EXHIBIT 10.17
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
This SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT ("Amendment") is made
this 26th day of November, 2003 by and among the lending institutions listed in
Annex I to the Loan Agreement (as defined below) (each a "Lender", and
collectively, "Lenders"), FLEET CAPITAL CORPORATION, a Rhode Island corporation
with an office at 200 Glastonbury Boulevard, Glastonbury, CT 06033, as
administrative agent for the Lenders ("Agent"), and GENTIVA HEALTH SERVICES,
INC., a Delaware corporation with its chief executive office at 3 Huntington
Quadrangle 2S, Melville, NY 11747 (the "Company"), GENTIVA HEALTH SERVICES
HOLDING CORP., a Delaware corporation with its chief executive office at 3
Huntington Quadrangle 2S, Melville, NY 11747 ("GHS"), and each of the Subsidiary
Borrowing Corporations listed on the signature pages hereto, each with a state
of incorporation and chief executive office as listed on the exhibits to the
Loan Agreement (each of the Company, GHS and each Subsidiary Borrowing
Corporation, a "Borrower," and collectively, "Borrowers").
BACKGROUND
A. Borrowers, Agent and Lenders are parties to a certain Loan and Security
Agreement dated June 13, 2002, as amended by that certain First Amendment and
Consent Agreement to Loan and Security Agreement among Agent, Lenders and
Borrowers dated as of August 7, 2003 (as it may heretofore otherwise have been
or may herein or hereafter be modified, amended, restated or replaced from time
to time, the "Loan Agreement") pursuant to which Borrowers established certain
financing arrangements with Lenders including a Revolving Credit Loan facility
and a Letter of Credit facility. The Loan Agreement and all instruments,
documents and agreements executed in connection therewith or related thereto are
referred to herein collectively as the "Existing Loan Documents." All
capitalized terms not otherwise defined herein shall have the meaning ascribed
thereto in the Loan Agreement.
NOW, THEREFORE, with the foregoing Background incorporated by reference and
made a part hereof and intending to be legally bound, the parties agree as
follows:
1. Amendments to Loan Agreement. Upon the effectiveness of this Amendment,
subsection 8.1.9 of the Loan Agreement shall be amended by deleting such
subsection in its entirety and replacing it as follows:
8.1.9 Dissolution of Inactive Subsidiaries. Borrower has and will
continue to use its reasonable best efforts to cause each of the
Inactive Subsidiaries to be legally dissolved prior to December 1,
2004. In no event may any of the Inactive Subsidiaries of Borrower or
a Subsidiary of Borrower hold any assets of any type, other than those
assets specifically transferred by Company as may be necessary to pay
corresponding tax liabilities, without the
Second Amendment to Loan and Security Agreement -- November 2003 1
prior written approval of Agent.
2. Representations and Warranties. To induce Agent and Lenders to enter
into this Amendment, each Borrower warrants, represents and covenants to Agent
and Lenders that:
(i). All warranties and representations made to Agent and Lenders under
the Loan Agreement and the other Existing Loan Documents are true and correct as
to the date hereof.
(ii). The execution and delivery by each Borrower of this Amendment and
the performance by it of the transactions herein contemplated (i) are and will
be within its powers, (ii) have been authorized by all necessary corporate
actions and will not contravene any provision of the certificate or articles of
incorporation or bylaws or other similar corporate governance documents of such
Borrower, and (iii) are not and will not be in contravention of any order of any
court or other agency of government, of law or any other indenture, agreement or
undertaking to which such Borrower is a party or by which the property of such
Borrower is bound, or be in conflict with, result in a breach of, or constitute
(with due notice and/or lapse of time, if applicable) a default under any such
indenture, agreement or undertaking or result in the imposition of any lien,
charge or encumbrance of any nature on any of the properties of such Borrower.
(iii). This Amendment and any assignment, instrument, document, or
agreement executed and delivered in connection herewith, will be valid and
binding on and enforceable against each Borrower in accordance with its
respective terms.
(iv). Both prior to and after giving effect to this Amendment, no
Default, or Event of Default, exists under the Loan Agreement or any of the
other Existing Loan Documents.
(v). Except for actions required by the states of California and
Pennsylvania to effectuate legal dissolution of Chronic Health Management of
California, QHR Southwest Business Trust and QHR Southwest Holdings Corp., no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or other regulatory body is required in connection
with the due execution, delivery and performance by any Borrower of this
Amendment or the performance by such Borrower of the Loan Agreement, as amended
hereby.
(vi). The name, office, and signature of the officer(s) of each
Borrower signing this Amendment have previously been certified to Agent in the
incumbency and signature certificates of such Borrower heretofore delivered to
Agent.
3. Confirmation of Security Interest. To secure the prompt payment and
performance to Agent and Lenders of the Obligations and satisfaction by
Borrowers of all covenants and undertakings contained in the Loan Agreement and
other Existing Loan Documents, each Borrower hereby reconfirms the grant to
Agent, for the ratable benefit of Lenders, of a continuing security interest in
and Lien upon all of the Collateral owned by such Borrower, whether now owned or
existing or hereafter created, acquired or arising and wherever located, given
to Agent by such Borrower under the Existing Loan Documents. Each such Borrower
hereby confirms and agrees that all such security interests and liens granted to
Agent under the Existing Loan Documents
Second Amendment to Loan and Security Agreement -- November 2003 2
continue in full force and effect and shall continue to secure the Obligations.
All Collateral remains free and clear of any liens other than liens in favor of
Agent, except for Permitted Liens. Nothing herein contained is intended to in
any way impair or limit the validity, priority, and extent of Agent's existing
security interest in and liens upon the Collateral.
4. Effectiveness Conditions. This Amendment shall be effective as of June
12, 2003 upon execution and delivery of this Amendment by all parties hereto and
payment by Borrowers to Agent of all reasonable legal expenses of Agent incurred
in relation to the preparation and execution of this Amendment.
5. Ratification of Existing Loan Documents. Except as expressly set forth
herein, all of the terms and conditions of the Loan Agreement and the other
Existing Loan Documents are hereby ratified and confirmed and continue unchanged
and in full force and effect. All references to the Loan Agreement shall mean
the Loan Agreement as modified by this Amendment.
6. Amendment as Loan Document. Borrowers hereby acknowledge and agree that
this Amendment constitutes a "Loan Document" under the Loan Agreement.
Accordingly, it shall be an Event of Default under the Loan Agreement if (i) any
representation or warranty made by Borrowers under or in connection with this
Amendment shall have been untrue, false or misleading in any material respect
when made, or (ii) Borrowers shall fail to perform or observe any term, covenant
or agreement contained in this Amendment.
7. Reaffirmation by Guarantors. Each Subsidiary Guarantor acknowledges and
agrees that the execution, delivery and performance of this Amendment by Agent,
Lenders and Borrowers, and the carrying out of the provisions hereof and the
consummation of all transactions contemplated hereunder, including without
limitation the waivers and amendments to the Loan Agreement provided for
hereunder, shall not affect or in any way diminish or modify the obligations of
each of them under the Subsidiary Guaranty and Surety Agreement executed by
Subsidiary Guarantors as of June 13, 2002 or any other Existing Loan Document to
which such Subsidiary Guarantor is a party, and each Subsidiary Guarantor
acknowledges and affirms its obligations under the Subsidiary Guaranty and
Surety Agreement and the other Existing Loan Documents.
8. Governing Law. THIS AMENDMENT HAS BEEN NEGOTIATED, EXECUTED AND
DELIVERED AT AND SHALL BE DEEMED TO HAVE BEEN MADE IN NEW YORK. THIS AMENDMENT,
AND ALL MATTERS ARISING OUT OF OR RELATING TO THE LOAN AGREEMENT, ANY OTHER
EXISTING LOAN DOCUMENT, AND/OR THIS AMENDMENT, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
ITS OTHERWISE APPLICABLE CONFLICTS OF LAWS RULES.
