REVOLVING CREDIT NOTE
$7,500,000.00 (U.S.) October 24, 2001
FOR VALUE RECEIVED, NATIONAL HOME HEALTH CARE CORP., a Delaware
corporation, HEALTH ACQUISITION CORP., a New York corporation, NEW ENGLAND HOME
CARE, INC., a Connecticut corporation, ACCREDITED HEALTH SERVICES, INC., a New
Jersey corporation, and CONNECTICUT STAFFING WORKS CORP., a Connecticut
corporation (collectively the "Borrowers"), promise to pay to the order of HSBC
BANK USA, a New York banking corporation having an office at 00 Xxxxx Xxxxxxxx,
Xxxxx, Xxx Xxxx 00000, its successors and assigns (the "Bank") or at such other
place as the holder hereof may from time to time designate in writing, the
principal sum of Seven Million Five Hundred Thousand and 00/100 Dollars
($7,500,000.00) or so much thereof as may be outstanding (the "Maximum Principal
Amount") in lawful money of the United States of America with interest on such
principal amount outstanding from time to time to be computed from the date of
each principal advance hereunder at the Interest Rate (as hereinafter defined)
as provided herein. Defined terms used in this Note and not otherwise defined
herein shall have the meaning ascribed to them in the Credit Agreement, dated as
of the date hereof, between Borrowers and Bank (as in effect from time to time,
the "Credit Agreement"). All amounts under this Note shall be payable without
setoff, counterclaim or any other deduction whatsoever. This Note is one of two
revolving promissory notes issued under the Credit Agreement, each in the
maximum principal amount of $7,500,000.00; for avoidance of doubt, however, at
no time may the aggregate outstanding principal amount under both revolving
promissory notes exceed $7,500,000.00.
1. SECURITY. Borrowers have granted Bank a security interest in the collateral
described in the Loan Documents. Borrowers shall execute documents reasonably
required by Bank to create and perfect Banks security interest including, but
not limited to, Security Agreements and UCC-1 Financing Statements all in form
and substance acceptable to Bank.
2. INTEREST RATE. Interest shall be charged on the outstanding principal balance
under this Note from the date advanced to the date on which the full amount of
principal due hereunder has been paid at a rate of, at the Borrower's option,
either, 1-month, 2-month or 3-month LIBOR plus 225 basis points ("Interest
Rate"), except as set forth in Paragraph 4 below. "LIBOR" is the rate for U.S.
dollar deposits for the respective 1-month, 2-month or 3-month maturities as
reported on telerate page 3750 as of 11:00 a.m., London time, on the second
London business day before the relevant interest period begins (or if not so
reported, then as determined by Bank from another recognized source or interbank
quotation). Anything herein to the contrary notwithstanding, in no event shall
more than three (3) Interest Periods be in effect at any time.
3. INTEREST PERIOD. With respect to that portion of the Loan bearing interest at
a LIBOR rate, a period of 1-month, 2-months or 3-months (the "Interest Period"),
to the extent deposits with such maturities are available to Bank, as selected
by Borrowers in accordance with
this Note and the Credit Agreement.
4. DEFAULT RATE. In addition to all other rights contained in this Note, if a
Default (as defined herein) or Event of Default (as defined in the Credit
Agreement) occurs and as long as a Default or Event of Default continues, all
outstanding Loans shall bear interest at the Interest Rate plus 3% ("Default
Rate"). The Default Rate shall apply from demand until such Loans or any
judgment thereon is paid in full.
5. INTEREST AND FEES(S) COMPUTATION (ACTUAL/360). Interest and fees, if any,
accruing under this Note, shall be computed on the basis of a 360-day year for
the actual number of days in the applicable period ("Actual/360 Computation").
The Actual/360 Computation determines the annual effective yield by taking the
stated (nominal) rate for a year's period and then dividing said rate by 360 to
determine the daily periodic rate to be applied for each day in the applicable
period. Application of the Actual/360 Computation produces an annualized
effective rate exceeding the nominal rate.
6. PREPAYMENT ALLOWED. This Note may be prepaid in whole or in part at any time,
without prepayment fee or penalty, provided Borrowers pay any additional amount
deemed necessary by Bank to compensate the Bank for any losses, costs or
expenses which the Bank incurs or will incur as a result of such prepayment, if
during any Interest Period. Any prepayment shall include accrued interest and
all other sums then due under any of the Loan Documents. No partial prepayment
shall affect the obligation of Borrowers to make any payment of principal or
interest due under this Note on the date specified below in the Repayment Terms
paragraph of this Note until this Note has been paid in full.
