1
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of March 2, 1995, among THE OLSTEN
CORPORATION, a corporation organized under the laws of the State of
Delaware ("Olsten") and certain of its Subsidiaries signatory hereto
(collectively with Olsten, the "Co-Borrowers"), each of the banks
which is a signatory hereto (individually, a "Bank", and
collectively, the "Banks") and THE CHASE MANHATTAN BANK, N.A., a
national banking association organized under the laws of the United
States of America, as agent for the Banks (in such capacity,
together with its successors in such capacity, the "Agent").
RECITALS:
--------
The parties hereto entered into a certain Amended and
Restated Credit Agreement dated as of September 9, 1994 (the "Credit
Agreement").
2. The parties hereto desire to amend the Credit
Agreement in certain respects on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
3. AMENDMENTS TO CREDIT AGREEMENT.
1.1 Section 8.08(e) of the Credit Agreement is hereby
deleted in its entirety and the following is substituted in its
place:
"(e) quarterly, on or before the 28th day of
each calendar month which immediately succeeds
a fiscal quarter end of the Borrower, through
the Termination Date, a duly completed and fully
executed Borrowing Base Certificate for the last
2
day of each such fiscal quarter, together with
summary aging reports (including a breakdown of
Medicare and Medicaid Receivables), in form and
substance satisfactory to the Agent, provided that
the foregoing certificate and reports relating to
the fiscal quarter ending January 1, 1995 may be
furnished directly to each of the Banks on or
prior to March 31, 1995;"
1.2 Section 9.04 of the Credit Agreement is hereby
deleted in its entirety and the following is substituted in its
place:
"Section 9.04. Sale of Assets. Sell, lease,
assign, transfer or otherwise dispose of, or permit
any of its Subsidiaries to sell, lease, assign,
transfer or otherwise dispose of, any of its now
owned or hereafter acquired assets (including,
without limitation, shares of stock and indebtedness
of such Subsidiaries, receivables and leasehold
interests), except: (a) for assets disposed of in
the ordinary course of business; (b) the sale or
other disposition of assets no longer used or useful
in the conduct of its business; (c) that any
Co-Borrower may sell, lease, assign, or otherwise
transfer its assets to another Co-Borrower; (d)
for dispositions of shares of capital stock in
connection with a transaction permitted by Section
9.06; (e) sales or dispositions of assets in arm's
length transactions provided that the aggregate net
proceeds of all such sales shall not exceed $5,000,000
in any fiscal year (in addition to the transactions
described in any of subsections (a)-(d), (f) or (g)
of this Section 9.04); (f) the transactions described
in Schedule V hereto; and (g) the sale of all of the
issued and outstanding shares of capital stock of
Healthcare Staff Resources, Inc. on or prior to March
10, 1995 by Xxxxxxxx Services, Inc. pursuant to a
certain Stock Purchase and Sale Agreement (the "Stock
Purchase Agreement") dated as of February 17, 1995
between Xxxxxxxx Services, Inc. and Careerstaff
Unlimited, Inc., provided that no Default or Event of
Default shall occur under or with respect to any other
section of this Agreement as a result of or after
giving effect to the consummation of the transactions
contemplated by the Stock Purchase Agreement."
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1.3 Section 9.06 of the Credit Agreement is hereby
deleted in its entirety and the following is substituted in its
place:
"Section 9.06. Mergers, Etc. Merge or
consolidate with, or sell, assign, lease or
otherwise dispose of (whether in one transaction
or in a series of transactions) all or
substantially all of its assets (whether now
owned or hereafter acquired) to, any person, or
acquire all or substantially all of the assets
or the business of any Person (or enter into any
agreement to do any of the foregoing), or permit
any of its Subsidiaries to do so except: (a) that
any such Co-Borrower or Subsidiary may merge into
or transfer assets to a Co-Borrower; (b) that a
Co-Borrower may effect any Acceptable Acquisition
permitted by Section 9.07 by means of a merger or
otherwise provided that if such Acceptable Acquisition
is effected by means of a merger, the Co-Borrower
shall be the surviving entity, and further provided
that in any merger transaction referenced in either
(a) or (b) above involving Olsten, Olsten shall be
the surviving entity; and (c) for a transaction
permitted by Section 9.04 hereof."
1.4 Effective upon (and assuming) the closing of the
transactions contemplated by the Stock Purchase Agreement on or
prior to March 10, 1995, Healthcare Staff Resources, Inc.
("Healthcare Staff") shall be released as a Co-Borrower from the
Credit Agreement and neither it nor its properties shall thereafter
be subject or subjected to the Credit Agreement. Healthcare Staff's
release as a Co-Borrower from the Credit Agreement shall be
evidenced from time to time by a certain Confirmation of Release,
substantially in the form attached hereto as Exhibit A (the
"Confirmation of Release"), which shall be executed and delivered by
the Agent to Xxxxxxxx Services, Inc. at the request of the Co-
Borrowers.
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4. CONDITION TO EFFECTIVENESS OF SECTIONS 1.2, 1.3 AND 1.4.
4. The Amendments to the Credit Agreement set forth in
Sections 1.2, 1.3 and 1.4 hereof shall only become effective and be
deemed in effect upon the closing of the transactions contemplated
by the Stock Purchase Agreement on or prior to March 10, 1995.
5. ADDITIONAL TERMS.
3.1 The Co-Borrowers each hereby represent and warrant
to the Banks that (a) the execution, delivery and performance by
each of the Co-Borrowers of this Amendment and the Stock Purchase
Agreement, and the consummation of the transactions contemplated
hereby and thereby, have been duly authorized by all necessary
corporate action, (b) the resolutions and corporate documents
delivered to the Agent pursuant to Section 6.01(a)(ii) of the Credit
Agreement on the date thereof have not been amended, revoked or
rescinded at any time on or subsequent to the date thereof and are
in effect at the date hereof, and (c) after giving effect to the
transactions contemplated hereby or referenced herein, the
representations and warranties in Article 7 of the Credit Agreement
are true and correct on the date hereof as though made on and as of
such date, and no event has occurred and is continuing, or will
occur and be continuing after giving effect to the consummation of
the transactions contemplated by the Stock Purchase Agreement, which
constitutes or will constitute a Default or Event of Default. The
Agent shall have received, on or before the date of this Amendment,
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a certificate of a duly authorized officer of each of the Co-
Borrowers, dated the date hereof, stating that the foregoing is true
and correct.
3.2 The parties hereto agree that all terms and
conditions of the Credit Agreement and the Facility Documents not
amended hereunder or pursuant hereto shall remain in full force and
effect.
3.3 All capitalized terms used herein and not defined
herein shall have the meanings given to them in the Credit
Agreement.
3.4 This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and
the same instrument, and any party hereto may execute this Amendment
by signing any such counterpart.
3.5 This Amendment shall be governed by, and interpreted
and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment to be duly executed as of the day and year first above
written.
CO-BORROWERS:
THE OLSTEN CORPORATION
OLSTEN STAFFING SERVICES, INC.
XXXXXX XXXXXXXX QUALITYCARE, INC.
OLSTEN CERTIFIED HEALTHCARE CORP.
OLSTEN SERVICES OF NEW YORK, INC.
OLSTEN OF WESTCHESTER, INC.
OLSTEN SERVICES OF XXXXXX, INC.
OLS HOLDINGS, INC.
OLSTEN HOME HEALTHCARE, INC.
NEW YORK HEALTHCARE SERVICES, INC.
ALL MEDICARE HOME HEALTH AGENCY, INC.
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AMERICAN HOME HEALTH CARE, INC.
FLYING NURSES, INC.
GOLD COAST SOUTH HOME HEALTH AGENCY, INC.
GULF COAST HOME HEALTH SERVICES CENTRAL, INC.
GULF COAST HOME HEALTH SERVICES EAST, INC.
GULF COAST HOME HEALTH SERVICES NORTH, INC.
GULF COAST HOME HEALTH SERVICES OF FLORIDA, INC.
