth Amendment Effective Date (unless otherwise specified):
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(i) a Tranche B Term Note for each Tranche B Lender, in the
amount of such Lender's Tranche B Term Loan Commitment, duly completed
in accordance with the relevant provisions of SECTION 2A.3 of the
Credit Agreement and executed by Matria;
(ii) a Confirmation of Credit Documents, in substantially the
form of EXHIBIT C hereto, duly completed and executed by Matria and
each of its Domestic Subsidiaries (other than Foreign Subsidiaries and
Inactive Subsidiaries, but including Q Liquidation Corp.("QLC")); and
(iii) the favorable opinions of (A) Xxxxxxxx Xxxxxxx LLP, special
counsel to Matria, and (B) Xxxxxxx X. XxXxx, general counsel of
Matria, in each case addressed to the Administrative Agent and the
Lenders, addressing such matters as the Administrative Agent or any
Lender may reasonably request and in form and substance satisfactory
to the Administrative Agent and each Lender.
(b) The Administrative Agent shall have received a certificate, signed by
the president, the chief executive officer or the chief financial officer of
Matria, in form and substance satisfactory to the Administrative Agent,
certifying that (i) all representations and warranties of Matria contained in
this Amendment and the other Credit Documents are true and correct as of the
Sixth Amendment Effective Date, both immediately before and after giving effect
to the consummation of the transactions contemplated hereby, the making of the
Loans on the Sixth Amendment Effective Date and the application of the proceeds
thereof, (ii) no Default or Event of Default has occurred and is continuing,
both immediately before and after giving effect to the consummation of the
transactions contemplated hereby, the making of the Loans on the Sixth Amendment
Effective Date and the application of the proceeds thereof, (iii) both
immediately before and after giving effect to the consummation of the
transactions contemplated hereby, the making of the Loans on the Sixth Amendment
Effective Date and the application of the proceeds thereof, no Material Adverse
Change has occurred since December 31, 2000, and there exists no event,
condition or state of facts that could reasonably be expected to result in a
Material Adverse Change, and (iv) all conditions to the effectiveness of this
Amendment, and to the extensions of credit hereunder and under the Credit
Agreement on the Sixth Amendment Effective Date, set forth in this Section and
in SECTION 4.2 of the Credit Agreement have been satisfied or waived as required
hereunder and thereunder.
(c) The Administrative Agent shall have received a certificate of the
secretary or an assistant secretary of each of Matria and its Subsidiaries
(other than Foreign Subsidiaries and Inactive Subsidiaries, but including QLC),
in form and substance satisfactory to the Administrative Agent, certifying as
follows:
(i) in the case of Matria, (x) that attached thereto is a true
and complete copy of its certificate of incorporation and all
amendments thereto, certified as of a recent date by the Secretary of
State of Delaware, and that the same has not been amended since the
date of such certification, (ii) that attached thereto is a true and
complete copy of its bylaws as then in effect and as in effect at all
times from the date on which the resolutions referred to in clause
(iii) below were adopted to and including the date of such
certificate, and (iii) that attached
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thereto is a true and complete copy of resolutions adopted by its
board of directors authorizing the execution, delivery and performance
of this Amendment and the other Sixth Amendment Credit Documents to
which it is a party, and as to the incumbency and genuineness of the
signature of each officer of Matria executing this Amendment or any of
such other Credit Documents, and attaching all such copies of the
documents described above; and
(ii) in the case of each such Subsidiary of Matria, (x) that
since the Closing Date, there has been no amendment to or restatement
of its articles of certificate of incorporation or organization as
certified and delivered to the Administrative Agent on the Closing
Date, (ii) that since the Closing Date, there has been no amendment to
its bylaws or operating agreement as certified and delivered to the
Administrative Agent on the Closing Date, and (iii) that attached
thereto is a true and complete copy of resolutions adopted by its
board of directors (or the board of directors of its managing member),
as the case may be, authorizing the execution, delivery and
performance of the Sixth Amendment Credit Documents to which it is a
party, and as to the incumbency and genuineness of the signature of
each officer of such Subsidiary (or its managing member), as the case
may be, executing any of such Credit Documents, and attaching a copy
of such resolutions.
