FIRST AMENDMENT
Exhibit 99.1
FIRST AMENDMENT
THIS
FIRST AMENDMENT (this “Amendment”) dated as of
August 13, 2010 and effective
in accordance with Section 4 below, is entered into by and among MEDCATH HOLDINGS CORP.,
as Borrower (the “Borrower”), MEDCATH CORPORATION, as Parent Guarantor (the “Parent
Guarantor”), the lenders from time to time party to the Credit Agreement referred to below
(the “Lenders”), BANK OF AMERICA, N.A., as Administrative Agent (the “Administrative
Agent”), XXXXX FARGO BANK, NATIONAL ASSOCIATION (as successor to Wachovia Bank, National
Association), as Syndication Agent, and FIFTH THIRD BANK, XXXXXXX XXXXX BANK, FSB and BRANCH
BANKING AND TRUST COMPANY, as Co-Documentation Agents.
Statement of Purpose
Pursuant to that certain Amended and Restated Credit Agreement dated as of November 10, 2008
(as amended, restated, supplemented or otherwise modified, the “Credit Agreement”) by and
among the Borrower, the Parent Guarantor, the Lenders, the Administrative Agent, the Syndication
Agent and the Co-Documentation Agents, the Lenders have agreed to make, and have made, certain
extensions of credit to the Borrower.
The Borrower has requested that the Administrative Agent seek approval from the Required
Lenders to amend the Credit Agreement to, among other things, provide certain covenant
modifications, all as set forth in detail below. Subject to the terms and conditions set forth
herein, the Required Lenders are willing to consent to such amendment requests.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, such parties hereby agree as follows:
Section 1. Definitions. All capitalized terms used and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
Section 2. Amendments to Credit Agreement.
(a) Amendment to Section 1.01.
(i) Section 1.01 of the Credit Agreement is hereby amended by adding the following new
definitions in appropriate alphabetical order:
“First
Amendment Effective Date” means August 13, 2010.
“Measuring Period” means (a) for the Fiscal Quarter ending June 30,
2010, the four (4) consecutive Fiscal Quarters ending June 30, 2010, (b) for the
Fiscal Quarter ending March 31, 2011, the one (1) Fiscal Quarter ending on such
date, (c) for the Fiscal Quarter ending June 30, 2011, the two (2) consecutive
Fiscal Quarters ending on such date, and (d) for the Fiscal Quarter ending
September 30, 2011, the three (3) consecutive Fiscal Quarters ending on such
date.
“Reduction Amount” has the meaning set forth in Section 2.06(e)(iii).
(ii) Section 1.01 of the Credit Agreement is hereby amended by amending and restating
the following definitions in their entirety as set forth below:
“Consolidated EBITDA” means, for any period, for the Consolidated
Parties on a consolidated basis, an amount equal to Consolidated Net Income of the
Consolidated Parties (excluding (1) each Development Group Entity in existence as of
the Closing Date that has not subsequently been redesignated as an “Operating Group
Hospital Entity” or “Operating Group Subsidiary” pursuant to Section 6.15(b)
and (2) each Excluded Credit Party) for such period plus (a) the following
to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges of the Consolidated Parties for such period, (ii) the provision for
federal, state, local and foreign income taxes payable by the Consolidated Parties
for such period, (iii) the amount of depreciation and amortization expense deducted
by the Consolidated Parties in determining such Consolidated Net Income, (iv)
non-cash charges for such period solely with respect to the impairment of goodwill
in accordance with GAAP and any other non-cash charges required under FASB 142, (v)
non-cash impairment charges for such period solely with respect to management
contracts of MedCath Partners LLC and its Subsidiaries and MedCath Cardiology
Consulting & Management, Inc. and its Subsidiaries, (vi) non-cash impairment charges
for such period solely with respect to loan acquisition costs, (vii) expenses
related to the transactions contemplated under this Agreement, (viii) other expenses
