THIRD AMENDMENT AND CONSENT TO CREDIT AGREEMENT
Exhibit
10.57
THIRD
AMENDMENT AND CONSENT TO CREDIT AGREEMENT
THIRD
AMENDMENT AND CONSENT TO CREDIT AGREEMENT (this "Agreement"),
dated
as of December 13, 2007, among NOVAMED, INC., a Delaware corporation
(“Borrower”),
NATIONAL CITY BANK (“Agent”)
and
the Lenders signatory hereto. Terms not defined herein have the meanings given
to them in the Credit Agreement (as hereinafter defined).
BACKGROUND
A. Borrower,
the Lenders signatory thereto and Agent are party to that certain Sixth Amended
and Restated Credit Agreement dated as of February 7, 2007 (as amended by that
certain First Amendment to Credit Agreement and Consent to Acquisition dated
as
of May 31, 2007 and that certain Second Amendment to Credit Agreement dated
as
of June 20, 2007, the "Credit
Agreement").
B. Borrower
has requested that Agent and Lenders amend the Credit Agreement and consent
to
the sale or closure (the "December, 2007 Divestitures") by Borrower of those
certain Non-Wholly Owned Subsidiaries of the Borrower set forth on Annex A
to
this Agreement.
C. Agent
and
Lenders are willing to enter into this Agreement to amend the Credit Agreement
and to consent to the December, 2007 Divestures upon the terms and conditions
set forth below.
NOW
THEREFORE, in consideration of the matters set forth in the recitals and the
covenants and provisions herein set forth, and other valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Amendments
to Credit Agreement.
(a) Section
1.1 of the Credit Agreement is hereby amended by adding the following new
definitions thereto:
"NovaMed
of Altamonte Springs"
means
NovaMed Surgery Center of Altamonte Springs, LLC, a Delaware limited liability
company.
“Third
Amendment”
means
that certain Third Amendment to Credit Agreement dated as of June 20, 2007
among
Borrower, Agent and Required Lenders.
“Third
Amendment Effective Date”
has
the
meaning set forth in Section 4 of the Third Amendment.
(b) Section
1.1 of the Credit Agreement is hereby further amended by deleting the definition
of "Total Funded Debt" therein and replacing it with the following new
definition of "Total Funded Debt":
“Total
Funded Debt"
of any
Person means all Indebtedness of such Person except Indebtedness specified
in
clause
(g)
of the
definition of Indebtedness; provided,
with
respect to Indebtedness of NovaMed of New Albany and NovaMed of Altamonte
Springs permitted to be outstanding under Section
7.2.2(q)
and
Section
7.2.2(v)
hereof,
that amount of such Indebtedness of NovaMed of New Albany and NovaMed of
Altamonte Springs guaranteed by a Person or Persons other than a Credit Party,
ASC Subsidiary, Minority ASC Entity or Affiliate of a Credit Party, ASC
Subsidiary or Minority ASC Entity shall be excluded for purposes of calculating
this definition and provided,
further,
the
amount of outstanding Indebtedness of Surgery Center of Kalamazoo included
in
the calculation of this definition shall equal the principal amount of such
Indebtedness multiplied by that percentage of the outstanding equity of Surgery
Center of Kalamazoo owned by the Borrower or any Wholly-Owned
Subsidiary.
(c) Section
7.2.2 of the Credit Agreement is hereby amended by adding the following new
clauses (v) and (w) thereto:
"(v)
Indebtedness of NovaMed of Altamonte Springs in an amount not to exceed
$4,000,000 at any time outstanding; and
(w)
Indebtedness of Borrower consisting of a guarantee of the Indebtedness of
NovaMed of Altamonte Springs permitted under clause
(v)
of this
Section
7.2.2.
provided
that such guarantee is limited to a pro rata portion of such Indebtedness equal
to Borrower’s owned pro rata portion of the outstanding equity interests of
NovaMed of Altamonte Springs."
(d) Section
7.2.3 of the Credit Agreement is hereby amended by deleting clause (m) thereof
and replacing it with the following new clause (m):
"(m) Liens
on
the assets of NovaMed of New Albany, Surgery Center of Kalamazoo and NovaMed
of
Altamonte Springs securing the Indebtedness permitted by clauses
(q),(s)
and (v)
of
Section
7.2.2.,
respectively."
(e) Section
7.2.9(a) of the Credit Agreement is hereby amended by adding the phrase "and
exclusive of the December, 2007 Divestitures" immediately at the end of the
parenthetical in clause (ii) thereof.
2. Consent.
The
Agent and Lenders hereby consent to Borrower and its Subsidiaries entering
into
the December, 2007 Divestitures provided that (i) the aggregate amount of cash
charges relating to the December, 2007 Divestitures taken by the Borrower and
its Subsidiaries on a consolidated basis does not exceed $13,000,000 and (ii)
the December, 2007 Divestitures are on terms and conditions (including
indemnity, put and other similar terms) reasonably satisfactory to the Agent.
The Agent and Lenders further waive any prepayment required by Section 2.2.2(b)
arising out of the December, 2007 Divestitures.
3. Representations
and Warranties.
