EXHIBIT
10.28
FORBEARANCE AND ACKNOWLEDGMENT AGREEMENT
This Forbearance and Acknowledgment Agreement (the
"Agreement") is dated as of February 22, 2000, and is by and
between CHASE EQUIPMENT LEASING, INC., a corporation organized
under the laws of the State of New York, with offices at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Chase") and STAFF BUILDERS,
INC., a corporation organized under the laws of the State of
Delaware, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Staff
Builders").
PRELIMINARY STATEMENT
Chase has extended credit to Staff Builders under a Master
Lease Agreement dated February 4, 1996 (including the related
Equipment Schedule, any and all guaranties and other documentation,
the "Lease"). All present and future obligations and liabilities of
Staff Builders have been unconditionally guaranteed, jointly and
severally, by each of the entities listed at Exhibit A hereto
(collectively, the "Guarantors"); (the applicable guaranties are
hereinafter referred to, collectively, as the "Guaranties"). All
present and future obligations of Staff Builders to Chase are
secured by a lien on personal property owned by Staff Builders (the
"Collateral").
All amounts due and to become due under the Lease shall be
collectively referred to herein as the "Indebtedness." Any and all
documentation by, between or among Chase and Staff Builders may be
referred to herein collectively as the "Lease Documents."
1. The amount due on the Lease is $1,239,291.56 consisting of
(a) $527,369.70 in base rent, tax, property tax, late fees, and
other charges assessed pursuant to the terms of the Lease through
January 31, 2000, (b) $50,235.69 that is due February 1, 2000 and
February 15, 2000, and (c) $661,686.17 in future base rent plus
tax. [Future base rent plus tax is calculated based on current tax
estimates and is subject to change based on actual amounts taxed.]
II. The Lease has six Equipment Schedules and Staff Builders
receives a separate Customer Statement for each Equipment Schedule.
The Equipment Schedules are identified on the Customer Statements
as Lease Schedule Numbers 06250001, 06250002, 06250003, 06250004,
06250005, and 063250006 (all referred to herein as the "Lease
Schedules").
Ill. The Customer Statements contain a category entitled
"Balance Forward" that is equal to (a) previous months' base rents,
taxes, property taxes, late fees, and other charges assessed
pursuant to the terms of the Lease, plus (b) most recent late
charges, minus (c) payments received.
IV.For the Customer Statements with due dates of February 1,
2000 and February 15, 2000 the aggregate amount in the Balance
Forward category is $527,369.70.
The Lease is currently in default and is all due and payable.
Staff Builders has requested that Chase forebear from exercising
and enforcing its rights and remedies under the Lease Documents
through the earlier of the date the Balance Forward (as defined
herein) is paid in full or April 15, 2001, so that Staff Builders
can have time to pay the Indebtedness as set forth herein. Chase is
willing to forebear from pursuing its rights and remedies as a
result of the default on the terms and conditions set forth in this
Agreement through the earlier of the date the Balance Forward (as
defined herein) is paid in full or April 15, 2001 (the "Standstill
Period').
In consideration of the premises and the mutual covenants
herein, the parties agree as follows:
Definitions. Terms used but not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Lease'
Documents.
1 Terms of Forbearance.
A. Payment Upon Execution of this Agreement. On or before
February 25, 2000, Staff Builders shall pay to Chase by wire
transfer a total of $162,589.23, $150,589.23 of which will be
applied to Balance Forward and $12,000.00 of which is to reimburse
Chase for the costs of its legal counsel. The wire transfer should
be directed to: Chase Manhattan Bank, New York, New York, ABA No.
▇▇▇▇▇▇▇▇▇, For Credit to: Chase Equipment Leasing, Account No.
0000252536.
B. Payments During the Standstill Period. Under the
Lease, payments are due on the 1st of each month for Lease Schedule
Numbers 06250002, 06250003, 06250005, and 063250006 and payments
are due on the 15th of each month for Lease Schedule Numbers
06250001 and 06250004 (all called "Due Dates" herein). It is agreed
that
i. Until the Balances Forward on all Customer
Statements are paid in full, all payments shall be due on the
15th of the month;
ii. Commencing March 15, 2000 and until the
Balances Forward on all Customer Statements are paid in full,
Staff Builders will pay not less than $75,353.54 on or before the
15th day of each month;
iii. Until the Balances Forward on all Customer
Statements are paid in full, Chase will apply payments received
first to the Balance Forward on any Lease Schedule and then to the
current amounts due; and
iv. Provided that Staff Builders makes the
payments to Chase as provided in this Agreement and is not
otherwise default under the Lease, Chase will not impose late
fees.
C. Payments After the Standstill Period Ends. Once the
Balances Forward on all Customer Statements are paid in full, Staff
Builders will then pay regular current amounts due on the Customer
Statements on or before the Due Dates listed therein until all
amounts due under the Lease Schedules are paid in full.
D. Affidavit of Confession of Judgment. Upon execution of
this Agreement, Staff Builders will deliver to Chase an affidavit
of confession of judgment for the Indebtedness (in a form
acceptable to Chase) that Chase will hold in escrow through
December 31, 2000. If Staff Builders defaults under this Agreement
or the Lease, Chase may enter the affidavit of confession without
further notice with appropriate credits for payments made, if any.
