EXHIBIT 10.47
AMENDMENT NO. 6 TO
AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND REIMBURSEMENT AGREEMENT
AND RELATED DOCUMENTS
THIS AMENDMENT NO. 6 TO AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN
AND REIMBURSEMENT AGREEMENT AND RELATED DOCUMENTS (the "Amendment") dated as of
March 24, 1997, is made by and among VITAS HEALTHCARE CORPORATION, a Delaware
corporation (the "Borrower"), and NATIONSBANK, NATIONAL ASSOCIATION (SOUTH)
(successor by merger of NationsBank of Florida, National Association), 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 and by
Amendment No. 5 dated as of February 15, 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 $8,850,000 and a Term Loan (as defined in
the Agreement) of $25,000,000; 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
one, two and three quarter periods ending on the dates specified
below:
Quarter Two Quarters Three Quarters
Ending Ending Ending Interest
6/30/97 9/30/97 12/31/97 Addition
-----------------------------------------------------------------
Consolidated a) Less than a) Less than a) Less than 2 1/2%
EBITDA $4,000,000 $6,500,000 $10,000,000
is
b) Equal to or b) Equal to or b) Equal to or 2 1/4%
Greater than Greater than Greater than
$4,000,000 $6,500,000 $10,000,000
but Less than but Less than
$8,000,000 $12,000,000
c) N/A c) Equal to or c) Equal to or 2%
Greater than Greater than
$8,000,000 $12,000,000
The Applicable Interest Addition shall be established at the end of
each of the above periods (the "Determination Date") beginning June
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
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Interest Addition shall be 2 1/2% until the appropriate certificate
is delivered. From the date of Amendment No. 6 to this Agreement
until the receipt of the certificate for the period ending June 30,
1997, the Applicable Interest Addition shall 2 1/2%."
(b) The definitions of each of "Revolving Credit Termination Date"
and "Term Loan Maturity Date" in Section 1.01 are amended by deleting
clause (i) and substituting in lieu thereof the following clause (i): "(i)
February 28, 1998";
(c) The definition of "Total Revolving Credit Commitment" in Section
1.01 is amended by deleting the amount "$8,850,000" and substituting in
lieu thereof the amount "$18,000,000";
(d) The definition of "Total Term Loan Commitment" in Section 1.01
is amended by deleting the amount "$25,000,000" and substituting in lieu
thereof the amount "$14,000,000";
(e) A new definition, "Consolidated EBITDA", is added to Section
1.01 immediately following the definition of "Consolidated Current
Liabilities" which definition shall read as follows:
"'Consolidated EBITDA' means, with respect to the Borrower and
its Subsidiaries, for any period of computation thereof Consolidated
EBITDAR less Consolidated Rentals;"
(f) Section 2.02 is hereby amended in its entirety so that as
amended it shall read as follows:
"2.02 Term Loan.
(a) Amount. Subject to the terms and conditions of this
Agreement, the Borrower and Lender agree that effective March 24,
1997 a $11,000,000 portion of the outstanding Term Loan shall be
converted to a Revolving Credit Loan to bear interest in accordance
with Section 2.01, so long as after giving effect to such transfer
and the borrowing of such amount pursuant to Section 2.01, the
amount of outstanding Revolving Credit Loans plus the amount of all
Outstanding Letters of Credit shall not exceed the Borrowing Base.
On March 24, 1997, the Term Loan amount shall be $14,000,000.
(b) Interest. The principal amount of the Term Loan shall bear
interest from March 24, 1997 through August 30, 1997 at a rate of
11% per annum, from August 31, 1997 through November 29, 1997 at a
rate of 11 1/2% and from and after November 30, 1997 at a rate of
12% per annum. Interest shall be paid to the Agent for the account
of each Lender on the outstanding and unpaid principal amount of the
Term Loan on the last Business Day of March, June, September and
December, commencing March 31, 1997."
