EXHIBIT 10.42
AMENDMENT NO. 1 TO
AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED REVOLVING CREDIT AND
REIMBURSEMENT AGREEMENT (the "Amendment") dated as of June 30, 1995, is
made by and among VITAS HEALTHCARE CORPORATION, a Delaware corporation (the
"Borrower"), and NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION, a national
banking association, (the "Lender") and NATIONSBANK OF FLORIDA, NATIONAL
ASSOCIATION, 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 (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 $20,000,000; 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 (as defined in the
"Agreement") shall mean the Agreement as 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, as hereby amended.
2. Subject to the conditions set forth in paragraph 5 hereof, the
Agreement shall be and hereby is amended, effective as of June 30, 1995, as
follows:
(a) Section 1.01 is hereby amended by adding a new definition
"Consolidated EBITDA" immediately following the definition of
"Consolidated Current Liabilities" which definition shall read as follow:
"'Consolidated EBITDA' means, with respect to the Borrower and
its Subsidiaries for any period of computation thereof, the sum of,
without duplication, (i) Consolidated Net Income, plus (ii)
Consolidated Interest Expense accrued during such period, plus (iii)
amortization accrued during such period, plus (iv) any depreciation
during such period, plus (v) all contributions to the ESOP made or
accrued by the Borrower during such period, plus (vi) all taxes on
income, all determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a Consistent
Basis;"
(b) The definition of "Consolidated Leverage Ratio" in Section 1.01
is amended in its entirety to read as follows:
"'Consolidated Leverage Ratio' means the ratio of Consolidated
Funded Indebtedness to Consolidated EBITDA;"
(c) The definition of "Consolidated Net Income" in Section 1.01 is
amended in its entirety to read as follows:
"'Consolidated Net Income' means, for any period of
computation thereof, the gross revenues from operations of the
Borrower and its Subsidiaries (including payments received by the
Borrower and its Subsidiaries of (i) interest income, and (ii)
dividends and distributions made in the ordinary course of their
businesses by Persons in which investment is permitted pursuant to
Section 9.09 and not related to an extraordinary event) less all
operating and non-operating expenses of the Borrower and its
Subsidiaries including taxes on income (excluding, however, (a) the
$6,700,000 of restructuring charges incurred in Fiscal Year 1993,
(b) up to $800,000 of expenses incurred in connection with
preparation of a proposed public offering of the Borrower's capital
stock that was not pursued due to market conditions and (c) up to
$6,312,000 of restructuring charges incurred in the fiscal quarter
ended June 30, 1995) all determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles applied on
a Consistent Basis; but excluding as income: (i) net gains on the
sale, conversion or other disposition of capital assets, (ii) net
gains on the acquisition, retirement, sale or other disposition of
capital stock and other securities of the Borrower or its
Subsidiaries, (iii) net gains on the collection of proceeds of life
insurance policies, (iv) any write-up of any asset, and (v) any
other net gain or credit of an extraordinary nature as determined in
accordance with Generally Accepted Accounting Principles applied on
a Consistent Basis;"
(d) The definition of "Revolving Credit Termination Date" in Section
1.01 is amended by deleting the date "September 30, 1996" appearing
therein and inserting in lieu thereof the date "October 1, 1996;"
(e) Clause (i) of Section 9.01 is amended to read as follows:
"(i) $21,000,000 at June 30, 1995, and"
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(f) Section 9.04 is hereby amended in its entirety so that as
amended it shall read as follows:
"9.04 Consolidated Leverage Ratio. Permit at any time during
the periods set forth below the Consolidated Leverage Ratio to be
more than the respective amount set forth opposite each such period:
Period Ratio
------ -----
From the Closing Date through 5.00 to 1.00
September 30, 1995
From and including October 1, 4.50 to 1.00
1995 through December 31, 1995
From and including January 1,
1996 through March 31, 1996 4.00 to 1.00
From and including April 1, 1996 3.00 to 1.00
through June 30, 1996
From and including July 1, 1996 2.50 to 1.00
and thereafter
3. Each of the Subsidiaries of the Borrower who has previously delivered a
Guaranty to the Agent has joined in the execution of this Amendment Agreement
for the purpose of consenting to this Amendment Agreement and affirming its
respective guaranty of the Obligations of Borrower arising under the Agreement
as amended by this Amendment Agreement.
4. 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) are true, complete and correct in all
material respects on and as of the date hereof, are hereby reaffirmed, and
shall survive the execution and delivery of the Amendment Agreement;
(ii) The execution, delivery and performance of this Amendment
Agreement 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
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the ability of the Borrower or any Guarantor to observe the covenants and
agreements contained in the agreement, as amended hereby, 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.
5. As conditions to the effectiveness of this Amendment Agreement 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 June
30, 1995.
6. This Amendment Agreement 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 Agreement
otherwise expressly stated, no representations, warranties or commitments,
express or implied, have been made by any party to the other.
7. Except as specifically amended, modified or supplemented by this
Amendment Agreement, all of the other documents delivered in connection with the
Loans, as heretofore amended, are hereby confirmed and ratified in all respects
and shall remain in full force and effect according to their respective terms.
8. 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 the Amendment Agreement, the Borrower shall pay the same
(including interest penalties, if any) and shall hold the Bank and the Agent
harmless with respect thereto.
9. This Amendment Agreement 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
Agreement 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/ Mark W. Ohlendorf
- ------------------------ ---------------------------------
Name: Mark W. Ohlendorf
/s/ [Signature Illegible] Title: Vice President
- ------------------------
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NATIONSBANK OF FLORIDA, NATIONAL
ASSOCIATION, as Agent
By: /s/ Allison Freeland
-------------------------------
Name: Allison Freeland
-----------------------------
Title: Vice President
NATIONSBANK OF FLORIDA, NATIONAL
ASSOCIATION, as Lender
By: /s/ Allison Freeland
-------------------------------
Name: Allison Freeland
-----------------------------
Title: Vice President
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GUARANTORS:
VITAS HEALTHCARE CORPORATION OF
FLORIDA
By: /s/ Mark W. Ohlendorf
----------------------------
Name: Mark W. Ohlendorf
Title: Vice President
VITAS HEALTHCARE CORPORATION OF OHIO
By: /s/ Mark W. Ohlendorf
----------------------------
Name: Mark W. Ohlendorf
Title: Vice President
VITAS HEALTHCARE CORPORATION OF
PENNSYLVANIA
By: /s/ Mark W. Ohlendorf
----------------------------
Name: Mark W. Ohlendorf
Title: Vice President
VITAS HEALTHCARE CORPORATION OF
CALIFORNIA
By: /s/ Mark W. Ohlendorf
----------------------------
Name: Mark W. Ohlendorf
Title: Vice President
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