Exhibit 10.1
AMENDMENT NO. 1
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
("Amendment") is dated as of September 29, 1999, by and among FLEET CAPITAL
CORPORATION ("Fleet"), a Rhode Island corporation with an office at Xxx Xxxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, individually as a lender
hereunder and in its capacity as agent (in such capacity, the "Agent") for
itself and any other financial institution that is or becomes a lender hereunder
(Fleet, in its individual capacity as a lender, and each such other financial
institution are sometimes referred to herein individually as a "Lender" and
collectively as the "Lenders"); the Lenders; INTEGRA NEUROCARE LLC ("Integra"),
a Delaware limited liability company, XXXXXXX NEUROCARE LLC ("Xxxxxxx"), a
Delaware limited liability company, XXXXX-XXXXXXX NEUROCARE, INC. ("Neurocare
Inc."), a Delaware corporation, and CAMINO NEUROCARE, INC. ("Camino"), a
Delaware corporation (Integra, Xxxxxxx, Neurocare Inc. and Camino are sometimes
referred to herein individually as a "Borrower" and collectively as
"Borrowers"), and Integra, in its capacity as borrowing agent (in such capacity,
"Borrowing Agent") for itself and the other Borrowers. Capitalized terms used
herein but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Loan Agreement referred to herein below.
WITNESSETH:
WHEREAS, the Borrowers, the Borrowing Agent, the Agent and the Lenders
have entered into that certain Amended and Restated Loan and Security Agreement
dated as of March 29, 1999 (the "Loan Agreement"), pursuant to which the Lenders
have agreed to make certain loans and other financial accommodations to or for
the account of the Borrowers;
WHEREAS, the respective Borrowers have requested that the Agent and the
Lenders amend the Loan Agreement; and
WHEREAS, the Agent and the Lenders have agreed to amend the Loan Agreement
on the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
respective parties hereto hereby agree as follows:
1 Amendment to Loan Agreement. Effective as of the date hereof, upon
satisfaction of the conditions precedent set forth in Section 2 below, and in
reliance upon the representations and warranties of the respective Borrowers and
the Borrowing Agent set forth herein, the Loan Agreement is hereby amended as
follows:
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1.1 Section 4 of Exhibit C (Financial Covenants) to the Loan Agreement is
hereby deleted in its entirety and the following language is hereby substituted
therefor:
4. Adjusted Tangible Net Worth. The Borrowers shall not permit Adjusted
Tangible Net Worth at any time during the periods set forth below to be
less than the amount set forth below for such period:
Period Amount
------ ------
March 31, 1999 through
June 29, 1999 $ 2,500,000
June 30, 1999 through
September 29, 1999 $ 3,000,000
September 30, 1999 through
December 30, 1999 $ 2,350,000
December 31, 1999 through
March 30, 2000 $ 4,350,000
March 31, 2000 through
June 29, 2000 $ 4,350,000
June 30, 2000 through
September 29, 2000 $ 5,350,000
September 30, 2000 through
December 30, 2000 $ 6,350,000
December 31, 2000 through
March 30, 2001 $ 8,350,000
March 31, 2001 through
June 29, 2001 $ 8,600,000
June 30, 2001 through
September 29, 2001 $ 9,850,000
September 30, 2001 through
December 30, 2001 $11,100,000
December 31, 2001 through
March 30, 2002 $14,100,000
March 31, 2002 through
June 29, 2002 $14,100,000
June 30, 2002 through
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December 30, 2002 $16,100,000
December 31, 2002 through
December 30, 2003 $19,100,000
At any time thereafter $24,100,000
"Adjusted Tangible Net Worth" will be calculated in the manner set forth
in Exhibit B.
2 Conditions Precedent. This Amendment shall become effective as of the
date hereof, upon receipt by the Agent of four (4) copies of this Amendment,
duly executed by each of the Lenders, each of the Borrowers and the Borrowing
Agent and acknowledged by Holding.
