Exhibit 10.66
AMENDMENT NO. 2
DATED AS OF MARCH 1, 1999
TO
LOAN AND SECURITY AGREEMENT
AS AMENDED
DATED AS OF JUNE 5, 1997
AMONG
ACCREDO HEALTH, INCORPORATED AND ITS SUBSIDIARIES
AND
NATIONSBANK, N.A.
AND
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
AND
NATIONSBANK, N.A., AS AGENT
TABLE OF CONTENTS
PAGE
1. DEFINITIONS..............................................................................................3
2. AMENDMENTS TO AGREEMENT..................................................................................3
3. REPRESENTATIONS AND WARRANTIES...........................................................................4
3.1. INCORPORATION...................................................................................4
3.2. DUE AUTHORIZATION, NO CONFLICTS, ETC............................................................4
3.3. DUE EXECUTION, ETC..............................................................................5
4. CONDITIONS PRECEDENT.....................................................................................5
4.1. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT NO. 2........................................5
5. EFFECTIVENESS OF AMENDMENT NO. 2.........................................................................6
6. CLOSING..................................................................................................6
7. GOVERNING LAW, ETC.......................................................................................6
8. SECTION TITLES AND TABLE OF CONTENTS.....................................................................7
9. WAIVER OF JURY TRIAL.....................................................................................7
10. COUNTERPARTS.............................................................................................7
11. AGREEMENT TO REMAIN IN EFFECT............................................................................7
AMENDMENT NO. 2 dated as of March 1, 1999 under and to that
certain Loan and Security Agreement dated as of June 5, 1997 as amended by
Amendment No. 1 dated August 28, 1998 (collectively, the "Agreement"), among
Accredo Health, Incorporated (formerly Nova Holdings, Inc.), a Delaware
corporation (the "Borrower"); the Guarantors, jointly and severally; each of the
undersigned Banks (in such capacity, the "Banks"), and NationsBank, N.A.
(successor to NationsBank of Tennessee, N.A.), as Agent for the Banks (in such
capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, the Guarantors, the Banks and the Agent
are parties to the Agreement; and
WHEREAS, Borrower has requested that the Banks increase their
Commitments under the Agreement from Forty Million Dollars ($40,000,000) to
Sixty Million Dollars ($60,000,000), and the Banks are willing to do so, subject
to certain other changes to be made to the Agreement as hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment
No. 2 which are not otherwise defined herein shall have the respective meanings
ascribed thereto in the Agreement.
2. AMENDMENTS TO AGREEMENT.
2.1. Section I of the Agreement, DEFINITIONS, is hereby
amended by adding thereto the following new definitions as follows:
"AMENDMENT NO. 2 EFFECTIVE DATE" has the meaning specified
in Section 5 of this Amendment No. 2.
In addition to the foregoing new definition, the following definitions are
hereby amended:
2.1.1. "COMMITMENTS" and "TOTAL COMMITMENTS" are
each hereby amended to replace the figure of $40,000,000 where it appears
therein with the figure of $60,000,000.
2.1.2. "FINANCIAL STATEMENTS" is hereby amended to
replace the dates contained therein with the dates of June 30, 1998 and January
31, 1999;
2.1.3. "LOAN TERMINATION DATES" is hereby amended to
replace the date of October 31, 2000 with the date of December 1, 2001.
2.2. The Agreement is hereby amended to replace the figure
of Forty Million Dollars ($40,000,000) wherever it appears therein with the
figure of Sixty Million Dollars ($60,000,000).
2.3. Paragraph 6.17(B), DEBT SERVICE COVERAGE, is hereby
amended to replace the ratio of 1.20 to 1.00 with the ratio of 1.25 to 1.0.
2.4. The Borrower hereby agrees to pay to the Agent for the
benefit of the Banks on a prorated basis a fee of Forty Thousand Dollars
($40,000) in connection herewith and in consideration of this Amendment, said
fee to be payable upon the earlier to occur of one year from the date hereof or
upon the Borrower's acquiring any other Person via an Acquisition or merger.
2.5. The form of the Notes attached as EXHIBIT A to the
Schedule of Exhibits to the Agreement is hereby amended to replace said Notes
with the form of the Notes attached hereto as EXHIBIT A-1. In addition, the form
of the Guaranty and Suretyship Agreements attached as EXHIBIT F to the Schedule
of Exhibits to the Agreement is hereby amended to replace said Guaranties with
the form of the Guaranties attached hereto as EXHIBIT F-1.
