1
EXHIBIT 10.4
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
herein ("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 15th day of April, 1997.
RECITALS:
1. Borrower and STB entered into an Amended and Restated Loan
Agreement dated as of June 25, 1996 (the "Loan Agreement").
2. The Borrower has agreed that the indebtedness previously held
by STB is to be held by the Lenders pursuant to the terms of this Second
Amended and Restated Loan Agreement.
3. The Borrower further desires that the Lenders increase the
credit available to Borrower.
4. The Borrower, the Agent, and the Lenders desire to amend and
restate the terms of the Loan Agreement, as provided herein.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the parties hereto agree that the Loan Agreement is
amended and restated as follows:
Article I. Definitions.
As used in this Agreement, the following terms shall have the
following meanings, unless the context expressly otherwise requires:
The terms defined in this article have the meanings attributed to them
in this article. Singular terms shall include the plural as well as the
singular, and vice versa. Words of masculine, feminine or neuter gender shall
mean and include the correlative words of other genders.
All references herein to a separate instrument are to such separate
instrument as the same may be amended or supplemented from time to time
pursuant to the applicable provisions thereof.
All accounting terms not otherwise defined herein have the meanings
assigned to them, and all computations herein provided for shall be made, in
accordance with generally accepted accounting principles applied on a
consistent basis. All references herein to "generally accepted accounting
principles" refer to such principles as they exist at the date of application
thereof.
2
All references herein to designated "Articles", "Sections" and other
subdivisions or to lettered Exhibits are to the designated Articles, Sections
and other subdivisions hereof and the Exhibits annexed hereto unless the
context otherwise clearly indicates. All Article, Section, other subdivision
and Exhibit captions herein are used for reference only and in no way limit or
describe the scope or intent of, or in any way affect, this Agreement.
"Acquisition" means the acquisition by Borrower of a majority
ownership interest in any existing ambulatory surgery center(s) through the
formation of a Partnership or LLC with a physician or group of physicians.
"Agent" shall mean SunTrust Bank, Nashville, N.A., Agent or any
successor appointed pursuant to Article XI herein.
"Advance" or "Advances" means any and all extensions of credit made
pursuant to this Agreement and shall include, without limitation, any and all
advances under the Revolving Credit Notes and amounts evidenced by any Letter
of Credit.
"Agreement" means this Loan Agreement (including all exhibits hereto)
as the same may be modified, amended, or supplemented from time to time.
"Applicable Interest Rate" means either the Base Rate or the
LIBOR-Based Rate as applicable.
"Base Rate" means the rate of interest established from time to time
and announced by STB as its "base rate," such rate being an interest rate used
as an index for establishing interest rates on loans.
"Borrower" means AmSurg Corp., a Tennessee corporation and any
successors thereto, including without limitation, any trustee or receiver in
bankruptcy, in reorganization, or in similar proceedings.
"Borrowing Request" means that certain written request presented by
Borrower to Agent in connection with a request for an Advance, which Borrowing
Request shall be in the form of Exhibit B hereto.
"Business Day" means any day other than a Saturday, Sunday or day on
which commercial banks are authorized to close under the laws of the State of
Tennessee.
"Capitalization" means Borrower's total consolidated Debt plus an
amount equal to Borrower's Consolidated Net Worth.
"Change of Control" means the occurrence of (i) any Person or two or
more Persons acting in concert acquiring beneficial
-2-
3
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended), directly or
indirectly, of securities of Borrower (or other securities convertible into
such securities) representing 40% or more of the combined voting power of all
securities of Borrower entitled to vote in the election of directors; or (ii)
individuals who at the beginning of this Agreement were directors of Borrower
ceasing for any reason to constitute a majority of the Board of Directors of
Borrower unless the Persons replacing such individuals were nominated by the
Board of Directors of Borrower; or (iii) any Person or two or more Persons
acting in concert acquiring by contract or otherwise, or entering into a
contract or arrangement which upon consummation will result in its or their
acquisition of, or control over, securities of Borrower (or other securities
convertible into such securities) representing 40% or more of the combined
voting power of all securities of Borrower entitled to vote in the election of
directors.
"Closing" means the time and place of the execution and/or delivery of
the Loan Documents.
"Closing Date" means the 15th day of April, 1997 or at such other date
as the parties elect.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means any and all collateral securing the Indebtedness,
as described in Article III hereof.
"Conditions Precedent" means those matters or events that must be
completed or must occur or exist prior to Agent's and Lenders' being obligated
to fund any Advance, including, but not limited to, those matters described in
Article V hereof.
"Consolidated Net Income" means, for any period, the net income on a
consolidated basis of Borrower, its Subsidiaries, the Partnerships, the LLC's,
and any other Persons that prepare financial statements on a consolidated basis
under Borrower for such period, determined in accordance with GAAP.
"Consolidated Statements" means Financial Statements of the Borrower
on a consolidated basis.
"Consolidated Net Worth" means (a) the aggregate amount of all assets
of the Borrower (determined on a consolidated basis) as may properly be
classified as such, less (b) the aggregate amount (as determined on a
consolidated basis) of (i) all current liabilities of the Borrower, (ii) all
deferred taxes of the Borrower, (iii) all long term debt of Borrower, and (iv)
Minority Interest.
-3-
4
"Contingent Liabilities" means all contingent liabilities required to
be disclosed on the consolidated Financial Statements of the Borrower, its
Subsidiaries, the Partnerships, the LLC's in accordance with GAAP as in effect
from time to time, including statement #5 of the Financial Accounting Standards
Board and any successor thereto.
"Conversion Date" means the date that interest on the outstanding
principal balance of any Advance is converted from the Base Rate to the
LIBOR-Based Rate.
"Debt" means, with respect to any Person, all obligations of such
Person, contingent or otherwise, which in accordance with GAAP would be
classified on a balance sheet of such Person as liabilities of such Person, but
in any event including (a) liabilities secured by any mortgage, pledge or lien
existing on Property owned by such Person and subject to such mortgage, pledge
or lien, whether or not the liability secured thereby shall have been assumed
by such Person, (b) all indebtedness and other similar monetary obligations of
such Person, (c) all guaranties, obligations in respect of letters of credit,
endorsements (other than endorsements of negotiable instruments for purposes of
collection in the ordinary course of business), obligations to purchase goods
or services for the purpose of supplying funds for the purchase or payment of
Debt of others and other contingent obligations in respect of, or to purchase,
or otherwise acquire, or advance funds for the purchase of, Debt of others, (d)
all obligations of such Person to indemnify another Person to the extent of the
amount of indemnity, if any, which would be payable by such Person at the time
of determination of Debt and (e) all obligations of such Person under capital
leases.
"Default" or "Event of Default" means the occurrence of any of the
events specified in Section 8.01 hereof.
"Default Conditions" or "Default Condition" means the occurrence of
any of the events specified in Section 8.04 hereof.
"Development Costs" means the total amount of all costs and expenses
(excluding soft costs and fees payable to Borrower) incurred by a Partnership
or LLC in the development, construction, or renovation of Projects.
"EBITDA" (Earnings Before Interest, Taxes, Depreciation, and
Amortization) for any period means an amount equal to Consolidated Net Income
(or the net deficit, if expenses and charges exceed revenues and proper income
items) for such period, plus amounts that have been deducted for (i)
depreciation, (ii) amortization, (iii) interest expense, (iv) income taxes, (v)
extraordinary and non-recurring items, and (vi) the cumulative effects of
changes in accounting principles, and minus (vii) amounts that have been added
for (a) extraordinary and non-recurring items and (b) the
-4-
5
cumulative effects of changes in accounting principles, in determining
Consolidated Net Income for such period.
"Environmental Law" means any federal, state or local law, statute,
ordinance or regulation applicable or pertaining to health, industrial hygiene,
waste materials, removal of waste materials, oil, gas, or underground storage
tanks, Hazardous Substances, other environmental conditions on, under, or
affecting Borrower's Property or any interest therein.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, including (unless the context otherwise requires)
any rules or regulations promulgated thereunder.
"Eurodollar Business Day" means a Business Day on which the relevant
London international financial markets are open for transaction of business
contemplated by this Agreement.
"Financial Statements" means (i) the consolidated financial statement
or statements of Borrower described or referenced in Section 4.06 hereof and
delivered with this Agreement to Agent, and (ii) subsequent financial
statements required to be provided pursuant to this Agreement.
"Fiscal Quarter" means each of the quarters of the Fiscal Year ending
on March 31st, June 30th, September 30th, and December 31st.
"Fiscal Year" or "Annually" means any twelve-month accounting period
ending December 31st.
"Funded Debt" means all Debt resulting from loans made to Borrower by
banks, savings and loan associations, and financial institutions, all purchase
money mortgages, all conditional sales contracts, all title retention
agreements, all Seller Financing, and all current maturities of Debt not
otherwise specified herein.
"GAAP" means generally accepted accounting principles.
"Guarantors" means all Subsidiaries of Borrower, both presently
existing and those hereafter formed.
"Guarantees" means guaranty agreements executed by the Guarantors in
favor of Agent on behalf of Lenders.
"IPO Transaction" means (i) the recapitalization of all of the issued
and outstanding shares of common stock of the Borrower in a transaction
intended to qualify as a tax-free reorganization under Section 368(1)(i)(E) of
the Code and the distribution of all shares of common stock of the Borrower
held by American Healthcorp, Inc. pro rata among the shareholders of American
Healthcorp, Inc. in a tax-free distribution under Section 355 of the Code, or
(ii) a
-5-
6
public offering of common stock of the Borrower yielding net cash proceeds to
the Borrower and/or its shareholders of at least $20,000,000.
"Indebtedness" means any and all amounts and liabilities owing or to
be owing by Borrower to Agent pursuant hereto or to either of the Lenders from
time to time whether now existing or hereafter incurred, and whether in
connection with this Agreement or otherwise, including any amendments hereof,
or in connection with loans, participation interests, drafts, notes, banker's
acceptances, letters of credit, guarantees, or overdrafts of checking or
savings accounts of Borrower maintained with either of Lenders.
"Interest Expense" means any and all payments, cash or in-kind, made
or accrued on account of interest obligations incurred, arising under or out of
any Debt of the Borrower (on a consolidated basis), including but not limited
to promissory notes issued to evidence such interest payments and including the
component of amounts payable under capital leases attributable to interest, and
excluding any non-cash items other than notes issued to evidence such interest
payments and the component of amounts payable under capital leases attributable
to interest.
"LLC" means any limited liability company validly formed under the law
of any State for the purpose of making an Acquisition or a Physician Practice
Acquisition, or for the purpose of developing a Project and in which the
Borrower retains a majority ownership interest.
"LLC Note" means a promissory note issued by an LLC to the order of
Borrower and evidencing a loan by Borrower to such LLC of monies initially
advanced to Borrower under the Revolving Credit Notes, which loan is made for
the purpose of developing a Project in which the Borrower retains a majority
ownership interest.
"LLC Note Collateral" means any property, collateral, or assets
securing repayment of an LLC Note.
"Lenders" means STB and the other banks and lending institutions
listed on the signature pages set forth herein, and any permitted transferee
thereof.
"Letter of Credit" means any letter of credit issued by Agent on
Borrower's account pursuant to and in compliance with Section 2.11 herein.
"Letter of Credit Fee" shall mean an amount equal to 1% multiplied by
the face amount of the Letter of Credit.
-6-
7
"LIBOR-Based Rate" means for any Libor Based Rate Period, one hundred
and seventy-five (175) basis points per annum above the LIBOR Rate for the
applicable Libor-Based Rate Period.
"LIBOR-Based Rate Period" means with respect to any Advance on which
the Borrower has elected, pursuant to Section 2.06, that the LIBOR-Based Rate
apply, the 30, 60, or 90 day period selected by Borrower commencing on the date
the Advance is made or on any subsequent Conversion Date.
"LIBOR Rate" means either the 30-day, 60-day, or 90-day LIBOR Rate, as
applicable, as set forth in STB's Fund Management, Cost of Funds Report
published for STB by Telerate, Inc. each Monday through Friday that STB is open
for business.
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute, or contract, and including, but
not limited to, the lien or security interest arising from a mortgage,
encumbrance, pledge, security agreement, conditional sale, or trust receipt or
a lease, consignment, or bailment for security purposes. The term "Lien" shall
include reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases, and other title exceptions and
encumbrances affecting the Property. For the purposes of this Agreement,
Borrower shall be deemed to be the owner of any Property that it has acquired
or holds subject to a conditional sale agreement, financing lease, or other
arrangement pursuant to which title to the Property has been retained by or
vested in some other Person for security purposes.
"Loan" or "Loans" means any borrowing by Borrower under this
Agreement, the Revolving Credit Notes, the Term 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.
"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 Term 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.
"Majority Lenders" means Lenders in the aggregate having a Pro Rata
Share equal to 66 2/3% or greater, provided that in no event shall Majority
Lenders be less than two (2) Lenders.
"Minority Interest" means that amount depicted from time to time on
Borrower's most current consolidated balance sheet as
-7-
8
"Minority Interest" so long as such is calculated on a consistent basis and in
accordance with GAAP.
"NBT" means NationsBank of Tennessee, N.A., its successors and
assigns.
"Notice of Interest Rate Election" means the notice required by
Section 2.06(c) and Section 2.06(d) herein and which notice shall be in either
the form of Exhibit B hereto or in such other form as approved by Agent.
"Obligations" means all of Borrower's undertakings in the Loan
Documents including, but not limited to, all agreements, representations,
warranties, and covenants. The term "Obligations" includes the Indebtedness.
"Partnership" means any general or limited partnership validly formed
under the law of any state for the purpose of making an Acquisition or a
Physician Practice Acquisition, or for the purpose of developing a Project and
in which the Borrower retains a majority ownership interest.
"Partnership Agreement" means the general partnership agreement or the
limited partnership agreement of any Partnership.
"Partnership Note" means a promissory note issued by a Partnership to
the order of Borrower and evidencing a loan by Borrower to such Partnership of
monies initially advanced by the Lenders to Borrower under the Revolving Credit
Notes, which loan is made in connection with the development of a Project in
which the Borrower retains a majority ownership interest.
"Partnership Note Collateral" means any property, collateral, or
assets securing repayment of a Partnership Note.
"Physician Practice Acquisition" means the acquisition of the assets
of a physician's practice or the practice of more than one physician by a
Partnership or LLC in circumstances where the physicians whose assets are
acquired are partners or are members in an LLC or immediately thereafter will
become partners in the Partnership or a member in the LLC.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization,
government, or any agency or political subdivision thereof, or any other form
of entity.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by the
-8-
9
Borrower or any Subsidiary and covered by Title IV of ERISA or to which Section
412 of the Code applies.
"Principal Office" means the principal office of the Agent located at
000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx.
"Pro Rata Share" means the percentage of interest held by each of the
Lenders as set forth opposite their respective signatures hereto, as such
percentage may be adjusted from time to time as a result of assignments or
amendments made pursuant to this Agreement.
"Projects" mean construction, expansion and/or renovation of
ambulatory surgery centers owned by a Partnership or LLC.
"Property" or "Properties" means any interest in any kind of property
or asset, whether real, personal, or mixed, or tangible or intangible.
"Revolving Credit Note" and "Revolving Credit Notes" 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 $15,000,000, including all amendments, renewals, and extensions
thereto.
"STB" means SunTrust Bank, Nashville, N.A., its successors and
assigns.
"Seller Financing" means either: (i) the extension of credit to
Borrower that enables the Borrower to acquire a majority interest in a
Partnership or LLC, (ii) the extension of credit to Borrower by any seller of a
majority interest in an existing ambulatory surgery center, which sale is made
to Borrower, a Partnership, or an LLC, or (iii) the extension of credit to
Borrower by the seller of the assets in a Physician Practice Acquisition.
"Subsidiary" means any corporation of which more than fifty percent
(50%) of the issued and outstanding voting stock is owned or controlled at the
time as of which any determination is being made directly or indirectly, by
Borrower and/or by one or more of Borrower's Subsidiaries.
"Term Note" and "Term Notes" means Term Notes executed by the Borrower
payable to the order of each of the Lenders, each Term Note being substantially
in the form of Exhibit D hereto and in the original principal amount that each
Lender's Pro Rata Share bears to $4,671,261.88, and including all amendments,
renewals, and extensions thereto.
-9-
10
"Voting Stock" means securities of any class of a corporation the
holders of which are ordinarily, in the absence of contingencies, entitled to
elect a majority of the corporate directors (or persons performing similar
functions).
Article II. The Loans.
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
$15,000,000 pursuant to the Revolving Credit Notes.
Section 2.02 Advances Under the Revolving Credit Notes. Advances under
the Revolving Credit Notes shall be made only after the Borrower has complied
with the provisions of this Agreement. Subject to the terms and requirements
of this Agreement, Borrower may repay and re-borrow amounts under the Revolving
Credit Notes up to the maximum principal amount thereof, provided, however, the
amount available to be advanced to Borrower under the Revolving Credit Notes
shall be reduced by the face amount of any outstanding Letters of Credit issued
by Agent on Borrower's behalf pursuant to Section 2.11 herein. Each Lender
shall be responsible to fund its Pro Rata Share of any Advance. The failure of
any Lender to fund its Pro Rata Share of any Advance shall not relieve any
other Lender of its obligations to fund such other Lender's Pro Rata Share of
an Advance, but no Lender shall be responsible for the failure of any other
Lender to make an Advance.
Section 2.03 Borrowing Procedure. The Borrower hereby authorizes the
Lenders (acting through the Agent) to deposit all Advances under the Revolving
Credit Notes into the operating account maintained by the Borrower with STB.
Any authorized officer of Borrower shall have the authority to request
Advances. All requests for Advances shall be evidenced by a Borrowing Request
delivered to Agent (except that telephonic requests by any authorized officer
confirmed immediately thereafter by delivery of a Borrowing Request shall be
acceptable). In the event of a telephonic request, the Agent shall be entitled
to rely, without further investigation, on the fact that the person making the
telephone call has identified himself as one of the authorized officers.
Neither the Agent nor any of the Lenders shall have any liability to Borrower
arising out of compliance with this procedure.
Subject to the remaining terms of this Loan Agreement and with regard
to Advances that bear interest at the Base Rate, the Agent shall endeavor to
cause all requests for Advances received prior to 11:00 A.M. Nashville Time to
be funded on the same date received, and the Agent shall endeavor to cause all
requests for Advances
-10-
11
received subsequent to 11:00 A.M. Nashville Time to be funded on the next
succeeding Business Day. Subject to the remaining terms of this Loan Agreement
and with regard to Advances that bear interest at the LIBOR Based Rate, the
Agent shall endeavor to cause all requests for Advances to be funded within two
(2) Business Days from the date the Agent receives the Borrowing Request.
The giving of notice by Borrower that it is requesting an Advance
shall constitute a warranty that, as of the date the notice is given and as of
the date of the Advance, the officers of the Borrower do not have knowledge of
any Default Conditions or Event of Default as defined herein; and that as of
such date, the representations and warranties contained in Article IV are and
will be true and correct, except as to changes occurring after the date of this
Agreement caused by transactions not prohibited under this Agreement.
Section 2.04 Minimum Advance Amounts. Advances under the Revolving
Credit Notes shall not be made in amounts less than $100,000 without Agent's
prior written consent.
Section 2.05 Required Payments. The Revolving Credit Notes and the Term
Notes shall be payable as set forth therein. Each payment under the Revolving
Credit Notes and the Term 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.
Section 2.06 Applicable Interest Rate.
