EXHIBIT 10.9
THIRD AMENDMENT TO THE
OPERATING AGREEMENT OF
LAFAYETTE HEART HOSPITAL, LLC (the "Company")
THIS THIRD AMENDMENT (the "Amendment") to the Operating Agreement of
the Company (the "Agreement") is effective as of the date the Agreement is
initially adopted by its Member(s).
1. A new Section 3.5(g) of the Agreement shall be added as
follows:
"(g) Notwithstanding anything in Section 3.5(c) and 3.5(e) to the
contrary, in no event shall the Board of Directors require, prior to the
Opening Date, any mandatory additional Capital Contributions from any Member
pursuant to Section 3.5(c) or request any additional optional Capital
Contributions from any member pursuant to Section 3.5(e) as a result of the
aggregate actual cost of all the items included in the Capital Expenses Budget
as set forth in the Company's offering documents, as amended, and the Company's
Pre-Opening Expenses (the "Actual Cost"), exceeding an aggregate amount of $33
million (the "Maximum"), so long as each of the following conditions are
satisfied:
(i) All Members of the Company have, in the aggregate,
contributed the full amount of the initial Capital Contributions
required by Section 3.1 of the Agreement;
(ii) Not more than one million ($1,000,000) of the
difference between the Actual Cost and $29,415,000, is a result of any
one or more of the following: (x) costs incurred by the Company due to
Acts of God, civil or military authority, acts of public enemy, war,
accidents, fires, explosions, earthquakes, floods, failure of
transportation, strikes or other work interruptions by employees of
any similar or dissimilar cause beyond the reasonable control of LHMI;
(y) changes approved by the Board in the scope of services to be
provided by the Hospital as currently set forth in Section 2.3 of the
Agreement, including without limitation any change in the square
footage or number of operating rooms or cardiac catheterization
laboratories of the Hospital; or (z) changes approved by the Board in
the equipment to be purchased for the Hospital beyond that
contemplated by the Company's offering documents, as amended; and
(iii) LHMI has approved the contractor selected by the
Company's Board of Directors for the construction of the Hospital.
If any of the conditions set forth in (i) to (iii) are not satisfied, the Board
of Directors shall be permitted to require or request additional Capital
Contributions otherwise in accordance with the terms of this Agreement at any
time, whether before or after the Opening Date. If all of the conditions set
forth in(i) to (iii) are satisfied and the Board of Directors determines that
additional funds are needed by the Company, and the Company is then unable
pursuant to this Section 3.5(g) to make additional capital calls, and so long
as such additional funding is approved by the Board of Directors in the manner
as specified in this Agreement (the approval of the members of the Board of
Directors not to be unreasonably withheld or delayed), the LHMI
or one of its Affiliates shall be required to arrange, if permitted by
Company's current obligations to its Lenders (using commercially reasonable
efforts to obtain Lender approval therefor), financing pursuant to Section
3.5(b). If such financing is not available, LHMI or one of its Affiliates shall
be required to loan such funds to the Company at the Prime Rate plus one
percent (1%) per annum which loan shall be secured by the Company's assets, and
such loan shall be deemed made pursuant to Section 3.5(d) of this Agreement.
Interest shall be paid monthly in arrears and principal shall be repaid
according to a schedule to be reasonably agreed upon by the Company and LHMI or
its Affiliate. In no event shall this additional loan made by LHMI or one of
its Affiliates increase any principal amount of loans required to be made by
LHMI or its Affiliate pursuant to Section 3.5(a) or 3.5(c), including loans
required to be made for purposes of fulfilling the requirements of Sections
3.5(c) or 3.5(e) as a condition to the Board of Directors requiring or
requesting additional Capital Contributions."
Capitalized terms not defined herein shall be defined as set forth in the
Agreement. Except as provided herein, and as provided in the First and Second
Amendments to the Agreement previously agreed to by the Members, the Agreement
shall remain in full force and effect.
[***]
[***] These portions of this exhibit have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment.
For the sole and exclusive purposes of (i) guaranteeing the full performance of
LHMI's obligations under Article III of the Agreement to make initial capital
contributions pursuant to Section 3.1 and to make additional capital
contributions up to the maximum obligation of LHMI for such additional capital
contributions pursuant to Section 3.5(c) of the Agreement; (ii) guaranteeing
the obligations of LHMI with respect to the loans to the Company under Section
3.5(a) and 3.5(g) of the Agreement; (iii) guaranteeing the obligations of LHMI
with respect to the non-compete provisions of Section 5.10 of the Agreement;
and (iv) otherwise acknowledging the rights and responsibilities of LHMI under
this Agreement, MedCath Corporation hereby executed this Amendment.
[***]
[***] These portions of this exhibit have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment.
