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EXHIBIT 10.1
TERMINATION OF CREDIT AGREEMENT
THIS AGREEMENT (this "Agreement") is made and entered into on this
29th day of December, 2000, and made effective as of the 1st day of October,
2000, by and between:
AMEDISYS, INC. ("Amedisys"), a corporation organized and existing under
the laws of the State of Delaware, whose address for purposes of this
Agreement is 00000 Xxxx Xxxx, Xxxxx 000, Xxxxx Xxxxx, XX 00000,
appearing and acting herein by and through its [duly authorized
officer**]; and
HCA - THE HEALTHCARE COMPANY ("HCA"), formerly known as Columbia/HCA
Healthcare Corporation, a corporation organized and existing under the
laws of the State of Delaware, whose address for purposes of this
Agreement is Xxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, appearing and
acting herein by and through its undersigned duly authorized
representative.
RECITALS
WHEREAS, Amedisys and HCA are parties to that certain Asset Purchase
Agreement dated November 2, 1998 (the "Asset Purchase Agreement"), pursuant to
which Amedisys purchased certain assets of certain affiliates of HCA;
WHEREAS, Amedisys and HCA are parties to that certain Credit Agreement,
a copy of which is attached hereto as Exhibit "A," dated November 16, 1998 (the
"Credit Agreement"), pursuant to which HCA agreed to accept a promissory note as
payment of a portion of the purchase price under the Asset Purchase Agreement;
WHEREAS, pursuant to that certain promissory note, a copy of which is
attached hereto as Exhibit "B," dated December 1, 1998 (the "Note"), Amedisys
promised to pay to the order of HCA the principal sum of Fourteen Million Five
Thousand Nine Hundred Eighty Three and 27/100 Dollars, plus interest, on the
dates, at the rates per annum, and in the amounts provided in the Credit
Agreement;
WHEREAS, Amedisys and HCA are parties to that certain Loan Modification
Agreement, a copy of which is attached hereto as Exhibit "C," dated September
30, 1999 (the "Loan Modification Agreement"), pursuant to which Amedisys agreed
to make to HCA certain payments that were misdirected to Amedisys, and HCA
agreed to amend certain provisions of the Credit Agreement; and
WHEREAS, HCA is willing to terminate the Credit Agreement, and Loan
Modification Agreement, and to relieve Amedisys' obligations under the Note in
exchange for a cash payment from Amedisys and the issuance of warrants to
purchase Amedisys common stock, as set forth in that certain Master Warrant
Agreement entered into by Amedisys and HCA, a copy of which is attached hereto
as Exhibit "D," dated December 29th, 2000 ("Master Warrant Agreement").
NOW, THEREFORE, for and in consideration of the premises and agreements
contained herein and other good and valuable consideration, the receipt and
adequacy of which are hereby forever acknowledged and confessed, the parties
agree as follows:
1. Incorporation of Recitals. The recitals stated above shall be
incorporated herein as if fully stated.
** As corrected by hand. Original text read "Chief Executive Officer".
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2. Defined Terms. Unless otherwise defined herein, all terms used herein
that are defined in the Credit Agreement shall have the same meaning
herein as therein defined.
3. Termination of Agreements. The parties agree that as of the effective
date hereof, and subject to the satisfaction of the mutual obligations
of the parties contained herein, the Credit Agreement and the Loan
Modification Agreement shall be terminated, and the obligations of the
parties thereunder shall immediately cease, provided however, that the
complete and general release of HCA and its affiliates under Section
2.3 of the Loan Modification Agreement by Amedisys shall remain in full
force and effect.
4. Consideration to HCA. In consideration of HCA entering into this
Agreement and in full satisfaction of Amedisys' obligations under the
Credit Agreement, Loan Modification Agreement and the Note:
a. Cash Payment. Amedisys shall pay to HCA Nine Million and
no/100 ($9,000,000.00) Dollars, in immediately available funds
to an account designated by HCA upon execution of this
Agreement; and
b. Master Warrant Agreement. Amedisys and HCA shall enter into
the Master Warrant Agreement pursuant to which HCA shall be
issued warrants to purchase up to 200,000 shares of Amedisys,
Inc. common stock, subject to the terms and conditions therein
set forth.
5. Consideration to Amedisys. In consideration of Amedisys entering into
this Agreement and in full satisfaction of HCA's obligations under the
Credit Agreement, Loan Modification Agreement and the Note, HCA shall
cancel, as of the effective date hereof, the Note, and Amedisys shall
have no further obligations whatsoever, including, without limitation,
any obligation of payment of principal debt or interest, whether or not
accrued, thereunder. HCA does hereby warrant that it has not sold,
assigned, transferred, pledged, hypothecated or otherwise encumbered
the Note, and that HCA shall indemnify and hold Amedisys harmless for
any such sale, assignment, transfer, pledge, hypothecation or other
encumbrance of the Note, and for any presentation by a third party to
Amedisys for payment pursuant to the Note related to any such sale,
assignment, transfer, pledge, hypothecation or other encumbrance.
6. Release of Collateral. HCA will immediately take whatever steps
necessary to release in full any liens or encumbrances held in its
favor regarding the Collateral, including the filing of UCC-3
statements or the filing of other documents necessary to effectuate
said release.
