EXHIBIT 10.17
AMENDMENT NO. 1 TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment No. 1") is made as of the 26th day of September, 1997 by and
among HOME HEALTH CORPORATION OF DELAWARE, INC., a Delaware corporation
("Borrower"); CORESTATES BANK, N.A., a national banking association
("CoreStates") and the other banks identified on the signature pages hereto
(each individually a "Bank" and individually and collectively, "Banks"); and
CoreStates as agent for the Banks ("Agent").
WITNESSETH:
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WHEREAS, Borrower, Banks and Agent are parties to that certain Third
Amended and Restated Credit Agreement dated Xxxxx 00, 0000 (xx amended from time
to time, including by this Amendment No. 1, the "Credit Agreement"); and
WHEREAS, Home Health Corporation of America, Inc. ("Parent") and
certain of its subsidiaries other than Borrower have executed (or joined in)
that certain Amended and Restated Guaranty dated March 13, 1997 (as amended from
time to time, the "Guaranty") in favor of Banks in connection with the Credit
Agreement; and
WHEREAS, Borrower has requested, and the Banks have agreed subject to
the terms and conditions hereof, to amend certain financial covenants under the
Credit Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements
herein set forth and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions
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a. General Rule. Unless otherwise defined herein, terms used
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herein which are defined in the Credit Agreement shall have the meanings
assigned to them in the Credit Agreement.
b. Additional Definition. The following definition is hereby
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added to Section 1 of the Credit Agreement to read in its entirety as follows:
"Amendment No. 1" shall mean the Amendment No. 1 to Credit
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Agreement by and among Borrowers, Agent and Banks.
2. Amendment to Paragraph 5.15 (Maximum Funded Debt to Adjusted
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EBITDA Ratio). Paragraph 5.15 of the Credit Agreement is hereby amended and
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restated to read in its entirety as follows:
5.15. Maximum Funded Debt to Adjusted EBITDA Ratio.
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Maintain as of the end of each fiscal quarter during the
periods set forth in the left hand column below a ratio of (i) Funded
Debt of Parent and its consolidated Subsidiaries to (ii) Adjusted
EBITDA plus, for any calculation thereof which includes the fiscal
quarter ended June 30, 1997, the amount of non-recurring charges
taken during that quarter and deducted in calculating net income
(i.e., a $3.0 million charge to reflect an increase in bad debt
reserves and a $1.1 million restructuring charge), of not greater
than the ratio set forth in the right hand column below:
Period Ratio
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Date of the Credit Agreement
through 9/30/97 3.25 to 1
10/1/97 through 3/31/98 3.00 to 1
4/1/98 through 12/31/98 2.75 to 1
1/1/99 and thereafter 2.50 to 1
3. Amendment to Paragraph 5.17 (Maximum Leverage Ratio). Paragraph
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5.17 of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
5.17 Maximum Leverage Ratio. Maintain as of the end of
each fiscal quarter during the periods set forth in the left hand
column below a ratio of consolidated Funded Debt to consolidated
Total Capitalization of not greater than the ratio set forth in the
right hand column below:
Period Ratio
------ ------
Date of the Credit Agreement
through 6/30/97 0.65 to 1
7/1/97 through 12/31/97 0.60 to 1
1/1/98 through 6/30/98 0.57 to 1
7/1/98 through 3/31/99 0.55 to 1
4/1/99 and thereafter 0.50 to 1
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4. Waiver of Past Defaults. Banks hereby waive the defaults by
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Borrower under Paragraphs 5.15 (Maximum Funded Debt to Adjusted EBITDA Ratio)
and 5.17 (Maximum Leverage Ratio) as in effect prior to the date hereof;
provided, that nothing herein shall be construed as a waiver of any defaults
under Paragraphs 5.15 or 5.17, as amended hereby, or any other provisions of the
Credit Agreement.
5. Representations and Warranties. Borrower and Guarantors hereby
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represent and warrant to Banks as follows:
a. Representations. The representations and warranties set
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forth in Section Three of the Credit Agreement (other than those made only as of
a specific date) are true and correct in all material respects as of the date
hereof; no Event of Default or Default under the Credit Agreement is in
existence; and there has been no event or circumstance since March 13, 1997,
which has caused or is reasonably likely to cause a Material Adverse Effect.
b. Power and Authority; Enforceability. Borrower has the power
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and authority under the laws of its state of incorporation and its certificate
of incorporation and bylaws to enter into and perform, to the extent applicable
to it, this Amendment No. 1; and all actions necessary or appropriate for the
execution and performance by Borrower of this Amendment No. 1 have been taken
and upon their execution, the same will constitute the legal, valid and binding
obligations of Borrower, enforceable in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency and other similar laws
affecting the rights of creditors generally.
c. No Violation of Laws or Agreements. The making and
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performance of this Amendment No. 1 and actions required of Borrower hereunder
will not violate any provisions of any federal, state or local law or
regulation, or result in any breach or violation of, or constitute a default
under, any agreement by which Borrower or its property may be bound.
6. Conditions to Effectiveness of Amendment. This Amendment No. 1
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shall be effective upon Agent's receipt of the following documents and
satisfaction of the following conditions, each in form satisfactory to Banks:
a. Amendment No. 1. This Amendment No. 1, duly executed by
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Borrower, Guarantors, Banks and Agent.
b. Other Documents. Such additional documents as Agent shall
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reasonably request.