of the Consolidated Parties reducing such Consolidated Net Income (including,
without limitation, share-based compensation expenses) which do not represent a cash
item in such period or any future period, (ix) minority interest expense of included
Joint Venture Entities, (x) charges and expenses for such period incurred related to
Dispositions contemplated, agreed to or consummated during such period (including,
without limitation, severance payments, retention bonuses, wind-down expenses, legal
expenses, advisory fees and other expenses and reserves) in an aggregate amount not
to exceed $10,000,000 and (xi) impairment charges, and minus (b) all
one-time non-cash items of the Consolidated Parties increasing Consolidated Net
Income for such period; provided that (A) for the Fiscal Quarter ended March
31, 2011, Consolidated EBITDA for the period described above shall be equal to
actual Consolidated EBITDA for such Fiscal Quarter times four (4), (B) for
the Fiscal Quarter ending June 30, 2011, Consolidated EBITDA for the period
described above shall be equal to actual Consolidated EBITDA for such two (2)
consecutive Fiscal Quarters ending on such date times two (2), and (C) for
the Fiscal Quarter ending September 30, 2011, Consolidated EBITDA for the period
described above shall be equal to actual Consolidated EBITDA for such three (3)
consecutive Fiscal Quarters ending on such date times four-thirds (4/3).
For the purposes of calculating Consolidated EBITDA for the period ending March 31,
2011 and subsequent periods, pursuant to any determination of
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the Consolidated Senior Secured Leverage Ratio, Consolidated Total Leverage
Ratio or the Consolidated Fixed Charge Coverage Ratio, the Consolidated EBITDA
attributable to any Equity Interests of, or any assets comprising a division or
business unit or a substantial part of all of the business of, any Consolidated
Party Disposed of during such period shall be excluded from the calculation of
Consolidated EBITDA as if such Disposition and the repayment of any Indebtedness in
connection therewith occurred on the first day of such period, giving effect only to
such pro forma adjustments as are permitted by SEC Regulation S-X, with the
exception that management fees and other support services paid to a Loan Party
during such period shall be included in the calculation of Consolidated EBITDA for
such period.
“Consolidated Adjusted EBITDARP” means, for any period, (a) (i)
Consolidated EBITDAR for such period plus (ii) Pre-Opening Expenses for such
period in an amount not to exceed $10,000,000, minus (b) with respect to any
specific Consolidated Party included in the calculation of Consolidated EBITDA, an
amount equal to the amount by which (i) the minority interest expense of such
Consolidated Party exceeds (ii) the sum of (A) the outstanding amount of the
Permitted Intercompany Notes from such Consolidated Party and (B) the outstanding
amount of other Indebtedness of such Consolidated Party to the extent Guaranteed by
any Loan Party; provided that (I) for the Fiscal Quarter ended March 31,
2011, Consolidated Adjusted EBITDARP for the period described above shall be equal
to actual Consolidated Adjusted EBITDARP for such Fiscal Quarter times four
(4), (II) for the Fiscal Quarter ending June 30, 2011, Consolidated Adjusted
EBITDARP for the period described above shall be equal to actual Consolidated
Adjusted EBITDARP for such two (2) consecutive Fiscal Quarters ending on such date
times two (2), and (III) for the Fiscal Quarter ending September 30, 2011,
Consolidated Adjusted EBITDARP for the period described above shall be equal to
actual Consolidated Adjusted EBITDARP for such three (3) consecutive Fiscal Quarters
ending on such date times four-thirds (4/3); provided
further, that the foregoing proviso shall not be interpreted to cause
components of Consolidated Adjusted EBITDARP that were previously annualized (e.g.
Consolidated EBITDA) to be annualized again.
