exv10w1






Exhibit 10.1




EXECUTION VERSION




AMENDMENT NO. 1 TO SECOND AMENDED

AND RESTATED CREDIT AGREEMENT




     This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”) is dated as of November 7, 2008 (the “Execution Date”), and is by and
among GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, individually as Lender and as
Agent for the Lenders (“Agent”), the other Lenders signatory hereto (each a
“Lender” and collectively, the “Lenders”), ODYSSEY HEALTHCARE OPERATING A, LP, a
Delaware limited partnership (“OpCoA”), ODYSSEY HEALTHCARE OPERATING B, LP, a Delaware
limited partnership (“OpCoB”), HOSPICE OF THE PALM COAST, INC., a Florida not for profit
corporation (“Palm Coast”), and VISTACARE, INC., a Delaware corporation
(“VistaCare”; OpCoA, OpCoB, Palm Coast and VistaCare being referred to together as the
“Borrowers” and each individually as a “Borrower”).



WITNESSETH:




     WHEREAS, pursuant to that certain Second Amended and Restated Credit Agreement dated as of
February 28, 2008, by and among Agent, the other Lenders signatory thereto from time to time, the
Borrowers and the other Credit Parties signatory thereto (as amended or otherwise modified from
time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise
defined herein shall have the meaning ascribed to such terms in the Credit Agreement), Agent and
Lenders agreed, subject to the terms and provisions thereof, to provide certain loans and other
financial accommodations to the Borrowers; and



     WHEREAS, the Borrowers desire that Agent and Lenders amend the Credit Agreement in certain
respects, as more fully set forth herein, and Agent and Lenders are agreeable to such request.



     NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     1. Amendments to Credit Agreement. Subject to the satisfaction of the conditions set
forth in Section 2 below, and in reliance on the representations and warranties set forth
in Section 4 below, the Credit Agreement is amended as follows:



     (a) Clause (c) of Section 6.2 of the Credit Agreement is hereby amended by deleting the
reference to “(the investments described in clauses (i) — (v) below and the
investments permitted in clause (d) below are collectively referred to as “Cash
Equivalents”)” and replacing it with the following:




“(the investments described in clauses (i) — (v) below are
collectively referred to as “Cash Equivalents”)”; and



     (b) Clause (d) of Section 6.2 of the Credit Agreement is hereby amended and restated and
replaced with the following:



 









 






“(d) the Credit Parties may hold investments comprised of auction rate securities
disclosed to Agent in writing in an aggregate amount not exceeding $17,100,000, but
only to the extent such investments were made prior to, and existed as of, the
Closing Date, and”.



     2. Consent to Assignment of Trademarks. The Borrowers have informed Agent and the
Lenders that VistaCare desires to sell, transfer, convey, assign and deliver to Odyssey HealthCare,
Inc., a Delaware corporation (“Holdings”), subject to the security interests granted under
the Collateral Documents, certain United States trademark registrations listed on Schedule
I attached hereto owned by VistaCare, pursuant to that certain Trademark Assignment to be dated
on or after the date hereof between Holdings and VistaCare. In reliance on the representations and
warranties set forth in this Amendment, Agent and the Requisite Lenders hereby consent to such
assignment subject to the terms and conditions contained herein. The foregoing consent is a
limited consent, which shall be effective only with respect to the specific facts set forth above.
Such limited consent shall not be deemed to constitute a consent or waiver of any other term,
provision or condition of the Credit Agreement or to prejudice any right or remedy that Agent or
Lenders may now have or may have in the future under or in connection with any of the Loan
Documents.



