EXHIBIT 10.2
FIRST AMENDMENT TO COMMITMENT AGREEMENT
THIS FIRST AMENDMENT TO COMMITMENT AGREEMENT (this "First Amendment")
is made and entered into as of this 28th day of March, 2003 by and among MEDCATH
INCORPORATED, a North Carolina corporation (the "Company"), the Lenders party to
the Commitment Agreement referenced below (the "Lenders"), BANK OF AMERICA,
N.A., as Administrative Agent for the Lenders (the "Administrative Agent"),
DEUTSCHE BANK TRUST COMPANY AMERICAS (f/k/a BANKERS TRUST COMPANY), as
Syndication Agent for the Lenders (the "Syndication Agent"), and WACHOVIA BANK,
NATIONAL ASSOCIATION (f/k/a FIRST UNION NATIONAL BANK), as Documentation Agent
for the Lenders (the "Documentation Agent").
Statement of Purpose
The Lenders agreed to extend a commitment to the Company to provide
financing for the acquisition and construction of new hospital facilities by New
Hospital Joint Ventures pursuant to the Commitment Agreement dated as of July
27, 2001 by and among the Company, the Lenders, the Administrative Agent, the
Syndication Agent and the Documentation Agent (as amended, restated,
supplemented or otherwise modified from time to time, the "Commitment
Agreement").
Pursuant to Section 2.5 of the Commitment Agreement, the parties now
desire to increase the Aggregate Commitment under the Commitment Agreement by an
amount equal to $35,000,000 subject to the terms and conditions set forth below.
Furthermore, the parties now desire to amend the Commitment Agreement in certain
other respects on the terms and conditions set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. All capitalized undefined terms used in
this First Amendment shall have the meanings assigned thereto in the Commitment
Agreement.
2. Modification of Certain Provisions of the Commitment
Agreement. The Commitment Agreement is hereby modified as follows:
(a) Amendments to Existing Definitions. The definition of the
following quoted term which is set forth in Section 1.1 of the Commitment
Agreement is hereby amended in its entirety as follows:
"Aggregate Commitment" means the aggregate amount of the
Lenders' Commitments hereunder, as such amount may be reduced,
increased or otherwise modified at any time or from time to time
pursuant to the terms hereof. On the effective date of the First
Amendment to Commitment Agreement, the Aggregate Commitment shall be
One Hundred Forty-Five Million Dollars ($145,000,000) (provided that,
based on the Construction Loan Facilities which have been provided to
New Hospital Joint Ventures prior to the effective date of the First
Amendment to Commitment Agreement, the aggregate
amount of the Aggregate Commitment which is available to the Company as
of the effective date of the First Amendment to Commitment Agreement is
Fifty Million Four Hundred Thousand Dollars ($50,400,000)).
(b) Additional Defined Terms. Section 1.1 of the Commitment
Agreement is amended by the addition of the following defined term (in
alphabetical order):
"First Amendment to Commitment Agreement" means the First
Amendment to Commitment Agreement, dated as of March 28, 2003 and
effective as provided therein, by and among the Company, the Lenders
party thereto, the Administrative Agent, the Syndication Agent and the
Documentation Agent.
(c) Amendment to Section 2.1(b)(i). Subsection (b)(i) of Section
2.1 of the Commitment Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof.
(i) (A) the aggregate principal committed amount of all
of the Construction Loan Facilities (after giving effect to any
Construction Loan Facility requested by the Company on behalf of any
New Hospital Joint Venture) shall not at any time exceed the Aggregate
Commitment and (B) the aggregate principal amount of each Construction
Loan Facility shall constitute a permanent reduction in the Aggregate
Commitment (and the aggregate principal committed amount of each Lender
under each Construction Loan Facility shall constitute a permanent
reduction of the Commitment of such Lender);
(d) Amendment to Section 2.5. The lead-in to Section 2.5 of the
Commitment Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
SECTION 2.5 Increase of Aggregate Commitment. The Company
shall have the right from time to time to increase the Aggregate
Commitment upon not less than thirty (30) days prior written notice to
the Administrative Agent; provided that (a) in no event shall the
Aggregate Commitment be increased pursuant to this Section 2.5 by an
amount greater than $50,000,000 (it being acknowledged by the Borrower,
the Lenders and the Administrative Agent that the Borrower utilized
$35,000,000 of such $50,000,000 basket pursuant to the First Amendment
to Commitment Agreement), (b) each such requested increase shall be in
a minimum principal amount of $5,000,000 and (c) no Default or Event of
Default shall have occurred and be continuing either prior to or after
giving effect to each such increase in the Aggregate Commitment;
provided further that:
(e) Updated Schedule 1.1(a).