3 Representations, Warranties and Covenants.
3.1 Each of the Borrowers and the Borrowing Agent hereby represents
and warrants to the Agent and each of the Lenders that, after giving
effect to this Amendment:
(a) All representations and warranties contained in the Loan
Agreement and the other Loan Documents are true and correct in all
material respects on and as of the date of this Amendment, in each
case as if then made, other than representations and warranties that
expressly relate solely to an earlier date (in which case such
representations and warranties remain true and accurate on and as of
such earlier date);
(b) No Default or Event of Default has occurred which is
continuing;
(c) This Amendment, and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of the Borrowers and
the Borrowing Agent, respectively, and are enforceable against each
of the Borrowers and the Borrowing Agent in accordance with their
respective terms; and
(d) The execution and delivery by the Borrowers and the
Borrowing Agent of this Amendment does not require the consent or
approval of any Person, except such consents and approvals as have
been obtained.
4 Reference to and Effect on the Loan Agreement and the Other Loan
Documents.
4.1 Upon the effectiveness of this Amendment, each reference in the
Loan Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import, and each reference in each of the other Loan
Documents to the "Loan Agreement" shall in each case mean and be a
reference to the Loan Agreement as amended hereby.
4.2 Except as expressly set forth herein, (i) the execution and
delivery of this Amendment shall in no way affect any of the respective
rights, powers or remedies of the Agent or any of the Lenders with respect
to any Event of Default nor constitute a waiver of any provision of the
Loan Agreement or any of the other Loan Documents and (ii) all of the
respective terms and provisions of the Loan Agreement, the other Loan
Documents and all other documents, instruments, amendments and agreements
executed and/or delivered by any of the Borrowers and/or the Borrowing
Agent pursuant thereto or in connection therewith shall
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remain in full force and effect and are hereby ratified and confirmed in
all respects. The execution and delivery of this Amendment by the Agent
and each of the Lenders shall in no way obligate the Agent or any of the
Lenders, at any time hereafter, to consent to any other amendment or
modification of any term or provision of the Loan Agreement or any of the
other Loan Documents, whether of a similar or different nature.
5 Governing Law. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAWS AND DECISIONS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
6 Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
7 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto in 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. Any such counterpart
which may be delivered by facsimile transmission shall be deemed the equivalent
of an originally signed counterpart and shall be fully admissible in any
enforcement proceedings regarding this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the date first set forth above.
FLEET CAPITAL CORPORATION, in its
individual capacity as a
Lender and in its capacity as Agent
By:_____________________________
Name:___________________________
Title:______________________
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INTEGRA NEUROCARE LLC
By: NEUROCARE HOLDING CORPORATION, its
sole Member
By:___________________________________
Name:_________________________________
Title:_____________________________
XXXXXXX NEUROCARE LLC
By: INTEGRA NEUROCARE LLC, its
sole Member
By: NEUROCARE HOLDING CORPORATION,
its sole Member
By:____________________________
Name:__________________________
Title:______________________
XXXXX-XXXXXXX NEUROCARE, INC.
By:___________________________________
Name:_________________________________
Title:_____________________________
CAMINO NEUROCARE, INC.
By:___________________________________
Name:_________________________________
Title:_____________________________
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ACKNOWLEDGMENT AND CONSENT
Reference is hereby made to that certain Guaranty dated as of March
29, 1999, executed by the undersigned, NEUROCARE HOLDING CORPORATION, a Delaware
corporation ("Guarantor"), in favor of FLEET CAPITAL CORPORATION, a Rhode Island
corporation, acting in its capacity as Agent for the Lenders from time to time
under the Loan and Security Credit Agreement referred to in the foregoing
Amendment No. 1 to Amended and Restated Loan and Security Credit Agreement (the
"Amendment").
Guarantor hereby (i) acknowledges receipt of a copy of the Amendment
and (ii) agrees that the terms and provisions thereof shall not affect in any
way the obligations and liabilities of Guarantor under the Guaranty or any of
the other Loan Documents, all of which obligations and liabilities shall remain
in full force and effect and each of which are hereby reaffirmed.
NEUROCARE HOLDING CORPORATION, a
Delaware corporation
By:__________________________
Name:________________________
Title:____________________
Dated as of September 29, 1999
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