EXHIBIT
10.56
FIRST AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This First Amendment to Amended and Restated Loan and Security
Agreement ("Amendment"), dated April 27, 1998, is made by and among
STAFF BUILDERS, INC., with a place of business at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, the direct and indirect
Subsidiaries of Staff Builders, Inc. listed on the signature pages
attached hereto (all of the foregoing severally a "Borrower" and
jointly "Borrowers"), ADVANCED MANAGEMENT SOLUTIONS, INC., a
Delaware corporation ('Advanced Management') and MELLON BANK, N.A.
("Lender").
Background
A. Lender and Borrowers are parties to a certain Amended and
Restated Loan and Security Agreement, dated January 8, 1997 (as
amended, modified, supplemented or replaced from time to time,
'Loan Agreement'). Capitalized terms used but not otherwise defined
in this Amendment shall have the meanings set forth in the Loan
Agreement.
B. Lender and Borrowers desire to modify the terms and
conditions of the Loan Agreement as more fully described herein.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby promise and agree as follows:
1. Joinder.
(a) Advanced Management hereby joins in, assumes,
adopts, and becomes a Co-Borrower under the Loan Agreement, the
Revolving Credit Note and all other Loan Documents. All references
to Borrowers contained in the Loan Agreement, Revolving Credit Note
and other Loan Documents are hereby deemed, for all purposes, to
also refer to and include Advanced Management as a Borrower and
Advanced Management hereby agrees that it has become a party to and
agrees to comply with all of the terms and conditions of the Loan
Agreement, Revolving Credit Note and other Loan Documents as if it
were an original signatory thereto.
(b) Without limiting the generality of the provisions of
subparagraph (a) above, Advanced Management is therefore liable, on
a joint and several basis, with each other Borrower, for all
Obligations now or at any time outstanding under the Loan
Documents, as amended hereby or as may hereafter be amended,
supplemented or replaced and (ii) as security for the payment of
all Obligations and performances of all covenants and undertakings
in the Loan Documents, Advanced Management assigns and grants to
Lender a continuing first lien on and security interest in all of
the items and types of Collateral described in Section 3.1 of the
Loan Agreement and agrees to execute and deliver to Lender UCC-1
financing statements for filing in all jurisdictions which Lender
may deem appropriate.
2. Section 1 of the Loan Agreement is modified by deleting
the definitions of 'Cash Flow Coverage Ratio' and 'Loans'in their
entirety and replacing them with the following:
Cash Flow Coverage Ratio - For the fiscal period,
the ratio of (a) the sum of (i) Net Income plus (ii)
depreciation plus (iii) amortization to (b) the sum of
(i) the Unfunded Capital Expenditures plus (ii) the long
term indebtedness repaid plus (iii) the cash
consideration for permitted acquisitions actually paid
pursuant to Section 7.2.
Loans - All advances and extensions of credit under
the Revolving Credit and the Acquisition Line.
3. Subsection 2.1(c) of the Loan Agreement is deleted in its
entirety and replaced with the following:
(c) The term ("Initial Term") of the Revolving
Credit and Acquisition Line shall expire on July 31,
2000. On such date, all Obligations of Borrowers to
Lender of every kind whatsoever in connection with the
Revolving Credit and Acquisition Line, unless sooner
accelerated by Lender in accordance with Section 8 below,
shall be due and payable in full and after which date no
further advances or extensions of credit shall be
available from Lender.
4. Section 2.2 of the Loan Agreement is deleted in its
entirety and replaced with the following:
2.2 Revolving Credit - Borrowing Base: Subject to
the terms and conditions of this Agreement, Advances
under the Revolving Credit shall be considered against
and shall at no time exceed up to the lesser of (i)
seventy-five percent (75%) of Borrowers' Qualified
Accounts due from a Qualified Payor less the outstanding
principal balance under the Stock Repurchase Sublimit or
(ii) The Maximum Revolving Credit Amount less the
outstanding principal balance under the Acquisition Line
("Borrowing Base").
5. Section 2.5 of the Loan Agreement is deleted in its
entirety and replaced with the following:
2.5 Acquisition Line:
(a) Lender hereby establishes for the benefit
of Borrowers an Acquisition Line (the "Acquisition Line")
in an amount up to the maximum principal sum of Twenty
Five Million Dollars ($25,000,000) at any one time
outstanding, provided however, that an amount not to
exceed Ten Million Dollars ($10,000,000) of the
Acquisition Line shall only be used by Borrowers from
time to time to repurchase the capital stock of any of
the Borrowers ('Stock Repurchase Sublimit') and that an
amount not to exceed Fifteen Million Dollars
($15,000,000) of the Acquisition Line shall only be used
by Borrowers from time to time to finance the intangible
portion of all other acquisitions by Borrowers.
(b) At no time shall the sum of the principal
balance of Advances outstanding under the Acquisition
Line and the Revolving Credit exceed the Maximum
Revolving Credit Amount.
(c) Each requested Advance under the
Acquisition Line (except for requested Advances under
the Stock Repurchase Sublimit) is subject to Lender's
approval and must be made at least thirty (30) days prior
to the date of the requested approval.
(d) Each requested Advance under the
Acquisition Line (except for requested Advances under the
Stock Repurchase Sublimit) must be accompanied by the
following (all in form and substance acceptable to the
Lender):
(i) Historical and projected
financial information regarding the company to
be acquired;
(ii) A proforma opening balance
sheet of company to be acquired;
(iii) A statement of the sources and use
of cash;
(iv) The draft acquisition agreement
or term sheet for the acquisition; and
(v) All other documents and
information that Lender may request.
(e) Each company to be acquired in connection
with a Loan under the Acquisition Line (except for a Loan
under the Stock Repurchase Sublimit) must be in the same
general business as the Borrowers.
(f) Each Loan under the Acquisition Line
(except for Loans under the Stock Repurchase Sublimit
which are repaid pursuant to Subsection (h) of this
Section 2.5) shall be fully amortized over 12-48 months
depending on the acquisition as determined by Lender in
its sole discretion.
(g) Each requested Advance under the Stock
Repurchase Sublimit is subject to Lender's approval and
must be made at least two (2) days prior to the date of
the requested approval.
(h) Borrowers may repay to Lender the
outstanding principal balance of each Advance under the
Stock Repurchase Sublimit in monthly installments not to
exceed One Million Dollars ($1,000,000), commencing sixty
(60) days after the date of such Advance, provided
however, that Borrowers maintain, for a period of five
(5) days prior to each monthly payment, an average
minimum excess availability of not less than Seven
Million Five Hundred Thousand Dollars ($7,500,000), after
giving effect to such payment. Each monthly payment made
pursuant to this Subsection (h) shall be funded by an
Advance under the Revolving Credit in an amount equal to
the monthly payment. Any amounts under the Stock
Repurchase Sublimit, including principal, accrued and
unpaid interest, costs and expenses outstanding as of the
date of termination or expiration of the Acquisition Line
shall be paid in full by Borrowers to Lender on such
date.
6. Section 2.7 of the Loan Agreement is modified by adding
the following new Subsection (e):
(e) After an amount equal to Three Million
Dollars ($3,000,000) has been advanced under the Stock
Repurchase Sublimit, Borrowers shall pay to Lender a
utilization fee ('Utilization Fee') in an amount equal to
one percent (1%) of all amounts thereafter advanced under
the Stock Repurchase Sublimit.
7. Subsection 6.12(e) of the Loan Agreement is deleted in
its entirety and replaced with the following:
(e) Book Net Worth: Borrowers shall have and
maintain at all times a Book Net Worth, measured at the
end of each fiscal year, of not less than the following
amounts with respect to the corresponding period:
Amount Period
$40,926,000 For the fiscal year ending
February 28, 1998;
The greater of (i) the For the fiscal year ending
actual Book Net Worth as February 28, 1999 and for each
of such date or (ii) the fiscal year thereafter (each
covenant amount of Book respective year end covenant
Net Worth as of the last amount to be maintained
day of the immediately through the next to last day
preceding fiscal year of the following fiscal year).
plus $3,000,000.
The covenant amount of Book Net Worth shall be increased
by the amount of net proceeds of any sale of capital
stock, options or warrants at the time of such sale and
shall be decreased by any permitted repurchases of common
stock at the time of such repurchase.
8. Subsection 6.12(f) of the Loan Agreement is deleted in
its entirety and replaced with the following:
(f) Senior Debt to Book Net Worth Ratio:
Borrowers shall have and maintain a ratio of Senior Debt
to Book Net Worth of not more than 2.78 to 1.00 for
fiscal year ending February 28, 1998; 3.00 to 1.00 at all
times thereafter.
9. Subsection 6.12(g) of the Loan Agreement is deleted in
its entirety and replaced with the following:
(g) Cash Flow Coverage Ratio: Borrowers shall
have and maintain a Cash Flow Coverage Ratio of not less
than 1.33 to 1.00 for fiscal year ending February 28,
1998; 1.25 to 1.00 for fiscal year ending February 28,
1999; 1.35 to 1.00 for fiscal year ending February 29,
2000.
