AMENDMENT NO. 13 AND WAIVER TO CREDIT AGREEMENT
AMENDMENT
NO. 13 AND WAIVER TO CREDIT AGREEMENT
AMENDMENT NO. 13 AND WAIVER,
dated as of May 12, 2010 (this “Amendment and Waiver”), with respect to
the Credit Agreement, dated as of May 20, 2002 (as same has been and may be
further amended, restated, supplemented or modified, from time to time, the
“Credit Agreement”), by and between AMERICAN MEDICAL ALERT CORP.,
a New York corporation (the “Company”) and JPMORGAN CHASE BANK, N.A., as
successor-in-interest to The Bank of New York, a national banking association
(the “Lender”).
RECITALS
The
Company has requested, and the Lender has agreed subject to the terms and
conditions of this Amendment and Waiver, to provide a new acquisition loan
facility, and to amend and waive certain provisions of the Credit Agreement, all
as herein set forth.
Accordingly,
in consideration of the premises and of the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
1. Amendments.
(a) The
following definitions in Section 1.01 of the Credit Agreement are hereby amended
and restated in their entirety to provide as follows:
“Commitments”
shall mean, collectively, the Revolving Credit Commitment, the Term Loan
Commitment, the New Term Loan Commitment, the AMI Acquisition Loan Commitment
and the LCL Acquisition Loan Commitment.
“Loan
Documents” shall mean, collectively, this Agreement, the Notes, the Security
Documents, the Guaranties, any Hedging Agreement with the Lender and each other
agreement executed in connection with the transactions contemplated hereby or
thereby, as each of the same may hereafter be amended, restated, supplemented or
otherwise modified from time to time.
“Loans”
shall mean, collectively, the Revolving Credit Loans, the Term Loan, the New
Term Loan, the AMI Acquisition Loan and the LCL Acquisition Loan.
“Notes”
shall mean, collectively, the Revolving Credit Note, the Term Note, the New Term
Loan Note, the AMI Acquisition Loan Note and the LCL Acquisition Loan
Note.
“Obligations”
shall mean all obligations, liabilities and indebtedness of the Company to the
Lender, whether now existing or hereafter created, absolute or contingent,
direct or indirect, due or not, other than obligations, liabilities and
indebtedness acquired by assignment from third parties, but including without
limitation, all obligations, liabilities and indebtedness of the Company arising
under or relating to this Agreement, the Notes or any other Loan Document, which
shall include, without limitation, all obligations, liabilities and indebtedness
of the Company with respect to the principal of and interest on the Loans,
obligations under any Hedging Agreement, and all fees, costs, expenses and
indemnity obligations of the Company and the Guarantors hereunder or under any
other Loan Document (including the payment of amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code), and interest that, but for the filing
of petition in bankruptcy with respect to the Company, would accrue
on such obligations, whether or not a claim is allowed against the Company for
such interest in the related bankruptcy proceeding.
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(b) The
following definitions are hereby added to Section 1.01 of the Loan
Agreement, in their appropriate alphabetical order:
“Hedging
Agreement” shall mean any interest rate swap, collar, cap, floor or forward rate
agreement or other agreement regarding the hedging of interest rate risk
exposure executed in connection with hedging the interest rate exposure of the
Company or any Guarantor, and any confirming letter executed pursuant to such
agreement, all as amended, supplemented, restated or otherwise modified from
time to time.
“LCL”
shall mean Lifecomm LLC, a Delaware limited liability company.
“LCL
Acquisition” shall mean the Company’s acquisition of 4,000 Class C Membership
Units of LCL, representing a 10.2% minority ownership interest in
LCL.
“LCL
Acquisition Loan” shall have the meaning set forth in Section 2.09.
“LCL
Acquisition Loan Commitment” shall mean the Lender’s obligation to make the LCL
Acquisition Loan to the Company on the LCL Effective Date, in the amount of
$2,000,000.
“LCL
Acquisition Loan Note” shall have the meaning set forth in Section
2.10.
“LCL
Acquisition Loan Maturity Date” shall mean May 1, 2015.
“LCL
Effective Date” shall mean May __, 2010.
“VAR
Agreement” shall mean that certain Value Added Reseller Agreement, dated as of
LCL Effective Date, between the Company and LCL.