(d) The Administrative Agent shall have received (i) a certificate as of
a recent date of the good standing of each of Matria and its Subsidiaries
(other than Foreign Subsidiaries and Inactive Subsidiaries, but including QLC)
under the laws of its jurisdiction of organization, from the Secretary of State
(or comparable Governmental Authority) of such jurisdiction, and (ii) a
certificate as of a recent date of the qualification of Matria to conduct
business as a foreign corporation in the State of Georgia, from the Secretary
of State of Georgia.
(e) All aspects of the structure and documentation of the Xxxxxx
Securities Purchase (including the Xxxxxx Securities Purchase Agreement), all
legal matters and documentation relating to the credit facilities provided for
hereby, and all corporate or other proceedings incident to the transactions
contemplated hereby, shall be satisfactory in form and substance to the
Administrative Agent.
(f) All approvals, permits and consents of any Governmental Authorities
or other Persons required in connection with the execution and delivery of this
Amendment and the other Sixth Amendment Credit Documents and the consummation
of the transactions contemplated hereby shall have been obtained, without the
imposition of conditions that are not acceptable to the Administrative Agent,
and all related filings, if any, shall have been made, and all such approvals,
permits, consents and filings shall be in full force and effect and the
Administrative Agent shall have received such copies thereof as it shall have
requested; all applicable waiting periods shall have expired without any
adverse action being taken by any Governmental Authority having jurisdiction;
and no action, proceeding, investigation, regulation or legislation shall have
been instituted, threatened or proposed before, and no order, injunction or
decree shall have been entered by, any court or other Governmental Authority,
in each case to enjoin, restrain or prohibit, to obtain substantial damages in
respect of, or that is otherwise related to or arises out of, this Amendment,
any of the other Credit Documents or the consummation of the transactions
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contemplated hereby, or that, in the opinion of the Administrative Agent, could
reasonably be expected to have a Material Adverse Effect.
(g) Since the date thereof, the Xxxxxx Securities Purchase Agreement
shall not have been amended, modified or supplemented, nor any condition or
provision thereof waived, other than as approved by the Administrative Agent
and shall be in full force and effect; Matria shall have duly complied with and
performed all of its agreements and conditions set forth in the Xxxxxx
Securities Purchase Agreement required to be complied with or performed by it
on or prior to the closing date thereunder (unless such compliance is waived or
deferred by the parties thereto and approved by the Administrative Agent); and
the Administrative Agent shall have received evidence satisfactory to it that,
concurrently with the making of the Loans hereunder on the Sixth Amendment
Effective Date, the Xxxxxx Securities Purchase shall be consummated in
accordance with the terms of the Xxxxxx Securities Purchase Agreement and in
compliance with all applicable Requirements of Law.
(h) The Administrative Agent shall have received evidence in form and
substance satisfactory to it that all filings, recordings, registrations and
other actions (including, without limitation, the filing of duly completed and
executed UCC-1 financing statements in each jurisdiction listed on Annex A to
the Security Agreement) necessary or, in the reasonable opinion of the
Administrative Agent, desirable to perfect the Liens created by the Security
Documents (including in compliance with Revised Article 9 of the Uniform
Commercial Code, whether or not then effective in all applicable jurisdictions)
shall have been completed, or arrangements satisfactory to the Administrative
Agent for the completion thereof shall have been made.
(i) Since December 31, 2000, both immediately before and after giving
effect to the consummation of the transactions contemplated by this Amendment,
there shall not have occurred any Material Adverse Change or any event,
condition or state of facts that could reasonably be expected to result in a
Material Adverse Change.
(j) Matria shall have paid all fees and expenses of the Administrative
Agent, the Arranger and the Lenders required hereunder, under the Fee Letter or
under any other Credit Document to be paid on or prior to the Sixth Amendment
Effective Date (including fees and expenses of counsel) in connection with this
Amendment and the transactions contemplated hereby.
(k) The Administrative Agent shall have received certificates of
insurance evidencing the insurance coverages required under the Security
Agreement and naming the Administrative Agent as loss payee or additional
insured, as its interests may appear.
(l) The Administrative Agent shall have received written instructions
from an Authorized Officer, including wire transfer information, directing the
payment of the proceeds of the Loans to be made on the Sixth Amendment
Effective Date.
(m) The conditions precedent to the making of the Loans on the Sixth
Amendment Effective Date set forth in SECTION 4.2 of the Credit Agreement shall
have been satisfied or waived as required thereunder.
