AMENDMENT NO.3 AND JOINDER AGREEMENT
THIS AMENDMENT NO.3 AND JOINDER AGREEMENT ("Agreement") is entered
into as of July 30, 1997, by and among ACCUHEALTH, INC., a corporation organized
under the laws of the State of New York ("Accuhealth"), MIDVIEW DRUG, INC. a
corporation organized under the laws of the State of New York ("Midview"),
ACCUHEALTH HOME CARE, INC., a corporation organized under the laws of the State
of Delaware ("AHC"), CITIVIEW DRUG CO., INC., a corporation organized under the
laws of the State of New York ("Citiview"), PROHEALTHCARE INFUSION SERVICES,
INC., a corporation organized under the laws of the State of New Jersey
("PHCIS") (Accuhealth, Midview, AJIC, Citiview and PHCIS, each a "Borrower" and,
jointly and severally, the "Borrowers"), and XXXXXXXXX & XXXXXXXXX, INC.
("Lender").
BACKGROUND
Borrowers (other than PHCIS) and Lender are parties to a Loan and
Security Agreement dated as of April 28, 1994, as amended by Amendment No.1
dated as of February 1.1996 and Amendment No.2 dated as of February 1, 1997 (as
further amended, supplemented or otherwise modified from time to time, the "Loan
Agreement") pursuant to which Lender provided Borrowers (other than PHCIS) with
certain financial accommodations.
Pursuant to an Agreement and Plan of Merger dated as of March 14, 1997,
by and among Accuhealth, ACH Acquiring Corp., a wholly-owned subsidiary of
Accuhealth ("Sub"), ProHealthCare, Inc. ("ProHealthCare"), PHCIS, a wholly-owned
subsidiary of ProHealthCare, Xxxxxx Xxxxxxx and Xxxxx Xxxxx Xxxxx (the "Purchase
Agreement") (i) Accuhealth acquired all of the issued and outstanding shares of
capital stock PHCIS from ProHealthCare and (ii) Sub was merged with and into
PHCIS with PHCIS as the surviving corporation.
Borrowers (other than PHCIS) have requested that Lender permit PHCIS to
become a Borrower under the Loan Agreement and Lender is willing to do so on the
terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by
Lender, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. All capitalized terms not otherwise defined
herein shall have the meanings given to them in the Loan Agreement.
2. JOINDER.
(a) PHCIS is hereby added as an additional Borrower under
the Loan Agreement, and all references to "Borrower" or "Borrowers" thereunder
shall henceforth be deemed to include PHCIS;
(b) PHCIS hereby adopts the Loan Agreement and each of the
Ancillary
Agreements and assumes in full, and acknowledges that it is jointly and
severally liable for, the payment, discharge, satisfaction and performance of
all Obligations under the Loan Agreement and the Ancillary Agreements. Without
limiting the generality of the foregoing, in order to secure the prompt payment
and performance to Lender of the Obligations, PHCIS hereby assigns, pledges and
grants to Lender a continuing security interest in and to all of its Collateral,
whether now owned or existing or hereafter acquired or arising and wheresoever
located.
3. Amendment to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 4 below, the Loan Agreement is hereby
amended as follows:
(a) Section 1(a) of the Loan Agreement is hereby amended by adding the
following defined term in its appropriate alphabetical order:
"PHCIS" shall mean ProHealthCare Infusion Services, Inc., a New
Jersey corporation.
(b) Exhibit 12(1) to the Loan Agreement is amended by adding the
following at the end thereof:
"4. 00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000"
(c) Exhibit 12(m) to the Loan Agreement is amended by adding the
following at the end thereof:
"15. Promissory Note dated July 30, 1997 by ProHealthCare Infusion
Services, Inc. ("PHCIS") in favor of Bergen Xxxxxxxx Drug
Company ("Bergen") in the principal amount of $262,035.00,
which note is subject to the Subordination and Intercreditor
Agreement dated as of July 30, 1997 among PHCIS, Bergen and
Lender."
