Exhibit 4.3 - Amended and Restated Revolving Credit Note Between the
Registrant and Xxxxxx Financial dated October 13, 1995.
AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$12,000,000 October 13, 0000
Xxxxxxx, Xxxxxxxx
FOR VALUE RECEIVED, the undersigned corporations, Caretenders
Health Corp, National Health Industries, Inc., HHJC Holdings, Inc.,
Housecalls, Inc., Home Health of Jefferson County, Inc., Adult Day
Clubs of America Joint Venture, Ltd., Adult Day Care of Maryland,
Inc., Adult Day Care of America, Inc., Caretenders of Louisville,
Inc., Caretenders of the Bluegrass, Inc., Caretenders of
Elizabethtown, Inc., Caretenders of Indiana, Inc., Caretenders
Homecare, Inc., Caretenders of Birmingham, Inc., Housecalls of
America, Inc., Caretenders of Boston, Inc., Caretenders of Richmond,
Inc., Caretenders Infusion Corporation, Caretenders Infusion of
Birmingham, Inc., Freelife Medical Equipment, Inc., Caretenders
Visiting Services of Richmond, Inc., and National Orthopedic &
Rehabilitation Services, Inc. (collectively, "Borrowers") hereby
jointly and severally unconditionally promise to pay to the order of
XXXXXX FINANCIAL, INC., a Delaware corporation ("Xxxxxx"), at Xxxxxx'x
office located at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or
at such other place as the holder of this Note may from time to time
designate in writing, in lawful money of the United States of America
and in immediately available funds, the principal sum of TWELVE
MILLION DOLLARS ($12,000,000), or, if less, the aggregate unpaid
principal amount of all Revolving Credit Advances made to Borrowers by
Xxxxxx pursuant to the Loan Agreement (as hereinafter defined) at such
times as are specified in and in accordance with the provisions of the
Loan Agreement.
This Note is the Revolving Credit Note referred to in section 1.1
of the Loan Agreement of even date herewith among Borrowers and Xxxxxx
(as amended, supplemented or restated from time to time the "Loan
Agreement"; capitalized terms used herein and not otherwise
specifically defined herein shall have the meanings assigned to them
in the Loan Agreement) and is issued to evidence Revolving Credit
Advances made to Borrowers pursuant to the provisions of the Loan
Agreement, to which reference is hereby made for a statement of the
terms, conditions and covenants under which the Revolving Credit
Advances evidenced hereby were made and are to be repaid, including,
but not limited to, those related to acceleration of the indebtedness
represented hereby upon the occurrence of an Event of Default or upon
the termination of the Loan Agreement. Payment of this Note is
secured, inter alia, by the Collateral.
Borrowers, jointly and severally, promise to pay interest on the
outstanding unpaid principal amount hereof, as provided in the Loan
Agreement, from the date hereof until payment in full hereof at a rate
per annum equal to the Base Rate plus one percent (1%), as determined
in accordance with the Loan Agreement, provided that following the
occurrence of an Event of Default, at the option of Xxxxxx evidenced
by its written notice to Borrowers, Borrowers shall pay to Xxxxxx
interest from the date of such Event of Default to and including the
date of cure of such Event of Default on the outstanding principal
balance of all Advances and other Obligations at the Default Interest
Rate, in order to compensate Xxxxxx for the additional credit risk and
not as a penalty. Interest shall be computed on the daily principal
balance on the basis of a 360-day year for the actual number of days
elapsed in the period during which it accrues and shall be payable as
provided in the Loan Agreement.
In no event shall the total interest received by Xxxxxx on the
principal amount of the Obligations pursuant to the terms hereof
exceed the maximum rate permitted by applicable law (the *'Maximum
Rate") and in the event excess interest ("Excess Interest_) is
determined by a court of competent jurisdiction to have been paid, (a)
at Xxxxxx'x option, such Excess Interest shall be applied as a credit
against the outstanding principal balance of the Obligations or
accrued but unpaid interest (not to exceed the maximum amount
permitted by law), refunded to the applicable Borrowers or any
combination thereof (b) the Interest Rate shall be automatically
reduced to the Maximum Rate, and (c) Borrowers shall not have any
action against Xxxxxx for any damages arising out of the payment or
collection of Excess Interest. Notwithstanding the foregoing, if for
any period of time interest on any Obligations is calculated at the
Maximum Rate rather than the applicable rate under this Agreement, and
thereafter such applicable rate becomes less than the Maximum Rate,
the rate of interest payable on such Obligations shall remain at the
Maximum Rate until Xxxxxx shall have received the amount of interest
which Xxxxxx would have received during such period on such
Obligations had the rate of interest not been limited to the Maximum
Rate during such period.
