Exhibit 10.55
FIRST Amendment to Credit Agreement and CONSENT To
ACQUISITION
FIRST
AMENDMENT TO CREDIT AGREEMENT AND CONSENT TO ACQUISITION (this
"
Agreement "),
dated as of May 31, 2007, among NOVAMED, INC., a Delaware
corporation (“
Borrower ”),
NATIONAL CITY BANK (“
Agent ”)
and the Lenders signatory hereto. Terms not defined herein have the
meanings given to them in the Credit Agreement (as hereinafter
defined).
BACKGROUND
A.
Borrower,
the Lenders signatory thereto and Agent are party to that certain
Sixth Amended and Restated Credit Agreement dated as of February 7,
2007 (the "
Credit Agreement ").
B. Borrower
has requested that Agent and Lenders amend the Credit Agreement and
consent to the acquisition by Borrower or a Wholly-Owned Subsidiary
of Borrower of a 62.5% interest in Surgery Center of Kalamazoo,
L.L.C. for a purchase price of $24,600,000 (the “
Kalamazoo Acquisition ”)
which acquisition requires the consent of the Required
Lenders.
C. Agent
and Lenders are willing to enter into this Agreement to consent to
the Kalamazoo Acquisition and amend the Credit Agreement upon the
terms and conditions set forth below.
NOW
THEREFORE, in consideration of the matters set forth in the
recitals and the covenants and provisions herein set forth,
and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
1.
Consent
. Borrower
hereby represents and warrants that after giving effect to the
Kalamazoo Acquisition on a pro forma basis it will be in compliance
with all financial covenants under the Credit Agreement as more
fully detailed on the pro forma compliance certificate and Agreed
EBITDA certificate previously disclosed to the Agent and Lenders
and that the Kalamazoo Acquisition fully complies with the
definition of Permitted Acquisition except for clause (c) of such
definition which requires the consent of the Lenders contained
herein. Based upon such representations and warranties, the Agent
and the Lenders hereby consent to the Kalamazoo Acquisition by
Borrower or a Wholly-Owned Subsidiary of Borrower for a purchase
price not to exceed $24,600,000. Upon consummation of the Kalamazoo
Acquisition such acquisition will be considered a Permitted
Acquisition for all purposes under the Credit
Agreement.
2.
Amendments to Credit Agreement
.
(a)
Section
1.1 of the Credit Agreement is hereby amended by adding the
following new definition thereto:
"
Surgery Center of Kalamazoo "
means Surgery Center of Kalamazoo, L.L.C., a Michigan limited
liability company.
(b)
Section
1.1 of the Credit Agreement is hereby further amended by
deleting the definition of "Total Funded Debt" therein and
replacing it with the following new definition of "Total
Funded Debt":
“Total Funded Debt" of
any Person means all Indebtedness of such Person except
Indebtedness specified in
clause (g) of
the definition of Indebtedness;
provided ,
with respect to Indebtedness of NovaMed of New Albany permitted to
be outstanding under
Section 7.2.2(q) hereof,
that amount of such Indebtedness of NovaMed of New Albany
guaranteed by a Person or Persons other than a Credit Party, ASC
Subsidiary, Minority ASC Entity or Affiliate of a Credit Party, ASC
Subsidiary or Minority ASC Entity shall be excluded for purposes of
calculating this definition and
provided ,
further ,
the amount of outstanding Indebtedness of Surgery Center of
Kalamazoo included in the calculation of this definition shall
equal the principal amount of such Indebtedness multiplied by that
percentage of the outstanding equity of Surgery Center of Kalamazoo
owned by the Borrower or any Wholly-Owned Subsidiary.
(c)
Section
7.2.2 of the Credit Agreement is hereby amended by adding the
following new clauses (s) and (t) thereto:
"(s)
Indebtedness of Surgery Center of Kalamazoo in an amount not
to exceed $2,000,000; and
(t)
Indebtedness of Borrower consisting of a guarantee of the
Indebtedness of Surgery Center of Kalamazoo permitted
under
clause (s) of
this
Section 7.2.2. provided
that such guarantee is limited to a pro rata portion of such
Indebtedness equal to Borrower’s owned pro rata portion of
the outstanding equity interests of Surgery Center of
Kala
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