“Consolidated Fixed Charge Coverage Ratio” means, as of any date of
determination, the ratio of (a) the sum of (i) Consolidated Adjusted EBITDARP for
the Measuring Period ending on or immediately prior to such date less (ii)
federal, state, local and foreign income taxes (excluding any one time income taxes
on the proceeds of any Disposition permitted by this Agreement) paid by the
Consolidated Parties in cash for the Measuring Period, multiplied by (A) four (4)
for the Measuring Period ending Xxxxx 00, 0000, (X) two (2) for the Measuring Period
ending June 30, 2011 and (C) four-thirds (4/3) for the Measuring Period ending
September 30, 2011, less (iii) Consolidated Maintenance Capital
Expenditures, in each case measured for the Measuring Period, to (b) Consolidated
Fixed Charges for the Measuring Period; provided that (A) for the Fiscal
Quarter ending June 30, 2010, Consolidated Fixed Charges for the period described in
the foregoing clause (b) shall equal the actual Consolidated Fixed
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Charges for the four Fiscal Quarter period then ended, (B) for the Fiscal
Quarter ended March 31, 2011, Consolidated Fixed Charges for the period described in
the foregoing clause (b) shall be equal to actual Consolidated Fixed Charges for
such Fiscal Quarter times four (4), (C) for the Fiscal Quarter ending June
30, 2011, Consolidated Fixed Charges for the period described in the foregoing
clause (b) shall be equal to actual Consolidated Fixed Charges for such two (2)
consecutive Fiscal Quarters ending on such date times two (2), and (D) for
the Fiscal Quarter ending September 30, 2011, Consolidated Fixed Charges for the
period described in the foregoing clause (b) shall be equal to actual Consolidated
Fixed Charges for such three (3) consecutive Fiscal Quarters ending on such date
times four-thirds (4/3).
“Consolidated Fixed Charges” means, for any period, the sum of the
following determined on a consolidated basis, without duplication, for the
Consolidated Parties in accordance with GAAP: (a) Consolidated Interest Charges paid
or payable in cash for such period other than charges resulting from the
acceleration of deferred financing expenses and/or prepayment premiums or any other
amount paid in connection with the retirement or prepayment of the Senior Unsecured
Notes in excess of the par value thereof or relating to any Indebtedness permitted
to be prepaid hereunder, plus (b) all Permanent Principal Payments of the
Consolidated Parties for such period on a consolidated basis (other than
intercompany Indebtedness, including, without limitation, Indebtedness evidenced by
Permitted Intercompany Notes) plus (c) all Lease Expense of the Consolidated
Parties for such period on a consolidated basis plus (d) all dividends or
distributions (excluding repurchases, redemptions or other acquisitions or
retirement for value of Equity Interests under Section 7.06(d)(v)) made by
the Consolidated Parties during such period on a consolidated basis to any Person
that is a shareholder of the Parent; provided, that with respect to any
Disposition occurring during the period, the calculation of Consolidated Fixed
Charges shall exclude items (a), (b) and (c) above relating to the assets or Equity
Interests that have been Disposed solely to the extent that the resulting
Disposition Proceeds are required to be applied (or permitted to be retained) and
are applied in accordance with Section 2.06. Such exclusion shall be given
effect as if such Disposition shall have occurred as of the first day of such
period.
“Consolidated Maintenance Capital Expenditures” means (a) for the four
(4) consecutive Fiscal Quarter period ending June 30, 2010, an amount equal to
$27,500,000 and (b) commencing with the Fiscal Quarter ending March 31, 2011 and
thereafter (i) for each Hospital, an amount not in excess of $1,750,000 for such
Hospital during the term of this Agreement (such amount, the “Individual
Consolidated Maintenance Capital Expenditure”) and (ii) collectively, the sum of
the Individual Consolidated Maintenance Capital Expenditures for all of the
Hospitals.
“Consolidated Senior Secured Leverage Ratio” means, as of any date of
determination, the ratio of (a) (i) Consolidated Senior Secured Indebtedness as of
such date minus (ii) an amount equal to the aggregate amount of funds on
deposit
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in the Term Loan Escrow Account to (b) Consolidated Adjusted EBITDAP for the
period of the four consecutive Fiscal Quarters (or such other period indicated in
the proviso set forth in the definition of Consolidated EBITDA) most recently ended
for which the Parent has delivered financial statements pursuant to Section
6.01(a) or (b).
“Consolidated Total Leverage Ratio” means, as of any date of
determination, the ratio of (a) (i) Consolidated Total Indebtedness as of such date
minus (ii) an amount equal to the aggregate amount of funds on deposit in
the Term Loan Escrow Account to (b) Consolidated Adjusted EBITDAP for the period of
the four consecutive Fiscal Quarters (or such other period indicated in the proviso
set forth in the definition of Consolidated EBITDA) most recently ended for which
the Parent has delivered financial statements pursuant to Section 6.01(a) or
(b).
“Disposition Proceeds” means any Net Cash Proceeds (a) from any
Disposition or series of related Dispositions of assets by any Consolidated Party
not otherwise permitted pursuant to Section 7.05(a), (b),
(c), (d), and (g) and Section 7.04(a) and
(b) or (b) under any of the insurance policies maintained pursuant to
Section 6.07 or from any condemnation proceeding. For purposes of this
definition, (i) the receipt by a Loan Party of a repayment of any Permitted
Intercompany Note by a Consolidated Party in connection with an asset Disposition by
such Consolidated Party or insurance or condemnation recovery or payment or (ii) the
receipt by a Loan Party of any dividend or distribution from a Consolidated Party to
a Loan Party of or related to Disposition Proceeds, shall constitute the receipt of
Disposition Proceeds by such Loan Party in the amount of such repayment or dividend
or distribution, after excluding all costs and expenses, including but not limited
to all advisory fees, legal fees, employee severance expense, liability reserves and
income tax expense related to the Disposition, as applicable. In addition, if, in
connection with a Permitted Joint Venture Syndication, any Loan Party receives a
return of all or any portion of any Investment made after the Closing Date, then
such returned amount shall constitute Disposition Proceeds on the date received,
after excluding all costs and expenses, including but not limited to all advisory
fees, legal fees, employee severance expense, liability reserves and income tax
expense related to the Permitted Joint Venture Syndication.
“Revolving Credit Commitments” means the aggregate Revolving Credit
Commitment of all Lenders. On the First Amendment Effective Date the Revolving
Credit Commitments shall be $59,500,000.
“Revolving Credit Maturity Date” means the earlier to occur of (a)
November 10, 2011 and (b) the date of the repayment in full of the Term Loan.
(b) Amendment to Section 2.06.
(i) Section 2.06(d)(ii) of the Credit Agreement is hereby amended and restated
in its entirety as follows:
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(ii) Repayment of Excess Proceeds. In the event proceeds
(“Excess Proceeds”) remain after the prepayment of Term Loans
pursuant to Section 2.06(e)(i), or Section 2.06(e)(ii), as
applicable, the amount of such Excess Proceeds shall be used on the date of
the required prepayment under Section 2.06(e)(i) or,
2.06(e)(ii), as applicable, to prepay the outstanding principal
amount of the Revolving Credit Loans with a corresponding reduction of the
Revolving Credit Commitment.
(ii) Section 2.06(d) is amended by including the following new clause (iii)
therein:
(iii) Revolving Credit Loans shall also be prepaid in accordance with
Section 2.06(e).
(iii) Section 2.06(e) is hereby amended and restated in its entirety as
follows:
(e) Mandatory Prepayments of Loans.
(i) Asset Sale Proceeds; Insurance and Condemnation Proceeds.
The Borrower shall make mandatory prepayments in the amounts and in the
manner set forth in Section 2.06(e)(iii) below of Disposition
Proceeds in excess of an aggregate amount of $50,000,000 for all such
Disposition Proceeds received after the First Amendment Effective Date.
Such prepayment shall be made within three (3) Business Days after the date
of receipt of such Disposition Proceeds.