GULF COAST HOME HEALTH SERVICES SOUTH, INC.
GULF COAST HOME HEALTH SERVICES SOUTHWEST, INC.
GULF COAST HOME HEALTH SERVICES WEST, INC.
HHC MANAGEMENT, INC.
HEALTHCARE STAFF RESOURCES, INC.
XXXXXXXX HOME HEALTH CARE, INC.
XXXXXXXX QUALITY CARE INFUSION THERAPY SERVICES, INC.
XXXXXXXX SERVICES, INC.
XXXXXXXX SERVICES OF NEW YORK, INC.
QC-MEDI CALIFORNIA, INC.
QC MEDI-ILLINOIS, INC.
QC MEDI-LOUISIANA, INC.
QC-MEDI MASS, INC.
QC-MEDI OF MICHIGAN, INC.
QC-MEDI NEW YORK, INC.
QC MEDI-TENN, INC.
QUALITY CARE-USA, INC.
QUALITY CARE, INC.
QUALITY CARE HEALTH SERVICES, INC.
QUALITY CARE HOME HEALTH, INC.
QUALITY CARE OF CONNECTICUT, INC.
QUALITY CARE SERVICE CORP.
RAINIER HOME HEALTH CARE, INC.
SUPERIOR CARE, INC.
UHH HOME SERVICES CORPORATION
AMERICAN SERVICE BUREAU, INC.
OLSTEN HOLDING COMPANY
By:_____________________________________
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President for all of the above Co-Borrowers
AGENT:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By:_____________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: _________________________________
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BANKS:
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By:_____________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: _________________________________
CHEMICAL BANK
By:______________________________________
Name: Xxxxxxxxx Xxxxxxx
Title: __________________________________
BOATMEN'S FIRST NATIONAL BANK OF KANSAS CITY
By:_________________________________________
Name: Xxxxx Xxxx Xxxx
Title: _____________________________________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
By:_________________________________________
Name: Xxxxx Xxxxxx
Title: _____________________________________
FLEET BANK
By:_________________________________________
Name: Xxxx Xxxx
Title: _____________________________________
NATWEST BANK N.A.
By:_________________________________________
Name: Xxxxx Xxxxxxxxxx
Title: _____________________________________
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EXHIBIT A
---------
CONFIRMATION OF RELEASE
The Chase Manhattan Bank, N.A., as Agent for the six Banks
signatory to that certain Amended and Restated Credit Agreement
dated as of September 9, 1994, as amended ("Credit Agreement"),
among The Olsten Corporation and certain of its subsidiaries
signatory thereto, DOES HEREBY CONFIRM that, effective upon the
closing of the transactions contemplated by that certain Stock
Purchase and Sale Agreement dated as of February 17, 1995 by and
between Xxxxxxxx Services, Inc. and Careerstaff Unlimited, Inc. on
March 3, 1995, Healthcare Staff Resources, Inc., a Texas
corporation, shall be deemed released as a party from the Credit
Agreement and neither it nor its properties shall be deemed subject
or subjected to the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
instrument as of the 3rd day of March, 1995.
THE CHASE MANHATTAN BANK, N.A., as Agent
By_______________________________________
Xxxxxxx X. Xxxxxxxx
Vice President
9
CONFIRMATION OF RELEASE
The Chase Manhattan Bank, N.A., as Agent for the six Banks
signatory to that certain Amended and Restated Credit Agreement
dated as of September 9, 1994, as amended ("Credit Agreement"),
among The Olsten Corporation and certain of its subsidiaries
signatory thereto, DOES HEREBY CONFIRM that, effective upon the
closing of the transactions contemplated by that certain Stock
Purchase and Sale Agreement dated as of February 17, 1995 by and
between Xxxxxxxx Services, Inc. and Careerstaff Unlimited, Inc. on
March 3, 1995, Healthcare Staff Resources, Inc., a Texas
corporation, shall be deemed released as a party from the Credit
Agreement and neither it nor its properties shall be deemed subject
or subjected to the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
instrument as of the 3rd day of March, 1995.
THE CHASE MANHATTAN BANK, N.A., as Agent
By_______________________________________
Xxxxxxx X. Xxxxxxxx
Vice President
10
EXHIBIT B
---------
SECRETARY'S CERTIFICATE
-----------------------
I, Xxxxxx X. Xxxxxxxxx, Xx., the duly elected Secretary
of each of the corporations listed on EXHIBIT A attached hereto
(each of such corporations being hereinafter referred to as a "Co-
Borrower"), in connection with the granting of certain waivers to
that certain FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT dated as of March 2, 1995 (as so amended, the "Credit
Agreement") among THE OLSTEN CORPORATION and certain of its
Subsidiaries signatory thereto, the Banks signatory thereto and THE
CHASE MANHATTAN BANK, N.A., as Agent, do hereby certify that:
1. The execution, delivery and performance by the Co-
Borrowers, the Subsidiaries of the Co-Borrowers and the Affiliates
of the Co-Borrowers which are or may be party to the Agreement (as
such term is defined in the attached waiver letter), or any of the
agreements, documents and instruments which may be executed, entered
into or delivered in connection with transactions contemplated
thereby, and the consummation of such transactions, have been or
will be duly authorized by all necessary corporate action.
2. The certificate or articles of incorporation and the
by-laws of each such Co-Borrower, copies of which were delivered to
the Banks and certified by the undersigned pursuant to Section
6.01(a)(ii) of the Original Agreement on the date thereof, have not
been amended, modified, revoked or rescinded at any time on or
subsequent to the date thereof and are in effect at the date hereof.
3. The representations and warranties in Article 7 of
the Credit Agreement are true and correct in all material respects
on the date hereof as though made on and as of such date (except
when such representation or warranty by its terms relates to a
specific date other than the date made), and no event has occurred
and is continuing, or will, after giving effect to the waivers which
are the subject of the attached letter, occur and be continuing upon
the consummation of the transactions contemplated by the Agreement,
which constitutes or will constitute a Default or an Event of
Default.
6. No material adverse change has occurred in the
business, financial condition or operations of the Co-Borrowers,
taken as a whole, since the date of the most recent financial
statements of the Co-Borrowers delivered to the Agent pursuant to
the Credit Agreement.
7. All capitalized terms used herein and not
defined herein shall have the meanings assigned to them in the
Credit Agreement.
11
IN WITNESS WHEREOF, I have signed this Certificate on this
____ day of March, 1995.
______________________________
Xxxxxx X. Xxxxxxxxx, Xx.
00
EXHIBIT A
---------
THE OLSTEN CORPORATION
OLSTEN STAFFING SERVICES, INC.
XXXXXX XXXXXXXX QUALITYCARE, INC.
OLSTEN CERTIFIED HEALTHCARE CORP.
OLSTEN SERVICES OR NEW YORK, INC.
OLSTEN OF WESTCHESTER, INC.
OLSTEN SERVICES OF XXXXXX, INC.
OLS HOLDINGS, INC.
OLSTEN HOME HEALTHCARE, INC.
NEW YORK HEALTHCARE SERVICES, INC.
ALL MEDICARE HOME HEALTH AGENCY, INC.
AMERICAN HOME HEALTH CARE, INC.
FLYING NURSES, INC.
GOLD COAST SOUTH HOME HEALTH AGENCY, INC.
GULF COAST HOME HEALTH SERVICES CENTRAL, INC.
GULF COAST HOME HEALTH SERVICES EAST, INC.
GULF COAST HOME HEALTH SERVICES NORTH, INC.
GULF COAST HOME HEALTH SERVICES OF FLORIDA, INC.
GULF COAST HOME HEALTH SERVICES SOUTHWEST, INC.
GULF COAST HOME HEALTH SERVICES WEST, INC.
HHC MANAGEMENT, INC.
HEALTHCARE STAFF RESOURCES, INC.
XXXXXXXX HOME HEALTH CARE, INC.
XXXXXXXX QUALITY CARE INFUSION THERAPY SERVICES, INC.
XXXXXXXX SERVICES, INC.
XXXXXXXX SERVICES OF NEW YORK, INC.
QC-MEDI CALIFORNIA, INC.
QC MEDI-ILLINOIS, INC.
QC MEDI-LOUISIANA, INC.
QC-MEDI MASS, INC.
QC-MEDI OF MICHIGAN, INC.
QC-MEDI NEW YORK, INC.
QC MEDI-TENN, INC.
QUALITY CARE-USA, INC.
QUALITY CARE, INC.
QUALITY CARE HEALTH SERVICES, INC.
QUALITY CARE HOME HEALTH, INC.
QUALITY CARE OF CONNECTICUT, INC.
QUALITY CARE SERVICE CORP.
RAINIER HOME HEALTH CARE, INC.
SUPERIOR CARE, INC.
UHH HOME SERVICES CORPORATION
AMERICAN SERVICE BUREAU, INC.
OLSTEN HOLDING COMPANY
13
EXHIBIT C
---------
INCUMBENCY CERTIFICATE
----------------------
I, Xxxxxxx X. Xxxxxxxxxx, DO HEREBY CERTIFY that I am the
duly elected Senior Vice President of The Olsten Corporation, a
Delaware corporation (the "Company"), and Senior Vice President and
Assistant Secretary to each of the other co-borrowers (the "Other
Co-Borrowers") signatory to that certain First Amendment to Amended
and Restated Credit Agreement dated as of March 2, 1995 among the
Company, the Other Co-Borrowers, The Chase Manhattan Bank, N.A. (as
a Bank and as Agent) and the other Banks signatory thereto, and that
the following person is now and has been a duly elected, qualified
and acting officer of the Company and each of the Other Co-Borrowers
holding the offices set forth opposite his name and that signature
set forth opposite his name is the genuine signature of such person:
Name Office Signature
---- ------ ---------
Xxxxxx X. Xxxxxxxxx, Xx. Vice President and
Secretary of the
Company and each of
the Other Co-Borrowers ________________
IN WITNESS WHEREOF, I have hereunto set my hand this 2nd
day of March, 1995.
____________________________________
Xxxxxxx X. Xxxxxxxxxx
Senior Vice President and
Assistant Secretary
I, Xxxxxx X. Xxxxxxxxx, Xx., Vice President and Secretary
of the Company and each of the Other Co-Borrowers, DO HEREBY CERTIFY
that Xxxxxxx X. Xxxxxxxxxx is the duly elected Senior Vice President
of the Company and Senior Vice President and Assistant Secretary of
each of the Other Co-Borrowers and that the signature set forth
immediately above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto set my hand this 2nd
day of March, 1995.
__________________________________
Xxxxxx X. Xxxxxxxxx, Xx.
Vice President and Secretary
14
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of September 28, 1995, among OLSTEN CORPORATION,
a corporation organized under the laws of the State of Delaware ("Olsten")
and certain of its Subsidiaries signatory hereto (collectively with Olsten,
the "Co-Borrowers"), each of the banks which is a signatory hereto
(individually, a "Bank", and collectively, the "Banks") and THE CHASE
MANHATTAN BANK, N.A., a national banking association organized under the laws
of the United States of America, as agent for the Banks (in such capacity,
together with its successors in such capacity, the "Agent").
RECITALS:
--------
A. The parties hereto entered into a certain Amended and Restated
Credit Agreement, dated as of September 9, 1994 (the "Credit Agreement"),
which Credit Agreement was amended by a certain First Amendment to Amended
and Restated Credit Agreement, dated as of March 2, 1995 (the "First
Amendment").
B. The parties hereto desire to further amend the Credit Agreement in
certain respects on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 8.08 is hereby amended to change the heading of
subsection "(o)" thereof to "(p)", and to add a new subsection "(o)", as
follows:
"(o) promptly after the occurrence of any Acceptable Acquisition,
notice of the identity of any Acceptable Acquisition and such other
information as is included in the press or other public releases
disseminated with regard to the Acceptable Acquisition; and "
15
(b) The sum "$1,000,000" set forth in the sixth line of
Section 9.02(m) of the Credit Agreement is hereby deleted, and the sum
"$20,000,000" is hereby substituted in its place.
(c) Section 9.03 of the Credit Agreement is hereby deleted
in its entirety, and the following is substituted in its place:
"Section 9.03. Investments. Notwithstanding anything contained
in this Agreement to the contrary, make, or permit any ofits
Subsidiaries to make, any loan or advance to any Person or purchase
or otherwise acquire or redeem, or permit any such Subsidiary to
purchase or otherwise acquire, any capital stock, assets,
obligations or other securities of, make any capital contribution
to, or otherwise invest in, or acquire any interest in (each of the
foregoing, an "Investment"), any Person (including, without
limitation, any Co-Borrower or any Subsidiary or Affiliate of any
Co-Borrower), except (a) any of the following Investments: (i)
obligations issued or guaranteed by states or municipalities within
the United States of America and rated at least A-1 by Standard &
Poors or an equivalent rating by another recognized credit rating
agency approved by the Required Banks (an "Equivalent Rating");
(ii) obligations issued or guaranteed by the United States of
America or any agency or subdivision thereof, the payment or
guarantee of which constitutes a full faith and credit obligation
of the United States of America; (iii) certificates of deposit,
time deposits, Eurodollar certificates of deposit, bankers
acceptances and other "money market instruments" issued by any
bank, trust company or financial institution organized under the
laws of the United States of America or any state thereof (or, in
the case of Eurodollar certificates of deposit, a branch of any
such bank, trust company or financial institution) having capital
and surplus in an aggregate amount not less than $200,000,000 and
rated (i.e., the instrument) at least A-1 by Standard & Poors or
an Equivalent Rating, or by any of the Banks, or by any bank, trust
company or financial institution organized under the laws of a
jurisdiction other than the United States of America or any state
thereof having capital and surplus in an aggregate amount not less
than $200,000,000 and rated (i.e., the instrument) at least A-1 by
Standard & Poors or an Equivalent Rating; (iv) commercial paper
rated at least Prime-1 by Xxxxx'x Investor Services or A-1 by
Standard & Poors; (v) repurchase agreements entered into with any
bank, trust company or financial institution organized under the
laws of the United States of America or any state thereof having
capital and surplus in an aggregate amount not less than
$200,000,000, or with any of the Banks, or with any bank, trust
company or financial institution organized under the laws of a
jurisdiction other than the United States of America or any state
thereof having capital and surplus in an aggregate amount not less
than $200,000,000, and which (with respect to any such repurchase
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agreement referred to in this Section 9.03(v)) are fully secured
by obligations of the type described in Section 9.03(ii) hereof and
(vi) Investments, other than of any of the types referenced in
(a)(i)-(v) above or (b)-(f) below, which are of the same general
nature as the Co-Borrowers' Investments existing on the date
hereof, including, without limitation, loans to franchisees or
licensed area representatives of the Co-Borrowers or any of them,
provided that the recipient or beneficiary of any such Investment
referred to in this Section 9.03(a)(vi) is not an Affiliate of the
Co-Borrowers or any of them, and further provided that the
aggregate of such Investments (i.e., those referenced in this
clause (vi)) do not, at any time, in any case or in the aggregate,
exceed $20,000,000; and provided that in the case of any of the
Investments referred to in clauses (i), (ii), (iii) and (iv) above,
each such Investment matures or is maturing or being due or payable
in full not more than one year after the relevant Person's
acquisition thereof; (b) Acceptable Acquisitions with respect to
which the amounts paid or payable (which amount includes cash,
notes, issuance of equity securities and the assumption of debt)
do not at any time, in any case or in the aggregate, exceed
$125,000,000 during fiscal year 1995 (excluding the IMI and Norsk
Personal Gruppen acquisition) and $100,000,000 during any fiscal
year of Olsten thereafter during the term of this Agreement; (c)
Investments (including by the purchase of equity securities) to or
in non-Subsidiary entities that are Affiliates of the Co-Borrowers,
or any of them, provided that such entities are engaged in the
business of providing human resource services, including without
limitation, health care services, related office management
services or related businesses, and that such entities do not
become Subsidiaries of the Co-Borrowers or any of them as a result
of such loans, advances or investments; (d) Investments to or in
any Subsidiary that is not a Co-Borrower; provided, however, that
notwithstanding anything contained in this Agreement to the
contrary,in the case of any of the Investments referenced in either
of clauses (c) or (d) above, such Investments do not, at any time,
in any case or in the aggregate (i.e., any such Investments
referenced in clause (c) above plus any such Investments referenced
in clause (d) above), exceed $20,000,000; (e) Investments in
Subsidiaries for the purpose of making Acceptable Acquisitions with
respect to which the amounts paid or payable (which amount includes
cash, notes, issuance of equity securities and the assumption of
debt) do not at any time, in any case or in the aggregate, exceed
$100,000,000 during any fiscal year of Olsten; and (f) the
Investments described in paragraph A of Schedule V hereto.
For the purposes of clauses (c) and (e) above, the Acceptable
Acquisitions set forth in Schedule A to the Second Amendment to
Amended and Restated Credit Agreement shall be included in the
calculations of the amount of Acceptable Acquisitions for the
fiscal year of Olsten ending December 31, 1995.
Notwithstanding anything to the contrary in the foregoing
paragraphs, for the purpose hereof, the aggregate of all Acceptable
Acquisitions and Investments in Subsidiaries may not exceed
$100,000,000 during any fiscal year of Olsten."
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Section 9.04(e) of the Credit Agreement is hereby deleted in
its entirety, and the following is substituted in its place:
"(e) sales or dispositions of assets in arm's length transactions,
provided that the aggregate net proceeds of all such sales shall
not exceed $50,000,000 in any fiscal year;"
2. IDENTITY OF CO-BORROWERS.
The identity of the Co-Borrowers obligated under the Credit
Agreement shall be amended to include only those listed as signatories to
this Amendment, and those required to become Co-Borrowers under the Credit
Agreement. Resolutions and corporate documentation for each new Co-Borrower,
or Co-Borrower which has undergone a corporate name change, have been
delivered to the Agent pursuant to Section 6.01(a)(ii) of the Credit
Agreement as of the date hereof.
3. ADDITIONAL TERMS.
3.1 The Co-Borrowers each hereby represent and warrant to the
Banks that (a) the execution, delivery and performance by each of the Co-
Borrowers of this Amendment, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
action, (b) the resolutions and corporate documents delivered to the Agent
pursuant to Section 6.01(a)(ii) of the Credit Agreement on the date thereof
have not been amended, revoked or rescinded at any time on or subsequent to
the date thereof and are in effect at the date hereof, and (c) after giving
effect to the transactions contemplated hereby or referenced herein, the
representations and warranties in Article 7 of the Credit Agreement are true
and correct on the date hereof as though made on and as of such date, and no
event has occurred and is continuing, which constitutes or will constitute
a Default or Event of Default. The Agent shall have received, on or before
the date of this Amendment, a certificate of a duly authorized officer of
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each of the Co-Borrowers, dated the date hereof, stating that the foregoing
is true and correct.
3.2 The parties hereto agree that all terms and conditions of the
Credit Agreement and the Facility Documents not amended hereunder or pursuant
hereto shall remain in full force and effect.
3.3 All capitalized terms used herein and not defined herein shall
have the meanings given to them in the Credit Agreement.
3.4 This Amendment may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument, and
any party hereto may execute this Amendment by signing any such counterpart.
3.5 This Amendment shall be governed by, and interpreted and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
be duly executed as of the day and year first above written.
CO-BORROWERS:
OLSTEN CORPORATION f/k/a THE OLSTEN CORPORATION
XXXXXX XXXXXXXX QUALITYCARE, INC.
OLSTEN CERTIFIED HEALTHCARE CORP.
OLSTEN SERVICE CORP. f/k/a OLSTEN HOLDING COMPANY
OLSTEN SERVICES OF NEW YORK, INC.
OLSTEN STAFFING SERVICES, INC. f/k/a FLYING NURSES, INC.
OLSTEN OF WESTCHESTER, INC.
OLS HOLDINGS, INC.
OLSTEN HOME HEALTHCARE, INC.
NEW YORK HEALTHCARE SERVICES, INC.
ALL MEDICARE HOME HEALTH AGENCY, INC.
AMERICAN HOME HEALTH CARE, INC.
GOLD COAST SOUTH HOME HEALTH AGENCY, INC.
GULF COAST HOME HEALTH SERVICES CENTRAL, INC.
GULF COAST HOME HEALTH SERVICES EAST, INC.
GULF COAST HOME HEALTH SERVICES NORTH, INC.
GULF COAST HOME HEALTH SERVICES OF FLORIDA, INC.
GULF COAST HOME HEALTH SERVICES SOUTHWEST, INC.
GULF COAST HOME HEALTH SERVICES WEST, INC.
HHC MANAGEMENT, INC.
XXXXXXXX HOME HEALTH CARE, INC.
XXXXXXXX QUALITY CARE INFUSION THERAPY SERVICES, INC.
XXXXXXXX SERVICES, INC.
-5-
19
QC-MEDI CALIFORNIA, INC.
QC MEDI-ILLINOIS, INC.
QC MEDI-LOUISIANA, INC.
QC-MEDI MASS, INC.
QC-MEDI OF MICHIGAN, INC.
QC-MEDI NEW YORK, INC.
QC MEDI-TENN, INC.
QUALITY CARE-USA, INC.
QUALITY CARE, INC.
QUALITY CARE HEALTH SERVICES, INC.
QUALITY CARE HOME HEALTH, INC.
QUALITY CARE OF CONNECTICUT, INC.
QUALITY CARE SERVICE CORP.
RAINIER HOME HEALTH CARE, INC.
SUPERIOR CARE, INC.
UHH HOME SERVICES CORPORATION
AMERICAN SERVICE BUREAU, INC.
AMERICARE, INC.
AMERICARE MEDICAL EQUIPMENT, INC.
AMERICARE PHARAMCEUTICALS, INC.
BROAD PINES DEVELOPMENT CORP.
DIRKA CO.
OLSTEN FLYING NURSES CORP.
XXXXXX XXXXXXXX CORP.
QUALITY MANAGED CARE, INC.
By:____________________________________
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President for all of the above Co-Borrowers
AGENT:
THE CHASE MANHATTAN BANK, N.A.
By:___________________________
Name:__________________________
Title:_________________________
-6-
20
BANKS:
THE CHASE MANHATTAN BANK, N.A.
By:___________________________
Name:__________________________
Title:_________________________
CHEMICAL BANK
By:___________________________
Name:__________________________
Title:_________________________
BOATMEN'S FIRST NATIONAL BANK OF
KANSAS CITY
By:____________________________
Name:__________________________
Title:_________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:____________________________
Name:__________________________
Title:_________________________
-7-
21
FLEET BANK
By:____________________________
Name:__________________________
Title:_________________________
NATWEST BANK N.A.
By:____________________________
Name:__________________________
Title:_________________________
-8-
22
EXHIBIT B
---------
SECRETARY'S CERTIFICATE
-----------------------
I, Xxxxxx X. Xxxxxxxxx, Xx., the duly elected Secretary of each of
the corporations listed on SCHEDULE A attached hereto (each of such
corporations being hereinafter referred to as a "Co-Borrower"), in connection
with the execution of that certain SECOND AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of September ____, 1995 (the "Second Amendment")
among THE OLSTEN CORPORATION and certain of its Subsidiaries signatory
thereto, the Banks signatory thereto and THE CHASE MANHATTAN BANK, N.A., as
Agent, do hereby certify that:
4. The execution, delivery and performance by the Co-
Borrowers, the Subsidiaries of the Co-Borrowers and the Affiliates of the Co-
Borrowers which are or may be party to the Credit Agreement (as such term is
defined in the Second Amendment), or any of the agreements, documents and
instruments which may be executed, entered into or delivered in connection
with transactions contemplated thereby, and the consummation of such
transactions, have been or will be duly authorized by all necessary corporate
action.
