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EXHIBIT 10.1.3
$20,000,000.00
AMENDMENT NO. 2
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
originally dated as of October 2, 2000 and
amended as of March 29, 2001
by and among
ODYSSEY HEALTHCARE, INC.
ODYSSEY HEALTHCARE OF CENTRAL INDIANA, INC.
ODYSSEY HEALTHCARE OF PENNSYLVANIA, INC.
ODYSSEY HEALTHCARE OF NEW JERSEY, INC.
ODYSSEY HEALTHCARE OF PHOENIX, INC.
ODYSSEY HEALTHCARE OF LAS VEGAS, INC.
ODYSSEY HEALTHCARE OF HOUSTON, INC.
ODYSSEY HEALTHCARE OF NEW ORLEANS, INC.
ODYSSEY HEALTHCARE OF GEORGIA, INC.
ODYSSEY HEALTHCARE OF DETROIT, INC.
ODYSSEY HEALTHCARE OF BIRMINGHAM, INC.
ODYSSEY HEALTHCARE OF CENTRAL TEXAS, INC.
ODYSSEY HEALTHCARE OF MILWAUKEE, INC.
ODYSSEY HEALTHCARE OF OKLAHOMA CITY, INC.
ODYSSEY HEALTHCARE OF DENVER, INC.
ODYSSEY HEALTHCARE OF NASHVILLE, INC.
ODYSSEY HEALTHCARE OF KANSAS CITY, INC.
HOSPICE OF HOUSTON, L.P.
ODYSSEY HEALTHCARE OPERATING A, LP
ODYSSEY HEALTHCARE OPERATING B, LP
ODYSSEY HEALTHCARE MANAGEMENT, LP
ODYSSEY HEALTHCARE GP, LLC
ODYSSEY HEALTHCARE LP, LLC
ODYSSEY HEALTHCARE HOLDING COMPANY
HNT HOSPICE OF NORTH TEXAS, INC.
and
XXXXXX HEALTHCARE FINANCE, INC.
Amended as of May 8, 2001
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AMENDMENT NO. 2 TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 2 TO THE AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment") is made this 24th day of August, 2001, to be
effective as of the 8th day of May, 2001, by and among ODYSSEY HEALTHCARE, INC.,
a Delaware corporation, ODYSSEY HEALTHCARE OF CENTRAL INDIANA, INC., a Delaware
corporation, ODYSSEY HEALTHCARE OF PENNSYLVANIA, INC., a Delaware corporation,
ODYSSEY HEALTHCARE OF NEW JERSEY, INC., a Delaware corporation, ODYSSEY
HEALTHCARE OF PHOENIX, INC., a Delaware corporation, ODYSSEY HEALTHCARE OF LAS
VEGAS, INC., a Delaware corporation, ODYSSEY HEALTHCARE OF HOUSTON, INC., a
Delaware corporation, ODYSSEY HEALTHCARE OF NEW ORLEANS, INC., a Delaware
corporation, ODYSSEY HEALTHCARE OF GEORGIA, INC., a Delaware corporation,
ODYSSEY HEALTHCARE OF DETROIT, INC., a Delaware corporation, ODYSSEY HEALTHCARE
OF BIRMINGHAM, INC., a Delaware corporation, ODYSSEY HEALTHCARE OF CENTRAL
TEXAS, INC., a Delaware corporation, ODYSSEY HEALTHCARE OF MILWAUKEE, INC., a
Delaware corporation, ODYSSEY HEALTHCARE OF OKLAHOMA CITY, INC., a Delaware
corporation, ODYSSEY HEALTHCARE OF DENVER, INC., a Delaware corporation, ODYSSEY
HEALTHCARE OF NASHVILLE, INC., a Delaware corporation, ODYSSEY HEALTHCARE OF
KANSAS CITY, INC., a Delaware corporation, and HOSPICE OF HOUSTON, L.P., a Texas
limited partnership (collectively, "Original Borrower"), and ODYSSEY HEALTHCARE
OPERATING A, LP, a Delaware limited partnership, ODYSSEY HEALTHCARE OPERATING B,
LP, a Delaware limited partnership, ODYSSEY HEALTHCARE MANAGEMENT, LP, a
Delaware limited partnership, ODYSSEY HEALTHCARE GP, LLC, a Delaware limited
liability company, ODYSSEY HEALTHCARE LP, LLC, a Delaware limited liability
company, ODYSSEY HEALTHCARE HOLDING COMPANY, a Delaware corporation, and HNT
HOSPICE OF NORTH TEXAS, INC., a Texas corporation (collectively, "New Borrowers"
and individually "New Borrower") and XXXXXX HEALTHCARE FINANCE, INC., a Delaware
corporation ("Lender").