(ii) Debt Proceeds. The Borrower shall make mandatory
principal prepayments of the Term Loans in the manner set forth in
Section 2.06(e)(iii) below in amounts equal to one hundred percent
(100%) of the aggregate Net Cash Proceeds from any incurrence by any Loan
Party of any Indebtedness not otherwise permitted pursuant to Section
7.03. Such prepayment shall be made within three (3) Business Days
after the date of receipt of such Net Cash Proceeds. (This provision shall
not be deemed to permit the incurrence of Indebtedness not otherwise
permitted pursuant to this Agreement.)
(iii) Notice; Manner of Payment. Upon the occurrence of any
event triggering the prepayment requirement under Sections
2.06(e)(i) and 2.06(e)(ii), the Borrower shall promptly give
written notice to the Administrative Agent and upon receipt of such notice,
the Administrative Agent shall promptly so notify the Lenders. Each
prepayment under Section 2.06(e)(i) shall be applied as follows:
(a) fifty percent (50%) of the Disposition Proceeds shall be applied to the
Term Loan (to reduce the remaining principal installments thereof on a pro
rata basis pursuant to Section 2.08(c)) and (b) the Revolving Credit
Commitments shall be automatically and permanently reduced by an amount
equal to fifty percent
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(50%) of the Disposition Proceeds (the “Reduction Amount”) and, to
the extent applicable, such Reduction Amount of the Disposition Proceeds
shall be used to repay Revolving Credit Outstandings to the extent required
pursuant to Section 2.06(d). Each prepayment under Section
2.06(e)(ii) shall be applied first, to the Term Loan (to reduce the
remaining principal installments thereof on a pro rata basis pursuant to
Section 2.08(c)), and second, to the extent of any excess, to repay
the Revolving Credit Outstandings pursuant to Section 2.06(d)(ii).
(iv) Amounts prepaid under the Term Loan pursuant to this Section
2.06(e) may not be reborrowed and will constitute a permanent reduction
in the Term Loan Commitment. Each prepayment shall be accompanied by any
amount required to be paid pursuant to Section 3.05 hereof.
(v) Prepayments of the Revolving Credit Facility made pursuant to this
Section 2.06(e), first, shall be applied ratably to the L/C
Borrowings and the Swing Line Loans, second, shall be applied
ratably to the outstanding Revolving Credit Loans, and, third, shall be used
to Cash Collateralize the remaining L/C Obligations. Upon the drawing of
any Letter of Credit that has been Cash Collateralized, the funds held as
Cash Collateral shall be applied (without any further action by or notice to
or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or
the Revolving Credit Lenders, as applicable.
(c) Amendment to Section 2.07. Section 2.07 is hereby amended and restated in
its entirety as follows:
Section 2.07 Termination or Reduction of Revolving Credit Commitments.
(a) Optional. The Borrower may, upon notice to the
Administrative Agent, terminate the Revolving Credit Commitments, or from
time to time permanently reduce the Revolving Credit Commitments; provided
that (i) any such notice shall be received by the Administrative Agent not
later than 11:00 a.m. five Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount
of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii)
the Borrower shall not terminate or reduce the Revolving Credit Commitments
if, after giving effect thereto and to any concurrent prepayments hereunder,
the Revolving Credit Outstandings would exceed the Revolving Credit
Commitments, and (iv) if, after giving effect to any reduction of the
Revolving Credit Commitments, the Letter of Credit Sublimit or the Swing
Line Sublimit exceeds the amount of the Revolving Credit Commitments, such
Sublimit shall be automatically reduced by the amount of such excess. The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Revolving
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Credit Commitments. Any reduction of the Revolving Credit Commitments shall
be applied to the Revolving Credit Commitment of each Lender according to
its Revolving Credit Commitment Percentage. All commitment fees accrued
until the effective date of any termination of the Revolving Credit
Commitments shall be paid on the effective date of such termination.
