EXHIBIT 10.57
AMENDED AND RESTATED GUARANTY AND SURETYSHIP AGREEMENT
THIS AMENDED AND RESTATED GUARANTY AND SURETYSHIP AGREEMENT, dated as of
February 17, 1995 (the "Guaranty"), is made by VITAS HEALTHCARE CORPORATION OF
OHIO, a Delaware corporation (the "Guarantor"), to the parties named in Section
1 hereof. Except as otherwise defined herein, terms used herein defined in the
Credit Agreement referred to below shall be used herein as so defined.
W I T N E S S E T H:
WHEREAS, (i) pursuant to Revolving Credit and Reimbursement Agreement
dated as of August 11, 1994 (the "Prior Credit Agreement") among Vitas
Healthcare Corporation (the "Company"), NationsBank of Florida, National
Association ("NationsBank") and NationsBank as agent, NationsBank made available
to the Company a revolving credit facility in the aggregate principal amount of
up to $15,000,000, including within such revolving credit facility the issuance
of letters of credit for the account of the Company and (ii) pursuant to a
Guaranty and Contingent Purchase Agreement of even date with the Prior Credit
Agreement between the Company and NationsBank (the "Prior Guaranty" and,
together with the Prior Credit Agreement, the "Prior Agreements"), and a Loan
Agreement (as the same may be amended, modified or restated from time to time,
the "ESOP Loan Agreement") of even date with the Prior Credit Agreement between
NationsBank and the Vitas Healthcare Corporation Employee Stock Ownership Trust
(the "Trust" and, together with the Company, the "Borrowers"), NationsBank
extended a term loan of $2,386,670 to the Trust to refinance certain
indebtedness owing from the Trust to the Company; and
WHEREAS, in connection with the execution and delivery of the Prior
Agreements, the Guarantor entered into a Guaranty and Suretyship Agreement of
even date with the Prior Credit Agreement (the "Prior Subsidiary Guaranty")
guaranteeing the payment and performance of the obligations and liabilities of
the Borrowers under the Prior Credit Agreement and the ESOP Loan Documents; and
WHEREAS, the Company and Vitas Healthcare Corporation of California, a
Subsidiary of the Company ("Vitas California"), have entered into an Asset
Purchase Agreement with the Sellers (as defined in the Credit Agreement) dated
as of December 27, 1994 (the "Asset Purchase Agreement") pursuant to which Vitas
California has agreed to purchase substantially all of the operating assets of
the CHC Entities (as defined in the Credit Agreement) pursuant to the terms and
subject to the conditions set forth therein and, in connection therewith, the
Company has requested that the Prior Credit Agreement be amended and restated to
increase the revolving credit facility from $15,000,000 to $20,000,000, to
provide for a $25,000,000 term loan facility, and to make certain other
modifications, and that the Prior Guaranty be amended and restated to reflect
the agreement of the parties; and
WHEREAS, at the request of the Company and to effect the modifications
referred to above, (i) the Company, the Agent and the Lenders are entering into
an Amended and Restated Revolving Credit, Term Loan and Reimbursement Agreement
of even date herewith (as the same may be modified, amended or restated from
time to time, the "Credit Agreement" and, together with the ESOP Loan Agreement,
the "Agreements"), and (ii) the Company and NationsBank are entering into an
Amended and Restated Guaranty and Contingent Purchase Agreement of even date
herewith (as the same may be modified, amended or restated from time to time,
the "Company Guaranty"); and
WHEREAS, the Lenders are unwilling to amend and increase the revolving
credit facility or make such term loan pursuant to the Credit Agreement, and
NationsBank is unwilling to amend the Prior Agreements as reflected in the
Agreements to permit the consummation of the CHC Transaction, unless the
Guarantor amends and restates its Prior Subsidiary Guaranty by entering into
this Guaranty; and
WHEREAS, the Guarantor is a Subsidiary of the Company and has been or may
be provided with advances from the Company or other working capital made
available directly or indirectly by the Lenders under the Credit Agreement, and
has thereby materially benefitted or will materially benefit from the Loans made
to the Borrowers pursuant to the Credit Agreement and the ESOP Loan Agreement;
NOW, THEREFORE, in consideration of the premises, the Guarantor hereby
agrees as follows:
1. Guaranty and Surety. The Guarantor does hereby absolutely and
unconditionally for the benefit of (i) the Agent and the Lenders under the
Credit Agreement and (ii) NationsBank as lender under the ESOP Loan Agreement
(collectively, the "Beneficiaries"), guarantee and become surety for the full
and timely payment when due (whether by acceleration or otherwise) (including
amounts which, but for the operation of the automatic stay under Section 362(a)
of the Bankruptcy Code (or any successor statute), would become due) of:
A. All Obligations as defined in the Credit Agreement; and
B. All obligations and liabilities of the Trust under the ESOP Loan
Agreement and the other ESOP Loan Documents, including without limitation
its obligations to pay interest, principal, fees, expenses and
indemnification amounts when and as the same shall become due whether at
the stated maturity
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thereof, by acceleration or otherwise (the "ESOP Obligations").