5. The certificate or articles of incorporation and the by-
laws of each such Co-Borrower, copies of which were delivered to the Banks
and certified by the undersigned pursuant to Section 6.01(a)(ii) of the
Credit Agreement on the date thereof, have not been amended, modified,
revoked or rescinded at any time on or subsequent to the date thereof and are
in effect at the date hereof.
6. The representations and warranties in Article 7 of the
Credit Agreement are true and correct in all material respects on the date
hereof as though made on and as of such date (except when such representation
or warranty by its terms relates to a specific date other than the date
made), and no event has occurred and is continuing, or will, after giving
effect to the waivers which are the subject of the attached letter, occur and
be continuing upon the consummation of the transactions contemplated by the
Credit Agreement, which constitutes or will constitute a Default or an Event
of Default.
7. No material adverse change has occurred in the business,
financial condition or operations of the Co-Borrowers, taken as a whole,
since the date of the most recent financial statements of the Co-Borrowers
delivered to the Agent pursuant to the Credit Agreement.
8. All capitalized terms used herein and not defined herein
shall have the meanings assigned to them in the Credit Agreement.
23
IN WITNESS WHEREOF, I have signed this Certificate on this ____ day
of September, 1995.
______________________________
Xxxxxx X. Xxxxxxxxx, Xx.
00
SCHEDULE I
TO EXHIBIT B
------------
OLSTEN CORPORATION f/k/a THE OLSTEN CORPORATION
XXXXXX XXXXXXXX QUALITYCARE, INC.
OLSTEN CERTIFIED HEALTHCARE CORP.
OLSTEN SERVICE CORP. f/k/a OLSTEN HOLDING COMPANY
OLSTEN SERVICES OF NEW YORK, INC.
OLSTEN STAFFING SERVICES, INC. f/k/a FLYING NURSES, INC.
OLSTEN OF WESTCHESTER, INC.
OLS HOLDINGS, INC.
OLSTEN HOME HEALTHCARE, INC.
NEW YORK HEALTHCARE SERVICES, INC.
ALL MEDICARE HOME HEALTH AGENCY, INC.
AMERICAN HOME HEALTH CARE, INC.
GOLD COAST SOUTH HOME HEALTH AGENCY, INC.
GULF COAST HOME HEALTH SERVICES CENTRAL, INC.
GULF COAST HOME HEALTH SERVICES EAST, INC.
GULF COAST HOME HEALTH SERVICES NORTH, INC.
GULF COAST HOME HEALTH SERVICES OF FLORIDA, INC.
GULF COAST HOME HEALTH SERVICES SOUTHWEST, INC.
GULF COAST HOME HEALTH SERVICES WEST, INC.
HHC MANAGEMENT, INC.
XXXXXXXX HOME HEALTH CARE, INC.
XXXXXXXX QUALITY CARE INFUSION THERAPY SERVICES, INC.
XXXXXXXX SERVICES, INC.
QC-MEDI CALIFORNIA, INC.
QC MEDI-ILLINOIS, INC.
QC MEDI-LOUISIANA, INC.
QC-MEDI MASS, INC.
QC-MEDI OF MICHIGAN, INC.
QC-MEDI NEW YORK, INC.
QC MEDI-TENN, INC.
QUALITY CARE-USA, INC.
QUALITY CARE, INC.
QUALITY CARE HEALTH SERVICES, INC.
QUALITY CARE HOME HEALTH, INC.
QUALITY CARE OF CONNECTICUT, INC.
QUALITY CARE SERVICE CORP.
RAINIER HOME HEALTH CARE, INC.
SUPERIOR CARE, INC.
UHH HOME SERVICES CORPORATION
AMERICAN SERVICE BUREAU, INC.
AMERICARE, INC.
AMERICARE MEDICAL EQUIPMENT, INC.
AMERICARE PHARAMCEUTICALS, INC.
BROAD PINES DEVELOPMENT CORP.
DIRKA CO.
OLSTEN FLYING NURSES CORP.
XXXXXX XXXXXXXX CORP.
QUALITY MANAGED CARE, INC.
25
EXHIBIT C
---------
INCUMBENCY CERTIFICATE
----------------------
I, Xxxxxxx X. Xxxxxxxxxx, DO HEREBY CERTIFY that I am the duly
elected Senior Vice President of The Olsten Corporation, a Delaware
corporation (the "Company"), and Senior Vice President and Assistant
Secretary to each of the other co-borrowers (the "Other Co-Borrowers")
signatory to that certain Second Amendment to Amended and Restated Credit
Agreement dated as of September __, 1995 among the Company, the Other Co-
Borrowers, The Chase Manhattan Bank, N.A. (as a Bank and as Agent) and the
other Banks signatory thereto, and that the following person is now and has
been a duly elected, qualified and acting officer of the Company and each of
the Other Co-Borrowers holding the offices set forth opposite his name and
that signature set forth opposite his name is the genuine signature of such
person:
Name Office Signature
---- ------ ---------
Xxxxxx X. Xxxxxxxxx, Xx. Vice President and
Secretary of the
Company and each of
the Other Co-Borrowers ________________
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of
September, 1995.
____________________________________
Xxxxxxx X. Xxxxxxxxxx
Senior Vice President and
Assistant Secretary
I, Xxxxxx X. Xxxxxxxxx, Xx., Vice President and Secretary of the
Company and each of the Other Co-Borrowers, DO HEREBY CERTIFY that Xxxxxxx
X. Xxxxxxxxxx is the duly elected Senior Vice President of the Company and
Senior Vice President and Assistant Secretary of each of the Other Co-
Borrowers and that the signature set forth immediately above is his genuine
signature.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of
September, 1995.
___________________________________
Xxxxxx X. Xxxxxxxxx, Xx.
Vice President and Secretary
26
THIRD AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
dated as of January 4, 1996
among
OLSTEN CORPORATION
AND CERTAIN OF ITS SUBSIDIARIES
as the Co-Borrowers
and
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as the Agent
and
THE BANKS SIGNATORY HERETO
as the Banks
27
THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as
of January 4, 1996 among OLSTEN CORPORATION, a corporation organized under
the laws of the State of Delaware ("Olsten") and certain of its Subsidiaries
signatory hereto (each such Subsidiary, a "Consolidated Subsidiary", each of
the banks which is a signatory hereto (individually, a "Bank" and,
collectively, the "Banks"), and THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION), a national banking association organized under the laws of the
United States Of America, as agent for the Banks (the "Agent").
RECITALS:
--------
A. The parties hereto entered in to that certain Amended and
Restated Credit Agreement, dated as of September 9, 1994 (the "Credit
Agreement"), which Credit Agreement was amended by a certain First Amendment
to Amended and Restated Credit Agreement, dated as of March 2, 1995 (the
"First Amendment") and by a certain Second Amendment to Amended and Restated
Credit Agreement, dated as of September 28, 1995 (the "Second Amendment").
B. The parties hereto desire to further amend the Credit
Agreement to permit a sublimit of the equivalent of $100,000,000 in foreign
currency borrowings under the existing Commitment, and in certain other
respects, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
Section AMENDMENTS TO CREDIT AGREEMENT.
(A) Section 1.01 is hereby amended to delete the definitions of
"Banking Day", "Interest Period", and "Notes" set forth in the Credit
Agreement and substitute therefor the following definitions:
"Banking Day" means any day on which commercial banks are not
authorized or required to close in New York City, and whenever such day
relates to a Eurocurrency Loan or notice with respect to any Eurocurrency
Loan, a day on which dealings in deposits of the relevant currency are also
carried out in the relevant London interbank market and, in the case of a
Eurocurrency Loan denominated in an Optional Currency, a day on which
commercial banks are open for business in the place of payment of such
Optional Currency and on which dealings in the Optional Currency are carried
on in the applicable offshore foreign exchange interbank market in which
disbursement of or payment in such Optional Currency will be made or received
hereunder.
