EXHIBIT 10.18
THIRD AMENDMENT AND JOINDER TO LOAN AND SECURITY AGREEMENT
This Third Amendment and Joinder to Loan and Security Agreement ("Joinder")
is made this 25th day of February, 2004 by and among 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 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., and Quality Managed Care, Inc. (each an "Existing Subsidiary Borrowing
Corporation"), each Existing Subsidiary Borrowing Corporation 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 Existing Subsidiary Borrowing
Corporation, an "Existing Borrower," and collectively, "Existing Borrowers") and
GENTIVA HEALTH SERVICES IPA, INC., a New York corporation with its chief
executive office at 3 Huntington Quadrangle 2S, Melville, NY 11747 ("New
Borrower"). (The term "Borrowers" as used herein shall refer to the Existing
Borrowers prior to the execution of the execution and delivery hereof and to the
Existing Borrowers and the New Borrower immediately following the execution and
delivery hereof.)
BACKGROUND
A. Existing 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 and that certain Second
Amendment to Loan and Security Agreement among Agent, Lenders and Borrowers
dated as of November 26, 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 Existing 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.
B. Effective as of May 31, 2003, Borrowers notified Agent as required under
subsection 8.2.1(iv) of the Loan Agreement that GHS intended to created a new
Subsidiary as of June 30, 2003. On June 30, 2003, GHS formed New Borrower as a
wholly-owned Subsidiary of GHS. Under subsection 8.2.1(iv) of the Loan
Agreement, any Borrower creating such a new Subsidiary must
pledge the capital stock of such newly-created Subsidiary to Agent for the
ratable benefit of the Lenders and cause such newly-created Subsidiary to become
a party to the Loan Agreement as a Subsidiary Borrowing Corporation pursuant to
a joinder agreement acceptable to Agent.
C. Borrowers, Agent and Lenders have also agreed to amend certain
provisions of the Loan Agreement to modify certain requirements of the Borrowers
concerning the delivery of certain reports to Agent.
D. Borrowers, Agent and Lenders have agreed to execute this Joinder to (a)
provide for the joinder of New Borrower as a "Borrower" under the Loan Agreement
and (b) amend certain provisions of the Loan Agreement relating to the
Borrower's reporting requirements.
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. Joinder.
(a) Agent and Lenders acknowledge having accepted Borrower's letter
dated and delivered February 13, 2004 giving notice effective as of May 31, 2003
of GHS's intention to form New Borrower as a wholly-owned subsidiary of GHS.
(b) Upon the effectiveness of this Joinder, New Borrower joins in,
becomes a Borrower under and assumes and accepts all of the obligations and
acquires all of the rights of a Borrower under the Loan Agreement. All
references to Borrower or Borrowers contained in the Loan Agreement or any other
Existing Loan Document, are immediately upon the effectiveness hereof, hereby
deemed for all purposes to also refer to and include New Borrower as a Borrower.
New Borrower hereby agrees to comply with all of the terms and conditions of the
Loan Agreement as if it were an original signatory thereto.
(c) Without limiting the generality of the provisions of subparagraph
(a) above, New Borrower hereby becomes and is thereby liable, on a joint and
several basis, along with all other Borrowers for all existing and future Loans
and Letters of Credit and any and all other Obligations.
(d) The Exhibits to the Loan Agreement are hereby amended to include the
information contained in the updates to such Exhibits (setting forth the
requisite information relating to New Borrower) contained in Attachment I
hereto.
2. Amendments to Loan Agreement. Upon the effectiveness of this Joinder,
the Loan Agreement shall be amended as follows:
(a) Amendment Concerning Delivery of Annual Projections. Subsection
8.1.5 of the Loan Agreement shall be amended by deleting such subsection in its
entirety and replacing it as follows:
8.1.5 Projections. Not later than sixty (60) days following the end of
each fiscal year of Borrowers, deliver to Agent Projections of Borrowers
for the forthcoming fiscal year of Borrowers, such Projections to be
prepared on a fiscal quarter by fiscal quarter basis.
(b) Amendment Concerning Frequency of Borrowing Base Certificate.
Subsection 8.1.6 of the Loan Agreement shall be amended by deleting such
subsection in its entirety and replacing it as follows:
8.1.6 Borrowing Base Certificate. No later than twenty (20) calendar
days after the last day of each fiscal quarter of Borrowers, Borrowers
shall deliver to Agent a Borrowing Base Certificate in the form of Exhibit
C hereto executed by the Chief Financial Officer of the Company, provided
that Agent or any other Lender may at any time and from time to time
require Borrowers to deliver Borrowing Base Certificates on a more frequent
basis as Agent (or any such other Lender) may determine in the exercise of
its sole discretion.
3. Representations and Warranties. To induce Agent and Lenders to enter
into this Amendment, each Borrower, including without limitation New Borrower,
represents and warrants to Lender that:
(a) All warranties and representations made to Agent and Lenders under
the Loan Agreement and the other Existing Loan Documents (as such warranties and
representation may have been amended pursuant to the amendments to the Exhibits
to the Loan Agreement set forth in Section 1(d) above) are true and correct as
to the date hereof.
(b) The execution and delivery by each Borrower, including without
limitation New Borrower, of this Joinder and the performance by each such
Borrower 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.
(c) This Joinder, the Amended and Restated Note (as defined below) 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.
(d) Both prior and after giving effect to this Amendment, no Default or
Event of Default, other than the Existing Default, exists under the Loan
Agreement or any of the other Existing Loan Documents.
(e) 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,
including without limitation New Borrower, of this Amendment or the performance
by such Borrower of the Loan Agreement, as amended hereby.
(f) The name, office, and signature of the officer(s) of each Borrower
(other than New Borrower) signing this Amendment have previously been certified
to Agent in the incumbency and signature certificates of such Borrower
heretofore delivered to Agent.
4. Collateral. 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,
New Borrower hereby grants to Agent, for the ratable benefit of Lenders, a
continuing security interest in and Lien upon all of the Collateral owned by New
Borrower, whether now owned or existing or hereafter created, acquired or
arising and wherever located as more fully provided for in Section 5.1 of the
Loan Agreement. New Borrower hereby irrevocably authorizes Lender at any time to
execute and/or file any UCC-1 financing statements (with or without the
signature of New Borrower) as are necessary, desirable or prudent to perfect
Agent's Lien upon any of the Collateral owned by New Borrower, including without
limitation financing statements that indicate the Collateral as being of an
equal or lesser scope, or with greater or lesser detail, than as set forth in
Section 5.1 of the Loan Agreement, all as more fully provided for in Section 5.3
of the Loan Agreement. Each Existing 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 and each Borrower
hereby confirms and agrees that all security interests and liens granted to
Agent by any one of them 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 of
any Borrower.
5. Effectiveness Conditions. This Joinder shall be effective, and the New
Borrower shall be deemed a Borrower under the Loan Agreement and Existing Loan
Documents, upon completion of the following conditions precedent (all documents
to be in form and substance satisfactory to Agent and Agent's counsel):
(a) Execution and delivery of this Joinder by all parties hereto;
(b) Execution and delivery of Amended and Restated Revolving Credit
Notes dated as of the date hereof in favor of each Lender (collectively,
"Amended and Restated Notes") by all of the Borrowers (including New Borrower);
(c) Execution and delivery by GHS of a First Amendment to Pledge
Agreement dated as of the date hereof pledging one hundred percent (100%) of the
issued and outstanding capital stock of New Borrower and delivery to Agent of
stock certificates (along with appropriate stock powers endorsed in blank)
representing such pledged stock;
(d) Filing of UCC-1 financing statements against New Borrower in favor
of Agent in such jurisdictions as Agent shall deem necessary, desirable or
prudent;
(e) A Secretary's Certificate of New Borrower (x) containing a
certification of incumbency regarding the officers of New Borrower and (y)
certifying (i) the articles or certificate of incorporation of New Borrower,
(ii) the bylaws of New Borrower and (iii) resolutions or written
actions/consents of the Board of Directors of New Borrower authorizing the
execution of this Joinder, the Amended and Restated Notes and any and all other
documents, instruments and agreements required in connection herewith and
therewith and the performance of the obligations of New Borrower hereunder and
thereunder;
(f) Good Standing Certificates in each jurisdiction where New Borrower
is incorporated and/or qualified to do business;
(g) Written opinion of counsel to New Borrower in form and substance
satisfactory to Agent;
(h) Uniform Commercial Code, judgment, federal and state tax lien
searches against New Borrower showing that the Collateral is not subject to any
liens, claims or encumbrances (other than Permitted Liens); and
(i) Any and all other agreements, instruments and documents requested by
Lender to effectuate and implement the terms hereof and the Existing Loan
Documents.
6. Ratification of Existing Loan Documents. Except as expressly set forth
herein, all of the terms and conditions of the Loan Agreement and 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 Joinder.
7. Joinder as Loan Document. Borrowers hereby acknowledge and agree that
this Joinder 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
Joinder 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 Joinder.
8. Reaffirmation by Guarantors. Each Subsidiary Guarantor acknowledges and
agrees that the execution, delivery and performance of this Joinder 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 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.
9. Governing Law. THIS JOINDER HAS BEEN NEGOTIATED, EXECUTED AND DELIVERED
AT AND SHALL BE DEEMED TO HAVE BEEN MADE IN NEW YORK. THIS JOINDER, AND ALL
MATTERS ARISING OUT OF OR RELATING TO THE LOAN AGREEMENT, ANY OTHER EXISTING
LOAN DOCUMENT, AND/OR THIS JOINDER, 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.
10. Waiver of Jury Trial. EACH BORROWER (INCLUDING WITHOUT LIMITATION NEW
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 JOINDER. EACH
BORROWER (INCLUDING WITHOUT LIMITATION NEW 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 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.
11. Successors and Assigns. This Joinder, 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).
12. Counterparts. This Joinder 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. Signature by facsimile shall bind the parties hereto.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Third Amendment and
Joinder to Loan and Security Agreement the day and year first written above.
EXISTING BORROWERS:
GENTIVA HEALTH SERVICES, INC.
By:______________________________
Name: John R. Potapchuk
Title: Senior Vice President and Chief
Financial Officer
GENTIVA HEALTH SERVICES HOLDING CORP.
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
NEW BORROWER:
GENTIVA HEALTH SERVICES IPA, INC.
By:______________________________
Name: John R. Potapchuk
Title: Treasurer
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[Borrowers Signature Page to Third Amendment and Joinder to
June 2002 Loan Agreement]
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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 Third Amendment and Joinder to
June 2002 Loan Agreement]
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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-5 LLC
By:______________________________
Name:
Title:
[Agent and Lenders Signature Page to Third Amendment and Joinder to
June 2002 Loan Agreement]
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