EXHIBIT 10.41
AMENDED AND RESTATED LC ACCOUNT AGREEMENT
THIS AMENDED AND RESTATED LC ACCOUNT AGREEMENT (the "Agreement") dated as
of February 17, 1995, is made between VITAS HEALTHCARE CORPORATION, a Delaware
corporation (the "Pledgor"), and NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION
("NationsBank"), as Agent (in such capacity herein and together with any
successors in such capacity, the "Agent") for the Lenders (the "Lenders") party
to the Credit Agreement (as hereinafter defined).
RECITALS
WHEREAS, Pledgor, NationsBank as lender and NationsBank as agent entered
into a Revolving Credit and Reimbursement Agreement dated as of August 11, 1994
(the "Prior Credit Agreement") providing, inter alia, for the issuance of
letters of credit for the account of the Pledgor and, in connection therewith,
the Pledgor entered into an LC Account Agreement of even date with the Prior
Agreement between Pledgor and NationsBank as agent under the Prior Agreement
(the "Prior LC Account Agreement"); and
WHEREAS, Pledgor, the Lenders and the Agent are entering into an Amended
and Restated Revolving Credit, Term Loan and Reimbursement Agreement of even
date herewith (as the same may be amended, modified or restated from time to
time, the "Credit Agreement") amending the Prior Credit Agreement to, inter
alia, increase the credit facility made available to Pledgor thereunder and to
extend to Pledgor a term loan facility; and
WHEREAS, as a condition precedent to the Lenders' obligations to make the
Loans or to issue Letters of Credit under the Credit Agreement, Pledgor is
required to amend and restate the Prior LC Account Agreement by executing and
delivering to the Agent a copy of this Agreement on or before the Effective Time
(as hereinafter defined);
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants contained herein, Pledgor and the Agent hereby agree as
follows:
Section 1. Capitalized terms used in this Agreement shall have the
following meanings:
"Collateral" means (a) all funds from time to time on deposit in the LC
Account; (b) all Investments and all certificates and instruments from time to
time representing or evidencing such Investments; (c) all notes, certificates of
deposit, checks and other instruments from time to time hereafter delivered to
or otherwise possessed by the Agent for or on behalf of Pledgor in substitution
for or in addition to any or all of the Collateral described in clause (a) or
(b) above; (d) all interest, dividends,
cash, instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
Collateral described in clause (a), (b) or (c) above; and (e) to the extent not
covered by clauses (a) through (d) above, all proceeds of any or all of the
foregoing Collateral.
"Effective Time" means the Closing Date as defined in the Credit
Agreement.
"Investments" means those investments, if any, made by the Agent pursuant
to Section 5 hereof.
"LC Account" means the cash collateral account established and maintained
pursuant to Section 2 hereof.
"Secured Obligations" means (i) all obligations of Pledgor now existing or
hereafter arising under or in respect of the Credit Agreement or the Notes
(including, without limitation, Pledgor's obligations to pay principal and
interest and all other charges, fees, expenses, reimbursements, indemnities and
other payments related to or in respect of the obligations contained in the
Credit Agreement or the Notes) or any of the other Loan Documents; and (ii)
without duplication, all obligations of Pledgor now or hereafter existing under
or in respect of this Agreement, including, without limitation, with respect to
all charges, fees, expenses, reimbursements, indemnities and other payments
related to or in respect of the obligations contained in this Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Credit Agreement.
Section 2. LC Account; Cash Collateralization of Letters of Credit.
(i) Upon the earlier to occur of (i) the occurrence of an Event of
Default which shall not have been waived or (ii) the existence on the
Revolving Credit Termination Date of a Letter of Credit having an expiry
date later than the Revolving Credit Termination Date, the Agent shall
establish and maintain at the offices of NationsBank of North Carolina,
National Association at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx,
in the name of the Agent and under the sole dominion and control of the
Agent, a cash collateral account designated as NationsBank/Vitas
Healthcare Cash LC Account, (the "LC Account"). Pledgor is delivering to
the Agent, substantially simultaneously with the delivery of this
Agreement, a duly authorized and executed signature card, with account
number left blank, authorizing the opening of the LC Account. Without
limiting the provisions of Section 9 hereof, Pledgor hereby constitutes
and appoints the Agent as its true and lawful attorney-in-fact to complete
such signature card, and to deliver and utilize the same to open and
administer the LC Account as herein provided. The appointment in the next
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preceding sentence is coupled with an interest and shall be irrevocable as
long as any Letter of Credit or any Secured Obligations shall remain
outstanding or NationsBank remains obligated to issue Letters of Credit.
