AMENDMENT NO. 8 AND CONSENT TO CREDIT AGREEMENT
Exhibit
10(t)(v)
AMENDMENT
NO. 8 AND CONSENT
AMENDMENT
NO. 8 AND CONSENT, dated
as
of December 22, 2006 (this “Amendment”), 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, to provide a new acquisition loan facility, to
amend certain provisions of the Credit Agreement and to consent to the
consummation of the Acquisition (as hereinafter defined), 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:
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1.
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Amendments.
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(a)
The
following definitions in Section 1.01 of the Credit Agreement are hereby amended
and restated in their entirety to provide as follows:
"Applicable
Margin"
shall
mean (a) 0.00% with respect to an Alternate Base Rate Loan, and (b) with respect
to an Adjusted Libor Loan, the percentage set forth below under the applicable
heading "LIBOR Margin" opposite the applicable ratio.
|
Ratio
of Consolidated Funded
Debt
to Consolidated EBITDA
|
LIBOR
Margin
For
Revolving Credit Loans
(360
day basis)
|
LIBOR
Margin for the
Term
Loan, the New Term Loan and the AMI Acquisition Loan
(360
day basis)
|
|
Less
than 1.00:1.00
|
1.50%
|
1.75%
|
|
Greater
than or equal to 1.00:1.00 but less than 1.50:1.00
|
1.75%
|
2.00%
|
|
Greater
than or equal to 1.50:1.00 but less than 2.00:1.00
|
2.00%
|
2.25%
|
|
Greater
than or equal to 2.00:1.00
|
2.25%
|
2.50%
|
Notwithstanding
the foregoing, during the period commencing on the Third 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 1.75% and
(b) the Term Loan, the New Term Loan and the AMI Acquisition Loan shall be
2.00%. The Applicable Margin will be set or reset with respect to each Loan
on
the date which is five (5) Business Days following the date of receipt by the
Lender of the financial statements referred to in Section 6.03(a) and Section
6.03(b) together with a certificate of the Chief Financial Officer of the
Company certifying the ratio of Consolidated Funded Debt to Consolidated EBITDA
(herein, the "Leverage Ratio") and setting forth the calculation thereof in
detail; provided, however, (a) the Applicable Margin will first be reset based
on the financial statements for the fiscal year ending December 31, 2006, and
(b) if any such financial statement and certificate are not received by the
Lender within the time period required pursuant to Section 6.03(a) or Section
6.03(b), as the case may be, the Applicable Margin will be set or reset, based
on a Leverage Ratio of greater than 2.00:1.00 from the date such financial
statements and certificate were due until the date which is five (5) Business
Days following the receipt by the Lender of such financial statements and
certificate, and provided, further, that the Lender shall not in any way be
deemed to have waived any Default or Event of Default, including without
limitation, an Event of Default resulting from the failure of the Company to
comply with Section 7.13 of this Agreement, or any rights or remedies hereunder
or under any other Loan Document in connection with the foregoing proviso.
During the occurrence and continuance of a Default or an Event of Default,
no
downward adjustment, and only upward adjustments, shall be made to the
Applicable Margin.
“Commitments”
shall mean, collectively, the Revolving Credit Commitment, the Term Loan
Commitment, the New Term Loan Commitment and the AMI Acquisition Loan
Commitment.
“Loans”
shall mean, collectively, the Revolving Credit Loans, the Term Loan, the New
Term Loan and the AMI Acquisition Loan.
“Total
Commitment” shall mean, at any time, the aggregate of the Commitments in effect
at such time which shall be $7,624,998.97.
(b) The
following definitions are hereby added to Section 1.01 of the Loan
Agreement, in their appropriate alphabetical order:
“AMI
Acquisition Loan” shall have the meaning set forth in Section 2.07.
“AMI
Acquisition Loan Commitment” shall mean the Lender’s obligation to make the AMI
Acquisition Loan to the Company on the Third Effective Date, in the amount
of
$1,600,000.
“AMI
Acquisition Loan Note” shall have the meaning set forth in Section
2.08.