(a) With regard to the Revolving Credit Notes and at the
time that the Borrower requests an Advance, the Borrower shall deliver
to Agent a Borrowing Request which shall be irrevocable, and which
shall set forth the following: (a) whether the selected interest rate
is the Base Rate or the LIBOR-Based Rate, and (b) if the interest rate
selected is the LIBOR-Based Rate, the maturity selected for the
LIBOR-Based Rate Period. In the event that the Borrower shall fail to
select an Applicable Interest Rate on the Borrowing Request, then it
shall be conclusively presumed that the Borrower has elected the Base
Rate.
(b) With regard to the Term Notes and upon the Closing
Date, the Borrower shall advise the Agent in writing: (a) whether the
Applicable Interest Rate on the Term Notes is the Base Rate or the
LIBOR-Based Rate, and (b) if the interest rate selected is the
LIBOR-Based Rate, the maturity selected for the LIBOR-Based Rate
Period.
(c) At any time that the outstanding principal balance of
the Term Notes or an Advance bears interest at the Base
-11-
12
Rate, the Borrower may elect upon two (2) Business Days prior written
notice and delivery to Agent of a Notice of Interest Rate Election to
convert the Applicable Interest Rate to a LIBOR-Based Rate.
(d) Once the Borrower has selected the LIBOR-Based Rate,
such rate shall remain applicable until the expiration of the then
applicable LIBOR-Based Rate Period. Two (2) Business Days prior to
the expiration of any applicable LIBOR-Based Rate Period, the Borrower
shall deliver to Agent a Notice of Interest Rate Election. Should the
Borrower fail to deliver such Notice of Interest Rate Election in a
timely manner, then it shall be conclusively presumed that the
Borrower has selected the Base Rate as the Applicable Interest Rate.
(e) At any time, no more than ten (10) different
LIBOR-Based Rate Periods may be applicable to the Term Notes and all
Advances.
(f) The Applicable Interest Rate shall be computed on the
basis of a year of 360 days for the actual number of days elapsed.
(g) The following provisions shall apply at any time that
the LIBOR-Based Rate is applicable:
(i) Increased Cost. If, as a result of any
change in applicable law, regulation, treaty or directive, in
the interpretation or application thereof or compliance by
Agent or any of the Lenders with any request or directive
(whether or not having the force of law) from any court or
governmental authority, agency or instrumentality:
(A) the basis of taxation of payments to
any of the Lenders of the principal of or interest on
any loan on which a LIBOR-Based Rate is applicable
(other than taxes imposed on the overall net income
of either of the Lenders) is changed;
(B) any reserve, special deposit or
similar requirements against assets of, deposits with
or for the account of, or credit extended by, Agent
or any of the Lenders are imposed, modified or deemed
applicable; or
(C) any other condition affecting this
Agreement or the LIBOR-Based Rate is imposed on Agent
or any of the Lenders or the London eurodollar
market;
-12-
13
and Agent or any of the Lenders determines that, by
reason thereof, the actual out-of-pocket cost to
Agent or any of the Lenders of offering, making, or
maintaining the LIBOR-Based Rate is increased, or the
amount of any sum receivable by Agent or any of the
Lenders hereunder in respect of any of the
LIBOR-Based Rate is reduced;
then, Borrower shall pay to Agent or such of the
Lenders as designated by Agent upon demand (which
demand shall be accompanied by a statement setting
forth the basis for the calculation thereof but
only to the extent not theretofore provided to
Borrower) such additional amount or amounts as
will compensate Agent or any of the Lenders for
such additional cost or reduction. Determinations
by the Agent for purpose of this section of the
additional amounts required to compensate Agent or
any of the Lenders in respect of the foregoing
shall be conclusive, absent demonstrable error.
(ii) Eurodollar Deposits Unavailable
or Interest Rate Unascertainable. In the event that
the Agent shall have reasonably determined (which
determination shall be conclusive and binding on the
parties hereto, absent demonstrable error) that
deposits of the necessary amount for the relevant
LIBOR-Based Rate Period are not available to Agent or
any of the Lenders in the London Eurodollar market or
that, by reason of circumstances affecting such
market, adequate and reasonable means do not exist
for ascertaining the LIBOR-Based Rate applicable to
such period or term, as the case may be, or that the
application or use of the LIBOR-Based Rate would be
impracticable as a result of a contingency occurring
after the Closing Date that materially and adversely
affects the London interbank market, then Agent shall
promptly give notice of such determination to
Borrower and (i) any notice of new LIBOR- Based Rate
selection previously given by Borrower and not yet
converted shall be deemed a selection of the Base
Rate and (ii) the existing LIBOR-Based Rate shall be
converted to the Base Rate on the last day of the
then current LIBOR-Based Rate Period with respect
thereof.
(iii) Changes in Law Rendering the
LIBOR-Based Rate Unlawful. If at any time due to any
new law, treaty or regulation, or any interpretation
thereof by any governmental or other regulatory
authority charged with the administration thereof, or
for any other reason arising subsequent to the date
hereof, it shall become unlawful for Agent or any of
the Lenders to offer, charge or collect interest
based on the LIBOR-Based Rate, the obligation of
Agent or such of the Lenders to provide the
LIBOR-Based Rate shall, upon the happening of such
event,
-13-
14
forthwith be suspended for the duration of such
illegality. Upon the happening of such event, Agent
or any of the Lenders shall notify Borrower thereof
in writing, and Borrower, at its election, shall, on
the earlier of (i) the last day of the then current
LIBOR-Based Rate Period or (ii) if required by such
law, regulation or interpretation, on such date as
shall be specified in such notice, either convert the
unlawful LIBOR-Based Rate to the Base Rate or repay
such of the Revolving Credit Notes, without penalty,
to Agent or any of the Lenders, as designated by
Agent, in full, together with all interest accrued
thereon.
(iv) Other Changes Rendering Use of
LIBOR-Based Rate a Severe Hardship. In the event that
on any date after the Closing Date Agent or any of
the Lenders shall reasonably determine (which
determination shall be conclusive and binding on the
parties hereto, absent demonstrable error) that the
use and/or application of the LIBOR-Based Rate will
cause the Agent or any of the Lenders severe hardship
as a result of a contingency occurring after the date
of this Agreement; then, and in any such event, the
Agent and the affected Lenders shall give telephonic
notice (immediately confirmed in writing) to the
Borrower of such determination, and the obligation of
the Agent and such of the affected Lenders to offer
or permit the selection of the LIBOR-Based Rate shall
be terminated at the earlier of the end of the then
current LIBOR-Based Rate Period, and upon such date
the Borrower, at its option shall either repay such
Revolving Credit Note, without penalty, together with
all interest accrued thereon, or convert such
Revolving Credit Note to the Base Rate.
(v) Adjustments to Rate to Cover
Additional Cost. It is the intention of the parties
that the LIBOR-Based Rate shall accurately reflect
the cost to the Lenders of maintaining loans at the
LIBOR-Based Rate during the applicable LIBOR-Based
Rate Period. Accordingly:
(i) if by reason of any change
after the date hereof in any applicable law
or governmental rule, regulation or order
(or any interpretation thereof and
including the introduction of any new law
or governmental rule, regulation or order),
including any change in the LIBOR reserve
requirement, the cost to either of the
Lenders of maintaining loans at the
LIBOR-Based Rate or funding the same by
means of a London interbank market time
deposit, as the case may be, shall
increase, the LIBOR-Based Rate then charged
by any of the Lenders shall be adjusted as
necessary to reflect such change in
-14-
15
cost to any of the Lenders, effective as of
the date on which such change in any
applicable law, governmental rule,
regulation or order becomes effective.
(ii) if the Agent shall have
determined that the adoption after the
Closing Date of any law, rule, regulation
or guideline regarding capital adequacy, or
any change in any of the foregoing or in
the interpretation or administration of any
of the foregoing by any governmental
authority or agency, central bank or
comparable agency charged with the
interpretation or administration thereof,
or compliance by any of the Lenders (or any
lending office of any of the Lenders) or
any of the Lenders' holding company with
any request or directive regarding capital
adequacy (whether or not having the force
of law) of any such governmental authority
or agency, central bank or comparable
agency, has or would have the effect of
reducing the rate of return on any of the
Lenders' capital or on the capital of any
of the Lenders' holding company, as a
consequence of the Lenders' obligations
under this Agreement or the Advances made
by any of the Lenders pursuant hereto to a
level below that which any of the Lenders
or either of the Lenders' holding company
could have achieved but for such adoption,
change or compliance (taking into
consideration the Lenders' guidelines with
respect to capital adequacy) by an amount
deemed by any of the Lenders to be
material, then from time to time the
Borrower shall pay to the Agent for
delivery to the Lenders such additional
amount or amounts as will compensate such
of the Lenders or such of the Lenders'
holding company for any such reduction
suffered.
(h) Borrower may prepay the principal amount
evidenced by the Term Notes or by any Advance at any time that the
Applicable Interest Rate is the Base Rate. Except as provided
specifically in Section 2.05(i), (iii) and (iv), Borrower may not
prepay the Term Notes or any Advance so long as the Applicable
Interest Rate is the LIBOR-Based Rate, except at the maturity of any
applicable LIBOR-Based Rate Period.
Section 2.07 The Term Notes. Subject to the conditions and terms of
the Loan Documents and in reliance upon the representations, warranties, and
covenants set forth in the Loan Documents, Lenders agree to extend the Borrower
credit in the principal amount of $4,671,261.88 pursuant to the Term Notes.
The terms of repayment of the Term Notes shall be as set forth therein.
-15-
16
Section 2.08 Participation. The Lenders shall have the right to enter
into one or more participation agreements with affiliates of Lenders, but not
further or otherwise.
Section 2.09 Use of Proceeds. Proceeds of the Revolving Credit Notes
will be used to: (i) permit the issuance of Letters of Credit, (ii) enable the
Borrower to make (x) loans to Partnerships or LLC's for the construction and
renovation of Projects and/or (y) Acquisitions and Physician Practice
Acquisitions, or (iii) for working capital. Proceeds of the Term Notes were
used to refinance existing indebtedness.
Section 2.10 Payments to Principal Office; Debit Authority. Each
payment under the Revolving Credit Notes and Term 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.
Section 2.11 Letters of Credit. (a) Provided no Event of Default or
Default Condition exists and subject to the terms and conditions of the Loan
Documents, the Lenders have agreed that the Agent on behalf of the Lenders will
issue to third party beneficiaries on the Borrower's account standby Letters of
Credit.
(b) In connection with the issuance of each Letter of
Credit, the Borrower shall complete a Letter of Credit Application Agreement
and such other documentation, in form and substance as required by the Agent.
(c) In connection with each Letter of Credit, the Borrower
shall pay to the Agent a Letter of Credit Fee to be apportioned and paid by
Agent to each of the Lenders pursuant to the Pro Rata Share of each Lender.
(d) In connection with each Letter of Credit, the
Borrower shall pay to the Agent administrative and documentation fees in such
amount as established by Agent from time to time, which administrative and
documentation fees shall be retained by Agent and shall not be apportioned
among the Lenders.
(e) The issuance by the Agent of a Letter of Credit shall
reduce the Borrower's ability to receive Advances under the Revolving Credit
Notes by an amount equal to the face amount of the Letter of Credit for so long
as the Letter of Credit remains outstanding.
(f) In the event that the Agent is required to pay to any
Person the proceeds (partially or in full) of a Letter of Credit, the Borrower
agrees to pay to the Agent immediately on demand by the Agent, an amount equal
to the proceeds paid by the
-16-
17
Agent to such Person, plus interest from the date of such payment at an amount
equal to the Base Rate.
(g) Letters of Credit issued by the Agent shall not be
issued for a time period in excess of twelve months.
(h) The Agent shall have no obligation to issue Letters
of Credit on or after April 7, 1998.
(i) The Lenders shall participate in all Letters of
Credit issued by the Agent. Each Lender, upon the issuance of a Letter of
Credit by the Agent, shall be deemed to have purchased without recourse a risk
participation from the Agent in such Letter of Credit and the obligations
arising thereunder, in each case in an amount equal to its Pro Rata Share of
all obligations under such Letter of Credit and shall absolutely,
unconditionally, and irrevocably assume, as primary obligor and not as a
surety, and be obligated to pay to the Agent therefor and discharge when due,
its Pro Rata Share of all obligations arising under such Letter of Credit.
Without limiting the scope and nature of each Lender's participation in any
Letter of Credit, to the extent that the Agent has not been reimbursed as
required hereunder or under any such Letter of Credit, each such Lender shall
pay to the Agent its Pro Rata Share of such unreimbursed drawing in same day
funds on the day of notification by the Agent of an unreimbursed drawing. The
obligation of each Lender to so reimburse the Agent shall be absolute and
unconditional and shall not be affected by the occurrence of a Default
Condition or an Event of Default or any other occurrence or event.
Section 2.12 Right of Offset, Etc. The Borrower hereby agrees that, in
addition to (and without limitation of) any right of set-off, banker's lien or
counterclaim the Agent or the Lenders may otherwise have, the Agent and the
Lenders shall be entitled, at their option, to offset balances held by any of
Agent or Lenders at any of their offices against any principal of or interest
on the Obligations hereunder which is not paid within fifteen (15) days after
such payment is due, and in the event Agent or any of the Lenders does offset
against such balances, it shall promptly notify the Borrower, provided that its
failure to give such notice shall not affect the validity thereof.
Section 2.13 Usury. The parties to this Agreement intend to conform
strictly to applicable usury laws as presently in effect. Accordingly, if the
transactions contemplated hereby would be usurious under applicable law
(including the laws of the United States of America and the State of
Tennessee), then, in that event, notwithstanding anything to the contrary in
any Loan Document or agreement executed in connection with or as security for
the Obligations, Borrower, Agent, and the Lenders agree as follows: (i) the
aggregate of all consideration that constitutes interest under applicable law
which is contracted for, charged, or received under
-17-
18
any of the Loan Documents or agreements, or otherwise in connection with the
Obligations, shall under no circumstance exceed the maximum lawful rate of
interest permitted by applicable law, and any excess shall be credited on the
Obligations by the holder thereof (or, if the Obligations shall have been paid
in full, refunded to Borrower); and (ii) in the event that the maturity of the
Obligations is accelerated by reason of an election of the holder resulting
from any Event of Default under this Agreement or otherwise, or in the event of
any required or permitted prepayment, then such consideration that constitutes
interest may never include more than the maximum amount of interest permitted
by applicable law, and excess interest, if any, for which this Agreement
provides, or otherwise, shall be cancelled automatically as of the date of such
acceleration or prepayment and, if previously paid, shall be credited on the
Obligations (or, if the Obligations shall have been paid in full, refunded to
Borrower).
Article III. Collateral and Guarantees.
Section 3.01 Collateral. The Indebtedness and Obligations shall be
secured by the following:
(a) all Partnership Notes, Partnership Note Collateral,
LLC Notes, and LLC Note Collateral;
(b) all deposit accounts, monies, and items of value of
Borrower now or hereafter placed in the possession of Agent or any of
the Lenders; and
(c) all other Property of Borrower presently and/or
subsequently pledged or delivered to Agent to secure all or a portion
of the Indebtedness.
Section 3.02 Guarantees. The Indebtedness and Obligations shall be
guaranteed by the Guarantors.
Article IV. Representations and Warranties.
To induce Agent and Lenders to enter this Agreement and extend credit
under this Agreement, Borrower covenants, represents, and warrants to Agent and
to Lenders that as of the date hereof and as of the Closing Date:
Section 4.01 Corporate Existence. Borrower and each Subsidiary are
corporations duly organized, and validly existing, and in good standing under
the laws of the states of their respective incorporation, and the Borrower and
each Subsidiary are duly qualified as a foreign corporation in all
jurisdictions in which the Property owned or the business transacted by each of
them makes such qualification necessary, except where failure to do so would
not have a material, adverse effect on the Borrower or any
-18-
19
Subsidiary which acts as a general partner in a Partnership or member
in an LLC.
Each Partnership and LLC that has executed LLC Notes or Partnership
Notes, as applicable, as of the date hereof is duly formed and validly existing
under the laws of the respective State under which it was formed.
Section 4.02 Corporate Power and Authorization. The Borrower is duly
authorized and empowered to execute, deliver, and perform under all Loan
Documents; the Borrower's board of directors has authorized the Borrower to
execute and perform under the Loan Documents; and all other corporate and/or
shareholder action on Borrower's part required for the due execution, delivery,
and performance of the Loan Documents has been duly and effectively taken.
Section 4.03 Binding Obligations. This Agreement is, and the other
Loan Documents when executed and delivered in accordance with this Agreement
will be, legal, valid and binding upon and against the Borrower and its
Properties enforceable in accordance with their respective terms, subject to no
defense, counterclaim, set-off, or objection of any kind known to or suspected
by Borrower. To the best of Borrower's knowledge and belief, neither the Agent
nor any of the Lenders has taken any action or failed to take any action that
subjects Agent or Lenders to any liability to Borrower.
Section 4.04 No Legal Bar or Resultant Lien. The Borrower's execution,
delivery and performance of the Loan Documents do not constitute a default
under, and will not violate any provisions of the charter or bylaws of
Borrower, or any contract or agreement entered into by Borrower and any Person.
To Borrower's knowledge, the Borrower's execution, delivery and performance of
the Loan Documents do not constitute a breach of any law, regulation, order,
injunction, judgment, decree, or writ to which Borrower is subject, or result
in the creation or imposition of any lien upon any Properties of Borrower,
other than those contemplated by the Loan Documents.
Section 4.05 No Consent. The execution, delivery, and performance of
the Loan Documents do not require the consent or approval of any other Person,
except for such consents which have been obtained by Borrower in writing.
Section 4.06 Financial Condition. The Financial Statements for the
period ended December 31, 1996 which have been delivered to Agent, have been
prepared on a consolidated basis in accordance with GAAP, consistently applied,
and the Financial Statements present fairly the consolidated financial
condition of Borrower as of the date or dates and for the period or periods
stated therein. No material adverse change in the consolidated financial
condition
-19-
20
of Borrower has occurred since the date of the most recent Financial
Statements.
The Financial Statements include all liabilities (direct and
contingent) and all assets of each LLC and Partnership, and such Financial
Statements accurately reflect Borrower's ownership interest therein.
Section 4.07 Investments, Advances, and Guaranties. Except for the
transactions described on Exhibit E, neither Borrower, nor any Subsidiary, nor
any Partnership, nor any LLC has made investments in, advances to, or
guaranties of the obligations of any Person (other than to Borrower or any
Subsidiary, a Partnership, a LLC, or to a partnership or other entity that
prepares financial statements under Borrower on a consolidated basis) in excess
of $100,000 in the aggregate, or committed or agreed to undertake any of these
actions or obligations, except as referred to or reflected in the Financial
Statements or as permitted hereunder.
Section 4.08 Liabilities and Litigation. Neither Borrower, nor any
Subsidiary, nor any Partnership, nor any LLC has any material liabilities
(individually or in the aggregate) direct or contingent, except as referred to
or reflected in the Financial Statements. There is no litigation, legal or
administrative proceeding, investigation, or other action of any nature pending
or, to the knowledge of Borrower, threatened against or affecting Borrower, or
any Subsidiary, or any Partnership, or any LLC that involves the possibility of
any judgment or liability not fully covered by insurance or that if adversely
decided could reasonably be expected to materially and adversely affect the
business or the Properties of Borrower, or any Subsidiary, or any Partnership,
or any LLC or the ability of Borrower, or any Subsidiary, or any Partnership,
or any LLC to carry on its business as now conducted.
