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Exhibit 10.23
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This First Amendment to the Second Amended and Restated Loan and
Security Agreement ("Amendment"), dated October 20, 1999, is entered into by and
among each of the corporations referred to as a Borrower on the signature pages
attached hereto (each of the foregoing individually, a "Borrower" and
collectively, "Borrowers") and Mellon Bank, N.A. ("Lender").
BACKGROUND
A. Lender and Borrowers are parties to a certain Second Amended and
Restated Loan and Security Agreement dated September 24, 1999 (as heretofore or
hereafter amended, modified, supplemented or replaced from time to time ("Loan
Agreement").
B. In conjunction with arrangements to consummate the Spin-Off, and as
a result of the variation of Borrowers' actual performance from projections
previously delivered to Lender, Borrowers have determined a need to modify the
required minimum Excess Borrowing Availability set forth in Section 8.5(b) of
the Loan Agreement. Lender is willing to accommodate Borrowers' request subject
to the terms and conditions of this Amendment.
NOW, THEREFORE, the parties hereto, intended to be legally bound,
hereby promise and agree as follows:
1. Excess Borrowing Availability ATC. Section 8.5(b)(iv) of the Loan
Agreement is hereby amended to read as follows: "Lender shall have received
evidence on the date subsections (i) and (ii) above are satisfied that, after
giving effect to the payment described in subsection (i) above, Staff Builders
and the ATC Group have a minimum Excess Borrowing Availability (as defined in
the ATC Loan Documents) of $1,000,000."
2. Excess Borrowing Availability TLC. Section 8.5(b)(v) of the Loan
Agreement is hereby amended to read as follows: "Lender shall have received
evidence on the date subsections (i) and (ii) above are satisfied that, after
giving effect to the payment described in subsection (i) above, Borrowers have a
minimum Excess Borrowing Availability of $1,100,000."
3. Future Excess Availability Covenant. Section 6.12(d) of the Loan
Agreement is hereby amended to read as follows:
"Borrowers shall have and maintain, on a consolidated basis,
an Excess Formula Availability of not less than $1,000,000 on
Thursday of each week and not less than $1,500,000 on Friday
of each week (measured at 2:00 p.m. on every such date);
provided, however, that for the period from October 1, 1999
through December 11, 1999 (solely for the purposes of this
covenant),
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clause (i) of the definition of Excess Formula Availability
shall mean 'an amount equal to eighty percent (80%) of
Qualified Accounts.' "
4. Amendment Fee. In consideration of the agreements and undertaking
set forth herein, Lender has hereby earned an amendment fee of $20,000, which
shall be paid by Borrowers on October 21, 1999.
5. Acknowledgment, Waiver and Release. Borrowers acknowledge and agree
that the outstanding principal indebtedness under the Loan Agreement as of the
close of business on October 19, 1999 is $15,840,965.24, which, together with
accrued interest, fees and expenses, is owing without offset, defense,
deduction, claim or counterclaim. Borrowers each waive any defense of any kind
or nature whatsoever to their obligations to Lender and each releases and
discharges Lender, its successors, assigns, officers, agents and
representatives, of and from any and all claims, demands, counterclaims,
cross-claims, losses, liabilities and damages, whether direct or indirect, known
or unknown, matured or contingent, due or to become due, asserted or unasserted,
at law or in equity.
6. No Waiver by Lender. This Amendment does not and shall not be deemed
to constitute a waiver by Lender of any breach or violation of any
representation, warranty or covenant made or agreed to by any Borrower under the
Loan Agreement as amended hereby, and all of Lender's claims and rights and
rights resulting from any such breach or misrepresentation by any Borrower, are
expressly reserved by Lender. This Amendment does not obligate Lender to agree
to any further extension or any other modification of the Loan Agreement nor
does it constitute a waiver of any other rights or remedies of Lender.