“AMI
Acquisition Loan Maturity Date” shall mean January 1, 2011.
“Third
Effective Date” shall mean December __, 2006.
(c)
Article
II of the Credit Agreement is hereby amended to add the following new sections
2.07 and 2.08 immediately following Section 2.06 thereof:
SECTION
2.07 AMI
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 “AMI
Acquisition Loan”) to the Company available in a single drawdown on the Third
Effective Date in an amount not to exceed the AMI Acquisition Loan Commitment.
The AMI Acquisition Loan may be (i) an Adjusted Libor Loan, (ii) an Alternate
Base Rate Loan or (iii) a combination thereof. The AMI Acquisition Loan
Commitment shall terminate upon funding of the AMI Acquisition Loan on the
Third
Effective Date.
2
SECTION
2.08 AMI
Acquisition Note.
The
AMI
Acquisition Loan made by the Lender shall be evidenced by a promissory note
of
the Company, substantially in the form of Exhibit H, with appropriate insertions
(the “AMI Acquisition Note”) payable to the order of the Lender and representing
the obligation of the Company to pay the unpaid principal amount of the AMI
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 AMI 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 AMI
Acquisition Loan
in
accordance with the terms of the AMI Acquisition Note and this Agreement. The
AMI 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 AMI Acquisition Note shall (a) be dated the Third Effective
Date, (b) be stated to mature on the AMI Acquisition Loan Maturity Date and
(c)
be payable as to principal in sixty (60) consecutive monthly principal
installments of $26,666.66 each, commencing February 1, 2007, and on the first
day of each month thereafter, provided
that the
final installment on the AMI Acquisition Loan Maturity Date shall be in an
amount equal to the remaining principal amount then outstanding. Repayments
and
prepayments of the AMI Acquisition Loan may not be reborrowed. The AMI
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.
(d)
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 or the AMI Acquisition Loan
Maturity Date, with respect to the AMI Acquisition Loan.
(e)
The
following sentence is hereby added to Section 3.02 of the Credit Agreement
at
the end thereof.
“The
proceeds of the AMI Acquisition Loan shall be used by the Company solely in
connection with the Company’s acquisition of certain assets of American
Mediconnect, Inc. and Phone Screen, Inc. and for other general corporate
purposes.”
(f)
The
second and third sentences of Section 3.03(c) of the Credit Agreement is hereby
amended and restated in its entirety to provide as follows:
“All
partial prepayments of the Term Loan, the New Term Loan and the AMI 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
and
the AMI Acquisition Loan may not be reborrowed.”
3
(g)
The
table in Section 7.13(a) is
hereby
amended and restated in its entirety to provide as follows:
| "Fiscal Quarter Ending | Ratio |
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March
31, 2007
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1.01:1.00
|
|
June
30, 2007
|
1.04:1.00
|
|
September
30, 2007
|
1.07:1.00
|
|
December
31, 2007 and thereafter
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1.10:1.00"
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Notwithstanding
anything to the contrary, Consolidated Fixed Charge Coverage Ratio for the
fiscal quarter ending: (a) March 31, 2007 shall be determined with respect
to
the one fiscal quarter then ending, (b) June 30, 2007 shall be determined with
respect to the two fiscal quarters then ending and (c) September 30, 2007 shall
be determined with respect to the three fiscal quarters then
ending.
(h)
Exhibit
H
attached to this Amendment is hereby added as Exhibit H to the Credit
Agreement.
(i)
Schedules
I, II, III, V and VI attached to the Credit Agreement are hereby amended and
replaced with Schedules I, II, III, V and VI attached to this Amendment.
2. Conditions
of Effectiveness.
