Exhibit 10.30
CONSENT AND SECOND AMENDMENT
This CONSENT AND SECOND AMENDMENT (this "Amendment") dated as of June 13,
2002, is entered into by and among NOVAMED EYECARE, INC., a Delaware corporation
("Borrower"), NATIONAL CITY BANK OF MICHIGAN/ILLINOIS as Agent (as hereinafter
defined), and as a Lender (as defined below), and the financial institutions
signatory hereto ("Lenders"). Unless otherwise specified herein, capitalized
terms used in this Amendment shall have the meanings ascribed to them by the
Credit Agreement (as hereinafter defined).
RECITALS
WHEREAS, the Borrower, the Agent and the Lenders have entered into that
certain Second Amended and Restated Credit Agreement, dated as of October 23,
2001 (as the same may be further amended, supplemented, restated or otherwise
modified from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower, the Agent and the Lenders wish to consent to the
Borrower undertaking certain transactions and to amend the Credit Agreement to
provide for certain changes thereto, all as more fully set forth herein;
NOW THEREFORE, in consideration of the mutual execution hereof and other
good and valuable consideration, the parties hereto agree as follows:
SECTION 1. Consents.
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(a) In connection with and as part of the Permitted Unwind Transaction with
Xxxxxxxx Eye Institute, P.C. ("WEI"), the Lenders hereby consent to Borrower,
and any Subsidiary of Borrower, selling to WEI substantially all of the assets
of the ambulatory surgery center located on Xxxxxx Avenue in Hammond, Indiana,
provided that: (i) the total consideration received by Borrower or any such
Subsidiary of Borrower in connection with such Permitted Unwind Transaction
(including, without limitation the sale of such ambulatory surgery center
assets) shall be approximately $2.7 million in cash proceeds and approximately
1.7 million shares of Borrower's common stock; and (ii) after giving effect to
such transaction, no Default or Event of Default would exist under the Credit
Agreement.
(b) The Lenders hereby consent to the Borrower and its Subsidiaries in
connection with and as part of any Permitted Unwind Transaction: (i) selling all
assets related to the optical dispensary portion of a Practice which is the
subject of a Permitted Unwind Transaction; and (ii) terminating all contractual
relationships regarding the management of, or provision of services to, such
Practice with respect to the optical dispensary portion of such Practice.
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SECTION 2. Amendments to Credit Agreement.
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(a) Section 1.1 of the Credit Agreement is hereby amended by deleting the
definition of "Revolving Commitment Amount" in its entirety and by replacing
such definition with the following new definition:
"Revolving Commitment Amount" means: (i) from the Second Amendment and
Restatement Effective Date through December 31, 2001, $45,000,000, (ii) from
January 1, 2002 through March 31, 2002, $42,500,000, (iii) from April 1, 2002
through the Second Amendment Effective Date, $40,000,000, (iv) from the Second
Amendment Effective Date through September 30, 2002, $35,000,000 and (v) on
October 1, 2002 and each date thereafter, $30,000,000. The Revolving Commitment
Amount then in effect may be reduced from time to time pursuant to Section 2.2."
(b) Section 1.1 of the Credit Agreement is hereby amended by adding the
following new definitions thereto in appropriate alphabetical order:
"Second Amendment" means that certain Consent and Second Amendment dated as
of June 13, 2002.
"Second Amendment Effective Date" means June 13, 2002.
(c) Exhibit J to the Credit Agreement is hereby amended by deleting the
reference to $1,000,000 which appears in Annex A thereto and replacing such
reference with a reference to $3,000,000.
SECTION 3. Representations and Warranties. The Borrower represents and
warrants that: ------------------------------
(a) the execution, delivery and performance by the Borrower of this
Amendment has been duly authorized by all necessary corporate action and that
this Amendment is a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, except as the
enforcement thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law);
(b) other than as modified hereby, each of the representations and
warranties contained in the Credit Agreement is true and correct in all material
respects on and as of the date hereof as if made on the date hereof, except to
the extent that such representations and warranties expressly relate to an
earlier date;
(c) neither the execution, delivery and performance of this Amendment nor
the consummation of the transactions contemplated hereby does or shall
contravene, result in a breach of, or violate (i) any provision of the
Borrower's certificate or articles of incorporation or
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bylaws, (ii) any law or regulation, or any order or decree of any court or
government instrumentality or (iii) indenture, mortgage, deed of trust, lease,
agreement or other instrument to which the Borrower or any of its Subsidiaries
is a party or by which the Borrower or any of its Subsidiaries or any of their
property is bound, except in any such case to the extent such conflict or
breach, with respect to any such indenture, mortgage, deed of trust, lease,
agreement or other instrument, would not reasonably be expected to have a
Material Adverse Effect or has been waived by a written waiver, a copy of which
has been delivered to the Agent on or before the date hereof; and
(d) no Default or Event of Default will exist after giving effect to this
Amendment.
SECTION 4. Reference to and Effect Upon the Credit Agreement.
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(a) Except as specifically amended above, the Credit Agreement and the
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Agent or any Bank under
the Credit Agreement or any Loan Document, nor constitute a waiver of any
provision of the Credit Agreement or any Loan Document, except as specifically
set forth herein. Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of similar import shall mean and be a reference to the Credit Agreement as
amended hereby.
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
SECTION 6. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
SECTION 7. Counterparts. This Amendment may be executed in any number of
counterparts (including by facsimile), each of which when so executed shall be
deemed an original but all such counterparts shall constitute one and the same
instrument.
SECTION 8. Effectiveness. This Amendment shall become effective upon
receipt by the Agent of a fully executed copy of this Amendment by each of the
parties hereto (such date being the Second Amendment Effective Date).
[Signature Page to follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
and year first above written.
NOVAMED EYECARE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: President
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NATIONAL CITY BANK OF MICHIGAN/ILLINOIS,
Individually and as Agent
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Vice President
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LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxx X. X'Xxxxxxxxxx
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Title: _____________________________________
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Officer
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BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx Xxxxxx
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Title: Senior Vice President
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