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EXHIBIT 4.2
FIRST AMENDMENT TO REVOLVING CREDIT AND LOAN AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AND LOAN AGREEMENT (this
"First Amendment to Loan Agreement" or this "First Amendment") is entered into
on September 26, 1997 between NBD Bank ("NBD" or "Bank"), as lender, with
offices at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000; Universal Standard
Healthcare, Inc., formerly known as Universal Standard Medical Laboratories,
Inc., a Michigan corporation ("USML"); Universal Standard Healthcare of
Michigan, Inc., formerly known as Universal Standard Managed Care of Michigan,
Inc., a Michigan corporation ("Michigan Managed Care"); Universal Standard
Healthcare of Ohio, Inc., formerly known as Universal Standard Managed Care of
Ohio, Inc., an Ohio corporation ("Ohio Managed Care"); Universal Standard
Healthcare of Delaware, Inc., formerly known as Universal Standard Managed
Care, Inc., a Delaware corporation ("Delaware Managed Care"); T.P.A., Inc., a
Michigan corporation ("Processing"); and A/R Credit, Inc., a Michigan
corporation ("AR Credit"), all of whose addresses are 00000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
RECITALS
This First Amendment to Loan Agreement is based on the following
recitals ("Recitals"), which are incorporated into and made a part of this
First Amendment:
1. USML, Delaware Managed Care, Ohio Managed Care, Michigan
Managed Care, Processing, AR Credit (each, an "Obligor" and collectively, the
"Obligors"), and ND are parties to a Revolving Credit and Loan Agreement dated
April 30, 1997 (the "Loan Agreement"). In addition to the Loan Agreement, Bank
and Obligors are parties to various other loan and security documents and
guaranties more particularly described in or executed in connection with the
Loan Agreement. For convenience, all loan and security documents referred to
in the immediately preceding sentence, together with the Loan Agreement and all
other agreements that may hereafter be entered into between Bank and any one or
more of the Obligors, as the same may be amended or restated from time to time,
are referred to collectively as the "Loan Documents" and individually as a
"Loan Document". Capitalized terms used but not defined in this First
Amendment have the same meanings given to those terms in the Loan Documents.
2. Obligors have requested and, subject to the terms hereof, Bank
has agreed to amend the Loan Agreement as set forth in this First Amendment.
AGREEMENT
Based on the foregoing Recitals (which are incorporated herein as
representations, warranties, acknowledgments and agreement of the parties, as
the case may be) and for other good and valuable consideration, the receipt and
adequacy of which is mutually acknowledged by the parties hereto, Obligors and
Bank agree as follows:
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A. The definition of "Termination Date" appearing in Section 1.1
of the Loan Agreement is amended to read as follows: "Termination Date" means
the earlier to occur of (a) September 30, 1999 and (b) at NBD's option, the
date on which an Event of Default occurs.
B. The date "June 30, 1997" appearing in the first sentence of
Section 2.2(a) of the Loan Agreement is amended to read "September 30, 1998".
C. The date "June 30, 1997" appearing in the first sentence of
Section 2.3 of the Loan Agreement is amended to read "September 30, 1998".
D. Prior to or simultaneously with execution and delivery of this
First Amendment, Obligors must cause to be executed and delivered to Bank such
financing statements, resolutions and other agreements that Bank may require to
effectuate the transactions contemplated by this First Amendment. Obligors
must pay all costs and expenses (including attorneys' fees) incurred by Bank in
connection with this First Amendment.
E. Obligors expressly acknowledge and agree that all collateral
security and security interests, liens, pledges, guaranties, and mortgages
heretofore or hereafter granted Bank including, without limitation, such
collateral, security interests, liens, pledges, and mortgages granted under the
Loan Documents, extend to and cover all of each Obligor's Obligations to Bank,
now existing or hereafter arising including, without limitation, those arising
in connection with this First Amendment and under all guaranty agreements now
or in the future given by one or more of the Obligors in Bank's favor, upon the
terms set forth in such agreements, all of which security interests, liens,
pledges, and mortgages are ratified, reaffirmed, confirmed and approved.
F. From and after the date of this First Amendment, references in
the Loan Documents to the Loan Agreement are to be treated as referring to the
Loan Agreement as amended by this First Amendment.
G. Obligors represent and warrant to NBD that:
(1) (a) The execution, delivery and performance of
this First Amendment by the Obligors and all agreements and
documents delivered by Obligors in connection with this First
Amendment have been duly authorized by all necessary corporate or
other organizational action and does not and will not require any
consent or approval of its stockholders or members, violate any
provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to it or of its articles of incorporation, articles of
organization, or bylaws, or result in a breach of or constitute a
default under any indenture or loan or credit agreement or any other
agreement, lease or instrument to which any Obligor is a party or by
which it or its properties may be bound or affected.