(b) Mandatory. The Revolving Credit Facility shall be
automatically and permanently reduced on each date on which the prepayment
of Revolving Credit Loans outstanding thereunder is required to be made
pursuant to Section 2.06(e)(i) or 2.06(e)(ii) by an amount
equal to the Reduction Amount. If after giving effect to any reduction or
termination of the Revolving Credit Commitment under this Section
2.07, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds
the Revolving Credit Facility at such time, the Letter of Credit Sublimit or
the Swing Line Sublimit, as the case may be, shall be automatically reduced
by the amount of such excess. The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Revolving
Credit Commitments. Any reduction of the Revolving Credit Commitments shall
be applied to the Revolving Credit Commitment of each Lender according to
its Revolving Credit Commitment Percentage. All commitment fees accrued
until the effective date of any termination of the Revolving Credit
Commitments shall be paid on the effective date of such termination.
(d) Amendments to Section 7.03. Section 7.03 is hereby amended by adding the
following new clause (n):
(n) Guarantees of Indebtedness in an aggregate principal amount not to
exceed $10,000,000 in respect of Dispositions permitted pursuant to
Section 7.05.
(e) Amendments to Section 7.05. Section 7.05(j) is hereby amended and restated in its
entirety as follows:
(j) Dispositions by Controlled Parties not otherwise permitted under
this Section 7.05; provided that (i) at the time of such
Disposition, no Default or Event of Default shall exist or would result from
such Disposition and (ii) the Net Cash Proceeds of any such Disposition
shall be applied in accordance with Section 2.06(e)(i);
(f) Amendments to Section 7.14(c). Section 7.14(c) is hereby amended and restated in
its entirety as follows:
(c) Minimum Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio as of the end of any Fiscal Quarter of the
Parent set forth below to be less than the ratio set forth below opposite such
Fiscal Quarter:
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Fiscal Quarter Ending:
|
Minimum Consolidated Fixed Charge Coverage Ratio: | ||||
June 30, 2010
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1.50 to 1.00 | ||||
March 31, 2011
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1.10 to 1.00 | ||||
June 30, 2011 and thereafter
|
1.50 to 1.00 | ||||
For avoidance of doubt, it is hereby acknowledged and agreed by the parties
hereto that the Consolidated Fixed Charge Coverage Ratio shall not be tested on
September 30, 2010 or December 31, 2010 for the fiscal periods then ended.
Section 3. Amendment to Collateral Agreement. Section 7.15(b) of the Collateral Agreement is
hereby amended by replacing the phrase “ten (10) Business Days” with “five (5) Business Days”.
Section 4. Effectiveness. Upon the satisfaction of each of the following conditions, this
Agreement shall be deemed to be effective as of the date hereof:
(a) the Administrative Agent shall have received counterparts of this Agreement executed by
the Administrative Agent (on behalf of itself and each of the Lenders consenting hereto by virtue
of such Lender’s execution of a lender authorization substantially in the form attached hereto as
Exhibit A (each, a “Lender Authorization”)), the Parent Guarantor, the Borrower and
each of the Subsidiary Guarantors;
(b) the Administrative Agent shall have received executed Lender Authorizations from the
Lenders that constitute Required Lenders;
(c) the Borrower shall have paid to the Administrative Agent (or its applicable affiliates),
for the account of each Lender (including the Administrative Agent in its capacity as a Lender)
that executes and delivers this Agreement or a Lender Authorization to the Administrative Agent (or
its counsel) on or prior to 5:00 p.m. (Eastern Time) on August 13, 2010, an amendment fee in an
amount equal to 12.5 basis points multiplied by the sum of (i) the Revolving Credit
Commitment of such Lender plus (ii) the aggregate outstanding principal amount of the Term
Loan of such Lender;
(d) the Administrative Agent shall have received a favorable opinion of counsel to the Loan
Parties addressed to the Administrative Agent and each Lender as to such matters concerning the
Loan Parties, this Agreement and the other Loan Documents as the Administrative Agent may
reasonably request; and
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(e) the Administrative Agent shall have received such other instruments, documents and
certificates as the Administrative Agent shall reasonably request in connection with the execution
of this Agreement.
