AMENDMENT NO. 5 TO CREDIT AGREEMENT
Exhibit
10(t)(iv)
AMENDMENT
NO. 5
AMENDMENT
NO. 5, dated
as
of March 16, 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 THE
BANK OF NEW YORK,
a New
York banking corporation (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 term loan facility and to amend
certain provisions of the Credit Agreement, as herein set forth.
Accordingly,
in consideration of the premises and of the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
| 1. |
Amendments.
|
(a)
The
following definitions in Section 1.01 of the Credit Agreement are hereby amended
and restated in their entirety to provide as follows:
“Applicable
Margin” shall mean (a) 2.00% per annum with respect to Revolving Credit Loans
which are Adjusted Libor Loans and 0.00% per annum with respect to Revolving
Credit Loans which are Alternate Base Rate Loans and (b) 2.25% with respect
to
the Term Loan or the New Term Loan or any portion thereof which is an Adjusted
Libor Loan and 0.00% per annum with respect to the Term Loan or the New Term
Loan or any portion thereof which is an Alternate Base Rate Loan..
“Commitments”
shall mean, collectively, the Revolving Credit Commitment, the Term Loan
Commitment and the New Term Loan Commitment.
“Loans”
shall mean, collectively, the Revolving Credit Loans, the Term Loan and the
New
Term Loan.
“Total
Commitment” shall mean, at any time, the aggregate of the Commitments in effect
at such time which shall be $6,850,000.
(b)
The
following definitions are hereby added to Section 1.01 of the Loan
Agreement, in their appropriate alphabetical order:
“New
Term
Loan” shall have the meaning set forth in Section 2.05.
“New
Term
Loan Commitment” shall mean the Lender’s obligation to make the New Term Loan to
the Company on the Second Effective Date, in the amount of
$2,500,000.
“New
Term
Note” shall have the meaning set forth in Section 2.06.
“New
Term
Loan Maturity Date” shall mean March 1, 2011.
“Second
Effective Date” shall mean March 16, 2006.
(c)
Article
II of the Credit Agreement is hereby amended to add the following new sections
2.05 and 2.06 immediately following Section 2.04 thereof:
SECTION
2.05 New
Term 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 “New
Term Loan”) to the Company available in a single drawdown on the Second
Effective Date in an amount not to exceed the New Term Loan Commitment. The
New
Term Loan may be (i) an Adjusted Libor Loan, (ii) an Alternate Base Rate Loan
or
(iii) a combination thereof. The New Term Loan Commitment shall terminate upon
funding of the New Term Loan on the Second Effective Date.
SECTION
2.06 New
Term Note.
The
New
Term Loan made by the Lender shall be evidenced by a promissory note of the
Company, substantially in the form of Exhibit G, with appropriate insertions
(the “New Term Note”) payable to the order of the Lender and representing the
obligation of the Company to pay the unpaid principal amount of the New Term
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 New Term 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 New Term
Loan in accordance with the terms of the New Term Note and this Agreement.
The
New Term 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 New Term Note shall (a) be dated the Second Effective Date, (b)
be
stated to mature on the New Term Loan Maturity Date and (c) be payable as to
principal in sixty (60) consecutive monthly principal installments of $41,666
each, commencing April 1, 2006, and on the first day of each month thereafter,
provided
that the
final installment on the New Term Loan Maturity Date shall be in an amount
equal
to the remaining principal amount then outstanding. Repayments and prepayments
of the New Term Loan may not be reborrowed. The New Term 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, or the New Term Loan
Maturity Date, with respect to the New Term Loan.
(e)
The
following sentence is hereby added to Section 3.02 of the Credit Agreement
at
the end thereof.
2
“The
proceeds of the New Term Loan shall be used by the Company solely to refinance
Revolving Credit Loans and other Indebtedness owing in connection with the
Company’s acquisition of certain assets of MD On Call, LLC and Capitol Medical
Bureau, 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 and the New Term Loan shall be applied
to
the remaining installments of principal thereof in inverse order of maturity.
