EXHIBIT 10.9
[FLEET CAPITAL LOGO]
January 18, 2000
Mr. John Collura
Chief Financial Officer
Gentiva Health Services, Inc.
Olsten Health Services Holding Corp.
175 Broad Hollow Road
Melville, New York 11747
Dear Mr. Collura:
We are pleased to advise you that Fleet Capital Corp. ("FCC") together with
FleetBoston Robertson Stephens Inc. ("FRS") (together "Fleet") hereby commits
to establishing a $150,000,000 Revolving Credit Facility to Gentiva Health
Services, Inc., Olsten Health Services Holding Corp. and certain of its
subsidiaries acceptable to FCC (the "Company" or "Borrower") for the purpose
of assisting in the Company's divestiture from its parent company, in the
manner previously reported to FCC, to provide for the Company's ongoing
working capital requirements, and to support future acquisitions in the
amounts and under the conditions outlined below. This letter replaces and
supercedes our commitment letter dated December 14, 1999 which is of no
further effect.
A. TERMS AND CONDITIONS OF LOAN:
Fleet's commitment herein is to underwrite the entire amount of the
Revolving Credit Facility. It is FCC's intent to retain an amount
equal to $35,000,000. FCC will act as Administrative Agent (the "Agent")
for FCC and any other lending institutions which may become party to
the financing (the "Lenders") and FRS will act as exclusive arranger
for the Lenders (the "Arranger").
1. REVOLVING CREDIT FACILITY:
The maximum overall credit line that would be available is
$150,000,000. The advance rates would be 80% against eligible
accounts receivable less than 180 days from the invoice date
reduced by such reserves as FCC may deem reasonably necessary
from time to time in accordance with industry practice. Excluded
from eligible accounts receivable would be contra accounts,
affiliated accounts and accounts which in our reasonable
discretion do not constitute acceptable accounts receivable.
Aggregate advances against Medicare and Medicaid accounts
receivable would be limited to $50,000,000 of 33% or total
borrowing availability, whichever is less.
Included within the Revolving Credit Facility would be a Standby Letter
Of Credit subline in an amount equal to $30,000,000. Such Letters of
Credit would be utilized for general corporate purposes and to support
workmen's compensation insurance. Outstanding balances would be fully
reserved against borrowing availability.
2. CONTRACT TERM:
The initial Contract Term of the Revolving Credit Facility would be four
(4) years.
3. REPAYMENT:
All advances and readvances of funds by us to Borrower would be
repayable in full upon the earlier of a) our demand due to a covenant or
other default or b) the termination of the Revolving Credit Facility as
described in paragraph 2 or paragraph 6.
4. INTEREST RATES & FEES:
a. Interest on the Revolver Loans would be paid monthly on the unpaid
principal balance at an annual rate of Libor plus 2.50% or the Prime
Rate of Fleet Bank plus .25%, as determined by the Borrower. LIBOR
loans would be available under such guidelines as to amount, duration
and number of traunches and procedures as we may establish.
b. There would be a Closing Fee in the amount provided for in the Fee
Letter of even date, a portion of which is due to us and is payable
upon the issuance of this letter, and the balance of which shall be
due and payable on the Closing Date.
c. There would be an Unused Line Fee equal to .375% per annum on the
average unused portion of the Revolving Credit Facility (with Letters
of Credit treated as loans outstanding for this purpose) payable
quarterly in arrears.
d. There would be an Administrative Agent's fee in the amount
provided in the Fee Letter which would be charged annually.
e. Fees for Standby Letters of Credit would be equal to 2.25% per
annum on the average outstanding issued amount of all Letters of
Credit. A separate fee to be agreed to between Borrower and FCC
shall be payable to the fronting bank for Letters of Credit, payable
on the date of issuance thereof.
5. COLLATERAL:
FCC would have a first priority perfected security interest in all
present and future tangible and intangible personal property of Borrower
(other than equipment) including, without limitation, all accounts
receivable, inventory, investment property, chattel paper, instruments,
documents, books and records, insurance proceeds, and general
intangibles now owned or hereafter acquired by the Borrower wherever
located, and the proceeds thereof. Borrower shall execute all documents
necessary to create, perfect and evidence such liens.