Section 5. Limited Effect. Except as expressly provided in this Amendment, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain, in full force and
effect and this Amendment shall not be deemed or otherwise construed (a) to be a waiver of, or
consent to or a modification or amendment of, any other term or condition of the Credit Agreement
or any other Loan Document, (b) to prejudice any other right or remedies that the Administrative
Agent or the Lenders, or any of them, may now have or may have in the future under or in connection
with the Credit Agreement or the Loan Documents, as such documents may be amended, restated or
otherwise modified from time to time, or (c) to be a commitment or any other undertaking or
expression of any willingness to engage in any further discussion with the Borrower or any other
person, firm or corporation with respect to any waiver, amendment, modification or any other change
to the Credit Agreement or the Loan Documents or any rights or remedies arising in favor of the
Lenders or the Administrative Agent, or any of them, under or with respect to any such documents.
References in the Credit Agreement (including references to such Credit Agreement as amended
hereby) to “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein”, and
“hereof”) and in any Loan Document to the Credit Agreement shall be deemed to be references to the
Credit Agreement as amended hereby.
Section 6. Representations and Warranties/No Default. By its execution hereof, and after
giving effect to this Amendment, the Borrower hereby certifies that:
(a) each of the representations and warranties set forth in the Credit Agreement and the other
Loan Documents is true and correct in all material respects as of the date hereof as if fully set
forth herein (other than representations and warranties which speak as of a specific date pursuant
to the Credit Agreement, which representations and warranties shall have been true and correct in
all material respects as of such specific dates) and that as of the date hereof no Default or Event
of Default has occurred and is continuing, and
(b) the execution, delivery and performance of this Amendment have been authorized by all
requisite corporate action on the part of the Borrower and the Guarantors.
Section 7. Acknowledgements. By their execution hereof, each of the Borrower and the
Guarantors hereby expressly (a) consents to the modifications and amendments set forth in this
Amendment, (b) reaffirms all of its respective covenants, representations, warranties and other
obligations set forth in each of the Loan Documents to which it is a party and (c) acknowledges,
represents and agrees that its respective covenants, representations, warranties and other
obligations set forth in each of the Loan Documents to which it is a party remain in full force and
effect.
Section 8. Expenses. The Borrower shall pay all reasonable out-of-pocket expenses of the
Administrative Agent in connection with the preparation, execution and delivery of this Amendment,
including, without limitation, the reasonable and invoiced fees and disbursements of counsel for
the Administrative Agent.
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Section 9. Governing Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York.
Section 10. Counterparts. This Amendment may be executed in separate counterparts, each of
which when executed and delivered is an original but all of which taken together constitute one and
the same instrument.
Section 11. Fax Transmission. A facsimile, telecopy or other reproduction of this Amendment
may be executed by one or more parties hereto, and an executed copy of this Amendment may be
delivered by one or more parties hereto by facsimile or similar instantaneous electronic
transmission device pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original of this Amendment
as well as any facsimile, telecopy or other reproduction hereof.