This
Amendment shall become effective upon receipt by (1) the Lender of (a) this
Amendment, duly executed by the Company and each Guarantor, (b) the AMI
Acquisition Loan Note, in the form of Exhibit
H
hereto,
(c) a certificate of the Secretary or Assistant Secretary of the Company, dated
as of the date hereof, in the form of Exhibit
1
hereto,
(d) an amendment fee of $7,500, (e) a Joinder Agreement from American
Mediconnect Acquisition Corp., along with an Opinion of Counsel and Secretary’s
Certificate of American Mediconnect Acquisition Corp. (with Certificate of
Incorporation, By-laws, Resolutions and Good Standing Certificate), (f) those
documents and information required to be delivered to the Lender in order for
the acquisition of the assets from American Mediconnect, Inc. and Phone Screen,
Inc. (the “Acquisition”) to be deemed a Permitted Acquisition, and (g)
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, plus all outstanding amounts owed
to
Xxxxxxx Xxxxx, P.C. for unpaid attorney’s fees and expenses.
3. Miscellaneous.
(a) This
Amendment 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 shall constitute a Loan Document.
4
(d) Except
as
expressly amended 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 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, 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 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) 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, (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
AMI 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 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 AMI 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.
(h) The
Lender hereby consents to the Acquisition and acknowledges that the Acquisition
is a Permitted Acquisition.
(i)
The
Company hereby covenants and agrees to deliver to the Lender, within ten (10)
Business Days of the date hereof, those items marked as “OPEN” on the checklist
attached hereto as Exhibit 2.
(j)
This
Amendment 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.
5
IN
WITNESS WHEREOF,
the
Company and the Lender have caused this Amendment to be duly executed by their
duly authorized officers as of the day and year first above
written.
| AMERICAN MEDICAL ALERT CORP. | ||
| |
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|
| By: | /s/ Xxxx Rhian | |
|
Name: Xxxx Rhian |
||
| Title: President | ||
| JPMORGAN CHASE BANK, N.A. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxx | |
|
Name: Xxxxxxx Xxxxx |
||
| Title: Vice President | ||
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, (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 AMI
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
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 AMI Acquisition Loan.
| HCI ACQUISITION CORP. | SAFE COM INC. | |
| By: /s/ Xxxx Rhian | By: /s/ Xxxx Rhian | |
| Name: Xxxx Rhian | Name: Xxxx Rhian | |
| Title: President | Title: President | |
| LIVE MESSAGE AMERICA | NORTH SHORE ANSWERING | |
| ACQUSITION CORP. | SERVICE, INC. | |
| By: /s/ Xxxx Rhian |
By:
/s/
Xxxx Rhian
|
|
| Name: Xxxx Rhian | Name: Xxxx Rhian | |
| Title: President | Title: President | |
| ANSWER CONNECTICUT | MD ONCALL ACQUISITION CORP. | |
| ACQUSITION CORP. | ||
| By: /s/ Xxxx Rhian | By: /s/ Xxxx Rhian | |
| Name: Xxxx Rhian | Name: Xxxx Rhian | |
| Title: President | Title: President |
6
EXHIBIT
H
AMI
ACQUISITION LOAN NOTE
| $1,600,000 |
December
__,
2006
|
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 AMI Acquisition Loan Maturity Date, the principal
amount of ONE
MILLION SIX HUNDRED THOUSAND ($1,600,000) DOLLARS, in
sixty
(60) consecutive equal monthly installments of $26,666.66 each, commencing
February 1, 2007 and continuing on the first day of each month thereafter;
provided, however,
that
the last such payment on the AMI Acquisition Loan Maturity Date shall be in
the
amount necessary to repay in full the unpaid principal amount of the AMI
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 “AMI 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 AMI 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 AMI 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 AMI 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 AMI 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 The Bank of New York, located at 0000 Xxxxxxxx Xxxxxx, Xxxxxx
Xxxx, 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.
7
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.
| AMERICAN MEDICAL ALERT CORP. | ||
| |
|
|
| By: | /s/ | |
|
Name:
Xxxx
Rhian
|
||
| Title: President | ||
8
SCHEDULE
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Amount
of
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Outstanding
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Type
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Applicable
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Amount
of
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|
Notation
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||||||
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Principal
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Principal
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of
|
Interest
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Interest
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Principal
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Made
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Date
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Payment
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Balance
|
Loan
|
Rate
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Period
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Paid
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By
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