EXHIBIT 10.22
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INVESTMENT NUMBERS 8354 and 10458
Amendment
to
Amended and Restated
Investment Agreement
among
MSF HOLDING LTD.,
MEDICAL SYSTEMS FINANCE S.A.,
ESTOLUR S.A,
HEALTHCARE SYSTEMS FINANCE S.A.,
MSF/HSF ARGENTINA S.A.,
and
INTERNATIONAL FINANCE CORPORATION
Dated June 28, 2001
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AMENDMENT TO
AMENDED AND RESTATED
INVESTMENT AGREEMENT
AGREEMENT, dated June 28, 2001, among MSF HOLDING LTD., a company organized
and existing under the laws of the Commonwealth of the Bahamas ("MSF Holding"),
MEDICAL SYSTEMS FINANCE S.A. ("MSF"), ESTOLUR S.A. ("Estolur"), HEALTHCARE
SYSTEMS FINANCE S.A. ("HSF"), each of them a sociedad anonima, organized and
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existing under the laws of Uruguay, and MSF/HSF ARGENTINA S.A., a sociedad
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anonima organized and existing under the laws of Argentina, formerly known as
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Sistemas Financieros S.A. and as MSF Argentina S.A. ("MSF Argentina"), and
INTERNATIONAL FINANCE CORPORATION, an international organization established by
Articles of Agreement among its member countries ("IFC").
WHEREAS:
(A) Pursuant to an Amended and Restated Investment Agreement dated April
27, 1998, as amended and restated as of September 29, 1998 and as further
amended (as amended from time to time, the "Investment Agreement") among the
parties hereto, IFC has made a loan to the Co-Borrowers (as such term and other
terms used herein are defined in Section 1) in the aggregate principal amount of
up to fifty-five million Dollars ($55,000,000).
(B) IFC and the Co-Borrowers have agreed to amend the Investment Agreement
as provided herein.
NOW, THEREFORE, the parties agree as follows:
Section 1. Definitions. All capitalized terms used in this Agreement
(including the preamble and recitals) and not otherwise defined herein, unless
the context otherwise requires, have the respective meanings given to such terms
in the Investment Agreement.
Section 2. Amendments to the Investment Agreement.
(a) Section 1.01 of the Investment Agreement is amended by inserting in
such section in alphabetical order the following additional definitions:
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"Contract Repurchase Guarantee Agreement" an agreement among DVI
Financial, Oferil and the Co-Borrowers, in form and substance acceptable to IFC,
(i) obligating Oferil to purchase Defaulted Receivables in an amount in each
fiscal Year at least equal to the difference between two percent (2%) of Net
Financed Assets and the amount of the Lease/Loan Loss Reserve at a price equal
to the amount of such Defaulted Receivables and (ii) providing for the payment
for each Defaulted Receivable purchased by the reduction of the principal amount
of the loans outstanding under the Stand-by Loan Facility Agreement by the
amount of such Defaulted Receivable;
"Defaulted Receivable" any Lease/Loan Receivable in respect of which
any amount is due and unpaid for one hundred eighty-one (181) days or more;
(b) Section 1.02 of the Investment Agreement is amended by inserting in
such section in alphabetical order the following additional definition:
"Debt to Equity Ratio" the result obtained by dividing Debt by
Shareholders' Equity;
(c) Section 3.07(a)(i) of the Investment Agreement is amended to reach as
follows:
(i) the Co-Borrowers simultaneously pay all accrued interest and
Maintenance Amount (if any) on the amount of the Loan to be prepaid
together with (A) a prepayment premium in an amount equal to one and one-
half percent (1.5%) of the amount of the Loan being prepaid and (B) all
other amounts then due and payable under this Agreement.
(d) Section 7.02(b) of the Investment Agreement is amended to read as
follows:
(b) cause the Eligible Co-Borrowers to maintain on a consolidated
basis a diversified vendor portfolio, with no single vendor
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providing more than (i) 50% of the equipment financed pursuant to Eligible
Leases/Loans in the MSF Portfolio from July 1, 2002 through June 30, 2003,
and (ii) 40% of such equipment thereafter;
(e) Section 7.03(b) of the Investment Agreement is amended to read as
follows:
(b) maintain, on an aggregate basis, a diversified vendor lease
portfolio, with no single vendor representing more than (i) fifty percent
(50%) of the equipment financed pursuant to Eligible Leases/Loans in the
MSF Portfolio from July 1, 2002 through June 30, 2003, and (ii) forty
percent (40%) of such equipment thereafter;
(f) Section 7.02(c) of the Investment Agreement is amended to read as
follows:
(c) maintain a Lease/Loan Loss Reserve of at least (i) one percent
(1%) of Net Financed Assets during Fiscal Year 1999, (ii) one and one-half
percent (1.5%) of Net Financed Assets during Fiscal Year 2000, and (iii)
two percent (2%) of Net Financed Assets in Fiscal Year 2001 and thereafter;
provided, that in Fiscal Year 2001 and thereafter, MSF Holding may maintain
a Lease/Loan Loss Reserve of at least one-half percent (0.5%) of Net
Financed Assets if (A) the Contract Repurchase Guarantee Agreement is in
full force and effect, (B) in each such Fiscal Year, Oferil has purchased
from the Eligible Co-Borrowers pursuant to the Contract Repurchase
Guarantee Agreement an amount of Defaulted Receivables at least equal to
the difference between two percent (2%) of Net Financed Assets and the
amount of the Lease/Loan Loss Reserve, each Defaulted Receivable so
purchased has been paid for by the reduction of the principal amount of the
loans outstanding under the Stand-by Loan Facility Agreement by the amount
of such Defaulted Receivable, and DVI Financial has delivered to the Co-