10. Section 7.2 of the Loan Agreement is deleted in its
entirety and replaced with the following:
7.2 Acquisitions: Neither Borrowers nor any
Subsidiaries shall acquire all or a material portion of
the stock, securities or assets of any Person in any
transaction or in any series of related transactions or
enter into any sale or leaseback transaction without
prior written approval of Lender. Provided, however, if,
after giving effect to the potential acquisition:
(a) Borrowers may acquire all or a material
portion of the stock, securities or assets of any Person
(except any of the Borrowers) in any transaction or in
any series of related transactions or enter into any sale
or leaseback transaction for an amount not to exceed
Three Million Dollars ($3,000,000) in the aggregate for
all transactions during any fiscal year, so long as (i)
No Event of Default has occurred or would occur with the
giving of notice, the passage of time, or both, (ii)
Borrowers have a minimum excess availability of
$10,000,000 for a period of thirty (30) days prior to and
on the date of such acquisition, and (iii) there are no
outstanding Advances under the Acquisition Line; and
(b) Borrowers may acquire all or a material
portion of the stock, securities or assets of any Person
(except any of the Borrowers) in any transaction or in
any series of related transactions or enter into any sale
or leaseback transaction for an amount not to exceed One
Million Dollars ($1,000,000) in the aggregate for all
transactions during any fiscal year, so long as (i) No
Event of Default has occurred or would occur with the
giving of notice, the passage of time, or both, and (ii)
Borrowers have a minimum excess availability of
$7,500,000 for a period of thirty (30) days prior to and
on the date of such acquisition.
(c) At no time shall the sum for all
transactions permitted under Subsections (a) and (b) of
this Section 7.2 exceed Three Million Dollars
($3,000,000) in the aggregate during any fiscal year.
11. Section 7.6 of the Loan Agreement is deleted in its
entirety and replaced with the following:
7.6 Distributions, Redemptions and Other
Indebtedness: None of the Borrowers shall other than in
connection with the Closing:
(a) declare, pay or make any forms of
Distribution to its shareholders, their successors and
assigns, except as permitted in Section 2.5;
(b) make any payments on any existing or future
indebtedness for borrowed money to any Person other than
a Borrower (including subordinated indebtedness) except
for payments to the holders of the indebtedness listed on
Exhibit 7.6 in accordance with the existing terms of such
indebtedness; or
(c) hereafter borrow money from any Person other
than Lender or, if in the ordinary course, another
Borrower.
12. Waiver. An Event of Default has occurred under
Subsection 8.1(t) of the Loan Agreement as a result of the
departure of ▇▇▇▇ ▇▇▇▇▇ from the management of Borrowers. Lender
hereby waives such Event of Default. This waiver relates only to
the departure of ▇▇▇▇ ▇▇▇▇▇ and compliance with Subsection 8.1(t)
of the Loan Agreement shall be required for all periods hereafter.
This waiver shall in no way constitute a waiver of any other Event
of Default now existing or at any time hereafter occurring and
shall in no way obligate Lender to provide any further waiver of
the same or similar Events of Default at any time in the future.
13. Amendment Fee. In consideration of the agreements and
undertakings of the Lender set forth in this Amendment, and
contemporaneously with the execution hereof, Borrowers shall pay to
Lender an amendment fee of Fifty Thousand Dollars ($50,000) (the
'Amendment Fee').
14. Conditions to Closing. Lender's obligation to enter into
this Amendment are subject to the following conditions having been
satisfied in full to Lender's satisfaction:
(a) Execution and delivery of this Amendment to Lender;
(b) Execution and delivery by Advanced Management of an
allonge to the Revolving Credit Note;
(c) Execution and delivery by Advanced Management of an
allonge to Term Note A (Acquisition Line);
(d) Execution and delivery by Advanced Management of
UCC-1 financing statements for filing in all jurisdictions which
Lender may deem appropriate;
(e) Delivery of certified copies of resolutions of
Borrowers' board of directors authorizing execution of this
Amendment and each document required under any provision hereof;
(f) Delivery of certified copies of resolutions of
Advanced Management's board of directors authorizing execution of
this Amendment and each document required under any provision
hereof;
(g) Execution and delivery of such other documents,
instruments and writings, in form satisfactory to Lender, as Lender
may reasonably require to carry out the intentions of parties
hereunder;
(h) Except as set forth in Section 12 of this Amendment,
no Event of Default shall have occurred under the Loan Agreement
and be continuing and no event shall have occurred which with the
passage of time, the giving of notice or both would constitute an
Event of Default under the Loan Agreement;
(i) Payment of the Amendment Fee by Borrowers to Lender;
and
(j) Payment or reimbursement to Lender for all legal
expenses incurred by Lender to analyze, prepare and negotiate and
conclude this Amendment and all related agreements and transactions
described herein.
15. Representations and Warranties. Borrowers represent and
warrant to Lender that:
15.1 The execution, delivery and performance by
Borrowers of this Amendment and the transactions contemplated
herein:
(a) are and will be within Borrowers' corporate powers;
(b) have been authorized by all necessary corporate
action;
(c) are not and will not be in contravention of any
order of any court or other agency of government, or of any law to
which any Borrower or property of any Borrower is bound; and
(d) are not and will not be in conflict with, or result
in a breach of or constitute (with due notice and/or lapse of time)
a default under any indenture, agreement or undertaking to which
any Borrower is a party or by which any Borrower or property of any
Borrower is bound.
15.2 This Amendment and any other agreements, instruments
or documents executed and/or delivered in connection herewith,
shall be valid, binding and enforceable against Borrowers in
accordance with their respective terms.
15.3 Borrowers hereby reassert each of the
representations and warranties contained in the Loan Agreement and
all related agreements, instruments and documents and all such
representations and warranties are true and correct as of the date
hereof.
15.4 Borrowers hereby reassert each of the covenants,
whether affirmative or negative, contained in the Loan Agreement
and all related agreements, instruments and documents and all such
covenants are incorporated herein by reference and made part
hereof.
15.5 Borrowers represent to Lender that no Event of
Default and no event which, with the passage of time, giving of
notice or both would become an Event of Default under the Loan
Agreement, has occurred or is existing.
16. Collateral. Borrowers hereby confirm and agree that all
security interests and liens granted to Lender continue unimpaired
and in full force and effect and shall continue to cover and secure
the indebtedness of Borrowers to Lender to the full extent set
forth in the Loan Agreement as amended, including, without limita-
tion, all of Borrowers' liabilities under the Loans. All
Collateral remains free and clear of all liens other than those in
favor of Lender. Nothing herein contained is intended to in any
way impair or limit the validity, priority or extent of Lender's
security interest in and liens upon the Collateral.
17. Incorporation. This Amendment shall amend and is
incorporated into and made part of the Loan Agreement. To the
extent that any term or provision of this Amendment is or may be
deemed expressly inconsistent with any term or provision in the
Loan Agreement, the terms and provisions hereof shall control.
Except as expressly amended by this Amendment, all of the terms and
conditions of the Loan Agreement continue unchanged and remain in
full force and effect.
18. Governing Law. This Amendment shall be governed by, and
construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania.
19. Counterparts. This Amendment may be executed in any
number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written.
LENDER:
Mellon Bank, N.A.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Assistant Vice President
BORROWERS:
Staff Builders, Inc.,
a Delaware corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Home Care, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Services
Corporation,
a Delaware corporation a Pennsylvania corporation
ATC Healthcare Services, ATC Staffing Services, Inc.,
Incorporated,
a Georgia corporation a Delaware corporation
Careco, Inc., Ethicare Certified Services,
Inc.,
a Massachusetts corporation a New York corporation
Home Health Care, Inc., Loving Home Care, Inc.,
a Maryland corporation a New York corporation
Medvisit, Inc., Professional Detail Services,
Inc.,
a North Carolina corporation a New York corporation
A Reliable Homemaker of ▇▇▇▇▇▇ - ▇.▇. Assured Home Care, Inc.,
St. Lucie County, Inc., a Delaware corporation
a Florida corporation
S.B.H.F., Inc., Staff Builders, Inc.,
a New York corporation a New York corporation
Staff Builders Home Health Care, Staff Builders
Inc. International,Inc.,
a Delaware corporation a New York corporation
[Borrowers continued on next page]
[Borrowers continued from previous page]
Staff Builders Personnel Staff Builders
Services, Inc. Prescription Services, Inc.,
a New York corporation a New York corporation
Staff Builders Services, Inc., St. Lucie Home Health Agency,
Inc.,
a New York corporation a Florida corporation
T.L.C. Home Health Care, Inc., T.L.C. Medicare Services, Inc.,
a Florida corporation a Delaware corporation
T.L.C. Medicare Services T.L.C. Medicare Services of
Broward, Inc. Dade, Inc.,
a Florida corporation a Florida corporation
T.L.C. Midwest, Inc., Tender Loving Care Health Care
Services, Inc.
a Delaware corporation a Connecticut corporation
Tender Loving Care Home Care Tender Loving Care Private
Services Inc. Patient Company, Inc.
a New York corporation a Florida corporation
U.S. Ethicare Corporation, U.S. Ethicare Albany
Corporation,
a Delaware corporation a New York corporation
U.S. Ethicare Chautauqua U.S. Ethicare Erie
Corporation Corporation,
a New York Corporation a New York Corporation
U.S. Ethicare Niagara Corporation, U.S. Ethicare Onondaga
Corporation,
a New York corporation a New York corporation
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:Executive V.P.
On behalf of and as EVP of each of the foregoing Borrowers
Attest:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:Senior V.P.
On behalf of and as Senior V.P. of each of the foregoing Borrowers
[Signatures continued on next page]
[Signatures continued from previous page]
NEW BORROWER:
Advanced Management Solutions, Inc.,
a Delaware corporation
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name:▇▇▇▇ ▇. ▇▇▇▇▇
Title:Executive V.P.
Attest:
Name:
Title: