JOINDER AND SECOND AMENDMENT
TO AMENDED AND RESTATED
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS JOINDER
AND SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND
SECURITY AGREEMENT , dated as of September 14, 2004 (this
“Amendment” ), is entered into by and between
CAPITALSOURCE FINANCE LLC , a Delaware limited liability
company, (“ Lender ”), UNITED STATES
PHARMACEUTICAL GROUP, L.L.C d/b/a NATIONSHEALTH , a Delaware
limited liability company and NATIONSHEALTH HOLDINGS, L.L.C.
, a Florida limited liability company (jointly and severally,
“ Borrower ”) and NATIONSHEALTH, INC. (f/k/a
MILLSTREAM ACQUISTION CORPORATION) , a Delaware corporation
(“ Nationshealth ”).
WHEREAS ,
the parties hereto entered into that certain Revolving Credit and
Security Agreement dated as of the 30 th day of April, 2004 (the “ Original
Credit Agreement ”) whereby Lender agreed to make loans,
advances and other extensions of credit to Borrower thereunder;
and
WHEREAS ,
Lender and Borrower entered into a certain Amended and Restated
Revolving Credit and Security Agreement dated as of the 29
th of June, 2004 (as amended and in effect from
time to time, the “ Agreement ”) whereby Lender
made available to Borrower a separate Overadvance Facility and
permitted Borrower to include its inventory within the Borrowing
Base for the Revolving Facility; and
WHEREAS ,
Lender and Borrower amended the Agreement in certain respects
pursuant to a certain First Amendment to Amended and Restated
Revolving Credit and Security Agreement dated as of the 10
th day of August, 2004; and
WHEREAS ,
on August 31, 2004, Millstream Acquisition Corporation
(“MAC”) changed it name to Nationshealth,
Inc.;
WHEREAS ,
on August 31, 2004, N Merger, LLC, a wholly owned subsidiary
of MAC, was merged with and into NationsHealth Holdings, L.L.C. and
as a result of the merger, NationsHealth Holdings, L.L.C. continued
as the surviving limited liability company; and
WHEREAS ,
as a condition of the Agreement, on or before the date the
effective date of the Merger, Nationshealth is required to become a
borrower under the Agreement and join as a party to the Agreement
and the Loan Documents; and
WHEREAS ,
Lender, Borrower and Nationshealth desire to further amend the
Agreement in certain respects upon the terms and conditions set
forth herein to provide for the foregoing; and
WHEREAS ,
Section 12.8 of the Agreement provides that no modification or
amendment of the Agreement shall be effective unless the same shall
be in writing and signed by the parties thereto.
NOW,
THEREFORE , in consideration of the premises and other mutual
covenants contained herein, the receipt and sufficiency are hereby
acknowledged, Lender, Borrower and Nationshealth agree as
follows:
Section 1. Definitions . Unless otherwise
defined herein, all capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the
Agreement.
Section 2. Amendments. Lender, Borrower and
Nationshealth hereby agree to amend the Agreement as
follows:
The first
paragraph of the Agreement is hereby amended by replacing such
paragraph in its entirety with the following:
THIS AMENDED
AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT (the
“ Agreement ”) dated as of June 29, 2004,
is entered into among, UNITED STATES PHARMACEUTICAL GROUP, L.L.C
d/b/a NATIONSHEALTH , a Delaware limited liability company,
NATIONSHEALTH HOLDINGS, L.L.C. , a Florida limited liability
company and NATIONSHEALTH, INC. f/k/a MILLSTREAM ACQUISITION
CORPORATION, a Delaware corporation (jointly and severally,
“ Borrower ”) and CAPITALSOURCE FINANCE
LLC , a Delaware limited liability company (the “
Lender ”).
Section 3. Joinder to Agreement. Lender,
Borrower and Nationshealth hereby agree that, as of the date
hereof, Nationshealth shall be a party to the Agreement and that by
its execution and delivery of this Amendment it, as a Borrower,
does hereby grant, pledge, and assign to the Lender a first
priority security interest in the Collateral in accordance with
Section 2.9 of the Agreement. Nationshealth further agrees
that from the date hereof and so long as any Obligations remain
outstanding, Nationshealth shall perform, comply with and be
subject to and bound by, jointly and severally, each of the
representations, warranties, covenants, agreements, waivers and
other provisions of the Agreement as if Nationshealth were an
original signatory thereof as a Borrower. All references to the
term “Borrower”, as used in the Agreement, shall
include Nationshealth.
Section 4. References to Other Loan Documents.
Each of the other Loan Documents are hereby modified in such a
manner as to be consistent with all modifications and agreements
contained herein and to the extent that all references therein to
and descriptions therein of the Agreement and the Note shall be
deemed to refer to and describe the Agreement, as modified by this
Amendment.
Section 5. Conditions to Effectiveness . This
Amendment shall be effective on the date (the “ Effective
Date ”) upon which the following conditions precedent are
satisfied:
(a) Borrower
and Nationshealth shall have delivered to Lender an original copy
of this Amendment and each other agreement, document or instrument
reasonably requested by the Lender in connection with this
Amendment executed by a duly authorized officer of each such
entity, including an Allonge to the Revolving Note and an Allonge
to the Overadvance Note, each in form and substance reasonably
satisfactory to Lender.
(b) In
accordance with the terms of Section 2.2(c)(ii) of the Loan
Agreement, Lender shall have received payment in full of the
Initial Overadvance created by and relating to the Overadvance
Facility, including any applicable fees, charges or expenses
payable to Lender in connection with the Initial
Overadvance.
(c) Lender
shall have received copies of governing documents of Nationshealth
and a copy of the resolutions or unanimous consent of the [Board of
Directors] of Nationshealth authorizing the execution, delivery and
performance of this Amendment and the transactions
2
contemplated
thereby attached to which is a certificate of the Secretary of
Nationshealth certifying (A) that such copies of the governing
documents and resolutions or consent of or with respect to
Nationshealth are true, complete and accurate copies thereof, have
not been amended or modified since the date of such certificate and
are in full force and effect and (B) as to the incumbency and
signature of the Persons executing the Loan Documents, in form and
substance acceptable to Lender.
(d) Lender
shall have received a certified copy of a certificate of the
Secretary of the State of Delaware, dated within thirty
(30) days before the date hereof, listing the certificate of
incorporation of Nationshealth and each amendment thereto on file
in such official’s office and certifying that (A) such
amendments are the only amendments to such certificate of
incorporation and (B) Nationshealth is in good standing in the
State of Delaware.
(e) The
representations and warranties contained herein and in all other
Loan Documents shall be true and correct.
(f) No
Default or Event of Default shall be in existence; and
(g) Lender
shall have received all fees, charges and expenses payable to
Lender as required by this Amendment and in connection with this
Amendment and the documentation related hereto, including, but not
limited to, legal fees and out-of-pocket costs (including in-house
counsel fees and expenses).
Section 6. Representations and
Warranties.
(a) Notwithstanding
any other provision of
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