To
induce Agent and Lenders to enter into this Agreement, Borrower represents
and
warrants to Agent and the Lenders that the execution, delivery and performance
by Borrower of this Agreement is within its corporate powers, as applicable,
has
been duly authorized by all necessary corporate action and does not and will
not
violate or conflict with any provision of law applicable to Borrower, the
Certificate of Incorporation or Bylaws or other organizational document of
Borrower, or any order, judgment or decree of any court or other agency of
government or any contractual obligation binding upon Borrower; and the Credit
Agreement as amended as of the date hereof is the legal, valid and binding
obligation of Borrower enforceable against Borrower in accordance with its
terms
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and the effects of general
principles of equity. Borrower hereby further represents and warrants that,
as
of the Third Amendment Effective Date, the Borrower and its Subsidiaries are
Solvent on a consolidated basis and the Borrower acknowledges that its
warranties and representations contained in the Credit Agreement and the other
Loan Documents, are true and correct in all material respects both before and
after the Third Amendment Effective Date (both before and after giving effect
to
the transactions contemplated hereby) with the same effect as though made on
such date (except to the extent stated to relate to an earlier date, in which
case such representations and warranties were true and correct in all material
respects as of such earlier date).
2
4. Conditions.
The
effectiveness of the consent and amendments stated in this Agreement is subject
to each of the following conditions precedent (the date of consummation of
which
shall be the "Third
Amendment Effective Date"):
(A) Agreement.
Agent
shall have received counterparts of this Agreement duly executed by Borrower,
Agent and the Required Lenders.
(B) No
Default.
After
giving effect to this Agreement, and the waivers contained herein no Default
or
Event of Default under the Credit Agreement shall have occurred and be
continuing.
(C) Warranties
and Representations.
The
warranties and representations of the Credit Parties contained in this
Agreement, the Credit Agreement and the other Loan Documents, shall each be
true
and correct in all material respects as of the Third Amendment Effective Date
hereof, with the same effect as though made on such date (except to the extent
stated to relate to an earlier date, in which case such representations and
warranties were true and correct in all material respects as of such earlier
date).
(D) Payment
of Expenses.
Borrower shall have paid all reasonable out of pocket expenses (including
reasonable attorney’s fees) of Agent in connection with this
Agreement.
(E) Additional
Deliveries.
Borrower and the other Credit Parties shall have executed and delivered such
additional certificates, documents, amendments to other Loan Documents and
financing statements as Agent may require in connection with the transactions
contemplated by this Agreement.
5. Miscellaneous.
(A) Captions.
Section
captions used in this Agreement are for convenience only, and shall not affect
the construction of this Agreement.
3
(B) Governing
Law.
This
Agreement shall be governed by and shall be construed and enforced in accordance
with the internal laws of the State of Illinois, without regard to conflict
of
laws principles.
(C) Counterparts.
This
Agreement may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Agreement. Delivery of an executed
signature page to this Agreement by telecopy shall be deemed to constitute
delivery of an originally executed signature page hereto.
(D) Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
(E) References.
Any
reference to the Credit Agreement contained in any notice, request, certificate,
or other document executed concurrently with or after the execution and delivery
of this Agreement shall be deemed to include this Agreement unless the context
shall otherwise require.
(F) Effectiveness
of Agreement.
The
Agent and Required Lenders hereby acknowledge and agree that upon the
satisfaction of the conditions to effectiveness in Section 4 of this Agreement
(including the execution of this Agreement by the Borrower, Agent and Required
Lenders), this Agreement will be effective to amend the Credit Agreement as
set
forth herein.
(G) Continued
Effectiveness.
Notwithstanding anything contained herein, the terms of this Agreement are
not
intended to and do not serve to effect a novation as to the Credit Agreement.
The parties hereto expressly do not intend to extinguish the Credit Agreement.
Instead, it is the express intention of the parties hereto to reaffirm the
indebtedness created under the Credit Agreement, which is evidenced by the
Notes
and secured by the Collateral. The Credit Agreement as amended hereby and each
of the other Loan Documents remains in full force and effect.
[Signature
Pages Follow]
4
Witness
the due execution hereof by the respective duly authorized officers of the
undersigned as of the date first above written.
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NOVAMED,
INC.
By:
/s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx
X. Xxxxxxxx
Title: EVP
and CFO
|
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NATIONAL
CITY BANK,
Individually
as a Lender, as Letter of Credit
Issuer
and as Agent
By:
/s/ Xxxxx X. Xxxxxxxx
Title:
Vice President
LASALLE
BANK NATIONAL ASSOCIATION
Individually
as a Lender
By:
/s/ Xxxxxxx X. Xxxxx
Title:
Assistant Vice President
ASSOCIATED
BANK, N.A.
Individually
as a Lender
By:
/s/ Xxxxxx Xxxxxxxx
Title:
AVP
CHARTER
ONE BANK
Individually
as a Lender
By:
/s/ Xxxxxxx X. Xxxx
Title:
Vice President
JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION
Individually
as a Lender
By:
/s/ Xxxxx Xxxxx
Title:
Senior Vice President
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ANNEX
A
DECEMBER,
2007 DIVESTITURE SUBSIDIARIES
(1)
NovaMed Surgery Center of Columbus, LLC
(2)
NovaMed Surgery Center of Laredo, LLC
(3)
NovaMed Surgery Center of Thibodaux, LLC