7. Incorporation. This Amendment shall amend, and is incorporated into
and made part of, the Loan Agreement. All references to the Loan Agreement shall
mean the Loan Agreement as amended hereby. To the extent that any term or
provision of this Amendment is or may be deemed expressly inconsistent with any
term or provision in the Loan Agreement, the terms and provisions hereof shall
control. Except as expressly amended by this Amendment, all of the terms and
conditions of the Loan Agreement continue unchanged and remain in full force and
effect.
8. No Modification. No modification hereof or of any agreement referred
to herein shall be binding or enforceable unless in writing and signed on behalf
of the party against whom enforcement is sought. This Amendment supersedes any
drafts or prior versions of this document and represents the final agreement of
the parties regarding the subject matter hereof.
9. Successors and Assigns. This Amendment will be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
10. Governing Law. This Amendment shall be governed by, and construed
and enforced in accordance with the laws of the Commonwealth of Pennsylvania,
excluding its conflict of laws rule.
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11. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Signature by facsimile shall also bind the parties hereto.
[Remainder of page intentionally left blank]
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment on the
date first written above.
LENDER:
MELLON BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
BORROWERS:
XXXXXX XXXXXXXX HOME CARE, INC.,
a Delaware corporation
XXXXXX XXXXXXXX SERVICES CORPORATION,
a Pennsylvania corporation
CARECO, INC.,
a Massachusetts corporation
ETHICARE CERTIFIED SERVICES, INC.,
a New York corporation
HOME HEALTH CARE, INC.,
a Maryland corporation
MEDVISIT, INC.,
a North Carolina corporation
PERSONNEL INDUSTRIES, INC.
a Maryland corporation
PROFESSIONAL DETAIL SERVICES, INC.,
a New York corporation
A RELIABLE HOMEMAKER OF XXXXXX - ST.
LUCIE COUNTY, INC.,
a Florida corporation
S.B. ASSURED HOME CARE, INC.,
a Delaware corporation
S.B.H.F., INC.,
a New York corporation
S.B.P.P., INC.,
a Delaware corporation
STAFF BUILDERS, INC.,
a New York corporation
STAFF BUILDERS HOME HEALTH CARE, INC.,
a Delaware corporation
STAFF BUILDERS INTERNATIONAL, INC.,
a New York corporation
STAFF BUILDERS PRESCRIPTION SERVICES, INC.,
a Colorado corporation
STAFF BUILDERS PRESCRIPTION SERVICES, INC.,
a Florida corporation
STAFF BUILDERS SERVICES, INC.,
a New York corporation
ST. LUCIE HOME HEALTH AGENCY, INC.,
a Florida corporation
T.L.C. HOME HEALTH CARE, INC.,
a Florida corporation
T.L.C. MEDICARE SERVICES OF BROWARD, INC.,
a Florida corporation
T.L.C. MEDICARE SERVICES OF DADE, INC.,
a Florida corporation
T.L.C. MIDWEST, INC.,
a Delaware corporation
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TENDER LOVING CARE HEALTH CARE SERVICES,
INC.,
a Connecticut corporation
TENDER LOVING CARE HEALTH CARE SERVICES,
INC.,
a Delaware corporation
TENDER LOVING CARE HOME CARE SERVICES,
INC.,
a New York corporation
TENDER LOVING CARE PRIVATE PATIENT
COMPANY, INC.,
a Florida corporation
U.S. ETHICARE CORPORATION,
a Delaware corporation
U.S. ETHICARE ALBANY CORPORATION,
a New York corporation
U.S. ETHICARE CHAUTAUQUA CORPORATION,
a New York Corporation
U.S. ETHICARE ERIE CORPORATION,
a New York Corporation
U.S. ETHICARE NIAGARA CORPORATION,
a New York corporation
U.S. ETHICARE ONONDAGA CORPORATION,
a New York corporation
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: on behalf of and as
Executive Vice President
of each of the foregoing
corporations
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