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EXHIBIT 10.29
AMENDMENT NO. 1 AND WAIVER AGREEMENT
This AMENDMENT NO. 1 AND WAIVER AGREEMENT (this "Agreement") is dated
as of January 15, 1998, by and among INTENSIVA HEALTHCARE CORPORATION, a
Delaware corporation ("Parent"), the Subsidiaries of Parent listed on the
signature pages hereof (together with the Parent, collectively "Borrowers"), and
XXXXXX FINANCIAL, INC., a Delaware corporation ("Lender" or "Xxxxxx").
RECITALS
WHEREAS, Xxxxxx and Borrowers are parties to that certain Loan and
Security Agreement dated as of November 7, 1997 (the "Existing Loan Agreement",
and as amended by this Agreement, the "Amended Loan Agreement"; capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to them in the Existing Loan Agreement);
WHEREAS, Borrowers have informed Xxxxxx that they are in violation of
subsection 6.2 of the Existing Loan Agreement (the "Capital Expenditure
Violation") as a result of Capital Expenditures made by one or more Borrowers in
respect of certain acute care facilities of Intensiva Hospital of Macomb County,
Inc., a Missouri corporation ("Intensiva Macomb County") and Intensiva Hospital
of Sioux Falls, Inc., a Missouri corporation ("Intensiva Sioux Falls") during
the fiscal year ended December 31, 1997, in each case, in an aggregate amount
greater than $600,000 but less than $750,000 per acute care facility; and
WHEREAS, subject to the terms and conditions set forth herein, the
parties hereto desire to amend the Existing Loan Agreement and waive the Capital
Expenditure Violation as set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. AMENDMENTS TO LOAN AND SECURITY AGREEMENT
Subject to the satisfaction of the condition precedent set forth in
Section 4 of this Agreement, Borrowers and Xxxxxx hereby agree that the Existing
Loan Agreement be, and it hereby is, amended as follows:
1.1 General. Upon and after the date hereof, all references to "this
Agreement" in the Existing Loan Agreement, and all references to the "Loan
Agreement" or the "Loan and Security Agreement" in the other Loan Documents,
shall mean the Amended Loan Agreement. Except as expressly provided herein, the
execution and delivery of this Agreement does not and will not amend, modify or
supplement any provision of, or constitute a consent to or a waiver of any
noncompliance with the provisions of, the Existing Loan Agreement, and, except
as specifically
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provided in this Agreement, the Existing Loan Agreement shall remain in full
force and effect and is hereby ratified and confirmed.
1.2 Amendments to Subsection 5.1(F). Subsection 5.1(F) of the Existing
Loan Agreement is hereby amended by amending and restating said subsection to
read in its entirety as follows:
"(F) Reconciliation Reports, Listings and Agings. Within ten (10)
Business Days after the last day of each month commencing with the
month ending November 30, 1997, Borrowers will deliver to Lender:(1) an
aged trial balance of all then existing Accounts, (2) a Reconciliation
Report as at the last day of such month and (3) an aged trial balance
of all then existing accounts payable. All such reports shall be in
form and substance satisfactory to Lender."
SECTION 2. REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to Xxxxxx as follows:
(a) Representations in Amended Loan Agreement. After giving
effect to this Agreement all of the representations and warranties set
forth in the Amended Loan Agreement, will be accurate in all material
respects as of the date hereof.
(b) No Default or Event of Default. After giving effect to
this Agreement, no Default or Event of Default will exist under the
Amended Loan Agreement.
(c) Capital Expenditures During Fiscal Year 1997. The
aggregate amount of all Capital Expenditures of Borrowers and their
Subsidiaries (excluding trade-ins and excluding Capital Expenditures in
respect of replacement assets to the extent funded with casualty
insurance proceeds) did not exceed $7,000,000 in the aggregate during
the Fiscal Year ended December 31, 1997.
SECTION 3. WAIVER
3.1 Subject to the limitations contained in Section 3.2 below, Xxxxxx
hereby waives enforcement of subsection 6.2 of the Existing Loan Agreement
solely with respect to the Default and Event of Default that has occurred and is
continuing as a result of Capital Expenditures made by one or more Borrowers in
respect of certain acute care facilities of Intensiva Macomb County and
Intensiva Sioux Falls during the Fiscal Year ended December 31, 1997, in each
case, in an aggregate amount greater than $600,000 but less than $750,000 per
acute care facility.
3.2 The waiver provided for in this Section 3 applies solely to the
Defaults and Events of Default under subsection 6.2 of the Existing Loan
Agreement resulting from the Capital Expenditure Violation and occurring prior
to the date hereof. Without limiting the foregoing
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sentence, Xxxxxx expressly reserves any and all rights it may have under the
Amended Loan Agreement or any other Loan Documents arising out of or in
connection with any Default or Event of Default thereunder and not specifically
waived herein.
SECTION 4. CONDITIONS TO EFFECTIVENESS
The amendments set forth in Section 1 of this Agreement and the waiver
set forth in Section 3 of this Agreement, in each case, are to be effective only
upon the receipt by Xxxxxx of counterparts of this Agreement, duly executed and
delivered by each Borrower, in form and substance satisfactory to Xxxxxx.
SECTION 5. MISCELLANEOUS
5.1 Counterparts. This Agreement may be executed by each party to this
Agreement upon a separate copy, and in such case one counterpart of this
Agreement shall consist of enough of such copies to reflect the signature of all
of the parties to this Agreement. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or its terms to produce or account
for more than one of such counterparts.
5.2 Section References. The references in this Agreement to any section
are, unless otherwise specified, to such section of this Agreement.
5.3 Construction of Agreement. This Agreement is a Loan Document
executed pursuant to the Existing Loan Agreement and shall be construed,
administered and applied in accordance with all of the terms and provisions of
the Amended Loan Agreement.
5.4 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
5.5 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[Signatures commence on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers hereunder duly authorized as of the day
and year first above written.
BORROWERS:
INTENSIVA HEALTHCARE CORPORATION
By: /s/ Xxxx X. Xxxxx
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Title: Chief Financial Officer
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INTENSIVA HOSPITAL OF
AKRON, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
COLUMBUS, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
CORPUS CHRISTI, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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Amendment No.1 and Waiver Agreement - Signature Page 1
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INTENSIVA HOSPITAL OF
EASTERN OKLAHOMA, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
EVANSVILLE, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
FLINT, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
FORT XXXXX, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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Amendment No.1 and Waiver Agreement - Signature Page 2
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INTENSIVA HOSPITAL OF
GREATER ST. LOUIS, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
INDIANAPOLIS, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
KANSAS CITY, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
KNOXVILLE, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
MACOMB COUNTY, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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Amendment No.1 and Waiver Agreement - Signature Page 3
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INTENSIVA HOSPITAL OF
MUSKEGON, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
NORTHWEST INDIANA, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
OKLAHOMA CITY, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
PITTSBURGH, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
SIOUX FALLS, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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Amendment No.1 and Waiver Agreement - Signature Page 4
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INTENSIVA HOSPITAL OF
TACOMA, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
TOPEKA, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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INTENSIVA HOSPITAL OF
CINCINNATI, INC.
By: /s/ Xxxx X. Xxxxx
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Title: Treasurer
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LENDER:
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Vice President
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Amendment No.1 and Waiver Agreement - Signature Page 5