RECITALS
A. Pursuant to that certain Amended and Restated Loan and Security
Agreement dated October 2, 2000 by and among Borrower and Lender, as amended by
that certain Amendment No. 1 dated March 29, 2001 (as amended hereby and as
further amended, modified and restated from time to time, collectively, the
"Loan Agreement"), Lender agreed to make available to Borrower a revolving
credit loan (the "Loan").
B. Original Borrower now wishes to add each New Borrower as a Borrower
under the Loan Agreement.
C. Odyssey HealthCare of North Texas, Inc., a Delaware corporation and
a Borrower under the Loan Agreement ("North Texas"), was dissolved on March 3,
1999, Odyssey HealthCare Operating A, Inc., a Delaware corporation f/k/a Odyssey
HealthCare of Northern California, Inc. and a Borrower under the Loan Agreement
("Operating A") was converted to Odyssey HealthCare Operating A, LP, a Delaware
limited partnership and a New Borrower
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under this Amendment on May 8, 2001, and Odyssey HealthCare Operating B, Inc., a
Delaware corporation and a Borrower under the Loan Agreement ("Operating B"),
was converted to Odyssey HealthCare Operating B, LP, a Delaware limited
partnership and a New Borrower under this Amendment, on May 8, 2001.
D. Original Borrower now wishes to delete each of North Texas,
Operating A and Operating B as a Borrower under the Loan Agreement.
E. The parties desire to correct the inadvertent omission of Odyssey
Healthcare of Central Texas, Inc., a Delaware corporation, Odyssey Healthcare of
Milwaukee, Inc., a Delaware corporation, Odyssey Healthcare of Oklahoma City,
Inc., a Delaware corporation, Odyssey Healthcare of Denver, Inc., a Delaware
corporation, Odyssey Healthcare of Nashville, Inc., a Delaware corporation,
Odyssey Healthcare of Kansas City, Inc., a Delaware corporation, and Hospice of
Houston, L.P., a Texas limited partnership (collectively "Omitted Original
Borrowers"), as Borrowers under the Loan Agreement.
F. The parties now desire to amend the Loan Agreement in accordance
with the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing, the terms and
conditions set forth in this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined in this Amendment, all
capitalized terms shall have the meanings assigned to such terms in the Loan
Agreement.
SECTION 2. ADDITION OF NEW BORROWERS. Original Borrower and Lender
agree that each New Borrower shall from and hereafter be a Borrower for all
purposes of the Loan Agreement and other documents. Accordingly, each New
Borrower hereby agrees to be bound by all of the conditions, covenants,
representations, warranties, and other agreements set forth in the Loan
Agreement, and hereby agrees to promptly execute all further documentation
required by Lender to be executed by such New Borrower, consistent with the
terms of the Loan Agreement. Lender hereby ratifies and consents to the
formation of each New Borrower.
SECTION 3. DELETION OF NORTH TEXAS AND OPERATING B. Original Borrower
and Lender agree that each of North Texas, Operating A and Operating B shall
from and hereafter be deleted as a Borrower for all purposes of the Loan
Agreement and other documents. Lender hereby ratifies and consents to the
dissolution of North Texas on March 3, 1999, the conversion of Operating A into
Odyssey HealthCare Operating A, LP, a Delaware limited partnership on May 8,
2001, and the conversion of Operating B into Odyssey HealthCare Operating B, LP,
a Delaware limited partnership, on May 8, 2001.
SECTION 4. CONFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each New
Borrower hereby confirms that all of the representations and warranties set
forth in Article IV of the Loan Agreement are true and correct with respect to
such New Borrower, and specifically represents and warrants to Lender that it
has good and marketable title to all of its respective Collateral, free and
clear of any lien or security interest in favor of any other person or entity.
SECTION 5. GRANT BY NEW BORROWERS OF SECURITY INTEREST. Consistent with
the intent of the parties, each undersigned New Borrower hereby grants to Lender
a continuing first
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priority lien on and security interest in, upon, and to the Collateral, pursuant
to and in accordance with the terms of Article III of the Loan Agreement.
SECTION 6. CONFIRMATION OF OMITTED ORIGINAL BORROWERS. The parties
acknowledge that each Omitted Original Borrower should have been included as a
Borrower under the Amended and Restated Loan and Security Agreement, and
Amendment No. 1 thereto. Each Omitted Original Borrower hereby (i) confirms that
all of the representations and warranties set forth in Article IV of the Loan
Agreement are true and correct with respect to such Omitted Original Borrower,
(ii) specifically represents and warrants to Lender that it has good and
marketable title to all of its respective Collateral, free and clear of any lien
or security interest in favor of any other person or entity, and (iii) confirms
the original grant to Lender of a continuing first priority lien on and security
interest in, upon, and to the Collateral, pursuant to and in accordance with the
terms of Article III of the Loan Agreement.
SECTION 7. ENFORCEABILITY. This Amendment constitutes the legal, valid
and binding obligation of each New Borrower and Omitted Original Borrower, and
is enforceable against each such New Borrower and Omitted Original Borrower in
accordance with its terms.
SECTION 8. COSTS. Borrower shall be responsible for the payment of all
costs of Lender incurred in connection with the preparation of this Amendment,
and all reasonable document preparation fees of Lender's in-house counsel.
SECTION 9. EFFECTIVE DATE. This Amendment shall be effective upon
execution and delivery to Lender of this Amendment by each Borrower.
SECTION 10. REFERENCE TO THE EFFECT ON THE LOAN AGREEMENT.
(a) Upon the effectiveness of this Amendment, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of similar import shall mean and be a reference to the Loan Agreement as
amended by this Amendment.
(b) Except as specifically amended above, the Loan Agreement,
and all other Loan Documents, shall remain in full force and effect, and are
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided in this Amendment, operate as
a waiver of any right, power or remedy of Lender, nor constitute a waiver of any
provision of the Loan Agreement, or any other documents, instruments and
agreements executed or delivered in connection with the Loan Agreement.
SECTION 11. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Maryland.
SECTION 12. HEADINGS. Section headings in this Amendment are included
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
SECTION 13. COUNTERPARTS. This Amendment may be executed in
counterparts, and both counterparts taken together shall be deemed to constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed as of the date first written above.
LENDER:
XXXXXX HEALTHCARE FINANCE, INC.
a Delaware corporation
By: /s/ J. XXXXXXX XXXXXX
----------------------------------------------
Name: J. Xxxxxxx Xxxxxx
--------------------------------------------
Title: Vice President
-------------------------------------------
BORROWER:
ODYSSEY HEALTHCARE, INC.
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF CENTRAL INDIANA, INC.
a Delaware corporation
By: /S/ XXXXXXX X. XXXXXX
----------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF PENNSYLVANIA, INC.
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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ODYSSEY HEALTHCARE OF NEW JERSEY,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF PHOENIX,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF LAS VEGAS,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF HOUSTON,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF NEW ORLEANS,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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ODYSSEY HEALTHCARE OF GEORGIA,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF DETROIT,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF BIRMINGHAM,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF CENTRAL TEXAS,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF MILWAUKEE,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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ODYSSEY HEALTHCARE OF OKLAHOMA CITY,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF DENVER,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF NASHVILLE,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
ODYSSEY HEALTHCARE OF KANSAS CITY,
INC., a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
HOSPICE OF HOUSTON, L.P.,
a Texas limited partnership
By: Odyssey HealthCare of Houston, Inc.,
a Delaware corporation and sole general
partner
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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ODYSSEY HEALTHCARE OPERATING B,
LP, a Delaware limited partnership
By: Odyssey HealthCare GP, LLC, a
Delaware limited liability company and sole
general partner
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer
ODYSSEY HEALTHCARE OPERATING A,
LP, a Delaware limited partnership
By: Odyssey HealthCare GP, LLC, a
Delaware limited liability company and
sole general partner
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer
ODYSSEY HEALTHCARE MANAGEMENT,
LP, a Delaware limited partnership
By: Odyssey HealthCare GP, LLC, a
Delaware limited liability company and sole
general partner
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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ODYSSEY HEALTHCARE HOLDING
COMPANY, a Delaware corporation
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer
and Secretary
ODYSSEY HEALTHCARE GP, LLC,
a Delaware limited liability company
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer
ODYSSEY HEALTHCARE LP, LLC,
a Delaware limited liability company
By: /s/ XXXXXXXX X. XXXXXXX
--------------------------------------------------
Xxxxxxxx X. Xxxxxxx, Manager, signed in
Phoenix, Az.
----------------------------
HNT HOSPICE OF NORTH TEXAS, INC.,
a Texas corporation
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial Officer and
Secretary
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