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(g) Section 2.03 and Section 2.04 are hereby amended by (i)
inserting the words "Revolving Credit" before the word "Loan" in the first
line of Section 2.03, (ii) inserting the words "Revolving Credit" before
the word "Loan" in the third, fourth and fifth lines of Section 2.04, and
(iii) by adding a new sentence to the end of Section 2.04 which sentence
shall read as follows:
"If any amount of the Term Loan shall not be paid when due (at
maturity, by acceleration or otherwise) all outstanding amounts of
the Term Loan shall bear interest at the lesser of rate set forth in
Section 2.02(b) plus two percent (2%) or the maximum rate permitted
by applicable law."
(h) Section 9.01 is hereby amended in its entirety so that as
amended it shall read as follows:
"9.01 Consolidated Shareholders' Equity. Permit Consolidated
Shareholders' Equity to be less than (i) $10,000,000 at March 24,
1997 and (ii) as at the last day of each fiscal quarter of the
Borrower and until (but excluding) the last day of the next
following fiscal quarter of the Borrower, the sum of (A) the amount
of Consolidated Shareholders' Equity required to be maintained
pursuant to this Section 9.01 as at the end of the immediately
preceding fiscal quarter, plus (B) 50% of positive Consolidated Net
Income during the immediately preceding fiscal quarter of the
Borrower ending on such day (including in Consolidated Net Income
for purposes of this Section 9.01 only any net gain or credit of an
extraordinary nature)."
(i) Section 9.02 is hereby reinstated and is amended in its
entirety, so that as amended it shall read as follows:
"9.02 Consolidated EBITDA. Permit for each of the fiscal
quarters set forth below Consolidated EBITDA to be less than that
amount set forth opposite such quarter:
Consolidated
Fiscal Quarter Ending EBITDA
--------------------- ------------
June 30, 1997 $3,200,000
September 30, 1997 $3,400,000
December 31, 1997 $3,800,000"
(j) Section 9.10 is hereby amended in its entirety, so that as
amended it shall read as follows:
"9.10 Dividends or Distributions. Declare or pay any dividends
(other than those payable solely in capital stock) or distribution
in reduction of capital or otherwise in respect of any equity
interest, or purchase, redeem or otherwise retire any common stock
except (i) dividends paid with respect to Preferred Stock so long
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as such dividends have accrued and after giving effects to such
payment and the required increase in Consolidated Shareholders'
Equity pursuant to Section 9.01, Consolidated Net Income for the
most recently completed fiscal quarter is a positive number,
provided that after giving effect to payment of such dividend no
Default or Event of Default exists hereunder, (ii) payments to
purchase stock of the Borrower pursuant to the exercise by
beneficiaries of the Plan (as defined in the ESOP Loan Documents) of
put rights under Section 16(b) of the Plan, and (iii) pursuant to
the exercise of rights of first refusal or similar rights relating
to stock options or securities issued upon the exercise of stock
options in an aggregate amount in any Fiscal Year not exceeding
$300,000 (on a non-cumulative basis, with the effect that amounts
not expended in any Fiscal Year may not be expended in a subsequent
Fiscal Year."
(k) Section 10.01 hereby is amended in order to add the following
new clauses (o) and (p) hereto:
"(o) if the Borrower shall have redeemed, repurchased or
retired any shares of Preferred Stock of Borrower, prior to
February 28, 1998, provided, however, that any such failure by
Borrower, or consequence of Borrower's failure, to redeem
repurchase, or retire any such shares of preferred stock of
Borrower, shall not constitute an Event of Default so long as
any holder of such Preferred Stock shall not take any action
to enforce any right arising by reason of failure to redeem,
repurchase or retire any such shares.
(p) if the Borrower shall not have executed and delivered to
the Agent by July 3, 1997 a Warrant Certificate and a Warrant
Agreement evidencing the Agent's right to purchase up to
486,532 shares of the Borrower's common stock, par value $.001
per share ("Common Stock"), subject to the terms and
conditions thereof"
3. 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 5.01 is hereby amended in its entirety so that as
amended it shall read as follows:
"5.01 Consolidated Shareholders' Equity. Permit Consolidated
Shareholders' Equity to be less than (i) $10,000,000 at March 24,
1997 and (ii) as at the last day of each fiscal quarter of the
Borrower and until (but excluding) the last day of the next
following fiscal quarter of the Borrower, the sum of (A) the amount
of Consolidated Shareholders' Equity required to be maintained
pursuant to this Section 5.01 as at the end of the immediately
preceding fiscal quarter, plus (B) 50% of positive Consolidated Net
Income during the immediately preceding fiscal quarter of the
Borrower ending on such day (including in Consolidated Net Income
for purposes of this Section 5.0l only any net gain or credit of an
extraordinary nature)."
