exv10w1



 




Exhibit 10.1


CONSENT AND AMENDMENT NO. 1 TO CREDIT AGREEMENT




     This CONSENT AND AMENDMENT NO. 1 TO CREDIT AGREEMENT (this “Amendment”) is
dated as of November 1, 2004, and is by and among GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, individually as a Lender and as Agent for
the Lenders (“Agent”), 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”; OpCoA, OpCoB and Palm Coast being referred to
together as the “Borrowers” and each individually as a “Borrower”), the other
Credit Parties signatory hereto and the other Lenders signatory hereto.



W I T N E S S E T H:




     WHEREAS, pursuant to that certain Credit Agreement dated as of May 14,
2004, by and among Agent, the Lenders from time to time party thereto
(“Lenders”), Borrowers and the other Credit Parties signatory from time to time
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 Borrowers;



     WHEREAS, Holdings desires to make payments to purchase or redeem its Stock
(or warrants, options or other rights to acquire such Stock) in an aggregate
amount not to exceed $30,000,000 (the “Stock Repurchase”); and



     WHEREAS, Borrowers desire that Agent and Lenders (i) consent to
consummation of the Stock Repurchase and (ii) amend the Credit Agreement in
certain respects;



     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. Consent. Subject to the satisfaction of the conditions set
forth in Section 3 below, and in reliance on the representations and warranties
set forth in Section 6 below, Agent and the undersigned Lenders hereby consent
to the consummation of Stock Repurchase using the Credit Parties’ unrestricted
cash on hand so long as (a) no proceeds of Revolving Credit Advances are used
to consummate the Stock Repurchase, (b) no Default or Event of Default exists
at the time of any such payment or would occur as a result thereof and (c) at
the time of the consummation of the Stock Repurchase, (i) Credit Parties are in
compliance with all disclosure requirements under all applicable securities
laws and (ii) the Credit Parties shall have publicly disclosed all known
material facts relating to any pending or threatened claim, suit, action,
investigation, proceeding or demand by the United States Department of Justice
or any other Governmental Authority of the Credit Parties; provided,
that payments made in connection with the consummation of the Stock Repurchase
shall be deemed to reduce the amount of payments permitted to be made by Holdings pursuant to



 









 




Section 6.14(e) of the Credit Agreement. 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.




     2. Amendment. Subject to the satisfaction of the conditions set
forth in Section 3 below, and in reliance on the representations and warranties
set forth in Section 6 below, the defined term “Indebtedness” set forth in
Annex A to the Credit Agreement is hereby amended and restated in its entirety
as follows:




     “ ‘Indebtedness’ means, with respect to any Person,
without duplication, (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property
payment for which is deferred six months or more, but excluding
obligations to trade creditors incurred in the ordinary course of
business that are unsecured and not overdue by more than six
months unless being contested in good faith, (b) all reimbursement
and other obligations with respect to letters of credit, bankers’
acceptances and surety bonds, whether or not matured, (c) all
obligations evidenced by notes, bonds, debentures or similar
instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect
to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property),
(e) all Capital Lease Obligations and the present value
(discounted at the Index Rate as in effect on the Closing Date) of
future rental payments under all synthetic leases, (f) all
obligations of such Person under commodity purchase or option
agreements or other commodity price hedging arrangements, in each
case whether contingent or matured, (g) all obligations of such
Person under any foreign exchange contract, currency swap
agreement, interest rate swap, cap or collar agreement or other
similar agreement or arrangement designed to alter the risks of
that Person arising from fluctuations in currency values or
interest rates, in each case whether contingent or matured, (h)
all Indebtedness referred to above secured by (or for which the
holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property or other
assets (including accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable
for the payment of such Indebtedness, (i) the Obligations and (j)
all damages, penalties and fines incurred as a result of or
related to any claim, suit, action, investigation, proceeding or
demand by the United States Department of Justice or any other
Governmental Authority to the extent such damages, penalties or
fines are as a result of, arising from or in connection with an
investigation or action by the United States Department of
Justice.”



     3. Conditions. The effectiveness of this Amendment is subject to
the satisfaction of the following conditions precedent or concurrent:



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     (a) Agent shall have received this Amendment executed by
Borrowers and the Requisite Lenders;




     (b) All proceedings taken in connection with the transactions
contemplated by this Amendment and all documents, instruments and
other legal matters incident thereto shall be satisfactory to
Agent, Lenders and their respective legal counsel; and




     (c) No Default or Event of Default shall have occurred and be
continuing, both before and after giving effect to the provisions
of this Amendment.



     4. Post Closing Covenants. Subject to the satisfaction of the
conditions set forth in Section 3 above, and in reliance on the representations
and warranties set forth in Section 6 below, Agent and Lenders hereby waive the
closing requirements set forth in subsections E(a)(iii) and E(b) of Annex D to
the Credit Agreement as conditions to the making of the initial Revolving
Credit Advance and the incurrence of the initial Letter of Credit Obligations.
In consideration thereof, Borrowers have agreed to satisfy the following items
within the time periods set forth therein and failure to do so shall be deemed
to be an immediate Event of Default under the Credit Agreement:




     (a) Within 30 days of the date hereof, Borrowers shall
deliver Control Letters from (i) all issuers of uncertificated
securities and financial assets held by each Borrower, (ii) all
securities intermediaries with respect to all securities accounts
and securities entitlements of each Borrower, and (iii) all
futures commission agents and clearing houses with respect to all
commodities contracts and commodities accounts held by any
Borrower; and




     (b) Within 30 days of the date hereof, Borrowers shall
deliver evidence, satisfactory to Agent, that the assets acquired
by the Credit Parties from Alternative Healthcare System, Inc.
d/b/a Hospice of Southwest Louisiana are free and clean of Liens
other than Liens permitted under Section 6.7.



     5. References; Effectiveness. Agent, Lenders and Borrowers hereby
agree that, upon the effectiveness of this Amendment, all references to the
Credit Agreement which are contained in any of the other Loan Documents shall
refer to the Credit Agreement as modified by this Amendment.



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




     (a) All representations and warranties contained in the
Credit Agreement and the other Loan Documents are true and correct
in all material respects on and as of the date of this Amendment,
in each case as if then made, other than representations and
warranties that expressly relate



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solely to an earlier date (in which case such representations
and warranties remain true and accurate on and as of such earlier
date);




     (b) This Amendment constitutes the legal, valid and binding
obligation of such Borrower and is enforceable against such
Borrower in accordance with its terms;




     (c) There is no Default or Event Default in existence and
none would result from the consummation of the transactions
described in, and the subject of, this Amendment;




     (d) The execution and delivery by each Borrower of this
Amendment does not require the consent or approval of any person
or entity, except such consents and approvals as have been
obtained; and




     (e) No information contained in any Financial Statements,
reports, notices, proxy statements, registration statements,
prospectuses or press releases made publicly available by any
Credit Party to its security holders or filed by any Credit Party
with any securities exchange or with the Securities and Exchange
Commission or any governmental or private regulatory authority
contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary to make
the statements contained therein not misleading in light of the
circumstances under which they were made.



     7. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Amendment.



     8. Continued Effectiveness. Except as modified hereby, the Credit
Agreement and each of the Loan Documents shall continue in full force and
effect according to its terms and each such Loan Document is hereby ratified in
all respects.



[Signature page follows]




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



	 	 	 	 	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL CORPORATION,
	 	 	as Agent and a Lender
	 
	 	 	 	 	 	 	 	 
	 	 	By: /s/ Brent Shepherd
	 	 	Name: Brent Shepherd
	 	 	Title: Duly Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	 	 	BORROWERS:
	 
	 	 	 	 	 	 	 	 
	 	 	ODYSSEY HEALTHCARE OPERATING A, LP
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Odyssey HealthCare GP, LLC	 	 
	 	 	Its:	 	General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: /s/ Douglas B. Cannon	 	 
	

	 	 	 	Name:
	 	Douglas B. Cannon	 	 
	

	 	 	 	Title:
	 	Senior Vice President and Chief	 	 
	

	 	 	 	 	 	Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ODYSSEY HEALTHCARE OPERATING B, LP
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Odyssey HealthCare GP, LLC	 	 
	 	 	Its:	 	General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: /s/ Douglas B. Cannon	 	 
	

	 	 	 	Name:
	 	Douglas B. Cannon	 	 
	

	 	 	 	Title:
	 	Senior Vice President and Chief	 	 
	

	 	 	 	 	 	Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	HOSPICE OF THE PALM COAST, INC.
	 	 	 	 	By: /s/ Douglas B. Cannon	 	 
	

	 	 	 	Name:
	 	Douglas B. Cannon	 	 
	

	 	 	 	Title:
	 	Senior Vice President and Chief	 	 
	

	 	 	 	 	 	Financial Officer	 	 







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	 	 	CREDIT PARTIES:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	ODYSSEY HEALTHCARE, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By: /s/ Douglas B. Cannon	 	 
	 	 	Name: Douglas B. Cannon	 	 
	 	 	Its: Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	ODYSSEY HEALTHCARE HOLDING COMPANY	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By: /s/ Douglas B. Cannon	 	 
	 	 	Name: Douglas B. Cannon	 	 
	 	 	Title: Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	ODYSSEY HEALTHCARE GP, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By: /s/ Douglas B. Cannon	 	 
	 	 	Name: Douglas B. Cannon	 	 
	 	 	Title: Senior Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	ODYSSEY HEALTHCARE LP, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By: /s/ Beth Imlay	 	 
	 	 	Name: Beth Imlay	 	 
	 	 	Title: Manager	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	ODYSSEY HEALTHCARE MANAGEMENT, LP	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By Odyssey HealthCare GP, LLC, its general partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By: /s/ Douglas B. Cannon
	 	 	 	 	Name: Douglas B. Cannon
	

	 	 	 	Title:
	 	Senior Vice President and Chief Financial	 	 	 	 
	

	 	 	 	 	 	Officer	 	 	 	 








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