6. The Borrower will be able to terminate the Credit Facility at any
time during the Contract Term upon ten (10) days prior written
notice to FCC and repayment of all loans and obligations of every
kind (due or to become due, primary or contingent) under the entire
Revolving Credit Facility and payment to FCC of a termination
charge equal to one percent (1%) of the amount of the Revolving
Credit Facility if the termination date occurs during the first
year of the Contract Term, and one half percent (.50%) of the
amount of the Revolving Credit Facility if the termination date
occurs during the second year of the Contract Term.
B. CLOSING DATE:
The Revolving Credit Facility would close on such a date as is mutually
satisfactory to you and to us, but no later than March 31, 2000 (the
"Closing Date"), unless we would agree in writing to an extension of
such date. In the event that the Loan were not closed by the Closing
Date or any written extension of the Closing Date approved by us, our
commitment hereunder would expire and we would have no further
obligation hereunder.
C. LOAN DOCUMENTS:
The Borrower would be required to execute and deliver to us such
instruments, documents, certificates, opinions and assurances ("the Loan
Documents") as we or our counsel might request (in form and substance
reasonably acceptable to us) in connection with the Loan on the basis
outlined above and in connection with the Borrower's authority and
capacity to accept the Loan Documents. The Loan Documents would contain
such warranties, covenants, and conditions as are normally contained in
documents relating to a loan similar to the Loan, including, but not
limited to the following:
1. FINANCIAL STATEMENTS:
The Borrowers would be required to furnish us with fiscal year-end
financial statements annually within 90 days of fiscal year-end,
certified by independent public accountants selected by Borrower
and reasonably acceptable to us. Borrower would also submit to us
monthly unaudited internal financial statements in form reasonably
acceptable to us, within 45 days of month end. Borrower would also
provide financial projections for the succeeding twelve months in
form reasonably acceptable to us, prior to the end of the preceding
fiscal year.
2. COLLATERAL INFORMATION:
The Borrowers would be required to furnish FCC with timely
information as to its accounts receivable and accounts payable as
FCC may deem appropriate and such other business and financial
information as FCC may from time to time require.
3. INSPECTION:
We would have the right to make periodic inspections of the books
and records of Borrower at Borrower's expense (absent an event of
default, not to exceed $75,000 per annum) and at our discretion.
4. NO JUNIOR LIENS:
The Borrowers would not be permitted to obtain any other loan or
other financing relating to or have any lien other than our lien
(or permitted liens to be defined in the loan agreement) on the
Collateral without FCC's consent.
5. COVENANTS:
We would require certain covenants, including tangible net worth
and minimum EBITDA (excluding any special charges) on a last 12
month basis of at least $25,000,000, limitations on mergers, liens,
investments, guarantees, acquisitions, dividends, debt
restrictions, and capital expenditure restrictions which are deemed
appropriate by Lender and which are typically contained in documents
relating to a transaction similar to the Loan.
D. CONDITIONS OF FUNDING:
From the date of this letter until the Closing Date, our obligation to
fund the Loan would be conditioned upon the following matters, among
others:
1. NO MATERIAL ADVERSE CHANGE AND LITIGATION:
There would be no material adverse change in the business,
financial condition, assets, or collateral of the Borrower or in
any governmental regulation or governmental policy affecting Fleet
or Borrower and no material adverse change (or development
involving a prospective material adverse change) shall have
occurred and be continuing in or affecting the loan syndication or
financial, banking or capital market conditions generally from
those in effect on the date hereof. In addition, FCC and its
counsel shall review and be satisfied with the status of any
material outstanding litigation and/or governmental investigations
pending against the Company. As of the date of this letter, FCC is
satisfied with the status of such litigation and/or investigations
based on the information it has been provided by the Company.