Borrowers hereby waive demand, presentment, protest, notice of
demand, dishonor, presentment, protest, nonpayment and all other
notices in connection with this Note. Subject to the Loan Agreement,
Borrowers also waive all rights to notice and hearing of any kind upon
the occurrence of an Event of a Default prior to the exercise by
Xxxxxx of its rights to repossess the Collateral without judicial
process or to replevy, attach or levy upon the Collateral without
notice or hearing.
If this Note is collected by or through an attorney-at-law, all
costs of collection, including reasonable attorneys' fees, shall be
payable by the undersigned.
THIS NOTE SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS (AS
OPPOSED TO CONFLICTS OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF
ILLINOIS. Whenever possible each provision of this Note shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be prohibited
by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Note. Whenever in this Note reference is made to
Xxxxxx or Borrowers, such reference shall be deemed to include, as
applicable, a reference to their respective successors and assigns.
The provisions of this Note shall be binding upon and shall inure to
the benefit of such successors and assigns. Each Borrower's successors
and assigns shall include, without limitation, a receiver, trustee or
debtor in possession of or for such Borrowers.
This Note may be executed by each of the parties hereto on a
separate copy of the signature page hereof and all such signature
pages taken together, when attached to this Note, shall constitute a
fully executed counterpart hereof.
WITNESS the signature of the undersigned, as of the date first
above written.
CARETENDERS HEALTH CORP. NATIONAL HEALTH INDUSTRIES,INC.
By: By:
Title: Title:
HHJC HOLDINGS, INC. HOUSECALLS INC.
By: By:
Title: Title:
HOME HEALTH OF JEFFERSON, ADULT DAY CARE OF AMERICA,
COUNTY, INC. INC.
By: By:
Title: Title:
SIGNATURES CONTINUED ON NEXT PAGE)
ADULT DAY CARE OF MARYLAND, ADULT DAY CLUBS OF AMERICA-JOINT
INC. VENTURE, LTD.
By: By:
Title: Title:
CARETENDERS OF LOUISVILLE, INC. CARETENDERS OF THE BLUEGRASS,
INC.
By: By:
Title: Title:
CARETENDERS OF ELIZABETHTOWN, CARETENDERS OF INDIANA, INC.
INC
By: By:
Title: Title:
CARETENDERS HOMECARE, INC. CARETENDERS OF BIRMINGHAM, INC.
By: By:
Title: Title:
HOUSECALLS OF AMERICA, INC. CARETENDERS OF BOSTON, INC.
By: By:
Title: Title:
CARETENDERS OF RICHMOND, INC. CARETENDERS INFUSION CORPORATION
By: By:
Title: Title:
CARETENDERS INFUSION OF FREELIFE MEDICAL EQUIPMENT, INC.
BIRMINGHAM, INC.
By: By:
Title: Title:
CARETENDERS VISITING SERVICES NATIONAL ORTHOPEDIC &
OF RICHMOND, INC. REHABILITATION SERVICES, INC.
By: By:
Title: Title:
CUMULATIVE AMENDMENT NO. 1 TO MEDICAL
CLAIMS REVOLVING LOAN AGREEMENT
This Cumulative Amendment No. 1 ("Cumulative Amendment") to that
certain Medical Claims Revolving Loan Agreement dated the 20th day of
June, 1994, as the same has been or may be amended by Amendment
Numbers 1 and 2 (the "Agreement") entered into by and between
Caretenders Health Corp., National Health Industries Inc., HFJC
Holdings, Inc., Housecalls, Inc., Home Health of Jefferson County,
Inc., Adult Day Clubs of America Joint Venture, Ltd., Adult Day Care
of Maryland, Inc., Adult Day Care of America, Inc., Caretenders of
Louisville, Inc., Caretenders of the Bluegrass, Inc., Caretenders of
Elizabethtown, Inc., Caretenders of Indiana, Inc., Caretenders
Homecare. Inc., Caretenders of Birmingham, Inc., Housecalls of
America, Inc., Caretenders of Boston, Inc., Caretenders of Richmond,
Inc., Caretenders Infusion Corporation, Caretenders Infusion of
Birmingham, Inc., Freelife Medical Equipment, Inc., Caretenders
Visiting Services of Richmond, Inc., and National Orthopedic &
Rehabilitation Services, Inc. (each individually as a "Provider" and
collectively as _Providers_) and Xxxxxx Financial, Inc. ("Xxxxxx") is
dated as of the 13th day of October, 1995. Capitalized terms used
herein and not otherwise defined herein shall have the meanings
ascribed to them in the Agreement.
WHEREAS, Xxxxxx and Providers have agreed to certain changes to
the Agreement; and
WHEREAS, Providers and Xxxxxx desire to enter into this
Cumulative Amendment to reflect the terms of such agreements and to
consolidate all prior amendments to the Agreement;
NOW, THEREFORE, in consideration of the premises, provisions, and
covenants contained herein, ten dollars, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, Providers and Xxxxxx agree as follows:
1. Subsection 1.1 A. (2) of the Agreement is amended by deleting
that subsection in its entirety and inserting the following in lien
thereof:
"(2) As used herein, "Revolving Credit Advance Base" means, as to
any Provider, an amount equal to (i) ninety-five percent (95%) of the
net amount of the Estimated Insured Value of outstanding Eligible
Commercial Claims, Government Claims, and Private Pay Claims of
Provider and (ii) fifty percent (50%) of the net value of Eligible
Inventory, less, in both cases, such reserves as Xxxxxx elects to
establish pursuant to Section 1.4 B hereof. Commercial Claims,
Government Claims, and Private Pay Claims shall only be considered for
advance against if they are deemed Eligible Claims pursuant to
subsection 1.1 D. (i) hereof, and Eligible Inventory shall only be
considered for advance against if it is deemed Eligible Inventory
pursuant to subsection 1.1 D. (ii) hereof."
2. Subsection 1.1 B. of the Agreement is amended by deleting that
subsection in its entirety and inserting the following in lieu
thereof:
"B. Advance Limits
. Notwithstanding the foregoing, (a) in no
event shall the total of all Advances to and all other Obligations of
Providers to Xxxxxx outstanding at any one time exceed the lesser of
the Total Advance Limit or the Revolving Credit Base, (b) in no event
shall the total of all Advances outstanding against Private Pay Claims
of Provider exceed the Private Pay Advance Limit, (c) in no event
shall Advances against Eligible Inventory exceed fifty percent (50%)
of Eligible Inventory, and (d) in no event shall Advances against
Eligible Commercial Claims, Government Claims, and Private Pay Claims
exceed ninety-five percent (95%) of the net amount of the Estimated
Insured Value of such Claims, in each case, less any applicable
reserves established by Xxxxxx pursuant to Section 1.4 B._
3. Subsection 1.1 D. of the Agreement is amended by deleting that
subsection in its entirety and inserting the following in lieu
thereof:
"D. Eligibility Criteria
. (i) Eligible Claims
. Claims shall be
deemed "Eligible Claims_ pursuant to Xxxxxx'x sole determination of
eligibility in accordance with its customary credit criteria. Without
limiting the generality of the foregoing, the following Claims are not
Eligible unless otherwise agreed by Xxxxxx:
1. Other Claims;
2. Claims outstanding more than one hundred eighty (180)
days from the date of service;
3. Claims where the commercial Payor is located outside
the United States;
4. Claims where Xxxxxx has notified Provider that the
commercial or government Payor does not have satisfactory credit
or financial standing (as determined in the sole discretion of
Xxxxxx);
5. Claims with respect to which Xxxxxx does not have a
valid, first priority and fully perfected security interest;
6. Claims subject to any Lien except those in favor of
Xxxxxx;
7. Any Claim with respect to which Payor is a Person to
whom Provider is indebted, provided, however, that any such Claim
shall only be ineligible as to that portion of the Claim which is
less than or equal to the amount owed by Provider to such Person
and provided further that indebtedness to Humana or any other
Person for insurance purchased by Providers and cost report
settlement amounts owed by Providers to the government shall not
be included hereunder;
8. Claims where the Payor notification letters required by
Section 2.6 A (13) have not been sent;
9. That part of Government Claims consisting of cost
report settlements due to Providers, regardless of whether such
settlement amounts are the result of interim or final cost
reports;
10. Claims that have arisen from discontinued operations.
11. Claims generated by Freelife Rehab Resources, Inc.,
f/k/a Freelife Medical Equipment, Inc. (Freelife).