7. Affirmation. Borrower and Guarantors hereby affirm all of the
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provisions of the Credit Agreement, as amended (including by this Amendment No.
1) and the other Loan
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Documents and agree that the terms and conditions of the Credit Agreement as
amended (including by this Amendment No. 1) and the other Loan Documents shall
continue in full force and effect as supplemented and amended hereby.
8. Miscellaneous.
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a. This Amendment No. 1 shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
b. Borrower agrees to reimburse Agent for all reasonable costs
and expenses (including but not limited to, reasonable attorneys' fees and
reasonable disbursements) which Agent may pay or incur in connection with the
preparation of this Amendment No. 1 and the preparation or review of other
documents executed or delivered in connection herewith.
c. All terms and provisions of this Amendment No. 1 shall be
for the benefit of and be binding upon and enforceable by the respective
successors and assigns of the parties hereto.
d. This Amendment No. 1 may be executed in any number of
counterparts with the same effect as if all the signatures on such counterparts
appeared on one document and each such counterpart shall be deemed an original.
e. Except as expressly set forth in Paragraph 4 above, the
execution, delivery and performance of this Amendment No. 1 shall not effect a
waiver of any right, power or remedy of Agent or Banks under applicable law or
under the Credit Agreement and the agreements and documents executed in
connection therewith or constitute a waiver of any provision thereof.
IN WITNESS WHEREOF, the undersigned by their duly authorized officers,
have executed this Amendment No. 1, effective as of the day and year first
written above.
HOME HEALTH CORPORATION OF
Attest: DELAWARE, INC.
By:_______________________ By:_____________________________
Name: Name: Xxxxx Xxxxxxx
Title: Title: Chief Financial Officer
[EXECUTIONS CONTINUED]
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CORESTATES BANK, N.A., for itself and as Agent
By:_____________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By:_____________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:_____________________________
Name:
Title:
SUNTRUST BANK, CENTRAL FLORIDA,
N.A.
By: ____________________________
Name:
Title:
TORONTO DOMINION (NEW YORK), INC.
By:___________________________
Name:
Title:
[EXECUTIONS CONTINUED]
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FLEET NATIONAL BANK
By:___________________________
Name:
Title:
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The undersigned Guarantors hereby acknowledge and agree to the
foregoing Amendment No. 1, affirm the representations set forth in Paragraph 4
thereof, and agree that the Guaranty continues in full force and effect and
guarantees all obligations under the Credit Agreement, as amended thereby:
HOME HEALTH CORPORATION OF HOME HEALTH CORPORATION OF
AMERICA, INC. AMERICA, INC. - TAMPA NURSING
PENNSYLVANIA HOME HEALTH PENNSYLVANIA HOME HEALTH
SERVICES/PHILADELPHIA, INC. SERVICES/SUBURBAN, INC.
PENNSYLVANIA HOME HEALTH HHCA, INC. - DELAWARE
SERVICES/NORTHEAST, INC. HHCA - SERVICE CO.
PENNSYLVANIA HOME CARE, INC. HOME HEALTH CORPORATION OF
HOME CARE MEDICAL SUPPLY AND AMERICA, INC. - EASTERN SHORE
EQUIPMENT, INC. HOME HEALTH SYSTEMS, INC.
NUTRITIONAL HOME HEALTH HHCA TEXAS HOLDINGS, INC.
SERVICES, INC. HHCA TEXAS GP, INC.
ALL CARE HEALTH SERVICES, INC. HHCA TEXAS HEALTH SERVICES,
ALL-CARE HOME HEALTH L.P., by HHCA TEXAS GP, INC.,
SERVICES, INC. its general partner
HOME HEALTH CORPORATION OF HHCA TEXAS INFUSION SERVICES,
AMERICA, INC./FT. XXXXXX HOME L.P., by HHCA TEXAS GP, INC.,
HEALTH SERVICES its general partner
HHCD, INC. HHCA TEXAS PRIVATE NURSING
HHCDME, INC. SERVICES, L.P., by HHCA TEXAS GP,
PROFESSIONAL HOME HEALTH INC., its general partner
SERVICES, INC. HHCA TEXAS MEDICAL EQUIPMENT,
HOME HEALTH CORPORATION OF L.P., by HHCA TEXAS GP, INC.,
AMERICA, INC.-TAMPA its general partner
HOME HEALTH CORPORATION OF R.S.D. MANAGEMENT, INC.
AMERICA, INC.-TAMPA NURSING SERVICES HOME CARE,
DIAGNOSTIC SERVICES INC.
HOME HEALTH CORPORATION OF NURSING SERVICES HOME CARE,
AMERICA, INC. - PINELLAS LTD.
HOME HEALTH CORPORATION OF NURSING SERVICES STAFFING OF
AMERICA, INC.- ST. PETERSBURG N.H., INC.
(continued in next column) NURSING SERVICES, INC.
NAHATAN DRUG, INC.
By:_______________________ By:___________________________
Name: Name: Xxxxx Xxxxxxx
Title: Title: Chief Financial
Officer
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