SECURITIES AND EXCHANGE COMMISSION
Date of Report (Date of earliest event reported): June 29, 2012 (June 29, 2012)
(Exact Name of Registrant as Specified in Charter)
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(Registrant’s Telephone Number, Including Area Code)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On June 29, 2012, AmSurg Corp. (the “Company”) entered into an amendment to its Revolving Credit Agreement, dated May 28, 2010, as amended (the “Revolving Credit Agreement”), with the lenders party thereto to, among other things, (i) extend the maturity date of the Revolving Credit Agreement to June 28, 2017, (ii) increase the borrowing limit by $25 million to $475 million, (iii) reduce the interest rate payable on amounts outstanding under the Revolving Credit Agreement by approximately 50 basis points and (iv) permit future investments in foreign subsidiaries.
On June 29, 2012, the Company also amended its Note Purchase Agreement, dated May 28, 2010, as amended (the “Note Purchase Agreement”), with the noteholders named therein to permit future investments in foreign subsidiaries.
The foregoing summary of the amendments to the Revolving Credit Agreement and Note Purchase Agreement are subject to, and qualified in their entirety by, the full text of such amendments, which are attached hereto as Exhibits 10.1 and 10.2, and incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
On June 29, 2012, the Company entered into an amendment to its Revolving Credit Agreement, the material terms and conditions of which are described in Item 1.01 of this Current Report on Form 8-K and are incorporated by reference into this Item 2.03.
On June 29, 2012, the Company entered into an amendment to its Note Purchase Agreement, the material terms and conditions of which are described in Item 1.01 of this Current Report on Form 8-K and are incorporated by reference into this Item 2.03.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. The following exhibits are filed as part of this report:
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Exhibit 10.1 |
Fourth Amendment to Revolving Credit Agreement and Waiver, dated as of June 29, 2012, among AmSurg Corp., the banks and other financial institutions from time to time party thereto, and SunTrust Bank, in its capacity as Administrative Agent for the lenders. |
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Exhibit 10.2 |
Third Amendment to Note Purchase Agreement, dated as of June 29, 2012, among AmSurg Corp. and the holders of Notes party thereto. |
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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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INDEX TO EXHIBITS |
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Exhibit |
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Number |
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Description |
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10.1 |
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Fourth Amendment to Revolving Credit Agreement and Waiver, dated as of June 29, 2012, among AmSurg Corp., the banks and other financial institutions from time to time party thereto, and SunTrust Bank, in its capacity as Administrative Agent for the lenders. |
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10.2 |
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Third Amendment to Note Purchase Agreement, dated as of June 29, 2012, among AmSurg Corp. and the holders of Notes party thereto. |
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FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER
This FOURTH AMENDMENT TO REVOLVING CREDIT AGREEMENT AND WAIVER is dated as of June 29, 2012 (this “Amendment”) by and among AMSURG CORP., a Tennessee corporation (the “Borrower”), each of the “Lenders” party to the Credit Agreement defined below (the “Lenders”) and SUNTRUST BANK, in its capacity as administrative agent for the Lenders (the “Administrative Agent”).
WHEREAS, the Borrower, certain of the Lenders and the Administrative Agent are parties to that certain Revolving Credit Agreement dated as of May 28, 2010, as amended from time to time prior to the date hereof, among the Borrower, the Lenders party thereto and the Administrative Agent (as so amended, the “Credit Agreement”; capitalized terms used herein and not otherwise defined herein shall have the respective definitions given them in the Credit Agreement);
WHEREAS, the Borrower failed to comply with the requirements of Section 5.10 of the Credit Agreement following the creation of (i) AmSurg UK Limited, a Wholly Owned Subsidiary of the Borrower and (ii) AmSurg UK (London) Limited, a Wholly Owned Subsidiary of AmSurg UK Limited, resulting in an Event of Default under Section 8.1 of the Credit Agreement (the “Specified Default”);
WHEREAS, the Borrower has requested (i) an increase in the Aggregate Revolving Commitments in the amount of $25,000,000, (ii) that the Administrative Agent and the Lenders waive the Specified Default and (iii) certain other amendments to the Credit Agreement, each on the terms and conditions more particularly set forth below; and
WHEREAS, the Administrative Agent and the Lenders are willing to waive the Specified Default, increase the Aggregate Revolving Commitments and amend certain provisions of the Credit Agreement, but only on the terms and conditions contained in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:
Section 1. Specific Amendments and Waiver.
(a) Section 1.1 of the Credit Agreement is hereby amended by adding the following new definitions in the appropriate alphabetical order:
“Domestic Subsidiary” means any Subsidiary of the Borrower that is not a Foreign Subsidiary.
“Foreign Pledge Agreement” shall mean any pledge, hypothecation, charge or similar agreement, in form and substance satisfactory to Administrative Agent, whereby the Borrower and each of its presently existing and hereafter acquired Wholly Owned Subsidiaries that are Domestic Subsidiaries pledge and grant to
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the Collateral Agent a first priority perfected Lien in the Borrower's and each such Wholly Owned Subsidiary's presently existing and hereafter acquired right title, and interest in and to any Foreign Subsidiary.
“Foreign Subsidiary” means any direct or indirect Subsidiary of the Borrower that is organized under the laws of a jurisdiction other than the United States of America, any State thereof or the District of Columbia.
“Fourth Amendment” means that certain Fourth Amendment to Revolving Credit Agreement and Waiver dated as of June 29, 2012 by and among the Borrower, the Lenders party thereto and the Administrative Agent.
“Fourth Amendment Effective Date” means June 29, 2012.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
(b) Section 1.1 of the Credit Agreement is hereby amended by deleting the defined term “Acquisition Approval Letter” in its entirety.
(c) Section 1.1 of the Credit Agreement is hereby further amended by deleting the defined terms “Acquisition Information Package”, “Aggregate Revolving Commitments”, “Applicable Margin”, “Debt Basket Amount”, “EBITDA”, “Maturity Date” and “Swing Line Commitment” in their entirety and substituting in lieu thereof the following:
“Acquisition Information Package” shall mean information delivered by Borrower to Administrative Agent and Lenders pursuant to Section 7.13 in the form of Exhibit F.
“Aggregate Revolving Commitments” shall mean the sum of the Revolving Commitments of all Lenders at any time outstanding. As of the Fourth Amendment Effective Date, the Aggregate Revolving Commitments equal $475,000,000.
“Applicable Margin” means, as of any date, with respect to the Letter of Credit Fee, the Commitment Fee and all Revolving Loans outstanding on such date, a percentage per annum determined by reference to the applicable Leverage Ratio in effect on such date in accordance with the table set forth immediately below, provided, that a change in the Applicable Margin resulting from a change in the
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Leverage Ratio shall be effective on the second Business Day after which the Borrower delivers the financial statements required by Section 5.1(a) or Section 5.1(b) and the Compliance Certificate required by Section 5.1(c); provided further, that if at any time the Borrower shall have failed to deliver such financial statements and such Compliance Certificate when so required, the Applicable Margin shall be at Level IV as set forth immediately below until such time as such financial statements and Compliance Certificate are delivered, at which time the Applicable Margin shall be determined as provided above. Notwithstanding the foregoing, the Applicable Margin in effect for the period from the Fourth Amendment Effective Date until the date a change in the Applicable Margin becomes effective as provided above following delivery of financial statements and the Compliance Certificate after the Fourth Amendment Effective Date shall be at Pricing Level III as set forth below.
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Pricing Level |
Leverage Ratio
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Applicable Margin for Eurodollar Loans
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Applicable Margin for Base Rate Loans |
Commitment Fees |
Letter of Credit Fees |
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I |
Less than 1.50:1.00 |
1.50% |
0.50% |
0.20% |
1.50% |
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II |
Less than 2.25:1.00 but greater than or equal to 1.50:1.00
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1.75% |
0.75% |
0.25% |
1.75% |
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III |
Less than 3.00:1.00 but greater than or equal to 2.25:1.00
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2.00% |
1.00% |
0.30% |
2.00% |
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IV |
Greater than or equal to 3.00:1.00
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2.25% |
1.25% |
0.40% |
2.25% |
“Debt Basket Amount” means Indebtedness of the Borrower or its Subsidiaries not to exceed an aggregate principal amount of $50,000,000, which total permitted amount shall be increased each calendar year during the term of this Agreement by $5,000,000, and for clarity, the total Debt Basket Amount shall not exceed: (i) for the period from the Fourth Amendment Effective Date through June 30, 2013, $50,000,000; (ii) for the period from July 1, 2013 through June 30, 2014, $55,000,000; and (iii) for the period from July 1, 2014 through June 30, 2015, $60,000,000; (iv) for the period from July 1, 2015 through June 30, 2016, $65,000,000 and (v) for the period from July 1, 2016 through the Maturity Date, $70,000,000.
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“EBITDA” means, for the Borrower and its Subsidiaries on a consolidated basis for any period, an amount equal to the sum of Consolidated Net Income for such period plus, without duplication, and to the extent deducted in computing Consolidated Net Income for such period, the sum of (a) income taxes, (b) Consolidated Interest Expense, (c) depreciation and amortization expense, in each case determined on a consolidated basis in accordance with GAAP; (d) to the extent applicable, stock option compensation costs applicable under (and calculated in accordance with) FASB ASC 718; (e) all non-cash charges for such period taken for the impairment of goodwill in accordance with FASB ASC 350, but excluding any non-cash charge that will result in a cash charge in a future period; and (f) all documented fees and expenses actually paid in connection with the First Amendment and the NSC Acquisition in an aggregate amount not to exceed $10,000,000; provided, however, that, (i) to the extent included in Consolidated Net Income, there shall be excluded in determining EBITDA for any period any gain or loss resulting from changes or adjustments in the fair value of earn-outs or other contingent consideration in accordance with FASB ASC 805-30-35; (ii) with respect to any Person that became a Subsidiary of, or was merged with or consolidated into, the Borrower or any Wholly Owned Subsidiary during such period, “EBITDA” shall also include the EBITDA of such Person during such period and prior to the date of such acquisition, merger or consolidation; and (iii) with respect to any Person that ceased to be a Subsidiary, or was the subject of a Disposition during any measurement period, “EBITDA” shall not include the EBITDA of such Person for such measurement period, such calculations under this proviso to be detailed with supporting documentation and measured to the Administrative Agent’s reasonable satisfaction.
“Maturity Date” shall mean the earliest of (i) June 28, 2017 (ii) the date on which the Revolving Commitments are terminated pursuant to Section 2.8, or (iii) the date on which all amounts outstanding under this Agreement have been declared or have automatically become due and payable.
“Swingline Commitment” shall mean the commitment of the Swingline Lender to make Swingline Loans in an aggregate principal amount at any time outstanding not to exceed $20,000,000.
(d) Section 2.23 of the Credit Agreement is hereby amended by deleting subsection (a) in its entirety and substituting in lieu thereof the following:
“(a) From and after the Fourth Amendment Effective Date, the Borrower may, upon at least 10 days’ written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), from time to time propose to increase the Aggregate Revolving Commitments by an aggregate amount not to exceed $150,000,000 (the amount of any such increase, the “Additional Commitment Amount”); provided, however, that each Additional Commitment Amount shall be in a principal amount of not less than $10,000,000 or a larger multiple of $5,000,000. Each Lender shall have the
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right for a period of 10 days following receipt of such notice, to elect by written notice to the Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro Rata Share of the Additional Commitment Amount. Any Lender who does not respond within such 10 day period shall be deemed to have elected not to increase its Revolving Commitment. No Lender (or any successor thereto) shall have any obligation to increase its Revolving Commitment or its other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to increase its Revolving Commitment shall be made in its sole discretion independently from any other Lender.”
(e) Section 5.10 of the Credit Agreement is hereby amended by deleting such Section in its entirety and substituting in lieu thereof the following:
(a) (i) If any additional Wholly Owned Subsidiary that is a Domestic Subsidiary is acquired or formed by Borrower, the Borrower shall within fifteen (15) Business Days after such Wholly Owned Subsidiary is acquired or formed: (i) if such Wholly Owned Subsidiary is a corporation, execute a stock pledge agreement in substantially the same form as the Stock Pledge Agreement (or enter into an amendment or joinder to the Stock Pledge Agreement) pledging to the Collateral Agent all of the stock or other evidence of ownership interest it presently holds and acquires in such Wholly Owned Subsidiary, and the Borrower shall deliver along with such Stock Pledge Agreement, joinder or amendment the securities described therein, and a stock power, all of which shall be in form and substance satisfactory to Collateral Agent, (ii) if such Wholly Owned Subsidiary is not a corporation, execute such security agreements as are reasonably satisfactory to the Collateral Agent pledging to the Collateral Agent all of the ownership interest the Borrower holds and acquires in such Wholly Owned Subsidiary, including, without limitation, all presently existing and hereafter arising right, title, and interest in and to distributions, payments, general intangibles, accounts, and other tangible and intangible property and (iii) cause such Wholly Owned Subsidiary to execute a Subsidiary Guarantee Agreement and an Indemnity and Contribution Agreement (or appropriate amendments or joinders to the existing Subsidiary Guarantee Agreement and Indemnity and Contribution Agreement), all of which shall be in form and substance satisfactory to Collateral Agent. The Collateral Agent is hereby authorized to file such UCC financing statements necessary to perfect the security interests described herein, all without the necessity of Borrower’s execution thereof.
(ii) If any Domestic Subsidiary (other than a Wholly Owned Subsidiary) is acquired or formed by a Wholly Owned Subsidiary that is a Domestic Subsidiary or the Borrower, the applicable Wholly Owned Subsidiary or Borrower, as applicable, within fifteen (15) Business Days after such Subsidiary is acquired or formed, shall, subject to the Release Provision, execute a Pledge Agreement, pledging its interest in such Subsidiary, and in the event such Subsidiary is not a corporation, execute such security agreements as are reasonably satisfactory to the Collateral Agent pledging to the
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Collateral Agent the ownership interest that the Borrower or such applicable Wholly Owned Subsidiary holds and acquires in such Subsidiary, all of which shall be in form and substance satisfactory to Collateral Agent. The Collateral Agent is hereby authorized to file such UCC financing statements necessary to perfect the security interest described herein, all without the necessity of Borrower’s or such Wholly Owned Subsidiary’s execution thereof.
(b) If (i) any Foreign Subsidiary is acquired or formed by the Borrower or a Wholly Owned Subsidiary that is a Domestic Subsidiary and (ii) at the time of acquisition or formation of such Foreign Subsidiary or at any time thereafter, the aggregate amount of Investments made by the Borrower or its Subsidiaries in Foreign Subsidiaries exceeds $1,000,000 (the date on which the aggregate of such Investments exceeds $1,000,000, the “Trigger Date”), the Borrower shall, or shall cause such Wholly Owned Subsidiary, within thirty (30) days after the Trigger Date (or such longer period (not to exceed 90 days after the Trigger Date) as the Administrative Agent may agree) to execute a Foreign Pledge Agreement pledging to the Collateral Agent sixty-five percent (65%) of the total voting Capital Stock of such Foreign Subsidiary and one hundred percent (100%) of the non-voting Capital Stock of such Foreign Subsidiary owned by the Borrower or such Wholly Owned Subsidiary as security for the Obligations, and deliver the original stock or other equity certificates evidencing such pledged Capital Stock, together with appropriate stock powers or other endorsements executed in blank, and provide to the Collateral Agent, all of which shall be in form and substance satisfactory to Collateral Agent. The Collateral Agent is hereby authorized to file such UCC financing statements, if applicable, to the extent necessary to perfect the Liens described herein.
(c) In connection with the acquisition or formation of any Wholly Owned Subsidiary or other Subsidiary referenced in clauses (a) and (b) above, the Borrower shall also cause the Collateral Agent to receive simultaneously with the documentation referenced above the resolution of the respective Person executing such documentation and an opinion letter issued by Borrower’s legal counsel regarding such matters as may be reasonably required by the Collateral Agent.
(d) In connection with the acquisition or formation of any Subsidiary referenced in clauses (a) and/or (b) immediately above, the Borrower shall cause the acquisition and formation of such Subsidiaries to be in compliance with all applicable Health Care Laws.
(e) Notwithstanding the requirements set forth in clause (a) of this Section 5.10, neither the Borrower nor any Subsidiary shall be required to pledge or cause to be pledged to the Collateral Agent any Equity Interests acquired by the Borrower or its Subsidiaries after the Closing Date if the issuer of such Equity Interests does not, directly or indirectly, own, operate or manage a surgery center; provided, that, in no event shall the aggregate fair market value of all Equity Interests owned by the Borrower or its Subsidiaries in which the Collateral Agent does not have a perfected Lien exceed ten percent (10%) of the Borrower’s consolidated total assets, determined by reference to the
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consolidated financial statements of the Borrower and its Subsidiaries most recently delivered pursuant to Section 5.1(a).
(f) Section 7.1 of the Credit Agreement is hereby amended by deleting clause (f) of such Section in its entirety and substituting in lieu thereof the following new clause (f):
“(f) Private Placement Indebtedness, including refundings, refinancings and replacements thereof, and amendments or modifications to the Private Placement Documents; provided, however, that the aggregate principal amount of such Private Placement Indebtedness shall not at any time exceed $125,000,000 and all Guarantees thereof by Subsidiaries of the Borrower that have also guaranteed the Obligations; provided, further, that, Private Placement Indebtedness resulting from any such refunding, refinancing, replacement, amendment and/or modification, or any permitted increase in the principal amount thereof, shall have (i) a final maturity date equal to or later than the date that is six (6) months after the Maturity Date and (ii) a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Private Placement Indebtedness determined on and as of the Fourth Amendment Effective Date; and”
(g) Section 7.4 of the Credit Agreement is hereby amended by adding the following at the end of such Section:
“Notwithstanding anything to the contrary in this Section 7.4 or otherwise, the Borrower will not, and will not permit any of its Domestic Subsidiaries to, make any Investment in any Foreign Subsidiary if such Investment, when taken together with all other Investments of the Borrower or its Domestic Subsidiaries in Foreign Subsidiaries, would exceed $15,000,000.
In determining the aggregate amount of Investments at any particular time: (a) the amount of any Investment represented by a Guarantee shall be taken at not less than the principal amount of the obligations guaranteed and still outstanding or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith; (b) there shall be included as an Investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (c) there shall be deducted in respect of each such Investment any amount received as a return of capital (but only by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution); and (d) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (b) may be deducted when paid. Further, the amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, forgiveness or conversion to equity of Indebtedness, or write‑ups, write‑downs or write‑offs with respect to such Investment (but subject to any applicable adjustment as provided in the preceding sentence).”
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(h) Section 7.13 of the Credit Agreement is hereby amended by deleting such Section in its entirety and substituting in lieu thereof the following:
(i) The Credit Agreement is hereby amended by deleting Exhibit E attached thereto in its entirety.
(j) The Credit Agreement is hereby amended by deleting Exhibit F attached thereto in its entirety and substituting in lieu thereof Exhibit A attached hereto.
(k) The Credit Agreement is hereby amended by deleting Schedule 1.1(b) attached thereto in its entirety and substituting in lieu thereof Exhibit B attached hereto.
(k) Subject to the terms and conditions set forth herein, and in reliance upon the representations and warranties of the Borrower made herein, the Administrative Agent and the Lenders hereby waive the Specified Default. The foregoing waiver is a one-time waiver and is limited to the extent specifically set forth above and no other terms, covenants or provisions of the Credit Agreement or any other Loan Document are intended to be affected hereby, all of which remain in full force and effect. The Borrower acknowledges and agrees that the foregoing waiver shall not waive (or be deemed to be or constitute a waiver of) any other covenant, term or provision in the Credit Agreement or hinder, restrict or otherwise modify the rights and remedies of the Lenders, the Administrative Agent or the Collateral Agent following the occurrence of any
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other present or future Default or Event of Default (whether or not related to the Specified Default) under the Credit Agreement or any other Loan Document.