"Interest Period" means the period commencing on the date a
Eurodollar Loan or a Eurocurrency Loan is made and ending on the numerically
corresponding day in the first, second, third, sixth or (if available)
twelfth calendar month thereafter, as the Co-Borrowers may select pursuant
to Section 2.05 or 3.04, as the case may be, provided, however, that if any
Interest Period would otherwise expire on a day which is not a Banking Day,
such Interest Period shall expire on the next succeeding Banking Day unless
such next succeeding Banking Day would fall on the next calendar month, in
28
which case such Interest Period shall end on the next preceding Banking Day,
and each such Interest Period which commences on the last Banking Day of a
calendar month (or on any day for which there is no numerically corresponding
day in the appropriate subsequent calendar month) shall end on the last
Banking Day of the appropriate calendar month.
"Notes" means the Revolving Credit Notes and the Term Notes, as
each is modified by the Note Schedule attached hereto as Exhibit "A".
(B) Section 1.01 is hereby amended to add the following
definitions:
"Eurocurrency Base Rate" means, for any Eurocurrency Loan, the rate
per annum (rounded upwards if necessary to the nearest 1/1 6 of 1%) quoted
by the Agent at approximately 11:00 a.m. London time at the principal London
branch of the Agent two Banking Days prior to the first day of the Interest
Period for such Loan for the offering to leading banks in the London
interbank market of deposits in the currency in which such Eurocurrency Loan
is to be denominated in immediately available funds for a period, and in an
amounts comparable to the Interest Period for, and principal amount of, the
Eurocurrency Loan which shall be, made by the Bank and outstanding during
such Interest Period.
"Eurocurrency Loan" means any Loan denominated in an Optional
Currency when and to the extent the interest rate therefor is determined on
the basis of the Eurocurrency Base Rate.
"Eurocurrency Rate" means for any Interest Period for any
Eurocurrency Loan a rate per annum determined pursuant to the following
formula:
Eurocurrency Eurocurrency (EuroRate) EuroRate
= Base + -------------------------
Rate Rate (1 - Reserve Requirement)
"EuroRate" means, with respect to a Eurocurrency Loan, the Base
Rate therefor as if such Eurocurrency Loan were denominated in Dollars as
determined pursuant to the Eurocurrency Base Rate.
"Optional Currency" means German Deutschemarks, Swedish Kroner, or
any other foreign currency for which the Agent is then issuing a quote on the
London interbank market or other relevant offshore interbank foreign exchange
market, and for which each of the Banks can provide Loans in such foreign
currency.
"Reserve Requirement" means, for any Eurocurrency Loan, the average
maximum rate at which reserves (including any marginal, supplemental or
emergency reserves) are required to be maintained during the Interest Period
for such Loan under Regulation D by member banks of the Federal Reserve
System in New York City with deposits exceeding One Billion Dollars against
"Eurocurrency liabilities" (as such term is used in Regulation D). Without
29
limiting the effect of the foregoing, the Reserve Requirement shall also
reflect any other reserves required to be maintained by such member banks by
reason of any Regulatory Change against (i) any category of liabilities which
includes deposits by reference to which the Base Rate for Eurocurrency Loans
is to be determined as provided in the definition of "Base Rate" this Section
1.01 or (ii) any category of extensions of credit or other assets which
include Eurocurrency Loans.
(C) The definition of "Commitment" in Section 1.01 is amended to
add the following sentence:
"Notwithstanding the foregoing, up to a maximum of $100,000,000 of
the Revolving Credit Loans/Term Loans may be requested in the equivalent
amount of Optional Currency."
(D) Sections 2.01, 2.05, 2.07, 3.04, 4.01, 4.02 (a), 4.03 (a),
4.03 (b), 4.03 (c), 5.01 (a), 5.01 (b), 5.03 and 5.04 are amended to add the
phrase "or Eurocurrency Loans" after the phrase "Eurodollar Loans", and the
definition of "Margin" and Section 5.05 are amended to add the phrase "or a
Eurocurrency Loan" after the phrase "Eurodollar Loan", wherever same shall
appear.
(E) An additional sentence is added to the end of Section 2.04,
as follows:
"If a Co-Borrower shall request in such notice a Loan in an
Optional Currency, the Agent will, not later than 1:00 p.m. (local time at
the country of issue of such Optional Currency) on the date specified for
such Loan and subject to the fulfillment of the conditions set forth in this
Agreement, make the amount of the Loan to be made by it on such day available
to such Borrower, in such requested currency in immediately available funds,
at such bank in the country of issue of such Optional Currency as shall have
been designated by such Co-Borrower."
(F) An additional subsection (a) (ii) is added to Section 4.01,
as follows, and the existing subsection (a) (ii) is renumbered as subsection
(a) (iii):
"(ii) at least four Banking Days" irrevocable telephonic
notice (confirmed in writing) of each Eurocurrency Loan (whether representing
an additional borrowing hereunder; a conversion of a borrowing hereunder from
a Variable Rate Loan or a Eurodollar Loan to a Eurocurrency Loan or a
continuation of a Eurocurrency Loan for an additional Interest Period) prior
to 10:30 a.m., New York, New York time on the day such notice is given and"
(G) An additional subsection (g) is added to the end to Section
4.02, as follows:
"If, upon the expiration of any Interest Period for a
Eurocurrency Loan, the Agent shall have determined that the aggregate Dollar
equivalent of all outstanding Eurocurrency Loans exceeds the combined
Commitments of the Banks, due to a change in applicable rates of exchange
between Dollars and the Optional Currency or Optional Currencies then in
effect for such outstanding Eurocurrency Loans, the Agent shall give notice
to the Co-Borrowers that a prepayment is required under this Section, and the
Co-Borrowers jointly and severally agree thereupon to make prepayments of the
30
Loans such that, after giving effect to such prepayment, the aggregate Dollar
equivalent amount of all Loans does not exceed the combined Commitments."
(H) An additional phrase is added to Section 4.03 (a), after the
end of subsection (ii), as follows:
"; and (iii) for a Eurocurrency Loan, at a fixed rate equal to the
Eurocurrency Rate plus the applicable Margin."
(I) Section 4.07 (a) is hereby deleted and the following Section
4.07 (a) is substituted in its place:
"(a) Each payment to be made by any Co-Borrower hereunder in
respect of principal of and interest on any Loan denominated in Dollars shall
be made not later than 1:00 p.m. New York City time on the day when due in
Dollars in immediately available funds at the Principal Office for the
account of the applicable Banks and (ii) in an Optional Currency shall be
made not later than 1:00 p.m (local time at the place of payment) on the day
when due in such Optional Currency in immediately available funds to the
Agent at an office (in the country of issue of such Optional Currency) which
the Agent shall designate for such payment for the account of the applicable
Lending Office; provided that, each such payment made after such time on such
due date shall be deemed to have been made on the next succeeding Banking
Day, and provided, further, that if a new Loan is to be made by the Banks on
a date a Co-Borrower is to repay the principal of one or more outstanding
Loans in the same currency as the new Loan, the Agent shall apply the
proceeds of the new Loan to the payment of the principal to be repaid and
only an amount equal to the difference between the principal to be borrowed
and the principal to be repaid shall be made available by the Banks to such
Co-Borrower, or paid by such Co-Borrower to the Banks pursuant to this
Section, as the case may be. All other payments under this Agreement and the
Notes shall be made in Dollars in immediately available funds at the
Principal Office not later than 1:00 p.m. New York City time on the day such
payments are due (each such payment made after such time on such due date to
be doomed to have been made on the next succeeding Banking Day). The Agent
may (but shall not be obligated to) debit any or all accounts of any Co-
Borrower with the Agent the amount of any such payment which is not made by
such time. To the extent that such accounts are not maintained in the
currency due, the Agent is authorized to charge an amount in any other
currency equal to the equivalent in such other currency of the currency due.