(ii) Eligible Inventory. Eligible Inventory means, as at any
date of determination, the value (determined at the lower of cost
or market on a first-in, first-out basis) of all Inventory owned
by and in the possession of Providers and located in the United
States of America that Xxxxxx, in its reasonable credit judgment,
deems eligible for borrowing purposes. Without limiting the
generality of the foregoing, unless otherwise agreed by Xxxxxx,
the following is not Eligible Inventory: (a) work-in-process that
is not readily marketable in its current form; (b) finished goods
which do not meet the specifications of the purchase order for
such goods; (c) Inventory which Xxxxxx determines is unacceptable
for borrowing purposes due to age, quality, type, category,
and/or quantity; (d) Inventory with respect to which Xxxxxx does
not have a valid, first priority and fully perfected security
interest; (e) Inventory with respect to which there exists any
Lien in favor of any Person other than Relict; (g) Inventory
produced in violation of the Fair Labor Standards Act and subject
to the so-called "hot goods" provisions contained in Title 29
U.S.C. (a)(i); (g) Inventory located at Freelife; and (h)
Inventory located at any location other than the locations listed
on Schedule 1 hereto."
4. Section 1 of the Agreement is amended by deleting subsections
1.6, 1.7, and 1.9 in their entirety and inserting the following new
subsections in lien thereof:
l.6. Early Termination Fee.
If Providers terminate this
Agreement for any reason prior to the second anniversary of the
Cumulative Amendment Date, other than as the result of a repayment in
full of all outstanding Obligations from cash flow generated from
operations, Providers shall pay Xxxxxx as liquidated damages and
compensation for the costs of being prepared to make funds available
to Providers under this Agreement, and not as a penalty, an aggregate
amount equal to $100,000 if terminated prior to the first anniversary
or $50,000 if terminated after the first anniversary, and prior to the
second anniversary; provided, however, Providers shall not be required
to pay this fee if, at the time of a termination prior to the second
anniversary of the Cumulative Amendment Date, Xxxxxx has assigned all
of its interest hereunder and is not acting as agent for any other
lender.
1.7 Administration Fee
. As additional consideration for the
start-up administration, and monitoring of this Agreement, Providers
shall pay to Xxxxxx, without demand, in addition to any interest and
other fees due under this Agreement an aggregate annual administration
fee in the amount of $40,000. Said administration fee shall be payable
monthly in arrears on the first day of each month, commencing on the
first day of the month following the Cumulative Amendment Closing
Date, and on the Termination Date, except that the amount of the
administration fee payable on the Termination Date in respect of the
month in which the termination occurs shall be pro-rated based on the
number of days that this Agreement is in effect during such final
month. Xxxxxx may charge Providers' account for any portion of said
administration fee due from Provider hereunder. Said administration
fee shall be fully earned by Xxxxxx on the date payment thereof is due
and shall not be subject to rebate upon the termination of this
Agreement.
1.9 Underutilization Fee
. (a) So long as the Revolving Credit
Advances are less than seven million five hundred thousand dollars
($7,500,000), Providers shall pay to Xxxxxx a fee in an aggregate
amount equal to (i) (A) seven million five hundred thousand dollars
($7,500,000) less (B) the average daily amount of all outstanding
Advances to Providers during the preceding month multiplied by (ii)
one half of one percent (.5%) per annum, such fee to be calculated on
the basis of a 360-day year for the actual number of days elapsed and
to be payable monthly in arrears on the first day of the month
following the Cumulative Amendment Closing Date and the first day of
each month thereafter. Xxxxxx may charge Providers' account for any
portion of such 'be due from Providers hereunder; and
(b) At such time as the Revolving Credit Advances initially
equal or exceed seven million five hundred thousand dollars
($7,500,000) from and after such date, Providers shall pay to Xxxxxx a
fee in an aggregate amount equal to (i) (A) twelve million dollars
($12,000,000) less (B) the average daily amount of all outstanding
Advances to Providers during the preceding month multiplied by (ii)
one-half of one percent (.5%) per annum, such fee to be calculated on
the basis of a 360 day year for the actual number of days elapsed and
to be payable monthly in arrears on the first day of the month
following the Cumulative Amendment Closing Date and the first day of
each month thereafter. Xxxxxx may charge Providers' account for any
portion of such fee due from Providers hereunder."
