EXHIBIT 2.9
FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT
FIRST AMENDMENT
AND WAIVER TO CREDIT AGREEMENT, dated as of March
31,2005
(this "AMENDMENT"), to the
Credit Agreement referred to below between
ALBAHEALTH, LLC, a Delaware
limited liability company ("BORROWER"), and GENERAL
ELECTRIC CAPITAL CORPORATION,
a Delaware corporation (in its individual
capacity, "GE Capital"), for
itself, as Lender, and as Agent for Lenders.
W I T N E S S E T H
WHEREAS, Borrower and GE
Capital, as Agent and as Lender, are parties to that
certain Credit Agreement,
dated as of September 6, 2002, (as amended, restated,
supplemented or otherwise
modified from time to time, the "Credit Agreement");
WHEREAS, Borrower has
notified Agent that Borrower has failed to comply with
certain Financial Covenants
set forth in SECTION 6.10 of the Credit Agreement
for the periods ended
September 30,2004 and December 31,2004 and has requested
a
waiver thereof;
and
WHEREAS, Borrower has
requested that certain provisions of the Credit
Agreement
be amended in the manner, and
on the terms and conditions provided for herein.
NOW THEREFORE, in
consideration of the premises and for other good and
valuable
consideration, the receipt,
adequacy and sufficiency of which are hereby
acknowledged, Borrower,
Agent, Requisite Lenders and Requisite Revolving Lenders
hereby agree as
follows:
1. DEFINITIONS. Capitalized
terms not otherwise defined herein shall have the
meanings ascribed to them in
the Credit Agreement or Annex A thereto.
2. WAIVERS UNDER CREDIT
AGREEMENT. Agent, Requisite Lenders and Requisite
Revolving Lenders hereby
waive, as of the First Amendment Effective Date (as
hereinafter defined), any
Default or Event of Default resulting solely from
Borrower's failure to comply
with the minimum EBITDA requirements of paragraph
(e) of ANNEX G of the Credit
Agreement for the 12-month periods ended September,
30,2004 and December 31,
2004; PROVIDED, that Borrower and its Subsidiaries on a
consolidated basis shall have
at the end of the Fiscal Quarter ended December 3
1,2004 EBITDA for the
12-month period then ended of not less than $5,650,000.
3. AMENDMENTS TO CREDIT
AGREEMENT. The Credit Agreement is hereby amended as of
the First Amendment Effective
Date as follows:
(a) AMENDMENT TO
PARAGRAPH (B) OF ANNEX G OF THE CREDIT AGREEMENT.
Paragraph (b) of ANNEX G of
the Credit Agreement is hereby amended as of the
First - Amendment Effective
Date by deleting paragraph (b) of ANNEX G in its
entirety and inserting the
following in lieu thereof:
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"(b) Minimum
Fixed Charge Coverage Ratio. Borrower and its
Subsidiaries
shall have on a
consolidated basis (i) at the end of each Fiscal Quarter
(other than the
Fiscal Quarter ending March 31, 2005), a Fixed Charge
Coverage Ratio
for the 12-month period then ended (or, with respect to
the
Fiscal Quarters
ending on or before June 30,2003, for the period
commencing
on September 6,
2002, and ending on the last day of such Fiscal Quarter)
of
not less than
1.15x, and (ii) at the end of the Fiscal Quarter ending
March
31.2005, a Fixed
Charge Coverage Ratio for the 12-month period then ended
of not less than
1.10x."
(b) AMENDMENT TO PARAGRAPH
(B) ANNEX G OF THE CREDIT AGREEMENT.
Paragraph (e) of Annex G of
the Credit Agreement is hereby amended as of the
First Amendment Effective
Date by deleting the following in paragraph (e) of
ANNEX G:
"March 3 1,2005 $7,500,000
June 30,2005 $7,500,000
September 30,2005 $7,750,000
December 31,2005 $7,750,000"
and inserting the following
in lieu thereof:
"March 31,2005 $5,229,000
June
30,2005 $53 1 1,000
September 30, 2005 $5,535,000
December 31,2005 $6,000,000"
(c) AMENDMENT TO
PARAGRAPH (D) ANNEX G OF THE CREDIT AGREEMENT.
Paragraph (d) of Annex G of
the Credit Agreement is hereby amended as of the
First Amendment Effective
Date by deleting "1.75x for the Fiscal Quarter ending
June 30, 2005", and inserting
in lieu thereof "2.0x for the Fiscal Quarter
ending June
30,2005".
4. REMEDIES This
Amendment shall constitute a Loan Document. The breach
by
any Credit Party of any
representation, warranty, covenant or agreement in this
Amendment (including without
limitation in SECTION 2 hereof) shall constitute an
immediate Event of Default
hereunder and under the other Loan Documents.
5.
REPRESENTATIONS AND WARRANTIES. To induce Agent, Requisite Lenders
and
Requisite Revolving Lenders
to enter into this Amendment, Borrower makes the
following representations and
warranties to Agent, Requisite Lenders and
Requisite Revolving
Lenders:
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(a) The execution: delivery and
performance of this Amendment and the
performance of the Credit Agreement as amended by this Amendment
(the
"Amended Credit Agreement") by Borrower: (a) are within
Borrower's
organizational power; (b) have been duly authorized by all
necessary
or proper organizational and shareholder or membership action; (c)
do
not contravene any provision of Borrower's charter or bylaws
or
equivalent organizational or charter or other constituent
documents;
(d) do not violate any law or regulation, or any order or decree
of
any court or Governmental Authority; (e) do not conflict with
or
result in the breach or termination of, constitute a default
un
