WAIVER AND AMENDMENT TO RECEIVABLES PURCHASE AND TRANSFER
AGREEMENT AND LOAN AND SECURITY AGREEMENT
WAIVER AND AMENDMENT dated as of April 23, 1999 (this
"Amendment"), to the Receivables Purchase and Transfer Agreement, dated as of
November 9, 1998 (as amended, modified or supplemented from time to time in
accordance with its terms, the "RPTA"), by and among Star Multi Care Services,
Inc., a New York corporation (the "Primary Servicer"), each of the parties named
on Schedule I thereto (each, including the Primary Servicer, a "Provider" and,
collectively, the "Providers") and SMCS Care, LLC, a New York limited liability
company (the "Purchaser"), and to the Loan and Security Agreement, dated as of
November 9, 1998 (as amended, modified or supplemented from time to time in
accordance with its terms, the "LSA") between the Purchaser as borrower (the
"Borrower"), and Daiwa Healthco-3 LLC (the "Lender").
WHEREAS, the parties hereto have agreed to amend certain
provisions of the LSA and the RPTA.
WHEREAS, the parties hereto have agreed to waive certain
provisions of the LSA and the RPTA.
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise specifically defined
herein, all capitalized terms used herein shall have the respective meanings
ascribed to such terms in the RPTA and the LSA.
2. Amendment to LSA. Subject to the conditions as to
effectiveness set forth in Paragraph 9 of this Amendment, the LSA is hereby
amended as follows:
(1) In Exhibit I of the LSA the definition of
"Basic Borrowing Amount" is hereby restated in its entirety to read as follows:
"Basic Borrowing Amount" shall mean an amount equal
to eighty percent (80%) of the Expected Net Value of Eligible Receivables. Such
percent shall step down by one percent (1%) per month on the 15th calendar day
(or if the 15th calendar day is not a Business Day then on the next succeeding
Business Day) over the ten consecutive months beginning on such day in May, 1999
when such percent shall reduce to seventy-nine percent (79%), and continuing to
reduce by one percent (1%) through February, 2000 at which point the Basic
Borrowing Amount shall remain at seventy percent (70%) until the Scheduled
Maturity Date.
3. Amendments to RPTA. Subject to the conditions as to
effectiveness set forth in Paragraph 9 of this Amendment, the RPTA is hereby
amended as follows:
(1) In Exhibit V of the RPTA, clauses (y) and
(aa) are each hereby amended by deleting therefrom the date "May 30, 1998" and
substituting therefore "May 30, 1999".
4. Waivers under LSA.
(1) The Lender hereby waives any existing
Default or Event of Default that arose solely as a result of a breach under
clause (d) of Exhibit V of the LSA referring to an Event of Termination under
the RPTA specified in Paragraphs 5(a) and (b) of this Amendment.
(2) The Lender hereby waives its rights under
the provisions of Section 3.02(a) and (b) of the LSA solely for the Borrower's
failure to comply with the provisions of clause (d) of Exhibit V of the LSA for
the periods specified in Paragraph 5(a) of this Amendment.
(3) Except for the specific waivers set forth
above, nothing herein shall be deemed to be a waiver of any covenant or
agreement contained in the LSA.
5. Waivers under RPTA.
(1) The Purchaser hereby waives any existing
Event of Termination that arose solely as a result of the Providers' failure to
comply with the provisions of: (i) clause (x) of Exhibit V of the RPTA with
respect to the fiscal quarter ended February 28, 1999; and (ii) clauses (y) and
(aa) of Exhibit V of the RPTA with respect to the fiscal quarter ended February
28, 1999 for the period of August 30, 1998 to February 28, 1999.
(2) The Purchaser hereby waives its rights under
the provisions of Section 3.02(a) and (b) of the RPTA solely for the Providers'
failure to comply with the provisions of clauses (x), (y) and (aa) of Exhibit V
of the RPTA for the periods specified in Paragraph 5(a) above.
(3) Except for the specific waivers set forth
above, nothing herein shall be deemed to be a waiver of any covenant or
agreement contained in the RPTA.