5. Section 1 of the Agreement is amended by inserting the following
new section
1.10 Activation Fee
. As additional consideration for the
services to be provided by Xxxxxx hereunder and for Xxxxxx'x agreement
to increase the Total Advance Limit to twelve million dollars
($12,000,000), Providers shall pay to Xxxxxx an activation fee of an
amount equal to one percent (1%) of the four million five hundred
thousand dollar ($4,500,000) line increase in the Total Advance Limit,
at such time as the total of the Revolving Credit Advances equals or
exceeds seven million five hundred thousand dollars ($7,500,000).
Xxxxxx may charge Providers' account for a portion of such fee due
from Providers hereunder."
6. Subsection 1.2 B of the Agreement is amended by deleting that
subsection in its entirety and inserting the following in lien
thereof;
_B. To the extent that at any time
(a) the total of all outstanding Advances and other Obligations
(other than Obligations consisting of guarantees of obligations of
other Providers) exceeds the Total Advance Limit, less any applicable
reserves established by Xxxxxx pursuant to Section 1.4(B), or
(b) the total of all outstanding Advances against Private Pay
Claims exceeds the Private Pay Advance Limit, less any applicable
reserves established by Xxxxxx pursuant to Section 1.4(B), or
(c) the total of all outstanding Revolving Credit Advances of
Providers exceeds the Revolving Credit Advance Base of Providers, or
(d) the total of all outstanding Advances against Eligible
Inventory of Providers exceeds fifty percent (50%) of Eligible
Inventory, or
(e) the total outstanding of all Advances against Eligible
Commercial Claims, Government Claims, and Private Pay Claims exceeds
ninny-five percent (95%) of the net amount of the Estimated Insurance
Value of such Claims,
Providers jointly and severally agree to pay on demand any and all
amounts required to bring Providers' accounts within the foregoing
Advance Limits or within the foregoing Advance Bases."
7. Section 3 of the Agreement is amended by inserting a new
subsection W. as follows;
(i) Providers will maintain or cause to be maintained in
good repair, working order, and condition all material properties used
in its business and will make or cause to be made all appropriate
repairs, renewals, and replacements thereof Providers will maintain or
cause to be maintained, with financially sound and reputable insurers,
public liability and property damage insurance with respect to its
business and properties and the business and properties against loss
or damage of the kinds customarily carried or maintained by
corporations of established reputation engaged in similar businesses
and in amounts acceptable to Xxxxxx Providers shall cause Xxxxxx to be
named as loss payee on all insurance policies relating to any
Collateral pursuant to appropriate endorsements in form and substance
satisfactory to Xxxxxx.
(ii) All of the Inventory now owned or hereafter acquired by
Providers is and will be of good and merchantable quality and free
from defects and Providers are and will be the owner of such Inventory
free from any lien, security interest, or encumbrance, except in
Xxxxxx'x favor; that all of the inventory is located at locations set
forth on Schedule 1 hereto unless it is in transit to Providers; that
Providers warrant and will defend the Inventory against all claims and
demands of any Persons at any time; and that Providers have good,
legal, and absolute right and power to pledge and grant liens and
security interests in the same to Xxxxxx
(iii) Providers represent and agree:
(a) To report, in form satisfactory to Xxxxxx, such Information
as Xxxxxx may request regarding Inventory; such reports shall be for
such periods, shall reflect Providers' records as at such times, and
shall be rendered with such frequency as Xxxxxx may designate, but in
no event less than monthly.
(b) To notify Xxxxxx immediately of any event causing loss or
depreciation in the value of Inventory and the amount of such loss or
depreciation.
(c) To execute and deliver to Xxxxxx all instruments, documents,
and evidences deemed by Xxxxxx to be necessary or desirable to perfect
the lien and security interest granted to Xxxxxx hereby in accordance
with any applicable law, or otherwise, and to carry out the intent and
purpose of this Agreement. Whenever any Inventory is located upon
leased Premises, Providers shall, at Xxxxxx'x request, cause the owner
and lessor of such premises to execute and deliver to Xxxxxx consents
and subordinations of lien in form acceptable to Xxxxxx.
(iv) Providers shall keep correct current stock, cost and sales
records of its Inventory, accurately and sufficiently itemizing and
describing the kinds, type, and quantities of Inventory and the cost
and selling prices thereof all of which records shall be continuously
available to Xxxxxx for inspection; and Xxxxxx shall, at all
reasonable times, have access to and the right to inspect and draw off
data torn any of Providers' other books and records for the purposes
of checking and verifying all such statements, stock, cost and sales
records.
(v) Providers shall at all reasonable times and from time to
time allow, by or through any of its officers, agents. attorneys, or
accountants, Xxxxxx to examine or inspect the Inventory wherever
located and, for such purposes, to enter upon Providers premises or
wherever any of the Inventory may be found.
(vi) Until default, Providers may use the Inventory in any lawful
manner not inconsistent with this Agreement or with the terms or
conditions of any policy of insurance thereon, may use and consume any
raw materials or supplies, the use and consumption of which is
necessary in order to carry on Providers' business, and may also sell
the Inventory in the ordinary course of business. A sale in the
ordinary course of business does not include a transfer in partial or
total satisfaction of a debt owing by Providers to someone other than
Xxxxxx."
8. Section 3.2 of the Agreement is amended by deleting that Section
in its entirety and inserting the following in lieu thereof:
"3.2 Financial Covenants. The following financial covenants shall
be applicable:
1. Tangible Net Worth
. At each month end, Providers shall
maintain, on a consolidated basis, Tangible Net Worth of not less than
nine million dollars ($9,000,000) at all times.
2 Total Debt Coverage
. At each month end, Providers' Total
Debt Coverage, on consolidated basis, for the Trailing Twelve-Month
Period, shall not be less than the following amounts for each month
end occurring during the periods indicated below:
Period Amount
From July 31, l995 through December 3l, 1995 2.20
From January 1, 1996 and thereafter 2.50
3. Unfinanced Capital Expenditures
. At each month end,
Providers' unfinanced Capital Expenditures, on a consolidated basis,
for the Trailing Twelve-Month Period, shall not exceed the lesser of
(i) $4,000,000 or (ii) the following amounts for each month end
occurring during the periods indicated below
Period Amount
Fiscal Year Ending March 31, 1996 70% of EBBIDAT
Fiscal Years Ending March 31, l997
and March 3l, 1998 91% of EBBIDAT
Fiscal Year Ending March 31, 1999 80% of EBBIDAT
Fiscal Year Ending March 31, 2000
and each Fiscal Year Thereafter 75% of EBBIDAT
9. Section 7 of the Agreement is amended by deleting the first two
the following new two sentences in lieu thereof:
"This Agreement shall continue in force and effect until October
13, 1998 and for annual one (1) year terms thereafter unless either
Providers or Xxxxxx delivers to the other party notice of a
termination of this Agreement not less than sixty (60) days prior to
the commencement of the last year of the then effective term or any
anniversary thereof Providers may terminate this Agreement prior to
October 13, 1998 by delivering sixty (60) days prior written notice to
Xxxxxx, provided, however, that upon any termination of this Agreement
by Providers prior to October 13, 1998, Providers shall pay Xxxxxx the
fees, if any, due under Section 1.6 hereof."
10. Section 10 of the Agreement is amended by deleting Providers
address and inserting the following new address for Providers:
_Caretenders Health Corp.
000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000"
11. Section 11 of the Agreement is amended by deleting the following
definitions and inserting the following new definitions in
alphabetical order:
Interest Rate"
- Interest Rate shall be a rate per annum equal
to the base Rate plus one percent (1%)
"Revolving Credit Note"
-- Revolving Credit Note shall mean the
Amended and Restated Revolving Credit Note executed by Providers
hereunder in the amount of twelve million dollars ($12,000,000).
"Total Advance Limit"
- Total Advance Limit shall mean twelve
million dollars ($12,000,000)."
12. Section 11 of the Agreement is further amended by inserting the
following new definitions in alphabetical order:
_ _Cumulative Amendment Closing Date_ -E Cumulative Amendment
Closing Date shall mean October 13, 1995.
_Eligible Inventory" -- Eligible Inventory shall have the meaning
ascribed to that term in subsection 1.1 D. (ii) hereof."
13. All references to Exhibit A in the Agreement shall mean the
Amended and Restated Revolving Credit Note attached hereto as Exhibit
A.
14. All references to Collateral Report in the Agreement shall mean
the Collateral Report attached hereto as Exhibit B.
15. MISCELLANEOUS
15.1
Representations and Certifications. Providers represent and
warrant to Xxxxxx as follows:
(a) Authorization of Cumulative Amendment
. The execution,
delivery, and performance of this Cumulative Amendment are within
Providers corporate power, have been duly authorized by all necessary
or proper corporate action and do not require the consent or approval
of any other person or entity which has not been obtained and a copy
thereof furnished to Xxxxxx.
(b) Execution of Cumulative Amendment
. This Cumulative
Amendment has been executed and delivered by duly authorized officers
of Providers and it is a legal, valid, and binding obligation of
Providers, enforceable against Providers in accordance with its terms.
(c) Compliance of Cumulative Amendment with Laws, etc
. The
execution, delivery, and performance of this Cumulative Amendment in
accordance with its terms does not and will not by the passage of
time, the giving of notice, or otherwise, (i) require any governmental
approval or violate any applicable law relating to Providers, (ii)
conflict with, result in a breach of or constitute a default under the
Articles or Certificates of Incorporation or By-laws of Providers, any
material provisions of any indenture, agreement, or any other
instrument to which Providers are a party or by which Providers or any
of their respective properties may he bound or any governmental
approval relating to Providers, or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by Providers other than in
favor of Xxxxxx.
15.2 Confirmation Security Interests
. Providers acknowledge and
agree that the security interest granted to Xxxxxx by Providers in the
Collateral remain first and valid liens therein, and Providers
represent and warrant that as of the date hereof there are no claims,
set-off, or defenses to Xxxxxx'x exercise of any rights or remedies
available to Xxxxxx as an owner of the Collateral in realizing upon
the Collateral under the terms and conditions of this Cumulative
Amendment, the Agreement, or the Financing Agreements. providers have
not assigned or attempted to assign any claim; set-off, or defense to
any Person.
15.3 Valid and Binding Obligation
. Providers acknowledge and
agree that Providers' Obligations arising from this Cumulative
Amendment, the Agreement, and the Financing Agreements are the valid
and binding obligations of Providers, and Providers have no claims;
setoffs, or defense to the payment by Providers of Providers'
Obligations, and Xxxxxx may enforce the payment of Providers'
Obligations as set forth in this Cumulative Amendment the Agreement,
and the Financing Agreements.
15.4 Waiver and Release
. Providers waive and affirmatively agree
not to allege or otherwise pursue any or all defenses, affirmative
defenses, counterclaims, claims, causes of action, setoffs, or other
rights that they may have to contest (i) any provision of the
Agreement, this Cumulative Amendment, or the Financing Agreements;
(ii) the right of Xxxxxx to all proceeds from the Collateral; (iii)
the ownership and security interest of Xxxxxx in any property (whether
real or personal, tangible or intangible), right or other interest,
now or hereafter arising in connection with the Collateral; or (iv)
the conduct of Xxxxxx in administering this Cumulative Amendment, the
Agreement, the Financing Agreements, or otherwise. In consideration of
the terms and conditions of this Cumulative Amendment, the receipt and
sufficiency of which consideration is hereby acknowledged by
Providers, Providers hereby release Xxxxxx, its parent, affiliates,
agents, servants, employees, directors, attorneys, successors, and
assigns from any and all liabilities, claims, actions, or causes of
action accruing to Providers or its Affiliates, arising out of or in
any manner connected with this Cumulative Amendment, the Agreement,
the Financing Agreements, or Xxxxxx'x activities, including, without
limitation, all actions taken or not taken by Xxxxxx in connection
with the collection of the Claims or administration of this Cumulative
Amendment, the Agreement, the Financing Agreements, or otherwise.
