OMNIBUS CREDIT AGREEMENT AMENDMENT
Exhibit 99.1
OMNIBUS CREDIT AGREEMENT AMENDMENT
OMNIBUS
CREDIT AGREEMENT AMENDMENT dated as of April 13, 2010 (this “Omnibus Amendment”)
among (i) INTEGRATED HEALTHCARE HOLDINGS, INC., a Nevada corporation (“IHHI”), WMC-SA, INC.,
a California corporation (“WMC-SA”), WMC-A,
INC., a California corporation (“WMC-A”), XXXXXXX
MEDICAL CENTER, INC., a California corporation (“Xxxxxxx”), COASTAL
COMMUNITIES HOSPITAL, INC., a California corporation (“Coastal”), PACIFIC
COAST HOLDINGS INVESTMENT, LLC, a California limited liability company (“PCHI”), and
GANESHA REALTY, LLC, a California limited liability company (“Ganesha”), (ii) SPCP
GROUP IV, LLC, a Delaware limited liability company (“SP 1”) and SPCP
Group, LLC, a Delaware limited liability company (“SP 2” and together
with SP 1, the “Lender”), as the
Lender under each Credit Agreement (as defined below) and (ii) SILVER POINT
FINANCE, LLC, a Delaware limited liability company (the “Lender Agent” and
together with the Lender, “Silver Point”), as
the Lender Agent under each Credit Agreement.
R E C I T A L S
WHEREAS, IHHI, WMC-SA, WMC-A,
Xxxxxxx, Coastal (together with IHHI, WMC-SA, WMC-A and Xxxxxxx the “Borrowers”), PCHI,
Ganesha and OC-PIN (together with PCHI and Ganesha, the “Credit Parties” and
PCHI and OC-PIN, the “$80,000,000
Guarantors”) and the Lender are parties to that certain Credit Agreement
($80,000,000 Facility) dated as of October 9, 2007 (as amended by the certain
Amendment No. 1 dated April 2, 2009 and that certain Acknowledgement, Waiver and
Consent and Amendment to Credit Agreements dated April 2, 2009 and as may be
further amended, supplemented or modified, the “$80,000,000 Credit
Agreement”), providing, subject to the terms and conditions thereof, for
loans made, and extensions of credit (by means of loans) to be made, by the
Lender to the Borrowers in an aggregate principal amount equal to
$80,000,000;
WHEREAS, the Borrowers and the
Credit Parties (wherein PCHI and OC-PIN are guarantors and in such capacity
shall hereinafter be referred to as the “$50,000,000
Guarantors”) and the Lender are parties to that certain Revolving Credit
Agreement ($50,000,000 Facility) dated as of October 9, 2007 (as amended by that
certain Amendment dated June 10, 2008, that certain Amendment dated June 20,
2008 and that certain Amendment No. 1 dated April 2, 2009 and that certain
Acknowledgment, Waiver and Consent and Amendment to Credit Agreements dated
April 2, 2009 and as may be further amended, supplemented or modified, the
“50,000,000 Credit
Agreement”), providing, subject to the terms and conditions thereof, for
extensions of credit (by means of loans) to be made by the Lender to the
Borrowers in an aggregate principal or face amount not exceeding
$50,000,000;
WHEREAS, the
Borrowers and the Credit Parties (wherein PCHI and OC-PIN are guarantors and in
such capacity shall hereinafter be referred to as the “$10,700,000
Guarantors” and together with the $80,000,000 Guarantors and the
$50,000,000 Guarantors, the “Guarantors”) and the
Lender are parties to that certain Credit Agreement ($10,700,000 Facility) dated
as of October 9, 2007 (as amended by that certain Acknowledgment, Waiver and
consent and Amendment to Credit Agreements dated as of April 2, 2009 and as may
be further amended, supplemented or modified, the “$10,700,000 Credit
Agreement” and together with the $80,000,000 Credit Agreement and the
$50,000,000 Credit Agreement, the “Credit Agreements”),
providing, subject to the terms and conditions thereof, for loans made by the
Lender to the Borrowers in an aggregate principal of $10,700,000;
WHEREAS, one or more Events of
Default (as defined in each Credit Agreement) (the “Current Events of
Defaults”) under the Credit Agreements have occurred and are continuing
and Borrowers have been operating under temporary forbearance with respect to
such Current Events of Default;
WHEREAS, the Borrowers, Credit
Parties and the Lender have agreed to amend certain provisions of the Credit
Agreements as provided herein; and
WHEREAS, the Lender has agreed
to waive the Existing Defaults (as defined herein) in connection with such
amendments;
NOW, THEREFORE, the
Borrowers, the Credit Parties and the Lender wish now to amend the Credit
Agreements in certain respects, and accordingly, the parties hereto hereby agree
as follows:
SECTION 1. DEFINITIONS. Except
as otherwise defined in this Omnibus Amendment, terms defined in the Credit
Agreements are used herein as defined therein.
SECTION 2. AMENDMENTS
TO THE $80,000,000 CREDIT AGREEMENT. Subject to the
satisfaction of the conditions precedent specified in Section 12 below, but
effective as of the date hereof, the $80,000,000 Credit Agreement shall be
amended as follows:
2.01. References
Generally. References in the $80,000,000 Credit Agreement
(including references to the $80,000,000 Credit Agreement as amended hereby) to
“this Agreement” (and indirect references such as “hereunder”, “hereby”,
“herein” and “hereof”) shall be deemed to be references to the $80,000,000
Credit Agreement as amended hereby.
2.02. Definitions. Annex
A of the $80,000,000 Credit Agreement shall be amended by amending the following
definitions (to the extent already included in said Annex A) and adding the
following definitions in the appropriate alphabetical location (to the extent
not already included in said Annex A):
“Amendment No. 3 Effective
Date” means April 13, 2010.
“A/R Financing” has the meaning
assigned to such term in Section 1.17.
“A/R Lender” has the meaning
assigned to such term in Section 1.17.
“Change of Control” means that
any of the following have occurred: (a) Xxxx X. Xxxxxxxxx, M.D.
and his Affiliates no longer beneficially own a majority of the outstanding
shares (and/or securities readily convertible into or exercisable for shares) of
Voting Stock on a fully diluted basis of IHHI; or (b) during any period of
twelve (12) consecutive calendar months, Persons who at the beginning of
such period constituted the majority of the board of directors of any Borrower
or the majority of the managers of PCHI (together with any new Person whose
nomination or election or appointment was approved by the required vote of the
shareholders or members) cease for any reason (other than death or personal
disability) to constitute a majority of the board of directors of any Borrower
or the majority of the managers of PCHI; or (c) IHHI ceases to own,
directly or indirectly, and control, all (100%) of the Stock of WMC-A,
WMC-SA, Xxxxxxx and Coastal; or (d) Xxxxxxx X. Xxxxxxxxx ceases to be Chief
Executive Officer or Director of IHHI, or WMC-A, or WMC-SA, or Xxxxxxx, or
Coastal, and a replacement Chief Executive Officer acceptable to Lender in its
sole discretion is not employed by the applicable Borrower within thirty
(30) calendar days after the date that Xxxxxxx X. Xxxxxxxxx is no longer
Chief Executive Office or Director of IHHI, or WMC-A, or WMC-SA, or Xxxxxxx, or
Coastal; (e) Ganesha ceases to own, directly or indirectly, at least 49% of
the membership interests of PCHI or any other Person (other than any entity the
shareholders and shareholdings of which are substantially the same as the
non-Ganesha shareholders and shareholdings of PCHI on the Amendment No. 3
Effective Date) and its Affiliates owns, directly or indirectly, a greater
percentage of membership interests of PCHI than Ganesha; or (f) Xxxx X.
Xxxxxxxxx, M.D. ceases to own, directly or indirectly, a majority of the
outstanding Voting Stock of Ganesha. Notwithstanding the foregoing, a
Change of Control shall not occur as a result of the exercise by Xxxx X.
Xxxxxxxxx, M.D., SPCP Group IV, LLC, SPCP Group, LLC or their respective
Affiliates or designees or assigns of the warrants issued by IHHI to Xxxx X.
Xxxxxxxxx, M.D., KPC Resolution Company, LLC (so long as it is controlled by
Xxxx X. Xxxxxxxxx, M.D.), SPCP Group IV, LLC, and SPCP Group, LLC or their
respective designees or assigns on the Amendment No. 3 Effective
Date.
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“$50,000,000 Revolving Credit
Agreement” means that certain $50,000,000 Revolving Credit Agreement of
even date herewith, executed by Borrowers, as borrowers, and Medical Provider
Financial Corporation I, as Lender, as may be amended, supplemented or otherwise
modified and in effect from time to time.
“Interest Rate” means the
following:
(a)
With respect to the $45,000,000 Real Estate Term Loan, simple interest shall be
charged at the per annum fixed rate of 14.5%.
(b) With
respect to the $35,000,000 Non-Revolving Line of Credit Loan, simple interest
shall be charged at the per annum fixed rate of 14.5%.
“Lender” means (i) prior to the
Amendment No. 3 Effective Date, Medical Provider Financial Corporation II, a
Nevada corporation and (ii) on and after the Amendment No. 3 Effective Date,
SPCP Group IV, LLC, a Delaware limited liability company and SPCP Group LLC, a
Delaware limited liability company, and, in each case, if either shall decide to
assign all or any portion of the Obligations, such term shall include any
assignee(s) of such Lender.
“Lender Agent” means Silver
Point Finance, LLC, a Delaware limited liability company, and its successors and
assigns.
“New $10,700,000 Credit
Agreement” has the meaning set forth in the Recitals to this Agreement,
as the New $10,700,000 Credit Agreement may be amended, supplemented or
otherwise modified and in effect from time to time.
“Participation Agreement” means
that certain Participation Agreement dated as of April 13, 2010 among Lender,
KPC Resolution Company, LLC and Silver Point Finance, LLC, as participation
agent.
“Second Lien Collateral” has
the meaning assigned to such term in Section 1.17.
“Stated Maturity Date” means
April 13, 2013.
“Voting Stock” means, with
respect to any Person, any class or classes of capital stock or other ownership
interests pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect directors, managers or trustees (as
applicable) of such Person (irrespective of whether or not, at the time, stock
of any other class or classes has, or might have, voting power by reason of the
happening of any contingency).
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2.03. Mandatory
Prepayments. Section 1.4(b) of
the $80,000,000 Credit Agreement is hereby amended and restated to read in its
entirety as follows:
“(b) Mandatory
Prepayments. Notwithstanding the foregoing, (i) immediately
upon receipt by Borrowers or Credit Parties of any cash proceeds of any sale or
other disposition of any Collateral, Borrowers shall prepay the Loans in an
amount equal to all such proceeds, net of (A) commissions and other reasonable
and customary transaction costs, fees and expenses properly attributable to such
transaction and payable by Borrowers in connection therewith (in each case, paid
to non-Affiliates), (B) transfer taxes, and (C) an appropriate reserve for
income taxes; (ii) on the date of availability of any A/R Financing executed by
the Borrowers as contemplated by Section 1.17, the Borrowers shall prepay the
$35,00,000 Non-Revolving Line of Credit Loan and all accrued and unpaid interest
and fees thereon in an aggregate amount equal to the outstanding balances
thereof as of such date; and (iii) after giving effect to any prior application
of funds to prepay the $10,700,000 Convertible Term Loan required on such date,
immediately upon receipt by Borrowers or Credit Parties of any payment or
reimbursement of enhanced federal matching funds, net of: provider fees, pledged
funds due to the California Health Foundation & Trust and estimated federal
and state taxes on such net funds (assuming a marginal blended tax rate of 40%)
received from Medi-Cal upon implementation of California AB1383 (or any
substitute, replacement or successor legislation or payments), Borrowers shall
prepay the $35,000,000 Non-Revolving Line of Credit Loan or any outstanding A/R
Financing, as applicable, in an amount equal 65% of such payment or
reimbursement up to an annual aggregate prepayment equal to $25,000,000, provided that in the
case of a prepayment of any A/R Financing, commitments under such A/R Financing
equal to the amount of such prepayment shall be permanently reduced and
terminated (but in no event shall such commitments be required to be reduced
below $10,000,000). Any prepayment pursuant to clause (i) or (iii) of
the immediately foregoing sentence shall be applied in accordance with Section
1.4(c) (Application of Prepayments); provided that no such
prepayment under clause (iii) shall be applied to the $45,000,000 Real Estate
Term Loan. The following shall not be subject to mandatory prepayment
under this subsection: (1) proceeds of sales of Inventory in the
ordinary course of business; (2) proceeds of collection of Accounts in the
ordinary course of business (except as otherwise set forth herein); and (3)
proceeds of sales of Equipment and other personal property in the ordinary
course of business so long as such Equipment and other personal property is
replaced (if necessary in the exercise of prudent business judgment) by
Equipment and other personal property of equal or greater value or
utility.”
2.04. Interest;
Payments; Principal on the Loans. Section 1.5 of the
$80,000,000 Credit Agreement is hereby amended follows:
(a) Section
1.5(b) is hereby amended and restated to read in its entirety as
follows:
“(b) Principal on the
Loans. The Borrowers hereby unconditionally promise to pay the
unpaid principal amount of the Loans on the Maturity Date.”
(b) Section
1.5(f) is hereby amended and restated to read in its entirety as
follows:
“(f) Payment to Lender’s
Account. All payments by Borrowers to Lender hereunder shall
be made to the following deposit account unless and until Lender directs
otherwise:
Bankers
Trust
ABA:
000-000-000
A/C Name:
Global Loan Services
A/C #:
99907998
Ref:
IHHI”
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2.05. A/R
Facility. Article 1 of the $80,000,000 Credit Agreement is
hereby amended by adding the following new Section 1.17 immediately after the
existing section 1.16:
“1.17 A/R
Financing. In the event that Borrowers obtain third party
financing (“A/R
Financing”) which is a borrowing base facility secured by Borrowers’
Accounts and which is in form and substance reasonably satisfactory to Lender,
Lender shall promptly take such action and execute any such documents as may be
reasonably requested by Borrower’s Representative and at Borrowers’ expense to
grant a prior Lien to the lender under such A/R Financing (the “A/R Lender”) in
respect of the Collateral described in clauses (a) (other than items of
equipment which are or become Fixtures), (b) and (c) of the definition thereof
and the proceeds of such Collateral (collectively, the “Second Lien
Collateral”) so long as:
(i) the
Borrowers repay in full the outstanding principal balance of and any and all
accrued and unpaid interest and fees on the Working Capital Facility Loan (as
defined in the $50,000,000 Revolving Credit Agreement) and the $35,000,000
Non-Revolving Line of Credit Loan on the date such A/R Financing becomes
effective; and
(iii) an
intercreditor agreement reasonably acceptable to Lender is entered into between
Lender and the A/R Lender, which intercreditor agreement shall become effective
upon the execution of the A/R Financing.
If at any
time such A/R Financing terminates, Lender shall immediately and automatically
have a first lien on the Second Lien Collateral and the Borrowers shall execute
any and all agreements or documents and make any and all filings as requested by
Lender in order to give effect thereto.”
2.06. Participations. Section
9.1(b) of the $80,000,000 Credit Agreement is hereby amended by adding the
following new sentence immediately after the last sentence thereof:
“The
Borrowers and Credit Parties and Guarantors further consent to the voting
provisions set forth in Section 3 of the Participation Agreement.”
2.07. Voting. Section
11.2 of the $80,000,000 Credit Agreement is hereby amended by adding the
following new clause (d) immediately after existing clause (c)
thereof:
“(d)
Lender
Voting. In addition to the terms set forth in the foregoing
clauses (a) through (c) of this Section 11.2, if at any time there is more than
one Lender hereunder, no amendment, modification, termination or waiver of any
provision of the Loan Documents, or consent to any departure by any Borrower or
Credit Party therefrom, shall in any event be effective without the written
concurrence of one or more Lenders having or holding Loans representing more
than fifty percent (50%) of the aggregate outstanding principal amount of the
Loans.”
2.08. Lender
Agent. Article 11 of the $80,000,000 Credit Agreement is
hereby amended by adding the provisions set forth in Exhibit A to this Omnibus
Amendment as new Section 11.21 immediately following existing Section
11.20.
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2.09. Option to
Extend Maturity Date. Section 14 of the $80,000,000 Credit
Agreement is hereby deleted in its entirety.
SECTION 3. AMENDMENTS
TO THE $50,000,000 CREDIT AGREEMENT. Subject to the
satisfaction of the conditions precedent specified in Section 12 below, but
effective as of the date hereof, the $50,000,000 Credit Agreement shall be
amended as follows:
3.01. References
Generally. References in the $50,000,000 Credit Agreement
(including references to the $50,000,000 Credit Agreement as amended hereby) to
“this Agreement” (and indirect references such as “hereunder”, “hereby”,
“herein” and “hereof”) shall be deemed to be references to the $50,000,000
Credit Agreement as amended hereby.
3.02. Recitals. Recital
(E) of the $50,000,000 Credit Agreement is hereby amended and restated to read
in its entirety as follows:
“E. [Intentionally
omitted].”
3.03. Definitions. Annex
B of the $50,000,000 Credit Agreement shall be amended by (i) deleting the
definitions “Availability”, “Borrowing Base”, “Dilution Items”, “Eligible Billed
Receivable”, “Eligible Receivable”, “Eligible Unbilled Receivable”, “Facility
Cap”, “Separate Borrowing Base Period”, (ii) amending and restating the
following definitions (to the extent already included in said Annex A) and (iii)
adding the following definitions in the appropriate alphabetical location (to
the extent not already included in said Annex B):
“ADJUSTED
LIBOR RATE” means, for any Interest Rate Determination Date with respect to an
Interest Period for a Loan, the greater of (A) two percent (2%) per annum and
(B) the rate per annum obtained by dividing (and rounding upward to the next
whole multiple of one-sixteenth of one percent (1/16 of 1%)) (i) (a) the rate
per annum (rounded to the nearest one-hundredth of one percent (1/100 of 1%))
equal to the rate determined by the Lender to be the offered rate which appears
on the page of the Telerate Screen which displays an average British Bankers
Association Interest Settlement Rate (such page currently being page number 3740
or 3750, as applicable) for deposits (for delivery on the first day of such
period) with a term equivalent to such period in Dollars, determined as of
approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (b) in the event the rate referenced in the preceding
clause (a) does not appear on such page or service or if such page or service
shall cease to be available, the rate per annum (rounded to the nearest
one-hundredth of one percent (1/100 of 1%)) equal to the rate determined by the
Lender to be the offered rate on such other page or other service which displays
an average British Bankers Association Interest Settlement Rate for deposits
(for delivery on the first day of such period) with a term equivalent to such
period in Dollars, determined as of approximately 11:00 a.m. (London,
England time) on such Interest Rate Determination Date, or (c) in the event the
rates referenced in the preceding clauses (a) and (b) are not available, the
rate per annum (rounded to the nearest one-hundredth of one percent (1/100 of
1%)) equal to the offered quotation rate to first class banks in the London
interbank market for deposits (for delivery on the first day of the relevant
period) in Dollars of amounts in same day funds comparable to the principal
amount of the applicable Loan, for which the Adjusted LIBOR Rate is then being
determined with maturities comparable to such period as of approximately 11:00
a.m. (London, England time) on such Interest Rate Determination Date as
determined by the Lender in accordance with its customary practices, by (ii) an
amount equal to (a) one, minus (b) the
Applicable Reserve Requirement; provided that in no
event shall the rate determined under clause (B) of this definition exceed five
percent (5%) per annum.
“ADVANCE”
means a loan pursuant to the terms of this Agreement prior to the Amendment No.
5 Effective Date.
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“AFFECTED
LOANS” has the meaning set forth in Section 2.16(b).
“ALTERNATE
INTEREST RATE” means the greater of (i) the Prime Rate in effect on such day,
and (ii) the Federal Funds Effective Rate in effect on such day plus
2%. Any change in the Alternate Interest Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective day of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
“ALTERNATE
RATE LOANS” means Loans bearing interest at a rate determined by reference to
the Alternate Interest Rate.
“AMENDMENT
NO. 5” means that certain Omnibus Credit Agreement Amendment dated as of the
Amendment No. 5 Effective Date among the Borrowers, the Credit Parties and the
Lender.
“AMENDMENT
NO. 5 EFFECTIVE DATE” means April 13, 2010.
“APPLICABLE
RESERVE REQUIREMENT” means, at any time, for any Loan, the maximum rate,
expressed as a decimal, at which reserves (including any basic marginal,
special, supplemental, emergency or other reserves) are required to be
maintained by a Lender with respect thereto against “Eurocurrency Liabilities”
(as such term is defined in Regulation D) under regulations issued from time to
time by the Board of Governors of the Federal Reserve System or other applicable
banking regulator. Without limiting the effect of the foregoing, the
Applicable Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of liabilities
which includes deposits by reference to which the applicable Adjusted LIBOR Rate
or any other interest rate of a Loan is to be determined, or (ii) any category
of extensions of credit or other assets which include Loans. A Loan
shall be deemed to constitute Eurocurrency liabilities and as such shall be
deemed subject to reserve requirements without benefits of credit for proration,
exceptions or offsets that may be available from time to time to the applicable
Lender. The rate of interest on Loans shall be adjusted automatically
on and as of the effective date of any change in the Applicable Reserve
Requirement.
“A/R
FINANCING” has the meaning assigned to such term in the $80,000,000 Credit
Agreement.
“BORROWING
DATE” means the date of the making or continuance or a Loan.
“CHANGE
OF CONTROL” means that any of the following have
occurred: (a) Xxxx X. Xxxxxxxxx, M.D. and his Affiliates no
longer beneficially own a majority of the outstanding shares (and/or securities
readily convertible into or exercisable for shares) of Voting Stock on a fully
diluted basis of IHHI; or (b) during any period of twelve
(12) consecutive calendar months, Persons who at the beginning of such
period constituted the majority of the board of directors of any Borrower or the
majority of the managers of PCHI (together with any new Person whose nomination
or election or appointment was approved by the required vote of the shareholders
or members) cease for any reason (other than death or personal disability) to
constitute a majority of the board of directors of any Borrower or the majority
of the managers of PCHI; or (c) IHHI ceases to own, directly or indirectly,
and control, all (100%) of the Stock of WMC-A, WMC-SA, Xxxxxxx and Coastal;
or (d) Xxxxxxx X. Xxxxxxxxx ceases to be Chief Executive Officer or
Director of IHHI, or WMC-A, or WMC-SA, or Xxxxxxx, or Coastal, and a replacement
Chief Executive Officer acceptable to Lender in its sole discretion is not
employed by the applicable Borrower within thirty (30) calendar days after
the date that Xxxxxxx X. Xxxxxxxxx is no longer Chief Executive Office or
Director of IHHI, or WMC-A, or WMC-SA, or Xxxxxxx, or Coastal; (e) Ganesha
ceases to own, directly or indirectly, at least 49% of the membership interests
of PCHI or any other Person (other than any entity the shareholders and
shareholdings of which are substantially the same as the non-Ganesha
shareholders and shareholdings of PCHI on the Amendment No. 5 Effective Date)
and its Affiliates owns, directly or indirectly, a greater percentage of
membership interests of PCHI than Ganesha; or (f) Xxxx X. Xxxxxxxxx, M.D. ceases
to own, directly or indirectly, a majority of the outstanding Voting Stock of
Ganesha. Notwithstanding the foregoing, a Change of Control shall not
occur as a result of the exercise by Xxxx X. Xxxxxxxxx, M.D., SPCP Group IV,
LLC, SPCP Group, LLC or their respective Affiliates or designees or assigns of
the warrants issued by IHHI to Xxxx X. Xxxxxxxxx, M.D., KPC Resolution Company,
LLC (so long as it is controlled by Xxxx X. Xxxxxxxxx, M.D.), SPCP Group IV,
LLC, and SPCP Group, LLC or their respective designees or assigns on the
Amendment No. 5 Effective Date.
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“CONTINUATION
NOTICE” means a Continuation Notice substantially in the form of Exhibit B to
Amendment No. 5.
“$80 MILLION
CREDIT AGREEMENT” means that certain Credit Agreement ($80,000,000 Facility)
dated as of the date hereof by and among Borrowers, Credit Parties, Guarantors
and Medical Provider Financial Corporation II, a Nevada corporation (an
affiliate of Lender), pursuant to which Medical Provider Financial Corporation
II (or its successors and assigns, as applicable) is providing to Borrowers for
the benefit of Borrowers and the Credit Parties and the Guarantors named
therein, (a) a $45,000,000 real estate term loan, and (b) a
$35,000,000 non-revolving line of credit loan, as may be amended, supplemented
or otherwise modified and in effect from time to time.
“EQUIPMENT LOAN FACILITY” means that
certain Master Lease Agreement No. 801146 dated as of November 29, 2007 among
FPC Funding, LLC, as successor to IFC Credit Corp., and Borrower, as amended
from time to time.
“FEDERAL
FUNDS EFFECTIVE RATE” means for any day, the rate per annum (expressed, as a
decimal, rounded upwards, if necessary, to the next higher one-hundredth of one
percent (1/100 of 1%)) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day; provided, (i) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (ii) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day shall be
the average of the quotations for the day of such transactions received by
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
“INITIAL
ADVANCE” means the first, or initial, Loan funded by Lender to Borrowers on the
Closing Date, the proceeds of which were be applied, in whole or in part, to pay
to Lender the Previous Amount Owed.
“INTEREST
PAYMENT DATE” means (i) the last day of each month commencing on the first such
date to occur after the Closing Date and (ii) the last day of each Interest
Period applicable to such Loan.
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“INTEREST
PERIOD” means an interest period of one, two or three months, as selected by the
Borrower’s Representative in the applicable Notice for Request for Advance or
Continuation Notice (i) initially, commencing on the Borrowing Date or
Continuation Date thereof, as the case may be; and (ii) thereafter, commencing
on the day on which the immediately preceding Interest Period expires; provided, (a) if an
Interest Period would otherwise expire on a day that is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day unless no
further Business Day occurs in such month, in which case such Interest Period
shall expire on the immediately preceding Business Day; (b) any Interest Period
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clauses (c) of this definition, end on
the last Business Day of a calendar month; and (c) no Interest Period
with respect to any portion of the Loans shall extend beyond the Maturity
Date.
“INTEREST
RATE” means the sum of Adjusted LIBOR Rate plus 12.50% per
annum.
“INTEREST
RATE DETERMINATION DATE” means, with respect to any Interest Period, the date
that is two Business Days prior to the first day of such Interest
Period.
“LENDER”
means (i) prior to the Amendment No. 5 Effective Date, Medical Provider
Financial Corporation I, a Nevada corporation and (ii) on and after the
Amendment No. 5 Effective Date, SPCP Group IV, LLC, a Delaware limited liability
company and SPCP Group LLC, a Delaware limited liability company, and, in each
case, if either shall decide to assign all or any portion of the Obligations,
such term shall include any assignee(s) of such Lender.
“LENDER
AGENT” means Silver Point Finance, LLC, a Delaware limited liability company,
and its successors and assigns.
“LIBOR
LOANS” means Loans bearing interest at a rate determined by reference to the
Adjusted LIBOR Rate.
“LOAN”
means a Working Capital Facility Loan.
“NOTICE
OF REQUEST FOR ADVANCE” means a notice delivered to Lender by Borrower’s
Representative requesting a Loan, in substantially the same form of Exhibit “B”
attached hereto.
“PARTICIPATION
AGREEMENT” means that certain Participation Agreement dated as of April 13, 2010
among Lender, KPC Resolution Company, LLC and Silver Point Finance, LLC as
participation agent.
“PRIME
RATE” means the rate of interest quoted in The Wall Street Journal, Money Rates
Section as the Prime Rate (currently defined as the base rate on corporate loans
posted by at least seventy five percent (75%) of the nation’s thirty (30)
largest banks), as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. The Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime
Rate.
“RESERVE
PERIOD” means the period beginning on the date hereof and ending on the date, if
any, that the post-closing condition contained in Section 13(c) of the Omnibus
Amendment is satisfied.
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“REVOLVING
FACILITY” means the revolving line of credit facility to be made available by
Lender to Borrowers pursuant to this Agreement in an aggregate amount not to
exceed the Working Capital Facility Commitment.
“STATED
MATURITY DATE” means April 13, 2013.
“$10.7 MILLION
CREDIT AGREEMENT” means that certain Credit Agreement ($10,700,000 Facility)
dated as of the date hereof by and among Borrowers, Credit Parties, Guarantors
and Medical Provider Financial Corporation III, a Nevada corporation (an
affiliate of Lender), pursuant to which Medical Provider Financial Corporation
III (or its successors and assigns, as applicable) is providing to Borrowers for
the benefit of Borrowers and the Credit Parties and the Guarantors named therein
a $10,700,000 term loan, as may be amended, supplemented or otherwise modified
and in effect from time to time.
“UNUSED
COMMITMENT FEE” means, for any day, an amount equal to 0.50% per annum of the
average daily difference between (a) the Working Capital Facility Commitment on
such day and (b) the outstanding principal amount of the Working Capital
Facility Loans on such day.
“VOTING
STOCK” means, with respect to any Person, any class or classes of capital stock
or other ownership interests pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect directors, managers
or trustees (as applicable) of such Person (irrespective of whether or not, at
the time, stock of any other class or classes has, or might have, voting power
by reason of the happening of any contingency).
“WORKING
CAPITAL FACILITY COMMITMENT” means the commitment of the Lender to make or
otherwise fund any Working Capital Facility Loans. The amount of the
Lender’s Working Capital Facility Commitment as of the Closing Date was
$50,000,000 and as of the Amendment No. 5 Effective Date is
$10,000,000.
“WORKING
CAPITAL FACILITY LOAN” means a Loan made by the Lender to the Borrowers pursuant
to Section 2.1.
“YIELD
MAINTENANCE” means an amount equal to the future value at the last day of the
Term, discounted to the present value as of the later of the Termination Date or
the date of prepayment using the most recently published asked yield to maturity
as quoted in the Wall Street Journal for the United States Treasury Notes or
Bills with a maturity date closest to the last day of the Term of the product
of: (A) the all in effective yield (measured as a percentage per
annum) on the Revolving Facility for the six months prior to the Termination
Date; (B) the aggregate of the Working Capital Facility Commitments; and
(C) the quotient of (i) the number of months remaining in the Term,
and (ii) twelve.
3.04. Revolving
Facility. Section 2.1 of the $50,000,000 Credit Agreement is
hereby amended and restated in its entirety to read as follows:
“Section
2.1. REVOLVING FACILITY.
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During
the Term, subject to the terms and conditions hereof, the Lender agrees to make
Loans to the Borrowers in an aggregate amount up to but not exceeding the
Lender’s Working Capital Facility Commitment; provided that (i) after giving
effect to the making of any Working Capital Facility Loans, in no event shall
the aggregate principal amount of all outstanding Working Capital Facility Loans
exceed $10,000,000 and (ii) during the Reserve Period after giving effect to the
making of any Working Capital Facility Loans, in no event shall the aggregate
principal amount of all outstanding Working Capital Facility Loans exceed
$9,000,000. Amounts borrowed pursuant to this Section 2.1 may be
repaid and reborrowed during the Term. The Lender’s Working Capital Facility
Commitment shall expire on the Maturity Date and all Working Capital Facility
Loans and all other amounts owed hereunder with respect to the Working Capital
Facility Loans and the Working Capital Facility Commitment shall be paid in full
no later than such date. So long as the Reserve Period is continuing
there shall be a $1,000,000 reserve against the availability on the Working
Capital Facility and the Lender shall be and hereby is authorized, upon the
occurrence and continuance of an event of default under the Equipment Loan
Facility or an Event of Default under the Loans, to apply (but shall not be
obligated to apply) such portion of the $1,000,000 reserve to repay in full the
Equipment Loan Facility and any such application of funds shall be a borrowing
hereunder.”
3.05. Interest. Section
2.3 of the $50,000,000 Credit Agreement shall be amended and restated in its
entirety to read as follows:
“Section
2.3. INTEREST.
(a) Each
Loan shall bear interest at the applicable Interest Rate on the unpaid principal
amount thereof from the date made through repayment (whether by acceleration or
otherwise) thereof; provided that the
Loans will bear interest at the Alternate Interest Rate plus 12.5% if
required by Section 2.16.
(b) The
Interest Period with respect to any Loan shall be selected by Borrower’s
Representative and notified to the Lender pursuant to the applicable Notice of
Request for Advance or Continuation Notice, as the case may be. In
the event Borrower’s Representative fails to specify the Interest Period for any
Loan in the applicable Notice of Request for Advance or Continuation Notice,
Borrower’s Representative shall be deemed to have selected an Interest Period of
one month. As soon as practicable after 10:00 a.m. (Las Vegas time)
on each Interest Rate Determination Date, the Lender shall determine (which
determination shall, absent manifest error, be final, conclusive and binding
upon all parties) the interest rate that shall apply to the Loans for which an
interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in
writing) to Borrower’s Representative.
(c) Except
as otherwise set forth herein, interest on each Loan shall be payable in arrears
on and to (i) each Interest Payment Date; (ii) upon any prepayment of that Loan,
whether voluntary or mandatory, to the extent accrued on the amount being
prepaid; and (iii) on the Maturity Date.
(d) Company
shall deliver a Continuation Notice to the Lender no later than 10:00 a.m. (Las
Vegas time) at least three Business Days in advance of the proposed continuation
date. Except as otherwise provided herein, a Continuation Notice for
continuation of any Loans (or telephonic notice in lieu thereof) shall be
irrevocable on and after the related Interest Rate Determination Date, and
Borrower’s Representative shall be bound to effect a continuation in accordance
herewith.”
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3.06. Disbursements;
Notice of Request for Advance. Section 2.4 of the $50,000,000
Credit Agreement is hereby amended as follows:
(a) Section
2.4(a) is hereby amended by replacing “Advance” in each instance it is used with
“Loan”.
(b) The
first sentence of Section 2.4(a) is hereby amended by:
(i) replacing
“three (3) Business Days” with “five (5) Business Days”;
(ii) amending
and restating clause (ii) in its entirety to read as follows:
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“(ii) specify
the initial Interest Period to be applicable to such Loan, which shall be
a period contemplated by the definition of the term “Interest
Period,”
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;
and
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(iii) amending
and restating clause (v) in its entirety to read as follows:
“(v) specify
the appropriate Borrower’s account(s) as set forth on Disclosure Schedule 2.4 to
which such Loan shall be disbursed.”
(c) The
second sentence of Section 2.4(a) is hereby deleted in its
entirety.
(d) Section
2.4(b) is hereby amended and restated to read in its entirety as
follows:
“(b) [intentionally
omitted]”
3.07. Promise
to Pay; Manner of Payment. The second sentence of Section 2.6
of the $50,000,000 Credit Agreement is hereby amended by replacing “Advances”
where it appears therein with “Loans”.
3.08. Repayment
of Excess Advances. Section 2.7 of the $50,000,000 Credit
Agreement is hereby amended and restated in its entirety to read as
follows:
“Section
2.7 REPAYMENT OF LOANS IN EXCESS OF COMMITMENTS.
If at any
time the outstanding principal balance of the Working Capital Facility Loans
exceed the Working Capital Facility Commitment, the Borrowers shall prepay the
Working Capital Facility Loans in an amount equal to such excess.”
3.09. Mandatory
Prepayments. Section 2.9 of the $50,000,000 Credit Agreement
is hereby amended as follows:
(a) Clause
(a) is hereby amended and restated in its entirety to read as
follows:
“(a) no later than the first
Business Day following the date of a Change of Control, the Borrowers shall
prepay the Loans and all other Obligations in full in cash, together with all
accrued and unpaid interest thereon to the date of prepayment and any and all
other amounts owing to the Lender; ”
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(b) Clause
(b) is hereby amended by adding the following new sentence at the end
thereof:
“Prepayments made pursuant to this
Section 2.9(b) shall be applied to the outstanding Loans on a pro rata basis (in
accordance with the respective outstanding principal amounts thereof);
and”
(c) The
following new clauses (c) and (d) shall be added immediately after the existing
clause (b):
“(c) on
the date of availability of any A/R Financing executed by the Borrowers as
contemplated by Section 1.17 of the $80,000,000 Credit Agreement, the Borrowers
shall prepay the Working Capital Facility Loans and all accrued and unpaid
interest and fees thereon in an aggregate amount equal to the outstanding
balances thereof on such date and upon such prepayment the Working Capital
Facility Commitment shall automatically terminate.
(d)
after giving effect to any prior application of funds to prepay the Loans under
the $10.7 Million Credit Agreement and the $35,000,000 non-revolving line of
credit loan (made pursuant to the $80 Million Credit Agreement) required on
such date, immediately upon receipt by Borrowers or Credit Parties of any
payment or reimbursement of enhanced federal matching funds, net of: provider
fees, pledged funds due to the California Health Foundation & Trust and
estimated federal and state taxes on such net funds (assuming a marginal blended
tax rate of 40%) received from Medi-Cal upon implementation of California AB1383
(or any substitute, replacement or successor legislation or payments), Borrowers
shall prepay the Working Capital Facility Loans, and the Working Capital
Facility Commitment shall be permanently reduced, in an amount equal to 65% of
such payment or reimbursement up to an annual aggregate prepayment equal to
$25,000,000.”
3.10. Prepayment
of $45,000,000 Real Estate Term Loan. Section 2.10 of the
$50,000,000 Credit Agreement is hereby amended by deleting “by Medical Provider
Financial Corporation I (as lender)” therefrom.
3.11. Payments
by Lender. Section 2.11 of the $50,000,000 Credit Agreement is
hereby amended by replacing “an Advance” where it appears therein with “a
Loan”.
3.12. Collateral
Administration. Section 2.13(b) of the $50,000,000 Credit
Agreement is hereby amended by deleting the second sentence
thereof.
3.13. Evidence
of Loan. Section 2.15(c) of the $50,000,000 Credit Agreement
is hereby amended by replacing “Advances” where it appears therein with
“Loans”.
3.14. Making or
Maintaining Loans. The following new Section 2.16 shall be
added immediately after Section 2.15:
“2.16. MAKING
OR MAINTAINING LOANS
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(a) Inability to Determine
Adjusted LIBOR Rate. In the event that the Lender shall have
determined (which determination shall be final and conclusive and binding upon
all parties hereto), on any Interest Rate Determination Date with respect to any
LIBOR Loans that, by reason of circumstances affecting the London interbank
market, adequate and fair means do not exist for ascertaining the interest rate
applicable to such LIBOR Loans on the basis provided for in the definition of
Adjusted LIBOR Rate, the Lender shall on such date give notice (by telefacsimile
or by telephone confirmed in writing) to Borrower’s Representative of such
determination, whereupon (i) any Loan made on and after the date of such
determination shall be Alternate Rate Loans bearing interest at the
Alternate Interest Rate plus 12.5% per annum until such time as the Lender
notifies Borrower’s Representative that the circumstances giving rise to such
notice no longer exist, and (ii) any Continuation Notice given by Borrower’s
Representative with respect to the Loans in respect of which such determination
was made shall be deemed to be rescinded by Borrower’s
Representative.
(b) Illegality or
Impracticability of LIBOR Loans. In the event that on any date
the Lender shall have determined (which determination shall be final and
conclusive and binding upon all parties hereto but shall be made only after
consultation with Borrower’s Representative) that the making, maintaining or
continuation of its Loans (i) has become unlawful as a result of compliance by
the Lender in good faith with any law, treaty, governmental rule, regulation,
guideline or order (or would conflict with any such treaty, governmental rule,
regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or (ii) has become
impracticable, as a result of contingencies occurring after the date hereof
which materially and adversely affect the London interbank market or the
position of the Lender in that market, then, and in any such event, the Lender
shall on that day give notice (by telefacsimile or by telephone confirmed in
writing) to Borrower’s Representative of such
determination. Thereafter (1) the obligation of the Lender to make
Loans based on the Adjusted LIBOR Rate shall be suspended until such notice
shall be withdrawn by the Lender, (2) to the extent such determination by the
Lender relates to a Loan then being requested by Borrower’s Representative
pursuant to a Notice for Request for Advance or a Continuation Notice, the
Lender shall make such Loan as (or continue such Loan as or convert such Loan
to, as the case may be) an Alternate Rate Loan, (3) the Lender’s obligation to
maintain its outstanding LIBOR Loans (the “Affected Loans”)
shall be terminated at the earlier to occur of the expiration of the Interest
Period then in effect with respect to the Affected Loans or when required by
law, and (4) the Affected Loans shall automatically convert into Alternate Rate
Loans on the date of such termination. Borrower’s Representative
shall pay accrued interest on the amount so converted and all amounts due under
Section 2.16(c) in accordance with the terms thereof due to such
conversion. Notwithstanding the foregoing, to the extent a
determination by the Lender as described above relates to a LIBOR Loan then
being requested by Borrower’s Representative pursuant to a Notice of Request for
Advance or a Continuation Notice, Company shall have the option, subject to the
provisions of Section 2.16(c), to rescind such Notice of Request for Advance or
Continuation Notice by giving notice (by telefacsimile or by telephone confirmed
in writing) to the Lender of such rescission on the date on which the Lender
gives notice of its determination as described above.
(c) Compensation for Breakage or
Non Commencement of Interest Periods. Borrower’s
Representative shall compensate the Lender, upon written request by the Lender
(which request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including any interest paid or
calculated to be due and payable by the Lender to lenders of funds borrowed by
it to make or carry its LIBOR Loans and any loss, expense or liability sustained
by the Lender in connection with the liquidation or re-employment of such funds
but excluding loss of anticipated profits) which the Lender may sustain: (i) if
for any reason (other than a default by the Lender) a borrowing of any LIBOR
Loan does not occur on a date specified therefor in a Notice of Request for
Advance or a telephonic request for borrowing, or a continuation of any LIBOR
Loan does not occur on a date specified therefor in a Continuation Notice or a
telephonic request for continuation; (ii) if any prepayment or other principal
payment of any of its LIBOR Loans occurs on any day other than the last day of
an Interest Period applicable to that Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise); or (iii) if any prepayment
of any of its LIBOR Loans is not made on any date specified in a notice of
prepayment given by Borrower’s Representative.
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(d) Booking of LIBOR
Loans. The Lender may make, carry or transfer LIBOR Loans at,
to, or for the account of any of its branch offices or the office of an
Affiliate of the Lender.
(e) Assumptions Concerning
Funding of LIBOR Loans. Calculation of all amounts payable to
the Lender under this Section 2.16 shall be made as though the Lender had
actually funded each of the relevant LIBOR Loans through the purchase of a LIBOR
deposit bearing interest at the rate obtained pursuant to clause (i) of the
definition of Adjusted LIBOR Rate in an amount equal to the amount of such LIBOR
Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such LIBOR deposit from an offshore office of the Lender
to a domestic office of the Lender in the United States of America; provided, however,
the Lender may fund the LIBOR Loans in any manner it sees fit and the foregoing
assumptions shall be utilized only for the purposes of calculating amounts
payable under this Section 2.16.”
3.15. Computation
of Interest; Lawful Limits. Section 3.4 of the $50,000,000
Credit Agreement is hereby amended by adding the following new sentence
immediately after the end of the first sentence thereof and immediately before
the beginning of the second sentence thereof:
“In
computing the interest on any Loan, the date of the making of such Loan or the
first day of an Interest Period applicable to such Loan shall be included, and
the date of payment of such Loan or the expiration date of an Interest Period
applicable to such Loan shall be excluded, provided, if a Loan
is repaid on the same day on which it is made, one day’s interest shall be paid
on that Loan.”
3.16. Additional
Conditions Precedent to Funding Advances. Section 4.2 of the
$50,000,000 Credit Agreement is hereby amended as follows:
(a) The
portion of the first sentence of Section 4.2 immediately prior to clause (a)
thereof is hereby amended and restated to read in its entirety as
follows:
“The
obligations of Lender to fund any Advance or Loan (including the Initial
Advance) to Borrowers shall be subject to the following further conditions
precedent:”
(b) Section
4.2(b) is hereby amended and restated to read in its entirety as
follows:
“(b) Additional
Conditions Precedent to Funding Loans. Lender shall not be obligated
to fund any Loan to Borrowers on the Closing Date or on any other date
if:
(i) Any
representation or warranty by any Borrower or by any Credit Party or by any
Guarantor contained (1) herein, or (2) in any other Loan Document, or
(3) in the $80 Million Credit Agreement, or (4) in the
$10.7 Million Credit Agreement, or (5) in any document or instrument
executed or presented in connection with the $80 Million Credit Agreement
or $10.7 Million Agreement, is untrue, incorrect, incomplete (to the extent
such representation or warranty purports to be complete) or inaccurate in any
material respect as of such date;
15
(ii) Any
Default or Event of Default has occurred and is continuing under this Agreement,
the $80 Million Credit Agreement or the $10.7 Million Credit Agreement or would
result after giving effect to such Loan;
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(iii)
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KPC
Resolution Company, LLC, a California limited liability company, does not
consent to the funding of such Loan or, as of the Borrowing Date for such
Loan, has not funded its participated amount with respect to such Loan
pursuant to the terms of the Participation Agreement;
or
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(iv)
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Any
event or circumstance shall have occurred that has or reasonably could be
expected by the Lender to have a Material Adverse
Effect.
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The
request by Borrower’s Representative that Lender fund a Loan on any date shall
in each event be deemed to constitute, as of the date thereof, (A) a
representation and warranty by all Borrowers and all Credit Parties that the
conditions precedent in this Section 4.2 (Further Conditions Precedent to
Making Loans, etc.) to which it is a party or to which it is a signatory have
been satisfied, and (B) a reaffirmation by each Borrower and by each Credit
Party of their respective obligations under the Loan Documents.”
3.17. Representations
and Warranties; Solvency. Section 5.20 of the $50,000,000
Credit Agreement is hereby amended by replacing “Advances” where it appears
therein with “Loans”.
3.18. Representations
and Warranties; Accounts. Section 5.22 of the $50,000,000
Credit Agreement is hereby amended as follows:
(a)
Section 5.22 is hereby amended by deleting “In
determining which Accounts are Eligible Receivables,”.
(b) Clause
(j) is hereby amended by deleting “pursuant to the procedure described in the
definition of Eligible Receivables hereof”.
3.19. Representations
and Warranties; Survival. Section 5.24 of the $50,000,000
Credit Agreement is hereby amended by replacing “Advances” where it appears
therein with “Loans”.
3.20. Affirmative
Covenants; Insurance. The last sentence of Section 6.4(a) of
the $50,000,000 Credit Agreement is hereby amended and restated to read in its
entirety as follows:
“All sums
so disbursed, including reasonable attorneys’ fees, court costs and other
charges related thereto, shall be deemed to be a Working Capital Facility Loan
hereunder, shall be payable on demand by Borrowers to Lender, shall be
additional Obligations hereunder secured by the Collateral, and shall bear
interest at the Default Rate until paid in full to Lender.”
3.21. Affirmative
Covenants; Use of Proceeds. Section 6.22 of the $50,000,000
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
“6.22 USE
OF PROCEEDS.
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The
proceeds of the Working Capital Facility Loans will be used only for working
capital and general corporate purposes of the Borrowers. No part of
the proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal Reserve System or any
other regulation thereof or a violation of the Securities Exchange Act of
1934.”
3.22. Events of
Default. Clause (A) of the last paragraph of Section 8.1 of
the $50,000,000 Credit Agreement is hereby amended and restated in its entirety
to read as follows:
“(A)
terminate its Working Capital Facility Commitment, whereupon the same shall
automatically terminate, and/or”
3.23 Rights
and Remedies. Section 9.1 of the $50,000,000 Credit Agreement
is hereby amended as follows:
(a) Clause
(viii) of the first sentence of Section 9.1(b) is hereby amended by replacing
“Facility Cap” where it appears therein with “Working Capital Facility
Commitment”.
(b) Section
9.1(c) is hereby amended by replacing “Advances” where it appears therein with
“Loans”.
3.24. Delay; No
Waiver of Defaults. The last sentence of Section 10.2 of the
$50,000,000 Credit Agreement is hereby amended by replacing “Advances” where it
appears therein with “Loans”.
3.25. Termination
and Closing Date. The first sentence of Section 11.1(a) of the
$50,000,000 Credit Agreement is hereby amended by replacing “Advances” where it
appears therein with “Loans”.
3.26. Survival. The
first sentence of Section 11.2 of the $50,000,000 Credit Agreement is hereby
amended by replacing “Advances” where it appears therein with
“Loans”.
3.27. Amendments
and Waivers. Section 12.2 of the $50,000,000 Credit Agreement
is hereby amended as follows:
(a)
Section 12.2(b) is hereby amended by replacing “Facility Cap” where it appears
therein with “Working Capital Facility Commitment”.
(b) Section
12.2(c) is hereby amended by replacing “Commitment” where it appears therein
with “Revolving Facility”.
“(d) Lender
Voting. In addition to the terms set forth in the foregoing
clauses (a) through (c) of this Section 12.2, if at any time there is more than
one Lender hereunder, no amendment, modification, termination or waiver of any
provision of the Loan Documents, or consent to any departure by any Borrower or
Credit Party therefrom, shall in any event be effective without the written
concurrence of one or more Lenders having or holding the Loans representing more
than fifty percent (50%) of the aggregate outstanding principal amount of the
Loans.”
3.28. Assignments. Article
XII of the $50,000,000 Credit Agreement is hereby amended by adding the
following new Section 12.21 immediately after existing Section
12.20:
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“12.21. ASSIGNMENT
AND PARTICIPATIONS
(a) Assignment
to Qualified Assignee. Subject to the terms of this Section 12.21
(Assignment and Participations), Lender may make an assignment to a Qualified
Assignee of, or sell participations in, at any time or times, the Loan
Documents, any of the Loans, the Commitments or any portion thereof or interest
therein, including any Lender’s rights, title, interests, remedies, powers or
duties thereunder. Any assignment by a Lender
shall: (i) require the execution of an assignment agreement in
form and content reasonably satisfactory to, and acknowledged by, Lender; and
(ii) be conditioned on such assignee representing to Lender that it is
purchasing the applicable Loan to be assigned to it for its own account, for
investment purposes and not with a view to the distribution
thereof. In the case of an assignment by Lender under this Section 12.21(a)
(Assignment to Qualified Assignee), the assignee shall have, to the extent of
such assignment, the same rights, benefits and obligations as Lender
hereunder. The original Lender shall be relieved of its obligations
hereunder with respect to the Commitment or assigned portion thereof from and
after the date of such assignment. Borrowers and Credit Parties and
Guarantors hereby acknowledge and agree that any assignment shall give rise to a
direct obligation of Borrowers to the assignee and that the assignee shall be
considered to be a “Lender.” In the event Lender assigns or otherwise transfers
all or any part of the Obligations, Lender shall so notify Borrowers and Credit
Parties and Guarantors shall, upon the request of Lender, execute one or more
new notes in exchange for any of the Notes (upon the same terms), if any, being
assigned. Notwithstanding the foregoing provisions of this Section 12.21(a)
(Assignment to Qualified Assignee), Lender may at any time pledge the
Obligations held by it and Lender’s rights under this Agreement and the other
Loan Documents to a financial institution.
(b) Participations. Any
participations by Lender of all or any part of the Commitment shall be made with
the understanding that all amounts payable by Borrowers hereunder shall be
determined as if Lender had not sold such participations, and that the holder of
any such participation shall not be entitled to require Lender to take or omit
to take any action hereunder except actions directly affecting (i) any
reduction in the principal amount of, or interest rate payable with respect to,
any Loan in which such holder participates, (ii) any extension of the
scheduled amortization of the principal amount of any Loan in which such holder
participates or the final maturity date thereof, and (iii) any release of
all or substantially all of the Collateral (other than in accordance with the
terms of this Agreement, the Collateral Documents or the other Loan
Documents). Solely for purposes of Section 2.16
(Making or Maintaining Loans) and Section 6.24 (Taxes
and Other Charges), Borrowers and Credit Parties and Guarantors acknowledge and
agree that a participation shall give rise to a direct obligation of Borrowers
to the participant (in each case subject to the terms and conditions in such
Sections applicable to Lender) and the participant shall be considered to be a
“Lender.” The Borrowers and Credit Parties and Guarantors further
consent to the voting provisions set forth in Section 3 of the Participation
Agreement.
(c) Cooperation
to Effect Assignments and Participations. Borrowers and Credit
Parties shall assist Lender under this Section 12.21
(Assignment and Participations) as reasonably required to enable Lender to
effectuate any such assignment or participations, including the execution and
delivery of any and all agreements, notes and other documents and instruments as
shall be requested and, if requested by Lender, the preparation of informational
materials for, and the participation of management in meetings with, potential
assignees or participants. Borrowers and Credit Parties shall certify
the correctness, completeness and accuracy, in all material respects of all
descriptions of Borrowers and Credit Parties and their respective affairs
contained in any selling materials provided by them and all other information
provided by them and included in such materials.
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(e) Disclosures
by Lender. Lender may furnish any information concerning Borrowers
and the Credit Parties in the possession of Lender from time to time to
assignees and participants (including prospective assignees and participants);
provided that Lender shall obtain from assignees or participants confidentiality
covenants substantially equivalent to those contained in Section 12.10
(Confidentiality).”
3.29. Lender
Agent. Article 12 of the $50,000,000 Credit Agreement is
hereby amended by adding the provisions set forth in Exhibit A to this Omnibus
Amendment as new Section 12.21 immediately following existing Section
12.20.
3.30. Option to
Extend Maturity Date. Article XV of the
$50,000,000 Credit Agreement is hereby deleted in its entirety.
3.31. Annex A;
Financial Covenants. Annex A to the $50,000,000 Credit
Agreement is hereby amended as follows:
(a) Section
2 is hereby amended and restated to read in its entirety as
follows:
“2) MINIMUM
EBITDA
For (i) the Test Period ending June 30,
2010, EBITDA shall not be less than $17,500,000, (ii) the Test Period ending
September 30, 2010, EBITDA shall not be less than $10,000,000, (iv) the Test
Period ending December 31, 2010, EBITDA shall not be less than $17,500,000 and
(v) for each Test Period after the Test Period ending December 31, 2010, EBITDA
shall not be less than $20,000,000.”
(b) Section
4 is hereby deleted in its entirety.
(c) The
definition of “EBITDA” is hereby amended and restated to read in its entirety as
follows:
““EBITDA”
shall mean, for any period, the sum, without duplication, of the following for
each Borrower collectively on a consolidated basis: Net Income, plus (a)
Interest Expenses, (b) taxes on income, whether paid, payable or accrued, (c)
depreciation expense, (d) amortization expense, (e) all other non-cash,
non-recurring charges and expenses, excluding accruals for cash expenses made in
the ordinary course of business, (f) loss from any sale of assets, other than
sales in the ordinary course of business, and (g) the portion of lease payments
paid by Borrower to PCHI in respect of lease payments which are attributable to
interest minus (a) gains from any sale of assets, other than sales in the
ordinary course of business, (b) other extraordinary or non-recurring gains and
(c) to the extent included in Net Income, any payment or reimbursement of
federal matching funds received from Medi-Cal upon implementation of California
AB1383 (or any substitute, replacement or successor legislation or payments), in
each case determined in accordance with GAAP.”
(d) The
definition of “TEST PERIOD” is hereby amended and restated to read in its
entirety as follows:
““Test
Period” shall mean, with respect to each fiscal quarter beginning with fiscal
quarter ending June 30, 2010, the four most recent fiscal quarters then ended
(taken as one accounting period), or such other period as specified in the
Agreement or any Annex thereto.”
19
3.32. Annex C;
Cash Management System. Section 3 of Annex C to the
$50,000,000 Credit Agreement is hereby amended by replacing “Advances” where it
appears therein with “Loans”.
SECTION 4. AMENDMENTS
TO THE $10,700,000 CREDIT AGREEMENT. Subject to the
satisfaction of the conditions precedent specified in Section 12 below, but
effective as of the date hereof, the $10,700,000 Credit Agreement shall be
amended as follows:
4.01. References
Generally. References in the $10,700,000 Credit Agreement
(including references to the $10,700,000 Credit Agreement as amended hereby) to
“this Agreement” (and indirect references such as “hereunder”, “hereby”,
“herein” and “hereof”) shall be deemed to be references to the $10,700,000
Credit Agreement as amended hereby.
4.02. Definitions. Annex
A of the $10,700,000 Credit Agreement shall be amended by amending the following
definitions (to the extent already included in said Annex A) and adding the
following definitions in the appropriate alphabetical location (to the extent
not already included in said Annex A):
“AMENDMENT
NO. 2 EFFECTIVE DATE” means April 13, 2010.
“A/R
FINANCING” has the meaning assigned to such term in the $80,000,000 Credit
Agreement.
“A/R
LENDER” has the meaning assigned to such term in the $80,000,000 Credit
Agreement.
“CHANGE
OF CONTROL” means that any of the following have
occurred: (a) Xxxx X. Xxxxxxxxx, M.D. and his Affiliates no
longer beneficially own a majority of the outstanding shares (and/or securities
readily convertible into or exercisable for shares) of Voting Stock on a fully
diluted basis of IHHI; or (b) during any period of twelve
(12) consecutive calendar months, Persons who at the beginning of such
period constituted the majority of the board of directors of any Borrower or the
majority of the managers of PCHI (together with any new Person whose nomination
or election or appointment was approved by the required vote of the shareholders
or members) cease for any reason (other than death or personal disability) to
constitute a majority of the board of directors of any Borrower or the majority
of the managers of PCHI; or (c) IHHI ceases to own, directly or indirectly,
and control, all (100%) of the Stock of WMC-A, WMC-SA, Xxxxxxx and Coastal;
or (d) Xxxxxxx X. Xxxxxxxxx ceases to be Chief Executive Officer or
Director of IHHI, or WMC-A, or WMC-SA, or Xxxxxxx, or Coastal, and a replacement
Chief Executive Officer acceptable to Lender in its sole discretion is not
employed by the applicable Borrower within thirty (30) calendar days after
the date that Xxxxxxx X. Xxxxxxxxx is no longer Chief Executive Office or
Director of IHHI, or WMC-A, or WMC-SA, or Xxxxxxx, or Coastal; (e) Ganesha
ceases to own, directly or indirectly, at least 49% of the membership interests
of PCHI or any other Person (other than any entity the shareholders and
shareholdings of which are substantially the same as the non-Ganesha
shareholders and shareholdings of PCHI on the Amendment No. 2 Effective Date)
and its Affiliates owns, directly or indirectly, a greater percentage of
membership interests of PCHI than Ganesha; or (f) Xxxx X. Xxxxxxxxx, M.D. ceases
to own, directly or indirectly, a majority of the outstanding Voting Stock of
Ganesha. Notwithstanding the foregoing, a Change of Control shall not
occur as a result of the exercise by Xxxx X. Xxxxxxxxx, M.D., SPCP Group IV,
LLC, SPCP Group, LLC or their respective Affiliates or designees or assigns of
the warrants issued by IHHI to Xxxx X. Xxxxxxxxx, M.D., KPC Resolution Company,
LLC (so long as it is controlled by Xxxx X. Xxxxxxxxx, M.D.), SPCP Group IV,
LLC, and SPCP Group, LLC or their respective designees or assigns on the
Amendment No. 2 Effective Date.
20
“$50,000,000
REVOLVING CREDIT AGREEMENT” means that certain $50,000,000 Revolving Credit
Agreement of event date herewith, executed by Borrowers, as borrowers, and
Medical Provider Financial Corporation I, as Lender, as may be amended,
supplemented or otherwise modified and in effect from time to time.
“INTEREST
RATE” means with respect to the $10,700,000 Convertible Term Loan, simple
interest shall be charged at the per annum fixed rate of 14.5%.
“LENDER”
means (i) prior to the Amendment No. 2 Effective Date, Medical Provider
Financial Corporation III, a Nevada corporation and (ii) on and after the
Amendment No. 2 Effective Date, SPCP Group IV, LLC, a Delaware limited liability
company and SPCP Group LLC, a Delaware limited liability company and, in each
case, if either shall decide to assign all or any portion of the Obligations,
such term shall include any assignee(s) of such Lender.
“LENDER
AGENT” means Silver Point Finance, LLC, a Delaware limited liability company,
and its successors and assigns.
“NEW $80,000,000 CREDIT
AGREEMENT” has the meaning set forth in the Recitals to this Agreement, as the
New $80,000,000 Credit Agreement may be amended, supplemented or otherwise
modified and in effect from time to time.
“PARTICIPATION
AGREEMENT” means that certain Participation Agreement dated as of April 13, 2010
among Lender, KPC Resolution Company, LLC and Silver Point Finance, LLC, as
participation agent.
“SECOND
LIEN COLLATERAL” has the meaning assigned to such term in the $80,000,000 Credit
Agreement.
“STATED
MATURITY DATE” means April 13, 2013.
“VOTING
STOCK” means, with respect to any Person, any class or classes of capital stock
or other ownership interests pursuant to which the holders thereof have the
general voting power under ordinary circumstances to elect directors, managers
or trustees (as applicable) of such Person (irrespective of whether or not, at
the time, stock of any other class or classes has, or might have, voting power
by reason of the happening of any contingency).
4.03. $10,700,000
Convertible Term Loan. Section 1.3(c) of the $10,700,000
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
“(c) At
any time and from time to time, Lender shall have the right to sell, assign,
transfer and convey its interest in the $10,700,000 Convertible Term Note and
Lender’s interest in the other Loan Documents (insofar as the same pertain to
the $10,700,000 Convertible Term Loan) to any Person. Any such sale
must be in compliance with Applicable Laws.”
4.04. Prepayments;
Mandatory Prepayments. Section 1.4(b) of the $10,700,000
Credit Agreement is hereby amended by adding the following new sentence
immediately after the last sentence thereof:
21
“Mandatory
Prepayments. Notwithstanding the foregoing, (i) immediately
upon receipt by Borrowers or Credit Parties of any cash proceeds of any sale or
other disposition of any Collateral, Borrowers shall prepay the Loan in an
amount equal to all such proceeds, net of (A) commissions and other
reasonable and customary transaction costs, fees and expenses properly
attributable to such transaction and payable by Borrowers in connection
therewith (in each case, paid to non-Affiliates), (B) transfer taxes, and
(C) an appropriate reserve for income taxes; and (ii) immediately upon
receipt by Borrowers or Credit Parties of any payment or reimbursement of
enhanced federal matching funds, net of: provider fees, pledged funds due to the
California Health Foundation & Trust and estimated federal and state taxes
on such net funds (assuming a marginal blended tax rate of 40%) received from
Medi-Cal upon implementation of California AB1383 (or any substitute,
replacement or successor legislation or payments), Borrowers shall prepay the
Loans in an amount equal 65% of such payment or reimbursement up to an annual
aggregate prepayment equal to $25,000,000. Any prepayment pursuant to
clause (i) of the immediately foregoing sentence shall be applied in accordance
with Section 1.4(c)
(Application of Prepayments). The following shall not be subject to
mandatory prepayment under this subsection: (1) proceeds of
sales of Inventory in the ordinary course of business; (2) proceeds of
collection of Accounts in the ordinary course of business (except as otherwise
set forth herein); and (3) proceeds of sales of Equipment and other
personal property in the ordinary course of business so long as such Equipment
and other personal property is replaced (if necessary in the exercise of prudent
business judgment) by Equipment and other personal property of equal or greater
value or utility.”
4.05. Interest;
Payments; Principal on the Loan. Section 1.5 of the
$10,700,000 Credit Agreement is hereby amended follows:
(a) Section
1.5(b) is hereby amended and restated to read in its entirety as
follows:
“(b) Principal on the
Loans. The Borrowers hereby unconditionally promises to pay
the unpaid principal amount of the Loans on the Maturity Date.”
(b) Section
1.5(f) is hereby amended and restated to read in its entirety as
follows:
“(f) Payment to Lender’s
Account. All payments by Borrowers to Lender hereunder shall
be made to the following deposit account unless and until Lender directs
otherwise:
Bankers
Trust
ABA:
000-000-000
A/C Name:
Global Loan Services
A/C #:
99907998
Ref:
IHHI”
4.06. A/R
Financing. Article 1 of the $10,700,000 Credit Agreement is
hereby amended by adding the following new Section 1.17 immediately after the
existing section 1.16:
“1.17 A/R
Financing. In the event that Borrowers obtain A/R Financing, Lender
shall promptly take such action and execute any such documents as may be
reasonably requested by Borrowers and at Borrowers’ expense to grant a prior
Lien to the A/R Lender in respect of the Second Lien Collateral so long
as:
22
(i) the
Borrowers repay in full the outstanding principal balance of and any and all
accrued and unpaid interest and fees on the Working Capital Facility (as defined
in the $50,000,000 Revolving Credit Agreement) and the $35,000,000 Non-Revolving
Line of Credit Loan on the date such A/R Financing becomes effective;
and
(iii) an
intercreditor agreement reasonably acceptable to Lender is entered into between
Lender and the A/R Lender, which intercreditor agreement shall become effective
upon the execution of the A/R Financing.
If at any
time such A/R Financing terminates, Lender shall immediately and automatically
have a first lien on the Second Lien Collateral and the Borrowers shall execute
any and all agreements or documents and make any and all filings as requested by
Lender in order to give effect thereto.”
4.07. Participations. Section
9.1(b) of the $10,700,000 Credit Agreement is hereby amended by adding the
following new sentence immediately after the last sentence thereof:
“The
Borrowers and Credit Parties and Guarantors further consent to the voting
provisions set forth in Section 3 of the Participation Agreement.”
4.08. Voting. Section
11.2 of the $10,700,000 Credit Agreement is hereby amended by adding the
following new clause (d) immediately after existing clause (c)
thereof:
“(d) Lender
Voting. In addition to the terms set forth in the foregoing
clauses (a) through (c) of this Section 11.2, if at any time there is more than
one Lender hereunder, no amendment, modification, termination or waiver of any
provision of the Loan Documents, or consent to any departure by any Borrower or
Credit Party therefrom, shall in any event be effective without the written
concurrence of one or more Lenders having or holding the Loan representing more
than fifty percent (50%) of the aggregate outstanding principal amount the
Loan.”
4.09. Lender
Agent. Article 11 of the $10,700,000 Credit Agreement is
hereby amended by adding the provisions set forth in Exhibit A to this Omnibus
Amendment as new Section 11.21 immediately following existing Section
11.20.
SECTION
5. SECURITY AGREEMENT
AMENDMENTS. Subject to the satisfaction of the conditions
precedent specified in Section 12 below, but effective as of the date hereof,
the Security Agreements executed in connection with the Credit Agreements are
hereby amended as follows:
5.01. References
Generally. References in each Security Agreement executed in
connection with the Credit Agreements (including references to such Security
Agreement as amended hereby) to “this Agreement” (and indirect references such
as “hereunder”, “hereby”, “herein” and “hereof”) shall be deemed to be
references to such Security Agreement as amended hereby.
5.02. $80,000,000
Security Agreement. The Security Agreement executed in
connection with the $80,000,000 Credit Agreement (the “$80,000,000 Security
Agreement”) is hereby amended as follows:
(a) The
first sentence of Section 2 of the $80,000,000 Security Agreement is hereby
amended by deleting “(junior and subordinate only to the Liens of the
$50,000,000 Deeds of Trust and other documents and instruments made in
connection with the $50,000,000 Revolving Facility)” therefrom.
23
(b) The
definition of “Payment Intangibles” set forth in Section 2 of the $80,000,000
Security Agreement is hereby amended by adding the following new sentence
immediately after the last sentence thereof:
“For the
avoidance of doubt, “Payment Intangibles” shall include without limitation any
payment or reimbursement enhanced federal matching funds, net of: provider fees,
pledged funds due to the California Health Foundation & Trust and estimated
federal and state taxes on such net funds (assuming a marginal blended tax rate
of 40%) received from Medi-Cal upon implementation of California AB1383 (or any
substitute, replacement or successor legislation or payments) received or to be
received by any Debtor.”
5.03 $50,000,000
Security Agreement. The definition of “Payment Intangibles”
set forth in Section 2 of the Security Agreement executed in connection with the
$50,000,000 Credit Agreement is hereby amended by adding the following new
sentence immediately after the last thereof:
“For the
avoidance of doubt, “Payment Intangibles” shall include without limitation any
payment or reimbursement enhanced federal matching funds, net of: provider fees,
pledged funds due to the California Health Foundation & Trust and estimated
federal and state taxes on such net funds (assuming a marginal blended tax rate
of 40%) received from Medi-Cal upon implementation of California AB1383 (or any
substitute, replacement or successor legislation or payments) received or to be
received by any Debtor.”
5.04. $10,700,000
Security Agreement. The Security Agreement executed in
connection with the $10,700,000 Credit Agreement (the “$10,700,000 Security
Agreement”) is hereby amended as follows
(a) The
first sentence of Section 2 of the $10,700,000 Security Agreement is hereby
amended by deleting “(junior and subordinate only to the Liens of the
$50,000,000 Deeds of Trust and other documents and instruments made in
connection with the $50,000,000 Revolving Facility)” therefrom.
(b) The
definition of “Payment Intangibles” set forth in Section 2 of the $10,700,000
Security Agreement is hereby amended by adding the following new sentence
immediately after the last sentence thereof:
“For the
avoidance of doubt, “Payment Intangibles” shall include without limitation any
payment or reimbursement enhanced federal matching funds, net of: provider fees,
pledged funds due to the California Health Foundation & Trust and estimated
federal and state taxes on such net funds (assuming a marginal blended tax rate
of 40%) received from Medi-Cal upon implementation of California AB1383 (or any
substitute, replacement or successor legislation or payments) received or to be
received by any Debtor.”
SECTION 6. INTERCREDITOR
AGREEMENT. Subject to the satisfaction of the conditions
precedent specified in Section 12 below, but effective as of the date hereof,
the Intercreditor Agreement is hereby amended as
follows:
6.01. Priority. Section
2 of the Intercreditor Agreement is hereby amended and restated to read in its
entirety as follows:
24
“2. Priority. Notwithstanding
the terms or provisions of any agreement or arrangement which the $80 Million
Lender or the $10.7 Million Lender or the $50 Million Lender may now or
hereafter have with their respective Borrowers or any rule of law and
irrespective of (a) the time, order or method of attachment or perfection of any
security interest or the recordation or other filing in any public record of any
financing statement, or (b) the giving or failure to give notice of the
acquisition or expected acquisition of purchase money security interests, the
$80 Million Lender Obligations, the $10.7 Million Lender Obligations and the $50
Million Dollar Lender Obligations, and all security interests in the $80 Million
Lender Collateral, the $10.7 Million Lender Collateral and the security
interests granted by the $50 Million Borrowers to the $50 Million Lenders
pursuant to the $50 Million Credit Agreement, shall be treated by the $80
Million Lender, the $10.7 Lender and the $50 Million Lender on a pari passu
basis.”
6.02. Enforcement
of Security Interest. Section 3 of the Intercreditor Agreement
is hereby amended and restated to read in its entirety as follows:
“3. [Intentionally
omitted]”
6.03. Covenants
and Warranties of the $10.7 Million Lender. Section 4(d) of
the Intercreditor Agreement is hereby amended and restated to read in its
entirety as follows:
“(d) [intentionally
omitted]”
6.04. Covenants
and Warranties of the $50 Million Lender. Sections 5(d) of the
Intercreditor Agreement is hereby amended and restated to read in its entirety
as follows:
“(d) [intentionally
omitted]”
6.05. Effect of
Bankruptcy. Section 8(b) of the Intercreditor Agreement is
hereby amended and restated to read in its entirety as follows:
“(b) [Intentionally
omitted.]”
6.06. No Duty
to Provide Financial Accommodations. Section 9 of the
Intercreditor Agreement is hereby amended and restated to read in its entirety
as follows:
“9. [Intentionally
omitted.]”
6.07. Waiver of
Marshalling. Section 10 of the Intercreditor Agreement is
hereby amended and restated to read in its entirety as follows:
“10. [Intentionally
omitted.]”
6.08. Waiver. Section
18 of the Intercreditor Agreement is hereby amended and restated to read in its
entirety as follows:
“18.
|
Waiver. No
failure to exercise and no delay in exercising any right, power, or remedy
hereunder shall impair any right, power, or remedy which the $80 Million
Lender, the $10.7 Million Lender or the $50 Million Lender may have, nor
shall any such delay be construed to be a waiver of any of such rights,
powers or remedies or any acquiescence in any breach or default
thereunder; nor shall any waiver by $80 Million Lender, the $10.7 Million
Lender or the $50 Million Lender of any breach or default by any other
party hereto hereunder be deemed a waiver of any default or breach
subsequently occurring. All rights and remedies granted to the
$80 Million Lender, the $10.7 Million Lender and the $50 Million Lender
hereunder shall remain in full force and effect notwithstanding any single
or partial exercise of, or any discontinuance of action begun to enforce,
any such right or remedy. The rights and remedies specified
herein are cumulative and not exclusive of each other or of any rights or
remedies with the $80 Million Lender, the $10.7 Million Lender or the $50
Million Lender may otherwise have. Any waiver, permit, consent
or approval by the parties hereto of any breach or default hereunder must
be in writing and shall be effective only to the extent set forth in such
writing and only as to that specific
instance.”
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25
SECTION 7. REPRESENTATIONS
AND WARRANTIES. Each Borrower and Credit Party makes the
following representations and warranties to the Lender, insofar as they relate
to such Borrower, Credit Party or any of its respective subsidiaries,
that:
(a) Except
for the existence of the Existing Defaults (as defined below) and after giving
effect to the updated schedules contemplated by clause (f) below, the
representations and warranties set forth in Article 3 of the $80,000,000 Credit
Agreement (as hereby amended), Article V of the $50,000,000 Credit Agreement (as
hereby amended), Article 3 of the $10,700,000 Credit Agreement (as hereby
amended) and in each of the other Loan Documents, are true and complete on the
date hereof as if made on and as of the date hereof (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, such representation or warranty shall be true and correct as of
such specific date), and as if each reference in said Articles to “this
Agreement” included reference to this Omnibus Amendment;
(b) Except
for the Existing Defaults (as defined below), no Default or Event of Default has
occurred and is continuing;
(c) Borrowers
and Credit Parties have the power and authority to enter into this Omnibus
Amendment and all other agreements contemplated hereby, and to do all acts and
things as are required or contemplated hereunder to be done, observed or
performed by the Borrowers and Credit Parties;
(d) Each
of this Omnibus Amendment and all other agreements to be executed by Borrowers
and Credit Parties contemplated hereby has been duly authorized (by all
necessary corporate or limited liability company action and otherwise), validly
executed and delivered by Borrowers and Credit Parties and constitutes the
legal, valid and binding obligation of Borrowers and Credit parties enforceable
against them in accordance with its terms; and
(e) The
execution and delivery of this Omnibus Amendment and all other agreements to be
executed by Borrowers and Credit Parties and contemplated hereby and Borrowers’
and Credit Parties’ performance hereunder and thereunder do not and will not
require the consent or approval of any governmental authority, nor be in
contravention of or in conflict with Borrowers’ and Credit Parties’ respective
Articles of Incorporation or similar document, or the provisions of any statute,
or any judgment, order, or indenture, instrument, agreement or undertaking, to
which each Borrower and Credit Party is a party or by which each Borrower or
Credit Party or its assets or properties are or may become bound.
(f) Attached
hereto as Annex A are updated schedules to the $80,000,000 Credit Agreement
which shall replace the corresponding existing schedules attached to the
$80,000,000 Credit Agreement. Attached hereto as Annex B are updated
schedules to the $50,000,000 Credit Agreement which shall replace the
corresponding existing schedules attached to the $50,000,000 Credit
Agreement. Attached hereto as Annex C are updated schedules to the
$10,700,000 Credit Agreement which shall replace the corresponding existing
schedules attached to the $10,700,000 Credit Agreement.
26
(g) The
organization chart of the Borrowers attached hereto as Annex D is true, correct
and accurate as of the date hereof and contains no material
omission.
(h) On
the date hereof, the aggregate amount of the liabilities and other obligations
outstanding under the Equipment Loan Facility does not exceed
$800,000.
SECTION 8. CONFIRMATION
OF GUARANTEE AND SECURITY INTEREST. Each Guarantor,
by its execution of this Omnibus Amendment, hereby consents to this Omnibus
Amendment and confirms and ratifies that all of its obligations as a Guarantor
under the Loan Documents shall continue in full force and effect for the benefit
of the Lenders with respect to the Credit Agreements as amended
hereby. Each of the Borrowers and PCHI, by its execution of this
Omnibus Amendment, hereby consents to this Omnibus Amendment, and confirms the
security interests granted by it under each of the Loan Documents to which it is
a party shall continue in full force and effect in favor of the Lender with
respect to the Credit Agreements as amended hereby. All obligations
of Borrowers and Credit Parties under each Credit Agreement, as amended hereby,
shall be secured by a first priority security interest and Lien (subject only to
Permitted Encumbrances) and be entitled to the benefits of the Collateral
Documents and Security Documents. All Collateral Documents and
Security Documents heretofore executed by the Borrowers and/or Credit Parties
shall remain in full force and effect to secure the Obligations, and such
Collateral Documents and Security Documents are hereby ratified and
affirmed. Nothing in this Section 8 shall limit or modify the
obligations of any other guarantor of the Loans.
SECTION 9. WAIVER. The
Borrowers and Credit Parties hereby acknowledge and agree that the Events of
Default listed on Schedule 1 to this Omnibus Amendment (the “Existing Defaults”)
have occurred as of the date hereof and will be continuing. The
Borrowers and Credit Parties further represent and warrant that as of the date
hereof no other Defaults or Events of Default under the Loan Documents
exist. Subject to the satisfaction of the conditions precedent
specified in Section 12 hereof, but effective as of the date hereof, the Lender
waives the Existing Defaults. The Lender has not waived, and is not waiving, by
the execution of this Omnibus Agreement, the funding of any future Loans or the
acceptance of any payments under the Credit Agreements, any Default or Event of
Default which may hereafter occur (whether the same or similar to the Existing
Defaults or otherwise) or any Event of Default other than the Existing
Defaults. Lender further agrees not to assert that any interest,
penalties or fees are due and owing by Borrowers under any of the Credit
Agreements for any period prior to the date hereof (the “Retroactive Period”)
or (b) to collect any interest, penalties or fees alleged to have been due and
owing by Borrowers under any of the Credit Agreements for the Retroactive
Period.
SECTION 10. AGREEMENTS
OF BORROWERS AND CREDIT PARTIES. Effective as of the date
hereof, each Borrower and Credit Party hereby agrees to the
following:
(a) Release.
27
(i) In
consideration of the agreements of Lender, KPC Resolution Company, LLC, a
California limited liability company (“KPC”) and Xxxx X.
Xxxxxxxxx, M.D. contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, each Borrower and
Credit Party, on behalf of itself and its successors, assigns, and other legal
representatives, hereby absolutely, unconditionally and irrevocably releases,
remises and forever discharges Lender, Xxxx X. Xxxxxxxxx, M.D., KPC, their
respective successors and assigns, and each of their affiliates, subsidiaries,
predecessors, directors, officers, members, managers, partners, attorneys,
employees, agents and other representatives and the existing trustees under any
deed of trust securing the Loans under the Credit Agreements (Lender, Xxxx X.
Xxxxxxxxx, M.D., KPC, the trustees and all such other Persons being hereinafter
referred to collectively as the "Releasees," and
individually as a "Releasee"), of and
from all demands, actions, causes of action, suits, covenants, contracts,
controversies, agreements, promises, sums of money, accounts, bills, reckonings,
damages and any and all other claims (including third-party claims),
counterclaims, defenses, rights of set-off, demands and liabilities whatsoever
(individually, a "Claim," and
collectively, "Claims") of every
name and nature, known or unknown, suspected or unsuspected, direct or indirect,
both at law and in equity, which any Borrower or Credit Party or any of their
respective successors, assigns, or other legal representatives, may now or
hereafter own, hold, have or claim to have against the Releasees or any of them
for, upon, or by reason of any circumstance, action, cause or thing whatsoever
which arises (i) at any time on or prior to the day and date of this Omnibus
Amendment for or on account of, or in relation to, or in any way in connection
with any of the Credit Agreements, as amended hereby, the other Loan Documents,
this Omnibus Amendment or transactions thereunder or related thereto or the
property which is the security for the Loan Documents or (ii) on account of or
in any way connected with (A) Case No. SACV 09-818 DOC (RNBx) in the United
States District Court for the Central District of California, Southern Division,
(B) the alleged failure of any predecessor to Lender, as lender under the Credit
Agreements, (“Predecessor Lender”)
to fund advances of any Loans under the $50,000,000 Credit Agreement, or (C) the
alleged “oversweeping” of Borrower’s accounts receivable by any Predecessor
Lender.
(ii) Each
Borrower and Credit Party understands, acknowledges and agrees that the release
set forth above may be pleaded as a full and complete defense and may be used as
a basis for an injunction against any action, suit or other proceeding which may
be instituted, prosecuted or attempted in breach of the provisions of such
release.
(iii) Each
Borrower and Credit Party agrees that no fact, event, circumstance, evidence or
transaction which could now be asserted or which may hereafter be discovered
shall affect in any manner the final, absolute and unconditional nature of the
release set forth above.
(iv) Each
Borrower and Credit Party, on behalf of itself and its respective successors,
assigns, and other legal representatives, hereby absolutely, unconditionally and
irrevocably, covenants and agrees with and in favor of each Releasee that it
will not xxx (at law, in equity, in any regulatory proceeding or otherwise) any
Releasee on the basis of any Claim released, remised and discharged by the
Borrower pursuant to Section 10(a) of this Omnibus Amendment. If
any Borrower, Credit Party, or their respective successors, assigns, or other
legal representatives violates the foregoing covenant, each Borrower and Credit
Party, for itself and its successors, assigns and legal representatives, agrees
to pay, in addition to such other damages as any Releasee may sustain as a
result of such violation, all attorneys' fees and costs incurred by any Releasee
as a result of such violation.
(v) As
to each and every Claim released hereunder, each Borrower and Credit Party
hereby represents that it has received the advice of legal counsel with regard
to the releases contained herein, and having been so advised, specifically
waives the benefit of the provisions of Section 1542 of the Civil Code of
California which provides as follows:
"A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR."