     3. Conditions. The effectiveness of this Amendment is expressly conditioned upon
Agent’s receipt (on behalf of itself and each of Lenders) from the Borrowers of the following, all
of which shall be in form and substance satisfactory to Agent:



     (a) This Amendment duly executed by each of the Borrowers and the Requisite Lenders;



     (b) Payment by the Borrowers to Agent, for the account of each consenting Lender that has
executed a signature page to this Amendment and delivered the same to Agent on or before 5:00 p.m.
(New York time) on November 7, 2008, of an amendment fee in immediately available funds in an
amount equal to $7,500.00 per consenting Lender, which fee is deemed fully earned and
non-refundable on payment thereof to Agent; and



     (c) Such other documents, instruments and agreements as Agent may reasonably request.



     4. Reference to and Effect on the Credit Agreement.



     (a) Upon the effectiveness of this Amendment, each reference in the Credit Agreement to “this
Agreement,” “hereunder,” “hereof,” “herein” or words of like import and each reference to the
Credit Agreement in each Loan Document shall mean and be a reference to the Credit Agreement, as
amended hereby.



     (b) Except as specifically amended above, all of the terms, conditions and covenants of the
Credit Agreement and the other Loan Documents shall remain unaltered and in full force and effect
and shall be binding upon each of the Borrowers and the other Credit Parties in all respects and
are hereby ratified and confirmed.



 









 





     (c) Except as specifically set forth above, the execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of (a) any right, power or remedy of any Lender or Agent
under the Credit Agreement or any of the Loan Documents, or (b) any Event of Default or Default
under the Credit Agreement.



     (d) This Amendment shall constitute a Loan Document.



     5. Representations and Warranties. To induce Agent and the Lenders to enter into this
Amendment, each Borrower hereby represents and warrants to Agent and the Lenders that:



     (a) Representations and Warranties. (i) No Default or Event of Default has occurred
or is continuing and (ii) no representation or warranty of any Credit Party contained in the Credit
Agreement or any of the other Loan Documents, including this Amendment, is untrue or incorrect in
any material respect as of the date hereof, except to the extent that such representation or
warranty expressly relates to an earlier date, in which case it shall be true and correct as of
such earlier date.



     (b) Power, Authorization, Enforceable Obligations. The execution, delivery and
performance by each Borrower of this Amendment: (a) are within such Borrower’s power; (b) have
been duly authorized by all necessary corporate, limited liability company or limited partnership
action; (c) do not contravene any provision of such Borrower’s charter, bylaws or partnership or
operating agreement as applicable; (d) do not violate any law or regulation, or any order or decree
of any court or Governmental Authority; (e) do not conflict with or result in the breach or
termination of, constitute a default under or accelerate or permit the acceleration of any
performance required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which such Person is a party or by which such Person or any of its property is bound;
(f) do not result in the creation or imposition of any Lien upon any of the property of such Person
other than those in favor of Agent, on behalf of itself and Lenders, pursuant to the Loan
Documents; and (g) do not require the consent or approval of any Governmental Authority or any
other Person. This Amendment has been duly executed and delivered by each Borrower and constitutes
a legal, valid and binding obligation of each Borrower enforceable against it in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of equity regardless of
whether considered in a proceeding in law or equity.



     6. Costs and Expenses. The Borrowers agree to pay on demand all reasonable costs and
expenses of Agent in connection with the preparation, execution and delivery of this Amendment,
including the reasonable fees and out-of-pocket expenses of counsel for Agent with respect thereto.



     7. Execution in Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement.



 









 





     8. Headings. Section headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any other purposes.



     9. Severability. Wherever possible, each provision of this Amendment shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Amendment shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Amendment.



     10. Incorporation of Credit Agreement. The provisions contained in Sections 11.9 and
11.13 of the Credit Agreement are incorporated herein by reference to the same extent as if
reproduced herein in their entirety.



[Signature Pages Follow]




 









 





     IN WITNESS WHEREOF, this Amendment has been executed as of the day and year first written
above.



	 	 	 	 	 	 	 	 	 
	 	 	BORROWERS:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ODYSSEY HEALTHCARE OPERATING A, LP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Odyssey HealthCare GP, LLC	 	 
	 	 	Its:	 	General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:

Name:
	 	/s/ R. Dirk Allison
 

R. Dirk Allison
	 	 
	 

	 	 	 	Title:
	 	Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ODYSSEY HEALTHCARE OPERATING B, LP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Odyssey HealthCare GP, LLC	 	 
	 	 	Its:	 	General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:

Name:
	 	/s/ R. Dirk Allison
 

R. Dirk Allison
	 	 
	 

	 	 	 	Title:
	 	Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	HOSPICE OF THE PALM COAST, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:

Name:
	 	/s/ R. Dirk Allison
 

R. Dirk Allison
	 	 
	 

	 	 	 	Title:
	 	Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	VISTACARE, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:

Name:
	 	/s/ R. Dirk Allison
 

R. Dirk Allison
	 	 
	 

	 	 	 	Title:
	 	Senior Vice President and Chief Financial Officer	 	 






Signature Page to Amendment No. 1




 









 





	 	 	 	 	 	 	 
	 	 	AGENT AND LENDERS:	 	 
	 
	 	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL CORPORATION, as Agent and
Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ John Dale	 	 
	 

	 	Name:
	 	John Dale

	 	 
	 

	 	Title:
	 	Duly Authorized Signatory	 	 






Signature Page to Amendment No. 1




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF TEXAS, NA, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Bianca A. Gulberti	 	 
	 

	 	Name:
	 	 

Bianca
A. Gulberti	 	 
	 

	 	Title:
	 	 
Vice
President
	 	 
	 

	 	 	 	 

	 	 






Signature Page to Amendment No. 1




 









 





	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Daniel Penkar	 	 
	 

	 	Name:
	 	 
Daniel
Penkar
	 	 
	 

	 	Title:
	 	 
Senior
Vice President
	 	 
	 

	 	 	 	 

	 	 






Signature Page to Amendment No. 1




 









 





	 	 	 	 	 	 	 
	 	 	COMPASS BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/
Key Coker 	 	 
	 

	 	Name:	 	Key Coker 	 	 
	 

	 	Title:
	 	Executive
Vice President 
	 	 






Signature Page to Amendment No. 1




 









 





	 	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Eva Szuen McQuillen 	 	 
	 

	 	Name:
	 	Eva Szuen McQuillen 
	 	 
	 

	 	Title:
	 	Bank
Officer 
	 	 






Signature Page to Amendment No. 1




 









 





	 	 	 	 	 	 	 
	 	 	SUNTRUST BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Helen C. Hartz 	 	 
	 

	 	Name:
	 	Helen C. Hartz 
	 	 
	 

	 	Title:
	 	Vice
President 
	 	 






Signature Page to Amendment No. 1




 









 





	 	 	 	 	 	 	 
	 	 	UNION BANK OF CALIFORNIA, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Richard A. Lopatt	 	 
	 

	 	Name:
	 	Richard
A. Lopatt

	 	 
	 

	 	Title:
	 	Vice
President

	 	 
	 

	 	 	 	 

	 	 






Signature Page to Amendment No. 1




 









 





	 	 	 	 	 	 	 
	 	 	WELLS FARGO FOOTHILL, LLC, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	/s/ Peter Freyer	 	 
	 

	 	Name:
	 	Peter Freyer

	 	 
	 

	 	Title:
	 	Vice
President

	 	 
	 

	 	 	 	 

	 	 






Signature Page to Amendment No. 1




 









 





SCHEDULE I

TRADEMARK REGISTRATIONS




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Registration Number /	 	 
	Title
	 	Status	 	Application Number	 	Registration Date
	Excellence Without Exception
	 	Registered	 	 	2,977,864	 	 	 	7/26/05	 
	VistaCare
	 	Registered	 	 	2,672,152	 	 	 	1/7/03	 
	VistaCare
Excellence Without Exception
	 	Registered	 	 	3,310,236	 	 	 	10/16/07