EXHIBIT 10.24
SUBROGATION AND CONTRIBUTION AGREEMENT
AMONG
STAT HEALTHCARE, INC.
OLD STAT, INC.
STAT DIALYSIS CORPORATION
STAT MANAGEMENT CORPORATION
STAT PHYSICIANS, P.A.
AND
SOUTH TEXAS ACUTE TRAUMA PHYSICIANS, P.A.
AUGUST 29, 1996
SUBROGATION AND CONTRIBUTION AGREEMENT
August 29, 1996
1
SUBROGATION AND CONTRIBUTION AGREEMENT
THIS SUBROGATION AND CONTRIBUTION AGREEMENT (this "AGREEMENT") is made
and entered into, effective as of August 29, 1996 among STAT HEALTHCARE, INC., a
Delaware corporation (the "COMPANY"), OLD STAT, INC., a Delaware corporation,
STAT DIALYSIS CORPORATION, a Delaware corporation, STAT MANAGEMENT CORPORATION,
a Delaware corporation, STAT PHYSICIANS, P.A., a Texas professional association,
and SOUTH TEXAS ACUTE TRAUMA PHYSICIANS, P.A., a Texas professional association
(the "GUARANTORS").
R E C I T A L S:
WHEREAS the Company, Southwest Bank of Texas, N.A., individually and as
Agent ("AGENT"), and The Boatmen's National Bank of St. Louis (together with the
Agent, the "Lenders"), made and entered into that certain Credit Agreement of
even date herewith (the "CREDIT AGREEMENT"), pursuant to which, upon the terms
and conditions stated therein, the Lenders agree to make loans to the Company;
WHEREAS, on even date herewith, the Guarantors are executing a Guaranty
Agreement in favor of the Agent (such agreement, as may from time to time be
amended or supplemented, being hereinafter call the "Guaranty");
WHEREAS the Lenders have conditioned their respective obligations under
the Credit Agreement upon the execution and delivery by the Company and the
Guarantors of this Agreement, and the Company and the Guarantors have agreed to
enter into this Agreement;
NOW, THEREFORE, in order to comply with the terms and conditions of the
Credit Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Each capitalized term used, but not defined, herein shall have the
meaning assigned such term in, or by reference in, the Credit Agreement or the
Guaranty .
2. (a) If any Guarantor makes a payment in respect of the Obligations,
it shall be subrogated to the rights of the Lenders (or any other payee) against
the Company with respect to such payment and shall have the rights of
contribution set forth below against the other Guarantors; PROVIDED that such
Guarantor shall not enforce its rights to any payment by way of subrogation or
by exercising its rights of contribution until all the Obligations shall have
been paid in full. If any Guarantor makes a payment in respect of the
Obligations so that the amount of its then current Net
SUBROGATION AND CONTRIBUTION AGREEMENT
August 29, 1996
1
Payments is less than the amount of its then current Contribution Obligation,
any Guarantor making such proportionately smaller payment shall, when permitted
by the preceding sentence, pay to the other Guarantors an amount such that the
Net Payments made by the Guarantors in respect of the Obligations shall be
shared among the Guarantors pro rata in proportion to their respective
Contribution Percentage. If any Guarantor receives any payment by way of
subrogation or contribution so that the amount of its then current Net Payments
is greater than the amount of its then current Contribution Obligation, the
Guarantor receiving such proportionately greater payment shall, when permitted
by the second preceding sentence, pay to the other Guarantors an amount such
that the Net Payments received by the Guarantors shall be shared among the
Guarantors PRO RATA in proportion to their respective Contribution Percentage.
If any Guarantor makes a payment in respect of the Obligations so that the
amount of its then current Net Payments is greater than the amount of its then
current Contribution Obligation, any Guarantor making such proportionately
larger payment shall, when permitted by the third preceding sentence, receive
from the other Guarantors an amount such that the Net Payments made by the
Guarantors in respect of the Obligations shall be shared among the Guarantors
pro rata in proportion to their respective Contribution Percentage.
(b) As used herein, the term "CONTRIBUTION OBLIGATION" shall mean an
amount equal, at any time and from time to time and for each respective
Guarantor, to the product of (i) the Contribution Percentage set forth opposite
such Guarantor's name on Annex I hereto, times (ii) the sum of all payments made
previous to or at the time of calculation by all Guarantors in respect of the
Obligations (less the amount of any such payments previously returned to any
Guarantor by operation of law or otherwise, but not including payments received
by any Guarantor by way of its rights of subrogation and contribution
hereunder). Notwithstanding anything to the contrary contained in this Section
or in this Agreement, no liability or obligation of any Guarantor that shall
accrue pursuant to this Agreement shall be paid nor shall it be deemed owed
pursuant to this Agreement until all of the Obligations shall be paid in full.