9. Waiver of Jury Trial. EACH BORROWER AND EACH SUBSIDIARY GUARANTOR WAIVES
THE RIGHT TO TRIAL BY JURY (WHICH EACH LENDER AND AGENT HEREBY ALSO WAIVES) IN
ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR
RELATED TO ANY OF THIS AMENDMENT. EACH BORROWER AND EACH SUBSIDIARY GUARANTOR
WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THE FOREGOING WAIVER WITH ITS LEGAL
COUNSEL AND HAS KNOWINGLY AND VOLUNTARILY WAIVED
Second Amendment to Loan and Security Agreement -- November 2003 3
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
10. Successors and Assigns. This Amendment, along with each of the Existing
Loan Documents, shall be binding upon and shall benefit Agent, Lenders,
Borrowers and Subsidiary Guarantors and their respective successors and
permitted assigns (as and if permitted under the Loan Agreement).
11. 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 such counterparts together shall constitute one and the same respective
agreement. Signatures by facsimile shall bind the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Second Amendment to Loan and Security Agreement -- November 2003 4
IN WITNESS WHEREOF, the parties hereto have duly executed this Second Amendment
and Waiver to Loan and Security Agreement as of the date first written above.
BORROWERS:
GENTIVA HEALTH SERVICES, INC.
By:______________________________
Name: John R. Potapchuk
Title: Senior Vice President and
Chief Financial Officer
GENTIVA HEALTH SERVICES HOLDING CORP.
By:______________________________
Name: John R. Potapchuk
Title: Treasurer
BORROWING SUBSIDIARY CORPORATIONS:
---------------------------------
Gentiva CareCentrix, INC.
Gentiva CareCentrix (Area One) Corp.
Gentiva CareCentrix (Area Two) Corp.
Gentiva CareCentrix (Area Three) Corp.
Gentiva Certified HealthCare Corp.
GENTIVA HEALTH Services (Certified), Inc.
GENTIVA HEALTH Services (USA), Inc.
Gentiva Services of New York, Inc.
New York Healthcare Services, Inc.
OHS Service Corp.
QC-Medi New York, Inc.
Quality Care - USA, Inc.
Quality Managed Care, Inc.
By:______________________________
Name: John R. Potapchuk
Title: Treasurer
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[Borrowers Signature Page to Second Amendment to June 2002 Loan Agreement]
S-1
Second Amendment to Loan and Security Agreement -- November 2003 5
SUBSIDIARY GUARANTORS:
Commonwealth Home Care, Inc.
Kimberly Home Health Care, Inc.
PartnersFirst Management, Inc.
Quantum Care Network, Inc.
Quantum Health Resources, Inc.
The I.V. Clinic, Inc.
The I.V. Clinic II, Inc.
The I.V. Clinic III, Inc.
By:______________________________
Name: John R. Potapchuk
Title: Treasurer
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[Subsidiary Guarantors Signature Page to Second Amendment to
June 2002 Loan Agreement]
S-2
Second Amendment to Loan and Security Agreement -- November 2003 6
AGENT:
FLEET CAPITAL CORPORATION,
as Agent
By:______________________________
Name: Adam Seiden
Title: Vice President
LENDERS:
FLEET CAPITAL CORPORATION,
By:______________________________
Name: Adam Seiden
Title: Vice President
Siemens Financial Services, Inc.
By:______________________________
Name:
Title:
HFG HEALTHCO-4 LLC
By:______________________________
Name:
Title:
[Agent and Lenders Signature Page to Second Amendment to
June 2002 Loan Agreement]
S-3
Second Amendment to Loan and Security Agreement -- November 2003 7
Second Amendment to Loan and Security Agreement -- November 2003 8