(i) The current Schedule 1.1(a) to the Commitment
Agreement is hereby deleted in its entirety and the attached Schedule 1.1(a) to
the Commitment Agreement, which schedule has been revised to reflect the revised
Commitment and Commitment Percentages of each of the Lenders as of the effective
date of this First Amendment, is hereby substituted in lieu thereof. The
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attached Schedule 1.1(a) to the Commitment Agreement reflects that the following
Lenders have increased their respective Commitments by the following amounts:
Amount of Increase
Increasing Lenders of Commitment
------------------ ------------------
Bank of America, N.A. $12,500,000.00
Wachovia Bank, National Association $12,500,000.00
JPMorgan Chase Bank $ 5,000,000.00
Amount of Increase
New Lenders of Commitment
----------- ------------------
Hibernia National Bank $ 5,000,000.00
(ii) Each reference to Schedule 1.1(a) in the Commitment
Agreement shall be deemed to be a reference to Schedule 1.1(a) attached hereto.
(f) Amendment to Exhibit E-2. The current Exhibit E-2, "Form of
Guaranty Agreement," is hereby amended as follows:
(i) The definition of the following quoted term which is
set forth in Section 1 is hereby amended in its entirety as follows:
"EBITDA" means, with respect to any Person for any period, the
sum of the following determined, without duplication, in accordance
with GAAP: (a) Net Income for such period plus (b) the sum of the
following to the extent deducted in determining Net Income for such
period: (i) Interest Expense for such period, (ii) income and franchise
taxes for such period, (iii) amortization and depreciation for such
period, (iv) non-cash charges for such period solely with respect to
the impairment of goodwill in accordance with GAAP and any other
non-cash charges required under FASB 142, (v) non-cash impairment
charges for such period solely with respect to management contracts of
MedCath Diagnostics LLC and its Subsidiaries and MedCath Cardiology
Consulting & Management, Inc. and its Subsidiaries, and (vi) non-cash
impairment charges for such period solely with respect to loan
acquisition costs minus (c) to the extent added in the determination of
Net Income, extraordinary gains for such period.
(ii) Section 1 is amended by the addition of the following
defined term (in alphabetical order):
"FASB 142" means Financial Accounting Standards Board
Statement No. 142, as in effect on March 28, 2003.
(iii) Subsection (d) of Section 12 is hereby amended in its
entirety as follows:
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(d) Consolidated Net Worth. As of the Closing Date and as
of the end of any fiscal quarter thereafter, permit Consolidated Net
Worth on such date to be less than the sum of (i) $130,000,000 plus
(ii) fifty percent of cumulative Net Income (excluding the effects of
non-cash charges with respect to the impairment of goodwill in
accordance with GAAP and any other non-cash charges required under FASB
142) of the Parent and its Subsidiaries (if positive) after July 27,
2001 plus (iii) an amount equal to one hundred percent (100%) of the
net cash proceeds received by the Parent or any Subsidiary thereof from
any issuance of equity after the Closing Date less (iv) any non-cash
charges with respect to the impairment of goodwill in accordance with
GAAP and any other non-cash charges required under FASB 142.
3. Acknowledgement of New Lenders.
(a) From and after the effective date of this First Amendment,
each Lender not heretofore a Lender (each such Lender, a "New Lender" and
collectively, the "New Lenders") hereby agrees that (i) such New Lender shall be
a party to, and shall be bound by, the terms and provisions of the Commitment
Agreement and (ii) such new Lender shall have the rights and obligations of a
Lender under the Commitment Agreement and the other Loan Documents.
(b) Each New Lender (i) represents and warrants that it is legally
authorized to enter into this First Amendment; (ii) confirms that it has
received a copy of the Commitment Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this First Amendment; (iii) agrees
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Commitment Agreement; (iv) confirms that it is an
Eligible Assignee; (v) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Commitment Agreement and the other Loan Documents as are delegated to
the Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (vi) agrees that it will
perform in accordance with their terms all the obligations which by the terms of
the Commitment Agreement and the other Loan Documents are required to be
performed by it as a Lender; (vii) agrees to hold all confidential information
in a manner consistent with the provisions of Section 9.12 of the Commitment
Agreement; and (viii) includes herewith for the Administrative Agent the forms
required by Section 3.3(e) of the Commitment Agreement (if required to be
delivered thereby).
4. Conditions. The effectiveness of the amendments set forth in
this First Amendment shall be conditioned upon delivery to the Administrative
Agent of the following items:
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(a) Executed First Amendment. The Administrative Agent
shall have received a fully executed original of this First Amendment,
executed by the Company, the New Lenders and the Required Lenders (as
determined prior to giving effect to the First Amendment).
(b) Miscellaneous.
(i) Proceedings and Documents. All documents,
certificates and other instruments and all proceedings in connection
with the transactions contemplated by this First Amendment shall be
satisfactory in form and substance to the Administrative Agent and the
Lenders.
(ii) Due Diligence and Other Documents. The
Company shall have delivered to the Administrative Agent such other
documents, certificates and opinions as the Administrative Agent may
reasonably request, in form and substance satisfactory to the
Administrative Agent and the Lenders, with respect to the transactions
contemplated by this First Amendment.
