EXHIBIT 10.48
AMENDMENT NO. 7 TO
AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND REIMBURSEMENT AGREEMENT
AND RELATED DOCUMENTS
THIS AMENDMENT NO. 7 TO AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN AND
REIMBURSEMENT AGREEMENT AND RELATED DOCUMENTS (the "Amendment") dated as of
September 1, 1997, is made by and among VITAS HEALTHCARE CORPORATION, a Delaware
corporation (the "Borrower"), and NATIONSBANK, NATIONAL ASSOCIATION (successor
by merger of NationsBank, National Association (South)), a national banking
association (the "Lender"), and NATIONSBANK, NATIONAL ASSOCIATION (SOUTH), as
Agent for the Lender;
W I T N E S S E T H:
WHEREAS, the Lender, by an Amended and Restated Revolving Credit, Term Loan
and Reimbursement Agreement dated as of February 17, 1995, as amended by
Amendment No. 1 dated as of June 30, 1995, by Amendment No. 2 dated March 28,
1996, by a letter agreement dated August 5, 1996, by Amendment No. 3 dated
September 30, 1996, by Amendment No. 4 dated as of November 1, 1996, by
Amendment No. 5 dated as of February 15, 1997 and by Amendment No. 6 dated as of
March 24, 1997, as amended by letter dated June 30, 1997 (the "Agreement"), has
agreed to make available and has made available to Borrower a Revolving Credit
Facility (as defined in the Agreement) of up to $18,000,000 and a Term Loan (as
defined in the Agreement) of $14,000,000; and
WHEREAS, in connection with the loan by the Lender to the ESOP (as defined
in the Agreement), the Borrower executed and delivered to the Lender the ESOP
Guaranty (as defined in the Agreement); and
WHEREAS, the Borrower has requested that the Revolving Credit Termination
Date and the Term Loan Maturity Date provided for in the Agreement be extended
as herein specified and that certain other terms and conditions of the Agreement
be further amended as herein provided; and
WHEREAS, the Lender is willing to extend the maturity dates on a short-term
basis so long as certain provisions of the Agreement are further amended; and
WHEREAS, the Lender and the Borrower have agreed to amend the Agreement in
the manner set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions herein set forth, it is hereby agreed as follows:
1. The term "Agreement" as used herein and in the Agreement, the
Guaranties, the Notes and the other Loan Documents (each as defined in the
Agreement), and the term "Revolving Credit Agreement" as used in the ESOP
Guaranty and the other ESOP Loan Documents (as defined in the Agreement)
shall mean the Agreement as heretofore and hereby amended and modified.
Unless the context otherwise requires, all capitalized terms used herein and
in the other Loan Documents without definition shall have the respective
meanings provided therefor in the Agreement.
2. Subject to and upon satisfaction of the conditions set forth in
paragraph 6 hereof, the Agreement shall be and hereby is amended as follows:
(a) The definition of "Applicable Interest Addition" in Section 1.01 is
amended in its entirety so that as amended it shall read as follows:
"'Applicable Interest Addition'" means, for each Revolving Credit Loan
that bears interest at a LIBOR Rate that percent per annum, which shall be
based upon the Consolidated EBITDA for the two, three and four quarter
periods ending on the dates specified below:
TWO THREE FOUR FOUR FOUR
QUARTERS QUARTERS QUARTERS QUARTERS QUARTERS
ENDING ENDING ENDING ENDING ENDING INTEREST
9/30/97 12/31/97 3/31/98 6/30/98 9/30/98 ADDITION
---------------- ---------------- ---------------- ---------------- ---------------- -----------
Consolidated a) Less than a) Less than a) Less than a) Less than a) Less than 2 1/2%
EBITDA $6,500,000 $10,000,000 $14,000,000 $16,000,000 $18,000,000
is
b) Equal to or b) Equal to or b) Equal to or b) Equal to or b) Equal to or 2 1/4%
Greater than Greater than Greater than Greater than Greater than
$6,500,000 $10,000,000 $14,000,000 $16,000,000 $18,000,000
but Less than but Less than but Less than but Less than but Less than
$8,000,000 $12,000,000 $16,000,000 $18,000,000 $20,000,000
c) Equal to or c) Equal to or c) Equal to or c) Equal to or c) Equal to or 2%
Greater than Greater than Greater than Greater than Greater than
$8,000,000 $12,000,000 $16,000,000 $18,000,000 $20,000,000
The Applicable Interest Addition shall be established at the end of
each of the above periods (the "Determination Date") beginning September
30, 1997. Any change in the Applicable Interest Addition shall be
determined based upon the computations set forth in the certificate
furnished to the Agent pursuant to Section 8.01, subject to review and
approval of such computations by the Agent, and shall be effective
commencing on the day following the date such certificate is received,
until the day following the date on which a new certificate is delivered
or is required to be delivered, whichever shall first occur. If the
Borrower shall fail to deliver any such certificate within the time
period required by Section 8.01, then the Applicable Interest Addition
shall be 2 1/2% until the appropriate certificate is delivered. From the
date of Amendment No. 7 to this Agreement until the receipt of the
certificate for
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the period ending September 30, 1997, the Applicable Interest Addition
shall be 2.5%."
