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AMENDMENT NO. 4
Dated as of March 24, 1998
This AMENDMENT among U.S. HOMECARE CORPORATION AND ITS
SUBSIDIARIES LISTED IN ANNEX 1 HERETO (collectively, the "Borrowers" and each,
individually, a "Borrower") and FLEET NATIONAL BANK (successor by merger to
Fleet Bank, National Association)(the "Bank").
PRELIMINARY STATEMENT.
A. The Borrowers and the Bank have entered into a Credit
Agreement dated as of October 6, 1995, as amended by Amendment No. 1 dated as of
November 14, 1996, Amendment No. 2 dated as of March 25, 1997 and Amendment No.
3 dated as of December 24, 1997 (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 Bank under the Note in the principal amount of $3,000,000, as of
the date hereof (the "Indebtedness"), which Indebtedness is owed by the
Borrowers to the Bank without offset, defense or counterclaim of any kind,
nature or description. As security for such Indebtedness, the Borrowers have
heretofore granted to the Bank a second priority security interest in all the
Borrowers' assets (excluding certain health care receivables as more fully set
forth in the Security Agreement), 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 Bank are hereby reacknowledged and confirmed by
the Borrowers.
C. The Borrowers and the Bank have agreed to amend the Credit
Agreement as hereinafter set forth.
SECTION 1. Amendments.
(a) The Credit Agreement is, effective as of the date hereof
and subject to the satisfaction of the conditions precedent set forth in Section
2 hereof, hereby amended as follows:
(i) The following definition contained in
Section 1.1 of the Credit Agreement is
amended and restated in full to read as
follows:
"Termination Date" means (i) January 15,
1999; provided that if such date is not a Banking
Day, the Termination Date shall be the next
succeeding Banking Day, or (ii) the earlier date of
termination in whole of the Commitment pursuant to
Section 2.6 or Section 8.2, or otherwise.
(ii) A new Section 2.9 is added as follows:
Section 2.9 Extension Fee. So long as the
Note shall remain unpaid or the Bank shall have any
Commitment under this Agreement on May 1, 1998, an
extension fee in the amount of $10,000 shall be due
and payable by the Borrowers to the Bank on May 1,
1998, which fee shall be fully earned by the Bank on
May 1, 1998.
(iii) Section 5.12 is amended and restated in full
to read as follows:
Section 5.12 Amendment to Purchase
Agreement. By March 31, 1998, enter into an amendment
to the Purchase Agreement extending the maturity date
thereof to January 4, 1999, which amendment shall be
satisfactory to the Bank and the Guarantor.
(b) The Note is, effective as of the date hereof and subject
to the satisfaction of the conditions precedent set forth in Section 2 hereof,
hereby amended as follows:
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The following definition contained in Section 1(ix) of the
Note is amended and restated in full to read as follows:
(ix) "Termination Date" means January 15, 1999.
SECTION 2. Waivers. Effective as of December 31, 1997, and
subject to the satisfaction of the conditions precedent set forth in Section 3
hereof, the Bank hereby waives any Default or Event of Default due to the
Borrowers' failure to comply with the covenant contained in Section 7.1 for the
month of December, 1997.
SECTION 3. Conditions of Effectiveness. This Amendment shall
become effective when, and only when, the Bank shall have received counterparts
of this Amendment executed by the Borrowers and the Bank and the consent hereto
executed by the Guarantor, except that Section 1 hereof shall become effective
when, and only when, the Bank shall have additionally received all of the
following documents, each document (unless otherwise indicated) being dated the
date of receipt thereof by the Bank (which date shall be the same for all such
documents), in form and substance satisfactory to the Bank and the Guarantor:
(a) Certified copies of (i) the resolutions of the Board of
Directors or Executive Committee 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 Senior Debt (as defined in the Intercreditor
Agreement) concerning the matters covered by this Amendment, which shall include
an amendment to the Senior Debt (as defined in the Intercreditor Agreement)
documents extending the maturity date thereof to January 4, 1999.
(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) A favorable opinion of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP,
counsel for the Borrowers, to the effect that this Amendment and each and every
other document delivered by any of the Borrowers have been duly authorized,
executed and delivered by such Borrowers, and constitute the legal, valid and
binding obligations of such Borrowers, enforceable against such Borrowers in
accordance with their respective terms, and as to such other matters as the Bank
or the Guarantor may reasonably require.
(d) A certificate signed by a duly authorized officer of each
Borrower stating that:
(i) The representations and warranties contained in
Section 4 hereof are correct on and as of the date of such
certificate as though made on and as of such date, and
(ii) 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.
(iii) All conditions to the effectiveness of Section 1 of
Amendment No. 5 to the Restated First Credit Agreement with the
Senior Lenders, a certified copy of which shall have been
provided to the Bank as provided above, have been satisfied and
that Section 1 is effective.
(e) A fully executed amendment to the Guarantee extending the
termination date thereof to a date no earlier than January 30, 1999.
(f) Payment of a $2,000 administrative fee to the Bank, which
shall be fully earned by the Bank on the date so paid.
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SECTION 4. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized and validly
existing 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 second 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 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) Except as set forth on Schedule 4(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.
(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 Section 1 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 fore
going, the Pledge Agreement 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 (as defined in the
Pledge Agreement and the Security Agreement respectively), 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 Bank or the Guarantor under any of the Facility
Documents, nor constitute a waiver of any provision of any of the Facility
Documents.
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(d) The Bank is under no obligation to enter into this Amendment.
The Bank's entering into this Amendment shall not be deemed to limit or hinder
any rights of the Bank or the Guarantor under the Credit Agreement, nor shall it
be deemed to create or infer a course of dealing between the 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 Bank and the
Guarantor 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 Bank and the Guarantor with respect thereto and with respect to
advising the Bank and the Guarantor as to their rights and responsibilities
hereunder and thereunder. The Borrowers further jointly and severally agree to
pay on demand all costs and 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 Bank
and the Guarantor 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 Connecticut.
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: /s/ Xxxxxxxx X. Xxxxxxx
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Name:
Vice President of each of the above corporations
Bank:
FLEET NATIONAL BANK (successor by merger to
Fleet Bank, National Association)
By: /s/ Xxxxxxxxxxx X. Xxxx
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Xxxxxxxxxxx X. Xxxx
Vice President
CONSENT OF GUARANTOR
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The Guarantor hereby consents to the execution of the foregoing Amendment by the
Bank and to the terms and conditions contained therein.
CONNECTICUT DEVELOPMENT AUTHORITY
By
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Its Senior Vice President
Public Finance
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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 INFUSION THERAPY PRODUCTS CORPORATION
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SCHEDULE 4(f)
THREATENED OR PENDING LITIGATION
