Aveanna Healthcare S1 IPO registration | AVAH 1 Apr 21

Exhibit 10.5

AMENDMENT NO. 3 TO FIRST LIEN CREDIT AGREEMENT

AMENDMENT NO. 3 TO FIRST LIEN CREDIT AGREEMENT (this “Amendment”), dated as of April 1, 2020, by and among Aveanna Healthcare LLC, a Delaware limited liability company (the “Borrower”), the other Credit Parties, Barclays Bank PLC, as the Administrative Agent (the “Administrative Agent”) and each Lender party hereto (constituting Required Revolving Credit Lenders).

RECITALS:

WHEREAS, reference is hereby made to the First Lien Credit Agreement, dated as of March 16, 2017 (as amended by the Joinder Agreement and Amendment, dated as of July 1, 2018, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Aveanna Healthcare Intermediate Holdings LLC (f/k/a BCPE Eagle Intermediate Holdings LLC), a Delaware limited liability company, the Borrower (f/k/a BCPE Eagle Buyer LLC), the lending institutions from time to time party thereto, and Barclays Bank PLC, as the Administrative Agent, the Collateral Agent, a Letter of Credit Issuer, and a Lender (capitalized terms used but not defined herein having the meaning provided in the Credit Agreement); and

WHEREAS, the Borrower and the Required Revolving Credit Lenders desire to amend the definitions of “Letter of Credit Commitment” and “Letter of Credit Percentage” in Section 1.1 of the Credit Agreement;

NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:

1. Amendments to the Credit Agreement.

(a) The definition of “Letter of Credit Commitment”, set forth in Section 1.1 of the Credit Agreement, is hereby amended by replacing the reference to “$20,000,000” with “$30,000,000”.

(b) The definition of “Letter of Credit Percentage”, set forth in Section 1.1 of the Credit Agreement, is hereby amended and restated in its entirety to read as follows:

““Letter of Credit Percentage” shall mean, with respect to (i) (1) Barclays Bank PLC, 17.77777%, (2) Royal Bank of Canada, 17.77777%, (3) Bank of Montreal, 51.11111%, and (4) Goldman Sachs Lending Partners LLC, 13.33333% (in each case as may be reduced to reflect any percentage allocated to another Letter of Credit Issuer pursuant to the immediately succeeding clause (ii)), and (ii) any other Letter of Credit Issuer, a percentage to be agreed between the Borrower and such Letter of Credit Issuer.”

2. Conditions Precedent.

(a) This Amendment shall become effective on the first date (the “Amendment No. 3 Effective Date”) when, and only when, each of the applicable conditions set forth below have been satisfied (or waived) in accordance with the terms herein:

(i) The Administrative Agent (or its counsel) shall have received this Amendment, executed and delivered by a duly Authorized Officer of each Credit Party, Lenders constituting Required Revolving Credit Lenders and each Letter of Credit Issuer signatory hereto.

(ii) All fees and expenses previously agreed in writing to be paid on the Amendment No. 3 Effective Date, in each case to the extent invoiced at least three (3) Business Days prior to the Amendment No. 3 Effective Date, shall have been paid, or shall be paid substantially concurrently with, the Amendment No. 3 Effective Date.

3. Representations and Warranties. Each Credit Party hereby represents and warrants to the Administrative Agent that:

(a) Each Credit Party has the corporate or other organizational power and authority to execute, deliver and carry out the terms and provisions of this Amendment and has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment. Each Credit Party has duly executed and delivered this Amendment and this Amendment constitutes the legal, valid, and binding obligation of such Credit Party enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and subject to general principles of equity.

(b) The representations and warranties of the Credit Parties contained in each Credit Document to which they are a party are true and correct in all material respects (provided that, in each case, to the extent any such representations and warranties are qualified by materiality, such representations and warranties shall be true and correct in all respects) on and as of the Amendment No. 3 Effective Date, as though made on and as of such date, other than any such representations or warranties that, by their terms, refer to a specific date other than the Amendment No. 3 Effective Date, in which case as of such specific date.

(c) No Event of Default has occurred and is continuing, or would result immediately after giving effect to this Amendment.

4. Effect of Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Credit Agreement or any other Credit Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or any other Credit Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. This Amendment is a Credit Document. Each reference to the Credit Agreement in any Credit Document will deemed to be a reference to the Credit Agreement as amended hereby.

5. Reaffirmation of the Credit Parties. Each Credit Party hereby consents to the terms of this Agreement and the amendment of the Credit Agreement effected hereby. Each Credit Party hereby confirms that each Credit Document to which it is a party or otherwise bound and all Collateral encumbered thereby will continue to guarantee or secure, as the case may be, to the fullest extent possible in accordance with the Credit Documents the payment and performance of all “Obligations” under each of the Credit Documents to which it is a party (in each case as such terms are defined in the applicable Credit Document). Each Credit Party acknowledges and agrees that any of the Credit Documents (as they may be modified by this Agreement) to which it is a party or otherwise bound shall continue in full force and effect and that all of its obligations thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or effectiveness of this Agreement other than to the extent expressly contemplated hereby.

6. Amendment, Modification and Waiver. This Amendment may not be amended, modified or waived except by an instrument or instruments in writing with the consent of the Persons required to sign such instrument by Section 13.1 of the Credit Agreement.

7. Entire Agreement. This Amendment, the Credit Agreement and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.

8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

9. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

10. Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by facsimile or other electronic transmission), and all of said counterparts shall be deemed originals and taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Amendment signed by all the parties shall be lodged with the Borrower and the Administrative Agent.

[Signature Pages Follow]

IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Amendment as of the date first set forth above.


BARCLAYS BANK PLC, as the Administrative Agent

By:		/s/ Edward Pan
Name:		Edward Pan
Title:		Associate

BARCLAYS BANK PLC, as a Revolving Credit Lender and as a Letter of Credit Issuer

By:		/s/ Edward Pan
Name:		Edward Pan
Title:		Associate