(c) As used herein, the term "NET PAYMENTS" shall mean an amount equal,
at any time and from time to time and for each respective Guarantor, to the
difference of (i) the sum of all payments made previous to or at the time of
calculation by such Guarantor in respect to the Obligations and in respect of
its obligations contained in this Agreement, less (ii) the sum of all such
payments previously returned to such Guarantor by operation of law or otherwise
and including payments received by such Guarantor by way of its rights of
subrogation and contribution hereunder.
(d) As used herein, the term "CONTRIBUTION PERCENTAGE" shall mean, for
any applicable date as of which such percentage is being determined an amount
equal to the quotient of (i) the Net Worth of such Guarantor as of such date,
divided by (ii) the sum of the Net Worth of all the Guarantors as of such date.
The amount set forth opposite each Guarantor's name on Annex I hereto was
calculated and agreed to among the Company and the Guarantors to be the
Contribution Percentage in effect on the date hereof.
SUBROGATION AND CONTRIBUTION AGREEMENT
August 29, 1996
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(e) As used herein, the term "NET WORTH" shall mean for any Guarantor,
calculated on and as of any applicable date on which such amount is being
determined, the difference between (A) the sum of all such Guarantor's property,
at a fair valuation and as of such date, MINUS (B) the sum of all such
Guarantor's debts, at a fair valuation and as of such date, excluding the
Obligations.
3. Each party hereto represents and warrants to each other party hereto
and to their respective successors and permitted assigns that the execution,
delivery, and performance by such party of this Agreement are within such
party's powers, have been duly authorized by all necessary action, require no
action by or in respect of, or filing with, any Governmental Authority and do
not contravene, or constitute a default under, any provision of any applicable
law or of the organizational documents of such party or of any material
agreement, judgment, injunction, order, decree, or other instrument binding upon
such party, or result in the creation or imposition of any Lien on any asset of
such party.
4. No failure or delay by any Guarantor in exercising any right, power,
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. The rights and remedies herein
provided shall be cumulative and non-exclusive of any rights or remedies
provided by law.
5. Any provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed by the parties
hereto and consented to by each of the Guarantor and the Lenders.
6. The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
7. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
8. SUBMISSION TO JURISDICTION; SERVICE. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT, THE NOTES, OR THE SECURITY INSTRUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF TEXAS OR OF THE UNITED STATES OF AMERICA
FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH OF THE PARTIES HERETO
SUBROGATION AND CONTRIBUTION AGREEMENT
August 29, 1996
3
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING BUT NOT LIMITED TO, ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS.
9. This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and any of the
parties hereto may execute this Agreement by signing any such counterpart. This
Agreement shall become effective when a counterpart hereof shall have been
signed by all the parties hereto.
SUBROGATION AND CONTRIBUTION AGREEMENT
August 29, 1996
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement
to be duly executed and delivered by its duly authorized officer on the day and
year first above written.
BORROWER: STAT HEALTHCARE, INC.
By:
Xxx X. Xxxxxxx
Chief Financial Officer
GUARANTORS: OLD STAT, INC.
By:
Xxx X. Xxxxxxx
Chief Financial Officer
STAT DIALYSIS CORPORATION
By:
Xxx X. Xxxxxxx
Secretary
STAT MANAGEMENT CORPORATION
By:
Xxx X. Xxxxxxx
Secretary
STAT PHYSICIANS, P.A.
By:
Xxxxxx Xxxxxxx, M.D.
President
SUBROGATION AND CONTRIBUTION AGREEMENT
August 29, 1996
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SOUTH TEXAS ACUTE TRAUMA
PHYSICIANS, P.A.
By:
Xxxxxxx X. Xxxx, M.D.
President
SUBROGATION AND CONTRIBUTION AGREEMENT
August 29, 1996
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ANNEX I
TO
SUBROGATION AND CONTRIBUTION AGREEMENT
GUARANTOR CONTRIBUTION PERCENTAGE
OLD STAT, INC. 20%
STAT DIALYSIS CORPORATION 30%
STAT MANAGEMENT CORPORATION 10%
STAT PHYSICIANS, P.A. 40%
SOUTH TEXAS ACUTE TRAUMA PHYSICIANS, P.A. 0%
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100%
