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EXHIBIT 10.21
AMENDMENT NO. 5
DATED AS OF JULY 7, 2000
TO
LOAN AND SECURITY AGREEMENT
AS AMENDED
DATED AS OF JUNE 5, 1997
AMONG
ACCREDO HEALTH, INCORPORATED AND ITS SUBSIDIARIES
AND
BANK OF AMERICA, N.A.,
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
AND
BROWN BROTHERS HARRIMAN & CO.
AND
BANK OF AMERICA, N.A., AS AGENT
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TABLE OF CONTENTS
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PAGE
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1. Definitions..............................................................................................1
2. Amendments to Agreement..................................................................................1
3. Representations and Warranties...........................................................................2
3.1. Incorporation...................................................................................2
3.2. Due Authorization, No Conflicts, Etc............................................................2
3.3. Due Execution, Etc..............................................................................3
4. Conditions Precedent.....................................................................................3
4.1. Conditions Precedent to Effectiveness of Amendment No. 5........................................3
5. Effectiveness of Amendment No. 5.........................................................................4
6. Closing..................................................................................................4
7. Governing Law, Etc.......................................................................................4
8. Section Titles and Table of Contents.....................................................................4
9. Waiver of Jury Trial.....................................................................................4
10. Counterparts.............................................................................................5
11. Agreement to Remain in Effect............................................................................5
12. Subsequent Amendments....................................................................................5
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AMENDMENT NO. 5 dated as of July 7, 2000 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, as further amended by Amendment No. 2
dated March 1, 1999, as further amended by Amendment No. 3 dated as of October
14, 1999 and as further amended by Amendment No. 4 dated December 3, 1999
(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 Bank of America, N.A. (successor to NationsBank, 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 (other than Childrens
Hemophilia Services), the Banks and the Agent are parties to the Agreement; and
WHEREAS, Hemophilia Health Services, Inc. has acquired from
Childrens Home Care an additional thirty percent (30%) interest as a general
partner in Childrens Hemophilia Services, a California general partnership,
bringing the total interest owned by Hemophilia Health Services, Inc. in
Childrens Hemophilia Services to eighty percent (80%); and
WHEREAS, the acquisition of the additional general partnership
interest in Childrens Hemophilia Services requires the consent of the Banks,
which the Banks have granted subject to the conditions and provisions of this
Amendment No. 5 being satisfied 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. 5 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. 5 EFFECTIVE DATE" has the meaning
specified in Section 5 of this Amendment No. 5.
In addition to the foregoing new definitions, the following definition are
hereby amended:
"GUARANTOR" is hereby amended to replace the period after
subparagraph (D) with a comma, and to add a subparagraph (F) as follows:
"(F) Childrens Hemophilia Services, a California
general partnership.
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"STOCK PLEDGE AGREEMENTS" is hereby amended to delete
everything after the word "and" and to replace it with the following: "pledge
agreements executed from time to time by the Borrower and/or Subsidiaries of the
Borrower in favor of the Agent for the benefit of the Banks pledging stock,
partnership interest, limited liability company interests or other ownership
interests".
2.2. Childrens Hemophilia Services, a California
general partnership, hereby agrees to become a party to the Agreement as a
Guarantor thereunder, and hereby grants and confirms the grant of the security
interest contained therein.
2.3. Notwithstanding anything in the Agreement to the
contrary, including without limitation in Section VIII entitled "DEFAULT", it
shall not an Event of Default under the Agreement if a Non-Corporate Subsidiary
is dissolved or terminated.
3. REPRESENTATIONS AND WARRANTIES. To induce the Banks and the
Agent to enter into this Amendment No. 5, 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., Hemophilia Health
Services, Inc. (successor to Horizon Health Systems, Inc.) and AHI Pharmacies,
Inc. are corporations duly organized, validly existing and in good standing
under the laws of the State of Tennessee; Sunrise Health Management, Inc., is a
corporation duly organized and validly existing and in good standing under the
laws of the State of Georgia; Childrens Hemophilia Services is a general
partnership duly formed and validly existing under the laws of the State of
California; each of the foregoing entities has the lawful power to own its
properties and to engage in the business it now conducts, and each corporation
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 entities has its chief executive
office and principal place of business located in either Nashville, Tennessee or
Memphis, Tennessee, except for Sunrise Health Management, Inc., which has its
principal office in Norcross, Georgia, and Childrens Hemophilia Services which
has its principal office in Los Angeles, California.