2. NO DEFAULT:
There would exist no default in any of the Borrower's existing loan
documents or other material contracts or in the Borrower's
compliance with any applicable laws and regulations.
3. OPINION OF BORROWER'S COUNSEL:
We would have received an opinion, reasonably satisfactory in
content to us from the Borrower's legal counsel that the Loan
Documents are legal, binding and enforceable in accordance with
their terms. Such opinions would also cover such other matters as
we may reasonably request, including but not limited to the
extent of any existing litigation and investigations.
4. SUBORDINATED NOTES.
No payments will be made on Borrower's Subordinated Notes, if,
after taking such payment into effect, Borrowers will be in default
to us or if excess borrowing availability would be less than
$40,000,000. Borrower may refinance the Subordinated Notes at or
before maturity with debt fully subordinated to FCC and Lenders
in an amount not to exceed the outstanding principal balance due
on the Subordinated Notes and on terms no less favorable to
Borrower or FCC than the existing Subordinated Notes except for
changes which are reasonably acceptable to Administrative Agent
and except with respect to the rate of interest which may be a
market rate of interest.
5. INSURANCE COVERAGE:
The Borrower would be required to submit to us satisfactory
evidence of insurance on its assets, as well as other business
insurance we may reasonably require, together with satisfactory
lender's loss payable endorsements.
6. MINIMUM AGGREGATE ADJUSTED AVAILABILITY:
On the Closing Date, after giving effect to the transactions
contemplated by this commitment letter and the Loan Documents, the
"Aggregate Adjusted Availability" of the Borrower would not be
less than $100,000,000. For purposes of this letter "Aggregate
Adjusted Availability" would mean (without duplication) an amount
equal to (a) Borrowers' availability from FCC's Revolving Credit
Facility plus (b) the Borrowers' unrestricted cash on hand minus
(c) the unpaid aggregate balance of loans and Letters of Credit
outstanding under FCC's Revolving Credit Facility on the
Closing Date minus (d) obligations to third parties which are
outstanding beyond normal terms minus (e) any reserves against
Borrowers' availability established by FCC under the Loan Documents
minus (f) closing payments and expenses.
7. EXPENSES:
Borrower would be responsible for all of Lender's reasonable
expenses related to due diligence, field examination (including
but not limited to work performed by Deloitte & Touche), search
and filing fees and all other reasonable out-of-pocket expenses
(including the fees and expenses of counsel for Lender) relating
to the analysis, document preparation, negotiation, completion of
the facility and enforcement of this letter, whether or not any
of the transactions contemplated hereby are consummated.
8. LOCKBOX OR DOMINION ACCOUNT:
If unused availability under the Revolving Credit Facility is
less than $60,000,000 and/or the outstanding balance of the Loan
exceeds $35,000,000, Lockbox Accounts and/or a Collection Account
would be required by FCC for the purpose of managing cash
collections, but will be inactive until such time as such minimum
availability or Loan
requirements are not met. Once unused availability falls below
or the Loan balance is above the pre-determined levels, the
Borrower would be required to fully utilize the Lockbox Account
or Collection Account for receipt of all collections at a bank
satisfactory to FCC. The Borrower would be required to obtain
all necessary documents satisfactory to FCC.
9. CONVERTIBLE TRUST PREFERRED SUBORDINATED DEBENTURES:
The Borrower would have received a minimum of $20,000,000.00 in
cash from the issuance of Convertible Subordinated Debentures on
terms and subject to Subordination provisions, acceptable to Agent
in its sole discretion.
E. MISCELLANEOUS:
1. ASSIGNMENT:
This commitment is not assignable by operation of law or
otherwise without Fleet's and Borrower's prior written consent.
2. BROKER'S FEES:
Borrowers would agree to indemnify us and hold us harmless
regarding any claim from any broker or similar person for a fee
arising out of this transaction.
3. APPROVAL OF DOCUMENTS:
All instruments and documents required hereby or relating to the
Borrowers' capacity and authority to make the Loan and to execute
the documents relating thereto and such other documents,
instruments, certificates, opinions and assurances as we may
reasonably request, and all procedures in connection herewith
would be subject to our reasonable approval and the approval of
our counsel as to form and substance.
4. CONFIDENTIALITY:
This letter is delivered to you with the understanding that
neither it nor its substance would be disclosed to any third person
except those who are in confidential relationships to you (such as
your equity partner, legal counsel or accountants) or where the
same is required by law. No party other than Borrower shall be
entitled to rely upon or assert any claim or benefit from this
letter.
5. MODIFICATION:
No modification hereof shall be binding upon us unless approved
by Borrower and Fleet in writing.
F. INDEMNITY:
By your signature below, Borrower agrees to indemnify and hold
FCC, FRS and their respective directors, agents, officers,
employees, subsidiaries, affiliates agents and controlling
persons harmless from and against any and all damages, losses
and liabilities sustained resulting from this letter, or the
transactions contemplated hereby or any claim, litigation,
investigation or proceeding relating to any of the foregoing,
whether or not any such indemnified person is a party thereto,
and to reimburse each of such indemnified persons, from time to
time upon their demand, for any reasonable legal or other
expenses incurred in connection with investigations or defending
any of the foregoing, whether or not the transactions
contemplated hereby are consummated, except to the extent
resulting, from the gross negligence, or willful misconduct of
the indemnified party. In all such litigation, or the
preparation thereof, Borrower shall be entitled to select counsel
after consultation with the indemnified party and, in addition to
the foregoing indemnity, Borrower agrees to pay promptly the
reasonable fees and expenses of such counsel.
G. SYNDICATION:
You agree to assist and cooperate with Fleet in forming a
syndicate of lenders and to provide Fleet and the other Lenders,
promptly upon request, with all information reasonably deemed
necessary by them (consistent with industry practice) to
complete successfully the syndication, including, but not
limited to, (i) an information package for delivery to potential
syndicate members and participants and (ii) all information and
projections prepared by you or your advisors relating to the
transactions described herein. Prior to the closing of the
Revolving Credit Facility you agree to refrain from any other
financings during such syndication process unless otherwise
agreed to by Fleet. You further agree to make appropriate officers
and representatives of the Company and its subsidiaries available
to participate in informational meetings for potential syndicate
members and participants at such times and places as Fleet may
reasonably request. Arranger shall have the right to manage all
aspects of the syndication (including, without limitation,
decisions as to the selection of institutions to be approached
and when they will be approached, when their commitments will be
accepted, which institutions will participate, and the allocations
of the commitments among the syndicate lenders and any titles to
be given to any lender participating in the Revolving Credit
Facility).
Fleet will use commercially reasonable efforts to syndicate the
Revolving Credit Facility on the terms outlined in this letter.
However, Fleet reserves the right, based on market reception, in
consultation with Borrower, to change the structure or terms of
the Revolving Credit Facility prior to the closing of the
Revolving Credit Facility if Fleet determines that such changes
are advisable in order to ensure a successful syndication so
long as the aggregate amount of the Revolving Credit Facility
remains unchanged.
In connection with the syndication of the Revolving Credit
Facilities, Fleet may, in its discretion, allocate to other
Lenders portions of any fees payable to Fleet in connection
with the Revolving Credit Facility.
If you agree with the general terms and conditions outlined
herein, you should return an accepted copy of this Commitment
Letter and the Fee Letter, together with that portion of the
Closing Fee due and payable as provided for in the Fee Letter.
If the terms and
conditions outlined in this letter are satisfactory, please sign the
enclosed copy of this letter and the Fee Letter and return it by 5:00 PM on
January 19, 2000. If your written acceptance of the terms and conditions is
not received by 5:00 PM by January 19, 2000, this Commitment Letter and the Fee
Letter shall expire.
Very truly yours,
Fleet Capital Corporation FleetBoston Robertson Stephens Inc.
By: By:
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Frank J. Galle
The foregoing is accepted and agreed to:
Olsten Health Services Holding Corp.
By:
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Date:
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Gentiva Health Services, Inc.
By:
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Date:
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