4. CONDITIONS OF EFFECTIVENESS. This Agreement shall become effective
upon satisfaction of the following conditions precedent:
(i) Lender shall have received in form and substance
satisfactory to Lender four (4) copies of this Agreement duly executed
by each Borrower (including PHCIS) and consented to by each Guarantor;
(ii) Lender shall have received in form and substance
satisfactory to Lender an executed Purchase Agreement and all exhibits
and schedules thereto and all other documents and agreements executed
in connection therewith, including, but not limited to the Employment
Agreement, Non-competition Agreement, Tax Provisions Agreement,
Assignment and Assumption Agreement and Registration Rights Agreement;
-2-
(iii) Accuhealth and/or PHCIS shall have obtained all
necessary consents with respect to each contract, lease, and agreement
being assigned to Accuhealth and/or PHCIS pursuant to the Purchase
Agreement. Accuhealth and PHCIS hereby covenant that no conditions to
effectiveness of the Purchase Agreement shall be waived by Accuhealth
or PHCIS without Lender's prior written consent, such consent not to be
unreasonably withheld;
(iv) Lender shall have received an executed Amended and
Restated Term Note in the form attached hereto as Exhibit A,
(v) Lender shall have received in form and substance
satisfactory to Lender a Collateral Assignment executed by Accuhealth
with respect to its rights under the Purchase Agreement;
(vi) Each document (including, without limitation, any Uniform
Commercial Code financing statement) required by this Agreement or
under law or reasonably requested by Lender to be filed, registered or
recorded in order to create, in favor of Lender, a perfected security
interest in or lien upon the Collateral owned by PHCIS shall have been
properly filed, registered or recorded in each jurisdiction in which
the filing, registration or recordation thereof is so required or
requested, and Lender shall have received an acknowledgment copy, or
other evidence satisfactory to it, of each such filing, registration or
recordation and satisfactory evidence of the payment of any necessary
fee, tax or expense relating thereto;
(vii) Lender shall have received a copy of the resolutions in
form and substance reasonably satisfactory to Lender, of the Board of
Directors of PHCIS authorizing (x) the execution, delivery and
performance of this Agreement, and (y) the granting by PHCIS of the
Liens upon the Collateral certified by the Secretary or an Assistant
Secretary of PHCIS as of the date of this Agreement; and, such
certificate shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded as of the date of such
certificate;
(viii) Lender shall have received a copy of the Articles or
Certificate of Incorporation of PHCIS, and all amendments thereto,
certified by the Secretary of State or other appropriate official of
its jurisdiction of incorporation together with copies of the By-Laws
of PHCIS certified as accurate and complete by the Secretary or an
Assistant Secretary of PHCIS;
(ix) Lender shall have received good standing certificates for
PHCIS dated not more than thirty (30) days prior to the date of this
Agreement, issued by the Secretary of State or other appropriate
official of PHCIS's jurisdiction of incorporation and each jurisdiction
where the conduct of PHCIS's business activities or the ownership of
its properties necessitates qualification;
(x) Lender shall have received the executed legal opinions of
Proskauer Xxxx Xxxxx & Xxxxxxxxxx LLP and Crummy, Del Deo, Dolan,
Griffinger & Xxxxxxxxx,
-3-
each in form and substance satisfactory to Lender regarding the due
authorization, enforceability and validity of this Agreement by
Borrowers (other than PHCIS) and PHCIS, respectively, and the
transactions contemplated herein;
(xi) Lender shall have received in form and substance
satisfactory to Lender, certified copies of PHCIS's casualty insurance
policies, together with loss payable endorsements on Lender's standard
form of loss payee endorsement naming Lender as loss payee, and
certified copies of PHCIS's liability insurance policies, together with
endorsements naming Lender as a co-insured;
(xii) Lender shall have received a duly executed letter
agreement regarding the use of the lockbox account currently used with
respect to the Borrowers (other than PHCIS) for the collection or
servicing of the Accounts and proceeds of the Collateral of PHCIS;
(xiii) Lender shall have received in form and substance
satisfactory to Lender all landlord, mortgagee or warehousemen
agreements;
(xiv) Lender shall have reviewed all material contracts of
PHCIS including, without limitation, leases, union contracts, labor
contracts, vendor supply contracts, license agreements and
distributorship agreements and such contracts and agreements shall be
satisfactory in all respects to Lender;
(xv) Lender shall have received (a) schedules describing all
Receivables or Medicare/Medicaid Receivables and (b) confirmatory
written assignments of such Receivables or Medicare/Medicaid
Receivables to Lender; and
(xvi) Lender shall have received such other certificates,
instruments, documents and agreements as may reasonably be required by
Lender or its counsel, each of which shall be in form and substance
satisfactory to Lender and its counsel.
5. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants, with respect to itself, as follows:
(a) This Agreement and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of such Borrower and
are enforceable against such Borrower in accordance with their
respective terms.
(b) Upon the effectiveness of this Agreement, such Borrower
(other than PHCIS) hereby reaffirms all covenants, representations and
warranties made in the Loan Agreement to the extent the same are not
amended hereby and agrees that all such covenants, representations and
warranties shall be deemed to have been remade as of the effective date
of this Agreement.