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(n) The Administrative Agent and each Lender shall have received such
other documents, certificates, opinions and instruments in connection with the
transactions contemplated hereby as it shall have reasonably requested.
4. Tranche A Term Notes. In the event that any portion of the Tranche A
Term Loans remains outstanding on July 15, 2001, Matria will thereupon execute
and deliver to each Lender holding outstanding Tranche A Term Loans a new
Tranche A Term Note appropriately completed in substantially the form of EXHIBIT
A hereto.
5. Effect of Amendment. From and after the date hereof, all references to
the Credit Agreement set forth in any other Credit Document or other agreement
or instrument shall, unless otherwise specifically provided, be references to
the Credit Agreement as amended by this Amendment and as may be further amended,
modified, restated or supplemented from time to time. This Amendment is limited
as specified and shall not constitute or be deemed to constitute an amendment,
modification or waiver of any provision of the Credit Agreement except as
expressly set forth herein. Except as expressly amended hereby, the Credit
Agreement shall remain in full force and effect in accordance with its terms.
6. Governing Law. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of Georgia (without regard to
the conflicts of law provisions thereof).
7. Severability. To the extent any provision of this Amendment is
prohibited by or invalid under the applicable law of any jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or
invalidity and only in any such jurisdiction, without prohibiting or
invalidating such provision in any other jurisdiction or the remaining
provisions of this Amendment in any jurisdiction.
8. Successors and Assigns. This Amendment shall be binding upon, inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto.
9. Construction. The headings of the various sections and subsections of
this Amendment have been inserted for convenience only and shall not in any way
affect the meaning or construction of any of the provisions hereof.
10. Counterparts. This Amendment may be executed in any number of counter-
parts and by different parties hereto on separate counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the date first above written.
/s/ MATRIA HEALTHCARE, INC.
/s/ FIRST UNION NATIONAL BANK, as
Administrative Agent and as Lender
/s/ XXXXXX TRUST AND SAVINGS BANK,
as Co-Agent and as Lender
/s/ BANKERS TRUST COMPANY
/s/ FINOVA CAPITAL CORPORATION
(signatures continued)
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/s/ LASALLE BANK NATIONAL ASSOCIATION
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Schedule A
Tranche B Term Loan Commitments
First Union National Bank $5,500,000.00
Xxxxxx Trust and Savings Bank $5,500,000.00
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Exhibit A
EXHIBIT A-1
Borrower's Taxpayer Identification No. 00-0000000
FORM OF
TRANCHE A TERM NOTE
$__________ ___________,20___
Charlotte, North Carolina
FOR VALUE RECEIVED, MATRIA HEALTHCARE, INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of
______________________________ (the "Lender"), at the offices of First
Union National Bank (the "Administrative Agent") located at One First Union
Center, 301 South College Street, Charlotte, North Carolina (or at such other
place or places as the Administrative Agent may designate), at the times and in
the manner provided in the Credit Agreement, dated as of January 19, 1999 (as
amended, modified or supplemented from time to time, the "Credit Agreement"),
among the Borrower, the other borrowers from time to time parties thereto, the
Lenders from time to time parties thereto, and First Union National Bank, as
Administrative Agent, the principal sum of
______________________________ DOLLARS ($_________), under the terms and
conditions of this promissory note (this "Tranche A Term Note") and the Credit
Agreement. The defined terms in the Credit Agreement are used herein with the
same meaning. The Borrower also unconditionally promises to pay interest on the
aggregate unpaid principal amount of this Tranche A Term Note at the rates
applicable thereto from time to time as provided in the Credit Agreement.
This Tranche A Term Note is one of a series of Tranche A Term Notes
referred to in the Credit Agreement and is issued to evidence the Tranche A
Term Loans made by the Lender pursuant to the Credit Agreement. All of the
terms, conditions and covenants of the Credit Agreement are expressly made a
part of this Tranche A Term Note by reference in the same manner and with the
same effect as if set forth herein at length, and any holder of this Tranche A
Term Note is entitled to the benefits of and remedies provided in the Credit
Agreement and the other Credit Documents. Reference is made to the Credit
Agreement for provisions relating to the interest rate, maturity, payment,
prepayment and acceleration of this Tranche A Term Note. This Tranche A Term
Note is hereby substituted for and replaces, as to the Lender, the Term Note
dated _____________ from the Borrower to the Lender in the original principal
amount of
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$__________ (the "Replaced Note"); provided, however, that the Borrower
acknowledges and agrees that, except as expressly provided by the terms of this
Tranche A Term Note (including the original principal amount hereof), the
substitution for and replacement of the Replaced Note by this Tranche A Term
Note shall not extinguish, discharge, operate as a novation of, or otherwise
affect any of the Borrower's obligations to the Lender under the Credit
Agreement, whether or not evidenced by the Replaced Note, including, without
limitation, the Borrower's obligation to pay interest accrued prior to the date
hereof under the Replaced Note.