3.2. DUE AUTHORIZATION, NO CONFLICTS, ETC. The
execution, delivery and performance by the Borrower and Guarantors of this
Amendment No. 5 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 and/or
partnership powers of each; (b) have been duly authorized by all necessary
corporate and/or partnership action, including without limitation, the consent
of stockholders/partners where required; (c) do not and will not (i) contravene
the respective certificate of incorporation or by-laws or other comparable
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governing documents of 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. 5 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. 5 is subject to the fulfillment of the following conditions precedent on or
prior to the Amendment No. 4 Effective Date (as hereinafter defined in Section 5
hereof):
4.1. CONDITIONS PRECEDENT TO EFFECTIVENESS OF
AMENDMENT NO. 5. The Agent shall have received, on or prior to the Amendment No.
5 Effective Date, the following, each dated on or prior to the Amendment No. 5
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 and/or Partners of Borrower and each Guarantor approving this
Amendment No. 5 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 or partnership action and required
governmental and third party approvals, licenses and consents with respect to
this Amendment No. 5 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 corporate Guarantor who have
been authorized to execute on behalf of Borrower and such corporate Guarantor
this Amendment No. 5 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. 5
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. 5 are true and correct on and as of such date as
though made on and as of such date;
(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. 5 or the other agreements, instruments and documents
contemplated hereby; and
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(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) Original Guaranty and Suretyship Agreements
duly executed by Childrens Hemophilia Services in the form attached hereto as
EXHIBIT F-1.
(e) Such UCC financing statements and amendments
thereto (including to pay additional Tennessee Privilege Taxes) as may be
required by the Banks.
(f) Pledge Agreement duly executed by Hemophilia
Health Services, Inc. in the form attached hereto as EXHIBIT E-1.
5. EFFECTIVENESS OF AMENDMENT NO. 5. This Amendment No. 5 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. 5, 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. 5 Effective Date".
6. CLOSING. The Closing under this Amendment No. 5 shall occur
on the Amendment Effective Date at the offices of Boult, Cummings, Conners &
Berry, PLC, 414 Union Street, Nashville, Tennessee 37219, or such other location
as the parties may agree.
7. GOVERNING LAW, ETC. This Amendment No. 5 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.
8. SECTION TITLES AND TABLE OF CONTENTS. The Section Titles
and Table of Contents contained in this Amendment No. 5 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.
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10. COUNTERPARTS. This Amendment No. 5 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.
12. SUBSEQUENT AMENDMENTS. Childrens Hemophilia Services
("CHS") hereby agrees that the Agreement may be amended and/or restated in the
future without the necessity of CHS being a party thereto and that any such
amendments and/or restatements shall be binding on CHS as fully as if it had
signed.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 5 to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
AGENT BORROWER
BANK OF AMERICA, N.A., ACCREDO HEALTH, INCORPORATED
as Agent
BY: /s/ Elizabeth L. Knox BY: /s/ Joel R. Kimbrough
----------------------------- -----------------------------
TITLE: Sr. V.P. TITLE: CFO
----------------------------- -----------------------------
BANKS GUARANTORS AND SUBSIDIARIES
BANK OF AMERICA, N.A. SOUTHERN HEALTH SYSTEMS, INC.
BY: /s/ Elizabeth L. Knox BY: /s/ Joel R. Kimbrough
----------------------------- -----------------------------
TITLE: Sr. V.P. TITLE: CFO
----------------------------- -----------------------------
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FIRST TENNESSEE BANK NATIONAL NOVA FACTOR, INC.
ASSOCIATION
BY: /s/ Bob Nieman BY: /s/ Joel R. Kimbrough
----------------------------- -----------------------------
TITLE: V.P. TITLE: CFO
----------------------------- -----------------------------
BROWN BROTHERS HARRIMAN & CO. HEMOPHILIA HEALTH SERVICES, INC.
(successor to Horizon Health
Systems, Inc.)
BY: /s/ Louise A. Coughlan BY: /s/ Joel R. Kimbrough
----------------------------- -----------------------------
TITLE: Sr. V.P. TITLE: CFO
----------------------------- -----------------------------
AHI PHARMACIES, INC.
BY: /s/ Joel R. Kimbrough
-----------------------------
TITLE: CFO
-----------------------------
SUNRISE HEALTH MANAGEMENT, INC.
BY: /s/ Joel R. Kimbrough
-----------------------------
TITLE: CFO
-----------------------------
CHILDRENS HEMOPHILIA SERVICES
BY: Hemophilia Health Services,
Inc., general
BY: /s/ Joel R. Kimbrough
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TITLE: CFO
-----------------------------
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