Prepayments of the Term Loan and the New Term Loan may not be
reborrowed.”
(g)
Section
7.02(g) of the Credit Agreement is hereby amended and restated in its entirety
to provide as follows:
“(g)
Indebtedness
incurred in connection with any Permitted Acquisition.”
(h)
Section
7.06(c) of the Credit Agreement is hereby amended and restated in its entirety
to provide as follows:
“(c) with
the
prior written consent of the Lender, Permitted Acquisitions,”
(i)
Section
7.13(a) of the Credit Agreement is hereby amended and restated in its entirety
to provide as follows:
“(a)
Consolidated
Fixed Charge Coverage Ratio.
Permit
the Consolidated Fixed Charge Coverage Ratio at
the
end of each fiscal quarter of the Company, to be less than the ratio set forth
below opposite the relevant period:
| Fiscal Quarter Ending | Ratio |
| March 31, 2006 | 1.00:1.00 |
| June 30, 2006 | 1.00:1.00 |
| September 30, 2006 | 1.05:1.00 |
| December 31, 2006 and thereafter | 1.15:1.00” |
(j) Exhibit
G
attached to this Amendment is hereby added as Exhibit G to the Credit
Agreement.
(k)
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 the Lender of (a) this
Amendment, duly executed by the Company and each Guarantor, (b) the New Term
Note, in the form of Exhibit
G
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 $6,250, and (e) a Joinder Agreement from MD OnCall
Acquisition Corp., along with an Opinion of Counsel and Secretary’s Certificate
of MD OnCall Acquisition Corp. (with Certificate of Incorporation, By-laws,
Resolutions and Good Standing Certificate), and such
other documents, instruments and agreements that the Lender shall reasonably
require with respect thereto.
3
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.
(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
New Term 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 New Term 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.
4
(h) 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.
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. | ||
| |
|
|
| By: | /s/ Xxxx rhian | |
|
Name: Xxxx Rhian |
||
| Title: President | ||
| THE BANK OF NEW YORK | ||
| |
|
|
| 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 New Term 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 New Term 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 ACQUSITION CORP. | NORTH SHORE ANSWERING SERVICE, INC. | ||
| By: /s/ Xxxx Rhian | By: /s/ Xxxx Rhian | ||
|
Name: Xxxx Rhian |
Name: Xxxx Rhian |
||
| Title: President | Title: President |
| ANSWER CONNECTICUT ACQUISITION CORP. | |||
| By: /s/ Xxxx Rhian | |||
|
Name: Xxxx Rhian |
|||
| Title: President |
5
EXHIBIT
G
NEW
TERM NOTE
| $2,500,000 |
March
16,
2006
|
FOR
VALUE RECEIVED, AMERICAN MEDICAL ALERT CORP., a
Delaware corporation (the “Company”), promises to pay to the order of
THE
BANK OF NEW YORK (the
“Lender”), on or before the Maturity Date, the principal amount of TWO
MILLION FIVE HUNDRED THOUSAND ($2,500,000) DOLLARS, in
sixty
(60) consecutive equal monthly installments of $41,666 each, commencing April
1,
2006 and continuing on the first day of each month thereafter; provided, however,
that
the last such payment on the Maturity Date shall be in the amount necessary
to
repay in full the unpaid principal amount of the New Term 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 “New Term 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 New Term 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 New Term 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 New Term Loan, payments
and
other information on the attached grid schedule shall not in any manner affect
the obligation of the Company to repay the New Term 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.