in each case whether direct or indirect, joint or several, absolute or
contingent, liquidated or unliquidated, now or hereafter existing, extended,
renewed, replaced, refinanced or restructured, whether or not from time to time
decreased or extinguished and later increased, created or incurred (all
indebtedness, obligations and liabilities of the Borrowers described in this
Section 1 are collectively referred to as the "Guarantied Obligations");
provided, however, that the liability of the Guarantor with respect to the
Guarantied Obligations shall not exceed at any time the Maximum Amount (as
hereinafter defined). The "Maximum Amount" means the greater of (X) the
aggregate amount of all advances to the Guarantor made directly or indirectly
with the proceeds of Loans (as defined in the Credit Agreement) or (Y) 95% of
(a) the fair salable value of the assets of such Guarantor as of the date hereof
minus (b) the total liabilities of the Guarantor (including contingent
liabilities, but excluding liabilities of the Guarantor under this Guaranty and
the other Loan Documents and ESOP Loan Documents executed by the Guarantor) as
of the date hereof; provided further, however, that if the calculation of the
Maximum Amount in the manner provided above as of the date payment is required
of the Guarantor pursuant to this Guaranty would result in a greater positive
number, then the Maximum Amount shall be deemed to be such greater positive
number.
2. Guaranty of Payment. This is a guaranty of payment and not merely of
collection. In the event of any default by the original obligor in payment or
otherwise on any of the Guarantied Obligations, the Guarantor will pay all or
any portion of the Guarantied Obligations due or thereafter becoming due,
whether by acceleration or otherwise, without offset of any kind whatsoever,
without any Beneficiary first being required to make demand upon the original
obligor or pursue any of its rights against the original obligor, or against any
other Person, including other guarantors (whether or not party to this
Guaranty); and without being required to liquidate or to realize on any
collateral security. In any right of action accruing to any Beneficiary, such
Beneficiary may elect to proceed against (a) the Guarantor together with the
original obligor or obligors; (b) the Guarantor and the original obligor or
obligors individually; or (c) the Guarantor only without having first commenced
any action against the original obligor or obligors.
3. Right to Deal with Guarantied Obligations. Subject to the terms and
conditions of the Credit Agreement, any Beneficiary, without notice to
Guarantor, may deal with any Guarantied Obligations and any collateral security
therefor in such manner as it may deem advisable and may renew or extend the
Guarantied Obligations or any part thereof; accept partial payment, or settle,
release, compound, or compromise the same; demand additional collateral security
therefor, and substitute or release the same;
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and may compromise or settle with or release and discharge from liability any
other guarantor of any Guarantied Obligation, or any other Person liable to such
Beneficiary for all or any portion of the obligations of any original obligor;
all without impairing the liability of the Guarantor hereunder.
4. Other Waivers. Guarantor hereby unconditionally waives with respect to
this Guaranty: (a) notice of acceptance of this Guaranty by any Beneficiary and
any notice of the incurring by either or both of the Borrowers of any Guarantied
Obligation; (b) presentment for payment, protest, notice of protest and notice
of dishonor to any party including either of the Borrowers or the Guarantor; (c)
any disability of the original obligor or obligors or defense available to the
original obligor or obligors, including absence or cessation of any original
obligor's liability for any reason whatsoever; (d) any defense or circumstances
which might otherwise constitute a legal or equitable discharge of a guarantor
or surety except final and irrevocable payment in full of the Guaranteed
Obligations; and (e) all rights under any state or federal statute dealing with
or affecting the rights of creditors.
5. Subordination. Until the Guarantied Obligations are paid in full and no
Beneficiary is under any further obligation to lend or extend funds or credit
which would constitute Guarantied Obligations, Guarantor hereby unconditionally
subordinates all present and future debts, liabilities or obligations of the
Borrower to such Guarantor to the Guarantied Obligations, and all amounts due
under such debts, liabilities, or obligations shall, upon the occurrence and
during the continuance of an Event of Default, be collected and paid over
forthwith to the Beneficiaries on account of the Guarantied Obligations and,
pending such payment, shall be held by the Guarantor as agent and bailee of the
Beneficiaries separate and apart from all other funds, property and accounts of
the Guarantor. Guarantor, at the reasonable request of any Beneficiary, shall
execute such further documents in favor of such Beneficiary to further evidence
and support the purpose of this Section 5. Until (i) all of the Guarantied
Obligations and all of the Guarantor's obligations hereunder shall have been
paid and satisfied in full and (ii) the lapse or expiration of any time period
in which any payment in respect of the Guarantied Obligations or hereunder is
subject to avoidance as a preferential or similar transfer under any applicable
bankruptcy, insolvency or similar law without any such claim for avoidance
having been made, Guarantor hereby irrevocably waives and releases any right or
rights of subrogation, contribution or similar claims against either of the
Borrowers or any other guarantor of any of the Guarantied Obligations existing
at law, by contract or otherwise.