28
As to
each and every Claim released hereunder, each Borrower also waives the benefit
of each other similar provision of applicable federal or state law, if any,
pertaining to general releases after having been advised by its legal counsel
with respect thereto.
(b) Lockbox
Arrangements. The Borrowers and Credit Parties hereby covenant
and agree to re-institute on the date hereof the lockbox arrangements as
required by Section 2.5 of the $50,000,000 Credit Agreement and to comply with
such requirements going forward, which lockbox arrangements shall not require
the sweeping of cash except cash from government payors or upon and during the
continuation of an Event of Default.
(c) Memorandum of
Understanding. The Borrowers, Xxxx X. Xxxxxxxxx, M.D. and KPC
(collectively, the “MOU Parties”) are
party to the Amended and Restated Memorandum of Understanding dated January 13,
2010 (the “MOU”) and each of the
MOU Parties hereby acknowledges and agrees that upon the execution and delivery
of this Omnibus Amendment and effective as of the date hereof (i) all terms,
conditions and obligations of the MOU Parties have been satisfied in
full; no term, condition or obligation with respect to the MOU, or
any failure of any party to perform such term, condition or obligation shall
serve as a defense, counterclaim, or offset of the obligations of the Borrowers
and Credit Parties under the Credit Agreement; (iii) the $50,000,000 Credit
Agreement, the Loan Documents related thereto and all liens and security
interests granted in connection therewith shall not terminate as contemplated by
Section 9 of the MOU and shall remain in full force and effect as amended by
this Omnibus Amendment and as may be further amended, supplemented or modified
after the date hereof; (iiii) the MOU has terminated and has no further force or
effect; and (iv) the Borrowers do not and will not have any claims or causes of
action based on the MOU.
(e) Early Loan Payoff
Agreement. Together with Medical Provider Financial
Corporation I, Medical Provider Financial Corporation II, Medical Provider
Financial Corporation III and Healthcare Financial Management &
Acquisitions, Inc., the Borrowers executed that certain Early Loan Payoff
Agreement dated as of July 18, 2008. The Borrowers hereby confirm and
represent and warrant that such Early Loan Payoff Agreement has expired and has
no further force or effect.
(f) Participation
Agent. The Borrowers and Credit Parties hereby acknowledge
that the Lender and KPC have entered into the Participation Agreement on the
date hereof and pursuant thereto the Lender and KPC have appointed Silver Point
Finance, LLC as the participation agent. Unless and until directed
otherwise by the Lender, the Borrowers and Credit Parties hereby agree, and the
Lender hereby directs the Borrowers and Credit Parties, to provide a copy of
each Notice of Request for Advance and each other notice, statement or agreement
delivered in connection with the Credit Agreements to Silver Point Finance, LLC
at the following address (or such other address as directed by the
Lender):
Silver
Point Finance, LLC
Two
Xxxxxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxx
Email:
xxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Facsimile:
(000) 000-0000
; provided that the
Borrowers and Credit Parties shall also send any such Notice of Request for
Advance and each other notice, statement or agreement delivered in connection
with the Credit Agreements to the Lender Agent at the following address (or such
other address as directed by the Lender):
Silver Point Finance, LLC
Two
Xxxxxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxx
Email:
xxxxxx@xxxxxxxxxxxxxxxxxx.xxx
Facsimile:
(000) 000-0000
29
(g) Equipment Loan
Facility. On and after the date hereof, Borrower will not
incur any additional indebtedness under the Equipment Loan
Facility.
SECTION 11. ACKNOWLEDGMENT
OF INDEBTEDNESS. Borrowers and Credit Parties hereby
acknowledge, confirm and agree that as of the date hereof and prior to taking
into account the funding of any Loans under the $50,000,000 Credit Agreement as
amended hereby, Borrowers are indebted to Lenders in respect of: (i) the
$45,000,000 Real Estate Term Loan in the aggregate outstanding principal amount
of $45,000,000 plus accrued and unpaid interest; (ii) the $35,000,000
Non-Revolving Line of Credit Loan in the aggregate outstanding principal amount
of $28,999,633 plus accrued and unpaid interest; (iii) the Revolving Facility in
the aggregate outstanding principal amount of $0; (iv) the $10,700,000
Convertible Term Loan in an aggregate outstanding principal amount of $5,968,268
plus accrued and unpaid interest; and (v) all fees in connection with the Credit
Agreements and/or any other Loan Document accrued and outstanding on the date
hereof. The $45,000,000 Real Estate Term Loan, the $35,000,000
Non-Revolving Line of Credit Loan, the Revolving Facility Loans and the
$10,700,000 Convertible Term Loan, together with interest accrued and accruing
thereon, and fees, costs, expenses and other charges now or hereafter payable by
Borrowers and Credit Parties to Lender, are unconditionally owing by Borrowers,
without offset, defense or counterclaim of any kind, nature or description
whatsoever. The parties hereto agree that the outstanding principal
balances set forth in this Section 11 reflect the agreed upon reductions on the
date hereof of the outstanding principal balances of the Loans, as well as the
waiver of the accrued but unpaid interest and fees as of the date
hereof. The parties hereto further agree that the current Interest
Period shall start on and include that date hereof.
SECTION 12. CONDITIONS
PRECEDENT. The amendments, waivers and agreements set forth in
this Omnibus Amendment shall become effective, as of the date hereof, upon
satisfaction of the following conditions:
(a) Execution. The
Lender shall have received counterparts of this Omnibus Amendment executed by
each Borrower, Guarantor and Credit Party and the Lender.
(b) Opinion of Company’s
Counsel. The Lender shall have received a favorable written
opinion of (i) Lionel, Xxxxxx & Xxxxxxx, counsel for IHHI, (ii) Xxxx Xxxxx
LLP, counsel for WMC-A, WMC-SA, Coastal and Xxxxxxx, (ii) Xxxxxxx Xxxxxx &
Xxxxxxx LLP, counsel for PCHI, and (iii) Xxxxx & Xxxxxx, LLP, counsel for
Ganesha, in each case covering the matters relating to the IHHI, WMC-A, WMC-SA,
Coastal, Xxxxxxx, PCHI and Ganesha, as applicable, or this Omnibus Amendment as
the Lender shall reasonably request (and each of such Borrowers and Credit
Parties hereby request their respective counsel to deliver such
opinion).
(c) Corporate
Documents. The Lender shall have
received such documents and certificates certified by the secretary of each
Borrower, Credit Party or Guarantor, as applicable, as the Lender or its counsel
may reasonably request relating to the organization, existence and good standing
of each Borrower, Credit Party and Guarantor, the authorization of this Omnibus
Amendment and any other legal matters relating to the Borrowers, Credit Parties
and Guarantors or this Agreement, all in form and substance satisfactory to the
Lender and its counsel.
(d) Lease
Agreement. The Lender and Borrowers shall have received a copy
of the Second Amendment to Amended and Restated Triple Net Hospital Building
Lease between PCHI and IHHI memorializing the rent to be paid under such lease
in light of this Omnibus Amendment, executed and delivered by the parties
thereto.
30
(e) Participation
Agreement. The Lender shall have received the Participation
Agreement fully executed and delivered by the parties thereto.
(f) Account Control
Agreement. The Lender shall have received the Xxxxx Fargo
Deposit Account Control Agreement fully executed and delivered by the parties
thereto.
(g) Stock and Membership
Powers. The Lender shall have received from
IHHI for each Credit Agreement executed original counterparts of the
stock power in the form of Exhibit C hereto and from Ganesha for each Credit
Agreement executed original counterparts of the membership power in the form of
Exhibit D hereto.
(h) Warrants.
(i) Cancellation of Existing
Warrants and Conversion Rights. All warrants and stock
conversion rights to purchase equity securities issued by the Borrowers to
MedCap or its Affiliates and existing immediately prior to the date hereof shall
have been cancelled.
(ii) Issuance of Warrants to Xx.
Xxxxxxxxx. IHHI shall have issued warrants to Xxxx X.
Xxxxxxxxx, M.D. to acquire 170,000,000 shares of common stock of IHHI in
substantially the form of Exhibit E.
(iii) Issuance of Other
Warrants. IHHI shall have issued warrants to purchase up to
235,000,000 shares of common stock of IHHI, in substantially the form attached
as Exhibit E, exercisable for 96,000,000 shares in favor of Silver Point or its
designees, and exercisable for 139,000,000 shares in favor of KPC or its
designees.
(i) Landlord Consent and
Estoppel Certificates. The Lender shall have received
a Landlord Consent and Estoppel Certificate executed by the parties thereto
in form, substance and scope satisfactory to the Lender for each of the
properties located at (i) 0000 X. Xxxxxx Xxxxxx and 0000 X. Xxxxxx
Xxxxxx Xxxxx Xxx, Xxxxxxxxxx; (ii) 0000 X. Xxxxxxx Xxxxxxxxx Xxxxxxx,
Xxxxxxxxxx; (iii) 0000 X. Xxxxxxx Xxxxxx, 0000 X. Xxxxxxx Xxxxxx and 0000 X.
Xxxxxxx Xxxxxx, Xxxxx Xxx, Xxxxxxxxxx; (iv) 0000 X. Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx; and (v) 0000 X. Xxxxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx.
(j) Leasehold Deeds of
Trust. The Lender shall have received Leasehold Deeds of Trust
in favor of Lender and covering each Credit Agreement, executed by the parties
thereto, in form, substance and scope satisfactory to the Lender, encumbering
each of the leases or subleases affecting the properties located at
(i) 0000 X. Xxxxxx Xxxxxx and 0000 X. Xxxxxx Xxxxxx Xxxxx Xxx,
Xxxxxxxxxx; (ii) 0000 X. Xxxxxxx Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx; (iii)
0000 X. Xxxxxxx Xxxxxx, 0000 X. Xxxxxxx Xxxxxx and 0000 X. Xxxxxxx Xxxxxx, Xxxxx
Xxx, Xxxxxxxxxx; (iv) 0000 X. Xxxxxxx Xxx., Xxxxxx, Xxxxxxxxxx; and (v) 0000 X.
Xxxxxxx Xxx., Xxxxxx, Xxxxxxxxxx.
(k) Absolute Assignment of
Leases and Rents with License Back. The Lender shall have
received Corrections to the Absolute Assignment of Leases and Rents with License
Back ($80 Million Credit Agreement) executed by the parties thereto, in form,
substance and scope satisfactory to the Lender for the properties located at (i)
0000 X. Xxxxxx Xxxxxx and 0000 X. Xxxxxx Xxxxxx Xxxxx Xxx, Xxxxxxxxxx and
(ii) 0000 X. Xxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx.
31
(l) Title
Insurance. The Lender shall have received all endorsements to
the existing Title Policies for each Property, at Borrowers’ sole cost and
expense, as required by the Lender in its sole discretion and the Title Company
shall be irrevocably committed, at Borrower’s sole cost and expense, to issue
new title insurance policies to Lender, in form, substance and scope acceptable
to Lender in its sole discretion, for each of the Leasehold Deeds of Trust
encumbering the properties located at (i) 0000 X. Xxxxxx Xxxxxx and 0000 X.
Xxxxxx Xxxxxx Xxxxx Xxx, Xxxxxxxxxx; (ii) 0000 X. Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx; (iii) 0000 X. Xxxxxxx Xxxxxx, 0000 X. Xxxxxxx Xxxxxx and
0000 X. Xxxxxxx Xxxxxx, Xxxxx Xxx, Xxxxxxxxxx; (iv) 0000 X. Xxxxxxx Xxx.,
Xxxxxx, Xxxxxxxxxx; and (v) 0000 X. Xxxxxxx Xxx., Xxxxxx,
Xxxxxxxxxx.
(m) Memorandum of
Intercreditor. The Lender shall have received the Borrowers’
executed counterparts to the Memorandum of Intercreditor dated the date hereof
among the Lender and Borrowers.
(n) Fees and
Expenses. The Borrowers shall have paid in full the costs,
expenses and fees at set forth in Section 11.3 of the $80,000,000 Credit
Agreement, Section 12.3 of the $50,000,000 Credit Agreement and Section 11.3 of
the $10,700,000 Credit Agreement.
SECTION 13. POST
CLOSING CONDITIONS. The Borrowers hereby covenant and agree to
execute and deliver the following documents within the time frames set forth
below and the Borrowers and the Credit Parties agree that the failure to satisfy
the requirements of this Section 13 shall constitute an Event of Default under
each of the Credit Agreements:
(a) Insurance
Certificates. The Borrowers shall deliver to the Lender within
10 days of the date hereof a certificate from Borrowers’ insurance broker with
endorsements naming Silver Point Finance, LLC , for the benefit of the Lender,
as additional insured and loss payee thereunder.
(b) Termination of Mechanic’s
Liens. The Borrowers shall provide the Title Company with all
documentation required by the Title Company to issue endorsements to the
Lender’s title insurance policies removing the mechanics’ lien exceptions on the
title insurance policies for Western Medical Center – Santa Xxx, Coastal
Communities Hospital and Xxxxxxx Medical Office Building, and such endorsements
shall have been issued within 30 days of the date hereof. Such
documentation shall include, but not be limited to:
(i) with
respect to Western Medical Center – Santa Xxx, a copy of the construction
contract and budget, lien waivers from the general contractor and major
sub-contractors for work completed to date and an indemnity from a financially
viable indemnitor (along with audited financials of the proposed indemnitor);
and
(ii) with
respect to Coastal Communities Hospital and Xxxxxxx Medical Office Building,
information regarding the nature of the work and the date on which such work was
completed, and to the extent work was completed less than one hundred twenty
days prior to the date hereof, final unconditional lien waivers from the
general contractor and major sub-contractors.
(c) Equipment Loan
Facility.