In the event of an acceleration of the maturity of this Tranche A Term
Note, this Tranche A Term Note shall become immediately due and payable,
without presentation, demand, protest or notice of any kind, all of which are
hereby waived by the Borrower.
In the event this Tranche A Term Note is not paid when due at any stated
or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable
attorneys' fees to the extent actually incurred.
This Tranche A Term Note shall be governed by and construed in accordance
with the internal laws and judicial decisions of the State of Georgia. The
Borrower hereby submits to the nonexclusive jurisdiction and venue of the
federal and state courts located in Xxxx County, Georgia and in Xxxxxx County,
Georgia, although the Lender shall not be limited to bringing an action in such
courts.
In WITNESS WHEREOF, the Borrower has caused this Tranche A Term Note to be
executed under seal by its duly authorized corporate officer as of the day and
year first above written.
MATRIA HEALTHCARE, INC.
By: __________________________________
Title: _______________________________
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Exhibit B
Borrower's Taxpayer Identification No. 00-0000000
FORM OF
TRANCHE B TERM NOTE
$ ____________ _________________, 20__
Charlotte, North Carolina
FOR VALUE RECEIVED, MATRIA HEALTHCARE, INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of
__________________ (the "Lender"), at the offices of First Union National
Bank (the "Administrative Agent") located at One First Union Center, 301 South
College Street, Charlotte, North Carolina (or at such other place or places as
the Administrative Agent may designate), at the times and in the manner
provided in the Credit Agreement, dated as of January 19, 1999 (as amended,
modified or supplemented from time to time, the "Credit Agreement"), among the
Borrower, the other borrowers from time to time parties thereto, the Lenders
from time to time parties thereto, and First Union National Bank, as
Administrative Agent, the principal sum of
__________________ DOLLARS ($ __________), under the terms and conditions
of this promissory note (this "Tranche B Term Note") and the Credit Agreement.
The defined terms in the Credit Agreement are used herein with the same
meaning. The Borrower also unconditionally promises to pay interest on the
aggregate unpaid principal amount of this Tranche B Term Note at the rates
applicable thereto from time to time as provided in the Credit Agreement.
This Tranche B Term Note is one of a series of Tranche B Term Notes
referred to in the Credit Agreement and is issued to evidence the Tranche B
Term Loans made by the Lender pursuant to the Credit Agreement. All of the
terms, conditions and covenants of the Credit Agreement are expressly made a
part of this Tranche B Term Note by reference in the same manner and with the
same effect as if set forth herein at length, and any holder of this Tranche B
Term Note is entitled to the benefits of and remedies provided in the Credit
Agreement and the other Credit Documents. Reference is made to the Credit
Agreement for provisions relating to the interest rate, maturity, payment,
prepayment and acceleration of this Tranche B Term Note.
In the event of an acceleration of the maturity of this Tranche B Term
Note, this Tranche B Term Note shall become immediately due and payable,
without presentation, demand, protest or notice of any kind, all of which are
hereby waived by the Borrower.
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In the event this Tranche B Term Note is not paid when due at any stated
or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable
attorneys' fees to the extent actually incurred.
This Tranche B Term Note shall be governed by and construed in accordance
with the internal laws and judicial decisions of the State of Georgia. The
Borrower hereby submits to the nonexclusive jurisdiction and venue of the
federal and state courts located in Xxxx County, Georgia and in Xxxxxx County,
Georgia, although the Lender shall not be limited to bringing an action in such
courts.
IN WITNESS WHEREOF, the Borrower has caused this Tranche B Term Note to be
executed under seal by its duly authorized corporate officer as of the day and
year first above written.
MATRIA HEALTHCARE, INC.
By: ___________________________________
Title: ________________________________