(ii) In the event that an Event of Default has occurred and is
continuing and Pledgor is required to pay, to Agent, without further
demand, an amount equal to the maximum amount remaining undrawn or unpaid
under the Letters of Credit in accordance with Article X of the Credit
Agreement, the Agent may (and if required by the Credit Agreement, the
Agent shall), upon receipt of any such amounts, exercise the remedies set
forth in Section 12 hereof and shall apply the proceeds as provided in the
Credit Agreement. In addition, in the event that on the Revolving Credit
Termination Date any Letter of Credit shall be outstanding having an
expiry date later than the Revolving Credit Termination Date, Pledgor
shall without further demand pay to the Agent, on or before the Revolving
Credit Termination Date, an amount equal to the maximum amount available
to be drawn under each such Letter of Credit. Any such amounts received by
the Agent shall be deposited in the LC Account. Upon a drawing under the
Letters of Credit in respect of which any amounts described above have
been deposited in the LC Account, the Agent shall apply such amounts to
reimburse NationsBank for the amount of such drawing. In the event the
Letters of Credit are cancelled or expire or in the event of any reduction
in the maximum amount available at any time for drawing under such Letters
of Credit (the "Maximum Available Amount"), the Agent shall apply the
amount then in the LC Account designated to reimburse NationsBank for any
drawings under the Letters of Credit less the Maximum Available Amount
immediately after such cancellation, expiration or reduction, if any,
first, to the cash collateralization of the Letters of Credit if Pledgor
has failed to pay all or a portion of the maximum amounts described above
and, second, to the payment in full of the outstanding Secured obligations
in the manner provided in the Credit Agreement.
(iii) Interest and other income received in respect of Investments
of any amounts deposited in the LC Account pursuant to clause (ii) of this
Section 2 shall be delivered by Agent to Pledgor on the last Business Day
of each calendar month or, if earlier, upon cancellation or expiration of
or full drawing and full reimbursement to NationsBank by the Pledgor of
the Maximum Available Amount for drawing under the Letters of Credit, as
the case may be, in respect of which such amounts were so deposited;
provided, however, that the Agent shall not deliver to Pledgor any such
interest or other income received in respect of Investments of any amounts
deposited in the LC Account pursuant to this Section 2 if an Event of
Default has occurred and is continuing or there
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remain outstanding any Secured Obligations which have not been
indefeasibly paid in full in cash.
(iv) In the event that an Event of Default shall have occurred, at
such time as there shall be Collateral on deposit with the Agent credited
to the LC Account, all Events of Default shall have been fully and
effectively waived, cured or rescinded pursuant to the terms of the Credit
Agreement and no Letters of Credit having an expiry date later than the
Revolving Credit Termination Date shall be outstanding, then such
Collateral credited to the LC Account shall be returned to the Pledgor,
except as otherwise required by applicable law.
Section 3. Pledge; Security for Secured Obligations. Pledgor hereby
pledges to the Agent (for itself and on behalf of the Lenders) a first priority
lien and security interest in the Collateral, as collateral security for the
prompt payment in full when due, whether at stated maturity, by acceleration or
otherwise (including, without limitation, the payment of interest and other
amounts which would accrue and become due but for the filing of a petition in
bankruptcy or the operation of the automatic stay under Section 362(a) of the
Bankruptcy Code), of all Secured Obligations.
Section 4. Delivery of Collateral. All certificates or instruments, if
any, representing or evidencing the Collateral shall be delivered to and held by
the Agent pursuant hereto and shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance reasonably satisfactory to the
Agent. In the event any Collateral is not evidenced by a certificate, a
notation, reflecting title in the name of the Agent or the security interest of
the Agent, shall be made in the records of the issuer of such Collateral or in
such other appropriate records as the Agent may require, all in form and
substance reasonably satisfactory to the Agent. The Agent shall have the right,
at any time and without notice to the Pledgor, to transfer to or to register in
the name of the Agent or any of its nominees any or all of the Collateral. In
addition, the Agent shall have the right at any time to exchange certificates or
instruments representing or evidencing Collateral for certificates or
instruments of smaller or larger denominations to the extent permitted by the
agreements governing such certificates or instruments.
Section 5. Investing of Amounts in the LC Account; Amounts held by the
Agent. Cash held by the Agent in the LC Account shall not be invested or
reinvested except as provided in this Section 5.
(i) Except as otherwise provided in Section 12 hereof, any funds on
deposit in the LC Account may, at the request of Pledgor, be invested by
the Agent so long as no Event of Default shall have occurred and be
continuing, in readily
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marketable cash equivalents (including without limitation certificates of
deposit of NationsBank); provided that no such investment shall be
permitted unless the first priority security interest of the Agent
hereunder shall be maintained at all times on terms acceptable to
NationsBank.
(ii) The Agent is hereby authorized to sell, and shall sell, all or
any designated part of the Collateral (A) so long as no Default or Event
of Default shall have occurred and be continuing, upon the receipt of
appropriate written instructions from an Authorized Representative or (B)
in any event if such sale is necessary to permit the Agent to perform its
duties hereunder or under the Credit Agreement. The Agent shall have no
responsibility for any loss in the value of the Collateral resulting from
Investments made pursuant hereto, including without limitation from
fluctuations in interest rates. Any interest on securities constituting
part of the Collateral and the net proceeds of the sale or payment of any
such securities shall be held in the LC Account by the Agent.
Section 6. Representations and Warranties. In addition to its
representations and warranties made pursuant to the Credit Agreement, Pledgor
represents and warrants to the Agent (for itself and as agent on behalf of the
Lenders) that Pledgor will be the legal and beneficial owner of the Collateral
free and clear of any Lien except for the lien and security interest created by
this Agreement.
Section 7. Further Assurances. Pledgor agrees that at any time and from
time to time, at its expense, it will promptly execute and deliver to the Agent
any further instruments and documents, and take any further actions, that may be
necessary or that the Agent may reasonably request, in order to perfect and
protect any security interest granted or purported to be granted hereby or to
enable the Agent to exercise and enforce its rights and remedies hereunder with
respect to any Collateral.
Section 8. Transfers and Other Liens. Pledgor agrees that it will not (a)
sell or otherwise dispose of any of the Collateral or any interest therein, or
(b) create or permit to exist any Lien upon or with respect to any of the
Collateral, except for the lien and security interest created by this Agreement.
Section 9. The Agent Appointed Attorney-in Fact. Pledgor hereby appoints
the Agent as its attorney-in-fact, with full authority in the place and stead of
Pledgor and in the name of Pledgor or otherwise, from time to time in the
Agent's reasonable discretion to take any action and to execute any instrument
which the Agent may reasonably deem necessary or advisable to accomplish the
purposes of the Agreement, including, without limitation, to receive, endorse
and collect all instruments made payable to Pledgor representing any payment,
dividend, or other distribution in respect of the Collateral or any part thereof
and to give full
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discharge for the same. In performing its functions and duties under this
Agreement, the Agent shall act solely for itself and as the agent of the Lenders
and the Agent has not assumed nor shall be deemed to have assumed any obligation
towards or relationship of agency or trust with or for Pledgor.
Section 10. The Agent May Perform. If Pledgor fails to perform within the
prescribed time period any agreement of Pledgor contained herein, or if no time
period is prescribed, within three days of request therefor, then after notice
to Pledgor, the Agent may itself perform, or cause performance of, such
agreement, and the reasonable expenses of the Agent incurred in connection
therewith shall be payable by Pledgor under Section 13 hereof.
Section 11. Standard of Care; No Responsibility For Certain Matters. In
dealing with the Collateral in its possession, the Agent shall exercise the same
care which it would exercise in dealing with its own property of a similar
nature, but it shall not be responsible for (a) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not the Agent has or is deemed to
have knowledge of such matters, (b) taking any steps to preserve rights against
any parties with respect to any Collateral (other than steps taken in accordance
with the standard of care set forth above to maintain possession of the
Collateral), (c) the collection of any proceeds, (d) any loss resulting from
Investments made pursuant to Section 5 hereof, or (e) determining (x) the
correctness of any statement or calculation made by Pledgor in any written or
telex (tested or otherwise) instructions, or (y) whether any deposit in the LC
Account is proper.
Section 12. Remedies upon Event of Default; Application of Proceeds. If
any Event of Default shall have occurred and be continuing:
(i) The Agent may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to
it, all the rights and remedies of a secured party on default under the
Uniform Commercial Code (the "Code") as in effect in the State of Florida
at that time, and the Agent may, without notice except as specified below,
sell the Collateral or any part thereof in one or more parcels at public
or private sale, at any exchange or broker's board or at any of the
Agent's offices or elsewhere, for cash, on credit or for future delivery,
and at such price or prices, and upon such other terms as the Agent may
deem commercially reasonable. Pledgor agrees that, to the extent notice of
sale shall be required by law, at least ten (10) days' notice to Pledgor
of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Agent shall not be obligated to make any sale of the Collateral regardless
of notice of sale having been given. The Agent may adjourn any public or
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private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(ii) Subject to the provisions of Section 2(ii) hereof, any cash
held by the Agent as Collateral and all cash proceeds received by the
Agent in respect of any sale of, collection from, or other realization
upon all or part of the Collateral shall be applied (after payment of any
amounts payable to the Agent pursuant to Section 13 hereof) by the Agent
to pay the Secured Obligations. Any surplus of such cash or cash proceeds
held by the Agent and remaining after payment in full of all Secured
Obligations shall be paid over to Pledgor or to whomsoever may be lawfully
entitled to receive such surplus.