(iii) Payment of Fees and Expenses. The Company
shall pay to the Administrative Agent and the Lenders the fees and
expenses set forth in Section 7 of this First Amendment.
5. Effect of Amendment. Except as expressly amended hereby, the
Commitment Agreement and the other Loan Documents shall be and remain in full
force and effect. The amendments granted herein are specific and limited and
shall not constitute a modification, acceptance or waiver of any other provision
of or default under the Commitment Agreement, the other Loan Documents or any
other document or instrument entered into in connection therewith or a future
modification, acceptance or waiver of the provisions set forth therein (except
to the extent necessary to give effect to the specific amendments set forth
herein).
6. Representations and Warranties/No Default.
(a) By its execution hereof, the Company hereby certifies that
each of the representations and warranties set forth in the Commitment Agreement
and the other Loan Documents is true and correct as of the date hereof as if
fully set forth herein and that no Default or Event of Default has occurred and
is continuing as of the date hereof.
(b) By its execution hereof, the Company hereby represents and
warrants that the Company has the right, power and authority and has taken all
necessary corporate or other action to authorize the execution, delivery and
performance of this First Amendment and each other document executed in
connection herewith to which it is a party in accordance with their respective
terms.
(c) This First Amendment and each other document executed in
connection herewith has been duly executed and delivered by the duly authorized
officers of the Company, and each
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such document constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms.
7. Fees and Expenses. The Company shall pay all reasonable
out-of-pocket expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this First Amendment, including, without
limitation, the fees and expenses of counsel for the Administrative Agent.
8. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
9. Counterparts. This First Amendment may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
10. Fax Transmission. A facsimile, telecopy or other reproduction
of this First Amendment may be executed by one or more parties hereto, and an
executed copy of this First Amendment may be delivered by one or more parties
hereto by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for
all purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this First Amendment as well as any facsimile, telecopy
or other reproduction hereof.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed by their duly authorized officers, all as of the day and year
first written above.
COMPANY:
MEDCATH INCORPORATED
[CORPORATE SEAL]
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
AGENTS AND LENDERS:
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
DEUTSCHE BANK TRUST COMPANY
AMERICAS (f/k/a BANKERS TRUST
COMPANY), as Syndication Agent and
as Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
(f/k/a FIRST UNION NATIONAL BANK), as
Documentation Agent and as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
[Signature Pages Continue]
[First Amendment to Commitment Agreement-MedCath]
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GE HEALTHCARE FINANCIAL SERVICES, as
Lender
By: /s/ Dev Lobo
-----------------------------------------
Name: Dev Lobo
Title: Senior Risk Manager
THE FOOTHILL GROUP, INC., as Lender
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
JPMORGAN CHASE BANK (f/k/a The Chase
Manhattan Bank), as Lender
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇
Title: Vice President
FIFTH THIRD BANK (WESTERN OHIO), as
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
HIBERNIA NATIONAL BANK, as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
[Signature Pages Continue]
[First Amendment to Commitment Agreement-MedCath]
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Acknowledged and Accepted as of the 28th
day of March, 2003:
MEDCATH CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
MEDCATH HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
MEDCATH INTERMEDIATE HOLDINGS,
INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
[First Amendment to Commitment Agreement-MedCath]
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Updated Schedule 1.1(a)
Lenders and Commitments
(as of the effective date of the First Amendment to Commitment Agreement)
-------------------------------------------------------------------------
* The Commitment Percentage and the Commitment set forth below shall be
the applicable percentage and amount as of the effective date of the
First Amendment to Commitment Agreement (after giving effect to (i) the
Construction Loan Facilities which have been provided to New Hospital
Joint Ventures prior to the effective date of the First Amendment to
Commitment Agreement and (ii) the increase in the Aggregate Commitment
and the joinder of the New Lenders effected pursuant to the First
Amendment to Commitment Agreement).
COMMITMENT
LENDER PERCENTAGE* COMMITMENT*
------ ----------- --------------
Bank of America, N.A.
IL1-231-08-30
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 30.47559619% $15,359,700.48
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Deutsche Bank Trust Company Americas (f/k/a
The Bankers Trust Company)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇ 5.67400861% $ 2,859,700.34
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Wachovia Bank, National Association (f/k/a
First Union National Bank)
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ 29.22782313% $14,730,822.86
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
GE Healthcare Financial Services
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Dev Lobo 6.35442972% $ 3,202,632.58
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
COMMITMENT
LENDER PERCENTAGE* COMMITMENT*
------ ------------ --------------
The Foothill Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇ 3.40479694% $1,716,017.66
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇▇ Chase Bank (f/k/a The Chase
Manhattan Bank)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇ 13.66591159% $6,887,619.44
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Fifth Third Bank (Western Ohio)
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ 1.27679889% $ 643,506.64
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Hibernia National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇ 9.92063492% $5,000,000.00
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
TOTAL: 100% $ 50,400,000