Exhibit 10.1
FOURTH AMENDMENT TO LOAN DOCUMENTS
THIS FOURTH AMENDMENT TO LOAN DOCUMENTS (the "Amendment") is
made and entered into effective as of July 15, 2005, by and between [i] ALMOST
FAMILY, INC., a Delaware corporation ("AFI"),[ii] each of the Subsidiaries of
AFI that is a party to this Agreement (all of which are Borrowers for the
purposes of the Loan Agreement and the other Loan Documents) and [iii] JP MORGAN
CHASE BANK, N.A., a national banking association (successor by merger to Bank
One, NA (main office Chicago, Illinois)) (in its individual capacity, "Chase"),
for itself as a Lender and as Agent for the Lenders ("Agent").
RECITALS
A. AFI, various Subsidiaries of AFI, and Chase, for itself as the Lender and in
its capacity as Agent for Lenders, are parties to a certain Loan and Security
Agreement dated August 3, 1999, as modified by an Omnibus Amendment to Loan
Documents dated as of May 30, 2001 ("2001 Amendment"), and a Second Amendment to
Loan and Security Agreement ("Second Amendment") effective as of November 5,
2002, and a Third Amendment to Loan Documents dated as of March 22, 2004
(collectively, the "Loan Agreement"; certain capitalized terms used in this
Amendment have the meanings set forth for them in the Loan Agreement unless
expressly otherwise defined herein), pursuant to which Lenders agreed to make
the Loans to, and issue Letters of Credit for the account of, Borrowers subject
to and in accordance with the provisions of the Loan Agreement and the other
Loan Documents.
B. Borrowers and Lenders have agreed, subject to and in accordance with the
provisions of this Amendment and the Loan Documents as modified pursuant to this
Amendment [i] to extend the expiration date of the Original Term to June 30,
2008, [ii] to modify the manner in which the Borrowing Base EBITDA Availability
is calculated, and [iii] as otherwise set forth herein.
NOW, THEREFORE, in consideration of the premises, and for
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, it is hereby agreed as follows:
ARTICLE I.
Amendments to Loan Agreement
Borrowers, Agent, and Lenders agree that, effective as of June
30, 2005 in each case, the Loan Agreement shall be modified as follows:
1.1 The definition of Borrowing Base EBITDA Availability contained in Section
2.1A[4], as applied to the financial statements of Borrowers for periods ending
on December 31, 2004 and thereafter, is amended as follows:
[4] "Borrowing Base EBITDA Availability" means, during the
period from and including December 31, 2004, and at all times thereafter, the
EBITDA Multiple times Borrowing Base EBITDA for the immediately preceding twelve
(12) consecutive calendar months for which the monthly financial statements
required by the Reporting Rider have been delivered.
As used in this Agreement, the term "EBITDA Multiple" for
purposes of determining Borrowing Base EBITDA Availability under this Section
2.1A[4] means 4.00.
1.2 June 30, 2008 is agreed to be the expiration date of the Original Term
referred to in Section 2.5 of the Loan Agreement.
1.3 The definition of "Borrowing Base EBITDA" contained in Section 11.1 is
amended by substituting "75%" for "25%" in the third line thereof.
1.4 The Borrowing Base Exhibit (ss.11.1) in the form attached to and made a part
of this Amendment is substituted for the form thereof in effect immediately
prior to the execution and delivery of this Amendment.
ARTICLE II.
Other Provisions
2.1 Borrowers hereby restate and confirm each of the representations, warranties
and covenants contained in the Loan Agreement and the other Loan Documents, as
modified by this Amendment. Without limitation of the preceding sentence,
Borrowers represent and warrant that this Amendment has been executed and
delivered by a representative of AFI for itself and on behalf of each of the
Borrowers duly authorized to do so and is valid and binding on Borrowers.
2.2 Borrowers agree to reimburse Agent for all expenses incurred by Agent and
Lenders in connection with the preparation, execution, delivery and performance
of this Amendment, including, without limitation, for reasonable fees of legal
counsel to Agent.
2.3 Except as expressly modified by this Amendment, all terms and conditions of
the Note(s), the Loan Agreement, the Mortgages and the other Loan Documents
shall remain in full force and effect as they were immediately prior to the
execution and delivery of this Amendment, and those terms and conditions as
modified are incorporated herein by this reference and shall govern this
Amendment in all respects. Upon the effectiveness of this Amendment, each
reference in the Note(s), the Loan Agreement and the other Loan Documents to the
terms "Loan Agreement," "hereunder," "hereof, "herein" or words of like import
shall mean and be deemed a reference to the Loan Agreement as modified by this
Amendment.
2.4 This Amendment may not be modified in any respect except in writing signed
by the party charged with such modification. This Amendment constitutes the
final, complete and exclusive agreement among Agent, Lenders and Borrowers
concerning its subject matter and neither the Agent, Lenders nor the Borrowers
are relying on any oral agreements or understandings of any nature whatsoever
with respect thereto.
2.5 This Amendment shall be governed by and construed in accordance with the
laws of the Commonwealth of Kentucky.
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IN TESTIMONY WHEREOF, witness the signatures on behalf of
Borrowers, Agent and Lenders effective as of the date first above written.
"Borrowers"
ALMOST FAMILY, INC., a Delaware corporation, for itself as a
Borrower and as agent for each of the other Borrowers under
the Loan Agreement
By: /s/ C. Steven Guenthner
------------------------
C. Steven Guenthner
Sr. Vice President and CFO
"Agent" and "Lenders"
JP MORGAN CHASE BANK, N.A., as Agent and for itself as a
Lender
By: /s/ Robert E. Miles
-----------------------
Robert E. Miles
First Vice President
Attachments
Borrowing Base Certificate Exhibit (ss.11.1)
Attachment to
Fourth Amendment to Loan Documents
Borrowing Base Certificate Exhibit (ss.11.1)
BORROWING BASE CERTIFICATE
(Almost Family, Inc. and the other Borrowers)
(All amounts and calculations are determined on a
consolidated basis for all Borrowers as of the
Certificate Effective Date in each case)
(000s omitted throughout)
1. Revolving Loan Commitment(s) Availability
A. Revolving Loan Commitment(s) $22,500
Less
B. The sum of the following Mandatory Prepayments, if the effect
of same is to reduce the Revolving Credit Commitment
[1] Proceeds of Asset Dispositions (as described in
Section 2.4B[2] of the
Loan Agreement) $_______________
Less
C. The Letter of Credit Reserve calculated, without duplication, as
follows:
[1 All reimbursement and other liabilities of Borrowers
or any of their Subsidiaries with respect to each
Lender Letter of Credit, whether contingent or
otherwise including:
[a] Amount available to be drawn or which may
become available
to be drawn $_______________
[b] All amounts which have been paid or made
available by any Lender issuing a Lender
Letter of Credit to the extent not
reimbursed $_______________
[c] All unpaid interest, fees and
expenses related thereto $_______________
[2] Letter of Credit Liability for Lender
Letters of Credit
(sum of C[1][a] through C[1][c]) $_______________
D. Revolving Loan Commitment Availability
(1A minus 1B minus 1C[2]) $_______________
2. Asset Availability
A. 85% of Eligible Accounts unpaid not more than
90/120 days (see attached Schedule) _______________
Plus
B. 60% of Eligible Accounts unpaid not more than
180/210 days $_______________
Plus
C. 50% of Eligible Inventory (not to exceed $750)$_______________
D. Asset Availability (2A plus 2B plus 2C) $_______________
3. Borrowing Base EBITDA Availability
A. 4.00 times EBITDA for preceding 12 months $_______________
4. Borrowing Base Availability
A. Borrowing Base (greater of 2D or 3A) $_______________
Less
B. Letter of Credit Liability for Lender
Letters of Credit (1C[2]) _______________
C. Borrowing Base Availability
(2A minus 2B) _______________
5. Maximum Revolving Loan Amount
A. Lesser of line 1D and line 4C $ _______________
B. Revolving Loans outstanding as of
Certificate Effective Date $ _______________
C. Availability as of Certificate Effective Date
(5A minus 5B) $ _______________
SCHEDULE OF ELIGIBLE ACCOUNTS RECEIVABLE
(All amounts and calculations are determined on a consolidated basis
for all Borrowers as of Calculation Effective Date in each case)
A. Gross Accounts Receivable $ _______________
Minus
B. Accounts that are not Eligible Accounts (See Section 2.1B for
complete criteria)
[1] Payable more than 180 days after date of
invoice issuance $ _______________
[2] Unpaid more than 180 days after due date specified in
invoice, or 210 days if no due
date was specified _______________
[3] Credits due from Borrowers to account
debtors of Borrowers _______________
[4] Account debtor located outside U.S. _______________
[5] Account debtor that an Agent has identified as having
unsatisfactory credit standing _______________
[6] Account (other than Medicare and Medicaid) for which
debtor is U.S. Government or instrumentality, and no
Assignment of Claims compliance _______________
[7] Account debtor is Affiliate of Borrowers or a
director, officer, agent, stockholder or employee of
any Borrower or any of their
Affiliates _______________
[8] Accounts as to which more than 25%
of aggregate accounts are unpaid more
than 180 days after due date
(210 if no due date specified) _______________
[9] Accounts subject to unresolved
dispute to extent of the dispute _______________
[10] Evidenced by instrument not in
possession of Agent, on behalf
of Lenders _______________
[11] Accounts not subject to first priority Lien of
Agent, on behalf of Lenders _______________
[12] Accounts subject to Lien of a Person other
than Agent not a Permitted Encumbrance_______________
[13] Accounts from account debtors subject to
bankruptcy or insolvency _______________
[14] Accounts from an account debtor in excess of 20% of
all Accounts due from that same
account debtor at the Certificate Date_______________
[15] Accounts for which account debtor's obligation
to pay is conditional (e.g., bill and hold;
consignment) _______________
[16] Account for which account debtor is located in
New Jersey or other applicable state and Borrower
hasn't either qualified there or filed Notice of
Business Activities Report or similar filing
_______________
[17] Accounts for which account debtor is creditor of
Borrower, to extent of credits owed by Borrower
_______________
[18] Subtotal [1 through 17] $ _______________
C. Eligible Accounts [A minus B18] $ _______________
AGING SUMMARY OF ACCOUNTS RECEIVABLE
------------------------------------
(All amounts and calculations are determined on a consolidated basis
for all Borrowers as of Certificate Effective Date in each case)
Current $___________________
1 to 30 days past due $___________________
31 to 60 days past due $___________________
61 to 90 days past due $___________________
91 to 120 days past due $___________________
121 to 150 days past due $___________________
151 to 180 days past due $___________________
Over 180 days past due $___________________
Total Accounts Receivable $___________________
(Reconcile to line 1 of calculation of
Eligible Accounts Receivable)
AGING SUMMARY OF ACCOUNTS PAYABLE
---------------------------------
(All amounts and calculations are determined on a consolidated basis
for all Borrowers as of Certificate Effective Date in each case)
Current $___________________
1 to 30 days past due $___________________
31 to 60 days past due $___________________
61 to 90 days past due $___________________
91 to 120 days past due $___________________
Over 120 days past due $___________________
Total Accounts Payable $___________________