EXHIBIT 10
FIRST AMENDMENT
THIS FIRST AMENDMENT (this "Amendment") dated as of April 4, 2006, to the
Credit Agreement referenced below, is by and among SYMBION, INC., a Delaware
corporation (the "Borrower"), the Guarantors identified on the signature pages
hereto, the Lenders identified on the signature pages hereto and BANK OF
AMERICA, N.A., as Administrative Agent.
W I T N E S S E T H
WHEREAS, a $150 million revolving credit facility has been extended to the
Borrower pursuant to the Amended and Restated Credit Agreement (as amended,
modified and supplemented from time to time, the "Credit Agreement") dated as of
March 21, 2005 among the Borrower, the Guarantors, the Lenders identified
therein and the Administrative Agent; and
WHEREAS, the Borrower has requested certain modifications to the Credit
Agreement and the Lenders have consented to the requested modifications on the
terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise defined
herein shall have the meanings provided to such terms in the Credit Agreement.
2. Amendments.
2.1 In Section 1.01 of the Credit Agreement, the definition of "Aggregate
Revolving Commitments" is amended to read as follows:
"Aggregate Revolving Commitments" means the Revolving Commitments of
all the Lenders. The amount of the Aggregate Revolving Commitments
in effect on the Closing Date is ONE HUNDRED NINETY-FIVE MILLION
($195,000,000).
2.2 In the definition of "Permitted Acquisitions" in Section 1.01 of the
Credit Agreement, the following phrase is added to the beginning of clause (d):
"except in the case of the development of a de novo Center (in which
case a Pro Forma Compliance Certificate will not be required),"
2.3 In Section 1.01 of the Credit Agreement, the definitions of
"Consolidated Net Worth" and "Consolidated Capitalization Ratio" are deleted.
2.4 In Section 1.01 of the Credit Agreement, the term "Senior Secured
Debt" is amended to read "Senior Secured Indebtedness".
2.5 Each reference to "Section 8.03(d)" in Section 1.01 and Section 9.03
of the Credit Agreement is amended to read "Section 8.03(j)".
2.6 Each reference to "Section 8.01(f)" in Section 1.01 and Section 10.10
of the Credit Agreement is amended to read "Section 8.01(i)".
2.7 In Section 7.12 of the Credit Agreement, the phrase ", if requested by
the Administrative Agent," is added immediately prior to the phrase "favorable
opinions of counsel" in clauses (a)(ii) and (b)(ii).
2.8 In Section 7.12(a)(ii) of the Credit Agreement, the phrase "Sections
5.01(c) and (e)" is amended to read "Section 5.01(c) and Section 5.01(e)(i),
(ii) and (iv)".
2.9 The phrase "(or such longer period as the Administrative Agent may
agree in its sole discretion)" is added immediately following the phrase "thirty
(30) days" in each of Section 7.12(a), Section 7.14(d)(i), Section
7.14(d)(iii)(A) and Section 7.14(d)(iii)(B) of the Credit Agreement.
2.10 The phrase "(or such longer period as the Administrative Agent may
agree in its sole discretion)" is added immediately following the phrase "ninety
(90) days" in Section 7.14(d)(ii) of the Credit Agreement.
2.11 Section 7.14(c)(ii)(B) of the Credit Agreement is amended to read as
follows:
(B) except in the case of purchase money debt, secured by perfected
first priority Liens on substantially all of the Property (including
both personal property and real property but excluding leased real
property) of such Majority Interest Joint Venture or such Minority
Interest Joint Venture (other than those listed on Schedule 7.14(c))
2.12 In Section 8.02 of the Credit Agreement, clauses (n) and (o) are
renumbered as clauses (o) and (p), and a new clause (n) is added thereto to read
as follows:
(n) loans to employees the proceeds of which are used to finance the
purchase by such employees of Capital Stock in the Borrower,
provided that the aggregate outstanding principal amount of such
loans shall not at any time exceed $500,000; and
2.13 Section 8.02(p) of the Credit Agreement (as relettered by this
Amendment) is amended to read as follows:
(p) Investments not otherwise permitted by the foregoing clauses in
an amount not to exceed $2 million in the aggregate at any time
outstanding.
2.14 The following sentence is added to the end of Section 8.02 of the
Credit Agreement:
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Notwithstanding anything herein to the contrary, the Borrower and
its Subsidiaries shall not write-off or otherwise forgive any
Indebtedness owing by a Majority Interest Joint Venture or a
Minority Interest Joint Venture to the Borrower or any Subsidiary,
other than up to $1 million of Indebtedness in the aggregate in any
fiscal year.