Each Co-Borrower shall, at the time of making each payment under this
Agreement or its Note, specify to the Agent the principal or other amount
payable by such Co-Borrower under the Credit Agreement or its Note to which
such payment is to be applied (and in the event that it fails to so specify,
or if a Default or an Event of Default has occurred and is continuing, the
Agent may apply such payment as it may elect in its sole discretion). If the
due date of any payment under the Credit Agreement or any Note would
otherwise fall on a day which is not a Banking Day, such date shall be
extended to the next succeeding Banking Day and interest shall be payable for
any principal so extended for the period of such extension."
(J) A new Section 4.09 is added, as follows:
"Section 4.09 Optional Currencies.
31
For purposes of the provisions of this Agreement, (i) the
equivalent in Dollars of any Optional Currency shall be determined by using
the quoted spot rate at which the Principal Office offers to exchange Dollars
for such Optional Currency in New York City at 11:00 a.m. Now York City time
two Banking Days prior to the date on which such equivalent is to be
determined, and (ii) the equivalent in any Optional Currency of Dollars shall
be determined by using the quoted spot rate at which the Principal Office
offers to exchange such Optional Currency for Dollars in New York City at
11:00 a.m. New York City time two Banking Days prior to the date on which
such equivalent is to be determined,
(b) The Agent's determination of each spot rate of exchange
pursuant to this Agreement shall be conclusive in the absence of manifest
error."
(K) A new Section 4.10 is added, as follows:
"Section 4.10 Judgment Currency. The currency in which each Loan
made hereunder is denominated and the place of payment designated therefor
is of the essence. The payment obligation of each Co-Borrower hereunder in
any designated currency and designated place of payment shall not be
discharged by an amount paid in another currency or in another place, whether
pursuant to a judgment or otherwise, to the extent that the amount so paid
on prompt conversion to the currency in which such Loan is denominated and
transfer to the designated place of payment under normal banking procedures
does not yield the amount owing hereunder at the designated place of payment.
In the event that any payment by a Borrower whether pursuant to a judgment
or otherwise, upon such conversion and transfer does not result in payment
of such amount in the currency in which such Loan is denominated at the
designated place of payment, the Agent shall be entitled to demand immediate
payment of, and shall have a separate cause of action against such Borrower
for, the additional amount necessary to yield the amount of such currency
owing hereunder."
(L) Section 5.01 (a) (ii) is amended to add the phrase "or
Eurocurrency Rate" after the phrase "Reserve Adjusted Eurodollar Rate".
.
(M) Section 5.02 is amended to add the following subsections:
"(c) the Agent determines (which determination shall be conclusive)
that quotations of interest rates for the relevant deposits referred to in
the definition of Eurocurrency Rate are not being provided in the relevant
amounts or for the relevant maturities for purposes of determining the rate
of interest for any type of Eurocurrency Loans as provided in this Agreement,
or
(d) the relevant rates of interest referred to in the definition
of "Eurocurrency Rate" upon the basis of which the rate of interest for any
type of Eurocurrency Loans is to be determined do not adequately cover the
cost to the Banks of making or maintaining Loans of such type, then the Agent
shall give the Co-Borrowers and each other Bank prompt notice thereof (i.e.,
the condition described in (c) and or (d) above), and for so long as such
condition remains in effect, such Bank shall be under no obligation to make
Loans of such type."
32
SECTION 2. IDENTITY OF CO-BORROWERS.
The identity of the Co-Borrowers obligated under the Credit
Agreement shall include only those listed a signatories to this Amendment,
and those required to become Co-Borrowers under the Credit Agreement.
SECTION 3. ADDITIONAL TERMS.
(A) The Co-Borrowers each hereby represent and warrant to the
Banks that (a) the execution, delivery and performance by each of the Co-
Borrowers of this Amendment, and the consummation of the transactions
contemplated hereby, have been duly authorized by all necessary corporate
action, (b) the resolutions and corporate documents delivered to the Agent
pursuant to Section 6.01(a)(ii) of the Credit Agreement on the date thereof
have not been amended, revoked or rescinded at any time on or subsequent to
the date thereof and are in effect at the date hereof, and (c) after giving
effect to the transactions contemplated hereby or referenced herein, the
representations and warranties in Article 7 of the Credit Agreement are true
and correct on the date hereof as though made on and as of such date, and no
event has occurred and is continuing, which constitutes or will constitute
a Default or Event of Default. The Agent shall have received, on or before
the date of this Amendment, a certificate of a duly authorized officer of
each of the Co-Borrowers, dated the date hereof, stating that the foregoing
is true and correct.
(B) The parties hereto agree that all terms and conditions of the
Credit Agreement and the Facility Documents not amended hereunder or pursuant
hereto shall remain in full force and effect.
(C) All capitalized terms used herein and not defined herein shall
have the meanings given to them in the Credit Agreement.
(D) This Amendment may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument, and
any party hereto may execute this Amendment by signing any such counterpart.
(E) This Amendment shall be governed by, and interpreted and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
CO-BORROWERS:
OLSTEN CORPORATION f/k/a THE OLSTEN CORPORATION
XXXXXX XXXXXXXX QUALITYCARE, INC.
OLSTEN CERTIFIED HEALTHCARE CORP.
OLSTEN SERVICE CORP. f/k/a OLSTEN HOLDING COMPANY
OLSTEN SERVICES OF NEW YORK, INC.
OLSTEN STAFFING SERVICES, INC. f/k/a FLYING NURSES, INC.
33
OLSTEN OF WESTCHESTER, INC.
OLS HOLDINGS, INC.
OLSTEN HOME HEALTHCARE, INC.
NEW YORK HEALTHCARE SERVICES, INC.
ALL MEDICARE HOME HEALTH AGENCY, INC.
AMERICAN HOME HEALTH CARE, INC.
GOLD COAST SOUTH HOME HEALTH AGENCY, INC.
GULF COAST HOME HEALTH SERVICES CENTRAL, INC.
GULF COAST HOME HEALTH SERVICES EAST, INC.
GULF COAST HOME HEALTH SERVICES NORTH, INC.
GULF COAST HOME HEALTH SERVICES OF FLORIDA, INC.
GULF COAST HOME HEALTH SERVICES SOUTHWEST, INC.
GULF COAST HOME HEALTH SERVICES WEST, INC.
HHC MANAGEMENT, INC.
IMI SYSTEMS INC.
XXXXXXXX HOME HEALTH CARE, INC.
XXXXXXXX QUALITY CARE INFUSION THERAPY SERVICES, INC.
XXXXXXXX SERVICES, INC.
QC-MEDI CALIFORNIA, INC.
QC MEDI-ILLINOIS, INC.
QC MEDI-LOUISIANA, INC.
QC-MEDI MASS, INC.
QC-MEDI OF MICHIGAN, INC.
QC-MEDI NEW YORK, INC.
QC MEDI-TENN, INC.
QUALITY CARE-USA, INC.
QUALITY CARE, INC.
QUALITY CARE HEALTH SERVICES, INC.
QUALITY CARE HOME HEALTH, INC.
QUALITY CARE OF CONNECTICUT, INC.
QUALITY CARE SERVICE CORP.
RAINIER HOME HEALTH CARE, INC.
SUPERIOR CARE, INC.
UHH HOME SERVICES CORPORATION
AMERICAN SERVICE BUREAU, INC.
AMERICARE, INC.
AMERICARE MEDICAL EQUIPMENT, INC.
AMERICARE PHARAMCEUTICALS, INC.
BROAD PINES DEVELOPMENT CORP.
DIRKA CO.
OLSTEN FLYING NURSES CORP.
XXXXXX XXXXXXXX CORP.
QUALITY MANAGED CARE, INC.
By:_______________________________
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President for all of the above Co-Borrowers
34
AGENT:
THE CHASE MANHATTAN BANK, N.A.
By:_____________________________________
Name:___________________________________
Title:____________________________________
BANKS:
THE CHASE MANHATTAN BANK, N.A.
By:_____________________________________
Name:___________________________________
Title:____________________________________
35
CHEMICAL BANK
By:_____________________________________
Name:___________________________________
Title:____________________________________
BOATMEN'S FIRST NATIONAL BANK OF KANSAS CITY
By:_____________________________________
Name:___________________________________
Title:____________________________________
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By:_____________________________________
Name:___________________________________
Title:____________________________________
FLEET BANK
By:_____________________________________
Name:___________________________________
Title:____________________________________
NATWEST BANK NA
By:_____________________________________
Name:___________________________________
Title:____________________________________
36
Lending Office for Eurocurrency Loans
Denominated in an Optional Currency made to
a U.S. Borrower:
The Chase Manhattan Bank, N.A.
Nassau Branch
Nassau, N.P. Bahamas
Lending Office for Loans Denominated in an
Optional Currency made to a non-U, S,
Borrower:
The International Banking Facility
The Chase Manhattan Bank, N.A.
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
37
EXHIBIT "A"
Schedule
--------
Date Made, Principal
Prepaid Loan Number Amount and Maturity Balance Notation
or Repaid and Type Currency Date Outstanding By
--------- -------- -------- ---- ----------- --
38
EXHIBIT B
---------
SECRETARY'S CERTIFICATE
-----------------------
I, Xxxxxx X. Xxxxxxxxx, Xx., the duly elected Secretary of each of
the corporations listed on SCHEDULE A attached hereto (each of such
corporations being hereinafter referred to as a "Co-Borrower"), in connection
with the execution of that certain THIRD AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT, dated as of December ____, 1995 (the "Second Amendment")
among THE OLSTEN CORPORATION and certain of its Subsidiaries signatory
thereto, the Banks signatory thereto and THE CHASE MANHATTAN BANK, N.A., as
Agent, do hereby certify that:
The execution, delivery and performance by the Co-Borrowers,
the Subsidiaries of the Co-Borrowers and the Affiliates of the Co-Borrowers
which are or may be party to the Credit Agreement (as such term is defined
in the Second Amendment), or any of the agreements, documents and instruments
which may be executed, entered into or delivered in connection with
transactions contemplated thereby, and the consummation of such transactions,
have been or will be duly authorized by all necessary corporate action.
The certificate or articles of incorporation and the by-laws
of each such Co-Borrower, copies of which were delivered to the Banks and
certified by the undersigned pursuant to Section 6.01(a)(ii) of the Credit
Agreement on the date thereof, have not been amended, modified, revoked or
rescinded at any time on or subsequent to the date thereof and are in effect
at the date hereof.
The representations and warranties in Article 7 of the Credit
Agreement are true and correct in all material respects on the date hereof
as though made on and as of such date (except when such representation or
warranty by its terms relates to a specific date other than the date made),
and no event has occurred and is continuing, or will, after giving effect to
the waivers which are the subject of the attached letter, occur and be
continuing upon the consummation of the transactions contemplated by the
Credit Agreement, which constitutes or will constitute a Default or an Event
of Default.
No material adverse change has occurred in the business,
financial condition or operations of the Co-Borrowers, taken as a whole,
since the date of the most recent financial statements of the Co-Borrowers
delivered to the Agent pursuant to the Credit Agreement.
All capitalized terms used herein and not defined herein shall
have the meanings assigned to them in the Credit Agreement.
39
IN WITNESS WHEREOF, I have signed this Certificate on this ____ day
of December, 1995.
____________________
Xxxxxx X. Xxxxxxxxx, Xx.
00
SCHEDULE I
TO EXHIBIT B
------------
OLSTEN CORPORATION f/k/a THE OLSTEN CORPORATION
XXXXXX XXXXXXXX QUALITYCARE, INC.
OLSTEN CERTIFIED HEALTHCARE CORP.
OLSTEN SERVICE CORP. f/k/a OLSTEN HOLDING COMPANY
OLSTEN SERVICES OF NEW YORK, INC.
OLSTEN STAFFING SERVICES, INC. f/k/a FLYING NURSES, INC.
OLSTEN OF WESTCHESTER, INC.
OLS HOLDINGS, INC.
OLSTEN HOME HEALTHCARE, INC.
NEW YORK HEALTHCARE SERVICES, INC.
ALL MEDICARE HOME HEALTH AGENCY, INC.
AMERICAN HOME HEALTH CARE, INC.
GOLD COAST SOUTH HOME HEALTH AGENCY, INC.
GULF COAST HOME HEALTH SERVICES CENTRAL, INC.
GULF COAST HOME HEALTH SERVICES EAST, INC.
GULF COAST HOME HEALTH SERVICES NORTH, INC.
GULF COAST HOME HEALTH SERVICES OF FLORIDA, INC.
GULF COAST HOME HEALTH SERVICES SOUTHWEST, INC.
GULF COAST HOME HEALTH SERVICES WEST, INC.
HHC MANAGEMENT, INC.
IMI SYSTEMS INC.
XXXXXXXX HOME HEALTH CARE, INC.
XXXXXXXX QUALITY CARE INFUSION THERAPY SERVICES, INC.
XXXXXXXX SERVICES, INC.
QC-MEDI CALIFORNIA, INC.
QC MEDI-ILLINOIS, INC.
QC MEDI-LOUISIANA, INC.
QC-MEDI MASS, INC.
QC-MEDI OF MICHIGAN, INC.
QC-MEDI NEW YORK, INC.
QC MEDI-TENN, INC.
QUALITY CARE-USA, INC.
QUALITY CARE, INC.
QUALITY CARE HEALTH SERVICES, INC.
QUALITY CARE HOME HEALTH, INC.
QUALITY CARE OF CONNECTICUT, INC.
QUALITY CARE SERVICE CORP.
RAINIER HOME HEALTH CARE, INC.
SUPERIOR CARE, INC.
UHH HOME SERVICES CORPORATION
AMERICAN SERVICE BUREAU, INC.
AMERICARE, INC.
AMERICARE MEDICAL EQUIPMENT, INC.
AMERICARE PHARAMCEUTICALS, INC.
BROAD PINES DEVELOPMENT CORP.
DIRKA CO.
OLSTEN FLYING NURSES CORP.
XXXXXX XXXXXXXX CORP.
QUALITY MANAGED CARE, INC.
41
EXHIBIT C
---------
INCUMBENCY CERTIFICATE
----------------------
I, Xxxxxxx X. Xxxxxxxxxx, DO HEREBY CERTIFY that I am the duly
elected Senior Vice President of The Olsten Corporation, a Delaware
corporation (the "Company"), and Senior Vice President and Assistant
Secretary to each of the other co-borrowers (the "Other Co-Borrowers")
signatory to that certain Third Amendment to Amended and Restated Credit
Agreement dated as of December __, 1995 among the Company, the Other Co-
Borrowers, The Chase Manhattan Bank, N.A. (as a Bank and as Agent) and the
other Banks signatory thereto, and that the following person is now and has
been a duly elected, qualified and acting officer of the Company and each of
the Other Co-Borrowers holding the offices set forth opposite his name and
that signature set forth opposite his name is the genuine signature of such
person:
Name Office Signature
---- ------ ---------
Xxxxxx X. Xxxxxxxxx, Xx. Vice President and
Secretary of the
Company and each of
the Other Co-Borrowers ________________
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of
December, 1995.
_________________________
Xxxxxxx X. Xxxxxxxxxx
Senior Vice President and
Assistant Secretary
I, Xxxxxx X. Xxxxxxxxx, Xx., Vice President and Secretary of the
Company and each of the Other Co-Borrowers, DO HEREBY CERTIFY that Xxxxxxx
X. Xxxxxxxxxx is the duly elected Senior Vice President of the Company and
Senior Vice President and Assistant Secretary of each of the Other Co-
Borrowers and that the signature set forth immediately above is his genuine
signature.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of
December, 1995.
_________________________
Xxxxxx X. Xxxxxxxxx, Xx.
Vice President and Secretary