(i) Within
10 days of the date hereof, Lender shall have received from the Borrowers a copy
of a letter sent by the Borrowers to the lenders under the Equipment Loan
Facility notifying such lenders that the Borrowers are not entitled to incur any
additional indebtedness under the Equipment Loan Facility
32
(ii) Within
90 days of the date hereof, the Borrowers shall either (i) obtain amendments in
form and substance satisfactory to the Lender Agent to the transaction documents
governing the Equipment Loan Facility and related UCC financing statements
limiting the collateral covered thereby to solely the equipment financed under
such facility, (ii) obtain from the lenders under the Equipment Loan Facility a
subordination agreement in favor of the Lender which subordinates the
indebtedness under the Equipment Loan Facility to the Loans on terms that are
satisfactory to the Lender Agent in its sole discretion or (iii) pay in full any
and all amounts outstanding under the Equipment Loan Facility and cause the
Equipment Loan Facility and the UCC financing statements filed in connection
therewith to be terminated.
SECTION 14. OPTION
AND STANDSTILL AGREEMENT. Together with Medical Provider
Financial Corporation I, Medical Provider Financial Corporation II, Medical
Provider Financial Corporation III, Xxxx X. Xxxxxxxxx, M.D. executed that
certain Option and Standstill Agreement dated as of July 18,
2008. Xxxx X. Xxxxxxxxx, M.D. hereby confirms that such Option and
Standstill Agreement has expired and has no further force or
effect.
SECTION 15. $10,700,000
CONVERTIBLE TERM NOTE. Borrowers and Lender hereby agree that
the provisions of Section 2 of the $10,700,000 Convertible Term Note permitting
Lender to convert all or any part of the principal amount of the $10,700,000
Convertible Term Note, and the accrued and unpaid interest thereon, into fully
paid and nonassessable shares of voting common stock of IHHI, and any provisions
of the $10,700,000 Convertible Term Note related thereto, are hereby terminated
and shall have no further force or effect.
SECTION 16. ACCREDITED
INVESTOR. Each of the Silver Point and KPC hereby represent
and warrant to the Borrowers as to itself that it is an “accredited investor”
(as defined in Rule 501 under the Securities Act of 1933, as
amended).
SECTION 17. NO
FURTHER AMENDMENTS. Except for the amendments set forth herein
or otherwise set forth in any agreement signed by Lender and dated the date
hereof, the text of each Credit Agreement shall remain unchanged and in full
force and effect. No waiver by Lender under any Credit Agreement is
granted or intended and Lender expressly reserves the right to require strict
compliance with the terms of the Credit Agreements. The waivers and
amendments agreed to herein shall not constitute or evidence a course of dealing
at variance with the Credit Agreements such as to require further notice by
Lender to require strict compliance with the terms of the Credit Agreements in
the future. The Borrowers and Credit Parties confirm and agree that
this Omnibus Amendment shall constitute a Loan Document under each Credit
Agreement.
SECTION 18. MISCELLANEOUS. Except
as herein provided, the Credit Agreement shall remain unchanged and in full
force and effect. This Omnibus Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same amendatory instrument and any of the parties hereto may execute this
Omnibus Amendment by signing any such counterpart. This Omnibus
Amendment shall be governed by, and construed in accordance with, the law of the
State of Nevada.
[Remainder
of page intentionally left blank.]
33
IN
WITNESS WHEREOF, the parties hereto have caused this Omnibus Amendment to Credit
Agreement to be duly executed and delivered as of the day and year first above
written.
BORROWERS:
INTEGRATED
HEALTHCARE HOLDINGS, INC., a Nevada corporation
By: /s/
Xxxxxxx X.
Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title: Chief
Executive Officer
WMC-A,
INC., a California corporation
By: /s/
Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title: Chief
Executive Officer
WMC-SA,
INC., a California corporation
By: /s/
Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title: Chief
Executive Officer
COASTAL
COMMUNITIES HOSPITAL, INC., a California corporation
By: /s/
Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title: Chief
Executive Officer
XXXXXXX
MEDICAL CENTER, INC., a California corporation
By: /s/
Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title: Chief
Executive Officer
|
34
CREDIT
PARTIES AND GUARANTORS:
PACIFIC
COAST HOLDINGS INVESTMENT, LLC,
a
California limited liability company
By:
/s/ Xxxx X. Xxxxxxxxx, M.D.
Name: Xxxx
X. Xxxxxxxxx, M.D.
Title: Co-Manager
By: /s/
Xxxxx Xxxxxxx, M.D.
Name: Xxxxx
Xxxxxxx, M.D.
Title: Co-Manager
CREDIT
PARTIES:
GANESHA
REALTY, LLC, a California
limited
liability company
By: /s/
Xxxx X. Xxxxxxxxx, M.D.
Name: Xxxx
X. Xxxxxxxxx, M.D.
Title: Manager
LENDERS:
SPCP
GROUP IV, LLC,
a
Delaware limited liability company
By:
Silver Point C&I Opportunity GP, LLC
By:
/s
Xxxxxxx X. Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Authorized
Signatory
SPCP
GROUP, LLC,
a
Delaware limited liability company
By:
/s
Xxxxxxx X. Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Authorized
Signatory
|
35
LENDER
AGENT:
SILVER
POINT FINANCE, LLC,
a
Delaware limited liability company
By:
/s
Xxxxxxx X. Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Authorized
Signatory
For
purposes of Sections 10(a), 10(c), 11, 12 and 14 of this Omnibus Amendment
only:
/s/ Xxxx
X. Xxxxxxxxx, M.D.
Xxxx
X. Xxxxxxxxx, M.D.
|
For
purposes of Sections 10(a), 10(c), 11, 12 and 16 of this Omnibus Amendment
only
KPC
RESOLUTION COMPANY, LLC, a
California
limited liability company
By: /s/ Xxxx X. Xxxxxxxxx,
M.D.
Name: Xxxx
X. Xxxxxxxxx, M.D.
Title: Manager
36
Exhibit
A
Lender Agent
Provision
Lender
Agent.
(a) Appointment of Lender
Agent
. Silver
Point Finance, LLC, a Delaware limited liability company (“Silver Point”), is
hereby appointed Lender Agent hereunder and under the other Loan Documents and
Lender hereby authorizes Silver Point to act as its agent in each such capacity
in accordance with the terms hereof. Lender Agent hereby agrees to
act upon the express conditions contained herein and the other Loan Documents,
as applicable. The provisions of this section are solely for the
benefit of the Lender Agent and Lender and no Borrower or Credit Party shall
have any rights as a third party beneficiary of any of the provisions
thereof. In performing its functions and duties hereunder, the Lender
Agent shall act solely as an agent of Lender and does not assume and shall not
be deemed to have assumed any obligation towards or relationship of agency or
trust with or for Borrowers, Credit Parties or any of their respective
Subsidiaries.
(b) Powers and
Duties
. Lender
authorizes the Lender Agent to take such action on Lender’s behalf and to
exercise such powers, rights and remedies and perform such duties hereunder and
under the other Loan Documents as are specifically delegated or granted to the
Lender Agent by the terms hereof or otherwise agreed in writing by Lender,
together with such actions, powers, rights and remedies as are reasonably
incidental thereto. The Lender Agent shall have only those duties and
responsibilities that are expressly specified herein and the other Loan
Documents. The Lender Agent may exercise such powers, rights and
remedies and perform such duties by or through its agents or
employees. The Lender Agent shall not have or be deemed to have, by
reason hereof or any of the other Loan Documents, a fiduciary relationship in
respect of Lender; and nothing herein or any of the other Loan Documents,
expressed or implied, is intended to or shall be so construed as to impose upon
the Lender Agent any obligations in respect hereof or any of the other Loan
Documents except as expressly set forth herein or therein.
(c) Successor
Agent. The Lender Agent may assign its rights and duties as
Lender Agent hereunder to an Affiliate of Silver Point without the prior written
consent of, or prior written notice to, any Borrower, Credit Party or Lender;
provided that the
Borrowers, Credit Parties and Lender may deem and treat such assigning Lender
Agent as the relevant Lender Agent for all purposes hereof, unless and until
such the Lender Agent provides written notice to Borrowers, Credit Parties and
Lender of such assignment. Upon such assignment such Affiliate shall
succeed to and become vested with all rights, powers, privileges and duties as
the Lender Agent hereunder and under the other Loan Documents. In
addition, with the unanimous consent of all Lenders in the event there is more
than one Lender hereunder, Lender may remove the Lender Agent and appoint a
successor Lender Agent without the consent of Borrowers, Credit Parties or the
Lender Agent.
(d) Lender under Security and
Guaranty
. Lender
hereby further authorizes the Lender Agent, on behalf of and for the benefit of
Lender, to be the agent for and representative of Lender with respect to the
Guaranty, the Collateral and the Loan Documents related thereto. With
the written consent or authorization from Lender, the Lender Agent may execute
any documents or instruments necessary to (i) release or subordinate any Lien
encumbering any item of Collateral that is the subject of a sale or other
disposition of assets or for the establishment of A/R Financing by Borrowers
that, in either case, is permitted by the Loan Documents and (ii) release any
Guarantor from its guaranty if such release is permitted under the Loan
Documents. After the payment in full of the Obligations, the Lender
Agent shall, upon request of the Borrowers and the consent of Lender (such
consent not to be unreasonably withheld), take such actions as shall be required
to promptly release the security interest in the Collateral and to promptly
release each Guarantor from its guaranty under the Guaranty Agreements to which
it is a party.
37
(e) Loan Document
Provisions. For all purposes hereunder and under the other
Loan Documents, any provision requiring any action, consent or vote of a
“Lender” may be taken or given by the Lender Agent acting at the direction of
the Lenders.
38
Exhibit
B
Form of Continuation
Notice
Silver
Point Finance, LLC,
as
Lender Agent
under the
below referenced Credit Agreement
Two
Xxxxxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxxxxx,
XX 00000
Ladies
and Gentlemen:
Reference
hereby is made to that certain Credit Agreement, dated as of October 9, 2007 (as
amended by that certain Amendment dated June 10, 2008, that certain Amendment
dated June 20, 2008, that certain Amendment No. 1 dated April 2, 2009 and that
certain Acknowledgment, Waiver and Consent and Amendment to Credit Agreements
dated April 2, 2009 and as may be further amended, supplemented or modified,
the "Credit
Agreement") entered into by and among INTEGRATED HEALTHCARE HOLDINGS,
INC., a Nevada corporation (“IHHI”), WMC-SA, INC.,
a California corporation (“WMC-SA”), WMC-A,
INC., a California corporation (“WMC-A”), XXXXXXX
MEDICAL CENTER, INC., a California corporation (“Xxxxxxx”), COASTAL
COMMUNITIES HOSPITAL, INC., a California corporation (“Coastal” and together
with IHHI, WMC-SA, WMC-A, Xxxxxxx, the “Borrowers”), PACIFIC
COAST HOLDINGS INVESTMENT, LLC, a California limited liability company (“PCHI”), GANESHA
REALTY, LLC, a California limited liability company (“Ganesha”), and ORANGE
COUNTY PHYSICIANS INVESTMENT NETWORK, LLC, a Nevada limited liability company
(“OC-PIN” and,
together with PCHI, Ganesha and OC-PIN, the “Credit Parties” and,
together with PCHI, the “Guarantors”) and
SILVER POINT CAPITAL, L.P., as Lender (the “Lender”). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to them in the Credit Agreement.
This
Continuation Notice represents the Borrowers’ request, effective as of
__________, to continue an outstanding Working Capital Facility Loan in the
amount of $_________ that bears interest at a rate determined by the Adjusted
LIBOR Rate as a LIBOR Loan, and is a written confirmation of the telephonic
notice of such election given to the Lender.
Such Loan
will have an Interest Period of [1, 2, or 3] month(s) commencing on.
This
Continuation Notice further confirms the Borrowers’ acceptance, for purposes of
determining the rate of interest based on the Adjusted LIBOR Rate under the Credit
Agreement, of the Adjusted LIBOR Rate as determined pursuant
to the Credit Agreement.
Each
Borrower represents and warrants that (a) as of the date hereof, each
representation or warranty contained in or pursuant to any Loan Document or any
agreement, instrument, certificate, document or other writing furnished at any
time under or in connection with any Loan Document, and as of the effective date
of any continuation requested above, is true and correct in all material
respects (except to the extent any representation or warranty expressly related
to an earlier date), (b) each of the covenants and agreements contained in any
Loan Document have been performed (to the extent required to be performed on or
before the date hereof or each such effective date), and (c) no Default or Event
of Default has occurred and is continuing on the date hereof, nor will any
thereof occur after giving effect to the request above.
39
Dated:
INTEGRATED
HEALTHCARE HOLDINGS, INC., a Nevada corporation
By:
Name:
Title:
WMC-A,
INC., a California corporation
By:
Name:
Title:
WMC-SA,
INC., a California corporation
By:
Name:
Title:
COASTAL
COMMUNITIES HOSPITAL, INC., a California corporation
By:
Name:
Title:
XXXXXXX
MEDICAL CENTER, INC., a California corporation
By:
Name:
Title:
|
[Continuation
Notice]
40
Acknowledged
by:
LENDERS:
SPCP
GROUP IV, LLC,
a
Delaware limited liability company
By:
Silver Point C&I Opportunity GP, LLC
By:___________________________
Name:
Title:
SPCP
GROUP, LLC,
a
Delaware limited liability company
By:___________________________
Name:
Title:
LENDER
AGENT:
SILVER
POINT FINANCE, LLC,
a
Delaware limited liability company
By:___________________________
Name:
Title:
[Continuation
Notice]
41
Exhibit
C
Form of Stock
Power
42
Exhibit
D
Form of Membership
Power
43
Exhibit
E
Form of
Warrants
44
Schedule
1
Existing
Defaults
45
Annex
A
Updated Schedules to
$80,000,000 Credit Agreement
46
Annex
B
Updated Schedules to
$50,000,000 Credit Agreement
47
Annex
C
Updated Schedules to
$10,700,000 Credit Agreement
48
Annex
D
Organizational
Chart
49