FIRST Amendment to Credit Agreement and CONSENT To ACQUISITION
Exhibit
10.55
FIRST
Amendment to Credit Agreement and CONSENT To ACQUISITION
FIRST
AMENDMENT TO CREDIT AGREEMENT AND CONSENT TO ACQUISITION (this "Agreement"),
dated
as of May 31, 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 (the "Credit
Agreement").
B. Borrower
has requested that Agent and Lenders amend the Credit Agreement and consent
to
the acquisition by Borrower or a Wholly-Owned Subsidiary of Borrower of a 62.5%
interest in Surgery Center of Kalamazoo, L.L.C. for a purchase price of
$24,600,000 (the “Kalamazoo
Acquisition”)
which
acquisition requires the consent of the Required Lenders.
C. Agent
and
Lenders are willing to enter into this Agreement to consent to the Kalamazoo
Acquisition 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 Kalamazoo
Acquisition on a pro forma basis it will be in compliance with all financial
covenants under the Credit Agreement as more fully detailed on the pro forma
compliance certificate and Agreed EBITDA certificate previously disclosed to
the
Agent and Lenders and that the Kalamazoo Acquisition fully complies with the
definition of Permitted Acquisition except for clause (c) of such definition
which requires the consent of the Lenders contained herein. Based upon such
representations and warranties, the Agent and the Lenders hereby consent to
the
Kalamazoo Acquisition by Borrower or a Wholly-Owned Subsidiary of Borrower
for a
purchase price not to exceed $24,600,000. Upon consummation of the Kalamazoo
Acquisition such acquisition will be considered a Permitted Acquisition for
all
purposes under the Credit Agreement.
2. Amendments
to Credit Agreement.
(a) Section
1.1 of the Credit Agreement is hereby amended by adding the following new
definition thereto:
"Surgery
Center of Kalamazoo"
means
Surgery Center of Kalamazoo, L.L.C., a Michigan limited liability
company.
(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 permitted to be outstanding
under Section
7.2.2(q)
hereof,
that amount of such Indebtedness of NovaMed of New Albany 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 (s) and (t) thereto:
"(s)
Indebtedness of Surgery Center of Kalamazoo in an amount not to exceed
$2,000,000; and
(t)
Indebtedness of Borrower consisting of a guarantee of the Indebtedness of
Surgery Center of Kalamazoo permitted under clause
(s)
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
Surgery Center of Kalamazoo."
(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 and Surgery Center of Kalamazoo securing
the
Indebtedness permitted by clause
(q)
and
clause
(s)
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).
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.
2
(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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| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxx | |
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Title:
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Executive
Vice President and Chief Financial Officer
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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/ Xxx X. Xxxxxxxxx
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
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/ Xxxxxx Xxxxx
Title: Senior
Banker
BMO
CAPITAL MARKETS FINANCING, INC.
Individually
as a Lender
By
/s/ Xxxxxxx X. Xxxxxx
Title: Managing
Director
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