(c) No Event of Default or Incipient Event of Default has
occurred and is continuing or would exist after giving effect to this
Agreement.
-4-
(d) Such Borrower has no defense, counterclaim or offset with
respect to the Loan Agreement.
6. REPRESENTATIONS AND WARRANTIES OF PHCIS. PHCIS hereby represents and
warrants that it is a corporation duly organized and validly existing under the
laws of the State of New Jersey, and that it is duly qualified and in good
standing in every other state or jurisdiction in which the nature of its
business presently requires such qualification.
7. EFFECT ON THE LOAN AGREEMENT.
(a) Upon the effectiveness of Section 2 hereof, each reference in the
Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of
like import shall mean and be a reference to the Loan Agreement as amended
hereby.
(b) Except as specifically amended herein, the Loan Agreement, and all
other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Agreement shall
not operate as a waiver of any right, power or remedy of Lender, nor constitute
a waiver of any provision of the Loan Agreement, or any other documents,
instruments or agreements executed and/or delivered under or in connection
therewith.
8. GOVERNING LAW. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
9. HEADINGS. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
10. COUNTERPARTS: TELECOPIED SIGNATURES. This Agreement may be executed
in any number of and by different parties hereto, on separate counterparts, all
of which when so executed shall be deemed an original, but all such counterparts
shall constitute one and the same agreement. Any signature delivered by a party
by facsimile transmission shall be deemed to be an original signature hereto.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first written above.
ACCUHEALTH, INC., as Borrower and
Borrowing Agent
By: /s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
Title: President
-5-
MIDVIEW DRUG, INC., as Borrower
By: /s/ XXXXX X. XXXXX
-------------------------------------
Xxxxx X. Xxxxx
Title: President
ACCUHEALTH HOME CARE, INC., as Borrower
By: /s/ XXXXX X. XXXXX
-------------------------------------
Xxxxx X. Xxxxx
Title: President
CITIVIEW DRUG CO., INC., as Borrower
By: /s/ XXXXX X. XXXXX
-------------------------------------
Xxxxx X. Xxxxx
Title: President
PROHEALTHCARE INFUSION SERVICES, INC.,
as Borrower
By: /s/ XXXXX X. XXXXX
-------------------------------------
Xxxxx X. Xxxxx
Title: President
XXXXXXXXX & XXXXXXXXX, INC., as Lender
By: /s/
-------------------------------------
Title: Executive Vice President
CONSENTED TO:
/s/ XXXXX X. XXXXX
------------------------------
Xxxxx X. Xxxxx
------------------------------
XXXXXXX XXXXXXXXX
-6-
MIDVIEW DRUG, INC., as Borrower
By:
-------------------------------------
Title:
----------------------------------
ACCUHEALTH HOME CARE, INC., as Borrower
By:
-------------------------------------
Title:
----------------------------------
CITIVIEW DRUG CO., INC., as Borrower
By:
-------------------------------------
Title:
----------------------------------
PROHEALTHCARE INFUSION SERVICES, INC.,
as Borrower
By:
-------------------------------------
Title:
----------------------------------
XXXXXXXXX & XXXXXXXXX, INC., as Lender
By:
-------------------------------------
Title:
----------------------------------
CONSENTED TO:
---------------------------------
XXXXX X. XXXXX
/s/ XXXXXXX XXXXXXXXX
---------------------------------
XXXXXXX XXXXXXXXX
-6-
EXHIBIT A
MENDED AND RESTATED
TERM NOTE
$500,000.00 New York, New York
July ___, 1997
This Amended and Restated Term Note is executed and delivered
under and pursuant to the terms of that certain Loan and Security Agreement
dated as of April 28, 1994, as amended by (i) Amendment No.1 dated as of
February 1, 1996, (ii) Amendment No.2 dated as of February 1,1997 and (iii)
Amendment No.3 and Joinder Agreement dated as of the date hereof (as may be
further amended, supplemented or modified from time to time the "Loan
Agreement") by and among Accuhealth, Inc. ("Accuhealth"), Midview Drug, Inc.
("Midview"), Accuhealth Home Care, Inc. ("AHC"), Citiview Drug Co., Inc.
("Citiview") and ProHealthCare Infusion Services, Inc. ("PHCIS") (each a
"Borrower" and, jointly and severally, the "Borrowers") and Xxxxxxxxx &
Xxxxxxxxx, Inc. ("Lender"). Capitalized terms not otherwise defined herein shall
have the meanings as provided in the Loan Agreement.