Section 4.09 Taxes; Governmental Charges. Borrower, each Subsidiary,
each Partnership, and each LLC have filed or caused to be filed all tax returns
and reports required to be filed and have paid all taxes, assessments, fees,
and other governmental charges levied upon each of them or upon any of their
respective Properties or income, which are due and payable, including interest
and penalties unless such are contested in good faith and adequate reserves
have been retained therefor. Borrower, each Subsidiary, each Partnership, and
each LLC have made all required withholding deposits.
Section 4.10 Title, Etc. Borrower, each Subsidiary, each Partnership,
and each LLC have good title to their respective Properties, free and clear of
all liens except those referenced or reflected in the Financial Statements or
those securing the Obligations. Borrower, each Subsidiary which acts as a
general partner in a Partnership, each Partnership, and each LLC possess all
trademarks, copyrights, trade names, patents, licenses, and
-20-
21
rights therein, adequate in all material respects for the conduct of their
respective business as now conducted and presently proposed to be conducted,
without conflict with the rights or claimed rights of others.
Section 4.11 No Default. Neither Borrower, nor any Subsidiary, nor any
Partnership, nor any LLC is in default in any material respect that affects its
respective business, Properties, operations, or condition, financial or
otherwise, under any indenture, mortgage, deed of trust, credit agreement,
note, agreement, or other instrument to which Borrower, or any Subsidiary, or
any Partnership, or any LLC is a party or by which it or its respective
Properties are bound. Neither the Borrower, nor any Subsidiary, nor any
Partnership, nor any LLC is in violation in any material respect of its
applicable articles of incorporation or charter or bylaws or Partnership
Agreements or LLC operating agreements. Neither the Borrower, nor any
Subsidiary, nor any Partnership, nor any LLC has received notice from any
Person that it has violated or breached any applicable articles of
incorporation, charter, bylaws, Partnership Agreements, articles of
organization, or operating agreements. No Default Conditions hereunder have
occurred or are continuing as of the date hereof or at the Closing Date.
Section 4.12 Casualties; Taking of Properties, Etc. Neither the
business nor the Properties of Borrower, nor of any Subsidiary which acts as a
general partner in a Partnership, nor of any Partnership, nor of any LLC have
been materially affected as a result of any fire, explosion, earthquake, flood,
drought, windstorm, accident, strike or other labor disturbance, embargo,
requisition or taking of property, cancellation of contracts, permits,
concessions by any domestic or foreign government or any agency thereof, riot,
activities of armed forces or acts of God or of any public enemy.
Section 4.13 Regulation U. Neither Borrower, nor any Subsidiary which
acts as a general partner in a Partnership, nor any Partnership, nor any LLC
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying margin stock
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System. No part of the Indebtedness shall be used at any time to
purchase or to carry margin stock within the meaning of Regulation U or to
extend credit to others for the purpose of purchasing or carrying any margin
stock if to do so would cause the Lender to violate the provisions of
Regulation U.
Section 4.14 Compliance with Laws, Etc. Neither Borrower, nor any
Subsidiary which acts as a general partner in a Partnership, nor any
Partnership, nor any LLC is in violation of any law, judgment, decree, order,
ordinance, or governmental rule or regulation to which Borrower, or any such
Subsidiary, or any
-21-
22
Partnership, or any LLC or any of their respective Properties is subject which,
if enforced, would have a material adverse effect on the Borrower, or such
Subsidiaries, or any Partnership, or any LLC. Neither Borrower, nor any
Subsidiary, which acts as a general partner in a Partnership, nor any
Partnership, nor any LLC has failed to obtain any license, permit, franchise,
or other governmental authorization necessary to the ownership of any of their
Properties or to the conduct of their respective business. All improvements on
the real estate owned by, leased to or used by Borrower, or any Subsidiary
which acts as a general partner in any Partnership, or any Partnership, or any
LLC conform in all material respects to all applicable state and local laws,
zoning and building ordinances and health and safety ordinances, and such real
estate is zoned for the various purposes for which such real estate and
improvements thereon are presently being used.
Section 4.15 ERISA. Borrower, each Subsidiary, each Partnership, and
each LLC are in compliance in all material respects with the applicable
provisions of ERISA. Neither Borrower, nor any Subsidiary, nor any Partnership,
nor any LLC has incurred any "accumulated funding deficiency" within the
meaning of ERISA which is material, and Borrower has not incurred any material
liability to PBGC in connection with any Plan.
Section 4.16 Subsidiaries, Etc. The names, addresses of registered
offices, and states of incorporation of Borrower's Subsidiaries are attached
hereto as Exhibit F. Borrower owns a majority interest of all of the Voting
Stock of each Subsidiary and its ownership interest is noted on Exhibit F. The
Borrower uses no trade names.
The names, addresses of registered offices, and states of formation of
the Partnerships and LLC's are attached hereto as Exhibit G.
Section 4.17 No Material Misstatements. No information, exhibit, or
report furnished or to be furnished by Borrower to Agent or to Lenders in
connection with this Agreement, contain as of the date thereof, or will contain
as of the Closing Date, any material misstatement of fact or failed or will
fail to state any material fact, the omission of which would render the
statements therein materially false or misleading.
Section 4.18 Investment Company Act. Neither Borrower, nor any
Subsidiary, nor any Partnership, nor any LLC is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
Section 4.19 Use of Proceeds; Purpose of the Credit. Borrower has used
and will use proceeds from the Term Notes and the
-22-
23
Revolving Credit Notes exclusively for the purposes stated in this Agreement.
Section 4.20 Personal Holding Company; Subchapter S. Neither Borrower,
nor any Subsidiary, nor any Partnership, nor any LLC is a "personal holding
company" as defined in Section 542 of the Code, and neither Borrower, nor any
Subsidiary, nor any Partnership, nor any LLC is a "Subchapter S" corporation
within the meaning of the Code.
Section 4.21 Solvency. Borrower, each Subsidiary that is a general
partner in any Partnership, each Partnership, and each LLC are solvent as of
the date hereof and shall remain solvent at all times hereafter. Borrower, and
each Subsidiary that is a general partner in any Partnership, and each
Partnership, and each LLC are generally paying their respective debts as they
mature and the fair value of Borrower's, and such Subsidiary's, and such
Partnership's, and such LLC's assets substantially exceeds the sum total of
their respective liabilities.
Section 4.22 Capital. Borrower now has capital sufficient to carry on
its business and transactions and all businesses and transactions in which it
is engaged.
Article V. Conditions of Lending.
Section 5.01 Initial Conditions. Lenders' obligation to extend credit
hereunder is subject to the Conditions Precedent that Agent shall have received
(or agreed in writing to waive or defer receipt of) all of the following, each
duly executed, dated and delivered as of the Closing Date, in form and
substance satisfactory to Agent and its counsel:
(a) Revolving Credit Notes, the Term Notes, and Loan
Documents. The Revolving Credit Notes, the Term Notes, and all other
Loan Documents.
(b) Collateral. Delivery of any collateral required by
Article III herein.
(c) Resolutions of Borrower. Certified copies of
resolutions of the Board of Directors of Borrower authorizing or
ratifying the execution, delivery, and performance, respectively, of
this Agreement and all Loan Documents.
(d) Borrower's Certificate of Existence. A certificate
of existence of Borrower from the State of Tennessee, which
certificate shall contain no facts objectionable to Agent.
(e) Consents, Etc. Certified copies of all documents
evidencing any necessary corporate action, consents, and
-23-
24
governmental approvals (if any) with respect to this Agreement and the
Loan Documents.
(f) Officer's Certificate. A certificate of the secretary
or any assistant secretary of Borrower certifying the names of the
officer or officers of Borrower authorized to sign this Agreement and
the Loan Documents, together with a sample of the true signature of
such officer(s).
(g) Borrower's Charter and By-Laws. A copy of Borrower's
by-laws and charter (including all amendments thereto) certified, in
the case of by-laws, by the secretary or any assistant secretary of
Borrower, and in the case of the charter by the Secretary of State of
Tennessee, as being true and complete copies of the current charter
and by-laws of Borrower.
(h) Guaranties. Delivery of all Guaranties required by
Section 3.02 herein.
(i) Guarantor's Certificate of Existence. A certificate
of existence for each Guarantor from the State of its incorporation.
(j) Resolutions of Guarantors. Certified copies of
resolutions of the Board of Directors of each Guarantor authorizing or
ratifying the execution, delivery, and performance of the Guaranties.
(k) Guarantor's Charters and Bylaws. A copy of the
Charter and Bylaws (including all amendments thereto) for each
Guarantor, certified as complete and accurate by the secretary of such
Guarantor.
(l) Opinions of Counsel for Borrower. The opinions of
counsel addressed to Agent, substantially in the form of Exhibit H.
(m) Other. Such other documents as Agent may reasonably
request.
Section 5.02 Conditions Prior to Funding. Lenders' obligation to fund
any Advance is subject to the additional Conditions Precedent that Agent shall
have received (or agreed in writing to waive or defer receipt of) all of the
following, each duly executed:
Borrowing Request. A Borrowing Request in the form of Exhibit
B hereto, along with borrowing base certificate signed by the chief
financial officer of Borrower affirming that the total amount
outstanding under all Advances, including the requested Advance, do
not and will not exceed the sum of (i)
-24-
25
85% of Development Costs, plus (ii) 65% of the total cost of
Acquisitions and Physician Practice Acquisitions.
Section 5.03 All Borrowings. The Lenders' obligations to extend credit
under the Loan Documents are subject to the following additional Conditions
Precedent which shall be met each time an Advance is requested and an Advance
is made:
(a) The representations of the Borrower contained in
Article IV are true and correct in all material respects as of the
date of the requested Advance, with the same effect as though made on
the date additional funds are advanced, except as to changes occurring
after the date of this Agreement caused by transactions not prohibited
under this Agreement; (b) There has been no material adverse change in
the Borrower's financial condition or other condition since the date
of the last borrowing hereunder; (c) No Default Conditions and no
Event of Default have occurred and continue to exist; (d) No material
litigation (including, without limitation, derivative actions),
arbitration proceedings or governmental proceedings not disclosed in
writing by the Borrower to the Agent and the Lenders prior to the date
of the execution and delivery of this Agreement is pending or known to
be threatened against the Borrower, or any Subsidiary, or any
Partnership, or any LLC, and (e) no material development not so
disclosed has occurred in any litigation, arbitration proceedings or
governmental proceedings so disclosed, which could reasonably be
expected to adversely affect the financial position or business of the
Borrower, or any Subsidiary, or any Partnership, or any LLC, or impair
the ability of the Borrower, or any Subsidiary, or any Partnership, or
any LLC, to perform their respective obligations under this Agreement
or any other Loan Documents.
Article VI. Affirmative Covenants.
Borrower covenants that, during the term of this Agreement (including
any extensions hereof) and until all Indebtedness shall have been finally paid
in full and all Obligations shall have been fully discharged, unless Agent
shall otherwise first consent in writing, Borrower shall:
Section 6.01 Financial Statements and Reports. Promptly furnish to
Agent (with sufficient copies for each of the Lenders):
(a) Annual Reports. As soon as available, and in any
event within ninety (90) days after the close of each Fiscal Year, the
audited consolidated Financial Statements of the Borrower setting
forth the audited consolidated balance sheets of Borrower as at the
end of such year, and the audited consolidated statements of income,
statements of cash flows, and consolidated statements of retained
earnings of Borrower for such year, setting forth in each case in
comparative form
-25-
26
(beginning when comparative data are available) the corresponding
figures for the preceding Fiscal Year accompanied by the report of
Borrower's certified public accountants, and by an unaudited
consolidating balance sheet and unaudited consolidating statements of
income of Borrower, its Subsidiaries, LLC's, Partnerships, and
partnerships and LLC's that are not borrowing funds from Borrower duly
certified by Borrower's chief financial officer as being correct
reflections of the information used for the audited consolidated
Financial Statements. The audit opinion in respect of the Financial
Statements of Borrower shall be the opinion of a firm of independent
certified public accountants reasonably acceptable to Agent;
(b) Quarterly and Year-to-Date Reports. As soon as
available and in any event within forty-five (45) days after the end
of each of the first three (3) Fiscal Quarters, the unaudited
consolidated balance sheets of Borrower as of the end of such Fiscal
Quarter, and the unaudited consolidated and consolidating statements
of income of Borrower, its Subsidiaries, the LLC's, the Partnerships,
and partnerships and LLC's that are not borrowing funds from Borrower
for such Quarter and for a period from the beginning of the Fiscal
Year to the close of such Fiscal Quarter, all certified by the chief
financial officer or chief accounting officer of Borrower as being
true and correct to the best of his or her knowledge; and
(c) Other Information. Promptly upon its becoming
available, such other material information about Borrower or the
Indebtedness as Agent may reasonably request from time to time.
All such balance sheets and other Financial Statements referred to in Sections
6.01(a) and (b) hereof shall conform to GAAP on a basis consistent with those
of previous Financial Statements.
Section 6.02 Taxes and Other Liens. Cause to be paid and discharged
promptly all taxes, assessments, and governmental charges or levies imposed
upon it, upon any Subsidiary, upon any LLC, or upon any Partnership or upon any
of its or any Subsidiary's, any LLC's, or any Partnership's income or Property
as well as all claims of any kind (including claims for labor, materials,
supplies, and rent) which, if unpaid, might become a Lien upon any or all of
its or any Subsidiary's, any LLC's, or any Partnership's Property; provided,
however, that neither Borrower, nor any Subsidiary, nor any LLC, nor any
Partnership shall be required to pay any such tax, assessment, charge, levy, or
claim if the amount, applicability, or validity thereof shall currently be
contested in good faith by appropriate proceedings diligently conducted and if
Borrower shall establish reserves therefor adequate under GAAP.
-26-
27
Section 6.03 Maintenance.
(a) Maintain and cause to be maintained its corporate
existence, name, rights, and franchises and the corporate existence,
name, rights and franchises of each Subsidiary that acts as a general
partner in a Partnership, and the existence, name, and rights of each
Partnership and each LLC;
(b) observe and comply (to the extent necessary so that
any failure will not materially and adversely affect the business or
Property of Borrower, or of any Subsidiary that is a general partner
of any Partnership, or of any Partnership, or of any LLC) with all
applicable laws, statutes, codes, acts, ordinances, orders, judgments,
decrees, injunctions, rules, regulations, certificates, franchises,
permits, licenses, authorizations, and requirements of all federal,
state, county, municipal, and other governments;
(c) cause its Property and the Property of any Subsidiary
that acts as a general partner in any Partnership, any Partnership,
and of any LLC (and any Property leased by or consigned to it, any
Subsidiary that acts as a general partner in any Partnership, any
Partnership, or any LLC or held under title retention or conditional
sales contracts) to be maintained in good and workable condition at
all times and make all repairs, replacements, additions, and
improvements to the Property owned by Borrower, and any Subsidiary
that acts as a general partner in any Partnership, and any
Partnership, and any LLC reasonably necessary and proper to ensure
that the business carried on in connection with such Property may be
conducted properly and efficiently at all times; and
(d) cause the Borrower, each LLC, and each Subsidiary
that acts as a general partner in a Partnership, and each Partnership
to refrain from doing business in any state in which such business
would require qualifications to do business in such state unless and
until it shall have qualified to do business in such state.
Section 6.04 Further Assurances. Promptly cure any defects in the
creation, issuance, and delivery of the Loan Documents. Borrower at its expense
promptly will execute and deliver to Agent upon request all such other and
further documents, agreements, and instruments in compliance with or
accomplishment of the covenants and agreements of Borrower in the Loan
Documents, or to correct any omissions in the Loan Documents, or to state more
fully the Obligations and agreements set out in any of the Loan Documents, to
file any notices, or to obtain any consents, all as may be reasonably necessary
or appropriate in connection therewith.
-27-
28
Section 6.05 Performance of Obligations.
(a) Pay the Indebtedness according to the terms of the
Loan Documents; and
(b) do and perform, and cause to be done and to be
performed, every act and discharge all of the Obligations provided to
be performed and discharged by Borrower under the Loan Documents, at
the time or times and in the manner specified.
Section 6.06 Insurance. Maintain and continue to maintain, with
financially sound and reputable insurors, insurance satisfactory in type,
coverage and amount to Agent against such liabilities, casualties, risks, and
contingencies and in such types and amounts as is customary in the case of
Persons engaged in the same or similar businesses and similarly situated as
that of Borrower, its Subsidiaries, LLC's, and the Partnerships. Upon request
of Agent, Borrower will furnish or cause to be furnished to Agent from time to
time a summary of the insurance coverage of Borrower in form and substance
satisfactory to Agent and if requested will furnish Agent copies of the
applicable policies. In the case of any fire, accident, or other casualty
causing material loss or damage to any Property of Borrower, any Subsidiary,
any LLC, or any Partnership, and the loss(es) materially impair(s) the
operation of the business of Borrower, any Subsidiary, any LLC, or any
Partnership the proceeds of such policies shall be used, at Borrower's
discretion (a) to repair or replace the damaged Property, or (b) to prepay the
Indebtedness.
Section 6.07 Accounts and Records. At Borrower's expense, cause books
of record and account for it and its Subsidiaries, the LLC's, and the
Partnerships to be kept, in which full, true, and correct entries will be made
of all dealings or transactions in accordance with GAAP as applicable, except
only for changes in accounting principles or practices with which Borrower's
certified public accountants concur and which changes have been reported to
Agent in writing and with an explanation thereof.
Section 6.08 Right of Inspection. At Borrower's expense, permit any
officer, employee, or agent of Agent or either of the Lenders to visit and
inspect any of the Property of Borrower or any Subsidiary, to examine
Borrower's and any Subsidiary's books of record and accounts, to take copies
and extracts from such books of record and accounts, and to discuss the
affairs, finances, and accounts of Borrower and any Subsidiary with Borrower's
respective officers, accountants, and auditors, all at such reasonable times
and as often as Agent or either of the Lenders may reasonably desire. Cause at
reasonable times any officer, employee, or agent of Agent or either of the
Lenders to be permitted to visit and inspect at Borrower's cost any Properties
owned by any Partnership or LLC and to inspect and copy any financial records
and books of records and account of such Partnership or LLC.
-28-
29
Section 6.09 Notice of Certain Events. Promptly notify Agent if
Borrower learns of the occurrence of (i) any event that constitutes a Default
Condition or Event of Default together with a detailed statement by a
responsible officer of Borrower of the steps being taken as a result thereof;
or (ii) the receipt of any notice from, or the taking of any other action by,
the holder of any promissory note, debenture, or other evidence of Debt of
Borrower or of any security (as defined under the Securities Act of 1933, as
amended) of Borrower with respect to a claimed default, together with a
detailed statement by a responsible officer of Borrower specifying the notice
given or other action taken by such holder and the nature of the claimed
default and what action Borrower is taking or proposes to take with respect
thereto; or (iii) any legal, judicial, or regulatory proceedings affecting
Borrower in which the amount involved is material and is not covered by
insurance or which, if adversely determined, would have a material and adverse
effect on the business or the financial condition of Borrower; or (iv) any
dispute between Borrower and any governmental or regulatory authority or any
other person, entity, or agency which, if adversely determined, could
reasonably be expected to materially interfere with the normal business
operations of Borrower; or (v) any material adverse changes, either
individually or in the aggregate, in the assets, liabilities, financial
condition, business, operations, affairs, or circumstances of Borrower from
those reflected in the Financial Statements or from the facts warranted or
represented in any Loan Document; or (vi) the occurrence of a default under a
Partnership Note or an LLC Note.
Section 6.10 ERISA Information and Compliance. Comply with ERISA and
all other applicable laws governing any pension or profit sharing plan or
arrangement to which Borrower is a party. Borrower shall provide Agent with
notice of any "reportable event" or "prohibited transaction" or the imposition
of a "withdrawal liability" within the meaning of ERISA.
Section 6.11 Management. Give notice to Agent of any material change in
the executive officers of Borrower within five (5) days after such change
occurs.
Section 6.12 Reports, Etc. If applicable, furnish to Agent copies of
all filings and reports, of any nature or type, made with or to the Securities
and Exchange Commission (or any successor thereto) within 5 days thereafter,
and including all amendments, modifications, or supplements thereto, as the
same are filed with the Securities and Exchange Commission.
Section 6.13 Calculations. In all calculations made for purposes
required by this Loan Agreement, the Borrower, each Subsidiary, each LLC, each
Partnership, and each partnership and LLC not borrowing funds from the Borrower
shall comply with GAAP, and the Borrower, each Subsidiary, each LLC, each
Partnership, and each partnership and LLC not borrowing funds from the Borrower
-29-
30
shall use the same procedures and methods employed by Borrower, each
Subsidiary, each LLC, each Partnership, and each partnership and LLC not
borrowing funds from the Borrower in preparing the Financial Statements
delivered to STB prior to the date of this Agreement. All references contained
herein to calculations of or determinations affecting Borrower (on a
consolidated basis) shall refer to the Borrower, each Subsidiary, each LLC,
each Partnership, and each Person that prepares financial statements under
Borrower.
Section 6.14 Partnership Notes and LLC Notes, Etc. The Borrower shall
assign to Agent and grant Agent for the benefit of Lenders a first perfected
security interest in all Partnership Notes, Partnership Note Collateral, LLC
Notes, and LLC Note Collateral to secure repayment of the Indebtedness and the
Obligations pursuant to such documentation as reasonably required by Agent.
Section 6.15 Additional Guarantees. Within thirty (30) days after the
Borrower acquires or forms a Subsidiary, the Borrower shall cause such new
Subsidiary to execute a Guarantee in the form of the Guarantees executed by the
Guarantors, and to deliver to Agent such Guarantees and other documents,
instruments and items with respect thereto that are similar to those documents,
instruments and items delivered by the Guarantors with regard to their
Guarantees. Additionally, in such case Agent shall be entitled to receive, at
Borrower's option, either: (a) copy of duly certified corporate resolutions of
each guaranty authorizing the execution of the Guaranty, together with a
certificate of good standing containing no matters objectionable to Lender, or
(b) a counsel's opinion letter issued by counsel acceptable to Agent regarding
such matters involving the new Guarantor as may be reasonably required by
Agent. Immediately upon any Person becoming a Subsidiary, Borrower shall give
notice thereof to Agent. Borrower shall pay the costs and expenses, including
without limitation Agent's legal fees and expenses, in connection with the
preparation, negotiation, execution and review of the Guaranty of such
Subsidiary and the other items described in this Section.
Article VII. Negative Covenants.
Borrower covenants and agrees that, during the term of this Agreement
and any extensions hereof and until the Indebtedness has been paid and
satisfied in full, unless Agent shall otherwise first consent in writing,
neither Borrower, nor any Subsidiary, nor any LLC, nor any Partnership, nor any
other partnership or LLC in which Borrower or a Subsidiary owns an interest
will, either directly or indirectly:
Section 7.01 Debts, Guaranties, and Other Obligations. Incur, create,
assume, or in any manner become or be liable with respect to any Debt; provided
that subject to all other provisions of this Article VII, the foregoing
prohibitions shall not apply to:
-30-
31
(a) Any Indebtedness to the Lenders as described herein;
(b) liabilities, direct or contingent, of Borrower or any
Subsidiary, or any Partnership, or any LLC existing on the date of
this Agreement that are referenced or reflected in the Financial
Statements; and
(c) Excluding the Indebtedness to the Lenders described
herein, Funded Debt not to exceed $5,500,000 in the aggregate.
Section 7.02 Liens. Create, incur, assume, or permit to exist any Lien
on any of its Property (now owned or hereafter acquired) except, subject to all
other provisions of this Article, the foregoing restrictions shall not apply
to:
(a) Liens securing the payment of any Indebtedness to
Lenders;
(b) Liens for taxes, assessments, or other governmental
charges not yet due or which are being contested in good faith by
appropriate action promptly initiated and diligently conducted, if
Borrower or such Subsidiary shall have made any reserve therefor
required by GAAP;
(c) Liens referred to or reflected in the Financial
Statements identified in Section 4.06 herein; and
(d) Liens on any real or personal property that secures
the Debt permitted by Section 7.01(c) above; and
(e) Liens permitted by Section 7.01(e); and
(f) Landlord liens in states where such liens arise by
operation of law.
Section 7.03 Investments, Loans, and Advances. Make or permit to
remain outstanding any loans or advances to or investments in any Person,
except that, subject to all other provisions of this Article, the foregoing
restriction shall not apply to:
(a) investments in direct obligations of the United
States of America or any agency thereof;
(b) investments in certificates of deposit having
maturities of less than one year, or repurchase agreements issued by
commercial banks in the United States of America having capital and
surplus in excess of $50,000,000, or commercial paper of the highest
quality;
(c) investments in money market funds so long as the
entire investment therein is fully insured or so long as the fund is a
fund operated by a commercial bank of the type specified in (b) above;
-31-
32
(d) those matters referenced on Exhibit F and loans to
Partnerships or LLC's; and
(e) other investments not to exceed $500,000.
Section 7.04 Dividends, Distributions, and Redemptions; Issuance of
Stock. (a) Excluding dividends paid to holders of Series A Redeemable Preferred
Stock as described in a Conditional Consent Agreement between Borrower and STB,
permit Borrower to declare or pay any dividend; nor permit any Subsidiary to
declare or pay any dividend to any Person other than Borrower or another
Subsidiary; or (b) permit Borrower or any Subsidiary to redeem any of its stock
or return capital to shareholders except through existing shareholder
agreements and future shareholder agreements with (i) Persons who are members
in an LLC or who are partners in a Partnership formed subsequent to the Closing
Date that acquire Voting Stock of Borrower, (ii) physicians or physician groups
that are affiliated with the partners in a Partnership or are affiliated with
the members in an LLC formed subsequent to the Closing Date; and (iii)
physicians and physician groups that enter into a business relationship with
the Borrower or a Subsidiary after the Closing Date regarding the development,
operation, or investment in an ambulatory surgery center.
Section 7.05 Nature of Business. (a) Suffer any material change to be
made in the character of its business as carried on at the Closing Date; or (b)
except as set forth on Exhibit F hereto, permit the Borrower to own less than
51% of the Voting Stock of any incorporated Subsidiary; or (c) except as set
forth on Exhibit G hereto, permit the Borrower or a Subsidiary of Borrower to
own less than 51% of the controlling ownership interest of any Partnership or
LLC.
Section 7.06 Further Acquisitions, Mergers, Etc. (a) Permit Borrower to
merge or consolidate with any other Person, except under conditions in which
the Borrower is the surviving entity and such merger or consolidation does not
cause the Borrower to be in violation of this Agreement; or (b) permit any
Subsidiary to merge or consolidate with any Person other than the Borrower or
any other Subsidiary; or (c) permit the Borrower, any Subsidiary, LLC, or
Partnership to dispose of substantially all of their respective Properties.
Section 7.07 Proceeds of Loan. Permit the proceeds of the Advances to
be used for any purpose other than those permitted under this Agreement.
Section 7.08 Sale or Discount of Receivables. Except to minimize
losses on bona fide debts previously contracted, discount or sell with
recourse, or sell for less than the greater of the face or market value
thereof, any of its notes receivable or Accounts.
-32-
33
Section 7.09 Disposition of Assets. Dispose of any of its assets
having a material value other than in the ordinary course of its present
business upon terms standard in Borrower's industry; provided, however, that
Borrower, AmSurg West Tennessee, Inc., and AmSurg Holdings, Inc. may sell,
transfer, and convey their interests in the Digestive Clinic Ambulatory Surgery
Center in Jackson, Tennessee without the consent of Agent or of Lenders.
Section 7.10 Partnership Notes or LLC Notes. Forgive, cancel, amend,
alter, or seek to transfer any Partnership Notes or LLC Notes.
Section 7.11 Financial Covenants.
(a) Net Worth. Permit its Consolidated Net Worth as of
December 31, 1996 to be less than $31,396,401; nor permit its
Consolidated Net Worth as measured at the end of each Fiscal Quarter
thereafter to be less than the sum of: (i) $31,396,401, plus (ii) the
amount by which Borrower's additional paid in capital exceeds
$31,396,401, plus (iii) 75% of the net, after-tax earnings of the
Borrower as determined on a consolidated basis from the immediately
preceding Fiscal Year.
(b) Funded Debt to EBITDA. As calculated on the last day
of each Fiscal Quarter, permit the ratio of Funded Debt, plus amounts
attributable to capital leases to EBITDA to be greater than 2.75 to
1.0.
(c) Funded Debt to Capitalization. As calculated on the
last day of each Fiscal Quarter, permit the ratio of Borrower's Funded
Debt (as determined on a consolidated basis but excluding Minority
Interest), to Capitalization to be greater than .5 to 1.0.
(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 1.8 to 1.0.
(e) For the purpose of calculating EBITDA in parts (b)
and (d) above, EBITDA shall be calculated on an annualized, trailing
six (6) month basis and it shall include the EBITDA of any Acquisition
so long as the calculation thereof is done in a manner reasonably
calculated to comply with GAAP. For the purpose of calculating
Interest Expense in part (d) above, Interest Expense shall be
calculated on a trailing twelve (12) month basis. For the purpose of
calculating EBITDA in parts (a), (b) and (d) above, the amount
attributable to EBITDA shall exclude a pre-tax amount up to $500,000
in spinoff costs.
-33-
34
Section 7.12 Inconsistent Agreements. Enter into any agreement
containing any provision which would be violated or breached by the performance
by Borrower of its Obligations.
Section 7.13 Restrictions on Physician Practice Acquisitions. (a)
Enter into Physician Practice Acquisitions the aggregate cost of which exceeds
$4,000,000 in any twelve (12) month period without the Agent's prior written
consent; or (b) enter into any single Physician Practice Acquisition the cost
of which exceeds $2,000,000 without the Agent's prior written approval.
Article VIII. Events of Default.
Section 8.01 Events of Default. Any of the following events shall be
considered an Event of Default as those terms are used in this Agreement:
(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 any of the Term 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
(b) Representations and Warranties. Any representation or
warranty made by Borrower in any Loan Document, proves to have been
incorrect in any material respect as of the date thereof; or any
representation, statement (including Financial Statements),
certificate, or data furnished or made by Borrower in any Loan
Document with respect to any Indebtedness, proves to have been untrue
in any material respect, as of the date as of which the facts therein
set forth were stated or certified, provided that with regard to
Borrower's representation in Section 4.04 herein, the Agent shall not
be entitled to declare a default hereunder unless the Borrower's
representation in Section 4.04 proves to be untrue with regard to any
contract requiring the payment of money or goods valued at $250,000 or
more or the performance of services valued at $250,000 or more; or
(c) Obligations. Borrower fails to perform its
Obligations as required by and contained in any Loan Document or a
breach occurs of any agreement, representation, or warranty contained
herein or in any Loan Document and such continues for thirty (30) days
after delivery by Agent of written notice to Borrower that it has
failed to perform its Obligations or that a breach has occurred of any
agreement, representation, or warranty contained herein or in any Loan
Document, and following delivery of such written notice from Agent to
Borrower the failure or breach has not been fully cured and/or
corrected; provided and except that the 30 day notice and cure period
shall not be applicable to Events of
-34-
35
Default or breaches arising out of or under the following sections of
this Loan Agreement (and in such cases no notice and cure period
beyond any specifically stated therein shall be applicable):
Section 8.01(a), 8.01(b), 8.01(d), 8.01(e), 8.01(f), 8.01(h),
8.01(i), 8.01(k), 8.01(l), 6.01, 6.08, 6.09, 6.11, 6.12, 7.01,
7.02, 7.03, 7.05, 7.06, 7.07, 7.08, 7.09, 7.10, 7.11, and
7.12.
(d) Involuntary Bankruptcy or Receivership Proceedings. A
receiver, custodian, liquidator, or trustee of Borrower, any
Subsidiary, any Partnership, or of any LLC, or of any of their
respective Property, is appointed by the order or decree of any court
or agency or supervisory authority having jurisdiction; or Borrower,
any Subsidiary, any Partnership, or any LLC is adjudicated bankrupt or
insolvent; or any of the Property of Borrower, any Subsidiary, any
Partnership, or LLC is sequestered by court order or a petition is
filed against Borrower, any subsidiary, Partnership, and/or any LLC
under any state or federal bankruptcy, reorganization, debt
arrangement, insolvency, readjustment of debt, dissolution,
liquidation, or receivership law of any jurisdiction, whether now or
hereafter in effect, which proceeding is not dismissed within 60 days
of filing; or
(e) Voluntary Petitions. Borrower, any Subsidiary, any
Partnership, or any LLC takes affirmative steps to prepare to file, or
Borrower, any Subsidiary, any Partnership, or any LLC files a petition
in voluntary bankruptcy or to seek relief under any provision of any
bankruptcy, reorganization, debt arrangement, insolvency, readjustment
of debt, dissolution, or liquidation law of any jurisdiction, whether
now or hereafter in effect, or consents to the filing of any petition
against it under any such law; or
(f) Assignments for Benefit of Creditors, Etc. Borrower,
any Subsidiary, any Partnership, or any LLC makes an assignment for
the benefit of its creditors, or admits in writing its inability to
pay its debts generally as they become due, or consents to the
appointment of a receiver, trustee, or liquidator of Borrower, any
Subsidiary, any Partnership, or any LLC, or of all or any part of its
Properties; or
(g) Discontinuance of Business, Etc. Borrower, any
Subsidiary that acts as a general partner in any Partnership, any
Partnership, or any LLC discontinues its usual business and such has a
material adverse impact on Borrower's financial condition; or
(h) Cross-Default on Other Debt or Security. Subject to
any applicable grace period or waiver prior to any due date,
-35-
36
Borrower, any Subsidiary, any Partnership, any partnerships
consolidated with Borrower on its consolidated Financial Statements,
and/or any LLC fails to make any payment due on any Debt or security
(as "security" is defined for purposes of the federal securities laws)
in excess of an aggregate amount equal to $500,000 or any event shall
occur or any condition shall exist with respect to any Debt or
security of Borrower, any Subsidiary, any Partnership, and/or any LLC
or under any agreement securing or relating to such indebtedness or
security the effect of which is to cause or to permit any holder or
holders of Debt in excess of an aggregate amount equal to $500,000 to
cause such Debt or security, or a portion thereof, to become due prior
to its stated maturity or prior to its regularly scheduled dates of
payment; or
(i) Undischarged Judgments. If a judgment for the payment
of money in excess of $500,000 in the aggregate is rendered by any
court or other governmental authority against Borrower, any
Subsidiary, any Partnership, and/or any LLC which is not fully covered
by valid collectible insurance (subject, however to a reasonable
deductible); or
(j) Violation of Laws, Etc. Borrower, any Subsidiary,
any Partnership, or any LLC violates or otherwise fails to comply with
any law, rule, regulation, decree, order, or judgment under the laws
of the United States of America, or of any state or jurisdiction
thereof which violation or failure has a material, adverse effect on
Borrower, any Subsidiary, any Partnership, or any LLC; or Borrower
fails or refuses at any and all times to remain current in its or
their financial reporting requirements pursuant to such laws, rules,
and regulations or pursuant to the rules and regulations of any
exchange upon which any shares of Borrower are traded.
(k) Dissolution of Partnerships, Subsidiaries, or LLC's.
Should any Partnership, Subsidiary, or LLC be dissolved prior to
repayment of all amounts owed by such Partnership, Subsidiary, or LLC
to Borrower.
(l) Change of Ownership Prior to IPO Transaction. Should
the majority of common stock of Borrower cease to be owned by American
Healthcorp, Inc. unless otherwise approved in writing by Agent;
provided that this provision shall not be violated in the event that
the stock of the Borrower is sold pursuant to an IPO Transaction.
(m) Change of Control Subsequent to an IPO Transaction.
Subsequent to the completion of an IPO Transaction, should a Change of
Control occur.
Section 8.02 Remedies. Upon the happening of any Event of Default set
forth above, with the exception of those events set forth in Section 8.01(d)
and 8.01(e): (i) Agent may declare the
-36-
37
entire principal amount of all Indebtedness then outstanding, including
interest accrued thereon, to be immediately due and payable without
presentment, demand, protest, notice of protest, or dishonor or other notice of
default of any kind, all of which Borrower hereby expressly waives, (ii) at
Agent's sole discretion and option, all obligations of Lenders under this
Agreement shall immediately cease and terminate unless and until Agent shall
reinstate such obligations in writing, (iii) Agent on behalf of Lenders may
exercise all rights against the Guarantors under the Guaranties and against the
Collateral set forth in the Security Documents or afforded a creditor under
applicable law; or (iv) Agent on behalf of Lenders may bring an action to
protect or enforce its rights under the Loan Documents or seek to collect the
Indebtedness and/or enforce the Obligations by any lawful means.
Upon the happening of any event specified in Section 8.01(d) and
Section 8.01(e) above: (i) all Indebtedness, including all principal, accrued
interest, and other charges or monies due in connection therewith shall be
immediately and automatically due and payable in full, without presentment,
demand, protest, or dishonor or other notice of any kind, all of which Borrower
hereby expressly waives, (ii) all obligations of Lenders under this Agreement
shall immediately cease and terminate unless and until Agent shall reinstate
such obligations in writing, (iii) Agent on behalf of Lenders may exercise all
rights against the Guarantors under the Guaranties and against the Collateral
set forth in the Security Documents or afforded a creditor under applicable
law; or (iv) Agent on behalf of Lenders may bring an action to protect or
enforce its rights under the Loan Documents or seek to collect the Indebtedness
and/or enforce the Obligations by any lawful means.
Section 8.03 Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, each of the Lenders and Agent are
authorized, at any time and from time to time, without notice to Borrower (any
such notice being expressly waived by Borrower), to set-off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held by the Agent or any of the Lenders to or for the credit or the
account of Borrower against any and all of the Obligations, irrespective of
whether or not Agent shall have accelerated the Indebtedness or made any demand
under this Agreement and although such obligations may be unmatured.
Section 8.04 Default Conditions. Any of the following events shall be
considered a Default Condition:
(a) Borrower suffers a material adverse change in its
financial condition; and
(b) Any event occurs which with the passage of time or
giving of notice would become an Event of Default hereunder or an
Event of Default under any Guaranty.
-37-
38
Upon the occurrence of a Default Condition or at any time thereafter
until such Default Condition no longer exists, the Borrower agrees that the
Agent and the Lenders, in Agent's sole discretion, and without notice to
Borrower, may immediately cease making any Advances under the Loan Documents,
all without liability whatsoever to Borrower or any other Person whomsoever,
all of which is expressly waived hereby. Borrower releases Agent and each of
the Lenders from any and all liability whatsoever, whether direct, indirect, or
consequential, and whether seen or unforeseen, resulting from or arising out of
or in connection with Agent's and/or Lenders' determination to cease making
Advances pursuant to this Section, unless Agent and/or Lenders act with gross
negligence or willful misconduct.
Article IX. General Provisions.
Section 9.01 Notices. All communications under or in connection with
this Agreement or any of the other Loan Documents shall be in writing and shall
be mailed by first class certified mail, postage prepaid, or otherwise sent by
telex, telegram, telecopy, or other similar form of rapid transmission
confirmed by mailing (in the manner stated above) a written confirmation at
substantially the same time as such rapid transmission, or personally delivered
to an officer of the receiving party. All such communications shall be mailed,
sent, or delivered as follows:
(a) if to Borrower, to its address shown below, or to
such other address as Borrower may have furnished to Agent in writing:
Xxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
(b) if to Agent, to its address shown below, or to such
other address or to such individual's or department's attention as it
may have furnished Borrower in writing:
Xxxxx Xxxxx
SunTrust Bank, Nashville, N.A., Agent
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
(C) if to STB, to its address shown below, or to such
other addresses STB may have furnished to Borrower:
Xxxxx Xxxxx
SunTrust Bank, Nashville, N.A.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
-38-
39
(d) if to NBT, to the address shown below, or to such
other address as NBT may have furnished to Borrower:
Xxxx Xxxxx
Xxx XxxxxxxXxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Any communication so addressed and mailed by certified mail shall be deemed to
be given when so mailed.
Section 9.02 Deviation from Covenants. The procedure to be followed by
Borrower to obtain the consent of Agent to any deviation from the covenants
contained in this Agreement or any other Loan Document shall be as follows:
(a) Borrower shall send a written notice to Agent setting
forth (i) the covenant(s) relevant to the matter, (ii) the requested
deviation from the covenant(s) involved, and (iii) the reason for the
requested deviation from the covenant(s); and
(b) Agent, within a reasonable time, will send a written
notice to Borrower, signed by an authorized officer of Agent,
permitting or refusing the request, but in no event will any deviation
from the covenants of this Agreement or any other Loan Document be
effective without the express prior written consent of Agent. Agent's
failure to provide such written notice shall be deemed a refusal of
such request.
Section 9.03 Invalidity. In the event that any one or more of the
provisions contained in any Loan Document for any reason shall be held invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of any Loan Document.
Section 9.04 Survival of Agreements. All representations and
warranties of Borrower in this Agreement and all covenants and agreements in
this Agreement not fully performed before the Closing Date of this Agreement
shall survive the Closing.
Section 9.05 Successors and Assigns. Borrower may not assign its
rights or delegate its duties under this Agreement or any other Loan Document.
All covenants and agreements contained by or on behalf of Borrower in any Loan
Document shall bind the Borrower's successors and assigns and shall inure to
the benefit of Agent and Lenders and their respective successors and assigns.
In the event that any of the Lenders sells participations in Indebtedness to
participating lenders, each of such participating lenders shall have the rights
of set-off against such Indebtedness and similar rights or Liens to the same
extent available to Lenders, except as otherwise provided in this Agreement.
-39-
40
Section 9.06 Renewal, Extension, or Rearrangement. All provisions of
this Agreement relating to Indebtedness shall apply with equal force and effect
to each and all promissory notes executed hereafter which in whole or in part
represent a renewal, extension for any period, increase, or rearrangement of
any part of the Indebtedness originally represented by any part of such other
Indebtedness.
Section 9.07 Waivers. Pursuant to T.C.A. Section 00-00-000, no action
or course of dealing on the part of Agent or Lenders or their officers,
employees, consultants, or agents, nor any failure or delay by Agent or any of
the Lenders with respect to exercising any right, power, or privilege Agent or
any of the Lenders under the Note, this Agreement, or any other Loan Document
shall operate as a waiver thereof, except as otherwise provided in this
Agreement. Agent or Lenders may from time to time waive any requirement hereof,
including any of the Conditions Precedent; however no waiver shall be effective
unless in writing and signed by the Agent or the Lenders, as applicable. The
execution by Agent or the Lenders of any waiver shall not obligate Lender to
grant any further, similar, or other waivers.
Section 9.08 Cumulative Rights. Rights and remedies of Agent and
Lenders under each Loan Document shall be cumulative, and the exercise or
partial exercise of any such right or remedy shall not preclude the exercise of
any other right or remedy.
Section 9.09 Construction. This Agreement and the other Loan Documents
constitute a contract made under and shall be construed in accordance with and
governed by the laws of the State of Tennessee.
Section 9.10 Nature of Commitment. With respect to the Loan and the
Advances, Lenders' obligation to make the Loan or any Advances shall be deemed
to be pursuant to a contract to make a loan or to extend debt financing or
financial accommodations to or for the benefit of Borrower within the meaning
of Sections 365(c)(2) and 365(e)(2)(B) of the United States Bankruptcy Code, 11
U.S.C. Section 101 et seq.
Section 9.11 Disclosures. Every reference in this Agreement to
disclosures of Borrower to Agent and to Lenders (except the Financial
Statements), to the extent that such references refer or are intended to refer
to disclosures at or prior to the execution of this Agreement, shall be deemed
strictly to refer only to written disclosures delivered to Agent and to Lenders
concurrently with the execution of this Agreement and referred to specifically
in the Loan Documents. The parties intend that such disclosures are to be
limited to those presented in an orderly manner at the time of executing this
Agreement and are not to be deemed to include expressly or impliedly any
disclosures that previously may have been delivered from time to time to Agent
and Lenders, except to the extent that such previous disclosures are again
presented to
-40-
41
Agent or Lenders in writing concurrently with the execution of this Agreement.
Section 9.12 Governance; Exhibits. The terms of this Agreement shall
govern if determined to be in conflict with the terms or provisions in any
other Loan Document. The exhibits attached to this Agreement are incorporated
in this Agreement and shall be considered a part of this Agreement except that
in the event of any conflict between an exhibit and this Agreement or another
Loan Document, the provisions of this Agreement or the Loan Document, as the
case may be, shall prevail over the exhibit.
Section 9.13 Titles of Articles, Sections, and Subsections. All titles
or headings to articles, sections, subsections, or other divisions of this
Agreement or the exhibits to this Agreement are only for the convenience of the
parties and shall not be construed to have any effect or meaning with respect
to the other content of such articles, sections, subsections, or other
divisions, such other content being controlling with respect to the agreement
between the parties.
Section 9.14 Time of Essence. Time is of the essence with regard to
each and every provision of this Agreement.
Section 9.15 Remedies. All remedies for which this Agreement and all
other Loan Documents provide for Agent shall be in addition to all other
remedies available to Agent and Lenders under the principles of law and equity,
and pursuant to any other body of law, statutory or otherwise.
Section 9.16 Application of Prepayments. Prepayments shall be applied
at Agent's sole discretion (i) first to accrued interest under any of the
Obligations as determined by Agent and (ii) second to reduce principal of any
of the Obligations, all in such manner as determined by Agent.
Section 9.17 Computations; Accounting Principles. Where the character
or amount of any asset or liability or item of income or expense is required to
be determined, or any consolidation or other accounting computation is required
to be made for the purposes of this Agreement, such determination or
calculation, to the extent applicable and except as otherwise specified in this
Agreement, shall be made in accordance with GAAP applied on a consolidated
basis consistent with those in effect at the Closing Date.
Section 9.18 Costs, Expenses, and Taxes. Borrower agrees to pay on
demand all out-of-pocket costs and expenses of Agent (including the reasonable
fees and out-of-pocket expenses of counsel for Agent) incurred by Agent in
connection with the preparation, execution, delivery, administration,
interpretation, enforcement, or protection of Agent or either of Lenders'
rights under the Loan Documents (including any suit for declaratory judgment or
interpretation of the provisions hereof). In addition,
-41-
42
Borrower agrees to pay, and to hold Agent and both of the Lenders harmless from
all liability for, any stamp or other taxes (including taxes under Tennessee
Code Annotated Section 67-4-409 due upon the recordation of mortgages and
financing statements) which may be payable in connection with the execution or
delivery of this Agreement, the Advances, and the Collateral under this
Agreement, or the issuance of the Loan Documents delivered or to be delivered
under or in connection with this Agreement. Borrower, upon request, promptly
will reimburse Agent and both of the Lenders for all amounts expended,
advanced, or incurred by Agent and both of the Lenders to satisfy any
obligation of Borrower under this Agreement or any other Loan Documents, or to
perfect a Lien in favor of Agent and both of the Lenders, or to protect the
Properties or business of Borrower or to collect the Obligations, or to enforce
the rights of Agent and both of the Lenders under this Agreement or any other
Loan Document, which amounts will include all court costs, attorney's fees,
fees of auditors and accountants, and investigation expenses reasonably
incurred by Agent and both of the Lenders in connection with any such matters,
together with interest thereon at the rate applicable to past due principal and
interest as set forth in the Loan Documents but in no event in excess of the
maximum lawful rate of interest permitted by applicable law on each such
amount. All obligations for which this Section provides shall survive any
termination of this Agreement.
Section 9.19 Distribution of Information. The Borrower hereby
authorizes the Agent and the Lenders, as the Agent and the Lenders may elect in
their sole discretion, to discuss with and furnish to any affiliate of the
Agent and the Lenders, to any government or self-regulatory agency with
jurisdiction over the Agent and the Lenders, or to any participant or
prospective participant, all financial statements, audit reports and other
information pertaining to the Borrower and/or its Subsidiaries whether such
information was provided by Borrower or prepared or obtained by the Agent and
the Lenders or third parties. Neither the Agent nor the Lenders nor any of
their employees, officers, directors or agents make any representation or
warranty regarding any audit reports or other analyses of Borrower which the
Agent or the Lenders may elect to distribute, whether such information was
provided by Borrower or prepared or obtained by the Agent, the Lenders, or
third parties, nor shall the Agent, the Lenders, or any of their employees,
officers, directors or agents be liable to any Person receiving a copy of such
reports or analyses for any inaccuracy or omission contained in such reports or
analyses or relating thereto.
Section 9.20 Entire Agreement; No Oral Representations Limiting
Enforcement. This Agreement represents the entire agreement between the parties
hereto except for such other agreements set forth in the Loan Documents, and
any and all oral statements heretofore made regarding the matters set forth
herein are merged herein.
-42-
43
Section 9.21 Amendments. Excluding Section 11.1 through 11.14, the
Borrower's written agreement shall be necessary to amend this Agreement.
Sections 11.1 through 11.14 of this Agreement may be amended by the Lenders
without the necessity of Borrower's agreement thereto pursuant to the
provisions contained therein.
Section 9.22 Non-Use Fee. As additional consideration for the Lenders'
committing and reserving monies to fund the Revolving Credit Note, the Borrower
shall pay to Agent for the account of Lenders quarterly in arrears a fee at a
rate equal to 35 basis points per annum of the average unused portion of the
Revolving Credit Note during the prior Fiscal Quarter. The fee shall be
calculated on a 360-day basis.
Section 9.23 Commitment Fee. In consideration of Lenders' willingness
to extend the Loans and to reserve the funds necessary to fund the Revolving
Credit Note, the Borrower shall pay to Agent a one-time commitment fee equal to
$37,500.00.
Article X. Jury Waiver.
Section 10.01 Jury Waiver. IF ANY ACTION OR PROCEEDING INVOLVING THIS
LOAN AGREEMENT OR ANY LOAN DOCUMENT IS COMMENCED IN ANY COURT OF COMPETENT
JURISDICTION, BORROWER, AGENT, AND LENDERS HEREBY WAIVE THEIR RIGHTS TO DEMAND
A JURY TRIAL.
Article XI. The Agent.
Section 11.01 Appointment of Agent. Each of the Lenders hereby
designates the Agent to administer all matters concerning the Indebtedness and
the Obligations and to act as herein specified. Each of the Lenders hereby
irrevocably authorizes the Agent to take such actions on its behalf under the
provisions of this Agreement, the other Loan Documents and all other
instruments and agreements referred to herein or therein, and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Agent may perform any of
its duties hereunder by or through its agents or employees. The Lenders agree
that neither the Agent nor any of its directors, officers, employees or agents
shall be liable for any action taken or omitted to be taken by it or them
hereunder or in connection herewith, except for its or their own gross
negligence or willful misconduct. The Lenders agree that the Agent shall not
have any duties or responsibilities, except those expressly set forth herein,
or any fiduciary relationship with any of the Lenders, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or otherwise be imposed upon or exist against
the Agent.
Section 11.02 Authorization of Agent with Respect to the Loan
Documents. (a) Each of the Lenders hereby authorizes the Agent to
-43-
44
enter into each of the Loan Documents and to take all action contemplated
thereby, all in its capacity as Agent for the ratable benefit of the Lenders.
All rights and remedies under the Loan Documents may be exercised by the Agent
for the benefit of the Agent and the Lenders upon the terms thereof.
(b) The Agent shall administer the Loans described herein and the
Loan Documents on behalf of and for the benefit of the Lenders in all respects
as if the Agent were the sole Lender under the Loan Documents, except that:
(i) The Agent shall administer the Loans and the Loan
Documents with a degree of care at least equal to that customarily
employed by the Agent in the administration of similar credit
facilities for its own account.
(ii) The Agent shall not, without the consent of the
Majority Lenders, take any of the following actions:
(A) agree to a waiver of any material
requirements, covenants, or obligations of the Borrower or of
any of the Guarantors contained herein;
(B) agree to any amendment to or modification
of any of the terms of any of the Loan Documents;
(C) waive any Event of Default or Default
Condition as set forth in the Loan Agreement;
(D) accelerate the indebtedness described in
the Loan Agreement following an Event of Default; or
(E) initiate litigation or pursue other
remedies to enforce the obligations contained in any Loan
Document or to collect the indebtedness described herein.
(iii) The Agent shall not, without the consent of all of the
Lenders, take any of the following actions:
(A) extend the maturity of any payment of
principal of or interest on the indebtedness described herein;
(B) reduce any fees paid to or for the benefit
of Lenders under the Loan Agreement;
(C) reduce the rate of interest charged on the
indebtedness described herein;
(D) release any Guaranty;
-44-
45
(E) postpone any date fixed for the payment in
respect of principal of, or interest on the indebtedness
described herein, or any fees hereunder;
(F) modify the definition of Majority Lenders;
or
(G) modify this Section 11.02(b)(iii).
(c) The Agent, upon its receipt of actual notice thereof,
shall notify the Lenders of: (i) each proposed action that would
require the consent of the Lenders as set forth herein, or (ii) any
action proposed to be taken by the Agent in the administration of the
Loans and Loan Documents not in the ordinary course of business;
provided that any failure of the Agent to give the Lenders any such
notice shall not alone be the basis for any liability of the Agent to
the Lenders except for the Agent's gross negligence or willful
misconduct.
(d) The Lenders agree that the Agent shall incur no
liability under or in respect of this Agreement with respect to
anything which it may do or refrain from doing in the reasonable
exercise of its judgment or which may seem to it to be necessary or
desirable in the circumstances, except for its gross negligence or
willful misconduct. Agent shall incur no liability to any of the
Lenders for giving consent on behalf of the Lenders when under the
terms of this Agreement consent may not be unreasonably withheld.
(e) The Agent shall not be liable to the Lenders or to
any Lender in acting or refraining from acting under this Agreement or
any other Loan Document in accordance with the instructions of the
Majority Lenders or all of the Lenders, where expressly required by
this Agreement, and any action taken or failure to act pursuant to
such instructions shall be binding on all Lenders. In each
circumstance where any consent of or direction from the Majority
Lenders or all of the Lenders is required or requested by Agent, the
Agent shall send to the Lenders a notice setting forth a description
in reasonable detail of the matter as to which consent or direction is
requested and the Agent's proposed course of action with respect
thereto. In the event the Agent shall not have received a response
from any Lender within five (5) Business Days after Agent sends such
notice, such Lender shall be deemed to have agreed to the course of
action proposed by the Agent.
Section 11.03 Agent's Duties Limited; No Fiduciary Duty. The Lenders
agree that the Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Loan Documents. The Lenders
agree that none of the Agent nor any of its respective officers, directors,
employees or agents shall be liable for any action taken or omitted by it as
such hereunder or in connection herewith, unless caused by its or
-45-
46
their gross negligence or willful misconduct. The Agent shall not have by
reason of this Agreement a fiduciary relationship to or in respect of any of
the Lenders, and nothing in this Agreement, express or implied, is intended to
or shall be so construed as to impose upon the Agent any obligations in respect
of this Agreement or the other Loan Documents except as expressly set forth
herein.
SECTION 11.04 NO RELIANCE ON THE AGENT. (A) EACH OF THE LENDERS
REPRESENTS AND WARRANTS TO THE AGENT AND THE OTHER LENDERS THAT INDEPENDENTLY
AND WITHOUT RELIANCE UPON THE AGENT, EACH OF THE LENDERS, TO THE EXTENT IT
DEEMS APPROPRIATE, HAS MADE AND SHALL CONTINUE TO MAKE (I) ITS OWN INDEPENDENT
INVESTIGATION OF THE FINANCIAL CONDITION AND AFFAIRS OF THE BORROWER AND THE
GUARANTORS IN CONNECTION WITH THE TAKING OR NOT TAKING OF ANY ACTION IN
CONNECTION HEREWITH, AND (II) ITS OWN APPRAISAL OF THE CREDIT WORTHINESS OF THE
BORROWER AND THE GUARANTORS, AND EACH OF THE LENDERS FURTHER AGREES THAT,
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE AGENT SHALL HAVE NO DUTY OR
RESPONSIBILITY, EITHER INITIALLY OR ON A CONTINUING BASIS, TO PROVIDE ANY OF
THE LENDERS WITH ANY CREDIT OR OTHER INFORMATION WITH RESPECT THERETO, WHETHER
COMING INTO ITS POSSESSION BEFORE THE MAKING OF THE LOANS OR AT ANY TIME OR
TIMES THEREAFTER. AS LONG AS ANY OF THE LOANS ARE OUTSTANDING AND/OR ANY AMOUNT
IS AVAILABLE TO BE REQUESTED OR BORROWED HEREUNDER, OR THIS AGREEMENT AND THE
LOAN DOCUMENTS HAVE NOT BEEN CANCELLED AND TERMINATED, EACH OF THE LENDERS
SHALL CONTINUE TO MAKE ITS OWN INDEPENDENT EVALUATION OF THE FINANCIAL
CONDITION AND AFFAIRS OF THE BORROWERS AND THE GUARANTORS.
(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 Term 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 Term 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.
Section 11.05 Certain Rights of Agent. The Lenders agree that if the
Agent shall request instructions from the Majority Lenders (or all of the
Lenders where unanimity is expressly required under the terms of this
Agreement) with respect to any action or actions (including the failure to act)
in connection with this Agreement, the Agent shall be entitled to refrain from
such act or taking such act, unless and until the Agent shall have received
instructions from the Majority Lenders (or all of the Lenders where unanimity
is
-46-
47
expressly required under the terms of this Agreement); and the Agent shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, none of the Lenders shall have any right of action whatsoever
against the Agent as a result of the Agent acting or refraining from acting
hereunder in accordance with the instructions of the Majority Lenders (or, with
regard to acts for which the consent of all of the Lenders is expressly
required under the terms of this Agreement, in accordance with the instructions
of all of the Lenders).
Section 11.06 Reliance by Agent. The Lenders agree that the Agent shall
be entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other documentary,
teletransmission or telephone message reasonably believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person. The
Lenders agree that the Agent may consult with legal counsel (including counsel
for any of the Lenders), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
Section 11.07 Indemnification of Agent. To the extent the Agent is not
reimbursed and indemnified by the Borrower, each of the Lenders will reimburse
and indemnify the Agent, ratably according to their respective Pro Rata Share,
for, from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including fees of
experts, consultants and counsel and disbursements) or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by or asserted
against the Agent in performing its duties hereunder, in any way relating to or
arising out of this Agreement or the other Loan Documents; provided that none
of the Lenders shall be liable to the Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agent's gross
negligence or willful misconduct. The obligations and indemnifications arising
under this Section 11.07 shall survive termination of this Agreement, repayment
of the Loans and indebtedness arising in connection with the Letters of Credit
and expiration of the Letters of Credit.
Section 11.08 The Agent in its Individual Capacity. With respect to its
obligation to lend under this Agreement and the Loans made by it, the Agent
shall have the same rights and powers hereunder as any other of the Lenders,
and may exercise the same as though it were not performing the duties of Agent
specified herein; and the terms "Lenders" and "Majority Lenders" or any similar
terms shall, unless the context clearly otherwise indicates, include the Agent
in its individual capacity. The Agent and its affiliates may accept deposits
from, lend money to, and generally engage in any
-47-
48
kind of banking, trust, financial advisory or other business with the Borrower
and the Guarantors, and any affiliate of the Borrower as if it were not
performing the duties specified herein as Agent, and may accept fees and other
consideration from the Borrower for services in connection with this Agreement
and otherwise without having to account for the same to the Lenders.
Section 11.09 Successor Agent. (a) The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with cause by the Majority Lenders; provided, however, the
Agent may not resign or be removed until (i) a successor Agent has been
appointed and shall have accepted such appointment and (ii) the successor Agent
has assumed all responsibility for issuance of the Letters of Credit and the
successor Agent has assumed in the place and stead of the Agent all existing
liability under outstanding Letters of Credit. The transactions described in
the immediately preceding sentence shall be accomplished pursuant to written
agreements reasonably satisfactory to the Agent and the successor Agent. Upon
any such resignation or removal, the Majority Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed
by the Majority Lenders, and shall have accepted such appointment, within
thirty (30) days after the retiring Agent's giving of notice of resignation or
the Majority Lenders' removal of the retiring Agent, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent, which shall be a bank
that maintains an office in the United States, or a commercial bank organized
under the laws of the United States of America or any State thereof, or any
Affiliate of such bank, having a combined capital and surplus of at least
$100,000,000.
(b) Upon the acceptance of any appointment as the Agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article XI shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
an Agent under this Agreement.
Section 11.10 Notice of Default or Event of Default. In the event that
the Agent or any of the Lenders shall acquire actual knowledge, or shall have
been notified, of any Default Condition or Event of Default (other than through
a notice by one party hereto to all other parties), the Agent or such Lender
shall promptly notify the Agent, and the Agent shall take such action and
assert such rights under this Agreement as the Majority Lenders shall request
in writing, and the Agent shall not be subject to any liability by reason of
its acting pursuant to any such request. If, following notification by Agent to
Lenders, the Majority Lenders (or all of the Lenders if required hereunder)
shall fail to request the Agent to take action or to assert rights under this
Agreement
-48-
49
in respect of any Default Condition or Event of Default within five (5)
Business Days after their receipt of the notice of any Default Condition or
Event of Default from the Agent or any Lender, or shall request inconsistent
action with respect to such Default Condition or Event of Default, the Agent
may, but shall not be required to, take such action and assert such rights as
it deems in its discretion to be advisable for the protection of the Lenders.
Section 11.11 Sharing of Payments, etc. Each of the Lenders agrees that
if it shall, through the exercise of a right of banker's lien, set-off,
counterclaim or otherwise, obtain payment with respect to the Indebtedness
which results in its receiving more than its Pro Rata Share of the aggregate
payments with respect to all of the Indebtedness, then (a) such Lender shall be
deemed to have simultaneously purchased from the other Lender a share in the
Indebtedness so that the amount of the Indebtedness held by each of the Lenders
shall continue to equal their respective Pro Rata Shares, and (b) such other
adjustments shall be made from time to time as shall be equitable to insure
that the Lenders share such payments ratably.
Section 11.12 Separate Liens on Collateral. Each Lender agrees with the
other Lenders that it will not take or permit to exist any Lien in its favor on
any of the Collateral or other property of any of the Borrowers other than
Liens securing the Indebtedness.
Section 11.13 Payments Between Agent and Lenders. All payments by the
Agent to any Lender, and all payments by any Lender to the Agent, under the
terms of this Agreement shall be made by wire transfer in immediately available
funds to the receiving party's address specified in or pursuant to Section 9.01
hereof. If the Agent or any of the Lenders shall fail to pay when due any sum
payable to the Agent or any other Lender, such sum shall bear interest until
paid at the interest rate per annum for overnight borrowing by the payee from
the Federal Reserve Bank for the period commencing on the date such payment was
due and ending on, but excluding, the date such payment is made.
Section 11.14 Independent Agreements. The provisions contained in
Sections 11.01 through 11.10 and Sections 11.12, 11.13, 11.14, and 11.15
constitute independent obligations and agreements of the Agent and the Lenders,
and the Borrower shall not be deemed a party thereto or bound thereby or
entitled to any benefit thereunder. The Borrower acknowledges the rights of the
Lenders and the Agent under Section 11.11.
Section 11.15 Limitation on Lenders. The Borrower agrees and
acknowledges that neither the Agent nor STB shall have liability to the
Borrower for any damages or claim of any kind whatsoever, whether seen or
unforeseen, arising out of or in connection with the failure of NBT to fund
through the Agent its Pro Rata Share of any Advance, and that Borrower's sole
recourse for such conduct by NBT shall be to NBT.
-49-
50
The Borrower agrees and acknowledges that NBT shall not have liability
to the Borrower for any damages or claims of any kind whatsoever, whether seen
or unforeseen, arising out of or in connection with the failure of STB to fund
through the Agent its Pro Rata Share of any Advance, and that Borrower's sole
recourse for such conduct by STB shall be to STB.
ENTERED INTO this date first set forth above.
BORROWER:
AMSURG CORP., a Tennessee corporation
By: /s/
------------------------------------
Title: Senior Vice President
---------------------------------
AGENT:
SUNTRUST BANK, NASHVILLE, N.A., AGENT
By: /s/
------------------------------------
Title: GVP
---------------------------------
PRO RATA SHARE LENDERS:
71% SUNTRUST BANK, NASHVILLE, N.A..
By: /s/
------------------------------------
Title: GVP
---------------------------------
29% NATIONSBANK OF TENNESSEE, N.A.
By: /s/
------------------------------------
Title: VP
---------------------------------
-50-
51
INDEX OF EXHIBITS
Exhibit A: Notice of Interest Rate Election (Section 2.06(c)
and Section 2.06(d)) (form)
Exhibit B: Borrowing Request
Exhibit C: Revolving Credit Notes
Exhibit D: Term Notes
Exhibit E: Exemptions from Section 4.07 (Largo, FL and
Jackson, TN)
Exhibit F: List of Subsidiaries
Exhibit G: List of Partnerships and LLC's
Exhibit H: Opinion Letter of Borrower's Counsel Due at
Closing
-51-
52
EXHIBIT A TO LOAN AGREEMENT
BORROWING REQUEST
VIA FAX (000) 000-0000
ATTN: LEIGH XXX XXXXXXX
SunTrust Bank, Nashville, N.A., Agent
Date:_____________________________, _______
Re: Second Amended and Restated Loan Agreement dated April 15,
1997 by and among AmSurg Corp., the lenders listed therein and
SunTrust Bank, Nashville, N.A., as Agent (as may be amended
from time to time, the "Loan Agreement")
Capitalized terms not otherwise defined in this request have the same meaning
as in the Loan Agreement. The individual signing this request certifies that
(i) he or she is an individual authorized by the Borrower to submit Borrowing
Requests to the Agent pursuant to the Loan Agreement, (ii) the undersigned
hereby irrevocably gives notice of and requests, pursuant to Section 2.03 of
the Loan Agreement, an Advance under the Loan Agreement (the "Proposed
Advance"), and (iii) the amount of the Proposed Advance is available to the
Borrower pursuant to the Loan Agreement. The information below relates to the
Proposed Advance:
1. AMOUNT OF PROPOSED
ADVANCE:
---------------------------------------------------------------
2. DATE OF PROPOSED
ADVANCE:
---------------------------------------------------------------
3. DESIGNATION OF
ADVANCES:
--------------------------------------------------------------
Base Rate Advance $ (Multiples of $100,000 and minimums of $100,000)
------------------------
LIBOR Based Rate Advance $ (Multiples of $100,000 and minimums of $100,000)
-------------------------
Borrowing Requests must be given prior to 11:00 a.m. (local time for Agent) two
(2) Business Days prior to the Proposed Advance for Libor Based Rate Advances
and on the same day of the Proposed Advances for Base Rate Advances. All
Borrowing Requests received after 11:00 a.m. shall be deemed received on the
next Business Day.
4. For LIBOR Based Rate Advances, the LIBOR Based Rate Period (indicate
one):
(a) 30 DAYS 60 DAYS 90 DAYS
------------- ----------------- -----------------
53
(b) CALCULATION OF RATE:
LIBOR
---------
Plus spread 1.75%
TOTAL =
--------
(c) EXPIRATION DATE:
--------------
5. DEPOSIT PROCEEDS OF BORROWING INTO AMSURG CORP.
ACCOUNT NO. 0000000
-------
AND
WIRE TRANSFER $___________________ FROM OUR ACCOUNT NO. 0000000
ACCORDING TO THE FOLLOWING INSTRUCTIONS:
Name of Bank:
------------------------------------------------
ABA No.
------------------------------------------------------
Credit account No.
-------------------------------------------
Beneficiary Name
---------------------------------------------
Special Instructions
-----------------------------------------
-------------------------------------------------------------
Remitter
-----------------------------------------------------
6. The Borrower represents to Agent as follows: (a) the amount of the Proposed
Advance, when combined with the outstanding principal amount of the Revolving
Credit Notes plus the face amount of all outstanding Letters of Credit does not
exceed $15,000,000; (b) the total amount of all Advances, including the
Proposed Advance, together with the face amount of all outstanding Letters of
Credit, do not and will not exceed the sum of (i) 85% of Development Costs,
plus (ii) 65% of the total cost of Acquisitions and Physician Practice
Acquisitions as depicted on Schedule I attached hereto.
7. The conditions as set forth in Section 5.03 of the Loan Agreement have been
met and the representations contained therein are true and correct.
BORROWER:
AMSURG CORP.
By:
------------------------
Title:
---------------------
54
SCHEDULE I
Purchase % Original Current
Price or LTV Borrowing Amount New Amount
Project Hard $ Cost Allowed Allowed Borrowed Repayment Borrowings Borrowed
------- ----------- ------- ------- -------- --------- ---------- --------
Beginning Debt 4,671,262 100% 4,671,262 4,671,262 - - 4,671,262
Panama City GI 1,760,162 65% 1,144,000 (1,450,000) 1,036,000 730,000
Hallendale GI 500,000 85% 425,000 425,000 (425,000) - -
Ocala GI 3,347,662 65% 2,175,954 (2,175,000) (2,175,000) - -
Columbia 1,897,397 65% 1,233,308 1,233,000 - - 1,233,000
Minneapolis 1,143,377 65% 743,195 743,000 (442,043) - 300,957
Xxxxxx 531,930 85% 452,141 450,000 - - 450,000
Miami Urology Practice 2,852,590 65% 1,854,184 1,854,000 - - 1,854,000
Crystal River GI 2,075,520 65% 1,349,088 1,349,000 - - 1,349,000
Hialeah 494,000 65% 419,900 150,000 - - 150,000
Abilene Eye 1,804,927 65% 1,173,203 1,173,000 1,173,000
Wichita Ortho 1,374,950 65% 893,718 893,700 - - 893,700
---------- ---------- ----------- ----------- --------- ---------
Totals 22,453,737 16,535,057 16,260,962 (4,492,043) 1,036,000 12,804,919
========== ========== =========== =========== ========= ==========
55
EXHIBIT B TO LOAN AGREEMENT
NOTICE OF INTEREST RATE ELECTION
VIA FAX (000) 000-0000
ATTN: LEIGH XXX XXXXXXX
SunTrust Bank, Nashville, N.A., Agent
Date:_____________________________, _______
Re: Second Amended and Restated Loan Agreement dated April 15, 1997 by
and among AmSurg Corp., the lenders listed therein, and SunTrust Bank,
Nashville, N.A., as Agent (as may be amended from time to time, the
"Loan Agreement")
Capitalized terms not otherwise defined in this request have the same meaning
as in the Loan Agreement. The individual signing this request certifies that
(i) he or she is an individual authorized by the Borrower to submit this Notice
of Interest Rate Election to the Agent pursuant to the Loan Agreement, (ii) the
undersigned hereby irrevocably gives notice of and requests, pursuant to
Section 2.06(c) and/or 2.06(d) of the Loan Agreement, the continuation or
conversion of an Advance made under the Loan Agreement (the
"Continued/Converted Advance"), and (iii) the amount of the Continued/Converted
Advance is available to the Borrower pursuant to the Loan Agreement. The
information below relates to the Continued/Converted Advance:
1. IDENTIFICATION THE CONTINUED/CONVERTED ADVANCE:
Amount
Base Rate Advance $
------------------------
LIBOR Based Rate Advance
expiring $
-------- ------------------------
2. DATE OF CONTINUED/CONVERTED
ADVANCE:
--------------------------------------------------------------------
3. DESIGNATION OF INTEREST OPTION FOR CONTINUED/CONVERTED ADVANCE:
Base Rate Advance $ (Multiples of $100,000 and minimum of $100,000)
-----------------------
LIBOR Based Rate Advance $ (Multiples of $100,000 and minimum of $100,000)
-------------------------
56
Notices of Interest Rate Election must be given prior to 11:00 a.m. (local time
for Agent) two (2) Business Days prior to the Proposed Continuation/Conversion
for Libor Based Rate Advances and on the same day of the Proposed
Continuation/Conversion for Base Rate Advances. All Notices of Interest Rate
Election received after 11:00 a.m. shall be deemed received on the next
Business Day.
4. LIBOR BASED RATE PERIOD FOR CONTINUED/CONVERTED ADVANCES CALCULATED AT THE
LIBOR BASED RATE (indicate one):
(a) 30 DAYS 60 DAYS 90 DAYS
------------- ----------------- -----------------
(b) CALCULATION OF RATE:
LIBOR
---------
Plus spread
TOTAL = 1.75%
---------
(c) EXPIRATION DATE:
---------------
In connection with the Continued/Converted Advance the undersigned represents
on the date hereof and on the date of the Continued/Converted Advance (a) there
exists no Default or Event of Default and (b) the conditions as set forth in
Section 5.03 of the Loan Agreement have been met and the representations
contained therein are true and correct.
BORROWER:
AMSURG CORP.
By:
--------------------------------------------
Title:
-----------------------------------------
57
EXHIBIT C
SUNTRUST
REVOLVING CREDIT NOTE
FOR VALUE RECEIVED, AMSURG CORP., a Tennessee corporation (hereinafter
referred to as "Borrower"), promises and agrees to pay to the order of SUNTRUST
BANK, NASHVILLE, N.A., a national bank (the "Lender") at the Nashville,
Tennessee offices of SunTrust Bank, Nashville, N.A., Agent (the "Agent"), in
lawful money of the United States of America, the principal sum of Ten Million
Six Hundred Fifty Thousand and no/100 Dollars ($10,650,000), or so much thereof
as may be advanced from time to time by the Lender, together with interest on
the unpaid principal balance outstanding from time to time hereon computed from
the date of each advance until maturity at the rate of interest set forth in
that certain Second Amended and Restated Loan Agreement executed among
Borrower, Lender, NationsBank of Tennessee, N.A., and Agent dated April 15,
1997, as such may be amended from time to time (herein referred to as the "Loan
Agreement"). Interest for each year shall be computed on the basis of a year
of 360 days for the actual number of days elapsed.
So long as no default has occurred and is continuing hereunder and so
long as no Event of Default or Default Condition has occurred and is continuing
under the Loan Agreement, and subject to the terms of the Loan Agreement, the
Borrower may borrow hereunder, repay such borrowings, and reborrow hereunder as
provided in the Loan Agreement. Lender shall keep records of all borrowings and
repayments. Draws under this Note shall be evidenced by such documentation as
required by Article II of the Loan Agreement.
Advances under this Note shall be made pursuant to the procedure
specified in the Loan Agreement.
This Note shall be repaid as follows:
(a) Commencing on the tenth (10th) day of May, 1997, and on
the tenth day of each consecutive month through and including March
10, 1999, the Borrower shall pay to Lender an amount equal to all then
accrued interest; and
(b) On April 15, 1999, this Note shall mature at which time
the Borrower shall pay to Lender an amount equal to all outstanding
principal, plus all then accrued interest.
This Note is subject to the terms of the Loan Agreement.
Notwithstanding any provision to the contrary, it is the intent of the
Lender, the Borrower, and all parties liable on this Note, that neither the
Lender nor any subsequent holder shall be entitled to receive, collect, reserve
or apply, as interest, any amount in excess of the maximum lawful rate of
interest permitted
58
to be charged by applicable law or regulations, as amended or enacted from time
to time. In the event the Note calls for an interest payment that exceeds the
maximum lawful rate of interest then applicable, such interest shall not be
received, collected, charged, or reserved until such time as that interest,
together with all other interest then payable, falls within the then applicable
maximum lawful rate of interest. In the event the Lender, or any subsequent
holder, receives any such interest in excess of the then maximum lawful rate of
interest, such amount which would be excessive interest shall be deemed a
partial prepayment of principal and treated hereunder as such, or, if the
principal indebtedness evidenced hereby is paid in full, any remaining excess
funds shall immediately be paid to the Borrower. In determining whether or not
the interest paid or payable, under any specific contingency, exceeds the
maximum lawful rate of interest, the Borrower and the Lender shall, to the
maximum extent permitted under applicable law, (a) exclude voluntary
prepayments and the effects thereof, and (b) amortize, prorate, allocate, and
spread, in equal parts, the total amount of interest throughout the entire term
of the indebtedness; provided that if the indebtedness is paid in full prior to
the end of the full contemplated term hereof, and if the interest received for
the actual period of existence hereof exceeds the maximum lawful rate of
interest, the holder of the Note shall refund to the Borrower the amount of
such excess or credit the amount of such excess against the principal portion
of the indebtedness as of the date it was received, and, in such event, the
Lender shall not be subject to any penalties provided by any laws for
contracting for, charging, reserving, collecting or receiving interest in
excess of the maximum lawful rate of interest.
Principal and unpaid interest bear interest during the continuance of
any default in payment of principal and interest as herein provided at the
lesser of (i) the Base Rate (as defined in the Loan Agreement) plus 4% per
annum, or the maximum lawful rate of interest permitted by law. In case of
suit, or if this obligation is placed in an attorney's hands for collection, or
to protect the security for its payment, the undersigned will pay all costs of
collection and litigation, including a reasonable attorney's fee.
In the event that there occurs any breach of any promise made in this
Note and such breach continues for longer than fifteen (15) days, or upon the
occurrence of an Event of Default as defined in the Loan Agreement, then,
during the continuance of any of such events, at the option of the holder, the
entire indebtedness hereby evidenced shall become due, payable and collectible
then or thereafter, without notice, as the holder may elect regardless of the
date of maturity. The holder may waive any default before or after the same has
been declared and restore this Note to full force and effect without impairing
any rights hereunder, such right of waiver being a continuing one.
-2-
59
The makers, endorsers, guarantors and all parties to this Note and all
who may become liable for same, jointly and severally waive presentment for
payment, protest, notice of protest, notice of nonpayment of this Note, demand
and all legal diligence in enforcing collection, and hereby expressly agree
that the lawful owner or holder of this Note may defer or postpone collection
of the whole or any part thereof, either principal and/or interest, or may
extend or renew the whole or any part thereof, either principal and/or
interest, or may accept additional collateral or security for the payment of
this Note, or may release the whole or any part of any collateral security
and/or liens given to secure the payment of this Note, or may release from
liability on account of this Note any one or more of the makers, endorsers,
guarantors and/or other parties thereto, all without notice to them or any of
them; and such deferment, postponement, renewal, extension, acceptance of
additional collateral or security and/or release shall not in any way affect or
change the obligation of any such maker, endorser, guarantor or other party to
this Note, or of any who may become liable for the payment thereof.
The Borrower shall pay a "late charge" of five percent (5%) of any
payments of principal and/or interest due when paid more than five days after
the due date thereof (provided that in no event shall said "late charge" result
in the payment of interest in excess of the maximum lawful rate of interest
permitted by applicable law), to cover the extra expenses involved in handling
delinquent payments; and provided that the late charge shall not be applicable
to the payment due on the Maturity Date.
The term "maximum lawful rate of interest" as used herein shall mean a
rate of interest equal to the higher or greater of the following: (a) the
"applicable formula rate" defined in Tennessee Code Annotated Section
47-14-102(2), or (b) such other rate of interest as may be charged under other
applicable laws or regulations.
This Note is a secured Note.
This Note has been executed and delivered in, and shall be governed by
and construed according to the laws of the State of Tennessee except to the
extent pre-empted by applicable laws of the United States of America.
This Note may not be changed or terminated without the prior written
approval of the Lender and the Borrower. No waiver of any term or provision
hereof shall be valid unless in writing signed by the holder.
This Note is one of the Revolving Credit Notes issued by Borrower
pursuant to the Loan Agreement. This Note reflects in part an amendment,
restatement, and increase to the revolving credit indebtedness previously
evidenced by that certain Amended
-3-
60
and Restated Revolving Credit Note payable to the order of SunTrust Bank,
Nashville, N.A. in the principal amount of $12,000,000 dated as of June 25,
1996, which Amended and Restated Revolving Credit Note was assigned by SunTrust
Bank, Nashville, N.A. to Agent. Subsequent to the assignment to Agent, the
revolving credit indebtedness was increased to $15,000,000 and separate notes
were issued to the Lenders (as defined in the Loan Agreement) to evidence the
amended, restated, and increased revolving credit indebtedness. This Note is
not (and is not intended to be) a novation of the revolving credit indebtedness
evidenced by the Amended and Restated Revolving Credit Note.
Executed this 15th day of April, 1997.
BORROWER:
AMSURG CORP., a Tennessee corporation
By:
-------------------------------------
Title:
----------------------------------
-4-
61
EXHIBIT C
NATIONSBANK
REVOLVING CREDIT NOTE
FOR VALUE RECEIVED, AMSURG CORP., a Tennessee corporation (hereinafter
referred to as "Borrower"), promises and agrees to pay to the order of
NATIONSBANK OF TENNESSEE, N.A., a national bank (the "Lender") at the
Nashville, Tennessee offices of SunTrust Bank, Nashville, N.A., Agent (the
"Agent"), in lawful money of the United States of America, the principal sum of
Four Million Three Hundred Fifty Thousand and no/100 Dollars ($4,350,000), or
so much thereof as may be advanced from time to time by the Lender, together
with interest on the unpaid principal balance outstanding from time to time
hereon computed from the date of each advance until maturity at the rate of
interest set forth in that certain Second Amended and Restated Loan Agreement
executed among Borrower, Lender, SunTrust Bank, Nashville, N.A., and Agent
dated April 15, 1997, as such may be amended from time to time (herein referred
to as the "Loan Agreement"). Interest for each year shall be computed on the
basis of a year of 360 days for the actual number of days elapsed.
So long as no default has occurred and is continuing hereunder and so
long as no Event of Default or Default Condition has occurred and is continuing
under the Loan Agreement, and subject to the terms of the Loan Agreement, the
Borrower may borrow hereunder, repay such borrowings, and reborrow hereunder as
provided in the Loan Agreement. Lender shall keep records of all borrowings and
repayments. Draws under this Note shall be evidenced by such documentation as
required by Article II of the Loan Agreement.
Advances under this Note shall be made pursuant to the procedure
specified in the Loan Agreement.
This Note shall be repaid as follows:
(a) Commencing on the tenth (10th) day of May, 1997, and
on the tenth day of each consecutive month through and including March
10, 1999, the Borrower shall pay to Lender an amount equal to all then
accrued interest; and
(b) On April 15, 1999, this Note shall mature at which
time the Borrower shall pay to Lender an amount equal to all
outstanding principal, plus all then accrued interest.
This Note is subject to the terms of the Loan Agreement.
Notwithstanding any provision to the contrary, it is the intent of the
Lender, the Borrower, and all parties liable on this Note, that neither the
Lender nor any subsequent holder shall be entitled to receive, collect, reserve
or apply, as interest, any amount in excess of the maximum lawful rate of
interest permitted
62
to be charged by applicable law or regulations, as amended or enacted from time
to time. In the event the Note calls for an interest payment that exceeds the
maximum lawful rate of interest then applicable, such interest shall not be
received, collected, charged, or reserved until such time as that interest,
together with all other interest then payable, falls within the then applicable
maximum lawful rate of interest. In the event the Lender, or any subsequent
holder, receives any such interest in excess of the then maximum lawful rate of
interest, such amount which would be excessive interest shall be deemed a
partial prepayment of principal and treated hereunder as such, or, if the
principal indebtedness evidenced hereby is paid in full, any remaining excess
funds shall immediately be paid to the Borrower. In determining whether or not
the interest paid or payable, under any specific contingency, exceeds the
maximum lawful rate of interest, the Borrower and the Lender shall, to the
maximum extent permitted under applicable law, (a) exclude voluntary
prepayments and the effects thereof, and (b) amortize, prorate, allocate, and
spread, in equal parts, the total amount of interest throughout the entire term
of the indebtedness; provided that if the indebtedness is paid in full prior to
the end of the full contemplated term hereof, and if the interest received for
the actual period of existence hereof exceeds the maximum lawful rate of
interest, the holder of the Note shall refund to the Borrower the amount of
such excess or credit the amount of such excess against the principal portion
of the indebtedness as of the date it was received, and, in such event, the
Lender shall not be subject to any penalties provided by any laws for
contracting for, charging, reserving, collecting or receiving interest in
excess of the maximum lawful rate of interest.
Principal and unpaid interest bear interest during the continuance of
any default in payment of principal and interest as herein provided at the
lesser of (i) the Base Rate (as defined in the Loan Agreement) plus 4% per
annum, or (ii) the maximum lawful rate of interest permitted by law. In case of
suit, or if this obligation is placed in an attorney's hands for collection, or
to protect the security for its payment, the undersigned will pay all costs of
collection and litigation, including a reasonable attorney's fee.
In the event that there occurs any breach of any promise made in this
Note and such breach continues for longer than fifteen (15) days, or upon the
occurrence of an Event of Default as defined in the Loan Agreement, then,
during the continuance of any of such events, at the option of the holder, the
entire indebtedness hereby evidenced shall become due, payable and collectible
then or thereafter, without notice, as the holder may elect regardless of the
date of maturity. The holder may waive any default before or after the same has
been declared and restore this Note to full force and effect without impairing
any rights hereunder, such right of waiver being a continuing one.
-2-
63
The makers, endorsers, guarantors and all parties to this Note and all
who may become liable for same, jointly and severally waive presentment for
payment, protest, notice of protest, notice of nonpayment of this Note, demand
and all legal diligence in enforcing collection, and hereby expressly agree
that the lawful owner or holder of this Note may defer or postpone collection
of the whole or any part thereof, either principal and/or interest, or may
extend or renew the whole or any part thereof, either principal and/or
interest, or may accept additional collateral or security for the payment of
this Note, or may release the whole or any part of any collateral security
and/or liens given to secure the payment of this Note, or may release from
liability on account of this Note any one or more of the makers, endorsers,
guarantors and/or other parties thereto, all without notice to them or any of
them; and such deferment, postponement, renewal, extension, acceptance of
additional collateral or security and/or release shall not in any way affect or
change the obligation of any such maker, endorser, guarantor or other party to
this Note, or of any who may become liable for the payment thereof.
The Borrower shall pay a "late charge" of five percent (5%) of any
payments of principal and/or interest due when paid more than five days after
the due date thereof (provided that in no event shall said "late charge" result
in the payment of interest in excess of the maximum lawful rate of interest
permitted by applicable law), to cover the extra expenses involved in handling
delinquent payments; and provided that the late charge shall not be applicable
to the payment due on the Maturity Date.
The term "maximum lawful rate of interest" as used herein shall mean a
rate of interest equal to the higher or greater of the following: (a) the
"applicable formula rate" defined in Tennessee Code Annotated Section
47-14-102(2), or (b) such other rate of interest as may be charged under other
applicable laws or regulations.
This Note is a secured Note.
This Note has been executed and delivered in, and shall be governed by
and construed according to the laws of the State of Tennessee except to the
extent pre-empted by applicable laws of the United States of America.
This Note may not be changed or terminated without the prior written
approval of the Lender and the Borrower. No waiver of any term or provision
hereof shall be valid unless in writing signed by the holder.
This Note is one of the Revolving Credit Notes issued by Borrower
pursuant to the Loan Agreement. This Note reflects in part an amendment,
restatement, and increase to the revolving credit indebtedness previously
evidenced by that certain Amended
-3-
64
and Restated Revolving Credit Note payable to the order of SunTrust Bank,
Nashville, N.A. in the principal amount of $12,000,000 dated as of June 25,
1996, which Amended and Restated Revolving Credit Note was assigned by SunTrust
Bank, Nashville, N.A. to Agent. Subsequent to the assignment to Agent, the
revolving credit indebtedness was increased to $15,000,000 and separate notes
were issued to the Lenders (as defined in the Loan Agreement) to evidence the
amended, restated, and increased revolving credit indebtedness. This Note is
not (and is not intended to be) a novation of the revolving credit indebtedness
evidenced by the Amended and Restated Revolving Credit Note.
Executed this 15th day of April, 1997.
BORROWER:
AMSURG CORP., a Tennessee corporation
By:
-------------------------------------
Title:
----------------------------------
-4-
65
EXHIBIT D
SUNTRUST
TERM NOTE
FOR VALUE RECEIVED, AMSURG CORP., a Tennessee corporation (hereinafter
referred to as "Borrower"), promises and agrees to pay to the order of SUNTRUST
BANK, NASHVILLE, N.A. (the "Lender") at the Nashville, Tennessee offices of
SunTrust Bank, Nashville, N.A, Agent (the "Agent"), in lawful money of the
United States of America, the principal sum of Three Million Three Hundred
Sixteen Thousand Five Hundred Ninety-Five and 93/100 Dollars ($3,316,595.93),
together with interest on the unpaid principal balance outstanding from time to
time hereon computed from the date hereof until maturity at the rate of
interest set forth in that certain Second Amended and Restated Loan Agreement
executed among Borrower, Lender, NationsBank of Tennessee, N.A., and Agent
dated April 15, 1997, as such may be amended from time to time (herein referred
to as the "Loan Agreement"). Interest for each year shall be computed based on
the basis of a year of 360 days for the actual number of days elapsed.
This Note shall be repaid as follows: (a) commencing on the tenth
(10th) day of April, 1997 and on the tenth (10th) day of each consecutive month
thereafter through and including May 10, 2000, the Borrower shall pay to Lender
an amount equal to $85,040.96, plus all then accrued interest; and (b) on June
10, 2000, this Note shall mature, and the Borrower shall pay to Lender an
amount equal to all outstanding principal, plus all then accrued interest.
This Note is subject to the terms of the Loan Agreement.
Notwithstanding any provision to the contrary, it is the intent of the
Lender, the Borrower, and all parties liable on this Note, that neither the
Lender nor any subsequent holder shall be entitled to receive, collect, reserve
or apply, as interest, any amount in excess of the maximum lawful rate of
interest permitted to be charged by applicable law or regulations, as amended
or enacted from time to time. In the event the Note calls for an interest
payment that exceeds the maximum lawful rate of interest then applicable, such
interest shall not be received, collected, charged, or reserved until such time
as that interest, together with all other interest then payable, falls within
the then applicable maximum lawful rate of interest. In the event the Lender,
or any subsequent holder, receives any such interest in excess of the then
maximum lawful rate of interest, such amount which would be excessive interest
shall be deemed a partial prepayment of principal and treated hereunder as
such, or, if the principal indebtedness evidenced hereby is paid in full, any
remaining excess funds shall immediately be paid to the Borrower. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the maximum lawful rate of
66
interest, the Borrower and the Lender shall, to the maximum extent permitted
under applicable law, (a) exclude voluntary prepayments and the effects
thereof, and (b) amortize, prorate, allocate, and spread, in equal parts, the
total amount of interest throughout the entire term of the indebtedness;
provided that if the indebtedness is paid in full prior to the end of the full
contemplated term hereof, and if the interest received for the actual period of
existence hereof exceeds the maximum lawful rate of interest, the holder of the
Note shall refund to the Borrower the amount of such excess or credit the
amount of such excess against the principal portion of the indebtedness as of
the date it was received, and, in such event, the Lender shall not be subject
to any penalties provided by any laws for contracting for, charging, reserving,
collecting or receiving interest in excess of the maximum lawful rate of
interest.
Principal and unpaid interest bear interest during the continuance of
any default in payment of principal and interest as herein provided at the
lesser of(i) the Base Rate (as defined in the Loan Agreement), plus 4% per
annum, or the maximum lawful rate of interest permitted by law. In case of
suit, or if this obligation is placed in an attorney's hands for collection, or
to protect the security for its payment, the undersigned will pay all costs of
collection and litigation, including a reasonable attorney's fee.
In the event that there occurs any breach of any promise made in this
Note and such breach continues for longer than fifteen (15) days, or upon the
occurrence of an Event of Default as defined in the Loan Agreement, then,
during the continuance of any of such events, at the option of the holder, the
entire indebtedness hereby evidenced shall become due, payable and collectible
then or thereafter, without notice, as the holder may elect regardless of the
date of maturity. The holder may waive any default before or after the same has
been declared and restore this Note to full force and effect without impairing
any rights hereunder, such right of waiver being a continuing one.
The makers, endorsers, guarantors and all parties to this Note and all
who may become liable for same, jointly and severally waive presentment for
payment, protest, notice of protest, notice of nonpayment of this Note, demand
and all legal diligence in enforcing collection, and hereby expressly agree
that the lawful owner or holder of this Note may defer or postpone collection
of the whole or any part thereof, either principal and/or interest, or may
extend or renew the whole or any part thereof, either principal and/or
interest, or may accept additional collateral or security for the payment of
this Note, or may release the whole or any part of any collateral security
and/or liens given to secure the payment of this Note, or may release from
liability on account of this Note any one or more of the makers, endorsers,
guarantors and/or other parties thereto, all without notice to them or any of
them; and
-2-
67
such deferment, postponement, renewal, extension, acceptance of additional
collateral or security and/or release shall not in any way affect or change the
obligation of any such maker, endorser, guarantor or other party to this Note,
or of any who may become liable for the payment thereof.
The Borrower shall pay a "late charge" of five percent (5%) of any
payments of principal and/or interest due when paid more than five days after
the due date thereof (provided that in no event shall said "late charge" result
in the payment of interest in excess of the maximum lawful rate of interest
permitted by applicable law), to cover the extra expenses involved in handling
delinquent payments; and provided that the late charge shall not be applicable
to the payment due on the Maturity Date.
The term "maximum lawful rate of interest" as used herein shall mean a
rate of interest equal to the higher or greater of the following: (a) the
"applicable formula rate" defined in Tennessee Code Annotated Section
47-14-102(2), or (b) such other rate of interest as may be charged under other
applicable laws or regulations.
This Note is a secured Note.
This Note has been executed and delivered in, and shall be governed by
and construed according to the laws of the State of Tennessee except to the
extent pre-empted by applicable laws of the United States of America.
This Note may not be changed or terminated without the prior written
approval of the Lender and the Borrower. No waiver of any term or provision
hereof shall be valid unless in writing signed by the holder.
This Note is one of the Term Notes issued by Borrower pursuant to the
Loan Agreement. This Note reflects in part an amendment and restatement of the
indebtedness evidenced by that certain Consolidated, Amended, and Restated Term
Note payable to the order of SunTrust Bank, Nashville, N.A. in the principal
amount of $5,749,245.88 dated as of June 25, 1996, which Consolidated, Amended,
and Restated Term Note was assigned without recourse by SunTrust Bank,
Nashville, N.A. to Agent. Subsequent to the assignment to Agent, separate
notes were issued to the Lenders (as such term is defined in the Loan
Agreement) to evidence the indebtedness. This Note is not (and is not intended
to be) a novation of the indebtedness evidenced previously by the Consolidated,
Amended, and Restated Term Note.
-3-
68
Executed this 15th day of April, 1997.
BORROWER:
AMSURG CORP., a Tennessee corporation
By:
-------------------------------------
Title:
----------------------------------
-4-
69
EXHIBIT D
NATIONSBANK
TERM NOTE
FOR VALUE RECEIVED, AMSURG CORP., a Tennessee corporation (hereinafter
referred to as "Borrower"), promises and agrees to pay to the order of
NATIONSBANK OF TENNESSEE, N.A. (the "Lender") at the Nashville, Tennessee
offices of SunTrust Bank, Nashville, N.A, Agent (the "Agent"), in lawful money
of the United States of America, the principal sum of One Million Three Hundred
Fifty Four Thousand Six Hundred Sixty-Five and 95/100 Dollars ($1,354,665.95),
together with interest on the unpaid principal balance outstanding from time to
time hereon computed from the date hereof until maturity at the rate of
interest set forth in that certain Second Amended and Restated Loan Agreement
executed among Borrower, Lender, SunTrust Bank, Nashville, N.A., and Agent
dated April 15, 1997, as such may be amended from time to time (herein referred
to as the "Loan Agreement"). Interest for each year shall be computed based on
the basis of a year of 360 days for the actual number of days elapsed.
This Note shall be repaid as follows: (a) commencing on the tenth
(10th) day of April, 1997 and on the tenth (10th) day of each consecutive month
thereafter through and including May 10, 2000, the Borrower shall pay to Lender
an amount equal to $34,735.04, plus all then accrued interest; and (b) on June
10, 2000, this Note shall mature, and the Borrower shall pay to Lender an
amount equal to all outstanding principal, plus all then accrued interest.
This Note is subject to the terms of the Loan Agreement.
Notwithstanding any provision to the contrary, it is the intent of the
Lender, the Borrower, and all parties liable on this Note, that neither the
Lender nor any subsequent holder shall be entitled to receive, collect, reserve
or apply, as interest, any amount in excess of the maximum lawful rate of
interest permitted to be charged by applicable law or regulations, as amended
or enacted from time to time. In the event the Note calls for an interest
payment that exceeds the maximum lawful rate of interest then applicable, such
interest shall not be received, collected, charged, or reserved until such time
as that interest, together with all other interest then payable, falls within
the then applicable maximum lawful rate of interest. In the event the Lender,
or any subsequent holder, receives any such interest in excess of the then
maximum lawful rate of interest, such amount which would be excessive interest
shall be deemed a partial prepayment of principal and treated hereunder as
such, or, if the principal indebtedness evidenced hereby is paid in full, any
remaining excess funds shall immediately be paid to the Borrower. In
determining whether or not the interest paid or payable, under any specific
contingency, exceeds the maximum lawful rate of
70
interest, the Borrower and the Lender shall, to the maximum extent permitted
under applicable law, (a) exclude voluntary prepayments and the effects
thereof, and (b) amortize, prorate, allocate, and spread, in equal parts, the
total amount of interest throughout the entire term of the indebtedness;
provided that if the indebtedness is paid in full prior to the end of the full
contemplated term hereof, and if the interest received for the actual period of
existence hereof exceeds the maximum lawful rate of interest, the holder of the
Note shall refund to the Borrower the amount of such excess or credit the
amount of such excess against the principal portion of the indebtedness as of
the date it was received, and, in such event, the Lender shall not be subject
to any penalties provided by any laws for contracting for, charging, reserving,
collecting or receiving interest in excess of the maximum lawful rate of
interest.
Principal and unpaid interest bear interest during the continuance of
any default in payment of principal and interest as herein provided at the
lesser of (i) the Base Rate (as defined in the Loan Agreement), plus 4% per
annum, or the maximum lawful rate of interest permitted by law. In case of
suit, or if this obligation is placed in an attorney's hands for collection, or
to protect the security for its payment, the undersigned will pay all costs of
collection and litigation, including a reasonable attorney's fee.
In the event that there occurs any breach of any promise made in this
Note and such breach continues for longer than fifteen (15) days, or upon the
occurrence of an Event of Default as defined in the Loan Agreement, then,
during the continuance of any of such events, at the option of the holder, the
entire indebtedness hereby evidenced shall become due, payable and collectible
then or thereafter, without notice, as the holder may elect regardless of the
date of maturity. The holder may waive any default before or after the same has
been declared and restore this Note to full force and effect without impairing
any rights hereunder, such right of waiver being a continuing one.
The makers, endorsers, guarantors and all parties to this Note and all
who may become liable for same, jointly and severally waive presentment for
payment, protest, notice of protest, notice of nonpayment of this Note, demand
and all legal diligence in enforcing collection, and hereby expressly agree
that the lawful owner or holder of this Note may defer or postpone collection
of the whole or any part thereof, either principal and/or interest, or may
extend or renew the whole or any part thereof, either principal and/or
interest, or may accept additional collateral or security for the payment of
this Note, or may release the whole or any part of any collateral security
and/or liens given to secure the payment of this Note, or may release from
liability on account of this Note any one or more of the makers, endorsers,
guarantors and/or other parties thereto, all without notice to them or any of
them; and
-2 -
71
such deferment, postponement, renewal, extension, acceptance of additional
collateral or security and/or release shall not in any way affect or change the
obligation of any such maker, endorser, guarantor or other party to this Note,
or of any who may become liable for the payment thereof.
The Borrower shall pay a "late charge" of five percent (5%) of any
payments of principal and/or interest due when paid more than five days after
the due date thereof (provided that in no event shall said "late charge" result
in the payment of interest in excess of the maximum lawful rate of interest
permitted by applicable law), to cover the extra expenses involved in handling
delinquent payments; and provided that the late charge shall not be applicable
to the payment due on the Maturity Date.
The term "maximum lawful rate of interest" as used herein shall mean a
rate of interest equal to the higher or greater of the following: (a) the
"applicable formula rate" defined in Tennessee Code Annotated Section
47-14-102(2), or (b) such other rate of interest as may be charged under other
applicable laws or regulations.
This Note is a secured Note.
This Note has been executed and delivered in, and shall be governed by
and construed according to the laws of the State of Tennessee except to the
extent pre-empted by applicable laws of the United States of America.
This Note may not be changed or terminated without the prior written
approval of the Lender and the Borrower. No waiver of any term or provision
hereof shall be valid unless in writing signed by the holder.
This Note is one of the Term Notes issued by Borrower pursuant to the
Loan Agreement. This Note reflects in part an amendment and restatement of the
indebtedness evidenced by that certain Consolidated, Amended, and Restated Term
Note payable to the order of SunTrust Bank, Nashville, N.A. in the principal
amount of $5,749,245.88 dated as of June 25, 1996, which Consolidated, Amended,
and Restated Term Note was assigned without recourse by SunTrust Bank,
Nashville, N.A. to Agent. Subsequent to the assignment to Agent, separate
notes were issued to the Lenders (as such term is defined in the Loan
Agreement) to evidence the indebtedness. This Note is not (and is not intended
to be) a novation of the indebtedness evidenced previously by the Consolidated,
Amended, and Restated Term Note.
-3 -
72
Executed this 15th day of April, 1997.
BORROWER:
AMSURG CORP., a Tennessee corporation
By:
-------------------------------------
Title:
----------------------------------
-4-
73
Exhibit E
1. Loans to Digestive Disease Clinic, Inc., Jackson, Tennessee. AmSurg
has a management agreement but no current ownership in this ASC but
does have an option to acquire a 51% ownership interest in July, 1997.
2. Loan to The Largo Urology ASC, Inc., Largo, Florida. AmSurg will own
40% of this ASC with a right to buy up to 51% after 3 years of
operation.
3. Loan to Evansville ASC, LLC, Evansville, Indiana. AmSurg current
ownership is 40%. On the date of opening, AmSurg will purchase an
additional 15% bringing ownership to 55%.
74
Exhibits F and G
AmSurg Corp.
Subsidiaries
As of March 31, 1997
(Note: All subsidiaries are Tennessee entities)
Registered office for all entities is:
One Xxxxxx Xxxxx Xxxx., Xxxxx 000 Xxxxxxxxx, XX 00000
SUBSIDIARY CORPORATION AND AFFILIATED FACILITY OWNERSHIP
LIMITED PARTNERSHIP/LLC LOCATION INTEREST
*AmSurg EC Centennial, Inc. Nashville, Tennessee 100%
EIN: 00-0000000
The Endoscopy Center of Centennial, L.P. Nashville, Tennessee 60
*AmSurg EC Topeka, Inc. Topeka, Kansas 100
EIN: 00-0000000
The Endoscopy Center of Topeka, L.P. Topeka, Kansas 60
*AmSurg EC St. Xxxxxx, Inc. Nashville, Tennessee 100
EIN: 00-0000000
The Endoscopy Center of St. Xxxxxx, X.X. Nashville, Tennessee 60
*AmSurg XX Xxxxxxxx, Inc. Beaumont, Texas 100
EIN: 00-0000000
The Endoscopy Center of Southeast Texas, L.P. Beaumont, Texas 51
75
SUBSIDIARY CORPORATION AND AFFILIATED FACILITY OWNERSHIP
LIMITED PARTNERSHIP/LLC LOCATION INTEREST
*AmSurg KEC, Inc. Knoxville, Tennessee 100
EIN: 00-0000000
The Endoscopy Center of Knoxville, L.P. Knoxville, Tennessee 51
*AmSurg EC Santa Fe, Inc. Santa Fe, New Mexico 100
EIN: 00-0000000
The Endoscopy Center of Santa Fe, L.P. Santa Fe, New Mexico 60
*AmSurg XX Xxxxxxxxxx, Inc. Washington, District of 100
Columbia
EIN: 00-0000000
The Endoscopy Center of Washington, D.C., X.X. Xxxxxxxxxx, District of 60
Columbia
*AmSurg Torrance, Inc. Torrance, California 100
EIN: 00-0000000
The Endoscopy Center of the South Bay, L.P. Torrance, California 51
*AmSurg Brevard, Inc. Xxxxxxxxx, Xxxxxxx 000
EIN: 00-0000000
The Ophthalmology Center of Brevard, L.P. Melbourne, Florida 51
*AmSurg Encino, Inc. Encino, California 100
EIN: 00-0000000
The Valley Endoscopy Center, L.P. Encino, California 51
76
SUBSIDIARY CORPORATION AND AFFILIATED FACILITY OWNERSHIP
LIMITED PARTNERSHIP/LLC LOCATION INTEREST
*AmSurg Sebastopol, Inc. Sebastopol, California 100
EIN: 00-0000000
The Sebastopol ASC, L.P. Sebastopol, California 60
*AmSurg ENT Brevard, Inc. Xxxxxxxxx, Xxxxxxx 000
EIN: 00-0000000
The ENT Center of Brevard, L.P. Melbourne, Florida 51
*AmSurg Abilene, Inc. Abilene, Texas 100
EIN: 00-0000000
The Abilene ASC, L.P. Abilene, Texas 60
*AmSurg West Tennessee, Inc. Xxxxxxx, Xxxxxxxxx 000
EIN: 00-0000000
The West Tennessee Center, L.P. Jackson, Tennessee 40
*AmSurg Dallas, Inc. Dallas, Texas 100
EIN: 00-0000000
*AmSurg Lakeland, Inc. Xxxxxxxx, Xxxxxxx 000
EIN: 00-0000000
*AmSurg SWFLA, Inc. Fort Xxxxx/Cape Coral, 100
Florida
EIN: 00-0000000
77
SUBSIDIARY CORPORATION AND AFFILIATED FACILITY OWNERSHIP
LIMITED PARTNERSHIP/LLC LOCATION INTEREST
AmSurg Southwest Florida, L.P. Fort Xxxxx/Cape Coral, 60
Florida
*AmSurg Lorain, Inc. Lorain, Ohio 100
EIN: 00-0000000
The Lorain ASC, L.P. Lorain, Ohio 60
*AmSurg Maryville, Inc. Xxxxxxxxx, Xxxxxxxxx 000
EIN: 00-0000000
The Maryville ASC Maryville, Tennessee 51
*AmSurg Holdings, Inc. All LLCs 100
EIN: 00-0000000
The Knoxville Ophthalmology ASC, LLC Knoxville, Tennessee 60
The West Monroe Endoscopy ASC, LLC West Monroe, Louisiana 55
Xxxxxxxxxx Eye Surgery Center, LLC Montgomery, Alabama 51
The Evansville ASC, LLC Evansville, Indiana 40
The Xxxxxx ASC, LLC Sidney, Ohio 51
The Bloomington ASC, LLC Bloomington, Minnesota 51
The Union City ASC, LLC Union City, Tennessee 51
The Cleveland ASC, LLC Cleveland, Ohio 51
The Milwaukee ASC, LLC Milwaukee, Wisconsin 51
The Eye Care Network, LLC Knoxville, Tennessee 51
The Alabama Eye Care Network, LLC Montgomery, Alabama 51
78
SUBSIDIARY CORPORATION AND AFFILIATED FACILITY OWNERSHIP
LIMITED PARTNERSHIP/LLC LOCATION INTEREST
The Columbia ASC, LLC Columbia, South Carolina 51
The Wichita Orthopaedic ASC, LLC Wichita, Kansas 51
The Minneapolis Endoscopy ASC, LLC Minneapolis, Minnesota 51
The Chevy Chase ASC, LLC Chevy Chase, Maryland 51
The Xxxxxxxxxx ASC, LLC Willoughby, Ohio 51
The Oklahoma City ASC, LLC Oklahoma City, Oklahoma 51
The Cincinnati ASC, LLC Cincinnati, Ohio 51
The Mountain West Gastroenterology ASC, LLC Salt Lake City, Utah 51
*AmSurg Miami, Inc. Xxxxx, Xxxxxxx 000
EIN: 00-0000000
The Miami ASC, L.P. Miami, Florida 51
*AmSurg North Platte, Inc. North Platte, Nebraska 100
EIN: 00-0000000
*AmSurg Fort Xxxxxxx, Inc. Fort Xxxxxxx, Colorado 100
EIN: 00-0000000
*AmSurg Hanford, Inc. Xxxxxxx, Xxxxxxxxxx 000
EIN: 00-0000000
The Hanford ASC, L.P. Hanford, California 63
79
SUBSIDIARY CORPORATION AND AFFILIATED FACILITY OWNERSHIP
LIMITED PARTNERSHIP/LLC LOCATION INTEREST
*AmSurg Melbourne Inc. Xxxxxxxxx, Xxxxxxx 000
EIN: 00-0000000
The Melbourne ASC, L.P. Melbourne, Florida 51
*AmSurg Largo, Inc. Xxxxx, Xxxxxxx 000
EIN: 00-0000000
The Xxxxx Xxxxxxx XXX, X.X. Xxxxx, Xxxxxxx 00
*AmSurg Port Xxxxxx, Inc.. Port Xxxxxx, Texas 100
EIN: 00-0000000
The Port Xxxxxx ASC, L.P. Port Xxxxxx, Texas 51
*Amsurg Chicago, Inc. Xxxxxxx, Xxxxxxxx 000
EIN: 00-0000000
The Chicago Endoscopy ASC, L.P. Chicago, Illinois 51
*AmSurg Dade County, Inc. Miami, Florida 100
EIN: 00-0000000
Gastroenterology Group of South Florida Miami, Florida 70
*AmSurg Hillmont, Inc. Philadelphia, PA 100
EIN: 00-0000000
The Hillmont, ASC, L.P. Philadelphia, PA 51
80
SUBSIDIARY CORPORATION AND AFFILIATED FACILITY OWNERSHIP
LIMITED PARTNERSHIP/LLC LOCATION INTEREST
*AmSurg Northwest Florida, Inc. Panama City, Florida 100
EIN: 00-0000000
The Xxxxxxxxx Xxxxxxx XXX, X.X. Xxxxxx Xxxx, Xxxxxxx 51
*Amsurg Palmetto, Inc. Hialeah, Florida 100
EIN: 00-0000000
The Palmetto ASC, L.P. Hialeah, Florida 51
*AmSurg Hallandale, Inc. Xxxxxxxxxx, Xxxxxxx 000
EIN: 00-0000000
The Xxxxxxxxxx Xxxxxxx XXX, X.X. Xxxxxxxxxx, Xxxxxxx 51
*AmSurg South Florida Network, Inc. Miami, Florida 100
EIN: 00-0000000
The GI Network of South Florida, L.P. Miami, Florida 51
*AmSurg Panama City, Inc. Panama City, Florida 100
EIN: 00-0000000
The Panama City Eye ASC, L.P. Panama City, Florida 51
*AmSurg Ocala, Inc. Xxxxx, Xxxxxxx 000
EIN: 00-0000000
The Ocala Endoscopy ASC, L.P. Ocala, Florida 51
*AmSurg MEA, Inc. Xxxxxxxxx, Xxxxxxxxx 000
EIN: applied for
81
SUBSIDIARY CORPORATION AND AFFILIATED FACILITY OWNERSHIP
LIMITED PARTNERSHIP/LLC LOCATION INTEREST
*AmSurg Miami Urology, Inc. Miami, Florida 100
EIN: 00-0000000
The Miami Urology Group, L.P. Miami, Florida 60
The Miami Urology ASC, L.P. Miami, Florida 60
*AmSurg Crystal River, Inc. Crystal River, Florida 100
EIN: 00-0000000
The Crystal River Endoscopy ASC, L.P. Crystal River, Florida 51
*AmSurg Abilene Eye, Inc. Abilene, Texas 100
EIN: applied for
The Abilene Eye ASC, L.P. Abilene, Texas 51
-------------------------------------------
* Signifies Guarantor
82
EXHIBIT H
[BASS, XXXXX & XXXX LETTERHEAD]
April __, 1997
SunTrust Bank, Nashville, N.A., Agent
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Dear Xx. Xxxxx:
We have acted as counsel to AmSurg Corp., a Tennessee corporation (the
"Borrower"), in connection with the execution by the Borrower of that certain
Second Amended and Restated Loan Agreement dated as of April __, 1997 among
Borrower, SunTrust Bank, Nashville, N.A., Agent (the "Agent"), and the Lenders,
described therein (the "Loan Agreement"), the Revolving Credit Notes, the Term
Notes and certain other loan documents executed in connection with the Loan
Agreement (the Loan Agreement, the Revolving Credit Notes, the Term Notes, and
such other loan documents executed by the Borrower are collectively referred to
herein as the "Transaction Documents").
This Opinion Letter is delivered to, and for the benefit of, the Agent
and the Lenders, pursuant to the requirements of the Loan Agreement. All terms
used, but not defined, herein shall have the meanings ascribed to them in the
Loan Agreement or the Accord (see below).
This Opinion Letter is governed by, and shall be interpreted in
accordance with, the Legal Opinion Accord (the "Accord") of the ABA Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord, and this Opinion
Letter should be read in conjunction therewith.
Solely as to matters of fact, but not as to the legal conclusions that
are the subject of this opinion, we have relied upon representations made by
Borrower in the Transaction Documents.
The Law covered by the opinions expressed herein is limited to the
federal Law of the United States and the Law of the State of Tennessee.
83
April __, 1997
Page 2
Based on the foregoing, and subject to the assumptions, limitations
and qualifications set forth herein, we are of the opinion that:
1. Borrower is a corporation, duly organized, validly existing,
and in good standing under the laws of the State of Tennessee. Borrower has
the corporate power and corporate authority under such laws to enter into and
perform its obligations under the Transaction Documents.
2. The Transaction Documents have been duly authorized by all
necessary corporate action on the part of Borrower and have been duly executed
and delivered by the Borrower.
3. The Transaction Documents are enforceable against the Borrower.
Our opinion in paragraph 3 is further subject to the qualification
that certain waivers, procedures, remedies and other provisions of the
Transaction Documents may be unenforceable under or limited by applicable law;
provided, however, that the inclusion of such waivers, procedures, remedies and
other provisions does not render the Transaction Documents invalid as a whole,
and subject to the other qualifications and limitations set forth herein, there
exist in the Transaction Documents or pursuant to applicable law, legally
adequate remedies for the practical realization of the principal benefits
reasonably intended to be provided by the Transaction Documents, subject to the
consequences of any delay that may result from limitations imposed by
applicable law.
In making our examinations and in expressing our opinions, we have
assumed that the Transaction Documents have been executed and delivered for
adequate consideration.
The General Qualifications apply to all of the opinions set forth
above.
We hereby confirm to you that there are no actions or proceedings
against the Borrower, pending or threatened in writing, before any court,
governmental agency or arbitrator that affect the enforceability of the
Transaction Documents.
This Opinion Letter may be relied upon by Agent and the Lenders only
in connection with the Transaction Documents and may not be used or relied upon
by any other person for any purpose whatsoever, except to the extent authorized
in the Accord, without in each instance our prior written consent.
Very truly yours,
2
84
FIRST 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
herein ("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 6th day of May, 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 (herein 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 parties hereto agree as follows:
1. Section 7.11(a) of the Loan Agreement shall be amended and restated as
follows:
(a) Net Worth. Permit its Consolidated Net Worth as of March 31,
1997 to be less than $32,726,225; nor permit its Consolidated Net
Worth as measured at the end of each Fiscal Quarter thereafter to
be less than the sum of: (i) $32,726,225, plus (ii) the amount
by which Borrower's additional paid-in capital exceeds $32,726,225,
plus (iii) 75% of the net, after-tax earnings of the Borrower as
determined on a consolidated basis.
2. The Loan Agreement is not amended in any other respect.
3. The Borrower reaffirms its obligations under the Loan Agreement and
agrees that such obligations are valid and binding, enforceable in accordance
with their respective terms, subject to no defense, counterclaim or objection.
ENTERED INTO as of the date first set forth above.
BORROWER:
AMSURG CORP., a Tennessee
corporation
By: Xxxxxx X. Xxxxx
---------------------------
Title: CFO
-------------------------
AGENT:
SUNTRUST BANK, NASHVILLE, N.A.,
AGENT
By: Xxxxx Xxxx Xxxxx
----------------------------
Title: GVP
-------------------------
LENDERS:
SUNTRUST BANK, NASHVILLE, N.A
By: Xxxxx Xxxx Xxxxx
----------------------------
Title: GVP
-------------------------
NATIONSBANK OF TENNESSEE, N.A.
By: Xxxxx X. Xxxxx
----------------------------
Title: VP
-------------------------