6. Representations and Warranties. Guarantor represents and warrants to
the Beneficiaries that: (a) no other agreement, representation or special
condition exists between the Guarantor and any Beneficiary regarding the
liability of the Guarantor under this Guaranty; nor does any understanding exist
between the
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Guarantor and any Beneficiary that the obligations of the Guarantor under this
Guaranty are or will be other than as set out herein; and (b) as of the date
hereof, the Guarantor has no defense whatsoever to any action or proceeding that
may be brought to enforce this Guaranty. Furthermore, the Guarantor affirms to
the Beneficiaries that each of the representations and warranties contained in
the Credit Agreement or the Company Guaranty and made by either of the Borrowers
with respect to the Guarantor is true and correct.
7. No Waiver by Beneficiaries. No failure or delay on the part of any
Beneficiary in exercising any right, power or privilege hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof, or
the exercise of any other right, power or privilege. Failure by any Beneficiary
to insist upon strict performance hereof shall not constitute a relinquishment
of its right to demand strict performance at another time. Receipt by any
Beneficiary of any payment by any person on any Guarantied Obligation, with
knowledge of a default on any Guarantied Obligation or of a breach of this
Guaranty, or both, shall not be construed as a waiver of the default or breach.
8. CONTINUING GUARANTY; TERMINATION. THIS GUARANTY IS A CONTINUING
GUARANTY AND SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL SUCH TIME AS ALL
GUARANTIED OBLIGATIONS SHALL HAVE BEEN INDEFEASIBLY PAID IN FULL (OTHER THAN
GUARANTIED OBLIGATIONS IN THE NATURE OF CONTINUING INDEMNITIES OR EXPENSE
REIMBURSEMENT OBLIGATIONS NOT YET DUE AND PAYABLE) AND NO BENEFICIARY SHALL BE
UNDER ANY FURTHER OBLIGATION TO LEND OR TO ADVANCE FUNDS OR ISSUE LETTERS OF
CREDIT TO THE ACCOUNT OF THE BORROWERS OR EITHER OF THEM CONSTITUTING GUARANTIED
OBLIGATIONS.
9. Benefits of Agreement. This Guaranty is freely assignable and
transferable by the Beneficiaries to any permitted assignee and transferee of
any Guarantied Obligation; however, the duties and obligations of the Guarantor
may not be delegated or transferred by the Guarantor without the written consent
of all Beneficiaries. The rights and privileges of the Beneficiaries shall inure
to the benefit of their respective successors and assigns, and the duties and
obligations of the Guarantors shall bind their respective successors and
assigns.
10. Expenses; Indemnity. The Guarantor will upon demand pay to each
Beneficiary the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents, which
it may reasonably incur in connection with enforcement of this Guaranty or the
failure by the Guarantor to perform or observe any of the provisions hereof. The
Guarantor agrees to indemnify and hold harmless each Beneficiary from and
against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, growing out
of or resulting from this Guaranty or
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the exercise by any Beneficiary of any right or remedy granted to it hereunder
or under the other Loan Documents or ESOP Loan Documents, other than such items
arising out of the bad faith, gross negligence or willful misconduct on the part
of such Beneficiary. If and to the extent that the obligations of the Guarantor
under this Section 10 are unenforceable for any reason, the Guarantor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
11. Amendments, Waivers and Consents. No amendment or waiver of any
provision of this Guaranty or consent to any departure by the Guarantor herefrom
shall in any event be effective unless the same shall be in writing and signed
(i) as to the Obligations, by the Guarantor and the Agent (which execution by
Agent shall be evidence that Agent has received the consent thereto of the
Lenders required to effect such amendment or waiver) and (ii) as to the ESOP
Obligations, the Guarantor and NationsBank, and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, that no such amendment, waiver or consent
shall (a) deprive any Beneficiary of the benefits generally of this Guaranty
without the written consent of such Beneficiary, or (b) alter the provisions of
this Section 11 without the written consent of all of the Beneficiaries.
12. Addresses for Notices. All notices and other communications provided
for hereunder shall be given in the manner set forth in Section 12.02 of the
Credit Agreement.
13. Interpretation; Partial Invalidity. Whenever possible each provision
of this Guaranty shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Guaranty.
