THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
--------------------------------------------------------
This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of February 17, 2000 is entered into by and among NOVAMED
EYECARE, INC., a Delaware corporation ("Borrower"), THE NORTHERN TRUST COMPANY
and PNC BANK, NATIONAL ASSOCIATION each as Agent and each for itself as a Lender
(as defined below), and each as Agent for the Lenders, and the financial
institutions signatory hereto ("Lenders"). Unless otherwise specified herein,
capitalized terms used in this Amendment shall have the meanings ascribed to
them by the Credit Agreement (as hereinafter defined).
RECITALS
--------
WHEREAS, the Borrower, the Agent and the Lenders have entered into
that certain Amended and Restated Credit Agreement, dated as of May 20, 1997 and
as amended and restated as of July 8, 1998 (as amended by that certain Letter
Agreement dated as of November 1, 1998, by that certain First Amendment dated as
of December 23, 1998 and by that certain Second Amendment and Consent dated as
of May 21, 1999, and as the same may be further amended, supplemented, restated
or otherwise modified from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower, the Agent and the Lenders wish to acknowledge
and consent to certain actions, all as more fully set forth herein;
NOW THEREFORE, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
SECTION 1. Amendment to the Credit Agreement. The definition of
"Agent" in Section 1.1 of the Credit Agreement is hereby amended in its entirety
by inserting in lieu thereof the following new definition:
"Agent" means for The Northern Trust Company and includes each other
Person as shall have subsequently been appointed as the successor Agent
pursuant to Section 9.4.
SECTION 2. Representations and Warranties. The Borrower represents
and warrants that:
(a) each of the representations and warranties contained in the
Credit Agreement is true and correct in all material respects on and
as of the date hereof as if made on the date hereof, except to the
extent that such representations and warranties expressly relate to an
earlier date;
(b) neither the execution, delivery and performance of this
Amendment nor the consummation of the transactions contemplated hereby
does
or shall contravene, result in a breach of, or violate (i) any
provision of the Borrower's certificate or articles of incorporation
or bylaws, (ii) any law or regulation, or any order or decree of any
court or government instrumentality or (iii) indenture, mortgage, deed
of trust, lease, agreement or other instrument to which the Borrower
or any of its Subsidiaries is a party or by which the Borrower or any
of its Subsidiaries or any of their property is bound, except in any
such case to the extent such conflict or breach, with respect to any
such indenture, mortgage, deed of trust, lease, agreement or other
instrument, would not reasonably be expected to have a Material
Adverse Effect or has been waived by a written waiver, a copy of which
has been delivered to the Agent on or before the date hereof; and
(c) no Default or Event of Default will exist or result before
and after giving effect to this Amendment.
SECTION 3. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy
of the Agent or any Bank under the Credit Agreement or any Loan
Document, nor constitute a waiver of any provision of the Credit
Agreement or any Loan Document, except as specifically set forth
herein. Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of similar import shall mean and be a reference to
the Credit Agreement as amended hereby.
SECTION 4. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
SECTION 5. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
SECTION 6. Counterparts. This Amendment may be executed in any
number of counterparts (including by facsimile), each of which when so executed
shall be deemed an original but all such counterparts shall constitute one and
the same instrument.
SECTION 7. Effectiveness. This Amendment shall become effective upon
receipt by the Agent of a fully executed copy of this Amendment.
[signature page follows]
- 2 -
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
NOVAMED EYECARE, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Title: Executive Vice President and Chief
Financial Officer
----------------------------------
THE NORTHERN TRUST COMPANY,
Individually and as Agent
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
----------------------------------
PNC BANK, NATIONAL ASSOCIATION,
Individually and as Agent
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Vice President
----------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxx X. Xxxx
-------------------------------------
Title: Commercial Banking Officer
----------------------------------
- 3 -
