AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT
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THIS AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT (the "Amendment") is made as
of this 29th day of November, 2004, by and between/among "Borrower" (as defined
below) and "Lender" (as defined below).
RECITALS
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A. As used herein, the term "Borrower" shall mean the following collectively:
New York Health Care, Inc., a New York corporation ("New York Health Care"); and
NYHC Newco Paxxon, Inc., a New York corporation.
B. As used herein, the term "Lender" shall mean GE HFS Holdings, Inc., a
Delaware corporation, f/k/a Xxxxxx Healthcare Finance, Inc.
C. One or more of the entities designated above as "Borrower" are the existing
borrowers under a certain Loan and Security Agreement dated as of November 28,
2000, by and between such existing borrowers and Lender (as the same may have
been amended, restated or modified from time to time, including by that certain
Amendment No. 1 to Loan and Security Agreement and Consent and Waiver, dated as
of November 26, 2002, by and among Borrower and Lender, and that certain
Amendment No. 2 to Loan and Security Agreement and Consent and Waiver, dated as
of March 29, 2004, by and among Borrower and Lender, and as the same may be
amended by this Amendment, the "Loan Agreement"). All capitalized terms not
otherwise defined herein shall have the meanings given them in the Loan
Agreement.
D. Borrower and Lender desire hereby to:
- extend the Term of the Loan Agreement to November 29, 2005, and make
conforming amendments to the Loan Agreement; and
- amend the Loan Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the premises set forth above, the terms and
conditions contained in this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lender and Borrower have agreed to the following amendments to the Loan
Agreement:
1. Recitals. The foregoing recitals, including all terms defined therein, are
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incorporated herein and made a part hereof.
2. Extension of Term. The Term of the Loan is extended to November 29, 2005,
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and the Loan shall mature as of November 29, 2005. In furtherance of the
foregoing, Section 2.8(a) of the Loan Agreement is hereby amended and restated
to read as follows:
"2.8(a) Subject to Lender's right to cease making Revolving Credit Loans to
Borrower upon or after any Event of Default, this Agreement shall be in
effect for a period through and including November 29, 2005, unless
terminated as provided in this Section 2.8 (the 'Term')."
3. Loan Agreement Fees. Section 2.4(c) of the Loan Agreement is hereby deleted
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in its entirety, and in its place there is hereby inserted the following:
"2.4(c). For so long as the Loan is available to Borrower from and after
November 29, 2004, Borrower unconditionally shall pay to Lender an annual
usage fee (the "Usage Fee") equal to (i) one half of one percent (0.5%) of
the average amount by which the Maximum Loan Amount exceeds the average
amount of the outstanding principal balance of the Revolving Credit Loans
during the preceding year (or portion thereof, if this Agreement is
terminated prior to the completion of a full year for purposes of such
calculation) minus (ii) the amount of interest paid by the Borrower with
respect to outstanding Revolving Credit Loans during the preceding year (or
portion thereof, if this Agreement is terminated prior to the completion of
a full year for purposes of such calculation); provided that if the amount
described in the foregoing clause (ii) exceeds the amount described in the
foregoing clause (i), the Usage Fee shall be equal
to zero dollars ($0). The Usage Fee shall be payable annually in arrears on
November 29, 2005 or, if this Agreement is terminated prior to such date,
the effective date of such termination."
4. Amendment Fees. In consideration of Lender's execution of this Amendment,
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Borrower agrees to pay a fee of $5,000, which fee shall be deemed earned and
payable on the date of execution of this Amendment and shall constitute a
portion of the Obligations.
5. Updated Schedules. As a condition precedent to Lender's agreement to enter
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into this Agreement, and in order for this Agreement to be effective, Borrower
shall revise, update and deliver to Lender all Schedules to the Loan Agreement
to update all information as necessary to make the Schedules previously
delivered correct. Borrower hereby represents and warrants that the information
set forth on the attached Schedules is true and correct as of the date of this
Agreement. The attached Schedules are hereby incorporated into the Loan
Agreement as if originally set forth therein.
6. Miscellaneous.
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(a) Further Documentation. In the event any further documentation or
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information is deemed necessary or appropriate by Lender in the exercise of its
rights under the Loan Documents or to correct patent mistakes in the Loan
Documents, Borrower shall provide, or cause to be provided, to Lender such
documentation or information. Borrower shall execute and deliver to Lender such
documentation, including but not limited to, any amendments, corrections,
deletions or additions to the Loan Documents as is required by Lender; provided,
however, that Borrower shall not be required to do anything that has the effect
of changing the essential economic terms of the loan set forth in the Loan
Documents.
(b) References. Upon the effectiveness of this Amendment, each reference
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in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of similar import shall mean and be a reference to the Loan Agreement as
amended by this Amendment.
(c) Affirmation. Except as specifically amended above, the Loan Agreement,
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and all other Loan Documents (and all covenants, terms, conditions and
agreements therein), shall remain in full force and effect, and are hereby
ratified and confirmed in all respects by Borrower. Borrower covenants and
agrees to comply with all of the terms, covenants and conditions of the Loan
Agreement, as amended hereby, notwithstanding any prior course of conduct,
waivers, releases or other actions or inactions on Lender's part which might
otherwise constitute or be construed as a waiver of or amendment to such terms,
covenants and conditions.
(d) No Waiver. The execution, delivery and effectiveness of this Amendment
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shall not, except as expressly provided in this Amendment, operate as a waiver
of any right, power or remedy of Lender, nor constitute a waiver of any
provision of the Loan Agreement, the Loan Documents or any other documents,
instruments and agreements executed or delivered in connection with any of the
foregoing. Nothing herein is intended or shall be construed as a waiver of any
existing defaults or Events of Default under the Loan Agreement or other Loan
Documents or any of Lender's rights and remedies in respect of such defaults or
Events of Default.
(e) No Novation. This Amendment (together with any other document executed
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in connection herewith) is not intended to be, nor shall it be construed as, a
novation of the Loan Agreement.
(f) Governing Law. This Amendment shall be governed by and construed in
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accordance with the laws of the State of Maryland, without regard to any
otherwise applicable conflicts of law principles.
(g) Headings. Section headings in this Amendment are included for
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convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(h) Counterparts. This Amendment may be executed in counterparts, and both
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counterparts taken together shall be deemed to constitute one and the same
instrument.
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IN WITNESS WHEREOF, intending to be legally bound, and intending that this
instrument constitute an instrument executed under seal, the parties have caused
this Amendment to be executed as of the date first written above.
LENDER:
GE HFS HOLDINGS, INC.
F/K/A XXXXXX HEALTHCARE FINANCE, INC.
a Delaware corporation
By: /s/ X. Xxxxx Xxxxxxxx
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Name: X. Xxxxx Whiteley
Title: Vice President
BORROWER:
NEW YORK HEALTH CARE, INC.
a New York corporation
By: /.s/ Xxxxx Xxxxxxxxx for Corp.
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Name: Xxxxx Xxxxxxxxx
Title: C.O.O.
NYHC NEWCO PAXXON, INC.
a New York corporation
By: /s/ Xxxxx Xxxxxxxxx for Corp.
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Name: Xxxxx Xxxxxxxxx
Title: C.O.O.
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