EXHIBIT 10.46
AMENDMENT NO. 5 TO
AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND REIMBURSEMENT AGREEMENT
AND RELATED DOCUMENTS
THIS AMENDMENT NO. 5 TO AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN
AND REIMBURSEMENT AGREEMENT AND RELATED DOCUMENTS (the "Amendment") dated as of
February 15, 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 and by Amendment No. 4 dated as of November 1, 1996 (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 $11,600,000 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
WHEREAS, the Lender is willing to extend the maturity dates on a
short-term basis so long as certain payments to holders of preferred stock are
deferred and certain other 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 definitions of each of "Revolving Credit Termination Date"
and "Term Loan Maturity Date" are amended by deleting clause (i) and
substituting in lieu thereof the following clause (i): "(i) March 24,
1997,";
(b) The definition of "Total Revolving Credit Commitment" is amended
by deleting the amount "$11,600,000" and substituting in lieu thereof the
amount "$8,850,000; and
(c) Section 9.10 is amended by (w) inserting in the text of clause
(i) after the phrase "Preferred Stock", the phrase "after March 31, 1997";
(x) inserting in the text of clause (ii) after the phrase "Preferred Stock
Redemptions" the phrase "after March 31, 1997"; and (y) inserting in the
text of clause (iii) after the phrase "Qualified Equity Securities", the
phrase "after March 31, 1997".
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 by (w) inserting in the text of clause (i) after the phrase "Preferred
Stock", the phrase "after March 31, 1997"; (x) inserting in the text of clause
(ii) after the phrase "Preferred Stock Redemptions" the phrase "after March
31,1997"; and (y) inserting in the text of clause (iii) after the phrase
"Qualified Equity Securities", the phrase "after March 31, 1997".
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
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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,
(b) a copy of a Certificate of Amendment to the Amended and
Restated Certificate of Incorporation of Vitas Healthcare
Corporation providing for a new redemption schedule for the 9%
Cumulative Non-Convertible Preferred Stock of Borrower;
(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,
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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/ Mark W. Ohlendorf
- ------------------------ ---------------------------------
Name: Mark W. Ohlendorf
/s/ Melissa Smith Title: Vice President, Chief Financial
- ------------------------ Officer and Treasurer
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NATIONSBANK NATIONAL ASSOCIATION
(SOUTH), as Agent
By: /s/ S. Manchanda
-------------------------------
Name: S. Manchanda
-----------------------------
Title: Vice President
NATIONSBANK NATIONAL ASSOCIATION
(SOUTH), as Lender
By: /s/ S. Manchanda
-------------------------------
Name: S. Manchanda
-----------------------------
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
VITAS HEALTHCARE CORPORATION OF
CENTRAL FLORIDA
By: /s/ Mark W. Ohlendorf
----------------------------
Name: Mark W. Ohlendorf
Title: Vice President
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