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(b) No authorization, consent, approval, license,
exemption of or filing a registration with any court or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, is or will be necessary to the
valid execution, delivery or performance by Obligors of this First
Amendment and all agreements and documents delivered in connection
with this First Amendment.
(c) This First Amendment and all agreements and
documents delivered by Obligors in connection with this First
Amendment are the legal, valid and binding obligations of Obligors
enforceable against each of them in accordance with the terms thereof.
(2) After giving effect to the amendments contained in
this First Amendment, all of the representations and warranties
contained in the Loan Documents are true and correct on and as of the
date hereof with the same force and effect as if made on and as of the
date hereof.
(3) Obligor's financial statements furnished to the NBD,
fairly present Obligor's financial condition as at such dates
and the results of Obligor's operations for the periods indicated, all
in accordance with generally accepted accounting principles applied on
a consistent basis, and since the date of the last such financial
statement there has been no material adverse change in such financial
condition.
(4) No Default or Event of Default has occurred and is
continuing or will exist on the date of this First Amendment
under the Loan Agreement or any of the other Loan Documents.
H. The terms and provisions of this First Amendment
amend, add to and constitute a part of the Loan Agreement. Except as expressly
modified and amended by the terms of this First Amendment, all of the other
terms and conditions of the Loan Agreement and the other Loan Documents
(including all guaranties) remain in full force and effect and are hereby
ratified, reaffirmed, confirmed, and approved.
I. If there is an express conflict between the terms of
this First Amendment to Loan Agreement and the terms of the Loan Agreement or
the other Loan Documents, the terms of this First Amendment govern and control.
J. This First Amendment may be executed in any number of
counterparts with the same effect as if all signatories had signed the same
document. All counterparts must be construed together to constitute one
instrument.
K. Notwithstanding any other provision in the Loan
Agreement to the contrary (including, without limitation, the statement that
the Facility Fee was fully earned by NBD on the date of the Loan Agreement),
NBD and the Obligors acknowledge that an extension of the
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Termination Date to September 30, 1999 was contemplated (but not agreed to) by
them on the date of the Loan Agreement and that the amount of the Facility Fee
was calculated and negotiated by the parties as if the Termination Date were
September 30, 1999.
L. If no other defaults or Events of Default occur under
the Loan Documents, then NBD agrees to waive for the period from June 30, 1997
through October 1, 1997 any defaults arising under Section 6.1A of the Loan
Agreement on account of the Consolidated Current Ratio being equal to or
greater than 1.20 to 1 but less than 1.25 to 1. This waiver is not an
agreement to waive the same provision or any other provision in the future, nor
is it to be construed as a waiver with respect to any other matter.
M. WAIVER OF JURY TRIAL AND ACKNOWLEDGMENT. THE PARTIES
HERETO ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL RIGHT,
BUT THAT THIS RIGHT MAY BE WAIVED. NBD AND OBLIGORS EACH HEREBY KNOWINGLY,
VOLUNTARILY AND WITHOUT COERCION, WAIVE ALL RIGHTS TO A TRIAL BY JURY OF ALL
DISPUTES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, THE LOAN DOCUMENTS OR
ANY OTHER AGREEMENTS BETWEEN ANY OF THE PARTIES. NO PARTY SHALL BE DEEMED TO
HAVE RELINQUISHED THE BENEFIT OF THIS WAIVER OF JURY TRIAL, UNLESS SUCH
RELINQUISHMENT IS IN A WRITTEN INSTRUMENT SIGNED BY THE PARTY TO WHICH SUCH
RELINQUISHMENT WILL BE CHARGED.
NBD BANK
By: /S/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
First Vice President
UNIVERSAL STANDARD
HEALTHCARE, INC.
By: /S/ Xxxx X. Xxx
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Xxxx X. Xxx
Vice President Finance and Treasurer
[Signatures continued on following page]
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[SIGNATURES CONTINUED FROM PRECEDING PAGE]
UNIVERSAL STANDARD HEALTHCARE
OF MICHIGAN, INC.
By: /S/ Xxxx X. Xxx
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Xxxx X. Xxx, Treasurer
UNIVERSAL STANDARD HEALTHCARE
OF OHIO, INC.
By: /S/ Xxxx X. Xxx
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Xxxx X. Xxx, Treasurer
UNIVERSAL STANDARD HEALTHCARE
OF DELAWARE, INC.
By: /S/ Xxxx X. Xxx
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Xxxx X. Xxx, Treasurer
A/R CREDIT, INC.
By: /S/ Xxxx X. Xxx
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Xxxx X. Xxx, Treasurer
T.P.A., INC.
By: /S/ Xxxx X. Xxx
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Xxxx X. Xxx, Treasurer
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