Exhibit 10.1
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT
----------------------------------------------
THIS AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT (the "Amendment") is made as
of this 13 day of January, 2005, by and between/among "Borrower" (as defined
below) and "Lender" (as defined below).
RECITALS
--------
A. As used herein, the term "Borrower" shall mean the following
collectively: New York Health Care, Inc., a New York corporation ("New York
Health Care"); and NYHC Newco Paxxon, Inc., a New York corporation.
B. As used herein, the term "Lender" shall mean GE HFS Holdings, Inc., a
Delaware corporation, f/k/a Xxxxxx Healthcare Finance, Inc.
C. One or more of the entities designated above as "Borrower" are the
existing borrowers under a certain Loan and Security Agreement dated as of
November 28, 2000, by and between such existing borrowers and Lender (as the
same may have been amended, restated or modified from time to time, including by
that certain Amendment No. 1 to Loan and Security Agreement and Consent and
Waiver, dated as of November 26, 2002, by and among Borrower and Lender, that
certain Amendment No. 2 to Loan and Security Agreement and Consent and Waiver,
dated as of March 29, 2004, by and among Borrower and Lender, and that certain
Amendment No. 3 to Loan and Security Agreement, dated as of November 29, 2004,
by and among Borrower and Lender, and as the same may be amended by this
Amendment, the "Loan Agreement"). All capitalized terms not otherwise defined
herein shall have the meanings given them in the Loan Agreement.
D. Borrower and Lender desire hereby to amend the Loan Agreement as
hereinafter provided.
NOW, THEREFORE, in consideration of the premises set forth above, the terms and
conditions contained in this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lender and Borrower have agreed to the following amendments to the Loan
Agreement:
1. Recitals. The foregoing recitals, including all terms defined therein,
--------
are incorporated herein and made a part hereof.
2. Definition of "Change in Control". Section 1.10a of the Loan Agreement
-----------------------------------
is hereby deleted in its entirety, and in its place there is hereby inserted the
following:
"SECTION 1.10A. CHANGE IN CONTROL. "Change in Control" means (a)
--------------------
individuals who, as of the Closing Date, constituted the board of directors
of Borrower (together with any new directors whose election by that board
of directors or whose nomination for election by the stockholders of
Borrower was approved by two-thirds of the directors of Borrower then still
in office who were either directors at the beginning of the period or whose
election or nomination for election was previously approved), cease for any
reason to constitute a majority of the board of directors of Borrower then
in office, (b) either of Xxxxx Xxxxx or Xxxxx Xxxxxxxxx ceases to be Chief
Executive Officer or Chief Financial Officer and Chief Operating Officer of
the home healthcare business of Borrower, respectively, or (c) either of
Xxxxx Xxxxx or Xxxxx Xxxxxxxxx ceases on a day to day basis to function as
an executive member of the management of the home healthcare business of
Borrower, as determined by Lender in its sole discretion."
3. Miscellaneous.
--------------
(a) Further Documentation. In the event any further documentation or
----------------------
information is deemed necessary or appropriate by Lender in the exercise of its
rights under the Loan Documents or to correct patent mistakes in the Loan
Documents, Borrower shall provide, or cause to be provided, to Lender such
documentation or information. Borrower shall execute and deliver to Lender such
documentation, including but not limited to, any amendments, corrections,
deletions or additions to the Loan Documents as is required by Lender; provided,
however, that Borrower shall not be required to do anything that has the effect
of changing the essential economic terms of the loan set forth in the Loan
Documents.
(b) References. Upon the effectiveness of this Amendment, each
----------
reference in the Loan Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of similar import shall mean and be a reference to the Loan
Agreement as amended by this Amendment.
(c) Affirmation. Except as specifically amended above, the Loan
-----------
Agreement, and all other Loan Documents (and all covenants, terms, conditions
and agreements therein), shall remain in full force and effect, and are hereby
ratified and confirmed in all respects by Borrower. Borrower covenants and
agrees to comply with all of the terms, covenants and conditions of the Loan
Agreement, as amended hereby, notwithstanding any prior course of conduct,
waivers, releases or other actions or inactions on Lender's part which might
otherwise constitute or be construed as a waiver of or amendment to such terms,
covenants and conditions.
(d) No Waiver. The execution, delivery and effectiveness of this
----------
Amendment shall not, except as expressly provided in this Amendment, operate as
a waiver of any right, power or remedy of Lender, nor constitute a waiver of any
provision of the Loan Agreement, the Loan Documents or any other documents,
instruments and agreements executed or delivered in connection with any of the
foregoing. Nothing herein is intended or shall be construed as a waiver of any
existing defaults or Events of Default under the Loan Agreement or other Loan
Documents or any of Lender's rights and remedies in respect of such defaults or
Events of Default.
(e) No Novation. This Amendment (together with any other document
------------
executed in connection herewith) is not intended to be, nor shall it be
construed as, a novation of the Loan Agreement.
(f) Governing Law. This Amendment shall be governed by and construed
--------------
in accordance with the laws of the State of Maryland, without regard to any
otherwise applicable conflicts of law principles.
(g) Headings. Section headings in this Amendment are included for
--------
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(h) Counterparts. This Amendment may be executed in counterparts, and
------------
both counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, intending to be legally bound, and intending that this
instrument constitute an instrument executed under seal, the parties have caused
this Amendment to be executed as of the date first written above.
LENDER:
GE HFS HOLDINGS, INC.
f/k/a XXXXXX HEALTHCARE FINANCE, INC.
a Delaware corporation
By: /s/ X.Xxxxx Xxxxxxxx
---------------------------
Name: X. Xxxxx Whiteley
Title: Duly Authorized Signature
BORROWER:
NEW YORK HEALTH CARE, INC.
a New York corporation
By: /s/ Xxxxx Xxxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxxx
Title: C.O.O.
NYHC NEWCO PAXXON, INC.
a New York corporation
By: /s/ Xxxxx Xxxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxxx
Title: C.O.O.