Borrowers evidence of the satisfaction of the loans so canceled, (C) the
amount of loans outstanding under the Stand-by Loan Facility Agreement
after giving effect to any repurchase of and payment for Defaulted
Receivables is at least equal to the difference between two percent (2%) of
Net Financed Assets and the amount of the Lease/Loan Loss Reserve, and (D)
and all loans outstanding under the Stand-by Loan Facility Agreement are
subordinated on terms acceptable to IFC to all amounts payable under this
Agreement;
(g) Section 7.03(c) of the Investment Agreement is amended to read as
follows:
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(c) maintain, on an aggregate basis, a Lease/Loan Loss Reserve of at
least (i) one percent (1%) of Net Financed Assets during Fiscal Year 1999,
(ii) one and one half percent (1.5%) of Net Financed Assets during Fiscal
Year 2000, and (iii) two percent (2.0%) of Net Financed Assets in Fiscal
Year 2001 and thereafter; provided, that in Fiscal Year 2001 and
thereafter, the Eligible Co-Borrowers may maintain on an aggregate basis a
Lease/Loan/Loss Reserve of at least one-half percent (0.5%) of Net Financed
Assets if (A) the Contract Repurchase Guarantee Agreement is in full force
and effect, (B) in each Fiscal Year, Oferil has repurchased from the
Eligible Co-Borrowers pursuant to the Contract Repurchase Guarantee
Agreement an amount of Defaulted Receivables at least equal to the
difference between two percent (2%) of Net Financed Assets and the amount
of the Lease/Loan Loss Reserve, each Defaulted Receivable so purchased has
been paid for by the reduction of the principal amount of the loans
outstanding under the Stand-by Loan Facility Agreement by the amount of
such Defaulted Receivable, and DVI Financial has delivered to the Co-
Borrowers evidence of the satisfaction of the loans so canceled, (C) the
amount of loans outstanding under the Stand-by Loan Facility Agreement
after giving effect to any repurchase of and payment for Defaulted
Receivables is at least equal to the difference between two percent (2%) of
Net Financed Assets and the amount of the Lease/Loan Loss Reserve, and (D)
all loans outstanding under the Stand-by Loan Facility Agreement are
subordinated on terms acceptable to IFC to all amounts payable under this
Agreement; and
(h) Section 7.04(a) of the Investment Agreement is amended to read as
follows:
Section 7.04. Negative Covenants. Unless IFC otherwise agrees, each
of the Co-Borrowers shall not:
(a) incur, assume or permit to exist any indebtedness except:
(i) the Loan;
(ii) the FMO Loan;
(iii) that part of Short-term Debt which is Indebtedness for Money
Borrowed incurred from commercial and/or investment banks in
the ordinary course of business, not exceeding at any one time
outstanding the equivalent of
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twenty percent (20%) of the sum of (A) the aggregate principal
amount of Eligible Leases/Loans in the MSF Portfolio plus (B)
the value of the Cash Collateral pledged to IFC and FMO under
the Trustee Account and Security Agreement and in which IFC and
FMO have perfected and registered first priority security
interests;
(iv) other loans contemplated in the Financial Plan; and
(v) additional Debt which would not result in the Debt to Equity
Ratio exceeding 8:1; provided, that, at the time of incurring
such Debt, and after giving effect to the incurrence of such
Debt, no Event of Default or Potential Event of Default has
occurred and is continuing and that such additional Debt is not
secured by any assets comprising the IFC/FMO Security;
Section 3. Miscellaneous.
(a) Each of the Co-Borrowers agrees to deliver to IFC such opinions of
counsel as it may reasonably request with respect to this Agreement.
(b) All references in the Investment Agreement to "this Agreement",
"herein", "hereof", "hereunder", "hereto" or expressions of like meaning shall
be references to the Investment Agreement, as amended by this Agreement.
(c) Except as amended hereby, the Investment Agreement shall remain in full
force and effect.
(d) Each of the Co-Borrowers hereby restates, as if set forth herein at
length, and confirms, as of the date hereof, the representations and warranties
made by it in Article V of the Investment Agreement.
(e) The Co-Borrowers shall pay to IFC or as IFC may direct the reasonable
fees and expenses of IFC's counsel in New York, the Bahamas, Uruguay,
Argentina, Mexico and elsewhere incurred in connection with (i) the preparation
and/or review, execution and, where appropriate, translation and registration of
this Agreement, and any other documents related to this Agreement; and (ii) the
giving of any legal opinions required by IFC in connection herewith.
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(f) This Agreement is governed by, and shall be construed in accordance
with, the laws of the State of New York, United States of America.
(g) This Agreement may be executed in several counterparts, each of which
shall be considered an original, but all of which together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties to this Amendment have caused this
Agreement to be duly executed as of the date first above written.
MSF HOLDING LTD.
By: _____________________________
Name:
Authorized Representative
MEDICAL SYSTEMS FINANCE S.A.
By: _____________________________
Name:
Authorized Representative
ESTOLUR S.A.
By: _____________________________
Name:
Authorized Representative
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HEALTHCARE SYSTEMS FINANCE S.A.
By: _________________________________
Name:
Authorized Representative
MSF/HSF ARGENTINA S.A.
By: _________________________________
Name:
Authorized Representative
INTERNATIONAL FINANCE CORPORATION
By: _________________________________
Name:
Authorized Representative