CONSENT AND FOURTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.8(d)
EXECUTION COPY
CONSENT AND FOURTH AMENDMENT TO CREDIT AGREEMENT
CONSENT AND FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of April 1, 2008, among Addus HealthCare, Inc., an Illinois corporation (“Borrower”), the other persons signatory hereto as “Loan Parties”, FREEPORT FINANCIAL LLC, a Delaware limited liability company (“Agent”) and the Lenders signatory hereto. Terms not defined herein have the meanings given to them in the Credit Agreement (as hereinafter defined).
RECITALS
A. Borrower, the Loan Parties, the Lenders signatory thereto and Agent are party to that certain Credit Agreement dated as of September 19, 2006 (as amended by that certain Consent and First Amendment to Credit Agreement dated as of July 29, 2007, that certain Consent and Second Amendment to Credit Agreement dated as of October 15, 2007, that certain Consent and Third Amendment to Credit Agreement dated as of November 13, 2007 and as further amended, restated or otherwise modified including by this Amendment, the “Credit Agreement”).
B. Borrower, the Loan Parties, the Lenders and Agent are entering into this Amendment in connection with the acquisition (the “Full Life Acquisition”) by Addus HealthCare (Idaho), Inc., a Delaware corporation and a wholly-owned Subsidiary of the Borrower (“Addus Idaho”), of substantially all of the assets of each of A Full Life Agency, Inc., Life’s Alternatives, Inc., Alternatives For Life, Inc., A Full Life of Montana, Inc., A Full Life Home Care, Inc., A Full Life Home Health, Lewiston, Inc., and A Full Life Home Health, Boise, Inc. (collectively “Full Life”) for an aggregate purchase price not to exceed $4,325,000.
C. Agent, Lenders and the Loan Parties are willing to enter into this Amendment upon the terms and conditions set forth below.
NOW THEREFORE, in consideration of the matters set forth in the recitals and the covenants and provisions herein set forth, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
Section 1. Definitions. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement.
Section 2. Consent. Agent and the Lenders hereby consent to Addus Idaho (i) entering into (w) that certain Asset Purchase Agreement, dated as of even date herewith (the “Full Life Purchase Agreement”), by and between Addus Idaho, the Borrower, Xxxxxx Xxxxx, Xxxxxx Xxxxx, A Full Life Agency, Inc., Life’s Alternatives, Inc., Alternatives For Life, Inc., A Full Life of Montana, Inc., A Full Life Home Care, Inc., A Full Life Home Health, Lewiston, Inc., and A Full Life Home Health, Boise, Inc., (x) the Idaho Note, (y) the Idaho Earn Out Agreement and
(z) the other agreements, instruments and documents for the purpose of consummating the Full Life Acquisition in each case on terms and conditions satisfactory to the Agent (the “Full Life Acquisition Documents”, it being agreed that the forms of the Full Life Purchase Agreement, the Idaho Note, the Idaho Earn Out Agreement and such other agreements, instruments and documents provided to the Agent on April 1, 2008 are satisfactory to the Agent); (ii) consummating the Full Life Acquisition on the Fourth Amendment Effective Date for an aggregate purchase price not to exceed $2,000,000 paid in cash on the closing date thereof pursuant to the terms of the Full Life Acquisition Documents, plus a deferred purchase price in an amount not to exceed $950,000 paid pursuant to the Idaho Earn Out Agreement, plus the issuance of the Idaho Note and up to $125,000 in deferred payments (the “Idaho Deferred Payments”) within fifteen days of the delivery of the 2008 audited financial statements of Borrower paid pursuant to Section 3.1(d) of the Full Life Purchase Agreement; provided that neither such deferred purchase price paid pursuant to Section 3.1(d) of the Full Life Purchase Agreement, nor any amount paid pursuant to the Idaho Earn Out Agreement nor any payments on the Idaho Note shall be paid in the event that any Default or Event of Default under any of Sections 7.1 or 8.1(a) of the Credit Agreement has occurred and is continuing or would result therefrom or the Borrower does not have the minimum Borrowing Availability required by Section 6.17 of the Credit Agreement after giving effect to such payment.
Section 3. Amendment to the Credit Agreement. As of the Fourth Amendment Effective Date, the Credit Agreement is hereby amended as follows:
3.1. Section 1.1 of the Credit Agreement is hereby amended by adding the following new definitions thereto:
Fourth Amendment means that certain Consent and Fourth Amendment to Credit Agreement dated as of April 1, 2008 among the Loan Parties, Agent and the Lenders.
Fourth Amendment Effective Date has the meaning set forth in the Fourth Amendment.
Fourth Amendment Reaffirmation of Collateral Documents means the Consent and Reaffirmation (Fourth Amendment) dated as of April 1, 2008 of the Loan Parties signatory thereto, in respect of the Collateral Documents.
Full Life has the meaning set forth in the Recitals to the Fourth Amendment.
Full Life Acquisition has the meaning set forth in the Recitals to the Fourth Amendment.
Full Life Acquisition Documents has the meaning set forth in Section 2 of the Fourth Amendment.
Idaho Deferred Payments has the meaning set forth in Section 2 of the Fourth Amendment.
Idaho Earn Out Agreement means that certain Earn Out Agreement dated as of April 1, 2008 by and among Addus Idaho, A Full Life Agency, Inc., Life’s Alternatives, Inc., Alternatives For Life, Inc., A Full Life of Montana, Inc., A Full Life Home Care, Inc., A Full Life Home Health, Lewiston, Inc., A Full Life Home Health, Boise, Inc., Xxxxxx Xxxxx and Xxxxxx Xxxxx.
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Idaho Note means that certain 8% Junior Subordinated Promissory Note by Addus Idaho payable to Xxxxxx and Xxxxxx Xxxxx in the original principal amount of $1,250,000.
3.2. Section 1.1 of the Credit Agreement is further amended by amending and restating the proviso at the end of the definition of “EBITDA” to read as follows:
“provided, that, notwithstanding anything to the contrary contained herein, for each of the Fiscal Quarters listed below, EBITDA shall be deemed to be the amount set forth below opposite such corresponding period:
| Period |
EBITDA | ||
| March 31, 2007 |
$ | 3,795,286 | |
| June 30, 2007 |
$ | 3,911,279 | |
| September 30, 2007 |
$ | 3,933,970 | |
| December 31, 2007 |
$ | 4,099,889 | |
Provided, further, that for any period that includes the months of January, February or March of 2008, EBITDA shall, without duplication, be increased with respect to the assets acquired in connection with the Full Life Acquisition by an amount equal to $74,000 for each such month.”
3.3. Section 2.1(a)(v) of the Credit Agreement is hereby amended and restated in its entirety and replaced with the following new Section 2.1(a)(v):
(v) Borrower shall repay the Term Loans through periodic payments on the dates and in the amounts indicated below (“Scheduled Installments”), and in any event the entire remaining principal balance shall be repaid on the Commitment Termination Date.
| Term Loan | |||
| Date |
Scheduled | ||
| June 30, 2008 |
$ | 1,165,000 | |
| September 30, 2008 |
$ | 1,165,000 | |
| December 31, 2008 |
$ | 1,572,500 | |
| March 31, 2009 |
$ | 1,572,500 | |
| June 30, 2009 |
$ | 1,572,500 | |
| September 30, 2009 |
$ | 1,572,500 | |
| December 31, 2009 |
$ | 1,980,000 | |
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| March 31, 2010 |
$ | 1,980,000 | |
| June 30, 2010 |
$ | 1,980,000 | |
| September 30, 2010 |
$ | 1,980,000 | |
| December 31, 2010 |
$ | 2,387,500 | |
| March 31, 2011 |
$ | 2,387,500 | |
| June 30, 2011 |
$ | 2,387,500 | |
| September 19, 2011 |
$ |
27,717,500 or the outstanding principal balance of Term Loans outstanding on such date | |
The above scheduled installment amounts reflect the incurrence by the Borrower of the Delayed Draw Term Loans funded on the Fourth Amendment Effective Date and shall thereafter be increased in the manner set forth on Annex B to the Second Amendment to the extent any further Delayed Draw Term Loans are funded. The final installment payment shall in all events equal the entire remaining principal balance of the Term Loan (including any remaining principal balance of such Delayed Draw Term Loans). Amounts borrowed under this Section 2.1(a) and repaid may not be reborrowed.
At the request of the applicable Lender, the Term Loans shall be evidenced by promissory notes substantially in the form of Exhibit 2.1(a) (as amended, modified, extended, substituted or replaced from time to time, each a “Term Note” and, collectively, the “Term Notes”), and Borrower shall execute and deliver a Term Note to each such Term Lender. Each Term Note shall represent the obligation of Borrower to pay the amount of the applicable Term Lender’s Term Loan Commitment, together with interest thereon.”
3.4. Section 6.1 of the Credit Agreement is hereby amended by deleting the “and” at the end of clause (n) thereof, deleting the “.” at the end of clause (o) thereof and replacing it with “; and” and by adding the following new clause (p):
“(p) Indebtedness in respect of the Idaho Earn Out Agreements, the Idaho Deferred Payments and Idaho Note.”
3.5. Section 6.3 of the Credit Agreement is hereby amended by deleting the “and” at the end of clause (n) thereof, deleting the “.” at the end of clause (o) thereof and replacing it with “; and” and by adding the following new clause (p):
“(p) Borrower or a wholly-owned Subsidiary of Borrower may consummate the Full Life Acquisition as of the Fourth Amendment Effective Date pursuant to the Full Life Acquisition Documents.”
3.6. Clause (d) of Section 6.6 of the Credit Agreement is hereby amended by deleting the “and” before clause (iv) thereof and adding the following new language immediately at the end thereof:
“and (v) Borrower or a wholly-owned Subsidiary of Borrower may consummate the Full Life Acquisition on the Fourth Amendment Effective Date pursuant to the Full Life Acquisition Documents and all applicable law, provided that the Full Life Acquisition Documents shall be in full force and effect and provided further that the Agent shall have received a complete copy of the fully executed Full Life Acquisition Documents, certified by the Borrower as being true, complete and correct.”
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3.7. Section 6.16 of the Credit Agreement is amended and restated in its entirety to read as follows:
“None of the Loan Parties shall change or amend the terms of the Acquisition Note, Silver State Note, Vegas Earn Out Agreement, Idaho Earn Out Agreement, Idaho Note or SuCasa Note if such change or amendment would be adverse in any material respect to the rights or interests of the Loan Parties, the Agent or the Lenders.”
3.8. Section 6.17 of the Credit Agreement is hereby amended by replacing the reference to “$3,000,000” therein with a reference to “$3,500,000”.
3.9. Section 7.1(b) of the Credit Agreement is amended and restated in its entirety to read as follows:
“Minimum EBITDA. Holdings and its Subsidiaries on a consolidated basis shall have, at the end of each Fiscal Quarter set forth below, Minimum EBITDA for the 12-Fiscal Month period then ended calculated of not less than the following:
| Period |
Minimum EBITDA | ||
| March 31, 2008 |
$ | 13,500,000 | |
| June 30, 2008 |
$ | 13,750,000 | |
| September 30, 2008 |
$ | 14,000,000 | |
| December 31, 2008 |
$ | 14,250,000 | |
| March 31, 2009 |
$ | 14,750,000 | |
| June 30, 2009 |
$ | 15,000,000 | |
| September 30, 2009 |
$ | 15,500,000 | |
| December 31, 2009 |
$ | 15,500,000 | |
| March 31, 2010 |
$ | 15,500,000 | |
| June 30, 2010 |
$ | 15,500,000 | |
| September 30, 2010 |
$ | 16,000,000 | |
| December 31, 2010 |
$ | 16,000,000 | |
| March 31, 2011 and each Fiscal Quarter ending thereafter |
$ | 16,000,000 | |
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3.10. Schedule 2 to Annex E of the Credit Agreement is amended to include the following new paragraph in the column underneath the word Less: and prior to the word Subtotal:
“an amount equal to any unfinanced cash payments during such Fiscal Year with respect to the Idaho Earn Out and Idaho Note; provided that the term unfinanced when used in this paragraph shall mean any such payment that the Borrower has not directly or indirectly drawn Revolving Loans (or used other Indebtedness) to finance such payment with the determination of whether any such payment is unfinanced being acknowledged and consented to by Agent such consent not to be unreasonably withheld.”
Section 4. Representations and Warranties. To induce Agent and Lenders to execute this Amendment, each Loan Party hereby represents and warrants to Agent and Lenders as follows:
(a) the execution, delivery and performance of each of this Amendment and the Full Life Acquisition Documents have been duly authorized by all requisite action of each Loan Party thereto, and each of this Amendment and the Full Life Acquisition Documents constitutes the legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally and to general principles of equity; and
(b) each of the representations and warranties in the Credit Agreement are true and correct in all material respects with the same effect as though made on and as of the date hereof (except, in each case, to the extent stated to relate to an earlier date, in which case such representation or warranty shall have been true and correct on and as of such earlier date) and no Event of Default or Default exists thereunder or would exist after giving effect to this Amendment or the Full Life Acquisition.
Section 5. Conditions Precedent. This Amendment shall be effective as of the date first set forth above, subject to the satisfaction of the following conditions precedent (the date of such satisfaction being the “Fourth Amendment Effective Date”):
5.1. Execution and Delivery. Borrower, each of the other Loan Parties, Agent and the Requisite Lenders shall have executed and delivered this Agreement; the Borrower shall have executed and delivered an Officers Certificate in the form of Exhibit A attached hereto; each Loan Party shall have executed and delivered the Consent and Reaffirmation in the form of Exhibit B attached hereto.
5.2. Covenant Compliance. After giving pro forma effect to the Full Life Acquisition to and the incurrence of the Delayed Draw Term Loans in connection therewith, Borrower is in compliance with each of the covenants set forth in Section 7.1.
5.3. Letter of Direction. Agent shall have received a duly executed letter of direction from Borrower addressed to Agent, on behalf of itself and the Lenders directing the disbursement of the proceeds of the Delayed Draw Term Loans to fund the Full Life Acquisition.
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5.4. Insurance. Agent shall have received evidence of the existence of insurance required to be maintained pursuant to the Credit Agreement, together with evidence that the Agent has been named as a lender’s loss payee and an additional insured on all related insurance policies to the extent there is any change in such insurance in effect prior to the Fourth Amendment Effective Date as a result of or in connection with the Full Life Acquisition.
5.5. Closing Certificate. Agent shall have received a certificate executed by an officer of the Borrower on behalf of the Loan Parties certifying the matters set forth herein as conditions.
5.6. Filings, Registrations and Recordings. The Agent shall have received each document (including Uniform Commercial Code financing statements) required by Section 5.7(c) of the Credit Agreement as may be necessary or desirable in order to create in favor of the Agent, for the benefit of the Lenders, a perfected Lien on the Collateral acquired in connection with the Full Life Acquisition prior to any other Liens (subject only to Permitted Encumbrances).
5.7. Due Diligence. Agent, Lenders and their counsel and advisors shall have completed their legal, accounting and financial due diligence review (including, without limitation, lien searches on Full Life) of Full Life and the Full Life Acquisition, the results of which review shall be reasonably satisfactory to Agent and Requisite Lenders.
5.8. Material Adverse Effect. There shall have occurred no Material Adverse Effect upon the financial condition, operations, assets, business or properties of (i) the Loan Parties or Full Life, taken as a whole, since December 31, 2006; or (ii) Full Life since December 31, 2006.
5.9. Full Life Acquisition Documents. On or prior to the Fourth Amendment Effective Date, each of the Full Life Acquisition Documents shall have been duly authorized by each of the Loan Parties party thereto and executed and delivered by each of the respective parties thereto and shall be in full force and effect and shall not have been amended or modified in any manner adverse to the Lenders except for such amendments and modifications, if any, as may be reasonably satisfactory to Agent and the Requisite Lenders. The Full Life Acquisition shall have been, or shall be contemporaneously herewith, consummated substantially in accordance with the Full Life Acquisition Documents (as amended in accordance with the immediately preceding sentence) and in accordance with all applicable law, except as may have been consented to in writing by Agent. Agent shall have received a complete copy of the fully executed Full Life Acquisition Documents, certified by the Borrower as being true, complete and correct.
5.10. Approvals. All necessary governmental and third party approvals and/or consents in connection with the Full Life Acquisition and otherwise referred to herein or therein shall have been obtained and remain in effect, and all applicable waiting periods shall have expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon the consummation of all or any part of the Full Life Acquisition, in each case as of the Fourth Amendment Effective Date. Additionally, there shall not exist any judgment, order, injunction or other restraint pending or notified prohibiting or imposing material adverse conditions upon all or any part of the Full Life Acquisition or the transactions contemplated by this Amendment as of the Fourth Amendment Effective Date.
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5.11. No Defaults. After giving effect to this Amendment, no Event of Default or Default under the Credit Agreement shall have occurred and be continuing.
5.12. Representations and Warranties. After giving effect to this Amendment, the representations and warranties of the Loan Parties contained in this Amendment, the Credit Agreement and the other Loan Documents shall be true and correct in all material respects as of the Fourth Amendment Effective Date, with the same effect as though made on such date, except to the extent that any such representation or warranty relates to an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date.
5.13. Secretary’s Certificate. Agent shall have received from each Loan Party a certificate signed by the secretary or an assistant secretary of such Loan Party, dated as of the Fourth Amendment Effective Date, as to the incumbency and signature of the officers of such Loan Party executing any Loan Document and any certificate or other document or instrument to be delivered pursuant hereto by or on behalf of such Loan Party, together with evidence of the incumbency of such Secretary or Assistant Secretary, as the case may be and certifying that there have been no changes to (i) the resolutions of such Loan Party authorizing and approving, among other things, the execution and delivery of the Loan Documents and (ii) the organizational documents of such Loan Party in each case since the Closing Date.
5.14. Resolutions. Agent shall have received a copy of the resolutions (in form and substance reasonably satisfactory to Agent) adopted by the Board of Directors of each Loan Party, authorizing or relating to the execution, delivery and performance of this Amendment and the Full Life Acquisition Documents and the other documents and instruments provided for therein and the consummation of the transactions contemplated hereby and thereby.
5.15. Good Standing Certificates. Agent shall have received good standing certificates for each Loan Party from their respective jurisdictions of incorporation or organization.
5.16. Fees. Borrower shall have paid all reasonable and documented costs, fees and expenses (including, without limitation, reasonable legal fees and expenses of Winston & Xxxxxx LLP) of Agent.
5.17. Opinions of Counsel. Agent shall have received opinions of counsel for each Loan Party, including local counsel reasonably requested by the Agent.
5.18. Other Matters. Agent shall have received such other instruments and documents as Agent or the Requisite Lenders may reasonably request in connection with the execution of this Amendment, and all such instruments and documents shall be reasonably satisfactory in form and substance to Agent.
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Section 6. Miscellaneous.
6.1. Effect of Amendment. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Agent or any Lender under the Credit Agreement or any Loan Document, or constitute a waiver of any provision of the Credit Agreement or any Loan Document, except as specifically set forth herein.
6.2. Counterparts. This Amendment may be executed in any number of counterparts and by the different parties on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Delivery of the executed counterpart of this Amendment by telecopy or electronic mail shall be as effective as delivery of a manually executed counterpart to this Amendment.
6.3. Severability. The illegality or unenforceability of any provision of this Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Amendment or any instrument or agreement required hereunder.
6.4. Captions. Section captions used in this Amendment are for convenience only, and shall not affect the construction of this Amendment.
6.5. Entire Agreement. This Amendment embodies the entire agreement and understanding among the parties hereto and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof.
6.6. References. Any reference to the Credit Agreement contained in any notice, request, certificate, or other document executed concurrently with or after the execution and delivery of this Amendment shall be deemed to include this Amendment unless the context shall otherwise require. Reference in any of this Amendment, the Credit Agreement or any other Loan Document to the Credit Agreement shall be a reference to the Credit Agreement as amended hereby and as further amended, modified, restated, supplemented or extended from time to time.
Section 7. Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
[signature pages follow]
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Witness the due execution hereof by the respective duly authorized officers of the undersigned as of the date first above written.
| ADDUS HEALTHCARE, INC. | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | VP & CEO | |
| ADDUS HOLDING CORPORATION | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxx | |
| Title: |
| |
| ADDUS MANAGEMENT CORPORATION | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxx | |
| Title: |
| |
| XXXXXX HOME HEALTH AGENCY, INC. | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | VP & CEO | |
| LITTLE ROCK HOME HEALTH AGENCY, INC. | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | VP & COO | |
| FORT XXXXX HOME HEALTH AGENCY, INC. | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | VP & COO | |
| BENEFITS ASSURANCE CO., INC. | ||
| By: | /s/ Xxxxx X. Xxxxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxxxx | |
| Title: | Secretary | |
| PHC ACQUISITION CORPORATION | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | VP & COO | |
| PROFESSIONAL RELIABLE NURSING SERVICE, INC. | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: | Xxxx Xxxxxx | |
| Title: | VP & COO | |
| FREEPORT FINANCIAL LLC, as Agent | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Title: | Sr. Managing Director | |
| FREEPORT LOAN FUND LLC, as a Lender | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Title: | Sr. Managing Director | |
| FREEPORT OFFSHORE LOAN FUND LLC, as a Lender | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Title: | Sr. Managing Director | |
| FREEPORT LOAN TRUST 2006-1, as a Lender | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Title: | Sr. Managing Director | |
| FIFTH THIRD BANK, CHICAGO | ||
| (A Michigan Banking Company) | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Vice President | |
| XX XXXXXXXXX LLC | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: | Xxxxxx X. Xxxxxx | |
| Title: | V.P. | |