FOR VALUE RECEIVED, Borrowers, jointly and severally, hereby
promise to pay to the order of Lender at its offices located at 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx x00xx or at such other place as Lender may from time to time
designate to Borrowers in writing:
(i) the principal sum of FIVE HUNDRED THOUSAND AND 00/100
DOLLARS ($500,000.00) payable in accordance with the terms of the Loan
Agreement, subject to acceleration upon the occurrence of an Event of Default
under the Loan Agreement, earlier termination of the Loan Agreement or earlier
prepayment as required pursuant to the terms thereof; and
(ii) interest on the principal amount of this Note from time
to time outstanding, payable at the Term Loan Rate in accordance with the
provisions of the Loan Agreement. In no event, however, shall interest hereunder
exceed the maximum interest rate permitted by law.
This Note is the Term Note referred to in the Loan Agreement
and is secured, inter alia, by the liens granted pursuant to the Loan Agreement
and the Ancillary Agreements, is entitled to the benefits of the Loan Agreement
and the Ancillary Agreements and is subject to all of the agreements, terms and
conditions therein contained.
This Note is subject to mandatory prepayment and may only be
voluntarily prepaid, in whole or in part, on the terms and conditions set forth
in the Loan Agreement.
If an Event of Default under Section 1 8~) of the Loan
Agreement shall occur, then this Note shall immediately become due and payable,
without notice, together with reasonable attorneys' fees if the collection
hereof is placed in the hands of an attorney to obtain or enforce payment
hereof. If any other Event of Default shall occur under the Loan Agreement or
any of the Ancillary Agreements, which is not cured within any applicable grace
period, then this Note may, as provided in the Loan Agreement, be declared to be
immediately due and
payable, without notice, together with reasonable attorneys' fees, if the
collection hereof is placed in the hands of an attorney to obtain or enforce
payment hereof.
This Note is being delivered in the State of New York, and
shall be construed and enforced in accordance with the laws of such State.
This Note amends and restate in its entirety and is given in
substitution for (but not satisfaction of) that certain Term Note dated February
1, 1997 made by Accuhealth, Midview, AHC and Citiview to Lender in the original
principal amount of $500,000.
Borrowers expressly waive any presentment, demand, protest,
notice of protest, or notice of any kind except as expressly provided in the
Loan Agreement.
ACCUHEALTH, INC.
By:
---------------------------------------
Title:
---------------------------------------
MIDVIEW DRUG, INC.
By:
---------------------------------------
Title:
---------------------------------------
ACCUHEALTH HOME CARE, INC.
By:
---------------------------------------
Title:
---------------------------------------
CITIVIEW DRUG CO., INC.
By:
---------------------------------------
Title:
---------------------------------------
PROHEALTHCARE INFUSION SERVICES, INC.
By:
---------------------------------------
Title:
---------------------------------------
STATE OF NEW YORK )
COUNTY OF NEW YORK : ss.:
)
On the day of July, 1997, before me personally came _________________, to me
known, who being by me duly sworn, did depose and say that he is the
_________________ of Accuhealth, Inc., the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto by order
of the each of the board of directors of said corporation.
-----------------------------
Notary Public
STATE OF NEW YORK )
COUNTY OF NEW YORK : ss.:
)
On the ____ day of July, 1997, before me personally came __________________, to
me known, who being by me duly sworn, did depose and say that he is the
__________________ of Midview Drug, Inc., the corporation described in and which
executed the foregoing instrument; and that he signed his name thereto by order
of the each of the board of directors of said corporation.
-----------------------------
Notary Public
STATE OF NEW YORK )
COUNTY OF NEW YORK : ss.:
)
On the day of July, 1997, before me personally came _________________, to me
known, who being by me duly sworn, did depose and say that he is the
_________________ of Accuhealth Home Care, Inc. the corporation described in and
which executed the foregoing instrument; and that he signed his name thereto by
order of the each of the board of directors of said corporation.
-----------------------------
Notary Public
STATE OF NEW YORK )
COUNTY OF NEW YORK : ss.:
)
On the ____ day of July, 1997, before me personally came ________________, to me
known, who being by me duly sworn, did depose and say that he is the
__________________ of Citiview Drug Co., Inc. the corporation described in and
which executed the foregoing instrument; and that he signed his name thereto by
order of the each of the board of directors of said corporation.
-----------------------------
Notary Public
STATE OF NEW YORK )
COUNTY OF NEW YORK : ss.:
)
On the ____ day of July, 1997, before me personally came _______________, to me
known, who being by me duly sworn, did depose and say that he is the
__________________ of ProHealthCare Infusion Services, Inc. the corporation
described in and which executed the foregoing instrument; and that he signed his
name thereto by order of the each of the board of directors of said corporation.
-----------------------------
Notary Public
