EXHIBIT 10.14
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GENTIVA HEALTH SERVICES, INC.,
as Depositor
WILMINGTON TRUST COMPANY,
as Property Trustee and Delaware Trustee
THE ADMINISTRATIVE TRUSTEES
AND
THE SEVERAL HOLDERS
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Amendment No. 1
Dated as of June 30, 2000
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To
Trust Agreement, Dated as of March 9, 2000,
Among Gentiva Health Services, Inc., as Depositor,
Wilmington Trust Company, as Property Trustee,
and Delaware Trustee, the Administrative Trustees
named therein and the Several Holders (as defined therein)
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AMENDMENT NO. 1 TO THE TRUST AGREEMENT
AMENDMENT NO. 1 to the TRUST AGREEMENT (this "Amendment No. 1"), dated as
of June 30, 2000, among Gentiva Health Services, Inc., a Delaware corporation
(the "Company"), Wilmington Trust Company, a Delaware corporation, as Property
Trustee and Delaware Trustee (the "Trustee"), the Administrative Trustees named
in the Trust Agreement (as defined herein) (the "Administrative Trustees") and
the several Holders (as defined in the Trust Agreement).
RECITALS OF THE COMPANY
WHEREAS, the Company, the Trustee and the Administrative Trustees
heretofore executed and delivered an Trust Agreement, dated as of March 9, 2000
(the "Trust Agreement") (capitalized terms used but not otherwise defined in
this Amendment No. 1 shall have the meanings ascribed to such terms in the Trust
Agreement); and
WHEREAS, pursuant to the Trust Agreement, Gentiva Trust (the "Trust")
issued and the Trustee authenticated and delivered 400,000 Preferred Securities
and 12,371 Common Securities (collectively, the "Trust Securities"); and
WHEREAS, the Company and the Trust desire to amend the Trust Agreement to
provide that on and after the date hereof, pursuant to the Trust Agreement, (i)
the Distribution Dates in respect of the Trust Securities will be January 15,
April 15, July 15 and October 15, commencing on July 15, 2000 and (ii) the
Distribution 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, the Holders have consented to this Amendment No. 1 prior to the
date hereof in accordance with the Trust Agreement; and
WHEREAS, pursuant to Section 11.3(c) of the Trust Agreement, the parties
hereto are entering into this Amendment No. 1 to provide that on and after the
date hereof (i) Distributions on the Trust Securities will only be on January
15, April 15, July 15 and October 15, commencing on July 15, 2000 and will
otherwise be in accordance with the Trust Agreement and (ii) the Distribution
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
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WHEREAS, this Amendment No. 1 has been duly authorized by all necessary
action on the part of the Trust and the Company.
NOW, THEREFORE, the Company, the Trust and the Administrative Trustees
hereby covenant and agree with the Trustee for the equal and proportionate
benefit of all Holders of the Debentures, as follows:
SECTION 1. Amendment of Certain Sections of Trust Agreement. Subject to the
other provisions hereof, the Trust Agreement and the Trust Securities are hereby
amended and supplemented in the following respects:
(a) Section 4.1(a)(i) of the Trust Agreement is hereby amended by
deleting the second sentence of such subparagraph and replacing it with the
following:
"Distributions will accrue from March 15, 2000, and, except in the
event (and to the extent) that the Depositor exercises its right to defer
the payment of interest on the Debentures pursuant to the Indenture, will
be payable quarterly in arrears on January 15, April 15, July 15 and
October 15 of each year, commencing on July 15, 2000."
(b) Section 11.3(c) of the Trust Agreement is hereby amended by adding
the following sentence to the end of such section:
"Notwithstanding the foregoing, the Distribution 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."
(c) The Trust Securities 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, the Trustee and the Administrative
Trustees, the Trust Agreement and the Trust Securities shall be amended in
accordance herewith, and this Amendment No. 1 shall amend and form a part of the
Trust Agreement and the Trust Securities for all purposes, and every Holder of
Trust Securities heretofore or hereafter authenticated and delivered under the
Trust Agreement shall be bound thereby.
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SECTION 3. Trust Agreement Remains in Full Force and Effect. Except as
amended hereby, all provisions in the Trust Agreement shall remain in full force
and effect.
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 Trust
Securities 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 Administrative
Trustees, 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 Trust Agreement 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 Delaware.
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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.
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.
Edward A. Blechschmidt,
as Administrative Trustee
By: /s/ Edward A. Blechschmidt
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Name:
Patricia C. Ma,
as Administrative Trustee
By: /s/ Patricia C. Ma
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Name:
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John J. Collura,
as Administrative Trustee
By: /s/ John J. Collura
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Name:
Gentiva Health Services, Inc.
By: /s/ Patricia C. Ma
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Name:
Title:
Wilmington Trust Company,
as Property Trustee and Delaware Trustee
By: /s/ Mary C. St. Amand
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Name: Mary C. St. Amand
Title: Assistant Vice President