If Staff Builders pays all payments due in calendar year 2000 as
agreed and does not otherwise default on the Lease or this
Agreement, Chase will return or destroy the affidavit on or before
December 31, 2000.
E. Duration. The term of this Agreement shall expire on
the earlier of the date the Balance Forward (as defined herein) is
paid in full or April 15, 2001. On that date, the Standstill Period
will end. If Staff Builders makes the payments as agreed herein,
the Lease will then be current and payments thereafter shall be
made as provided in the Lease. Should Staff Builders commence or
have commenced a Bankruptcy filing, Chase shall have the right to
terminate this Agreement at any time without notice and the
provisions of the Lease Documents shall apply with respect to Staff
Builders' obligations. Chase's rights with respect to obligations
owing to it prior to the effective date of termination will not be
affected by termination, and all of the provisions of this
Agreement shall continue to be operative until all such obligations
shall have been fully satisfied.
F.Confirmation of Guarantees. With the execution of
this Agreement, the Guarantors will reaffirm their Guaranties.
G. Sales Outside of the Ordinary Course of Business. If
Staff Builders sells any of the Leased Equipment, it will promptly
deliver the proceeds of such sales to Chase. Chase will apply sale
proceeds first to Balance Forward and then to future rent in
inverse order of maturity.
H. UCC-1 Filings. In October 1999, Staff Builders
spun-off its home health care business from its supplemental
staffing business. The home health care business now operates as
Tender Loving Care Health Care Services, Inc. ("TLC"). If any
equipment under the Lease is located at places of business operated
by TLC or its subsidiaries, TLC, TLC subsidiaries, and Staff
Builders ▇▇▇▇▇ ▇▇▇▇▇ a security interest in that equipment to
secure the Indebtedness and authorize Chase to file UCC-1 financing
statements regarding that equipment.
2. Events of Default. Upon Staff Builders' failure to comply
with the terms, conditions and covenants contained in this
Agreement, or upon the occurrence of a Default or Event of Default
under the Lease Documents, Chase may, at its option, and without
notice to Staff Builders and/or Guarantors, terminate this
Agreement and demand payment in full of all amounts outstanding
under the Lease Documents and exercise any and all rights and
pursue any and all remedies to which it is entitled under this
Agreement and/or the Lease Documents in such manner as Chase in its
sole discretion may determine.
3. Representations. Staff Builders hereby reaffirms each and
every term and condition of the Lease Documents 8nd Staff Builders
confirms that each of the representations and warranties set forth
in the Lease Documents is true and correct on and as of the date
hereof as if made on and as of said date, as if each of the
representations and warranties had been set forth herein. Staff
Builders further represents and warrants that the Lease is in
default and is all due and owing and it owes the Indebtedness
without defense, offset or counterclaim and that the security
interests granted by Staff Builders to Chase pursuant to the Lease
Documents constitute valid, binding and enforceable, liens on all
Collateral.
Staff Builders further represents and warrants to Chase, that
(a) it has the legal power and authority to execute and deliver
this Agreement; (b) the execution and delivery hereof by Staff
Builders and the performance and observance by Staff Builders of
the provisions hereof do not violate or conflict with any law
applicable to Staff Builders or result in a breach of any provision
of or constitute a default under any other agreement, instrument or
document binding upon or enforceable against Staff Builders; (c)
this Agreement constitutes a valid and binding obligation upon
Staff Builders in every respect.
4. Further Assurance. Staff Builders agrees to promptly
furnish to Chase such additional financial or other information
which Chase may reasonably request from time to time until the
Lease is paid in full. Staff Builders further agrees to notify
Chase immediately of any event which would constitute, or with the
passage of time or the giving of notice or both would constitute,
an Event of Default under the Lease Documents or this Agreement.
The forbearance by Chase requested herein shall in no way
affect or reduce Staff Builders' obligations to comply with all
other terms and conditions of the Lease Documents until all amounts
due thereunder have been indefeasibly paid in full. By entering
into this Agreement, Chase shall not be deemed to have waived any
Default or Event of Default or alter the fact that the Lease is in
default and is all due and owing, and Chase reserves the right to
declare a Default or Event of Default on any appropriate grounds at
any time in the future. By entering into this Agreement, Chase
shall also not be deemed to have waived any right to assert any
right or remedy allowed under the Lease Documents or applicable law
and it is understood and agreed that Chase reserves all rights to
assert such rights and remedies at any time hereafter.
5. Release and Waiver. Staff Builders acknowledges and agrees
that the Lease is in default and is all due and payable and that
Chase has no obligation to enter into any workout or modification
discussions. In partial consideration of the Bank's agreements
herein, Staff Builders hereby releases and discharges Bank, its
successors and assigns, officers, employees, directors,
shareholders, and agents from any and all claims, demands, accounts
and actions at law or in equity that Staff Builders or its
successors, legal representatives or fiduciaries have against Bank
by reason of the Lease Documents or this Agreement, action by any
officer, employee, or agent of Bank or any account, cause or matter
whatsoever.
6. Affirmation of Legal Representation. Staff Builders
affirms that it has had sufficient opportunity to consult with
legal counsel with regard to this Agreement. Staff Builders
acknowledges that in obtaining the requested forbearance from the
Bank, Bank will be relying materially upon the provisions,
acknowledgments and covenants of this Agreement as set forth
above and that Bank's continued forbearance will be so
conditioned.
7. Miscellaneous. Staff Builders agrees to reimburse Bank for
all reasonable attorneys' fees (including outside counsel fees and
the allocated costs of in-house counsel), recording and filing
fees, and all other costs and expenses incurred by the Bank in the
preparation, negotiation, execution and administration of this
Agreement.
The rights and obligations of all parties hereto shall be
governed by and construed in accordance with the laws of the State
of New York. This Agreement shall be binding upon and inure to the
benefit of Chase and Staff Builders and its respective successors
and assigns. This Agreement may be amended only by a writing signed
on behalf of each of the parties. This Agreement may be executed in
counterparts for the convenience of the parties.
IN WITNESS WHEREOF, the parties hereto, by their duly
authorized officers, have executed this Agreement as of the day and
year first above written.
CHASE EQUIPMENT LEASING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Date: February 22, 2000
STAFF BUILDERS, INC.
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
Date: February 22, 2000
PARAGRAPH 1H IS ACKNOWLEDGED AND AGREED TO:
TENDER LOVING CARE HEALTH CARE SERVICES,INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date: February 22, 2000
CONFIRMATION OF GUARANTIES
Chase Equipment Leasing, Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (▇-▇) ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The undersigned Guarantors entered into a Guaranty (the
"Guaranty"), dated as of December 12, 1996, absolutely and
unconditionally guaranteeing to you, your successors, endorsees and
assigns the payment of the Liabilities of Staff Builders, Inc.
("Staff Builders") to Chase Equipment Leasing, Inc. (as defined in
the Guaranty attached as Exhibit B hereto], and any and all
renewals or extensions thereof, or any part thereof, together with
interest thereon and all expenses of collection thereof and of the
Guaranty, including reasonable attorneys' fees. Reference is made
to the Guaranty for a complete statement Of its terms and
conditions.
To induce you to enter into a Forbearance and Acknowledgment
Agreement (the "Agreement") with Staff Builders dated as of
February 22, 2000, each Guarantor hereby (i) ratifies and confirms
its Guaranty to you, (ii) confirms that such Guaranty extends to
the Agreement, and (iii) confirms that such Guaranty continues in
full force and effect with respect to the Guarantor.
STAFF BUILDERS SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
PROFESSIONAL DETAIL SERVICE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
STAFF BUILDERS HOME HEALTH CARE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
STAFF BUILDERS INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
TENDER LOVING CARE HOME CARE
SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, ▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date: February 22, 2000
U.S. ETHICARE ERIE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date: February 22, ▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇ NIAGARA CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date: February 22, ▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇ CHAUTAUQUA CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date: February 22, ▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇ ONONDAGA CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date: February 22, ▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇ ALBANY CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date: February 22, 2000
ETHICARE CERTIFIED SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date: February 22, 2000
TENDER LOVING CARE HEALTH CARE SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date: February 22, 2000
TLC HOME HEALTH CARE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Date: February 22, 2000
TLC MEDICARE SERVICES OF DADE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
TLC MEDICARE SERVICES OF BROWARD, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
TENDER LOVING CARE PRIVATE PATIENT COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
TLC MIDWEST, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
HOME HEALTH CARE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
PERSONNEL INDUSTRIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
CARECO, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
ST. LUCIE HOME HEALTH AGENCY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
A RELIABLE HOMEMAKER OF ▇▇▇▇▇▇
ST. LUCIE COUNTY INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
SBHF, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ SERVICES CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ HOME CARE, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
SBPP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
ATC HEALTHCARE SERVICES INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
MEDVISIT INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title:President
Date: February 22, 2000
Staff Builders, Inc.
Page 3
EXHIBIT A
Staff Builders Services, Inc.
Professional Detail Service, Inc.
Staff Builders Home Health Care, Inc.
Staff Builders International, Inc.
Tender Loving Care-Home Care Services, Inc.
U.S. Ethicare Corporation
U.S. Ethicare Erie Corporation
U.S. Ethicare Niagara Corporation
U.S. Ethicare Chautauqua Corporation
U.S. Ethicare Onondaga Corporation
U.S. Ethicare Albany Corporation
Ethicare Certified Services, Inc.
Tender Loving Care Health Care Services, Inc.
TLC Home Health Care, Inc.
TLC Medicare Services of Dade, Inc.
TLC Medicare Services of Broward, Inc.
Tender Loving Care Private Patient Company, Inc.
TLC Midwest, Inc. Home Health Care, Inc.
Personnel Industries, Inc.
Careco, Inc.
St. Lucie Home Health Agency, Inc.
A Reliable Homemaker of ▇▇▇▇▇▇-St. Lucie Country Inc.
SBHF, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Services Corp.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Home Care, Inc.
SBPP, Inc.
ATC Healthcare Services Incorporated
Medvisit Inc.