Exhibit 99.2
LETTER AMENDMENT NO. 5
Dated as of August 20, 2004
To the banks, financial institutions
and other lenders
(collectively, the “Lenders”) parties
to the Credit Agreement referred to
below and to Merrill Lynch Capital,
a Division of Merrill Lynch Business
Financial Services Inc., as Administrative Agent
(in such capacity, the “Administrative Agent”) for the Lenders
Ladies and Gentlemen:
We refer to the Credit Agreement, dated as of November 26, 2002, among NDCHealth Corporation, a Delaware corporation (the “Borrower”), the Lenders and agents from time to time party thereto, Merrill Lynch Capital, a division of Merrill Lynch Business Financial Services Inc., as Administrative Agent and Swing Line Lender, Credit Suisse First Boston, as Syndication Agent, Bank of America, N.A., as Documentation Agent and LaSalle Bank National Association, as L/C Issuer, as amended by Letter Amendment and Waiver No. 1, dated as of May 27, 2003, Letter Amendment No. 2 dated as of August 29, 2003, Amendment No. 3 dated as of December 19, 2003 and Letter Amendment No. 4 dated as of January 22, 2004 (as so amended or otherwise modified in writing, the “Credit Agreement”; the terms defined therein being used herein as therein defined).
The Credit Agreement is, effective as of (and from and after) the Effective Date (as defined below), hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by replacing clause (b)(ii) of the definition of “Consolidated Fixed Charge Coverage Ratio” contained therein in its entirety with the following clause (b)(ii):
“(ii) cash taxes paid during the period of the four prior fiscal quarters ending on such dateplus”
(b) Section 7.05 of the Credit Agreement is hereby amended by replacing subsection (g) of such Section in its entirety with the following:
“(g) Dispositions by the Borrower of National Data Corporation of Canada, NDC Health Limited, Infopharm Ltd., HealthTran LLC, MedPrint, NDC Health Holding GmbH, NDC Health GmbH & Co KG and NDC Health Mgt GmbH for
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fair value and for at least 75% in cash consideration, with the Net Cash Proceeds thereof to be applied pursuant toSection 2.06(b).”
(c) Section 7.11 of the Credit Agreement is hereby amended by replacing subsection (a) of such Section in its entirety with the following:
“(a)Maximum Consolidated Total Leverage Ratio. Permit at any time a Consolidated Total Leverage Ratio of more than the amount set forth below during each period set forth below:
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Period During Quarter Ending
| | Ratio
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First through third Quarters of Fiscal Year 2005 | | 3.25:1.00 |
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Fourth Quarter of Fiscal Year 2005 | | 3.00:1.00 |
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Each Quarter of Fiscal Year 2006 and each Quarter thereafter” | | 2.75:1.00 |
(d) Section 7.13 of the Credit Agreement is hereby amended by deleting the amount “$20,000,000” appearing in the last line thereof and replacing it with the amount “$25,000,000”.
This Letter Amendment shall become effective as of the date (the “Effective Date”) when, and only when, (a) the Administrative Agent shall have confirmed that it has received counterparts of this Letter Amendment executed by the undersigned and at least the Required Lenders or, as to any of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Letter Amendment, (b) the Administrative Agent shall have received, for the account of each Lender executing this Letter Amendment by 5:00 pm on Friday, August 20, 2004, a fee equal to 0.1875% of the sum of such Lender’s Total Outstandings and unused Revolving Credit Commitment, (c) payment in full of all expenses of the Administrative Agent related to this Letter Amendment (including all outstanding legal fees of counsel to the Administrative Agent incurred in connection with the Credit Agreement since the last date of payment of such fees) shall have been made by the Borrower and (d) the Administrative Agent shall have received fully executed counterparts of the Consent attached hereto as Annex A.
On and after the effectiveness of this Letter Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the Notes and each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement, as amended by this Letter Amendment.
The Credit Agreement, the Notes and each of the other Loan Documents, as specifically amended by this Letter Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case as amended by this Letter Amendment. The execution, delivery and effectiveness
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of this Letter Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or any Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
To induce the Lenders and the Administrative Agent to enter into this Letter Amendment, each Loan Party hereby represents and warrants to the Lenders and the Administrative Agent that:
(a) the execution, delivery and performance by such Loan Party of this Letter Amendment have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of or default under, or the creation of any Lien under or require any payment to be made under, (i) any material Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law;
(b) this Letter Amendment has been duly executed and delivered for the benefit of or on behalf of each Loan Party and constitutes a legal, valid and binding obligation of each Loan Party, enforceable against such Loan Party in accordance with its terms except as the enforceability hereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’ rights generally; and
(c) after giving effect to this Letter Amendment, (i) the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (provided that, for these purposes, (x) the reference to the Borrower’s May 31, 2002 Audited Financial Statements in Section 5.05(a) of the Credit Agreement shall be deemed a reference to the Borrower’s May 31, 2003 Audited Financial Statements and (y) the reference to the date August 31, 2002 in Section 5.05(b) of the Credit Agreement shall be deemed a reference to August 31, 2003) and (ii) no Default or Event of Default has occurred and is continuing as of the date hereof.
The Borrower agrees to pay on demand all fees, costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Letter Amendment, including, without limitation, the reasonable fees and expenses of outside counsel for the Administrative Agent with respect thereto. This Letter Amendment shall be binding upon and inure to the benefit of the parties hereto, their respective successors, successors-in-titles, and assigns. This Letter Amendment sets forth the entire understanding of the parties with respect to the matters set forth herein, and shall supersede any prior negotiations or agreements, whether written or oral, with respect thereto.
The Lenders hereby authorize the Administrative Agent to take any actions that may be necessary or desirable in connection with effectuating the matters contemplated by
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paragraph (d) of this Letter Amendment, including without limitation the execution and delivery of suitable Lien releases or other documents.
If you agree to the terms and provisions hereof, please evidence such agreement by executing and returning a counterpart of this Letter Amendment to Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022, Attention: Alison Brophy, facsimile number (646) 848-4038.
This Letter Amendment 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 agreement. Delivery of an executed counterpart of a signature page to this Letter Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Letter Amendment.
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This Letter Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
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Very truly yours, |
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NDCHEALTH CORPORATION |
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By: | | /s/ Lee Adrean |
| | | Name: Lee Adrean |
| | | Title: Chief Financial Officer |
Agreed to as of the date first above written:
MERRILL LYNCH CAPITAL, a division of
Merrill Lynch Business Financial Services Inc.,
as Administrative Agent, Swing Line Lender and
as Lender
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| By: | | /s/ Troy Oder |
| | | Name: Troy Oder |
| | | Title: Vice President, MERRILL LYNCH CAPITAL |
| | |
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| | | , as a Lender |
[Insert Name of Financial Institution] | | |
ANNEX A
CONSENT
Dated as of August 20, 2004
Each of the undersigned, as Guarantor under the Guaranty dated November 26, 2002 (the “Guaranty”), in each case, in favor of the Secured Parties referred to in the Credit Agreement referred to in the foregoing Letter Amendment (the “Credit Agreement”) hereby consents to such Letter Amendment and hereby confirms and agrees that (a) notwithstanding the effectiveness of such Letter Amendment, the Guaranty is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that, on and after the effectiveness of such Letter Amendment, each reference in the Guaranty to the “Credit Agreement”, “thereunder”, “thereof” or words of like import shall mean and be a reference to the Credit Agreement, as amended by such Letter Amendment and (b) the Collateral Documents to which each of the undersigned is a party and all of the Collateral described therein do, and shall continue to, secure the payment of all of the Secured Obligations. Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement.
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| NDC HEALTH INFORMATION SERVICES (ARIZONA) INC. |
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By: | | /s/ Randolph L. M. Hutto |
| | | Name: Randolph L. M. Hutto |
| | | Title: General Counsel and Secretary, NDC Health Corporation |
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| NDC OF CANADA, INC. |
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By: | | /s/ Randolph L. M. Hutto |
| | | Name: Randolph L. M. Hutto |
| | | Title: General Counsel and Secretary, NDC Health Corporation |
