WAIVER AND FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS WAIVER AND FIRST AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of the 13th day of June, 2002 (this "Amendment and Waiver"),
is made by the Required Lenders (as defined in the Credit Agreement referred to
below) in favor of Matria Healthcare, Inc., a Delaware corporation ("Matria").
BACKGROUND STATEMENT
A. Matria and certain of its foreign subsidiaries, as borrowers, certain
banks and other financial institutions (the "Lenders"), Wachovia Bank, National
Association (formerly known as First Union National Bank), as administrative
agent for the Lenders (in such capacity, the "Administrative Agent"), and Xxxxxx
Trust and Savings Bank, as Co-Agent, are parties to a First Amended and Restated
Credit Agreement, dated as of July 9, 2001 (as amended, the "Credit Agreement"),
providing for the availability of certain credit facilities to Matria 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 Required Lenders waive any Default or
Event of Default arising from the acquisition (the "ChoicePoint Acquisition") by
Matria, through a newly created indirect Subsidiary, Matria Laboratories, Inc.
("Matria Labs"), of substantially all of the assets of ChoicePoint Health
Systems, Inc., and any delay by Matria and its Subsidiaries in delivering
certain related documentation to the Administrative Agent and the Lenders. The
Required Lenders have agreed to provide such waiver upon the terms and subject
to the conditions set forth herein.
C. Matria has further requested that the Required Lenders amend
Section 6.9(c) of the Credit Agreement to clarify its obligations in respect of
certain Permitted Acquisitions, and the Required Lenders have agreed to effect
such amendment upon the terms and subject to the 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. Waiver Regarding ChoicePoint Acquisition. After consummation of the
ChoicePoint Acquisition, Matria and its Subsidiaries did not deliver to the
Lenders within the applicable time periods copies of the fully executed
acquisition agreement (including schedules and exhibits thereto) and other
material documents and closing papers associated with the ChoicePoint
Acquisition and the creation of Matria Labs as required by Sections 6.9(d), 6.10
and 8.5 of the Credit Agreement. Effective as of the ChoicePoint Waiver
Effective Date (as defined in Section 4(a)), the Required Lenders waive any
Default or Event of Default arising as a result of these nondeliveries with
respect to all such documents required to be delivered.
2. Amendment and Waiver of Credit Agreement. Effective as set forth in
Section 4(b), the introductory clause of Section 6.9(c) of the Credit Agreement
is amended and restated in its entirety as follows:
"Not less than ten (10) Business Days prior to the consummation of any
proposed Acquisition with respect to which the Acquisition Amount equals or
exceeds $2,000,000, Matria shall have delivered to the Administrative Agent and
each Lender (at a minimum, and without limitation of any other materials or
information that may be reasonably requested by the Administrative Agent or any
Lender), the following:"
3. Representations and Warranties. As an inducement to obtain the waiver
and amendment provided for herein, Matria hereby represents and warrants to the
Administrative Agent and each Lender that, as of the date hereof, (i) 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), and (ii) after giving effect to this Amendment and Waiver, no
Default or Event of Default has occurred and is continuing except any Default or
Event of Default under Section 8.5 of the Credit Agreement in connection with
the execution and delivery by Matria of the Purchase and Sale Agreement, dated
as of April 29, 2002 (the "QO Purchase Agreement"), between Matria, LifeMetrix,
Inc. and Quality Oncology, Inc.
4. Conditions to Effectiveness.
(a) The waiver granted in Section 1 shall be effective on the earliest date
(the "ChoicePoint Waiver Effective Date") upon which the Administrative Agent
has received each of the following:
(i) an executed counterpart of this Amendment and Waiver from each of the
Required Lenders and Matria;
(ii) 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: (A) 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 ChoicePoint Waiver Effective Date and after
giving effect to this Amendment and Waiver with the same effect as if made on
and as of such date (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), and (B) on and
as of the ChoicePoint Waiver Effective Date and after giving effect to this
Amendment and Waiver, no Default or Event of Default has occurred and is
continuing except any Default or Event of Default under Section 8.5 of the
Credit Agreement in connection with the execution and delivery by Matria of the
QO Purchase Agreement.
(iii) an executed joinder to the Subsidiary Guaranty and an executed
joinder to the Security Agreement from Matria Labs, each in form and substance
satisfactory to the Administrative Agent; an executed amendment or supplement to
the Matria Pledge Agreement from the applicable Subsidiary pursuant to which all
of the Capital Stock of Matria Labs shall be pledged to the Administrative
Agent, together with the certificates evidencing such Capital Stock and undated
stock powers duly executed in blank; and all other documents, certificates and
opinions required under Section 6.10 of the Credit Agreement in connection with
the creation of Matria Labs, all satisfactory in form and substance to the
Administrative Agent;
(iv) the items described in Section 6.9(d) of the Credit Agreement with
respect to the ChoicePoint Acquisition;
(v) all fees and expenses of the Administrative Agent and the Lenders
required under the Credit Agreement to have been paid on or prior to the
ChoicePoint Waiver Effective Date, including the fee described in Section 5 and
reasonable fees and expenses of counsel to the Administrative Agent (which the
Administrative Agent may direct be paid directly to such counsel rather than to
the Administrative Agent); and
(vi) such other documents, certificates, opinions and instruments as the
Administrative Agent shall have reasonably requested.
(b) The amendment set forth in Section 2 shall be effective upon receipt by
the Administrative Agent of (i) an executed counterpart of this Amendment and
Waiver from each of the Required Lenders and Matria and (ii) the fee described
in Section 5; provided that the effective date of such amendment shall be the
date hereof.
5. Amendment and Waiver Fee. As a condition to the effectiveness of this
Amendment and Waiver and in consideration of the amendment and waiver effected
hereby, the Borrower shall pay to the Administrative Agent, for the account of
each Lender that has executed and delivered this Amendment and Waiver to the
Administrative Agent by 3:00 p.m. on June 13, 2000, a fee for such Lender equal
to 0.125% of such Lender's Revolving Credit Commitment.
6. Effect of Amendment and Waiver. If any Default or Event of Default
(other than with respect to any Default or Event of Default being waived as
specifically described above) should occur and be continuing under the Credit
Agreement, the Administrative Agent and the Lenders will be under no obligation
to forbear the exercise of their rights and remedies under the Credit Agreement,
the other Credit Documents, applicable law or otherwise. This Amendment and
Waiver is limited as specified, and shall not constitute or be deemed to
constitute an amendment, modification or waiver of, or consent to any departure
from, any provision of the Credit Agreement, or a waiver of any Default or Event
of Default, 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.
7. Governing Law. This Amendment and Waiver 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).
8. Severability. To the extent any provision of this Amendment and Waiver
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 and Waiver in any jurisdiction.
9. Successors and Assigns. This Amendment and Waiver shall be binding upon,
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto.
10. Construction. The headings of the various sections and subsections of
this Amendment and Waiver have been inserted for convenience only and shall not
in any way affect the meaning or construction of any of the provisions hereof.
11. Counterparts. This Amendment and Waiver may be executed in any number
of counterparts 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be executed by their duly authorized officers as of the date first
above written.
MATRIA HEALTHCARE, INC.
By: _______________________________
Title: _______________________________
WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly known as First Union National
Bank), individually and as Administrative
Agent
By: _______________________________
Title: _______________________________
XXXXXX TRUST AND SAVINGS BANK
By: _______________________________
Title: _______________________________
UBS AG, STAMFORD BRANCH
By: _______________________________
Title: _______________________________
By: _______________________________
Title: _______________________________