2.15 Section 8.11(c) of the Credit Agreement is amended to read as
follows:
(c) Consolidated Senior Leverage Ratio. Permit the Consolidated
Senior Leverage Ratio as of the end of any fiscal quarter of the
Borrower to be greater than (i) 3.0:1.0 for the fiscal quarters
ending March 31, 2005, June 30, 2005, September 30, 2005 and
December 31, 2005, (ii) 3.50:1.0 for the fiscal quarters ending
March 31, 2006, June 30, 2006, September 30, 2006, December 31, 2006
and Xxxxx 00, 0000, (xxx) 3.25:1.0 for the fiscal quarters ending
June 30, 2007, September 30, 2007, December 31, 2007 and March 31,
2008 and (iv) 3.00:1.0 for the fiscal quarter ending June 30, 2008
and each fiscal quarter ending thereafter.
2.16 Clauses (a) and (e) of Section 8.11 of the Credit Agreement are
deleted in their entirety and replaced with "Reserved".
2.17 Section 8.13(c) of the Credit Agreement is amended to read:
(c) Without providing written notice to the Administrative Agent
within thirty (30) days thereof, change its name, state of formation
or form of organization.
2.18 Schedule 1.01 is restated in its entirety to read as set forth on
Schedule 1.01 hereto.
2.19 Schedule 2.01 is restated in its entirety to read as set forth on
Schedule 2.01 hereto.
3. Conditions Precedent. This Amendment shall become effective as of the
date hereof upon satisfaction of each of the following conditions precedent:
(a) receipt by the Administrative Agent of counterparts of this
Amendment executed by the Borrower, the Guarantors and the Lenders;
(b) receipt by the Administrative Agent of resolutions of the board
of directors (or its equivalent) of each Loan Party approving this
Amendment and authorizing the execution, delivery and performance
thereof, in each case certified by a president, senior vice
president, vice president, secretary or assistant secretary of such
Loan Party to be true and correct as of the effective date of this
Amendment; and
(c) receipt by the Administrative Agent of all fees and expenses
owing in connection with this Amendment.
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4. No Other Changes. Except as expressly modified hereby, all of the terms
and provisions of the Loan Documents shall remain in full force and effect.
5. Amendment is a "Loan Document"; Reaffirmation of Representations and
Warranties. This Amendment is a Loan Document. Each Loan Party represents and
warrants that each representation and warranty set forth in the Loan Documents
is true and correct in all material respects as of the date hereof (except those
that expressly relate to an earlier period).
6. Reaffirmation of Security Interests. Each Loan Party (i) affirms that
each of the Liens granted in or pursuant to the Loan Documents are valid and
existing and (ii) agrees that this Amendment shall in no manner impair or
otherwise adversely effect any of the Liens granted in or pursuant to the Loan
Documents.
7. Reaffirmation of Guaranty. Each of the Guarantors (i) acknowledges and
consents to all of the terms and conditions of this Amendment, (ii) affirms all
of its obligations under the Loan Documents and (iii) agrees that this Amendment
and all documents executed in connection herewith do not operate to reduce or
discharge such Guarantor's obligations under the Loan Documents.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart.
9. Governing Law. This Amendment shall be deemed to be a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this First Amendment to be duly executed and delivered as of the date first
above written.
BORROWER: SYMBION , INC., a Delaware corporation
By:________________________________________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President - Finance and Chief Financial Officer
GUARANTORS: AMBULATORY RESOURCE CENTRES INVESTMENT COMPANY, INC.,
a Washington corporation
AMBULATORY RESOURCE CENTRES OF FLORIDA, INC., a Florida
corporation
AMBULATORY RESOURCE CENTRES OF MASSACHUSETTS, INC.,
a Tennessee corporation
AMBULATORY RESOURCE CENTRES OF TEXAS, INC., a Tennessee
corporation
AMBULATORY RESOURCE CENTRES OF WASHINGTON, INC.,
a Tennessee corporation
AMBULATORY RESOURCE CENTRES OF WILMINGTON, INC.,
a Tennessee corporation
ARC DEVELOPMENT CORPORATION, a Tennessee corporation
ARC DRY CREEK, INC., a Tennessee corporation
ARC FINANCIAL SERVICES CORPORATION, a Tennessee corporation
ARC NEW HARTFORD, INC., a Tennessee corporation
ASC OF XXXXXXX, INC., a Delaware corporation
ASC OF NEW ALBANY, INC., an Indiana corporation
HOUSTON PSC - I, INC., a Texas corporation
LUBBOCK SURGICENTER, INC., a Texas corporation
MEDISPHERE HEALTH PARTNERS MANAGEMENT OF TENNESSEE, INC.,
a Tennessee corporation
MEDISPHERE HEALTH PARTNERS - OKLAHOMA CITY, INC., a
Tennessee corporation
NSC XXXXXX, INC., an Oklahoma corporation
PHYSICIANS SURGICAL CARE, INC., a Delaware corporation
PHYSICIANS SURGICAL CARE MANAGEMENT, INC., a Delaware
corporation