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(b) Section 5.02 is hereby reinstated and is amended and restated in
its entirety, so that as amended it shall read as follows:
"5.02 Consolidated EBITDA. Permit for each of the fiscal
quarters set forth below Consolidated EBITDA to be less than that
amount set forth opposite such quarter:
Consolidated
Fiscal Quarter Ending EBITDA
--------------------- ------------
June 30, 1997 $3,200,000
September 30, 1997 $3,400,000
December 31, 1997 $3,800,000"
(c) Section 5.10 is hereby amended in its entirety, so that as
amended it shall read as follows:
"5.10 Dividends or Distributions. Declare or pay any dividends
(other than those payable solely in capital stock) or distribution
in reduction of capital or otherwise in respect of any equity
interest, or purchase, redeem or otherwise retire any common stock
except (i) dividends paid with respect to Preferred Stock so long as
such dividends have accrued and after giving effects to such payment
and the required increase in Consolidated Shareholders' Equity
pursuant to Section 5.01, Consolidated Net Income for the most
recently completed fiscal quarter is a positive number, provided
that after giving effect to payment of such dividend no Default or
Event of Default exists hereunder, (ii) payments to purchase stock
of the Guarantor pursuant to the exercise by Plan beneficiaries of
put rights under Section 16(b) of the Plan, and (iii) pursuant to
the exercise of rights of first refusal or similar rights relating
to stock options or securities issued upon the exercise of stock
options in an aggregate amount in any Fiscal Year not exceeding
$300,000 (on a non-cumulative basis, with the effect that amounts
not expended in any Fiscal Year may not be expended in a subsequent
Fiscal Year."
(d) Section 6.01 hereby is amended in order to add the following new
clauses (n) and (o) thereto:
"(n) if the Guarantor shall have redeemed, repurchased or
retired any shares of Preferred Stock of Guarantor, prior to
February 28, 1998, provided, however, that any such failure by
Guarantor, or consequence of Guarantor's failure, to redeem,
repurchase, or retire any such shares of preferred stock of
Guarantor, shall not constitute an Event of Default so long as
any holder of such Preferred Stock shall not take any action
to enforce any right arising by reason of failure to redeem,
repurchase or retire any such shares.
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(o) if the Guarantor shall not have executed and delivered to
the Agent by July 3, 1997 a Warrant Certificate and a Warrant
Agreement evidencing the Agent's right to purchase up to
486,532 shares of the Guarantor's common stock, par value
$.001 per share ("Common Stock"), subject to the terms and
conditions thereof"
4. 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.
5. 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 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.
6. As conditions to the effectiveness of this Amendment Agreement:
A. the Borrower shall have delivered to the Agent:
(a) counterparts of this Amendment duly executed by the
Borrower and each of the Guarantors;
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(b) evidence acceptable to the Agent of the extension of the
date for payment of Subordinated Note A on terms and conditions
acceptable to the Agent;
(c) such other documents and certifications as the Agent or
the Lender may reasonably request; and
(d) all accrued and unpaid interest previously billed by the
Agent and not heretofore paid.
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.
7. 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.
8. 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.
9. 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.
10. 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:
/s/ [Signature Illegible] By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------- -------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
/s/ [Signature Illegible]
-----------------------------
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NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
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GUARANTORS
VITAS HEALTHCARE CORPORATION OF FLORIDA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
VITAS HEALTHCARE CORPORATION OF OHIO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
VITAS HEALTHCARE CORPORATION OF
PENNSYLVANIA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
VITAS HEALTHCARE CORPORATION CALIFORNIA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
VITAS HEALTHCARE CORPORATION OF CENTRAL
FLORIDA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
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