15.5 Waiver of Providers' Defenses
. Providers agree that they
have no claim or defense of any kind by way of offset or otherwise to
the payment and satisfaction in full of the Obligations under this
Cumulative Amendment or the Agreement. To the extent that such claim
or defense may or does exist, Providers waive any and all defense
arising by reason of (i) any and all amendments or modifications of
any document; (ii) any and all alterations, accelerations, extensions,
or other changes in the time and manner of payment or performance;
(iii) any and all increases or decreases in the Interest Rate or other
change; (iv) the release, substitution, or addition of Collateral; (v)
any failure of Xxxxxx to give notice of Default to Providers; (vi) any
failure of Xxxxxx to pursue Providers or any property of Providers
with any due diligence; and (vii) any failure of Xxxxxx to resort to
the Collateral or remedies which may be available to it and the same
shall not operate to release Providers hereunder.
15.6 Xxxxxx'x Waiver
. Except as specifically set forth herein,
nothing contained herein shall be construed as a waiver of any right
or remedy of Xxxxxx under this Cumulative Amendment, the Agreement,
the Financing Agreements, or otherwise under applicable law.
15.7 Incorporation of Financing Agreements: Conflicting Terms
.
Future administration of the Financing Agreements shall continue to be
governed by the covenants, terms, and conditions of the Financing
Agreements executed prior to the date hereof which are incorporated
herein by this reference, except to the extent that the same have been
amended, terminated, supplemented, or superseded by this Cumulative
Amendment.
15.8 Counterparts. This Cumulative Amendment may be executed by
each party to this Cumulative Amendment upon a separate copy, and in
such case one counterpart of this Cumulative Amendment shall consist
of enough of such copies to reflect the signature of all of the
parties to this Cumulative Amendment. This Cumulative Amendment may be
executed in two or more counterparts, each of which shall be deemed an
original, and it shall not be necessary in making proof of this
Cumulative Amendment or its terms to produce or account for more than
one of such counterparts.
15.9 Construction of Cumulative Amendment
. This Cumulative
Amendment is a Financing Agreement executed pursuant to the Agreement
and shall he construed, administered, and applied in accordance with
all the terms and provisions of the Agreement.
15.10 Governing Law
. This Cumulative Amendment shall be
governed by and construed in accordance with the internal laws of the
State of Illinois.
15.11 Successors and Assigns. This Cumulative Amendment shall
be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this
Cumulative Amendment to be executed by their respective officers
hereunder duly authorized as of the day and year noted above.
CARETENDERS HEALTH CORP. NATIONAL HEALTH INDUSTRIES,INC.
By: By:
Title: Title:
HHJC HOLDINGS, INC. HOUSECALLS INC.
By: By:
Title: Title:
HOME HEALTH OF JEFFERSON, ADULT DAY CARE OF AMERICA,
COUNTY, INC. INC.
By: By:
Title: Title:
SIGNATURES CONTINUED ON NEXT PAGE)
ADULT DAY CARE OF MARYLAND, ADULT DAY CLUBS OF AMERICA-JOINT
INC. VENTURE, LTD.
By: By:
Title: Title:
CARETENDERS OF LOUISVILLE, INC. CARETENDERS OF THE BLUEGRASS, INC.
By: By:
Title: Title:
CARETENDERS OF ELIZABETHTOWN, CARETENDERS OF INDIANA, INC.
INC
By: By:
Title: Title:
CARETENDERS HOMECARE, INC. CARETENDERS OF BIRMINGHAM, INC.
By: By:
Title: Title:
HOUSECALLS OF AMERICA, INC. CARETENDERS OF BOSTON, INC.
By: By:
Title: Title:
CARETENDERS OF RICHMOND, INC. CARETENDERS INFUSION CORPORATION
By: By:
Title: Title:
CARETENDERS INFUSION OF FREELIFE MEDICAL EQUIPMENT, INC.
BIRMINGHAM, INC.
By: By:
Title: Title:
CARETENDERS VISITING SERVICES NATIONAL ORTHOPEDIC &
OF RICHMOND, INC. REHABILITATION SERVICES, INC.
By: By:
Title: Title:
