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EXHIBIT 10.25
AMENDMENT NO. 2
Dated as of November 14, 1996
This AMENDMENT among U.S. HOMECARE CORPORATION AND ITS
SUBSIDIARIES LISTED IN ANNEX 1 HERETO (collectively, the "Borrowers" and each,
individually, a "Borrower"), the banks parties to the Credit Agreement referred
to below (the "Banks"), and THE CHASE MANHATTAN BANK (successor by merger to The
Chase Manhattan Bank, N.A.), as agent (the "Agent") for the Banks thereunder.
PRELIMINARY STATEMENT.
A. The Borrowers, the Banks and the Agent have entered into an
Amended and Restated Credit Agreement dated as of October 6, 1995, as amended by
Amendment No. 1 dated as of October 31, 1996 (said Credit Agreement, as so
amended, being hereinafter referred to as the "Credit Agreement"; the terms
defined therein being used herein as therein defined unless otherwise defined
herein).
B. Pursuant to the Credit Agreement, the Borrowers are indebted
to the Banks under the Notes in the aggregate principal amount of $4,128,919.73,
as of the date hereof (the "Indebtedness"), which Indebtedness is owed by the
Borrowers to the Banks without offset, defense or counterclaim of any kind,
nature or description. As security for such Indebtedness, the Borrowers have
heretofore granted to the Banks a first priority security interest in all the
Borrowers' assets (such security interest having been partially released by the
Banks pursuant to the Partial Release Letter), whether now owed or hereafter
acquired, wherever located of any kind, nature or description, tangible or
intangible, including without limitation, the Borrowers' accounts receivable,
inventory, equipment, and general intangibles, and such security interests and
liens granted by the Borrowers to the Banks are, subject to the terms of the
Partial Release Letter, hereby reacknowledged and confirmed by the Borrowers.
C. The Borrowers, the Banks and the Agent have agreed to amend
the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments. The Credit Agreement is, effective as
of the date hereof and subject to the satisfaction of the conditions precedent
set forth in Section 3 hereof, hereby amended as follows:
(a) The following new definition is added in proper
alphabetical order to Section 1.1 of the Credit Agreement:
"EBITDA" shall mean, for any Person, for any period,
earnings before Interest Expense, taxes, depreciation, amortization and
extraordinary items for such period of such Person determined in
accordance with GAAP.
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(b) Section 8.1 is amended and restated in its entirety to
read as follows:
Section 8.1 Minimum Earnings. The Borrowers shall
maintain on a consolidated basis at all times as of the end of each
calendar month EBITDA of not less than 90% of the projected EBITDA for
such month as set forth in the Borrowers' business plan dated October
23, 1996.
(c) Subsection (l) of Section 6.8 is amended and restated in
its entirety to read as follows:
(l) as soon as available, and in any event within 25
days of the end of each calendar month, (i) a Borrowing Base
Certificate, and (ii) computations demonstrating compliance with the
covenant contained in Section 8.1, each certified by the Borrowers'
chief financial officer as of the close of business as of the end of
such month and after giving effect to all transactions occurring on
such day under the Sale Agreement;
(d) Subsection (n) of Section 6.8 is amended and restated in
its entirety to read as follows:
(n) immediately upon the request of the Agent or any
Bank from time to time (but not more often than once per calendar month
for the month just ended), and in no event later than 2 Banking Days
following any such request, a list setting forth the names and
addresses of all account debtors, an aging schedule with respect to
Receivables, classified according to the names of all account debtors,
an aging schedule with respect to accounts payable, a reconciliation of
Receivables and loan reconciliations, each certified by the Borrowers'
chief financial officer and in form and substance satisfactory to the
Agent;
(e) Subsection (n) of Section 9.1 is amended and restated in
its entirety to read as follows:
(n) at any time prior to the Termination Date, any of
the turnaround consultants providing consulting services to the
Borrowers as of October 31, 1996 shall no longer be providing such
consulting services;
SECTION 2. Waivers. Effective as of September 30, 1996 and
subject to the satisfaction of the conditions precedent set forth in Section 3
hereof, the Agent and the Banks hereby waive any Default or Event of Default due
to the Borrowers' failure to comply with (i) the covenant contained in Section
8.1 of the Credit Agreement for the fiscal quarter ending September 30, 1996,
and (ii) the covenant contained in Section 8.4 of the Credit Agreement for the
fiscal quarters ending September 30, 1996 and December 31, 1996.
SECTION 3. Conditions of Effectiveness. This Amendment shall
become effective when, and only when, the Agent shall have received counterparts
of this Amendment executed by the Borrowers and all of the Banks , except that
Sections 1 and 2 hereof shall become
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effective when, and only when, the Agent shall have additionally received all of
the following documents, each document (unless otherwise indicated) being dated
the date of receipt thereof by the Agent (which date shall be the same for all
such documents), in form and substance satisfactory to the Banks:
(a) Certified copies of (i) the resolutions of the Board of
Directors of each Borrower approving this Amendment and the matters contemplated
hereby, (ii) all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Amendment and the matters
contemplated hereby, and (iii) all waivers and amendments with respect to the
Junior Debt concerning the matters covered by this Amendment.
(b) A certificate of the Secretary or an Assistant Secretary
of each Borrower certifying the names and true signatures of the officers of
such Borrower authorized to sign this Amendment and the other documents to be
delivered hereunder.
(c) Payment of a $25,000 fee to the Agent for the ratable
benefit of the Banks.
SECTION 4. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
(b) The execution, delivery and performance by such Borrower
of this Amendment and the Facility Documents, as amended hereby, to which it is
or is to be a party are within such Borrower's corporate powers, have been duly
authorized by all necessary corporate action and do not contravene (i) such
Borrower's charter or by-laws, (ii) any contractual restriction binding on or
affecting such Borrower, or result in, or require, the creation or imposition of
any mortgage, deed of trust, pledge, lien, security interest or other charge,
encumbrance or preferential arrangement of any nature upon or with respect to
any of the properties now owned or hereafter acquired by such Borrower, or (iii)
to the best of such Borrower's knowledge, any law.
(c) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by such Borrower of
this Amendment or any of the Facility Documents, as amended hereby, to which it
is or is to be a party.
(d) This Amendment and each of the other Facility Documents
as amended hereby, to which such Borrower is a party constitute legal, valid and
binding obligations of such Borrower enforceable against such Borrower in
accordance with their respective terms.
(e) To the best of such Borrower's knowledge, the Security
Agreement constitutes valid and perfected first priority security interests and
liens in and to the Collateral covered thereby enforceable against all third
parties in all jurisdictions and secure the payment of
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all obligations of such Borrower under the Facility Documents, as amended
hereby, and the execution, delivery and performance of this Amendment do not
adversely affect the aforesaid security interests and liens of such Security
Agreement.
(f) There is no pending or threatened action or proceeding
affecting such Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator, which may materially adversely affect the
financial condition or operations of such Borrower or any Subsidiary or which
purport to affect the legality, validity or enforceability of this Amendment or
any of the other Facility Documents, as amended hereby, except as set forth in
Schedule 4(f) hereto.
(g) After giving effect to the terms of the Amendment, no
event has occurred and is continuing which constitutes a Default or an Event of
Default.
SECTION 5. Reference to and Effect on the Facility Documents.
(a) Upon the effectiveness of Sections 1 and 2 hereof, on and after the date
hereof each reference in the Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import, and each reference in any Facility
Documents to the Credit Agreement or any other Facility Document, shall mean and
be a reference to the Credit Agreement or such other Facility Document as
amended hereby.
(b) Except as specifically amended above, the Credit
Agreement and the other Facility Documents shall remain in full force and effect
and are hereby ratified and confirmed. Without limiting the generality of the
foregoing, the Pledge Agreements and all of the Pledged Collateral described
therein, and the Security Agreement and all of the Collateral described therein,
do and shall continue to secure the payment of all Obligations, in each case as
amended hereby.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Agent or any Bank under any of the Facility
Documents, nor constitute a waiver of any provision of any of the Facility
Documents.
(d) The Agent and the Banks are under no obligation to grant
the waivers contained in this Amendment. The Agent's and the Banks' granting of
such waivers shall not be deemed to limit or hinder any rights of the Agent or
any Bank under the Credit Agreement, nor shall it be deemed to create or infer a
course of dealing between the Agent or any Bank and the Parent or any of the
other Borrowers with regard to any provision of the Credit Agreement.
SECTION 6. Costs, Expenses and Taxes. The Borrowers jointly
and severally agree to pay on demand all costs and expenses of the Agent and the
Banks in connection with the preparation, execution and delivery of this
Amendment and the other instruments and documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Agent and the Banks with respect thereto and with respect to
advising the Agent and the Banks as to their rights and responsibilities
hereunder and thereunder. The Borrowers further jointly and severally agree to
pay on demand all costs and
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expenses, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Amendment and the other instruments and
documents to be delivered hereunder, including, without limitation, reasonable
counsel fees and expenses in connection with the enforcement of rights under
this Section 6. In addition, the Borrowers shall pay any and all stamp and other
taxes payable or determined to be payable in connection with the execution and
delivery of this Amendment and the other instruments and documents to be
delivered hereunder, and agrees to save the Agent and the Banks harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes.
SECTION 7. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
SECTION 8. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized, as of the
date first above written..
Borrowers:
U.S. HOMECARE CORPORATION AND ITS
SUBSIDIARIES LISTED ON ANNEX 1 HERETO
By: ____________________________________
Name:
Vice President of each of the above
corporations
Banks:
THE CHASE MANHATTAN BANK (successor by
merger to The Chase Manhattan Bank, N.A.)
By: ____________________________________
Xxxx Xxxxxxxxx
Vice President
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CREDITANSTALT BANKVEREIN
By: ____________________________________
X. X. Xxxxxx
Vice President
By: ____________________________________
Xxxxx Xxxxxx
Vice President
Agent:
THE CHASE MANHATTAN BANK (successor by
merger to The Chase Manhattan Bank, N.A.)
By: ____________________________________
Xxxx Xxxxxxxxx
Vice President
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ANNEX 1
U.S. HOMECARE CORPORATION, AFFILIATED HOME CARE OF WESTCHESTER, INC., U.S.
HOMECARE CORPORATION OF NORTHERN WESTCHESTER, U.S. HOMECARE CORPORATION OF
MANHATTAN, U.S. HOMECARE CORPORATION OF THE BRONX, U.S. HOMECARE CERTIFIED
CORPORATION OF NEW YORK, U.S. HOMECARE CORPORATION OF ALBANY, U.S. HOMECARE
INFUSION THERAPY SERVICES CORPORATION OF NEW JERSEY, U.S. HOMECARE CORPORATION
OF CONNECTICUT, U.S. HOMECARE CERTIFIED CORPORATION OF CONNECTICUT, U.S.
HOMECARE CORPORATION OF PENNSYLVANIA, U.S. HOMECARE CERTIFIED CORPORATION OF
PENNSYLVANIA, U.S. HOMECARE MEDICAL EQUIPMENT CORP., U.S. HOMECARE INFUSION
THERAPY PRODUCTS CORPORATION, U.S. HOMECARE INFUSION THERAPY SERVICES
CORPORATION OF CONNECTICUT, U.S. HOMECARE CORP. OF SOUTH FLORIDA, U.S. HOMECARE
CERTIFIED CORP. OF FLORIDA, U.S. HOMECARE INFUSION THERAPY CORP. OF FLORIDA,
U.S. HOMECARE CORPORATION OF THE MIDATLANTIC REGION, U.S. HOMECARE CORPORATION
OF MICHIGAN, U.S. HOMECARE CORPORATION OF CALIFORNIA