(b) The definitions of "Revolving Credit Termination Date" in
Section 1.01 is hereby amended in its entirety so that as amended it
shall read as follows:
"'Revolving Credit Termination Date' means the earlier of
(i) October 1, 1998, (ii) the occurrence of a Significant
Recapitalization Event, (iii) termination of Lenders' obligations
pursuant to Section 10.01 upon the occurrence of an Event of Default,
or (iv) such date as the Borrower may voluntarily permanently terminate
the Revolving Credit Facility by payment in full of all Obligations
(including the discharge of all Obligations of NationsBank and the
Lenders with respect to the Letters of Credit and Participation);"
(c) The definition of "Term Loan Maturity Date" in Section 1.01 is
hereby amended in its entirety so that as amended it shall read as
follows:
"'Term Loan Maturity Date' means the earlier of (i) October 1,
1998, (ii) the occurrence of a Significant Recapitalization Event or
(iii) such date as the Term Loans shall become due and payable pursuant
to Section 10.01 upon the occurrence of an Event of Default or (iv)
such date as the Borrower shall pay in full the Term Loan;"
(d) A new definition, "Significant Recapitalization Event", is added
to Section 1.01 immediately following the definition of "Single Employer
Plan" which definition shall read as follows:
"'Significant Recapitalization Event' means, with respect to the
Borrower and its Subsidiaries, a debt or equity offering generating
minimum gross proceeds of $15,000,000;"
(e) A new definition, "Minimum Liquidity", is added to Section 1.01
immediately following the definition of "Maturity Extension Conditions"
which definition shall read as follows:
"'Minimum Liquidity' means, with respect to the Borrower and its
Subsidiaries, the sum of cash or cash equivalents and amounts available
under the Revolving Credit Facility;"
(f) Section 9.02 is hereby amended by deleting the quarterly
Consolidated EBITDA chart and substituting in lieu thereof the following:
Consolidated
"Fiscal Quarter Ending EBITDA
---------------------- -------------
September 30, 1997 $ 3,400,000
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December 31, 1997 $ 3,800,000
March 31, 1998 $ 4,000,000
June 30, 1998 $ 4,200,000
September 30, 1998 $ 4,400,000"
(g) Article IX is hereby amended by adding a new financial
covenant after Section _________ which financial covenant shall read as
follows:
"9._______ Minimum Liquidity. Permit Minimum Liquidity to be
less than $4,000,000."
(h) Section 10.01(o) is hereby amended by deleting the clause
"February 28, 1998" and substituting in lieu thereof the clause "October
1, 1998".
(i) Section 10.01(p) is hereby amended in its entirety so that as
amended it shall read as follows:
(p) if the Borrower shall not have executed and delivered
to the Agent by September 30, 1997 a second Warrant Certificate
and a second Warrant Agreement evidencing the Agent's right to
purchase up to 291,918 shares of the Borrower's common stock, par
value $.001 per share ("Common Stock"), subject to the terms and
conditions thereof."
3. (a) Notwithstanding the terms and conditions of the Warrant
Agreement and Warrant Certificate executed and delivered by Borrower to
Lender in connection with Amendment No. 6 to the Agreement (the "Amendment
No. 6 Warrants"), Lender hereby (i) irrevocably waives any adjustments to the
number of shares of Borrower's common stock issuable under the amendment No.
6 Warrants and any adjustments to the exercise price therefor in connection
with the issuance by Borrower of any additional warrants to Lender in
connection with this Amendment (the "Amendment No. 7 Warrants") or in
connection with the exercisability of the Amendment No. 7 Warrants and (ii)
agrees and stipulates that to the extent any provisions of the Amendment No.
6 Warrants may be interrupted in any manner inconsistent with the waiver set
forth in clause (i) above, Lender hereby irrevocably waives any rights to any
adjustments based upon any such interpretations.
(b) Further, for purposes of the terms and conditions of the Amendment
No. 6 Warrants and the Amendment No. 7 Warrants, any substantial amendment
and restatement of the terms of the Credit Agreement which, in effect and
operation, is the substantial equivalent of the establishment of a new credit
facility, shall operate as a satisfaction of, and not an amendment to, the
Obligations hereunder.
4. Subject to and upon satisfaction of the conditions set forth in
paragraph 6 hereof, Section 5.10 of the ESOP Guaranty shall be and hereby is
amended as follows:
(a) Section 5.02 is hereby amended by deleting the quarterly
Consolidated EBITDA chart and substituting in lieu thereof the following:
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Consolidated
"Fiscal Quarter Ending EBITDA
---------------------- -------------
September 30, 1997 $ 3,400,000
December 31, 1997 $ 3,800,000
March 31, 1998 $ 4,000,000
June 30, 1998 $ 4,200,000
September 30, 1998 $ 4,400,000"
(b) Section 6.01(n) is hereby amended by deleting the clause
"February 28, 1998" and substituting in lieu thereof the clause
"October 1, 1998".