(c) The
definition of the term “Applicable Margin” in Section 1.01 of the Credit
Agreement is hereby amended by (i) amending and restating the table therein to
read as follows:
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Ratio of Consolidated Funded
Debt to Consolidated EBITDA
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LIBOR
Margin
For
Revolving Credit Loans
(360 day basis)
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LIBOR
Margin for the
Term
Loan, the New Term Loan,
the
AMI Acquisition Loan and the
LCL
Acquisition Loan
(360 day basis)
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Less
than 1.00:1.00
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1.50 | % | 1.75 | % | ||||
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Greater
than or equal to 1.00:1.00 but less than 1.50:1.00
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1.75 | % | 2.00 | % | ||||
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Greater
than or equal to 1.50:1.00 but less than 2.00:1.00
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2.00 | % | 2.25 | % | ||||
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Greater
than or equal to 2.00:1.00
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2.25 | % | 2.50 | % | ||||
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and (ii)
amending and restating the first sentence of the paragraph following such table
to read as follows:
“Notwithstanding
the foregoing, during the period commencing on the LCL Effective Date and ending
on the date of reset of the Applicable Margin in accordance with this paragraph,
the LIBOR Margin for (a) Revolving Credit Loans shall be 1.50% and (b) the Term
Loan, the New Term Loan, the AMI Acquisition Loan and the LCL Acquisition Loan
shall be 1.75%.”
(d) Clause
“(h)” of the definition of Indebtedness in Section 1.01 of the Credit Agreement
is hereby amended and restated in its entirety to provide as
follows:
“(h) net
liabilities of such Person under Hedging Agreements and foreign currency
exchange agreements, as calculated on a basis satisfactory to the Lender and in
accordance with accepted practice;”
(e) Article
II of the Credit Agreement is hereby amended to add the following new sections
2.09 and 2.10 immediately following Section 2.08 thereof:
SECTION 2.09 LCL
Acquisition Loan. Subject to the terms and
conditions hereof, and relying on the representations and warranties set forth
herein, the Lender agrees to make a term loan (the “LCL Acquisition Loan”) to
the Company available in a single drawdown on the LCL Effective Date in an
amount not to exceed the LCL Acquisition Loan Commitment. The LCL
Acquisition Loan may be (i) an Adjusted Libor Loan, (ii) an Alternate Base Rate
Loan or (iii) a combination thereof. The LCL Acquisition Loan Commitment shall
terminate upon funding of the LCL Acquisition Loan on the LCL Effective
Date.
SECTION
2.10 LCL Acquisition
Note. The LCL
Acquisition Loan made by the Lender shall be evidenced by a promissory note of
the Company, substantially in the form of Exhibit I, with appropriate insertions
(the “LCL Acquisition Note”) payable to the order of the Lender and representing
the obligation of the Company to pay the unpaid principal amount of the LCL
Acquisition Loan of the Lender with interest thereon as prescribed in Section
3.01. The Lender is authorized to record the Type and the date and
amount of each payment or prepayment of principal thereof in the Lender’s
records or on the grid schedule annexed to the LCL Acquisition Loan Note; provided, however, that the
failure of the Lender to set forth each payment and other information shall not
in any manner affect the obligation of the Company to repay the LCL Acquisition
Loan in accordance with the terms of the LCL Acquisition Note and this
Agreement. The LCL Acquisition Note, the grid schedule and the books
and records of the Lender shall constitute conclusive evidence of the
information so recorded absent manifest error. The LCL Acquisition
Note shall (a) be dated the LCL Effective Date, (b) be stated to mature on the
LCL Acquisition Loan Maturity Date and (c) be payable as to principal in sixty
(60) consecutive monthly principal installments of $33,333.33 each, commencing
June 1, 2010, and on the first day of each month thereafter, provided that the
final installment on the LCL Acquisition Loan Maturity Date shall be in an
amount equal to the remaining principal amount then
outstanding. Repayments and prepayments of the LCL Acquisition Loan
may not be reborrowed. The LCL Acquisition Loan Note shall bear
interest from the date thereof until paid in full on the unpaid principal amount
thereof from time to time outstanding at the applicable interest rate per annum
determined as provided in, and payable as specified in, Section
3.01.
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(f) The
first sentence of Section 3.01(g) of the Credit Agreement is hereby amended and
restated in its entirety to provide as follows:
“No Loan
which may be funded as an Adjusted Libor Loan may be converted to or continued
as an Adjusted Libor Loan with an Interest Period that extends beyond the
Revolving Credit Commitment Termination Date, with respect to Revolving Credit
Loans, the Maturity Date, with respect to the Term Loan, the New Term Loan
Maturity Date, with respect to the New Term Loan, the AMI Acquisition Loan
Maturity Date, with respect to the AMI Acquisition Loan or the LCL Acquisition
Loan Maturity Date, with respect to the LCL Acquisition.
(g) The
following sentence is hereby added to Section 3.02 of the Credit Agreement at
the end thereof.
“The
proceeds of the LCL Acquisition Loan shall be used by the Company solely in
connection with the LCL Acquisition.”
(h) Section
3.03(a) of the Credit Agreement is hereby amended to add the text “and pursuant
to any Hedging Agreement with the Lender” immediately following the text “except
as provided in Section 3.08” on the fourth line of such Section.
(i)
Section 3.03 of the
Credit Agreement is further amended by amending and restating the second and
third sentences of Section 3.03(c) thereof in their entirety to provide as
follows:
“All
partial prepayments of the Term Loan, the New Term Loan, the AMI Acquisition
Loan and the LCL Acquisition Loan shall be applied to the remaining installments
of principal thereof in inverse order of maturity. Prepayments of the
Term Loan, the New Term Loan, the AMI Acquisition Loan and the LCL Acquisition
Loan may not be reborrowed.”
(j)
Section 7.02 of the
Credit Agreement is hereby revised by (i) deleting the word “and” following
clause “(g)”, (ii) deleting the period following clause “(g)” and replacing it
with “; and” and (iii) adding a new clause “(h)” immediately following clause
“(h)” as follows:
“(h) Indebtedness
with respect to Hedging Agreements entered into by the Company, provided that
such Hedging Agreements shall be entered into in the ordinary course of its
business with respect to its business needs and not for speculative
purposes;”
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(k) Section
7.06 is hereby amended to delete the text “and” on the tenth line thereof
immediately before the text “(f)” and to add the following text at the end of
such Section immediately preceding the period:
“and (g)
the purchase and ownership of membership interests of LCL, in accordance with
the terms of LCL Acquisition, and additional capital contributions to LCL in an
amount not to exceed $500,000 in accordance with the Limited Liability Company
Agreement of LCL.”
(l)
Section 7.16 of the Credit
Agreement is hereby amended by adding the following text at the end
thereof:
“Notwithstanding
anything to the contrary herein, nothing herein shall be deemed to restrict the
Company from entering into and performing the VAR Agreement.”
(m) Article
VII of the Credit Agreement is hereby further amended by adding a new Section
7.18 at the end thereof as follows:
“SECTION
7.18. Amendment
to LCL Documents. The Company shall
not cause or permit the VAR Agreement or the Limited Liability Company Agreement
of LCL to be amended, restated, modified or supplemented in any way that would
have a material adverse effect on the rights of the Lender under the Loan
Documents.”
(n) Exhibit
I attached to this Amendment is hereby added as Exhibit I to the Credit
Agreement.
2. Waivers.
(a) The
Lender hereby waives the late receipt of (i) the management prepared
consolidating interim balance sheet and the related management prepared interim
consolidating statement of income of the Company and the Corporate Guarantors,
each required to be delivered to the Lender pursuant to Section 6.03(b)(ii) of
the Credit Agreement and (ii) the Chief Financial Officer's certificate,
required to be delivered to the Bank pursuant to Section 6.03(b)(ii) and 6.03(c)
of the Credit Agreement, all for the fiscal quarter ended December 31,
2009.
(b) The
Lender hereby waives compliance by the Company and LCL with Section 6.13 of the
Credit Agreement, Affiliate”, solely
with respect to the delivery by LCL of a Guaranty, Security Agreement and the
other documents described therein, unless and until the Company shall own fifty
percent (50%) or more of the outstanding principal membership interests of
LCL.
3. Conditions of
Effectiveness. This Amendment and Waiver shall become effective upon
receipt by (1) the Lender of (a) this Amendment and Waiver, duly executed by the
Company and each Guarantor, (b) the LCL Acquisition Loan Note, in the form of
Exhibit I
hereto, (c) a certificate of the Secretary or Assistant Secretary of the
Company, dated as of the date hereof, in the form of Xxxxxxx 0 xxxxxx, (x)
copies of the executed Limited Liability Company Agreement of LCL and all
exhibits thereto, along with copies of the membership certificates, if any,
issued by LCL to the Company, (e) the duly executed Value Added Reseller
Agreement between the Company and LCL, (f) copies of the resolutions of the
board of directors of the Company regarding the LCL Acquisition, (g) a
management forecast for the Company for the fiscal years ending December 31,
2010 and December 31, 2011, including balance sheet, income statement, cash flow
statement and financial covenant calculations, and (h) such other documents,
instruments and agreements that the Lender shall reasonably require with respect
thereto and (2) Xxxxxxx Xxxxx, P.C., of its reasonable attorneys’ fees and
expenses incurred in connection with the preparation, execution and delivery of
this Amendment and Waiver, plus all outstanding amounts owed to Xxxxxxx Xxxxx,
P.C. for unpaid attorney’s fees and expenses.
