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Exhibit 10.5
THIRD AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
ENTERED INTO by and among AMSURG CORP., a Tennessee corporation (the
"Borrower"), SUNTRUST BANK, NASHVILLE, N.A., AGENT for the Lenders defined
("Agent"), SUNTRUST BANK, NASHVILLE, N.A., a national bank ("STB"), and
NATIONSBANK OF TENNESSEE, N.A., a national bank ("NBT") (herein STB and NBT
shall be referred to as "Lenders") as of this 19th day of December, 1997.
RECITALS:
1. The Borrower, the Agent, and the Lenders entered into a Second
Amended and Restated Loan Agreement dated as of April 15, 1997 as amended by a
First Amendment to Second Amended and Restated Loan Agreement dated as of May 5,
1997 and as amended by a Second Amendment to Second Amended and Restated Loan
Agreement dated September 2, 1997 (herein the Amended and Restated Loan
Agreement as amended shall be referred to as the "Loan Agreement").
2. The Borrower, the Agent, and the Lenders desire to amend the Loan
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. The definition of "Loan" or "Loans" as set forth in Article I of the
Loan Agreement is hereby amended and restated in its entirety as follows:
"Loan" or "Loans" means any borrowing by Borrower under this
Agreement, the Revolving Credit Notes, and/or any extension of credit
by Agent on behalf of Lenders or by any of the Lenders to or for
Borrower pursuant to this Agreement or any other Loan Document,
including any renewal, amendment, extension, or modification thereof.
2. The definition of "Loan Documents" as set forth in Article I of the
Loan Agreement is hereby amended and restated in its entirety as follows:
"Loan Documents" means, collectively, each document, paper or
certificate executed, furnished or delivered in connection with this
Agreement (whether before, at, or after the Closing Date), including,
without limitation, this Agreement, the Revolving Credit Notes, the
Guarantees, and all other documents, certificates, reports, and
instruments that this Agreement requires or that were executed or
delivered (or both) at Agent's request.
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3. The definition of "Revolving Credit Note" and "Revolving Credit
Notes" as used in Article I of the Loan Agreement means those Revolving Credit
Notes executed by the Borrower payable to the order of each of the Lenders, each
Revolving Credit Note being substantially in the form of Exhibit C hereto and in
the principal amount that each Lender's Pro Rata Share bears to $35,000,000,
including all amendments, renewals, and extensions thereto.
4. The definition of "Term Note" or "Term Notes" as used in Article I
of the Loan Agreement shall be deleted.
5. Section 2.01 of the Loan Agreement shall be amended and restated in
its entirety as follows:
Section 2.01 The Revolving Credit Notes. Subject to the
conditions and the terms of the Loan Documents and subject to the
limitations of Section 2.11 set forth below, and in reliance upon the
representations, warranties, and covenants set forth in the Loan
Documents, the Lenders agree to extend the Borrower credit on a
revolving credit basis, in the principal amount of up to $35,000,000
pursuant to the Revolving Credit Notes.
6. Section 2.04 of the Loan Agreement shall be amended and restated in
its entirety as follows:
Section 2.04 Minimum Advance Amounts. Advances under the
Revolving Credit Notes calculated at the Base Rate shall not be made in
amounts less than $100,000 without Agent's prior written consent, and
Advances under the Revolving Credit Notes calculated at the LIBOR-Based
Rate shall not be made in amounts less than $500,000 without Agent's
prior written consent.
7. Section 2.05 of the Loan Agreement shall be amended and restated in
its entirety as follows:
Section 2.05 Required Payments. The Revolving Credit Notes
shall be payable as set forth therein. Each payment under the Revolving
Credit Notes shall be made without defense, setoff, or counterclaim to
Agent at its Principal Office in U.S. Dollars for the account of each
of the Lenders and in immediately available funds before 12:00 Noon
Nashville Time on the date such payment is due.
8. Section 2.06(b) of the Loan Agreement shall be deleted.
9. Section 2.06(c) of the Loan Agreement shall be amended and restated
in its entirety as follows:
(c) At any time that the outstanding principal balance of an
Advance bears interest at the Base Rate, the Borrower may elect upon
two (2) Business Days prior
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written notice and delivery to Agent of a Notice of Interest Rate
Election to convert the Applicable Interest Rate to a LIBOR-Based Rate.
10. Section 2.06(e) of the Loan Agreement shall be amended and restated
in its entirety as follows:
(e) At any time, no more than six (6) different LIBOR-Based
Rate Periods may be applicable to the Advances.
11. Section 2.06(h) of the Loan Agreement shall be amended and restated
in its entirety as follows:
(h) Borrower may prepay the principal amount evidenced by any
Advance at any time that the Applicable Interest Rate is the Base Rate.
Except as provided specifically in Section 2.06(g)(iii) and (iv),
Borrower may not prepay any Advance so long as the Applicable Interest
Rate is the LIBOR-Base Rate, except at the maturity of any applicable
LIBOR-Based Rate Period.
12. Section 2.07 of the Loan Agreement shall be deleted.
13. The last sentence of Section 2.09 of the Loan Agreement shall be
deleted.
14. Section 2.10 of the Loan Agreement shall be amended and restated in
its entirety as follows:
Section 2.10 Payments to Principal Office; Debit Authority.
Each payment under the Revolving Credit Notes (including any permitted
prepayment and payment of interest) shall be made to Agent at its
Principal Office for the account of Lenders in U.S. dollars and in
immediately available funds before 11:00 a.m. Nashville Time on the
date such payment is due.
15. Section 4.19 of the Loan Agreement shall be amended and restated in
its entirety as follows:
Section 4.19 Use of Proceeds; Purpose of the Credit. Borrower
has used and will use proceeds from the Revolving Credit Notes
exclusively for the purposes stated in this Agreement.
16. Section 5.01(a) of the Loan Agreement shall be amended and restated
in its entirety as follows:
(a) Revolving Credit Notes and Loan Documents. The Revolving
Credit Notes and all other Loan Documents.
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17. Section 7.11(d) of the Loan Agreement shall be amended and restated
in its entirety as follows:
(d) Debt Service Coverage Ratio. As calculated on the last day
of each Fiscal Quarter, permit the ratio of EBITDA to an amount equal
to: (i) Interest Expense, plus (ii) current payments of long term Debt
to be less than 2.25 to 1.0.
18. Section 8.01(a) of the Loan Agreement shall be amended and restated
in its entirety as follows:
(a) Principal and Interest Payments. Borrower fails to make
payment when due of any installment of principal or interest on any of
the Revolving Credit Notes or the Indebtedness within fifteen (15) days
of the date thereof, or Borrower fails to pay when due any payment due
hereunder or under any of the Loan Documents within fifteen (15) days
of the due date thereof; or
19. Section 11.04(b) of the Loan Agreement shall be amended and
restated in its entirety as follows:
(b) The Agent shall not be responsible to any of the Lenders
for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing
delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, collectability, priority or
sufficiency of this Agreement, the Revolving Credit Notes, the
Guarantees, the other Loan Documents, or any other documents
contemplated hereby or thereby, or the financial condition of the
Borrower or the Guarantors, or be required to make any inquiry
concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement, the Revolving Credit Notes,
the Guarantees, the other Loan Documents or the other documents
contemplated hereby or thereby, or the financial condition of the
Borrower or the Guarantors, or the existence or possible existence of
any Default Condition or Event of Default.
20. The Loan Agreement is not amended in any other respect.
21. The Borrower reaffirms its obligations under the Loan Agreement, as
amended hereby, and the Borrower agrees that its obligations are valid and
binding and are enforceable in accordance with its respective terms, subject to
no defense, counterclaim, or objection.
22. The Borrower shall pay to Lender a commitment fee in connection
with the transaction evidenced by this Third Amendment of $17,500.
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ENTERED INTO as of this 19th day of December, 1997.
BORROWER:
AMSURG CORP.
By: XXXXXX X. XXXXX
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Title: Senior Vice President
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AGENT:
SUNTRUST BANK, NASHVILLE, N.A.,
AGENT
By: XXXXX XXXX XXXXX
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Title: General Vice President
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LENDERS
SUNTRUST BANK, NASHVILLE, N.A.
By: XXXXX XXXX XXXXX
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Title: General Vice President
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NATIONSBANK OF TENNESSEE, N.A.
By: XXXX X. XXXXXXX
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Title: Assistant Vice President
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