Section 12. Further Assurances. Parties here to agree to make, execute and deliver all such
additional documents and further acts, as may be reasonably necessary to document and consummate
the transactions contemplated hereby.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
| BORROWER: | ||||
| MEDCATH HOLDINGS CORP. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx |
|||
| Title: | Executive Vice President and Chief Financial Officer | |||
| PARENT GUARANTOR: | ||||
| MEDCATH CORPORATION |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx |
|||
| Title: | Executive Vice President and Chief Financial Officer | |||
| ADMINISTRATIVE AGENT: | ||||
| BANK OF AMERICA, N.A., as Administrative Agent, and on behalf of and at the direction of the Lenders | ||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Assistant Vice President | |||
| GUARANTORS: | ||||
[CORPORATE SEAL]
|
MEDCATH FINANCE
COMPANY, LLC, a North Carolina limited liability company |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
MEDCATH INCORPORATED, a North Carolina corporation | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[Signature Pages Continue]
[CORPORATE SEAL]
|
MEDCATH OF ARKANSAS, INC., a North Carolina corporation | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
DOCTORS COMMUNITY HOSPITAL MANAGEMENT, INC., a North Carolina corporation |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
MEDCATH PARTNERS, LLC, a North Carolina limited liability company |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
MEDCATH CONSULTING & MANAGEMENT, INC., an Arizona corporation |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
AHH MANAGEMENT, INC., a North Carolina corporation | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[Signature Pages Continue]
[CORPORATE SEAL]
|
DTO MANAGEMENT, INC., a North Carolina corporation | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
HOSPITAL MANAGEMENT IV,
INC., a North Carolina corporation |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
HARLINGEN HOSPITAL MANAGEMENT, INC., a North Carolina corporation |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
HARLINGEN PARTNERSHIP HOLDINGS, INC., an Arizona corporation |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
INTERIM DIAGNOSTIC SOLUTIONS, LLC, a Delaware limited liability company |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[Signature Pages Continue]
[CORPORATE SEAL]
|
LOUISIANA HOSPITAL MANAGEMENT, INC., a North Carolina corporation |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
NM HOSPITAL MANAGEMENT,
INC., a North Carolina corporation |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
SAN ANTONIO HOSPITAL MANAGEMENT, INC., a North Carolina corporation |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
SIOUX FALLS HOSPITAL MANAGEMENT, INC., a North Carolina corporation |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
VENTURE HOLDINGS, INC., an Arizona corporation | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[Signature Pages Continue]
[CORPORATE SEAL]
|
AUSTIN MOB, INC., a North Carolina corporation | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
HHBF, INC., a North Carolina corporation | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
SAN ANTONIO HOLDINGS, INC., an Arizona corporation | |||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[CORPORATE SEAL]
|
VENTURE HOLDINGS, INC., an Arizona corporation | |||
| |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
[Signature Pages Continue]
Exhibit A
LENDER AUTHORIZATION
Medcath Holdings Corp.
First Amendment
First Amendment
_______ __, 2010
Bank of America, N.A.
Agency Management
000 Xxxxx XxXxxxx Xxxxxx
Mail Code: IL1-231-10-41
Xxxxxxx, XX 00000
Agency Management
000 Xxxxx XxXxxxx Xxxxxx
Mail Code: IL1-231-10-41
Xxxxxxx, XX 00000
| Re: | First Amendment dated as of _________ ___, 2010 (the “Agreement”) to that certain Amended and Restated Credit Agreement dated as of November 10, 2008 (as amended, the “Credit Agreement”) among Medcath Corporation, as Parent Guarantor, Medcath Holdings Corp. (the “Borrower”), the lenders party thereto (the “Lenders”) and Bank of America, N.A., as administrative agent (the “Administrative Agent”) for the Lenders |
This Lender Authorization acknowledges our receipt and review of the execution copy of the
Agreement in the form posted on Intralinks or otherwise distributed to us by the Administrative
Agent. By executing this Lender Authorization, we hereby approve the Agreement and authorize the
Administrative Agent to execute and deliver the Agreement on our behalf.
Each financial institution purporting to be a Lender and executing this Lender Authorization
agrees or reaffirms that it shall be a party to the Agreement and the other Loan Documents to which
Lenders are parties and shall have the rights and obligations of a “Lender”, and agrees to be bound
by the terms and provisions applicable to a “Lender” under each such agreement.
A facsimile, telecopy, pdf or other reproduction of this Lender Authorization may be executed
by one or more parties hereto, and an executed copy of this Lender Authorization may be delivered
by one or more parties hereto by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes.
| [Insert name of applicable financial institution] | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