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4. Miscellaneous.
(a) This
Amendment and Waiver shall be governed by and construed in accordance with the
laws of the State of New York.
(b) All
terms used herein shall have the same meaning as in the Credit Agreement, as
amended hereby, unless specifically defined herein.
(c) This
Amendment and Waiver shall constitute a Loan Document.
(d) Except
as expressly amended and waived hereby, the Credit Agreement remains in full
force and effect in accordance with the terms thereof. The Credit
Agreement and the Loan Documents are each ratified and confirmed in all respects
by the Company. The amendments and waivers herein are limited
specifically to the matters set forth above and for the specific instance and
purpose for which given and do not constitute directly or by implication an
amendment or waiver of any other provisions of the Credit Agreement or a waiver
of any Default or Event of Default which may occur or may have occurred under
the Credit Agreement or any other Loan Document.
(e) Upon
the effectiveness of this Amendment and Waiver, each reference in the Credit
Agreement and the other Loan Documents to “this Agreement”, “hereunder”,
“hereof”, “herein” or words of like import shall mean and be a reference to the
Credit Agreement, as amended hereby.
(f)
The Company hereby
represents and warrants that, (i) except with respect to the matters described
in the Press Release (as defined in Amendment No. 2 to Credit Agreement, dated
as of March 28, 2005 between the Company and the Lender), the
representations and warranties by the Company pursuant to the Credit Agreement
and each other Loan Document, as updated by the Schedules attached hereto, are
true and correct, in all material respects, on the date hereof, and (ii) no
Default or Event of Default exists under the Credit Agreement or any other Loan
Document; provided that, the Lender hereby acknowledges and agrees
that the representations and warranties of the Company contained in the Credit
Agreement and those covenants set forth in Sections 6.05, 6.06, 6.07, and 6.12
of the Credit Agreement shall not be deemed (prior to, at or after this date of
this Amendment and Waiver) to be breached as a result of the matters described
in the Press Release, provided that such matter or matters do not now or shall
not hereafter cause a Material Adverse Effect or cause the occurrence of any
other Event of Default, it being agreed and understood that the $1,500,000
charge described in the Press Release, in itself, will not be deemed to
constitute a Material Adverse Effect.
(g) The
Company hereby: (a) acknowledges and confirms that, notwithstanding the
consummation of the transactions contemplated by this Amendment and Waiver, (i)
all terms and provisions contained in the Security Documents are, and shall
remain, in full force and effect in accordance with their respective terms and
(ii) the liens heretofore granted, pledged and/or assigned to the Lender as
security for the Company’s obligations under the Notes (including, without
limitation, the LCL Acquisition Loan Note), the Credit Agreement and the other
Loan Documents shall not be impaired, limited or affected in any manner
whatsoever by reason of this Amendment and Waiver and that all such liens shall
be deemed granted, pledged and/or assigned to the Lender as security for the
Company’s obligations to the Lender, including, without limitation, the
LCL Acquisition Loan; and (b) represents, warrants and confirms the
non-existence of any offsets, defenses, or counterclaims to its obligations
under the Credit Agreement or any Loan Document.
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(h) This
Amendment and Waiver may be executed in one or more counterparts, each of which
shall constitute an original, but all of which, when taken together, shall
constitute but one Amendment and Waiver.
[next
page is signature page]
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IN WITNESS WHEREOF, the
Company and the Lender have caused this Amendment and Waiver to be duly executed
by their duly authorized officers as of the day and year first above
written.
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By:
/s/ Xxxx Rhian
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Name:
Xxxx Rhian
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Title: President
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JPMORGAN
CHASE BANK, N.A.