Section 13. Expenses. In addition to any payments of expenses of Agent
pursuant to the Credit Agreement or the other Loan Documents, Pledgor agrees to
pay promptly to the Agent all the reasonable costs and reasonable expenses,
including reasonable attorneys fees and expenses, which the Agent may incur in
connection with (a) the custody or preservation of, or the sale of, collection
from, or other realization upon, any of the Collateral, (b) the exercise or
enforcement of any of the rights of the Agent hereunder, or (c) the failure by
Pledgor to perform or observe any of the provisions hereof.
Section 14. No Delay's Waiver, etc. No delay or failure on the part of the
Agent in exercising, and no course of dealing with respect to, any power or
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by the Agent of any power or right hereunder preclude other or
further exercise thereof or the exercise of any other power or right. The
remedies herein provided are to the fullest extent permitted by law cumulative
and are not exclusive of any remedies provided by law.
Section 15. Amendments, Etc. No amendment, modification, termination or
waiver of any provision of this Agreement, or consent to any departure by
Pledgor therefrom, shall in any event be effective without the written
concurrence of the Agent.
Section 16. Notices. Except as otherwise specifically provided herein, all
notices which are to be sent to Pledgor or Agent shall be given in accordance
with the Credit Agreement.
Section 17. Continuing Security Interest; Termination. This Agreement
shall create a continuing security interest in the Collateral (subject to the
provisions of Section 2(iv)) and shall (a) remain in full force and effect until
all Secured Obligations (other than Secured Obligations in the nature of
continuing indemnities or expense reimbursement obligations not yet due and
payable) shall have been indefeasibly paid in full in cash, the commitments or
other obligations of the Agent or any Lender to make
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any Loan under the Credit Agreement shall have expired and the Letters of Credit
shall have expired, (b) be binding upon Pledgor, its successors and assigns, and
(c) inure to the benefit of the Agent, the Lenders and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (c) and subject to the provisions of the Credit Agreement, any
Lender may assign or otherwise transfer any Note held by it to any other person
or entity, and such other person or entity shall thereupon become vested with
all the benefits in respect thereof granted to such Lender herein or otherwise.
Upon the indefeasible payment in full in cash of the Secured Obligations (other
than Secured Obligations in the nature of continuing indemnities or expense
reimbursement obligations not yet due and payable) and the cancellation or
expiration of the Letters of Credit and termination or expiration of all
commitments and other obligations of the Agent and any Lender to make any Loan,
Pledgor shall be entitled, subject to the provisions of Section 12 hereof, to
the return, upon its request and at its expense, of such of the Collateral as
shall not have been sold or otherwise applied pursuant to the terms hereof.
Section 18. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF FLORIDA WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF
CONFLICTS OF LAWS, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
FLORIDA. UNLESS OTHERWISE DEFINED HEREIN OR IN THE CREDIT AGREEMENT, TERMS
DEFINED IN ARTICLE 9 OF THE CODE ARE USED HEREIN AS THEREIN DEFINED.
Section 19. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST PLEDGOR WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF FLORIDA AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, PLEDGOR ACCEPTS FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT SUBJECT TO RIGHT OF
APPEAL. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO
BRING PROCEEDINGS AGAINST THE PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION.
Section 20. Successors and Assigns. Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party and all covenants, promises, and agreements
by or on behalf of Pledgor or by and on behalf of the Agent shall bind and inure
to the benefit of the successors and assigns of Pledgor, the Agent and the
Lenders.
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Section 21. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties on separate counterparts
and each such counterpart shall for all purposes be deemed an original, but all
such counterparts shall together constitute but one and the same Agreement.
Pledgor and the Agent hereby acknowledge receipt of a true, correct, and
complete counterpart of this Agreement.
Section 22. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 23. Headings. The section headings in this Agreement are inserted
for convenience of reference and shall not be considered a part of this
Agreement or used in its interpretation.
Section 24. Agency. Notwithstanding the foregoing references to the Agent,
Pledgor acknowledges and agrees that so long as NationsBank shall be the sole
Lender under the Credit Agreement, the term "Agent" shall mean NationsBank as
Lender. When and if there shall be more than one Lender party to the Credit
Agreement, then the term "Agent" shall refer to the Agent under the Credit
Agreement pursuant to the provisions of Article XI of the Credit Agreement, to
which reference is hereby made.
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IN WITNESS WHEREOF, Pledgor and the Agent have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
WITNESS: VITAS HEALTHCARE CORPORATION
/s/ [Signature Illegible] By: /s/ Xxxx X. Xxxxxxxxx
------------------- -----------------------------
Xxxx X. Xxxxxxxxx
/s/ [Signature Illegible] Vice President
-------------------
NATIONSBANK OF FLORIDA, NATIONAL
ASSOCIATION, as Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
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