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Exhibit 10.57
THIRD AMENDMENT AND CONSENT TO CREDIT
AGREEMENT
THIRD
AMENDMENT AND CONSENT TO CREDIT AGREEMENT (this "
Agreement "),
dated as of December 13, 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 (as amended by that certain First Amendment to Credit
Agreement and Consent to Acquisition dated as of May 31, 2007 and
that certain Second Amendment to Credit Agreement dated as of June
20, 2007, the "
Credit Agreement ").
B.
Borrower
has requested that Agent and Lenders amend the Credit Agreement and
consent to the sale or closure (the "December, 2007 Divestitures")
by Borrower of those certain Non-Wholly Owned Subsidiaries of the
Borrower set forth on Annex A to this Agreement.
C.
Agent
and Lenders are willing to enter into this Agreement to amend the
Credit Agreement and to consent to the December, 2007 Divestures
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.
Amendments to Credit Agreement
.
(a)
Section
1.1 of the Credit Agreement is hereby amended by adding the
following new definitions thereto:
"
NovaMed of Altamonte Springs "
means NovaMed Surgery Center of Altamonte Springs, LLC, a Delaware
limited liability company.
“
Third Amendment ”
means that certain Third Amendment to Credit Agreement dated as of
June 20, 2007 among Borrower, Agent and Required
Lenders.
“
Third Amendment Effective Date ”
has the meaning set forth in Section 4 of the Third
Amendment.
(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 and NovaMed
of Altamonte Springs permitted to be outstanding under
Section 7.2.2(q) and
Section 7.2.2(v) hereof,
that amount of such Indebtedness of NovaMed of New Albany and
NovaMed of Altamonte Springs 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 (v) and (w) thereto:
"(v)
Indebtedness of NovaMed of Altamonte Springs in an amount not
to exceed $4,000,000 at any time outstanding; and
(w)
Indebtedness of Borrower consisting of a guarantee of the
Indebtedness of NovaMed of Altamonte Springs permitted
under
clause (v) 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 NovaMed of Altamonte
Springs."
(d)
Section
7.2.3 of the Credit Agreement is hereby amended by deleting
clause (m) thereof and replacing it with the following new
clause (m):
"(m)
Liens
on the assets of NovaMed of New Albany, Surgery Center of
Kalamazoo and NovaMed of Altamonte Springs securing the
Indebtedness permitted by
clauses (q) ,
(s) and (v) of
Section 7.2.2 .,
respectively."
(e)
Section
7.2.9(a) of the Credit Agreement is hereby amended by adding
the phrase "and exclusive of the December, 2007 Divestitures"
immediately at the end of the parenthetical in clause (ii)
thereof.
2.
Consent .
The Agent and Lenders hereby consent to Borrower and its
Subsidiaries entering into the December, 2007 Divestitures provided
that (i) the aggregate amount of cash charges relating to the
December, 2007 Divestitures tak
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