Section 2. Release of Guarantor. Subject to the terms and conditions set forth herein, and in reliance upon the representations and warranties of the Borrower made herein, the Administrative Agent and the Lenders hereby release AmSurg New Port Richey Anesthesia, LLC from any and all liabilities and other obligations under the Subsidiary Guarantee Agreement.
Section 3. Conditions Precedent. The effectiveness of this Amendment is subject to the truth and accuracy of the representations set forth in Section 4 below and receipt by the Administrative Agent of each of the following, each of which shall be in form and substance satisfactory to Administrative Agent:
(i) This Amendment duly executed by the Borrower, each of the Lenders and the Administrative Agent;
(ii) A Reaffirmation of Obligations Under Loan Documents (the “Reaffirmation”) duly executed by the Borrower and each other Loan Party, in the form of Exhibit C attached hereto;
(iii) A duly executed Note payable to any Lender requesting delivery of a Note in the face amount of its Revolving Commitment after giving effect to this Amendment;
(iv) A certificate, dated as of the Fourth Amendment Effective Date, signed by the Secretary and a Responsible Officer of each Loan Party (together with certifications as to incumbency and signatures of such officers) with appropriate insertions and deletions, certifying that: (A) attached thereto are copies of resolutions adopted by of the board of directors (or equivalent thereof) of (x) the Borrower, approving the execution, delivery and performance of this Amendment and the other documents to be executed in connection herewith and authorizing the incurrence of the additional Obligations contemplated hereby and such additional Obligations are entitled to benefits of the Security Documents and other Loan Documents and (y) each other Loan Party, stating that such additional Obligations are entitled to benefits of the Security Documents and other Loan Documents; (B) no consents, approvals, authorizations, registrations, filings or orders are required to be made or obtained under any Requirement of Law or Material Contract of any Loan Party in connection with the execution, delivery, performance, validity and enforceability of this Amendment or any of the transactions contemplated hereby, except those which have been made or obtained and are in full force and effect (with all applicable waiting periods, if any, having expired); and (C) except for the Specified Default, no Default or Event of Default exists immediately before giving effect to amendments provided for herein and no Default or Event of Default will result immediately after giving effect to amendments and waiver provided for herein;
(v) A favorable opinion of Bass Berry & Sims PLC, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering
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such matters relating to the Loan Parties, this Amendment and the transactions contemplated hereby, in form and substance satisfactory to the Administrative Agent and its counsel;
(vi) A duly executed copy of an amendment to the Intercreditor Agreement in form and substance satisfactory to the Administrative Agent and its counsel;
(vii) A duly executed copy of an amendment to the Note Purchase Agreement in form and substance satisfactory to the Administrative Agent and its counsel;
(viii) The payment of all fees and expenses contemplated by (i) that certain engagement letter dated June 7, 2012 among SunTrust Robinson Humphrey, Inc., SunTrust Bank and the Borrower and (ii) Section 5 hereof; and
(ix) Such other documents, instruments, agreements, certifications and opinions as the Administrative Agent, on behalf of the Lenders, may reasonably request.
Section 4. Representations. The Borrower represents and warrants to the Administrative Agent and the Lenders that:
(a) Authorization. Each of the Borrower and the other Loan Parties have the right and power, and have taken all necessary action to authorize them, to execute and deliver this Amendment and the Reaffirmation and to perform their respective obligations hereunder and under the Credit Agreement, as amended by this Amendment, and the other Loan Documents to which they are a party in accordance with their respective terms. This Amendment has been duly executed and delivered by a duly authorized officer of the Borrower and the Loan Parties and each of this Amendment and the Credit Agreement, as amended by this Amendment, is a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its respective terms.
(b) Compliance with Laws. The execution and delivery by the Borrower and the other Loan Parties of this Amendment and the Reaffirmation and the performance by the Borrower of this Amendment and the Credit Agreement, as amended by this Amendment, in accordance with their respective terms, do not and will not, by the passage of time, the giving of notice or otherwise: (i) require any consent or approval of, registration or filing with, or any action by, any Governmental Authority or any other Person or violate any Requirements of Law applicable to the Loan Parties or any judgment, order or ruling of any Governmental Authority; (ii) violate or result in a default under any Material Contract binding on the Loan Parties or any of their assets or give rise to a right thereunder to require any payment to be made by the Loan Parties; or (iii) result in the creation or imposition of any Lien on any asset of the Loan Parties.
(c) Reaffirmation. As of the date of this Amendment and immediately after giving effect to this Amendment, all representations and warranties of each Loan Party set forth in the Loan Documents is true and correct in all material respects (except to the extent that any
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such representation or warranty expressly relates to a specified earlier date, in which case such representation or warranty shall be true and correct as of such earlier date).
(d) No Default. As of the date hereof (except for the Specified Default) and immediately after giving effect to this Amendment, no Default or Event of Default shall exist.
(e) No Impairment of Liens. The execution, delivery, performance and effectiveness of this Amendment will not: (a) impair the validity, effectiveness or priority of the Liens granted pursuant to any Loan Document, and such Liens continue unimpaired with the same priority to secure repayment of all of the applicable Obligations, whether heretofore or hereafter incurred, and (b) require that any new filings be made or other action taken to perfect or to maintain the perfection of such Liens.
(f) No Material Adverse Effect. Since the date of the most recent financial statements of the Borrower described in Section 5.1(a) of the Credit Agreement, there has been no change which has had or could reasonably be expected to have a Material Adverse Effect.
(g) Loan Parties. Schedule 1 attached hereto sets forth a true, correct and complete list of all of the Loan Parties as of the date hereof and the tax identification number of each Loan Party.
(h) Foreign Subsidiaries. As of the date hereof, (i) there are no Foreign Subsidiaries other AmSurg UK Limited and AmSurg UK (London) Limited and (ii) the aggregate Investments made in AmSurg UK Limited and AmSurg UK (London) Limited do not exceed $1,000,000.
Section 5. Payment of Fees and Expenses. The Borrower agrees to pay or reimburse the Administrative Agent for its reasonable out-of-pocket fees, costs and expenses incurred in connection with the preparation, negotiation, execution and delivery of this Amendment and the other documents and agreements executed and delivered in connection herewith.
Section 6. Release. In consideration of the amendments and waiver contained herein, the Borrower hereby waives and releases each of the Lenders, the Administrative Agent and the Issuing Bank from any and all claims and defenses, known or unknown as of the date hereof, with respect to the Credit Agreement and the other Loan Documents and the transactions contemplated thereby.
Section 7. Effect; Ratification.
(a) Except as expressly herein amended, the terms and conditions of the Credit Agreement and the other Loan Documents remain unchanged and continue to be in full force and effect. The amendments and waiver contained herein shall be deemed to have prospective application only, unless otherwise specifically stated herein. The Credit Agreement is hereby ratified and confirmed in all respects. Each reference to the Credit Agreement in any of the Loan
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Documents (including the Credit Agreement) shall be deemed to be a reference to the Credit Agreement, as amended by this Amendment.
(b) Nothing contained herein shall be deemed to constitute a waiver of compliance with any term or condition contained in the Credit Agreement or any of the other Loan Documents, or constitute a course of conduct or dealing among the parties. The Administrative Agent and the Lenders reserve all rights, privileges and remedies under the Loan Documents.
(c) Nothing in this Amendment is intended, or shall be construed, to constitute a novation or an accord and satisfaction of any of the Obligations or to modify, affect or impair the perfection, priority or continuation of the security interests in, security titles to or other Liens on any collateral (including the Collateral) securing the Obligations.
(d) This Amendment constitutes the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
(e) This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Amendment by facsimile transmission or by email in Adobe “.pdf” format shall be effective as delivery of a manually executed counterpart hereof.
Section 8. Further Assurances. The Borrower agrees to, and to cause any Loan Party to, take all further actions and execute such other documents and instruments as the Administrative Agent may from time to time reasonably request to carry out the transactions contemplated by this Amendment, the Loan Documents and all other agreements executed and delivered in connection herewith.
Section 9. Effect of Increase of Aggregate Revolving Commitments. The Administrative Agent and the Lenders agree that the Revolving Commitment of each of the Lenders immediately prior to the effectiveness of this Amendment shall be reallocated among the Lenders such that, immediately after the effectiveness of this Amendment in accordance with its terms, the Revolving Commitment of each Lender shall be as set forth on Exhibit B attached hereto. In order to effect such reallocations, assignments shall be deemed to be made among the Lenders in such amounts as may be necessary, and with the same force and effect as if such assignments were evidenced by the applicable Assignments and Acceptances (but without the payment of any related assignment fee), and no other documents or instruments shall be required to be executed in connection with such assignments (all of which such requirements are hereby waived). Further, to effect the foregoing, each Lender agrees to make cash settlements in respect of any outstanding Revolving Loans, either directly or through the Administrative Agent, as the Administrative Agent may direct or approve, such that after giving effect to this Amendment, each Lender holds Revolving Loans equal to its Pro Rata Share (based on the Revolving Commitment of each Lender as set forth on Exhibit B attached hereto).
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Section 10. Miscellaneous. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of TENNESSEE without regard to conflict of laws principles thereof. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns.
Section 11. Severability. In case any provision of or obligation under this Amendment shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to Revolving Credit Agreement and Waiver to be duly executed by their respective authorized officers as of the day and year first above written.
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BORROWER: |
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AMSURG CORP |
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Title: |
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Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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SUNTRUST BANK |
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As Administrative Agent, as Issuing Bank, and as a Lender |
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By: |
/s/ Dana Dhaliwal |
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Title: |
Director |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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REGIONS BANK |
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By: |
/s/ Vince Abler |
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Title: |
Vice President |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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BANK OF AMERICA, N.A. |
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By: |
/s/ H. Hope Walker |
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Title: |
Vice President |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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JPMORGAN CHASE BANK, N.A. |
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By: |
/s/ Dana Smith |
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Title: |
Authorized Officer |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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US BANK NATIONAL ASSOCIATION |
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By: |
/s/ Clifford S. Chaitman |
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Title: |
Assistant Vice President |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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BRANCH BANKING AND TRUST COMPANY |
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By: |
/s/ R. Andrew Beam |
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Title: |
Senior Vice President |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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FIFTH THIRD BANK, N.A.. |
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By: |
/s/ John Stringfield |
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Title: |
Vice President |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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KEYBANK NATIONAL ASSOCIATION. |
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By: |
/s/ Sukanya V. Raj |
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Title: |
Vice President and Portfolio Manager |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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UNION BANK, N.A. |
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By: |
/s/ Sarah Willett |
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Title: |
Vice President |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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WELLS FARGO BANK, N.A. |
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By: |
/s/ Michael C. Bash |
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Title: |
Officer |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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CITIBANK, N.A. |
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By: |
/s/ Zafar Khan |
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Title: |
Vice President |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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FIRST TENNESSEE BANK NATIONAL ASSOCIATION |
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By: |
/s/ Cathy Wind |
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Title: |
Senior Vice President |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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COMPASS BANK |
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By: |
/s/ Kara Van Duzee |
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Title: |
Senior Vice President |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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SYNOVUS BANK |
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By: |
/s/ Anne Lovette |
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Title: |
Senior Relationship Manager |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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CADENCE BANK, N.A. |
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By: |
/s/ William Crawford |
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Title: |
EVP |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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GOLDMAN SACHS BANK USA |
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By: |
/s/ Mark Walton |
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Title: |
Authorized Signatory |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
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LENDER: |
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AVENUE BANK |
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By: |
/s/ Carol S. Situs |
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Title: |
Senior Vice President |
Signature page to Fourth Amendment to Revolving Credit Agreement and Waiver
Schedule 1
Loan Parties
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Loan Party |
Tax Identification Number |
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AmSurg Corp. |
62-1493316 |
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AmSurg Holdings, Inc. |
62-1595888 |
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AmSurg EC Topeka, Inc. |
62-1512093 |
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AmSurg EC St. Thomas, Inc. |
62-1511996 |
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AmSurg EC Beaumont, Inc. |
62-1524208 |
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AmSurg KEC, Inc. |
62-1510489 |
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AmSurg EC Santa Fe, Inc. |
62-1523398 |
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AmSurg EC Washington, Inc. |
62-1506354 |
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AmSurg Torrance, Inc. |
62-1545685 |
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AmSurg Abilene, Inc. |
62-1555413 |
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AmSurg Suncoast, Inc. |
62-1555677 |
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AmSurg Lorain, Inc. |
62-1595307 |
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AmSurg La Jolla, Inc. |
62-1625304 |
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AmSurg Hillmont, Inc. |
62-1632685 |
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AmSurg Palmetto, Inc. |
62-1647404 |
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AmSurg Northwest Florida, Inc. |
62-1519549 |
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AmSurg Ocala, Inc. |
62-1650493 |
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AmSurg Maryville, Inc. |
62-1586143 |
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AmSurg Miami, Inc. |
62-1598504 |
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AmSurg Burbank, Inc. |
62-1619548 |
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AmSurg Melbourne, Inc. |
62-1625312 |
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AmSurg El Paso, Inc. |
62-1711537 |
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AmSurg Crystal River, Inc. |
62-1666189 |
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AmSurg Abilene Eye, Inc. |
62-1692556 |
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AmSurg Inglewood, Inc. |
62-1814134 |
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AmSurg Glendale, Inc. |
62-1807967 |
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AmSurg San Antonio TX, Inc. |
20-0075736 |
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AmSurg San Luis Obispo CA, Inc. |
20-1965555 |
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AmSurg Temecula CA, Inc. |
20-0095263 |
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AmSurg Escondido CA, Inc. |
20-1626979 |
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AmSurg Scranton PA, Inc. |
20-2853308 |
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AmSurg Arcadia CA Inc. |
20-4483684 |
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AmSurg Main Line PA, Inc. |
20-5408469 |
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AmSurg Oakland CA, Inc. |
20-5645841 |
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AmSurg Lancaster PA, Inc. |
20-5988960 |
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AmSurg Pottsville PA, Inc. |
26-0303835 |
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AmSurg Glendora CA, Inc. |
20-5732564 |
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AmSurg Kissimmee FL, Inc. |
62-1567628 |
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AmSurg Altamonte Springs FL., Inc. |
26-0289067 |
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AmSurg New Port Richey FL, Inc. |
62-1612176 |
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AmSurg Naples, Inc. |
62-1659906 |
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AmSurg EC Centennial, Inc. |
62-1511980 |
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Illinois NSC, Inc. |
20-2393903 |
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NSC Healthcare, Inc. |
84-1209756 |
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AmSurg Anesthesia Management Services, LLC |
27-1174941 |
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NSC RBO West, LLC |
26-3816052 |
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NSC RBO East, LLC |
27-3205481 |
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Long Beach NSC, LLC |
20-1048768 |
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Torrance NSC, LLC |
20-1048801 |
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DAVIS NSC, LLC |
20-5451784 |
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FULLERTON NSC, LLC |
20-3435683 |
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San Antonio NSC, LLC |
20-0322582 |
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Austin NSC, LLC |
20-4942934 |
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Twin Falls NSC, LLC |
20-8086602 |
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Ardmore NSC, LLC |
26-1651465 |
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KENWOOD NSC, LLC |
26-3055899 |
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Towson NSC, LLC |
20-0314129 |
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NSC West Palm, LLC |
76-0740666 |
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Tampa Bay NSC, LLC |
20-3447384 |
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CORAL SPRINGS NSC, LLC |
26-1649639 |
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WESTON NSC, LLC |
26-3435641 |
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Wilton NSC, LLC |
26-1653853 |
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Austin NSC, L.P. |
20-4943017 |
EXHIBIT A
EXHIBIT F
[form
of]
ACQUISITION INFORMATION PACKAGE
Pursuant to Section 7.13 of the Credit Agreement, AmSurg Corp. (the “Borrower”) shall deliver to SunTrust Bank, as Administrative Agent (with enough copies for each of the Lenders) the following information in connection with any Acquisition:
(1) the total consideration given in connection with any Acquisition in the following format:
(a) Cash: $
(b) Stock: $
(c) Contingent Consideration: $
(d) Personal Property: $
(e) Other Property: [identify type and value]
TOTAL: $
(2) summary financial information relating to the interest or entity to be acquired, including percentage interest being acquired and operating forecasts,
(3) (a) the Acquisition Pro Forma duly certified by the chief financial officer of the Borrower and (b) calculations of the chief financial officer of the Borrower demonstrating compliance on a Pro Forma Basis with the financial covenants contained in Article VI and Section 7.13 of the Credit Agreement after such Acquisition is completed.
As used herein, the “Credit Agreement” means that certain Revolving Credit Agreement dated as of May 28, 2010 among Borrower, SunTrust Bank, as Administrative Agent and a Lender, and the Lenders party thereto, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms.
EXHIBIT B
SCHEDULE 1.1(b)
REVOLVING COMMITMENTS
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Lender |
Revolving Commitment |
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SunTrust Bank |
$50,000,000 |
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Regions Bank |
$50,000,000 |
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Bank of America, N.A. |
$45,000,000 |
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JPMorgan Chase Bank, N.A. |
$39,000,000 |
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US Bank National Association |
$32,500,000 |
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Branch Banking and Trust Company |
$30,000,000 |
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Fifth Third Bank, N.A. |
$27,500,000 |
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KeyBank National Association |
$27,500,000 |
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Union Bank, N.A. |
$27,500,000 |
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Wells Fargo Bank, N.A. |
$27,500,000 |
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Citibank, N.A. |
$27,100,000 |
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First Tennessee Bank National Association |
$25,000,000 |
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Compass Bank |
$24,000,000 |
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Synovus Bank |
$20,000,000 |
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Cadence Bank, N.A. |
$10,000,000 |
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Goldman Sachs Bank USA |
$7,000,000 |
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Avenue Bank |
$5,400,000 |
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Total: |
$475,000,000 |
EXHIBIT C
REAFFIRMATION OF OBLIGATIONS UNDER LOAN DOCUMENTS
Reference is hereby made to that certain Revolving Credit Agreement dated as of May 28, 2010, among AmSurg Corp. (the “Borrower”), the Lenders party thereto and SunTrust Bank, as Administrative Agent (as previously amended and as further amended by the Fourth Amendment defined below, the “Credit Agreement”; capitalized terms used herein and not defined herein have the meanings ascribed to such terms in the Credit Agreement).
Each of the undersigned Loan Parties hereby: (i) agrees that (A) the amendments and waiver contained in the Fourth Amendment to Revolving Credit Agreement and Waiver dated as of the date hereof (the “Fourth Amendment”) shall not in any way affect the validity and/or enforceability of any Loan Document, or reduce, impair or discharge the obligations of such Person thereunder and (B) nothing in the Fourth Amendment is intended, or shall be construed, to constitute a novation or an accord and satisfaction of any of the Obligations or to modify, affect or impair the perfection, priority or continuation of the security interests in, security titles to or other Liens on any collateral (including the Collateral) securing the Obligations; (ii) reaffirms its continuing obligations owing to the Administrative Agent and the Lenders under each of the other Loan Documents to which such Person is a party; and (iii) confirms that the liens and security interests created by the Loan Documents continue to secure the Obligations.
Each of the undersigned Loan Parties (other than the Borrower) hereby represents and warrants to the Administrative Agent and the Lenders that each of the representations and warranties applicable to such Loan Party made by the Borrower in Section 4 of the Fourth Amendment are true and correct.
This Reaffirmation shall be construed in accordance with and be governed by the law of the State of Tennessee.
[Signature page follows]
IN WITNESS WHEREOF, each of the undersigned has duly executed and delivered this Reaffirmation of Obligations under Loan Documents as of June ___, 2012.
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AMSURG CORP.
By: _______________________________ Name: Title:
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AmSurg Holdings, Inc. AmSurg Anesthesia Management Services, LLC AmSurg EC Topeka, Inc. AmSurg EC St. Thomas, Inc. AmSurg EC Beaumont, Inc. AmSurg KEC, Inc. AmSurg EC Santa Fe, Inc. AmSurg EC Washington, Inc. AmSurg Torrance, Inc. AmSurg Abilene, Inc. AmSurg Suncoast, Inc. AmSurg Lorain, Inc. AmSurg La Jolla, Inc. AmSurg Hillmont, Inc. AmSurg Palmetto, Inc. AmSurg Northwest Florida, Inc. AmSurg Ocala, Inc. AmSurg Maryville, Inc. AmSurg Miami, Inc. AmSurg Burbank, Inc. AmSurg Melbourne, Inc. AmSurg El Paso, Inc. AmSurg Crystal River, Inc. AmSurg Abilene Eye, Inc. AmSurg Inglewood, Inc. AmSurg Glendale, Inc. AmSurg San Antonio TX, Inc. AmSurg San Luis Obispo CA, Inc. AmSurg Temecula CA, Inc. AmSurg Escondido CA, Inc. AmSurg Scranton PA, Inc. AmSurg Arcadia CA Inc. AmSurg Main Line PA, Inc. AmSurg Oakland CA, Inc. |
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AmSurg Lancaster PA, Inc. AmSurg Pottsville PA, Inc. AmSurg Glendora CA, Inc. AmSurg Kissimmee FL, Inc. AmSurg Altamonte Springs FL., Inc. AmSurg New Port Richey FL, Inc. AmSurg EC Centennial, Inc. AmSurg Naples, Inc. Illinois NSC, Inc. NSC Healthcare, Inc. NSC RBO West, LLC NSC RBO East, LLC Long Beach NSC, LLC Torrance NSC, LLC Davis NSC, LLC Fullerton NSC, LLC San Antonio NSC, LLC Austin NSC, LLC Twin Falls NSC, LLC Ardmore NSC, LLC Kenwood NSC, LLC Towson NSC, LLC Wilton NSC, LLC NSC West Palm, LLC Tampa Bay NSC, LLC Coral Springs NSC, LLC Weston NSC, LLC
By: _______________________________ Name: Title: |
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Austin NSC, L.P.
By: Austin NSC, LLC, its general partner
By: _______________________________ Name: Title: |
THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT (this “Amendment”), is made and entered into as of June 29, 2012, by and among AMSURG CORP., a Tennessee corporation (the “Company”), the other Credit Parties signatory hereto, The Prudential Insurance Company of America and the other holders of Notes (as defined in the Note Agreement defined below) that are signatories hereto (together with their successors and assigns, the “Noteholders”).
W I T N E S S E T H:
WHEREAS, the Company and the Noteholders are parties to a certain Note Purchase Agreement, dated as of May 28, 2010 (as amended by that certain First Amendment to Note Purchase Agreement dated as of April 6, 2011, by that certain Second Amendment to Note Purchase Agreement dated as of August 30, 2011 and as further amended, restated, supplemented or otherwise modified from time to time, the “Note Agreement”; capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Note Agreement), pursuant to which the Noteholders have purchased Notes from the Company;
WHEREAS, the Company has requested that the Noteholders amend certain provisions of the Note Agreement, waive certain Events of Default that have arisen under the Note Agreement and release AmSurg New Port Richey Anesthesia, LLC from its obligations under the Guaranty Agreement, and subject to the terms and conditions hereof, the Noteholders are willing to do so;
NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of all of which are acknowledged, the Company and the Noteholders agree as follows:
1. Amendments.
(a) Paragraph 5J of the Note Agreement is hereby amended by replacing such Paragraph in its entirety with the following:
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(ii) If (i) any Foreign Subsidiary is acquired or formed by the Company or a Wholly Owned Subsidiary that is a Domestic Subsidiary and (ii) at the time of acquisition or formation of such Foreign Subsidiary or at any time thereafter, the aggregate amount of Investments made by the Company or its Subsidiaries in Foreign Subsidiaries exceeds $1,000,000 (the date on which the aggregate of such Investments exceeds $1,000,000, the “Trigger Date”), the Company shall, or shall cause such Wholly Owned Subsidiary, within thirty (30) days after the Trigger Date (or such longer period (not to exceed 90 days after the Trigger Date) as the Required Holders may agree) to execute a Foreign Pledge Agreement pledging to the Collateral Agent sixty-five percent (65%) of the total voting Capital Stock of such Foreign Subsidiary and one hundred percent (100%)
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of the non-voting Capital Stock of such Foreign Subsidiary owned by the Company or such Wholly Owned Subsidiary as security for the Obligations, and deliver the original stock or other equity certificates evidencing such pledged Capital Stock, together with appropriate stock powers or other endorsements executed in blank, and provide to the Collateral Agent, all of which shall be in form and substance satisfactory to Collateral Agent. The Collateral Agent is hereby authorized to file such UCC financing statements, if applicable, to the extent necessary to perfect the Liens described herein.
(iii) In connection with the acquisition or formation of any Wholly Owned Subsidiary or other Subsidiary referenced in clauses (i) and (ii) above, the Company shall also cause the holders of the Notes to receive simultaneously with the documentation referenced above the resolution of the respective Person executing such documentation and an opinion letter issued by Company’s legal counsel regarding such matters as may be reasonably required by the Required Holders.
(iv) In connection with the acquisition or formation of any Subsidiary referenced in clauses (i) and/or (ii) immediately above, the Company shall cause the acquisition and formation of such Subsidiaries to be in compliance with all applicable Health Care Laws.
(v) Notwithstanding the requirements set forth in clause (i) of this paragraph 5J, neither the Company nor any Subsidiary shall be required to pledge or cause to be pledged to the Collateral Agent any Equity Interests acquired by the Company or its Subsidiaries after the Closing Day if the issuer of such Equity Interests does not, directly or indirectly, own, operate or manage a surgery center; provided, that, in no event shall the aggregate fair market value of all Equity Interests owned by the Company or its Subsidiaries in which the Collateral Agent does not have a perfected Lien exceed ten percent (10%) of the Company’s consolidated total assets, determined by reference to the consolidated financial statements of the Company and its Subsidiaries most recently delivered pursuant to paragraph 5A(i).
