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CONSENT AND SECOND AMENDMENT TO CREDIT AGREEMENT

Loan Agreement

CONSENT AND SECOND AMENDMENT TO CREDIT AGREEMENT | Document Parties: ADDUS HOMECARE CORP | Addus HealthCare, Inc | Loan Parties, FREEPORT FINANCIAL LLC | Silver State Personal Care, Inc You are currently viewing:
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ADDUS HOMECARE CORP | Addus HealthCare, Inc | Loan Parties, FREEPORT FINANCIAL LLC | Silver State Personal Care, Inc

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Title: CONSENT AND SECOND AMENDMENT TO CREDIT AGREEMENT
Governing Law: Illinois     Date: 7/17/2009
Law Firm: Winston Strawn    

CONSENT AND SECOND AMENDMENT TO CREDIT AGREEMENT, Parties: addus homecare corp , addus healthcare  inc , loan parties  freeport financial llc , silver state personal care  inc
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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:

 

Period

  

EBITDA

December 31, 2006

  

$

4,024,457

March 31, 2007

  

$

3,224,724

June 30, 2007

  

$

3,340,717

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

 

Date

  

Scheduled Installment

December 31, 2007

  

$

1,100,000

March 31, 2008

  

$

1,100,000

June 30, 2008

  

$

1,100,000

September 30, 2008

  

$

1,100,000

December 31, 2008

  

$

1,475,000

 
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