FOURTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT
Exhibit
10.25
FOURTH
AMENDMENT AND CONSENT TO CREDIT AGREEMENT
FOURTH
AMENDMENT CONSENT TO CREDIT AGREEMENT (this "Agreement"),
dated
as of December 1, 2008, 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, that certain Second Amendement to Credit Agreement dated as
of
June 20, 2007 and that certain Third Amendment and Consent to Credit Agreement
dated as of December 13, 2007, the "Credit
Agreement").
B. Borrower
has requested that Agent and Lenders amend the Credit Agreement and consent
to
the assumption of certain debt related to the acquisition by Borrower or a
Wholly-Owned Subsidiary of Borrower of one or more ambulatory surgery centers
(“Debt Assumption”) which assumption of debt requires the consent of the
Required Lenders.
C. Agent
and
Lenders are willing to enter into this Agreement to consent to the Debt
Assumption and amend the Credit Agreement 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. Consent.
Borrower
hereby represents and warrants that after giving effect to the Debt Assumption
and related acquisitions on a pro forma basis it will be in compliance with
all
financial covenants under the Credit Agreement. Based upon such representations
and warranties, the Agent and the Lenders hereby consent to the Debt Assumption
by Borrower or a Wholly-Owned Subsidiary of Borrower for an amount not to exceed
$6,000,000.
2. Amendments
to Credit Agreement.
(a) Section
1.1 of the Credit Agreement is hereby amended by adding the following new
definition thereto:
"Acquired
Surgery Centers"
means
surgery centers acquired by Borrower or a Wholly-Owned Subsidiary of Borrower
after the Effective Date that have debt outstanding that will be assumed by
Borrower or a Wholly-Owned Subsidiary of Borrower.
“Fourth
Amendment” means
that certain Fourth Amendment and Consent to Credit Agreement dated as of
December 1, 2008 among Borrower, Agent and Required Lenders.
(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 and Acquired
Surgery Centers 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 and Acquired Surgery Centers
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 (x) and (y) thereto:
"(x)
Indebtedness of Acquired Surgery Centers in an amount not to exceed $6,000,000;
and
(y)
Indebtedness of Borrower consisting of a guarantee of the Indebtedness of
Acquired Surgery Centers permitted under clause
(x)
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
Acquired Surgery Centers."
(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, NovaMed of
Altamonte Springs and Acquired Surgery Centers securing the Indebtedness
permitted by clause
(q), (s), (v) and (x)
of
Section
7.2.2.,
respectively."
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 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
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).
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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 "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 Loan 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 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 this Agreement.
(E) Additional
Deliveries.
Borrower and the other Loan 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.
(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) 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]
3
Witness
the due execution hereof by the respective duly authorized officers of the
undersigned as of the date first above written.
| NOVAMED, INC. | ||
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|
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| 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
BANK
OF AMERICA, N.A. as successor by merger
to
LASALLE BANK NATIONAL ASSOCIATION
Individually
as a Lender
By
/s/ Xxxxxx Xxxxxx
Title:
Senior Vice President
THE
NORTHERN TRUST COMPANY
Individually
as a Lender
By
/s/ Xxxxxxx X. Xxxxxxxx
Title:
Second Vice President
ASSOCIATED
BANK, N.A.
Individually
as a Lender
By
/s/ Xxxxxx Xxxxxxxx
Title:
AVP
RBS
CITIZENS, N.A.
Individually
as a Lender
By
/s/ Xxxxxxx X. Xxxx
Title:
Vice
President
JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION
Individually
as a Lender
By
/s/ Xxxxxx X. Xxxxxxxx
Title: Senior
Vice President
BMO
CAPITAL MARKETS FINANCING, INC.
Individually
as a Lender
By
/s/ Xxxxxxx X. Xxxxxx
Title:
Managing
Director
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