6. Preferred Stock Issuance and Use of Proceeds. The Primary
Servicer hereby agrees that it shall apply at least $200,000.00 of proceeds of
each preferred stock issuance made by it to the Borrower as a dividend
(including, without limitation, the preferred stock issuance being made on or
about April 26, 1999). The Borrower hereby agrees that immediately upon receipt
of a dividend from an issuance of preferred stock by the Primary Servicer,
Borrower will apply not less than $200,000.00 of such dividend to the repayment
of the Revolving Loan.
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7. Representations and Warranties of the Borrower. The
Borrower hereby represents and warrants as of the date hereof as follows (which
representations and warranties shall survive the execution and delivery of this
Amendment):
(1) All representations and warranties made by
the Borrower in Article III of the LSA and each of the other Documents are true
and correct in all material respects as of the date hereof with the same force
and effect as if made on such date (except to the extent that any such
representation or warranty relates expressly to an earlier date or to the extent
that any such representation or warranty is expressly waived herein).
(2) The Borrower has the requisite power to
execute, deliver and carry out the terms and provisions of this Amendment.
(3) This Amendment has been duly executed and
delivered and constitutes the legal, valid and binding obligation of the
Borrower, and is enforceable in accordance with its terms subject (i) as to
enforcement of remedies, to applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally, from time to time in effect, and (ii) to general principles of
equity.
(4) No event has occurred and is continuing
which constitutes or would constitute a Default or an Event of Default under the
LSA.
8. Representations and Warranties of the Providers. Each
Provider hereby represents and warrants as of the date hereof as follows (which
representations and warranties shall survive the execution and delivery of this
Amendment):
(1) All representations and warranties made by
such Provider in Article III of the RPTA are true and correct in all material
respects as of the date hereof with the same force and effect as if made on such
date (except to the extent that any such representation or warranty relates
expressly to an earlier date or to the extent that any such representation or
warranty is expressly waived herein).
(2) Such Provider has the requisite power to
execute, deliver and carry out the terms and provisions of this Amendment.
(3) This Amendment has been duly executed and
delivered and constitutes the legal, valid and binding obligation of such
Provider, and is enforceable in accordance with its terms subject (i) as to
enforcement of remedies, to applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally, from time to time in effect, and (ii) to general principles of
equity.
(4) No event has occurred and is continuing
which constitutes or would constitute an Event of Termination under the RPTA.
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9. Conditions Precedent. Notwithstanding any term or provision
of this Amendment to the contrary, Paragraphs 2, 3, 4 and 5 hereof shall not
become effective until:
(1) The Lender and the Purchaser shall have
received counterparts of this Amendment, duly executed and delivered on behalf
of the Primary Servicer, the Providers, the Purchaser, the Borrower and the
Lender;
(2) Messrs. Xxxx, Scholer, Fierman, Xxxx &
Handler, LLP, counsel to the Lender, shall have received payment in full for all
reasonable legal fees charged and all costs and out-of-pocket expenses incurred
by such counsel through the date first written above in connection with the
transactions contemplated by this Agreement.
10. Continued Effectiveness. Nothing herein shall be deemed to
be a waiver of any covenant (except as contained in Paragraphs 4 and 5 herein),
or agreement contained in, or any Default or Event of Default under the LSA, or
any Event of Termination under the RPTA and each of the parties hereto agrees
that, as amended by this Amendment, all of the covenants and agreements and
other provisions contained in the RPTA, LSA and the other Documents shall remain
in full force and effect from and after the date of this Amendment.
11. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall be an original, and all of which, taken
together, shall constitute a single instrument. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of this Amendment.
12. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of New York (other than
the conflicts of laws principles thereof).
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
BORROWER AND PURCHASER: SMCS CARE, LLC
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
LENDER: DAIWA HEALTHCO-3 LLC
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Daiwa Securities American, Inc.
PROVIDERS: STAR MULTI CARE SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
STAR MULTI CARE SERVICES OF
FLORIDA, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
AMSERVE HEALTHCARE OF OHIO, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
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AMSERVE HEALTHCARE OF NEW
JERSEY, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
EFCC ACQUISITION CORP.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Executive Officer
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