PREMIER AMBULATORY SURGERY OF DUNCANVILLE, INC., a
Delaware corporation
PSC OF NEW YORK, L.L.C., a Delaware limited liability company
SARC/ASHEVILLE, INC., a Tennessee corporation
SARC/CIRCLEVILLE, INC., a Tennessee corporation
SARC/COLUMBIA, INC., a Tennessee corporation
SARC/DELAND, INC., a Tennessee corporation
SARC/FT. XXXXX, INC., a Tennessee corporation
SARC/FW, INC., a Tennessee corporation
SARC/GEORGIA, INC., a Tennessee corporation
SARC/JACKSONVILLE, INC., a Tennessee corporation
SARC/KNOXVILLE, INC., a Tennessee corporation
SARC/LARGO, INC., a Tennessee corporation
SARC/LARGO ENDOSCOPY, INC., a Tennessee corporation
SARC/METAIRIE, INC., a Tennessee corporation
SARC/PROVIDENCE, INC., a Tennessee corporation
SARC/SAVANNAH, INC., a Tennessee corporation
SARC/ST. XXXXXXX, INC., a Tennessee corporation
SARC/VINCENNES, INC., a Tennessee corporation
By:________________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SARC/WORCESTER, INC., a Tennessee corporation
SI/DRY CREEK, INC., a Tennessee corporation
SI/ERIE, INC., a Tennessee corporation
SMBIMS BIRMINGHAM, INC., a Tennessee corporation
SMBIMS BROOKSVILLE, INC., a Tennessee corporation
SMBIMS KIRKWOOD, INC., a Tennessee corporation
SMBIMS STEUBENVILLE, INC., a Tennessee corporation
SMBIMS TUSCALOOSA, INC., a Tennessee corporation
SMBIMS WICHITA, LLC, a Tennessee limited liability company
SURGICARE OF DELAND, INC., a Florida corporation
SYMBION AMBULATORY RESOURCE CENTRES, INC., a Tennessee
corporation
SYMBIONARC MANAGEMENT SERVICES, INC., a Tennessee
corporation
SYMBION IMAGING, INC., a Tennessee corporation
TEXARKANA SURGERY CENTER GP, INC., a Texas corporation
UNIPHY HEALTHCARE OF LOUISVILLE, INC., a Tennessee corporation
UNIPHY HEALTHCARE OF MEMPHIS III, INC., a Tennessee corporation
UNIPHY HEALTHCARE OF MEMPHIS IV, INC., a Tennessee corporation
VASC, INC., an Illinois corporation
VILLAGE SURGICENTER, INC., a Delaware corporation
By:_____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
WILMINGTON SURGERY CENTER, L.P., a Tennessee limited partnership
By: Ambulatory Resources Centres of Wilmington, Inc., its general
partner
By:___________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
PSC DEVELOPMENT COMPANY, LLC, a Delaware limited liability company
By: Physicians Surgical Care, Inc., its sole member
By:___________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
PSC OPERATING COMPANY, LLC, a Delaware limited liability company
By: Physicians Surgical Care, Inc., its sole member
By:__________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SARC/SAN ANTONIO, LLC, a Tennessee limited liability company
By: ARC Financial Services Corporation, its sole member
By:___________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SARC/WEST HOUSTON, LLC, a Tennessee limited liability company
By: ARC Financial Services Corporation, its sole member
By:___________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SMBISS ROSWELL, LLC, a Tennessee limited liability company
By: Symbion ARC Management Services, LLC
By:___________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SMBISS XXXXX SPRINGS, LLC, a Tennessee limited liability company
By: Symbion ARC Management Services, LLC
By:____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
UNIPHY HEALTHCARE OF XXXXXXX CITY VI, LLC,
a Tennessee limited liability company
By: Symbion, Inc.
By:____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President-Finance and Chief Financial Officer
UNIPHY HEALTHCARE OF MEMPHIS I, LLC, a Tennessee limited
liability company
By: Symbion, Inc.
By:____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President-Finance and Chief Financial Officer
SMBISS - IRVINE, LLC, a Tennessee limited liability company
SMBISS - XXXXXXX HILLS, LLC, a Tennessee limited liability company
SMBISS - THOUSAND OAKS, LLC, a Tennessee limited liability company
SMBISS - ARCADIA, LLC, a Tennessee limited liability company
SMBISS - ENCINO, LLC, a Tennessee limited liability company
SMBISS - FLORIDA I, LLC, a Florida limited liability company
By: Symbion ARC Management Services, LLC
By:____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A., as Administrative Agent
By:____________________________
Name:
Title:
LENDERS: BANK OF AMERICA, N.A.,
as a Lender, L/C Issuer and Swing Line Lender
By:____________________________
Name:
Title:
CREDIT SUISSE, Cayman Islands Branch
(formerly known as CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch)
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By:____________________________
Name:
Title:
SUNTRUST BANK
By:_____________________________
Name:
Title:
US BANK NATIONAL ASSOCIATION
By:_____________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION
By:______________________________
Name:
Title:
FIFTH THIRD BANK
By:_____________________________
Name:
Title:
XXXXXXX XXXXX BANK, FSB
By:_____________________________
Name:
Title:
