Exhibit 10.3
$2,000,000
AMENDMENT NO. 1
---------------
TO
--
LOAN AND SECURITY AGREEMENT
---------------------------
originally dated as of August 31, 2001
by and among
STAR MULTI CARE SERVICES, INC. (NY)
AMSERV HEALTH CARE OF OHIO, INC.
AMSERV HEALTH CARE OF NEW JERSEY, INC.
EFCC ACQUISITION CORP.
and
XXXXXX HEALTHCARE FINANCE, INC.
Amended as of December ____, 2001
AMENDMENT NO. 1 TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT (this "Amendment") is
made as of this 19th day of December, 2001, by and among STAR MULTI CARE
SERVICES, INC., a New York corporation, AMSERV HEALTH CARE OF OHIO, INC., a
Delaware corporation, AMSERV HEALTH CARE OF NEW JERSEY, INC., a Delaware
corporation, and EFCC ACQUISITION CORP., a New York corporation (collectively,
"Borrower"), and XXXXXX HEALTHCARE FINANCE, INC., a Delaware corporation
("Lender").
RECITALS
A. Pursuant to that certain Loan and Security Agreement dated as of August
31, 2001 by and between Borrower and Lender (as amended, modified and restated
from time to time, the "Loan Agreement"), the parties have established certain
financing arrangements that allow Borrower to borrow funds from Lender in
accordance with the terms and conditions set forth in the Loan Agreement.
B. The parties now desire to amend the Loan Agreement in accordance with
the terms and conditions set forth below.
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. Capitalized terms used but not defined in this Amendment shall have
the meanings that are set forth in the Loan Agreement.
1. Amendment to Section 6.31. Section 6.31 of the Loan Agreement is hereby
amended by adding the following new subsection (c):
(c) Borrower shall notify Lender with respect to whether or
not each payment required pursuant to the letter agreement referred to in
Section 6.32 hereof has been paid on or before the date each such payment
is due, such notices to be delivered in writing on or before each due date
under such letter agreement (February 6, 2002, May 7, 2002 and August 5,
2002).
2. New Section 6.32. The following new Section 6.32 is hereby added to the
Loan Agreement:
Section 6.32. Settlement Payments. Borrower covenants that it will
pay and perform or cause to be paid and performed all of the obligations
under that certain letter agreement of October 26, 2001 by and between
Star Multi Care Services, Inc. and the United States relating to payment
of certain Medicare obligations, in accordance with the schedule set forth
therein and without the benefit of any further extension.
1
3. Amendment to Section 8.1. Subsection (v) of Section 8.1 of the Loan
Agreement is hereby amended by deleting "January 31, 2002" from such subsection
(v) and by inserting "March 15, 2002" in lieu thereof.
4. Amendment to Section 8.1. Section 8.1 of the Loan Agreement is hereby
amended by deleting "or" from the end of subsection (u) thereof, deleting the
period (.) at the end of subsection (v) thereof, inserting "; or" at the end of
subsection (v) thereof, and by adding the following new subsection (w):
(w) Any payment required under that certain letter agreement
referred to in Section 6.32 hereof is not paid when due, without the
benefit of any further extension.
5. Costs and Expenses. Borrower agrees to pay all costs and expenses
incurred by Lender in connection with this Amendment, including legal fees of
Lender's in-house counsel in the amount of $1,000, which amount shall be added
to the balance of the Revolving Credit Loans on the date hereof.
6. Enforceability. This Amendment constitutes the legal, valid and binding
obligation of each entity comprising Borrower and is enforceable against each
such Borrower in accordance with its terms.
7. Reference to the Effect on the Loan Agreement.
(a) 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.
(b) Except as specifically amended above, the Loan Agreement and all
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(c) 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, or any other documents, instruments and
agreements executed or delivered in connection with the Loan Agreement.
8. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Maryland.
9. 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.
2
10. Counterparts. This Amendment may be executed in counterparts, and such
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
as of the date first written above.
LENDER:
XXXXXX HEALTHCARE FINANCE, INC.
a Delaware corporation
By: _________________________________
Name:
Title:
BORROWER:
STAR MULTI CARE SERVICES, INC.
a New York corporation
By: ____________________________(SEAL)
Name:
Title:
AMSERV HEALTH CARE OF OHIO, INC.
a Delaware corporation
By: ____________________________(SEAL)
Name:
Title:
AMSERV HEALTH CARE OF NEW JERSEY, INC.
a Delaware corporation
By: ____________________________(SEAL)
Name:
Title:
3
EFCC ACQUISITION CORP.
a New York corporation
By: ____________________________(SEAL)
Name:
Title:
4