7. Delivery of Stock Certificates. HCA acknowledges that certain stock
certificates representing stock holding of Amedisys were pledged and
delivered to HCA in connection with the Credit Agreement and Loan
Modification Agreement. HCA agrees to deliver possession of such
certificates to Amedisys at the time of execution of this Agreement.
8. Complete and General Release. In consideration of the terms and
conditions set forth
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herein, effective as of the date hereof, the parties hereto agree as
follows:
a. Amedisys hereby presently, generally, fully, finally, and
forever, releases, acquits, and discharges HCA and its
affiliates, past and present, from any and all theories of
recovery of whatsoever nature, whether known or now unknown,
or recognized by the law of any jurisdiction, including, but
no limited to, actions, causes of action, demands,
liabilities, suits and judgments, whether arising in equity or
under the common law or any contract or any statute, and from
any and all elements of relief or recovery of whatsoever
nature, whether known or now unknown, recognized by the law of
any jurisdiction, including, but not limited to, actual
damages of every description, such as economic loss, any other
item of loss or injury, statutory or any other type of damages
whatsoever, attorney's fees, prejudgment or post judgment or
other interest, equitable relief, and lost income, directly or
indirectly arising from or in connection with the Asset
Purchase Agreement, the Credit Agreement and the Loan
Modification Agreement and the transactions and agreements
contemplated therein or related thereto, including, but not
limited to, claims arising from representations and warranties
in the Asset Purchase Agreement, and the loaning of funds
under the Credit Agreement, as amended by the Loan
Modification Agreement. Notwithstanding the foregoing, this
release does not apply to the obligations of HCA under this
Agreement or to any action, cause of action, demand,
liability, suit or judgment brought by a third party against
Amedisys that is based in whole or in part upon the acts or
omissions of HCA or its affiliates.
b. HCA hereby presently, generally, fully, finally, and forever,
releases, acquits and discharges Amedisys and its affiliates,
past and present, from any and all theories of recovery of
whatsoever nature, whether known or now unknown, or recognized
by the law of any jurisdiction, including, but not limited to,
actions, causes of action, demands, liabilities, suits, and
judgments, whether arising in equity or under the common law
or any contract or any statute, and from any and all elements
of relief or recovery of whatsoever nature, whether known or
now unknown, recognized by the law of any jurisdiction,
including, but not limited to, actual damages of every
description, such as economic loss, any other item of loss or
injury, statutory or any other type of damages whatsoever,
attorney's fees, prejudgment or post judgment or other
interest, equitable relief, and lost income, directly or
indirectly arising from or in connection with the Asset
Purchase Agreement and the transactions and agreements
contemplated therein or related thereto, including, but not
limited to, claims arising from representations and warranties
in the Asset Purchase Agreement and claims related to the
payment of the loan under the Credit Agreement, as amended by
the Loan Modification Agreement. Notwithstanding the
foregoing, this release does not apply to any action, cause of
action, demand, liability, suit or judgment brought by a third
party against HCA that is based in whole or in part upon the
acts or omissions of Amedisys or its affiliates, does not
apply to the obligations of Amedisys under the terms of this
Agreement or the Master Warrant Agreement and does not apply
to the obligation of Amedisys to forward all Excluded Assets
(as defined in the Asset Purchase Agreement) to HCA, such
Excluded Assets include all misdirected Medicare payments.
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9. Authority of HCA. HCA has the right, power, legal capacity and
authority to enter into and perform HCA's obligations under this
Agreement and, no approval or consent of any person or entity other
than HCA is necessary in connection with the execution, delivery, or
performance of this Agreement by HCA. This Agreement constitutes a
legal and binding obligation of HCA, and is valid and enforceable
against HCA in accordance with its terms.
10. Authority of Amedisys. Amedisys has the right, power, legal capacity
and authority to enter into and perform Amedisys' obligations under
this Agreement and, no approval or consent of any person or entity
other than Amedisys is necessary in connection with the execution,
delivery, or performance of this Agreement by Amedisys. This Agreement
constitutes a legal and binding obligation of Amedisys, and is valid
and enforceable against Amedisys in accordance with its terms.
11. Miscellaneous.
a. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original
document and all of which shall constitute one instrument.
b. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors and assigns.
c. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware.
d. Notices. All notices and other communications provided for
herein shall be given or made in writing by facsimile,
courier, or U.S. Mail and faxed, mailed or delivered to the
intended recipient at the address stated above.
e. Null and Void. This Agreement shall be null and void if HCA
does not receive the funds described in Section 4a. hereof by
5:00 p.m. CST on December 29, 2000, unless other provisions
for the delivery of said funds are expressly agreed to by HCA.
f. Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties relating to
the subject matter hereof and supersede all prior agreements
and understanding, both written and oral, among the parties,
or any of them, with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written and effective as of
the 1st day of October, 2000.
HCA - THE HEALTHCARE COMPANY AMEDISYS, INC.
By: /s/ XXXXX XXXXXX By: /s/ XXXX XXXXXXXX
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Xxxx Xxxxxxxx, Xx. VP - Finance
Name: Xxxxx Xxxxxx
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Title: Vice President
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