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: | ||
|
Name:
Xxxx Rhian
|
||
| Title: Vice Preside | ||
2
SCHEDULE
|
Date
|
Amount
of
Principal
Payment
|
Outstanding
Principal
Balance
|
Type
of
Loan
|
Applicable
Interest
Rate
|
Interest
Period
|
Amount
of
Principal
Paid
|
Notation
Made
By
|
|
|
3
EXHIBIT
1
Certificate
Pursuant
to Amendment No. 5 (the “Amendment ”), dated as of March 16, 2006, with respect
to the Credit Agreement, dated as of May 20, 2002, between American Medical
Alert Corp. (the “Company”) and The Bank of New York (the “Lender”) (as amended,
the “Credit Agreement”; capitalized terms not defined herein shall have the
meanings assigned to them in the Credit Agreement), Xxxx Xxxxxxx, the Secretary
of the
Company, hereby certifies as follows:
1.
The
Certificate of Incorporation of the Company previously delivered to the Lender
on May 20, 2002 has not been amended, modified, revoked or rescinded as of
the
date hereof except pursuant to that certain Certificate of Amendment, dated
as
of September 19, 2002, which Certificate of Amendment was previously delivered
to the Lender.
2.
The
amended By-laws of the Company previously delivered to the Lender on March
28,
2005, have not been amended, modified, revoked or rescinded as of the date
hereof except pursuant to that certain Amendment to By-laws dated as of May
23,
2005, which Amendment was previously delivered to the Lender.
3.
The
following person is duly elected and a qualified officer of the Company and
holds the office set forth below his name; the signature set forth opposite
his
name is such officer's genuine signatures; such officer is authorized to sign
the Loan Documents and the other documents to be delivered by the Company
pursuant to the Credit Agreement and the Amendment:
|
Xxxx
Rhian
|
President | _________________________ |
|
Name
|
Title
|
Signature
|
4.
Attached
hereto as Exhibit A is
a true
and complete copy of the Resolutions unanimously adopted by written consent
of
the Board of Directors of the Company, which resolutions are the only
resolutions of the Board of Directors of the Company relating to the subject
matter thereof, have not been amended, rescinded or revoked, and are in full
force and effect as of the date hereof.
IN
WITNESS WHEREOF, I
have
executed this certification as of this 16 day of March, 2006.
|
|
_________________________________ | |
|
|
|
Name:
Xxxx Xxxxxxx
|
I,
Xxxx
Rhian, do hereby certify that I am the President of American Medical Alert
Corp., and do further certify that Xxxx Xxxxxxx is the duly elected Secretary
of
such corporation and that the signature appearing above is his genuine
signature.
Given
as
of this 16th day of March, 2006 ______________________
Title:
President
4
Exhibit
A
to Secretary’s Certificate
Resolutions
RESOLVED,
that in
connection with the amendment (the “Amendment”) to the Credit Agreement, dated
as of May 20, 2002, between
American Medical Alert Corp. (the “Company”) and The Bank of New York (the
“Lender”) (as amended, the “Credit Agreement”),
any of
the President, Secretary or any other officers or agents of the Company, and
each of them, are hereby authorized, directed and empowered, either jointly
or
severally, for, on behalf of and in the name of the Corporation, to make,
execute and deliver the Amendment to the Lender and any and all other
agreements, documents and instruments with or in favor of the Lender and
delivered in connection with the Amendment, including, without limitation,
the
New Term Note in the principal amount of $2,500,000 in favor of the Lender;
and
RESOLVED,
that
the Company shall borrow the New Term Loan in the principal amount of
$2,5000,000 from the Lender;
RESOLVED,
that
all
actions heretofore taken and all documentation heretofore delivered by any
of
said officers and agents, or by any individual who currently holds or has held
any of said offices, in furtherance of the foregoing is hereby ratified,
adopted, approved and confirmed and declared to be binding and enforceable
obligations of the Corporation in accordance with the respective terms and
provisions thereof; and
RESOLVED,
that
each officer of the Corporation is hereby authorized and directed to execute
and
deliver any further certificates, instruments or documents, and take any further
actions, in the name and on behalf of the Corporations, as may be required
or
contemplated under the Amendment, or any of the other agreements, documents
and
instruments delivered in connection therewith, or as such officer may otherwise
deem desirable in order to carry out the intent of the foregoing
resolutions.
5
