Exhibit 10.55
December 26, 2001
Heller Healthcare Finance, Inc.
f/k/a HCFP Funding, Inc.
2 Wisconsin Circle, 4th Floor
Chevy Chase, Maryland 20815
Attention: David Moore, Senior Vice President
Dear Mr. Moore:
Reference is made to that certain Loan and Security Agreement originally dated
as of February 18, 1998 by and among the Borrowers identified therein and Heller
Healthcare Finance, Inc. f/k/a HCFP Funding, Inc., as Lender (as previously
amended, as amended hereby and as otherwise amended, modified or supplemented
from time to time, the "Loan Agreement"). All capitalized terms used but not
defined in this letter (this "Letter Agreement") shall have the meaning given
them in the Loan Agreement.
We are writing to request that Lender agree to lend and Borrower hereby agree to
make an additional Revolving Credit Loan in the form of an "overline advance"
(i.e., an advance which exceeds the Borrowing Base). We understand that the
Lender has agreed to provide such overline advance, provided the Borrower agree
to the terms and conditions set forth herein. Accordingly, the Borrower and
Lender hereby agree as follows:
1. The aggregate amount of all advances under the June Overline Loan shall
not exceed One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (the
"Overline Loan"). The Overline Loan shall bear interest at the Base Rate as
specified in the Loan Agreement.
2. Except as expressly modified by the terms of this Letter Agreement, the
Overline Loan will be treated for all purposes as a Revolving Credit Loan under
the Loan Agreement, and all principal, interest, fees and other costs and
expenses relating to the Overline Loan (the "Overline Obligations") shall be
treated as additional Obligations under the Loan Agreement and the other Loan
Documents. The Maximum Loan Amount shall be inclusive of, and shall not be
deemed to be increased by, the Overline Obligations.
3. The Overline Loan shall be repaid in full by Borrower making fourteen
(14) consecutive principal payments each equal to $10,000 beginning on January
4, 2002 and continuing through and including April 5, 2002, and by Borrower
making a final payment on April 12, 2002 (the "Maturity Date") equal to $10,000
plus all then outstanding Overline Obligations.
4. In consideration for Lender's agreement to enter into this Letter
Agreement with Borrower, Borrower hereby agrees to pay to Lender a fee (the
"Overline Fee") equal to Three Thousand Seven Hundred Fifty and No/100 Dollars
($3,750.00). The Overline Fee shall constitute a portion of the Obligations
evidenced and secured by the Loan Documents and shall be due and payable
promptly following demand therefor by Lender. To the extent that Borrower shall
not have paid the Overline Fee promptly following demand therefor by Lender,
Borrower shall be deemed to have authorized and hereby does authorize Lender to
deduct the amount of such Overline Fee from the proceeds of the any subsequent
Revolving Credit Loan(s) made by Lender to Borrower under the Loan Agreement. In
addition, Borrower shall pay Lender for all reasonable costs and expenses of
Lender (including but not limited to the reasonable documentation fees of
Lender's in-house counsel) in connection with the preparation of this Overline
Letter.
5. Any breach by Borrower of any of the provisions of this Letter
Agreement, including but not limited to any failure of Borrower to repay the
Overline Obligations on or before the Maturity Date as required hereunder, shall
constitute an immediate and automatic Event of Default under the Loan Agreement
without further action or notice by Lender. Upon the occurrence of such an Event
of Default, and in addition to the other rights to which Lender may be entitled
under the Loan Agreement, or at law or in equity, upon such failure, Lender
shall be entitled to apply amounts transferred to the Concentration Account
pursuant to Section 2.3 of the Loan Agreement in satisfaction of Borrower's
obligations with respect to the Overline Loan and the Overline Obligations.
6. Except as specifically modified by this Letter Agreement, the Loan
Agreement, and all other Loan Documents, shall remain in full force and effect,
and are hereby ratified and confirmed.
7. The execution, delivery and effectiveness of this Letter Agreement shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of Lender, nor constitute a waiver of any provision of the Loan
Agreement, or any other documents, instruments and agreements executed or
delivered in connection therewith, nor shall it be construed as a waiver of any
other Event of Default, whether now existing of hereafter arising. Lender hereby
reserves all of its rights and remedies under the Loan Documents and applicable
law.
8. This Letter Agreement shall be governed by and construed in accordance
with the laws of the State of Maryland without regard to any otherwise
applicable conflicts of law provisions thereof.
9. This Letter Agreement may be executed in counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument.
10. By execution and delivery of this Letter Agreement, the Borrower agrees
to be legally bound by the provisions hereof.
Very truly yours,
PHC OF MICHIGAN, INC.
PHC OF UTAH, INC.
PHC OF VIRGINIA, INC.,
each a Massachusetts corporation
By: /s/ Paula C. Wurts
Name: Paula C. Wurts
Title: Chief Financial Officer
[LENDER'S ACKNOWLEDGEMENT SIGNATURE APPEARS ON NEXT PAGE]
ACKNOWLEDGED AND AGREED TO
as of this ____ day of December, 2001:
HELLER HEALTHCARE FINANCE, INC.
f/k/a HCFP FUNDING, INC., a Delaware corporation
By: ____________________________________________
Name:
Title: