EXHIBIT 10.15
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GENTIVA HEALTH SERVICES, INC.
AND
WILMINGTON TRUST COMPANY,
Trustee
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Amendment No. 1
Dated as of June 30, 2000
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To
Indenture, Dated as of March 15, 2000,
Between Gentiva Health Services, Inc. and
Wilmington Trust Company,
as Trustee
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AMENDMENT NO. 1 TO THE INDENTURE
AMENDMENT NO. 1 to the INDENTURE (this "Amendment No. 1"), dated as of June
30, 2000, between Gentiva Health Services, Inc., a Delaware corporation (the
"Company"), and Wilmington Trust Company, a Delaware corporation, as Trustee
(the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee heretofore executed and delivered an
Indenture and the Debentures, dated as of March 15, 2000 (the "Indenture")
(capitalized terms used but not otherwise defined in this Amendment No. 1 shall
have the meanings ascribed to such terms in the Indenture); and
WHEREAS, pursuant to the Indenture, the Company issued and the Trustee
authenticated and delivered $20,618,600 aggregate principal amount of the
Company's 10% Convertible Subordinated Debentures due 2005 (the "Debentures");
and
WHEREAS, the Company desires to amend the Indenture to provide that on and
after the date hereof (i) the Interest Payment Dates in respect of the
Debentures will be January 15, April 15, July 15 and October 15, commencing on
July 15, 2000 and (ii) the Interest Payment Dates may be modified from time to
time in the future by action of the Board of Directors of the Company without
the consent of the Holders; and
WHEREAS, pursuant to Section 9.2 of the Indenture, the parties hereto are
entering into this Amendment No. 1 to provide that on and after the date hereof
(i) interest payments on the Debentures will only be on January 15, April 15,
July 15 and October 15, commencing on July 15, 2000 and otherwise in accordance
with the Indenture and (ii) the Interest Payment Dates may be modified from time
to time in the future by action of the Board of Directors of the Company without
the consent of the Holders; and
WHEREAS, this Amendment No. 1 has been duly authorized by all necessary
corporate action on the part of the Company.
NOW, THEREFORE, the Company hereby covenants and agrees with the Trustee
for the equal and proportionate benefit of all Holders of the Debentures, as
follows:
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SECTION 1. Amendment of Certain Sections of Indenture. Subject to the other
provisions hereof, the Indenture and the Debentures are hereby amended and
supplemented in the following respects:
(a) Section 2.2 of the Indenture is hereby amended by deleting
references to "January 1, April 1, July 1 and October 1 of each year,
commencing on July 1, 2000" and replacing it with "January 15, April 15,
July 15 and October 15 of each year, commencing July 15, 2000".
(b) Section 3.1 of the Indenture is hereby amended by deleting the
first sentence of the third paragraph and replacing it with the following:
"The Debentures shall bear interest at the rate of 10.0% per annum,
from March 15, 2000 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
quarterly (subject to deferral as set forth herein) in arrears, on January
15, April 15, July 15 and October 15 of each year, commencing July 15, 2000
until the principal thereof is paid or made available for payment."
(c) Section 9.2 is hereby amended by adding the following sentence to
such section as the penultimate paragraph of such section:
"Notwithstanding the foregoing, the Interest Payment Dates may be
modified from time to time on and after the date hereof by action of the
Board of Directors of the Company, without the consent of the Holders and
with prior notice to the Trustee."
(d) The Debentures shall be modified to reflect the foregoing.
SECTION 2. Effect of Amendment No. 1. Upon the execution and delivery of
this Amendment No. 1 by the Company and the Trustee, the Indenture and the
Debentures shall be amended in accordance herewith, and this Amendment No. 1
shall amend and form a part of the Indenture and the Debentures for all
purposes, and every Holder of Debentures heretofore or hereafter authenticated
and delivered under the Indenture shall be bound thereby.
SECTION 3. Indenture Remains in Full Force and Effect. Except as amended
hereby, all provisions in the Indenture shall remain in full force and effect.
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SECTION 4. Conflict with Trust Indenture Act. If any provision of this
Amendment No. 1 limits, qualifies or conflicts with any provision of Sections
310 through 317, inclusive, of the Trust Indenture Act, which provision imposes
duties on any Person, the applicable provisions of Sections 310 through 317,
inclusive, of the Trust Indenture Act shall control.
SECTION 5. Separability Clause. In case any provision in this Amendment No.
1 shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 6. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 7. Benefits of Amendment No. 1, Etc. Nothing in this Amendment No.
1, express or implied, shall give to any Person, other than the parties hereto
and thereto and their successors hereunder and the Holders of the Debentures
from time to time, any benefit or any legal or equitable right, remedy or claim
under this Amendment No. 1.
SECTION 8. Successors and Assigns. All covenants and agreements in this
Amendment No. 1 by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 9. Trustee Not Responsible for Recitals. The recitals contained
herein shall be taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Amendment No. 1.
SECTION 10. Certain Duties and Responsibilities of the Trustee. In entering
into this Amendment No. 1, the Trustee shall be entitled to the benefit of every
provision of the Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee, whether or not elsewhere herein so
provided.
SECTION 11. Governing Law. This Amendment No. 1 shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 12. Counterparts. This Amendment No. 1 may be executed in
counterparts, each of which, when so executed, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed and attested, all as of the date and year first above written.
GENTIVA HEALTH SERVICES, INC.
By: /s/ Patricia C. Ma
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Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Mary C. St. Amand
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Name: Mary C. St. Amand
Title: Assistant Vice President