EXHIBIT 10.1


 


SECOND
AMENDMENT TO CREDIT AGREEMENT


 


THIS SECOND
AMENDMENT TO CREDIT AGREEMENT, dated as of the 17th day of February,
2010 (this “Amendment”), is made by and between BROTMAN MEDICAL CENTER,
INC., a California corporation, as borrower (the “Borrower”) and GEMINO
HEALTHCARE FINANCE, LLC, a Delaware limited liability company, as lender (“Lender”).


 


BACKGROUND
STATEMENT


 


A.            The Borrower and Lender are parties
to a Credit Agreement, dated as of April 14, 2009, as amended by that
certain First Amendment to Credit Agreement and Wavier, dated as of December 11,
2009 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”). 
Capitalized terms used herein without definition shall have the meanings
given to them in the Credit Agreement.


 


B.            The Borrower has requested that
Lender agree to (i) increase the loan commitment by $1,000,000.00 and (ii) make
certain revisions to the Credit Agreement. Lender has agreed to make the
following amendments to the Credit Agreement, subject to the terms and
conditions set forth herein.


 


STATEMENT
OF AGREEMENT


 


The
parties hereto, in consideration of the mutual covenants and agreements set
forth herein, agree as follows:


 


ARTICLE
I


 


AMENDMENTS


 


1.1           Amendment to Recitals. The first
paragraph of the Recitals of the Credit Agreement is hereby amended by deleting
it in its entirety and replacing it with the following:


 


“WHEREAS, Borrowers have requested that Lender make available to them,
on a joint and several basis, a Credit Facility in the maximum amount of
$7,000,000.00 which will be secured by a first priority perfected security
interest in the Collateral (as defined below); and”


 


1.2           Amendment to Definition of “Maximum
Credit Limit”. The definition of “Maximum Credit Limit” in Annex I
of the Credit Agreement is hereby amended by deleting it in its entirety and
replacing it with the following:


 


“Maximum Credit Limit means an amount, from time to time, equal to
the Revolving Loan Commitment, not to exceed at any time Seven Million and No/100
Dollars ($7,000,000.00) in the aggregate.”


 

















 


1.3           Amendment to Definition of “Revolving
Loan Commitment”. The definition of “Revolving Loan Commitment” in Annex
I Agreement is hereby amended by deleting it in its entirety and replacing
it with the following:


 


“Revolving
Loan Commitment” means an amount equal to Seven Million and No/Dollars
($7,000,000.00).


 


ARTICLE II


 


REPRESENTATIONS AND WARRANTIES


 


The Borrower hereby represents and warrants as
follows:


 


2.1           Representations
and Warranties. After giving effect to this Amendment, each of the
representations and warranties of the Borrower contained in the Credit
Agreement and in the other Loan Documents is true and correct on and as of the
date hereof with the same effect as if made on and as of the date hereof
(except to the extent any such representation or warranty is expressly stated
to have been made as of a specific date, in which case such representation or
warranty is true and correct as of such date).


 


2.2           No Default. After giving
effect to this Amendment, no Default or Event of Default has occurred and is
continuing.


 


2.3           Enforceability. This Amendment
has been duly executed and delivered by the Borrower and constitutes the Borrower’s
legal, valid and binding obligation, enforceable in accordance with its terms,
except as such enforceability may be limited (x) by general principles of
equity and conflicts of laws or (y) by bankruptcy, reorganization,
insolvency, moratorium or other laws of general application relating to or
affecting the enforcement, of Lender’s rights.


 


2.4           No Conflicts. No consent,
approval, authorization or order of, or filing, registration or qualification
with, any court or governmental authority or third party is required in
connection with the execution, delivery or performance by the Borrower of this
Amendment.


 


2.5           Obligations. The execution and
delivery of this Amendment does not diminish or reduce the Borrower’s
obligations under the Loan Documents, except as modified by this Amendment.


 


2.6           No Claims. No Borrower has any
claims, counterclaims, offsets or defenses to the Loan Documents and the
performance of its obligations thereunder, or if any Borrower has any such
claims, counterclaims, offsets, or defenses to the Loan Documents or any
transaction related to the Loan Documents, the same are hereby waived,
relinquished and released in consideration of Lender’s execution and delivery
of this Amendment.


 


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ARTICLE
III


 


CONDITIONS
TO EFFECTIVENESS


 


The
effectiveness of the amendments to the Credit Agreement and of the waivers and
consents set forth in this Amendment is subject to the satisfaction of the
following conditions:


 


3.1           Executed Amendment and Other
Documents. This Amendment, the Amended and Restated Revolving Note and any other
documents required by Lender in its sole discretion shall have been duly executed
and delivered by Borrower in form and substance satisfactory to Lender in its
sole discretion.


 


3.2           Fees.  Upon Closing, Borrower shall have paid to
Lender (i) all Expenses (including without limitation the reasonable fees
and expenses of counsel to Lender) associated with this Amendment, and (ii) Twenty
Thousand and No/100 Dollars ($20,000.00) to Lender as an additional commitment
fee.


 


3.3           No Material Adverse Change. No
Material Adverse Effect has occurred and is continuing, and no Borrower knows
of any event, condition or state of facts that could reasonably be expected to
have a Material Adverse Effect.


 


ARTICLE
IV


 


MISCELLANEOUS


 


4.1           Effect of Amendment. From and
after the Effective Date (as defined below), all references to the Credit
Agreement set forth in any other Loan Document or other agreement or instrument
shall, unless otherwise specifically provided, be references to the Credit
Agreement as amended by this Amendment and as may be further amended, modified,
restated or supplemented from time to time. This Amendment is limited as
specified and shall not constitute or be deemed to constitute an amendment,
modification or waiver of any provision of the Credit Agreement or of any other
Loan Document except as expressly set forth herein. Except as expressly amended
hereby, the Credit Agreement shall remain in full force and effect in
accordance with its terms.


 


4.2           Governing Law. This Amendment
shall be governed by and construed and enforced in accordance with the laws of
the Commonwealth of Pennsylvania (without regard to the conflicts of law
provisions thereof).


 


4.3           Expenses. Borrower agrees to
pay upon demand all out-of-pocket costs and expenses of Lender (including,
without limitation, the reasonable fees and expenses of counsel to Lender) in
connection with the preparation, negotiation, execution and delivery of this
Amendment.


 


4.4           Severability. To the extent
any provision of this Amendment is prohibited by or invalid under the
applicable law of any jurisdiction, such provision shall be ineffective only to
the extent of such prohibition or invalidity and only in any such jurisdiction,
without prohibiting 


 


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or invalidating such provision in any other jurisdiction or the
remaining provisions of this Amendment in any jurisdiction.


 


4.5           Successors and Assigns.  This Amendment shall be binding upon, inure
to the benefit of and be enforceable by the respective successors and assigns
of the parties hereto.


 


4.6           Construction. The headings of
the various sections and subsections of this Amendment have been inserted for
convenience only and shall not in any way affect the meaning or construction of
any of the provisions hereof.


 


4.7           Counterparts; Effectiveness.
This Amendment may be executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one
and the same instrument. This Amendment shall become effective upon the
execution and delivery of a counterpart hereof by the Borrower and Lender and
the satisfaction of the conditions set forth in Article III hereof (such
date, the “Effective Date”). 
Signatures of the parties to this Amendment transmitted by facsimile or
via other electronic format shall be deemed to be their original signatures for
all purposes.


 


[Signatures
on following page.]


 


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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first above written.


 


BORROWER:


 


	
  Address
  for notices to Borrower:

  	
  BROTMAN
  MEDICAL CENTER, INC.

  
	
   

  	
   

  
	
  Brotman Medical
  Center, Inc.

  	
   

  
	
  3828 Delmas Terrace

  	
   

  
	
  Culver City, CA 90231

  	
   

  
	
  Attn: Von Crockett,
  Chief Executive Officer

  	
  By: 

  	
  /s/ Von Crockett

  
	
  Fax: (310) 202-4125

  	
  Name: 

  	
  Von Crockett

  
	
   

  	
  Title: 

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  LENDER:

  	
   

  
	
   

  	
   

  
	
  Address
  for notices to Lender:

  	
  GEMINO
  HEALTHCARE FINANCE, LLC

  
	
   

  	
   

  
	
  Gemino Healthcare Finance, LLC

  	
   

  
	
  1 International Plaza,
  Suite 220

  	
  By: 

  	
  /s/ Miriam P. Gallagher

  
	
  Philadelphia, PA 19113

  	
  Name: 

  	
  Miriam P. Gallagher

  
	
  Attn: Miriam Gallagher

  	
  Title: 

  	
  Senior Portfolio
  Manager

  
	
  Fax: (610) 870-5401

  	
   

  
	
   

  	
   

  
	
  With a copy to (which
  shall not constitute notice):

  	
   

  
	
   

  	
   

  
	
  Waller
  Lansden Dortch & Davis, LLP

  	
   

  
	
  511 Union Street,
  Suite 2700

  	
   

  
	
  Nashville City Center

  	
   

  
	
  Nashville, TN 37219

  	
   

  
	
  Attn: Robert L. Harris

  	
   

  
	
  Fax: (615) 244-6804