THIRD AMENDMENT AND WAIVER TO
AMENDED AND RESTATED LOAN AGREEMENT
Third Amendment and Waiver (this "Amendment") entered into as of
November 14, 2003 between INTEGRAMED AMERICA, INC. (the "Borrower") and FLEET
NATIONAL BANK (the "Bank").
WHEREAS, the Borrower and the Bank are parties to an Amended and
Restated Loan Agreement dated as of September 28, 2001, as amended by a First
Amendment thereto dated as of September 16, 2002 and a Second Amendment dated as
of July 31, 2003 (as so amended, the "Agreement"); and
WHEREAS, the Borrower has requested that the Bank amend and waive, and
the Bank has agreed to amend and waive, certain provisions of the Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. All capitalized terms used herein, unless otherwise defined herein, have the
same meanings provided therefor in the Agreement.
2. The Agreement is hereby amended as follows:
(a) The following definitions set forth in Section 1.1 of the Agreement are
amended to read in their entirety as follows:
"Acquisition" shall mean the acquisition by purchase or
otherwise of (i) the business or assets of or Capital Stock of another
Person and/or (ii) of the right to manage and/or service certain
aspects of the business of a Practice Group, whether pursuant to a
Management Agreement or otherwise.
"Permitted Acquisition" shall mean any Acquisition that
satisfies each of the following conditions: (i) the entire business or
assets acquired or business of the entity whose Capital Stock is
acquired shall be substantially similar to the Borrower's line of
business as conducted on the date of this Agreement; (ii) (a) the
Acquisition Cost with respect to any one Acquisition shall not exceed
$1,000,000 and (b) the Acquisition Cost with respect to all
Acquisitions in any one calendar year shall not exceed $3,000,000;
(iii) neither the Borrower nor such acquiree has incurred any
additional Indebtedness to finance, or otherwise in connection with,
such Acquisition, whether in the form of seller notes, third party
Indebtedness or otherwise to the extent same would cause the
Acquisition Cost to exceed the limitations set forth in "(ii)" of this
definition; (iv) if the Acquisition is of the Capital Stock of another
Person, said Acquisition shall either be of all of such Capital Stock
or shall be structured by merger, consolidation or otherwise; (v) at
the time of such Acquisition no Default or Event of Default exists and
no Default or Event of Default would occur after giving effect to such
Acquisition; (vi) the Borrower shall have delivered to the Bank, not
less than 10 days prior to the consummation of such Acquisition, (A) a
certificate of a financial officer of the Borrower, in all respects
reasonably satisfactory to the Bank and dated the date of such
consummation, attaching a pro-forma compliance certificate (in a format
satisfactory to the Bank) evidencing compliance with Section 6 of this
Agreement (subsections 6(a), 6(b), 6(c), 6(d) and 6(e) of this
Agreement; as the same may be amended from time to time) after giving
effect to such Acquisition and based on the most recent financial
statements delivered to the Bank pursuant to this Agreement; provided,
that, as to such financial covenants (and any other financial covenants
now or hereafter applying to the facilities described in this
Agreement), all of such covenants shall be deemed amended to require
compliance as to the Borrower with the entity acquired in the
Acquisition, (B) copies of the purchase or merger agreement or any
other material documents executed in connection with the Acquisition,
(C) if the Acquisition is an Acquisition of the Capital Stock of a
Person, (w) copies of the resolutions of the of the Board of Directors
(or similar governing body) of such new Subsidiary authorizing the
execution, delivery and performance of its respective Guarantee,
security agreement and other Loan Documents to which it is a party,
certified respectively by an authorized officer of such new Subsidiary,
(x) a certificate of an authorized officer of such new Subsidiary
certifying the names and true signatures of the officers of new
Subsidiary to sign any and all documents to be delivered by new
Subsidiary or as required or contemplated hereunder, (y) the
organizational documents of such new Subsidiary, all of which shall be
in form and substance satisfactory to the Bank and certified as true
and correct by an authorized officer of such new Subsidiary and (z) a
good standing certificate as of the dates not more than twenty (20)
days prior to the date of delivery thereof to the Bank from the
Secretary of State of the respective state of organization of such new
Subsidiary and each state in which it is qualified to do business, (D)
if the Acquisition is of the right to manage and/or service certain
aspects of the business of a Practice Group, each such applicable
Practice Group shall have executed and delivered to the Bank a security
agreement, in form and substance substantially similar to those
delivered by the Practice Groups in connection with the Second
Amendment and the Bank shall have received an opinion of counsel to the
Borrower, in form and substance substantially similar to that delivered
in connection with the Second Amendment, with respect to each such
Practice Group's security agreement and (E) satisfactory Uniform
Commercial Code and other searches with respect to the acquiree and/or
applicable Practice Group; (vii) the Acquisition shall have the
approval of the target company's board of directors (or similar
governing body); (viii) the Bank shall have filed all applicable
Uniform Commercial Code financing statements and shall have received
such other information or documents as it shall have reasonably
requested in connection with such Acquisition; (ix) the Acquisition
shall have been consummated in accordance with the definitive
acquisition agreement, without any waiver or amendment of any material
term or condition therein not consented to by the Bank and in
compliance with all applicable laws and all necessary approvals, except
where the failure to so comply could not reasonably be expected to have
a material adverse effect on the acquiree or on the Borrower; (x) the
Borrower shall have complied with any applicable state takeover law and
any applicable supermajority charter provisions and (xi) all
governmental and third-party consents and approvals necessary in
connection with each aspect of the Acquisition shall have been obtained
(without the imposition of any unreasonable conditions) and shall
remain in effect, except where the failure to obtain same could not
reasonably be expected to have a material adverse effect on the
acquiree or on the Borrower; all applicable waiting periods shall have
expired or been terminated or waived without any material adverse
action being taken by any authority having jurisdiction; and no law or
regulation shall be applicable that restrains, prevents or imposes
material adverse conditions upon any aspect of the Acquisition.
(b) Section 7.2 of the Agreement is amended by replacing the phrase "or
acquire by purchase or otherwise the business or assets of, or stock of, another
business entity" with the phrase "or make any Acquisition or enter into any
Management Agreement".
(c) Section 7.3(iv) of the Agreement is amended to read in its entirety as
follows:
(iv) purchases of accounts receivable pursuant to Management Agreements
to which the Borrower or any Subsidiary is party; provided such
Management Agreement exists as of the date hereof or is entered into in
connection with a Permitted Acquisition,
(d) Section 7.9 of the Agreement is amended to read in its entirety as
follows:
7.9 [Intentionally Omitted.]
(e) Section 9.2 of the Agreement is amended to read in its entirety as
follows:
9.2 Additional Collateral Security. In addition to the
collateral described in Section 9.1 hereof, payment of the Obligations
is also secured by a first priority (subject to Liens permitted by this
Agreement) security interest in (i) all assets and personal property
and fixtures of the Borrower and each Guarantor, (ii) assignments of
all financing statements in favor of the Borrower and/or the Guarantors
in connection with its (their) purchase of accounts receivable, (iii)
all accounts receivable of each Practice Group (to the extent same are
subject to any purchase agreement between such Practice Group, as
seller, and the Borrower, as purchaser), (iv) all the issued and
outstanding Capital Stock of each Subsidiary that is or becomes a
Guarantor, and (v) all proceeds and products of the forgoing, whether
now owned or hereafter acquired, as provided in a Security Agreement
executed or to be executed and delivered by the Borrower and each
Guarantor to the Bank.
3. Pursuant to the Agreement, the Borrower is not permitted to enter into any
Acquisition other than Permitted Acquisitions and the Borrower acquired certain
assets of Reproductive Endocrine Associates of Charlotte, P.C. in a transaction
that was not a Permitted Acquisition. The Bank hereby agrees to waive compliance
with the Agreement, but solely with respect to the Borrower's Acquisition of
certain assets of Reproductive Endocrine Associates of Charlotte, P.C. and its
entering into a Management Agreement with Reproductive Endocrine Associates of
Charlotte, P.C. and such transaction shall be deemed a Permitted Acquisition for
purposes of the Agreement.
4. The Borrower hereby represents and warrants to the Bank that:
(a) Each and every of the representations and warranties set forth in the
Agreement and/or the documents executed pursuant thereto or in connection
therewith is true as of the date hereof and with the same effect as though made
on the date hereof, and is hereby incorporated herein in full by reference as if
fully restated herein in its entirety.
(b) No Default or Event of Default and no event or condition which, with
the giving of notice or lapse of time or both, would constitute such a Default
or Event of Default, now exists or would exist, except those that are being
waived pursuant to this Amendment.
5. All obligations in connection with the Agreement are and shall continue to be
(i) secured by the collateral referenced in the Agreement and more fully
described in one or more security agreements in favor of the Bank and (ii)
guaranteed by the Guarantors referenced in the Agreement pursuant to Guarantees
in favor of the Bank.
6. By their execution of this Amendment in the space provided below, each of the
guarantors indicated below hereby consent to this Amendment and reaffirm their
continuing liability under their respective guarantees, in respect of the
Agreement as amended hereby and all the documents, instruments and agreements
executed pursuant thereto or in connection therewith, without offset, defense or
counterclaim (any such offset, defense or counterclaim as may exist being hereby
irrevocably waived by such guarantors).
7. The waiver provided in this Amendment is effective only in this one instance
and only with respect to the Borrower's Acquisition of certain assets of
Reproductive Endocrine Associates of Charlotte, P.C. and its entering into a
Management Agreement with Reproductive Endocrine Associates of Charlotte, P.C..
Furthermore, the amendments and waiver set forth herein are limited precisely as
written and shall not be deemed to (a) be a consent to or a waiver of any other
term or condition of the Agreement or any of the documents referred to therein
or (b) prejudice any right or rights which the Bank may now have or may have in
the future under or in connection with the Agreement or any documents referred
to therein. Whenever the Agreement is referred to in the Agreement or any of the
instruments, agreements or other documents or papers executed and delivered in
connection therewith, it shall be deemed to mean the Agreement as modified by
this Amendment.
8. This Amendment shall be effective as of the date first above written;
provided that this Amendment shall not be effective unless and until the Bank
shall have received counterparts of this Amendment duly signed by the Borrower
and the guarantors indicated below.
9. This Amendment may be executed by the parties hereto individually or in any
combination, in one or more counterparts, each of which shall be an original and
all of which shall together constitute one and the same agreement.
[Balance of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the date first above written.
INTEGRAMED AMERICA, INC.
By:/s/Xxxx X. Xxxxxx, Xx.
-----------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
FLEET NATIONAL BANK
By: /s/Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Each of the guarantors indicated below hereby consent to this Amendment
and reaffirm their continuing liability under their respective guarantees in
respect of the Agreement as amended hereby and all the documents, instruments
and agreements executed pursuant thereto or in connection therewith, without
offset, defense or counterclaim (any such offset, defense or counterclaim as may
exist being hereby irrevocably waived by such guarantors).
INTEGRAMED PHARMACEUTICAL SERVICES, INC.
By: /s/Xxxx X. Xxxxxx, Xx.
-----------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
INTEGRAMED FINANCIAL SERVICES, INC.
By: /s/Xxxx X. Xxxxxx, Xx.
-----------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