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By:
/s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx
Xxxxxxxx
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Title:
Vice President
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The
undersigned, not parties to the Credit Agreement but as Guarantors under their
respective Guaranties executed in favor of the Lender, dated as of May 20, 2002,
and as Grantors under the Security Agreement, dated as of May 20, 2002, each
hereby (a) accept and agree to the terms of the foregoing Amendment and Waiver,
(b) acknowledge and confirm that all terms and provisions contained in their
respective Guaranty are, and shall remain, in full force and effect in
accordance with their respective terms and that its obligations thereunder
include obligations of the Company owing to the Lender pursuant to the LCL
Acquisition Loan, and (c) (i) all terms and provisions contained in the Security
Agreement are and shall remain, in full force and effect in accordance with
their respective terms and (ii) the liens heretofore granted, pledged and/or
assigned to the Lender as security for the Guaranteed Obligations (as defined in
the Guaranty) shall not be impaired, limited or affected in any manner
whatsoever by reason of this Amendment and Waiver and that all such liens shall
be deemed granted, pledged and/or assigned to the Lender as security for the
Guarantee Obligations, including, without limitation, those Guaranteed
Obligations related to the LCL Acquisition Loan.
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HCI
ACQUISITION CORP.
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SAFE
COM INC.
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LIVE
MESSAGE AMERICA ACQUISITION CORP.
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NORTH
SHORE ANSWERING SERVICE, INC.
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ANSWER
CONNECTICUT ACQUSITION CORP.
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MD
ONCALL ACQUISITION CORP.
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AMERICAN
MEDICONNECT ACQUISITION CORP.
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By:
/s/ Xxxx Rhian
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Xxxx
Rhian, the President of each of
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the
foregoing corporations
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9
EXHIBIT
I
LCL
ACQUISITION LOAN NOTE
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$2,000,000
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May
__, 2010
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FOR VALUE RECEIVED, AMERICAN MEDICAL
ALERT CORP., a Delaware corporation (the “Company”), promises
to pay to the order of JPMORGAN
CHASE BANK, N.A. (the “Lender”), on or before the LCL Acquisition Loan
Maturity Date, the principal amount of TWO MILLION ($2,000,000) DOLLARS,
in sixty (60) consecutive equal monthly installments of $33,333.33,
commencing June 1, 2010 and continuing on the first day of each month
thereafter; provided, however, that the
last such payment on the LCL Acquisition Loan Maturity Date shall be in the
amount necessary to repay in full the unpaid principal amount of the LCL
Acquisition Loan. The Company also promises to pay interest on the
unpaid principal amount hereof from the date hereof until paid in full at the
rates and at the times which shall be determined in accordance with the
provisions of the Credit Agreement referred to below.
This Note
is the “LCL Acquisition Loan Note” issued pursuant to and entitled to the
benefits of the Credit Agreement dated as of May 20, 2002 by and between the
Company and the Lender (as the same has been and may be further amended,
restated, modified or supplemented from time to time, the “Credit Agreement”),
to which reference is hereby made for a more complete statement of the terms and
conditions under which the LCL Acquisition Loan evidenced hereby was made and is
to be repaid. Capitalized terms used herein without definition shall
have the meanings set forth in the Credit Agreement.
Each of
the Lender and any subsequent holder of this Note agrees, by its acceptance
hereof, that before transferring this Note, it shall record the date and amount
of each payment or prepayment of principal of the LCL Acquisition Loan
previously made hereunder on the grid schedule annexed to this Note; provided, however, that the
failure of the Lender or holder to set forth the LCL Acquisition Loan, payments
and other information on the attached grid schedule shall not in any manner
affect the obligation of the Company to repay the LCL Acquisition Loan made by
the Lender in accordance with the terms of this Note.
This Note
is subject to prepayment pursuant to Section 3.03 of the Credit
Agreement.
Upon the
occurrence of an Event of Default, the unpaid balance of the principal amount of
this Note, together with all accrued but unpaid interest thereon, may become, or
may be declared to be, due and payable in the manner, upon the conditions and
with the effect provided in the Credit Agreement.
All
payments of principal and interest in respect of this Note shall be made in
lawful money of the United States of America in immediately available funds at
the office of JPMorgan Chase Bank, N.A., located at 000 Xxxxx Xxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000 or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit
Agreement.
No
reference herein to the Credit Agreement and no provision of this Note or the
Credit Agreement shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, and in the currency herein
prescribed.
Except as
may be expressly provided to the contrary in the Credit Agreement, the Company
and endorsers of this Note waive diligence, presentment, protest, demand, and
notice of any kind in connection with this Note.
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THIS
NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW WHICH WOULD APPLY THE SUBSTANTIVE LAWS OF ANOTHER
JURISDICTION.
IN WITNESS WHEREOF, the
Company has caused this Note to be executed and delivered by its duly authorized
officer as of the day and year and at the place first above
written.
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By:
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Name: Xxxx
Rhian
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Title: President
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11
