Exhibit 10.2
SECOND AMENDMENT
TO
CREDIT AGREEMENT
Dated as of February 10,
2009
This SECOND AMENDMENT TO CREDIT
AGREEMENT (together with the Annex hereto, this “
Amendment ”) is among Gentiva Health Services, Inc., a
Delaware corporation (the “ Borrower ”), and
LEHMAN COMMERCIAL PAPER INC., as administrative agent for the
Lenders (in such capacity, the “ Administrative Agent
”).
PRELIMINARY
STATEMENTS:
A. The Borrower, the Lenders, the
Administrative Agent and Lehman Brothers Inc., as Sole Lead
Arranger, entered into a Credit Agreement, dated as of
February 28, 2006 (as amended, restated, modified or
supplemented prior to the date hereof, and together with all
annexes, exhibits and schedules thereto, the “ Credit
Agreement ”; capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to such terms in
the Credit Agreement).
B. The Borrower desires to amend the
Credit Agreement to permit the sale of certain assets related to
pediatric and home health services as further set forth
herein.
NOW, THEREFORE
, in consideration of the premises
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Amendment .
Upon the terms and subject to the
conditions set forth herein and in reliance on the representations
and warranties of the Loan Parties set forth herein, the Credit
Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit
Agreement is hereby amended to add the following definition in
appropriate alphabetical order:
“ Pediatric and Home Health
Services Disposition ”: the Disposition by Gentiva
Certified Healthcare Corp., Gentiva Health Services (USA) Inc. and
Gentiva Health Services (Certified), Inc. of certain assets
relating to their pediatrics and adult hourly home health care
businesses in (i) Phoenix, Arizona, (ii) Springfield,
Massachusetts, (iii) Pittsburgh, Pennsylvania, and
(iv) State College, Pennsylvania, in each case on or prior to
March 31, 2009 for an aggregate consideration of approximately
$6.0 million in cash.
(b) Section 2.12(b) of the
Credit Agreement is hereby amended by deleting this section in its
entirety and replacing it with the following:
“(b) If on any date the
Borrower or any of its Subsidiaries shall receive Net Cash Proceeds
from any Asset Sale or Recovery Event then, unless a Reinvestment
Notice shall be delivered in respect thereof, on the date of
receipt by the Borrower of such Net Cash Proceeds, the Term Loans
shall be prepaid by an amount equal to the amount of such Net Cash
Proceeds, as set forth in Section 2.12(e); provided, that,
notwithstanding the foregoing, on each Reinvestment Prepayment Date
the Term Loans shall be prepaid by an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event, as set forth in Section 2.12(e); provided
further, that no Reinvestment
Notice may be delivered in respect
of (i) the $58.0 million of Net Cash Proceeds that are used to
prepay the Term Loans pursuant to Section 7.5(h)(i) or
(ii) the Net Cash Proceeds from the Pediatric and Home Health
Services Disposition that are required to be applied to prepay the
Term Loans pursuant to Section 7.5(i). The provisions of this
Section do not constitute a consent to the consummation of any
Disposition not permitted by Section 7.5.”
(c) Section 7.5 of the Credit
Agreement is hereby amended (i) to delete “and” at
the end of clause (g) thereof, (ii) to replace the
“.” at the end of clause (h) thereof with “;
and” and (iii) to insert the following new clause
(i):
“(i) the Pediatric and Home
Health Services Disposition; provided that not less than 50%
of the Net Cash Proceeds therefrom are applied to repay the Term
Loans on the date of receipt by the Borrower of such Net Cash
Proceeds pursuant to Section 2.12(b).”
(d) Section 7.5(e) of the
Credit Agreement is hereby amended by inserting the words
“(other than those assets described in
Section 7.5(i))” after the words “the Disposition
of other assets”.
2. Release
Upon the terms and subject to the
conditions set forth herein and in reliance on the representations
and warranties of the Loan Parties set forth herein and the terms
and conditions of the Credit Agreement as amended hereby, the
Administrative Agent hereby agrees, upon the consummation of the
Pediatric and Home Health Services Disposition, to execute and
deliver to the applicable Guarantors such releases or other
documents reasonably necessary for the release of the security
interest granted to the Administrative Agent in the assets being
disposed of in the Pediatric and Home Health Services Disposition
pursuant to Section 8.15(b) of the Guarantee and Collateral
Agreement.
3. Conditions to
Effectiveness.
The effectiveness of the amendment
contained in Section 1 hereof is conditioned upon satisfaction
of the following conditions precedent (the date on which all such
conditions have been satisfied being referred to herein as the
“ Amendment Effective Date ”):
(a) the Administrative Agent shall
have received (i) signed written authorization from the
Required Lenders to execute this Amendment on behalf of such
Lenders, (ii) counterparts of this Amendment signed by each of
the Borrower and the Administrative Agent, and
(iii) counterparts of the consent of the Guarantors attached
hereto as Annex 1 (the “ Consent ”) executed by
each of the Guarantors;
(b) each of the representations and
warranties in Section 4 below shall be true and correct in all
material respects on and as of the Amendment Effective
Date;
(c) the Administrative Agent shall
have received payment in immediately available funds of
(i) those fees previously agreed to by the parties hereto in
connection with this Amendment, and (ii) all expenses incurred
by the Administrative Agent (including, without limitation, legal
fees) reimbursable under the Credit Agreement and for which
invoices have been presented;
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(d) in consideration of this
Amendment, the Administrative Agent shall have received payment in
immediately available funds from the Borrower, for the account of
each Lender that executed and returned to the Administrative Agent
its consent no later than 3:00 p.m. (New York time) on
February 6, 2009, a fee equal to 0.05% of such Lender’s
Aggregate Exposure; and
(e) the Administrative Agent shall
have received such other documents, instruments, certificates,
opinions and approvals as it may reasonably request.
4. Representations and
Warranties . The
Borrower represents and warrants jointly and severally to the
Administrative Agent and the Lenders as follows:
(a) Authority . The Borrower
has the requisite corporate or other organizational power and
authority to execute and deliver this Amendment and to perform its
obligations hereunder and under the Credit Agreement (as amended
hereby). Each of the Guarantors has the requisite corporate or
other organizational power and authority to execute and deliver the
Consent. The execution, delivery and performance by the Borrower of
this Amendment and by the Guarantors of the Consent, and the
performance by the Borrower and each Guarantor of the Credit
Agreement (as amended hereby) and each other Loan Document to which
it is a party, in each case, have been authorized by all necessary
corporate or other organizational action of such Person, and no
other corporate or other organizational proceedings on the part of
each such Person is necessary to consummate such
transactions.
(b) Enforceability . This
Amendment has been duly executed and delivered on behalf of the
Borrower. The Consent has been duly executed and delivered by each
of the Guarantors. Each of this Amendment, the Consent and, after
giving effect to this Amendment, the Credit Agreement and the other
Loan Documents, (i) is the legal, valid and binding obligation
of each Loan Party party hereto and thereto, enforceable against
such Loan Party in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity
or at law) and (ii) is in full force and effect. Neither
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