7. REPAYMENT TERMS. This Note shall be payable in monthly payments of accrued
interest only, payable in arrears on the first day of each month (the "Interest
Payment Date"), and on the Expiration Date, if same is not an Interest Payment
Date, or if said dates are not Business Days, on the next Business Day
immediately thereafter, when all remaining principal and interest shall be due.
8. APPLICATION OF PAYMENTS. Monies received by Bank from any source for
application toward payment of principal of, and interest accruing under this
Note, shall be applied to accrued interest and then to principal. If a Default
or Event of Default occurs, monies may be applied to the Obligations in any
manner or order deemed appropriate by Bank consistent with applicable law.
If any payment received by Bank under this Note or other Loan Documents is
rescinded, avoided or for any reason returned by Bank because of any adverse
claim or threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.
9. LATE CHARGE. If any payments under this Note are not timely made, Borrowers
shall also pay to Bank a late charge equal to 5% of each payment past due for 10
or more days.
Acceptance by Bank of any late payment without an accompanying late charge shall
not be
deemed a waiver of Bank's right to collect such late charge or to collect a late
charge for any subsequent late payment received.
10. ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrowers shall pay all of
Bank's reasonable expenses incurred to enforce or collect any of the Obligations
including, without limitation, reasonable arbitration, paralegals', attorneys'
and experts' fees and expenses, whether incurred without the commencement of a
suit, in any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
11. USURY. Anything in this Note or any other Loan Documents to the contrary
notwithstanding, if at any time the effective interest rate under this Note
would, but for this paragraph, exceed the maximum lawful rate, the effective
interest rate under this Note shall be the maximum lawful rate, and any amount
received by Bank in excess of such rate shall be applied to principal and then
to fees and expenses, or, if no such amounts are owing, returned to Borrowers or
other applicable person.
12. INTENTIONALLY OMITTED.
13. DEFAULT. An Event of Default under the Credit Agreement shall be a default
("Default") under this Note.
14. REMEDIES UPON DEFAULT. If a Default or Event of Default occurs under this
Note or any Loan Documents and is continuing, Bank may at any time during such
pendency, take the actions set forth in the Credit Agreement.
15. WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note
shall be valid, except as provided in the Credit Agreement. No waiver by Bank of
any Default or Event of Default shall operate as a waiver of any other Default
or Event of Default or the same Default or Event of Default on a future
occasion. Neither the failure nor any delay on the part of Bank in exercising
any right, power, or remedy under this Note and other Loan Documents shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
Each Borrower or any person liable under this Note waives presentment, protest,
notice of dishonor, demand for payment, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of sale and all other
notices of any kind. Further, each agrees that Bank may extend or renew this
Note or make a novation of the loan evidenced by this Note for any period, and
grant any releases, compromises or indulgences with respect to any collateral
securing this Note, or with respect to any other Borrower or any other person
liable under this Note or other Loan Documents, all without notice to or consent
of each Borrower or each person who may be liable under this Note or any other
Loan Document and without affecting the liability of such Borrower or any person
who may be liable under this Note or any other Loan Document.
16. MISCELLANEOUS PROVISIONS. Assignment. This Note and the other Loan Documents
shall inure to the benefit of and be binding upon the parties and their
respective heirs, legal representatives, successors and assigns. Xxxx's
interests in and rights under this Note and
the other Loan Documents are freely assignable, in whole or in part, by Bank. In
addition, nothing in this Note or any of the other Loan Documents shall prohibit
Bank from pledging or assigning this Note or any of the other Loan Documents or
any interest therein to any Federal Reserve Bank. Borrowers shall not assign
their rights and interest hereunder without the prior written consent of Bank,
and any attempt by Borrowers to assign without Bank's prior written consent is
null and void. Any assignment shall not release Borrowers from the Obligations.
Applicable Law; Conflict Between Documents. This Note and the other Loan
Documents shall be governed by and construed under the laws of the State of New
York without regard to that state's conflict of laws principles (other than
Section 5-1401 of New York's General Obligations Law). If the terms of this Note
should conflict with the terms of the Credit Agreement or any commitment letter
that survives closing, the terms of this Note shall control. Borrowers'
Accounts. Except as prohibited by law, Borrowers grant Bank a security interest
in all of Borrowers' accounts with Bank and any of its affiliates. Jurisdiction.
Borrowers irrevocably agree to non-exclusive personal jurisdiction in the State
of New York, subject to Section 8.13 of the Credit Agreement. Severability. If
any provision of this Note or of the other Loan Documents shall be prohibited or
invalid under applicable law, such provision shall be ineffective but only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Note or other such
document. Notices. Any notices to Borrowers or Bank shall be sufficiently given,
if given in accordance with the terms set forth in the Credit Agreement. In the
event that Borrowers changes Xxxxxxxxx' address at any time prior to the date
the Obligations are paid in full, Borrowers agree to promptly give written
notice of said change of address by registered or certified mail, return receipt
requested, all charges prepaid. Plural; Captions. Unless otherwise stated, all
references in the Loan Documents to Borrower, guarantor, person, document or
other nouns of reference mean both the singular and plural form, as the case may
be. The captions contained in the Loan Documents are inserted for convenience
only and shall not affect the meaning or interpretation of the Loan Documents.
Advances. Without limiting the "avoidance of doubt" sentence in the introductory
paragraph of this Note, Bank may, in its sole discretion, make other advances
which shall be deemed to be advances under this Note, even though the stated
principal amount of this Note may be exceeded as a result thereof. Posting of
Payments. All payments under this Note shall be made by the Borrowers not later
than 12:00 noon, New York City time, on the date which it is payable in Federal
or other immediately available funds. Joint and Several Obligations. Each person
who signs this Note as a Borrower (as defined herein) is jointly and severally
obligated. Fees and Taxes. Borrowers shall promptly pay all documentary,
intangible recordation and/or similar taxes on this transaction whether assessed
at closing or arising from time to time.
17. WAIVER OF TRIAL BY JURY. XXXXXXXXX AND BANK HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED ON THE LOAN EVIDENCED BY THIS NOTE OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS NOTE, OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR
ACTION OF BORROWERS OR BANK. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK'S
MAKING OF THE LOAN SECURED BY THE COLLATERAL.
IN WITNESS WHEREOF, Xxxxxxxxx have duly executed this Note intending to be
legally bound, on of the day and year first above written.
NATIONAL HOME HEALTH CARE CORP.
By:____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
HEALTH ACQUISITION CORP.
By:____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
NEW ENGLAND HOME CARE, INC.
By:____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
ACCREDITED HEALTH SERVICES, INC.
By:_____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
CONNECTICUT STAFFING WORKS CORP.
By:____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
National Home Health Care Corp. Acknowledgement
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STATE OF NEW YORK )
ss.:
COUNTY OF WESTCHESTER )
On the 24th day of October, 2001, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxxx X. Xxxxxx personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and he acknowledged
to me that he executed the same in his capacities, and that by his signature on
the instrument, the individual, or the persons upon behalf of which the
individual acted, executed the instrument.
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Notary Public
Health Acquisition Corp. Acknowledgement
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STATE OF NEW YORK )
ss.:
COUNTY OF WESTCHESTER )
On the 24th day of October, 2001, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxxx X. Xxxxxx personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and he acknowledged
to me that he executed the same in his capacities, and that by his signature on
the instrument, the individual, or the persons upon behalf of which the
individual acted, executed the instrument.
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Notary Public
New England Home Care, Inc. Acknowledgement
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STATE OF NEW YORK )
ss.:
COUNTY OF WESTCHESTER )
On the 24th day of October, 2001, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxxx X. Xxxxxx personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and he acknowledged
to me that he executed the same in his capacities, and that by his signature on
the instrument, the individual, or the persons upon behalf of which the
individual acted, executed the instrument.
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Notary Public
Accredited Health Services, Inc. Acknowledgement
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STATE OF NEW YORK )
ss.:
COUNTY OF WESTCHESTER )
On the 24th day of October, 2001, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxxx X. Xxxxxx personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and he acknowledged
to me that he executed the same in his capacities, and that by his signature on
the instrument, the individual, or the persons upon behalf of which the
individual acted, executed the instrument.
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Notary Public
Connecticut Staffing Works Corp. Acknowledgement
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STATE OF NEW YORK )
ss.:
COUNTY OF WESTCHESTER )
On the 24th day of October, 2001, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxxx X. Xxxxxx personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and he acknowledged
to me that he executed the same in his capacities, and that by his signature on
the instrument, the individual, or the persons upon behalf of which the
individual acted, executed the instrument.
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Notary Public