(c) Section 6.01(o) hereby in is amended in its entirety so that as
amended it shall read as follows:
"(o) if the Guarantor shall not have executed and delivered
to the Agent by September 30, 1997 a Warrant Certificate and a
Warrant Agreement evidencing the Agent's right to purchase up
to 291,918 shares of the Guarantor's common stock, par value
$.001 per share ("Common Stock"), subject to the terms and
conditions thereof."
5. Each of the Subsidiaries of the Borrower who has previously delivered a
Guaranty to the Agent has joined in the execution of this Amendment for the
purposes of consenting to this Amendment and affirming its guaranty and of the
Obligations of Borrower arising under the Agreement and the other Loan Documents
as amended by this Amendment, and of its other undertakings and obligations
under each of the other Loan Documents and ESOP Loan Documents to which it is a
signatory.
6. The Borrower hereby represents and warrants to the Agent and the Lender
that as of the date hereof the Agreement has been re-examined by the Borrower
and:
(i) The representations and warranties made by the Borrower therein and
in the other Loan Documents (including the Schedules to the Agreement and
the other Loan Documents) as modified to give effect to the information
contained in the disclosure schedules delivered by the Borrower (the "Vitas
Disclosure Schedules") in connection with its execution and delivery of the
Apria Acquisition Agreement and the financial and other information
previously provided to the Agent and the Lender by the Borrower in writing
(the "Vitas Information"), are true, complete and correct in all material
respects on and as of the date hereof, and shall survive the execution and
delivery of this Amendment;
(ii) The execution, delivery and performance of this Amendment will not
conflict with or result in the breach of any of the provisions of, or cause
a default under, the Articles of Incorporation or Bylaws of the Borrower, or
any applicable law, rule or regulation, or any judgment, order, writ,
injunction or decree of any court, administrative agency or other government
instrumentality to which the Borrower or any Subsidiary is subject or any
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agreement or instrument to which the Borrower or any Subsidiary is a party,
the effect of which would have any material adverse effect on the ability of
the Borrower or any Guarantor to observe the covenants and agreements
contained in the Agreement or in any other Loan Document or any of the CHC
Transaction Documents or to pay the Obligations, and will not result in the
creation or imposition of any security interest, lien, charge or encumbrance
on any of the assets of the Borrower or any Subsidiary.
7. As conditions to the effectiveness of this Amendment:
A. the Borrower shall have delivered to the Agent:
(a) counterparts of this Amendment duly executed by the
Borrower and each of the Guarantors; and
(b) such other documents and certifications as the Agent or the
Lender may reasonably request.
B. there shall not have occurred either (i) any Default or Event of
Default which shall not have been waived or (ii) any material adverse change
in the business, financial condition or operations of the Borrower or any
Subsidiary since September 30, 1996, except as disclosed in the Vitas
Disclosure Schedules, the Vitas Information and other than the termination
of the Apria Transaction.
8. This Amendment sets forth the entire understanding and agreement of
the parties hereto in relation to the subject matter hereof and supersedes
any prior negotiations and agreements among the parties relative to such
subject matter. No promise, condition, representation or warranty, express or
implied, not herein set forth shall bind any party hereto, and none of them
has relied on any such promise, condition, representation or warranty. Each
of the parties hereto acknowledges that, except as in this Amendment
otherwise expressly stated, no representations, warranties or commitments,
express or implied, have been made by any party to the other.
9. Except as specifically amended, modified or supplemented by this
Amendment, all of the other documents delivered in connection with the Loans, as
heretofore amended, shall remain in full force and effect according to their
respective terms.
10. Should any stamp or excise tax become payable under the laws of the
United States or of any state or any subdivision thereof or municipality therein
in respect of this Amendment, the Borrower shall pay the same (including
interest penalties, if any) and shall hold the Lender and the Agent harmless
with respect thereto.
11. This Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original as against any party whose signature
appears thereon, and all of which shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their duly authorized officers, all as of the day and year first
above written.
VITAS HEALTHCARE CORPORATION
WITNESS:
By: /s/ Xxxxx Xxxxxx
------------------------- -------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
------------------------- Title: Chief Financial Officer
----------------------------
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GUARANTORS:
VITAS HEALTHCARE CORPORATION
OF FLORIDA
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: Vice President
----------------------------
VITAS HEALTHCARE CORPORATION
OF OHIO
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: Vice President
----------------------------
VITAS HEALTHCARE CORPORATION
OF PENNSYLVANIA
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: Vice President
----------------------------
VITAS HEALTHCARE CORPORATION
OF CALIFORNIA
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: Vice President
----------------------------
VITAS HEALTHCARE CORPORATION
OF CENTRAL FLORIDA
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: Vice President
----------------------------
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NATIONSBANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
---------------------------------
Title: Senior Vice President
--------------------------------
NATIONSBANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
---------------------------------
Title: Senior Vice President
--------------------------------
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