Exhibit 10.8(b)
EXECUTION
COPY
CONSENT AND SECOND AMENDMENT
TO CREDIT AGREEMENT
CONSENT AND SECOND AMENDMENT TO
CREDIT AGREEMENT (this “ Amendment ”), dated as
of October 15, 2007, 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 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 (I) the acquisition (the “ Silver State
Acquisition ”) by the Borrower or a wholly-owned
Subsidiary of the Borrower of substantially all of the assets of
Silver State Personal Care, Inc., a Nevada corporation (“
Silver State ”) for an aggregate purchase price not to
exceed $2,000,000, (II) the increase of the Revolving Loan
Commitment by $5,000,000, (III) the increase of the Term Loan
Commitment by $17,500,000 (the “ Term Loan Commitment
Increase ”), under which an initial advance in the amount
of $5,000,000 will be made on the Second Amendment Effective Date
(the “ Second Amendment Term Loan Commitment Increase
”) and multiple subsequent advances in the aggregate amount
of $12,500,000 (such amount, the “ Delayed Draw Term Loan
Commitment Increase ”) are proposed to be made on certain
Delayed Draw Dates (as defined in the Credit Agreement) and (IV)
the continuation of the existing Term Loans (of which $42,200,000
in aggregate principal amount remains outstanding as of the Second
Amendment Effective Date before giving effect to the Second
Amendment).
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 the Borrower or a
wholly-owned Subsidiary of Borrower (i) entering into
agreements, instruments and other documents for the purpose of
consummating the Silver State Acquisition in each case on terms and
conditions satisfactory to the Agent (the “ Silver State
Acquisition Documents ”, it being agreed that the forms
of such agreements, instruments and other documents provided to the
Agent on October 12, 2007 are satisfactory to the Agent); and
(ii) consummating the Silver State Acquisition on the Second
Amendment Effective Date for an aggregate purchase price not to
exceed $1,500,000 paid in cash on the closing date thereof pursuant
to the terms of the Silver State Acquisition Documents, plus a
deferred purchase price in an amount not to exceed $500,000 paid to
Silver State pursuant to the Silver State Note; provided that such
deferred purchase price shall not 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 Second 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:
Delayed Draw Date
has the meaning set forth in
Section 2.1(a) .
Delayed Draw Term Loan
Commitment means
(a) as to any Lender, the commitment of such Lender to make
its Pro Rata Share of the Delayed Draw Term Loans (as set forth on
Annex A to the Second Amendment or in the most recent
Assignment Agreement, if any, executed by such Lender) in the
maximum aggregate amount not to exceed the Delayed Draw Term Loan
Commitment Increase and (b) as to all Lenders, the aggregate
commitment of all Lenders to make the Delayed Draw Term Loans in
the maximum aggregate amount not to exceed the Delayed Draw Term
Loan Commitment Increase, in each case as reduced by Term Loans
made on any Delayed Draw Date or otherwise as reduced pursuant
hereto.
Delayed Draw Term Loan Commitment
Increase has the meaning
set forth in the Recitals to the Second Amendment.
Delayed Draw Term
Loans has the meaning set
forth in Section 2.1(a) .
Original Term Loans
has the meaning set forth in
Section 2.1(a) .
Second Amendment
means that certain Consent and
Second Amendment to Credit Agreement dated as of October 15,
2007 among the Loan Parties, Agent and the Lenders.
Second Amendment Effective
Date has the meaning set
forth in the Second Amendment.
Second Amendment Reaffirmation of
Collateral Documents means the Consent and Reaffirmation (Second
Amendment) dated as of October 15, 2007 of the Loan Parties
signatory thereto, in respect of the Collateral
Documents.
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Second Amendment Term Loan
Commitment means
(a) as to any Lender, the commitment of such Lender to make
its Pro Rata Share of the Second Amendment Term Loans (as set forth
on Annex A to the Second Amendment or in the most recent
Assignment Agreement, if any, executed by such Lender) in the
maximum aggregate amount not to exceed the Second Amendment Term
Loan Commitment Increase, and (b) as to all Lenders, the
aggregate commitment of all Lenders to make the Second Amendment
Term Loans.
Second Amendment Term Loan
Commitment Increase has
the meaning set forth in the Second Amendment.
Second Amendment Term
Loans has the meaning set
forth in Section 2.1(a) .
Silver State
has the meaning set forth in the
Recitals to the Second Amendment.
Silver State
Acquisition has the
meaning set forth in the Recitals to the Second
Amendment.
Silver State Acquisition
Documents has the meaning
set forth in Section 2 of the Second Amendment.
Silver State Note
means that certain 8% Junior
Subordinated Promissory Note by Borrower payable to Silver State in
the original principal amount of $500,000.
3.2. Section 1.1 of the
Credit Agreement is further amended by amending and restating the
proviso at the end of the definition of “EBITDA” to
read as follows:
“ provided , that,
notwithstanding anything to the contrary contained herein, for each
of the Fiscal Quarters listed below, EBITDA shall be deemed to be
the amount set forth below opposite such corresponding
period:
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EBITDA
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December 31, 2006
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$
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4,024,457
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March 31, 2007
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$
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3,224,724
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June 30, 2007
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$
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3,340,717
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Provided, further, that for any
period that includes the month of July, August or September of
2007, EBITDA shall, without duplication, be increased with respect
to the assets acquired in connection with the Silver State
Acquisition by an amount equal to $63,000 for each such
month.”
3.3. Section 1.1 of the Credit
Agreement is further amended by amending and restating the
definition of “Fixed Charge Coverage Ratio” to read as
follows:
“Fixed Charge Coverage
Ratio” means for any measuring period the ratio of
(x) (i) EBITDA less (ii) Capital Expenditures, other
than the portion thereof funded by third party financing and less
(iii) the sum of all federal, state and local income taxes
and
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franchise taxes (excluding
(1) provisions for taxes in respect of gains on the sale of
assets, and extraordinary and non-recurring gains and (2), for
purposes of calculating the “Fixed Charge Coverage
Ratio” for any measuring period that includes the months of
March, April, June, September and December of Fiscal Year 2007,
$1,400,000 for March, 2007 and $400,000 for each of April,
2007, June, 2007, September, 2007 and December, 2007)
paid in cash (net of any credit for such taxes), to (y) Fixed
Charges.”
3.4. Section 1.1 of the
Credit Agreement is further amended by amending and restating the
definition of “McKesson Add-Back” to read as
follows:
“ McKesson Add-Back
means an amount equal to the expenses booked by the Borrower and
its Subsidiaries with respect to McKesson system implementation
services from and after the Closing Date in an amount not to exceed
$1,000,000.”
3.5. Section 1.1 of the
Credit Agreement is further amended by deleting the definition of
“Revolving Loan Commitment” and replacing it with the
following new definition:
“ Revolving Loan
Commitment means (a) as to any Lender, the commitment of
such Lender to make its Pro Rata Share of Revolving Credit Advances
or incur its Pro Rata Share of Letter of Credit Obligations as set
forth on Annex A or in the most recent Assignment Agreement,
if any, executed by such Lender and (b) as to all Lenders, the
aggregate commitment of all Lenders to make the Revolving Credit
Advances or incur Letter of Credit Obligations, which aggregate
commitment shall be Seventeen Million Five Hundred Thousand Dollars
($17,500,000) on the Second Amendment Effective Date, as such
amount may be adjusted, if at all, from time to time in accordance
with the Agreement.”
3.6. Section 1.1 of the
Credit Agreement is further amended by adding the following new
sentence to the definition of “Term Loan Commitment”
immediately at the end thereof:
“The Term Loan Commitment
shall include each Lender’s Delayed Draw Term Loan Commitment
and the Second Amendment Term Loan Commitment which, together with
the Term Loans outstanding immediately prior to giving effect to
the Second Amendment collectively equal
$59,700,000.”
3.7. Section 2.1(a) of
the Credit Agreement is hereby amended and restated in its entirety
and replaced with the following new Section 2.1(a
):
“ Term Loans .
(i) On the Closing Date, each Term Lender funded its Pro Rata
Share to Borrower of $45,000,000 (the “ Original Term
Loans ”). On the Second Amendment Effective Date,
Original Term Loans remain outstanding in the principal amount of
$42,200,000.
(ii) On the Second Amendment
Effective Date, each Lender shall make available funds equal to its
Pro Rata Share of the aggregate Second Amendment Term Loan
Commitment in immediately available funds to the Agent (such loans
the “ Second Amendment Term Loans ”).
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The Second Amendment Term Loan Commitment shall
expire concurrently with the making of the related Term Loans on
the Second Amendment Effective Date. Borrower covenants and agrees
that it shall use the proceeds of the Second Amendment Term Loans
advanced on the Second Amendment Effective Date solely to reduce
outstanding Revolving Loans, fund its purchase price obligations in
respect of the Silver State Acquisition and for fees and expenses
incurred in connection with the closing of the transactions
contemplated by the Silver State Acquisition Documents and the
Second Amendment.
(iii) On each Delayed Draw Date,
subject to the terms and conditions in clause (iv) of this
Section 2.1(a) below, each Lender shall make available funds
equal to its Pro Rata Share of the Delayed Draw Term Loan
Commitment to be drawn on such date in immediately available funds
to the Agent (the Loans made on each such date “ Delayed
Draw Term Loans ” and, collectively with the Second
Amendment Term Loans and Original Term Loans, collectively, the
“ Term Loans ”). Each borrowing of a Delayed
Draw Term Loan shall be in an aggregate minimum amount of
$2,500,000 and integral multiples of $500,000 in excess of that
amount. The Delayed Draw Term Loan Commitment shall expire on the
earlier of (i) the date the Delayed Draw Term Loan Commitment
is permanently reduced to zero, (ii) the date of the
termination of the Commitments pursuant to Section 8.3 and
(iii) the date that is nine (9) months after the Second
Amendment Effective Date, and any portion of the Delayed Draw Term
Loan Commitment unused by the Borrower as of such date shall be
automatically terminated. Borrower covenants and agrees that it
shall use the proceeds of the Delayed Draw Term Loans (i) to
fund Acquisitions consented to by the Requisite Lenders,
(ii) to pay fees and expenses incurred in connection with such
Acquisition and any amendment to the Credit Agreement in connection
therewith and (iii) contemporaneously with the funding of any
Acquisition consented to by the Requisite Lenders, to provide
additional working capital for the Borrower in connection with such
Acquisition.
(iv) The obligation of each Lender
to make Loans in respect of its Delayed Draw Term Loan Commitment
is, in addition to the conditions precedent specified in
Section 3.2 hereof, subject to the conditions precedent
that (i) the Agent shall have received all of the following,
each duly executed and dated as of the date of funding of the
Delayed Draw Term Loan requested by the Borrower (or such earlier
date as shall be satisfactory to the Agent), as applicable, in form
and substance satisfactory to the Agent and (ii) as
applicable, each of the following statements shall be true and
correct as of such date (each such date on which all such
conditions precedent have been satisfied or waived in writing by
the Agent is called a “ Delayed Draw Date ” and,
collectively, all such dates shall be the “ Delayed Draw
Dates ”):
(a) Acquisition Agreements .
The Borrower shall have received the consent of the Requisite
Lenders to the Acquisition to be funded by a Delayed Draw Term Loan
on the Delayed Draw Date and the Lenders shall have received the
acquisition agreement and all other material agreements,
instruments and documents executed in connection with any such
Acquisition to be consummated on such Delayed Draw Date (including
without limitation all schedules and exhibits to the relevant
acquisition agreement) in each case in form and substance
satisfactory to them. Concurrently with the funding of the Term
Loans on such Delayed Draw Date, any such Acquisition shall have
been consummated in accordance with the terms of such acquisition
agreement in all material respects and in compliance with
applicable law and regulatory approvals.
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(b) Covenant Compliance .
After giving pro forma effect to the Acquisition to be funded on
and the incurrence of the Delayed Draw Term Loan on such date,
Borrower is in compliance with each of the covenants set forth in
Section 7.1 .
(c) 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 on the applicable Delayed Draw Date.
(d) Opinions of Counsel .
Opinions of counsel for each Loan Party, including local counsel
reasonably requested by the Agent.
(e) Insurance . 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.
(f) Closing Certificate . A
certificate executed by an officer of the Borrower on behalf of the
Loan Parties certifying the matters set forth as conditions to the
Delayed Draw Date.
(g) Consents, etc. Certified
copies of all documents evidencing any necessary corporate or
partnership action, consents and governmental approvals (if any)
required for the execution, delivery and performance by the Loan
Parties of the Acquisition to be funded on the Delayed Draw
Date.
(h) 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 such any such Acquisition described therein,
prior to any other Liens (subject only to Permitted
Encumbrances).
(i) Other . Such other
documents as the Agent or any Lender may reasonably
request.
(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.
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Term Loan
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Scheduled Installment
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December 31, 2007
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$
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1,100,000
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March 31, 2008
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$
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1,100,000
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June 30, 2008
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$
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1,100,000
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September 30, 2008
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$
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1,100,000
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December 31, 2008
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$
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1,475,000
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