3. REPRESENTATIONS AND WARRANTIES. To induce the Banks and the
Agent to enter into this Amendment No. 2, Borrower and Guarantors jointly and
severally represent and warrant to the Banks and the Agent as follows:
3.1. INCORPORATION. Accredo Health, Incorporated is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, and is qualified to transact business in the State of
Tennessee; Nova Factor, Inc., Southern Health Systems, Inc. and Horizon Health
Systems, Inc. are corporations duly organized, validly existing and in good
standing under the laws of the State of Tennessee; each of the foregoing
corporations has the lawful power to own its properties and to engage in the
business it now conducts, and each is duly qualified and in good standing as a
foreign corporation in the jurisdictions wherein the nature of the business
transacted by it or property owned by it is both material and makes
qualification necessary; Accredo Health, Incorporated has its chief executive
office and principal place of business in Memphis, Tennessee, and each of the
other corporations has its chief executive office and principal place of
business located in either Nashville, Tennessee, or Memphis, Tennessee.
3.2. DUE AUTHORIZATION, NO CONFLICTS, ETC. The execution,
delivery and performance by the Borrower and Guarantors of this Amendment No. 2
and any and all other agreements, instruments and documents to be executed
and/or delivered by the Borrower or any Guarantor pursuant hereto or in
connection herewith, and the consummation by Borrower and Guarantors of the
transactions contemplated hereby or thereby: (a) are within the corporate powers
of each; (b) have been duly authorized by all necessary corporate action,
including without limitation, the consent of stockholders where required; (c) do
not and will not (i) contravene the respective certificate of incorporation or
by-laws or other comparable governing documents of
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Borrower or any Guarantor, (ii) violate any Laws, or any order or decree of any
court or governmental authority, or (iii) conflict with or result in the breach
of, or constitute a default under, or result in the termination of, any material
contractual obligation of Borrower or any Guarantor, and (d) do not require the
consent, authorization by, or approval of, or notice to, or filing or
registration with, any governmental authority or any other Person other than
those which have been obtained and copies of which have been delivered to the
Agent pursuant to Subsection 4.1(a)(ii) hereof, each of which is in full force
and effect.
3.3. DUE EXECUTION, ETC. This Amendment No. 2 and each of
the other agreements, instruments and documents to be executed and/or delivered
by Borrower or any Guarantor pursuant hereto or in connection herewith (a) has
been duly executed and delivered, and (b) constitutes the legal, valid and
binding obligation of each, enforceable against it in accordance with its terms,
subject however to state and federal bankruptcy, insolvency, reorganization and
other laws and general principles of equity affecting enforcement of the rights
of creditors generally.
4. CONDITIONS PRECEDENT. The effectiveness of this Amendment
No. 2 is subject to the fulfillment of the following conditions precedent on or
prior to the Amendment No. 2 Effective Date (as hereinafter defined in Section 5
hereof):
4.1. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT NO.
2. The Agent shall have received, on or prior to the Amendment No. 2 Effective
Date, the following, each dated on or prior to the Amendment No. 2 Effective
Date unless otherwise indicated, in form and substance satisfactory to the Agent
and in sufficient copies for each Bank:
(a) Certified copies of (i) the resolutions of the
Board of Directors of Borrower and each Guarantor approving this Amendment No. 2
and each other agreement, instrument or document to be executed by them pursuant
hereto or as contemplated hereby, and (ii) all documents evidencing other
necessary corporate action and required governmental and third party approvals,
licenses and consents with respect to this Amendment No. 2 and the transactions
contemplated hereby.
(b) A certificate of the Secretary or an Assistant
Secretary of Borrower and each Guarantor certifying the names and true
signatures of the officers of Borrower and each Guarantor who have been
authorized to execute on behalf of Borrower and such Guarantor this Amendment
No. 2 and any other agreement, instrument or document executed or to be executed
by Borrower and any Guarantor in connection herewith.
(c) A certificate dated the Amendment No. 2 Effective
Date signed by the President or any Vice-President of Borrower, to the following
effect:
(i) The representations and warranties of the
Borrower contained in Sections 3.1, 3.2 and 3.3 of this
Amendment No. 2 are true and correct on and as of such date as
though made on and as of such date;
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(ii) No Default or Event of Default has occurred
and is continuing, and no Default or Event of Default would
result from the execution and delivery of this Amendment No. 2
or the other agreements, instruments and documents
contemplated hereby; and
(iii) The Borrower has paid or agreed to pay all
amounts payable by it pursuant to the Agreement as amended
hereby (including, without limitation, all legal fees and
expenses of Banks' counsel incurred in connection herewith) to
the extent then due and payable.
(d) Two (2) original Revolving Notes duly executed
by the Borrower in the amount of $40,000,000 and $20,000,000, respectively,
evidencing the renewal, modification and increase of the existing Revolving
Notes, in the form attached hereto as EXHIBIT A-1.
(e) Original Guaranty and Suretyship Agreements
duly executed by each of Nova Factor, Inc., Southern Health Systems, Inc. and
Horizon Health Systems, Inc., in the form attached hereto as EXHIBIT F-1.
(f) Such UCC financing statements and amendments
thereto (including to pay additional Tennessee Privilege Taxes) as may be
required by the Banks.
(g) Evidence that Borrower has successfully
completed an IPO that has resulted in net cash proceeds to the Borrower of
$42,500,000.00.
5. EFFECTIVENESS OF AMENDMENT NO. 2. This Amendment No. 2 and
the Exhibits attached hereto shall become effective at such time as (a) each of
the conditions precedent set forth in Section 4.1 hereof shall have been
satisfied, and (b) counterparts of this Amendment No. 2, executed and delivered
by the Borrower, the Guarantors, the Banks and the Agent shall have been
received by the Agent (or, alternatively, confirmation of the execution hereof
by such parties shall have been received by the Agent). The date upon which the
conditions described in clauses (a) and (b) of the foregoing sentence shall have
been fulfilled is referred to herein as the "Amendment No. 2 Effective Date".
6. CLOSING. The Closing under this Amendment No. 2 shall occur
on the Amendment Effective Date at the offices of Boult, Cummings, Xxxxxxx &
Xxxxx, PLC, 0 XxxxxxxXxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, or such other
location as the parties may agree.
7. GOVERNING LAW, ETC. This Amendment No. 2 shall be governed
by, and construed in accordance with, the laws of the State of Tennessee as
provided in Section 10.9 of the Agreement, which Section is incorporated herein
by reference and made a part hereof as though set forth in full herein.
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8. SECTION TITLES AND TABLE OF CONTENTS. The Section Titles
and Table of Contents contained in this Amendment No. 2 are and shall be without
substantive meaning or content of any kind whatsoever and are not a part of the
agreement among the parties hereto.
9. WAIVER OF JURY TRIAL. EACH PARTY HERETO, INCLUDING THE
BORROWER, EACH SUBSIDIARY, THE BANKS, AND THE AGENT, HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAWS)
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER,
RELATING TO, OR CONNECTED WITH THIS AGREEMENT, THE COLLATERAL OR ANY OTHER
AGREEMENT, INSTRUMENT OR DOCUMENT CONTEMPLATED HEREBY OR DELIVERED IN CONNECTION
HEREWITH AND AGREE THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING
WITHOUT A JURY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANKS' AND THE
AGENT ENTERING INTO THIS AGREEMENT.
10. COUNTERPARTS. This Amendment No. 2 may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument.
11. AGREEMENT TO REMAIN IN EFFECT. Except as expressly
provided herein, the Agreement and each other Collateral Document shall be and
shall continue in full force and effect in accordance with its respective terms.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
AGENT BORROWER
NATIONSBANK, N.A., ACCREDO HEALTH, INCORPORATED
as Agent
BY: /s/ Xxxxxxxxx Xxxx BY: /s/ Xxxx Xxxxxxxxx
------------------------------ ---------------------------------
TITLE: Senior Vice President TITLE: Senior Vice President and
--------------------------- Chief Financial Officer
------------------------------
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BANKS GUARANTORS AND SUBSIDIARIES
NATIONSBANK, N.A. SOUTHERN HEALTH SYSTEMS, INC.
BY: /s/ Xxxxxxxxx Xxxx BY: /s/ Xxxx Xxxxxxxxx
------------------------------ ---------------------------------
TITLE: Senior Vice President TITLE: Senior Vice President and
--------------------------- Chief Financial Officer
------------------------------
FIRST TENNESSEE BANK NATIONAL NOVA FACTOR, INC.
ASSOCIATION
BY: /s/ Xxxxxxxxx Xxxx BY: /s/ Xxxx Xxxxxxxxx
------------------------------ ---------------------------------
TITLE: Senior Vice President TITLE: Senior Vice President and
--------------------------- Chief Financial Officer
------------------------------
HORIZON HEALTH SYSTEMS, INC.
BY: /s/ Xxxx Xxxxxxxxx
---------------------------------
TITLE: Senior Vice President and
Chief Financial Officer
------------------------------
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