14. Miscellaneous; Remedies Cumulative. Unless the context of this
Guaranty otherwise clearly requires, references to the plural include the
singular, the singular the plural and the part the whole and "or" has the
inclusive meaning represented by the phrase "and/or." The section headings used
herein are for convenience of reference only and shall not define, limit or
extend the provisions of this Guaranty. All remedies hereunder are cumulative
and are not exclusive of any other rights and remedies of the Beneficiaries
provided by law or under the Credit Agreement, the other Loan Documents, or
other applicable agreements or instruments. The making of the Loans to the
Borrowers pursuant to the Credit Agreement and the ESOP Loan Agreement shall be
presumed conclusively to have been made or extended, respectively, in reliance
upon the obligations of the Guarantor incurred pursuant to this Guaranty.
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15. Pari Passu Obligations. The Guarantor, and by their acceptance of the
benefits hereof each of the Beneficiaries, acknowledge that, in the event the
Maximum Amount payable hereunder shall be less than aggregate amount of the
Obligations and the ESOP Obligations payable by the Guarantor hereunder, the
Obligations and the ESOP Obligations shall rank pari passu with respect to the
application of proceeds of payments hereunder to such Obligations and ESOP
Obligations and, in accordance therewith, agree that such amounts, including
without limitation proceeds of collateral securing the Guarantor's obligations
hereunder, after payment of all expenses in connection with the administration
and liquidation of such collateral, shall be applied ratably to Obligations and
ESOP Obligations in accordance with the respective amounts thereof as of the
date of any application.
16. Governing Law. This Guaranty shall in all respects be governed by the
law of the State of Florida. Guarantor and the Beneficiaries each hereby (i)
submits to the jurisdiction and venue of the state and federal courts of Florida
for the purposes of resolving disputes hereunder or under any of the other Loan
Documents to which it is a party or for the purpose of collection and (ii)
waives trial by jury in connection with any such litigation.
17. Repayment or Recovery. If claim is ever made upon any Beneficiary for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guarantied Obligations and any of the Beneficiaries repays all or
part of said amount by reason of (a) any judgment, decree or order of any court
or administrative body having jurisdiction over such payee or any of its
property, or (b) any settlement or compromise of any such claim effected by such
Beneficiary with any such claimant (including the original obligor), then and in
such event the Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon it, notwithstanding any
revocation hereof or the cancellation of any Note or other instrument evidencing
any Guarantied Obligation or any security therefor, and the Guarantor shall be
and remain liable to the aforesaid Beneficiary for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by any such Beneficiary.
18. Set-Off. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence and during the continuance of an Event of Default (as defined in
either of the Agreements), Guarantor agrees that each Beneficiary shall have a
lien for all the liabilities of the Guarantor upon all deposits or deposit
accounts, of any kind (other than deposits identified as being held for third
parties), or any interest in any deposits or deposit accounts thereof, now or
hereafter pledged, mortgaged, transferred or assigned to such Beneficiary or
otherwise in the possession or control of such Beneficiary (other than for
safekeeping) for any
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purpose for the account or benefit of the Guarantor and including any balance of
any deposit account or of any credit of the Guarantor with such Beneficiary,
whether now existing or hereafter established, hereby authorizing each
Beneficiary at any time or times, upon the occurrence and during the continuance
of an Event of Default, with or without prior notice (but with notice with
reasonable promptness after such set-off) to apply such balances or any part
thereof to such of the liabilities of the Guarantor to such Beneficiary then
past due and in such amounts as they may elect, and whether or not the
collateral or the responsibility of other Persons primarily, secondarily or
otherwise liable may be deemed adequate. For the purposes of this Section 18,
all remittances and property shall be deemed to be in the possession of such
Beneficiary as soon as the same may be put in transit to it by mail or carrier
or by other bailee.
19. Security. As security for the payment and performance by the Guarantor
of its obligations hereunder, the Guarantor has delivered to the Beneficiaries
an Amended and Restated Pledge and Security Agreement of even date herewith,
granting to the Beneficiaries a security interest in certain property of the
Guarantor therein specified.
20. References to Credit Agreement Definitions. In the event that the
Credit Agreement shall no longer be in effect at any time while this Guaranty
shall continue in effect or there shall otherwise continue to remain outstanding
Guarantied Obligations, all references to the Credit Agreement, including terms
defined by reference to their respective definitions contained in the Credit
Agreement, shall be deemed to refer to the Credit Agreement as in effect as of
the date hereof, with such amendments thereto to which the remaining
Beneficiaries shall have given express consent in accordance with the Loan
Documents and the ESOP Loan Documents.
21. Agency. Notwithstanding the foregoing references to the Beneficiaries,
Guarantor 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, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officers hereunto duly authorized as of the date
first above written.
WITNESS: VITAS HEALTHCARE CORPORATION OF
OHIO
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------- -------------------------------------
Name: Xxxx X. Xxxxxxxxx
/s/ Xxxxxxx Xxxxxx Title: Vice President
--------------------------------
Address: 000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone No. (000) 000-0000
Telefacsimile No. (000) 000-0000
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