(b) Paragraph 6B of the Note Agreement is hereby amended by replacing subsection (vi) of such paragraph in its entirety with the following:
(vi) Indebtedness under the Credit Agreement, including refundings, refinancings and replacements thereof, and amendments or modifications to the Note Documents; provided, however, that the aggregate principal amount of such Indebtedness shall not at any time exceed $625,000,000, and all Guarantees thereof by Subsidiaries of the Company that have also guaranteed the Notes; and
(c) Paragraph 6E of the Note Agreement is hereby amended by adding the following at the end of such paragraph:
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Notwithstanding anything to the contrary in this paragraph 6E or otherwise, the Company will not, and will not permit any of its Domestic Subsidiaries to, make any Investment in any Foreign Subsidiary if such Investment, when taken together with all other Investments of the Company or its Domestic Subsidiaries in Foreign Subsidiaries, would exceed $15,000,000.
In determining the aggregate amount of Investments at any particular time: (a) the amount of any Investment represented by a Guarantee shall be taken at not less than the principal amount of the obligations guaranteed and still outstanding or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith; (b) there shall be included as an Investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (c) there shall be deducted in respect of each such Investment any amount received as a return of capital (but only by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution); and (d) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (b) may be deducted when paid. Further, the amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, forgiveness or conversion to equity of Indebtedness, or write‑ups, write‑downs or write‑offs with respect to such Investment (but subject to any applicable adjustment as provided in the preceding sentence).
(d) Paragraph 6N of the Note Agreement is hereby amended by replacing such paragraph in its entirety with the following:
6N. Acquisitions. The Company will not, and will not permit any Subsidiary to, make any Acquisition unless such Acquisition satisfies all of the following conditions:
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(e) Paragraph 10B of the Note Agreement is hereby amended by adding the following definitions of “Domestic Subsidiary”, “Foreign Pledge Agreement”, “Foreign Subsidiary” and “Third Amendment Effective Date” in proper alphabetical order:
“Domestic Subsidiary” shall mean any Subsidiary of the Company that is not a Foreign Subsidiary.
“Foreign Pledge Agreement” shall mean any pledge, hypothecation, charge or similar agreement, in form and substance satisfactory to Required Holders, whereby the Company and each of its presently existing and hereafter acquired Wholly Owned Subsidiaries that are Domestic Subsidiaries pledge and grant to the Collateral Agent a first priority perfected Lien in the Company’s and each such Wholly Owned Subsidiary’s presently existing and hereafter acquired right title, and interest in and to any Foreign Subsidiary.
“Foreign Subsidiary” shall mean any direct or indirect Subsidiary of the Company that is organized under the laws of a jurisdiction other than the United States of America, any State thereof or the District of Columbia.
“Third Amendment Effective Date” means June 29, 2012.
(f) Paragraph 10B of the Note Agreement is hereby amended by replacing the definitions of “Acquisition Information Package”, “Debt Basket Amount”, “EBITDA” and “Noteholder Share of the Net Disposition Proceeds” in their entirety with the following definitions:
“Acquisition Information Package” shall mean information delivered by Company to the holders of the Notes pursuant to paragraph 6N in the form of Exhibit E.
“Debt Basket Amount” means Indebtedness of the Company or its Subsidiaries not to exceed an aggregate principal amount of $50,000,000, which total permitted amount shall be increased each calendar year during the term of this Agreement by $5,000,000 and for clarity, the total Debt Basket Amount shall not exceed: (i) for the period from the Third Amendment Effective Date through June 30, 2013, $50,000,000; (ii) for the period from July 1, 2013 through June 30, 2014, $55,000,000; (iii) for the period from July 1, 2014 through June 30, 2015, $60,000,000; (iv) for the period from July 1, 2015 through June 30, 2016, $65,000,000; (v) for the period from July 1, 2016 through June 30, 2017, $70,000,000; (vi) for the period from July 1, 2017 through June 30, 2018, $75,000,000; (vii) for the period from July 1, 2018 through June 30, 2019,
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$80,000,000; (viii) for the period from July 1, 2019 through the Maturity Date, $85,000,000.
“EBITDA” shall mean, for the Company and its Subsidiaries on a consolidated basis for any period, an amount equal to the sum of Consolidated Net Income for such period plus, without duplication, and to the extent deducted in computing Consolidated Net Income for such period, the sum of (a) income taxes, (b) Consolidated Interest Expense, (c) depreciation and amortization expense, in each case determined on a consolidated basis in accordance with GAAP; (d) to the extent applicable, stock option compensation costs applicable under (and calculated in accordance with) FASB ASC 718; (e) all non-cash charges for such period taken for the impairment of goodwill in accordance with FASB ASC 350, but excluding any non-cash charge that will result in a cash charge in a future period; and (f) all documented fees and expenses actually paid in connection with the First Amendment and the NSC Acquisition in an aggregate amount not to exceed $10,000,000; provided, however, that (i) to the extent included in Consolidated Net Income, there shall be excluded in determining EBITDA for any period any gain or loss resulting from changes or adjustments in the fair value of earn-outs or other contingent consideration in accordance with FASB ASC 805-30-35; (ii) with respect to any Person that became a Subsidiary of, or was merged with or consolidated into, the Company or any Wholly Owned Subsidiary during such period, “EBITDA” shall also include the EBITDA of such Person during such period and prior to the date of such acquisition, merger or consolidation; and (iii), with respect to any Person that ceased to be a Subsidiary, or was the subject of a Disposition during any measurement period, “EBITDA” shall not include the EBITDA of such Person for such measurement period, such calculations under this proviso to be detailed with supporting documentation and measured to the Required Holders’ reasonable satisfaction.
“Noteholder Share of the Net Disposition Proceeds” shall mean, with respect to any offer to prepay pursuant to paragraph 4G, as determined on the date of the relevant Disposition, an amount equal to the Net Disposition Proceeds resulting from such Disposition multiplied by (a) the aggregate outstanding principal amount of the Notes, divided by (b) the sum of (i) the aggregate outstanding principal amount of the Notes, plus (ii) (A) the committed amount of the Revolving Commitments (as defined in the Credit Agreement, provided that such amount shall not exceed $625,000,000), until the termination of the Revolving Commitments (to the extent that the Company has not entered into a replacement Credit Agreement with Revolving Commitments that have not yet been terminated) and (B) thereafter, the aggregate amount of Revolving Credit Exposure (as defined in the Credit Agreement, provided that such amount shall not exceed $625,000,000).
(g) The Note Agreement is hereby amended by replacing Exhibit E attached thereto in its entirety with Exhibit A attached hereto.
2. Waiver
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The Company has informed the Noteholders that the Company failed to comply with the requirements of paragraph 5J of the Note Agreement following the creation of (i) AmSurg UK Limited, a Wholly Owned Subsidiary of the Company and (ii) AmSurg UK (London) Limited, a Wholly Owned Subsidiary of AmSurg UK Limited, resulting in an Event of Default under paragraph 7A of the Note Agreement (the “Specified Default”). Subject to the terms and conditions set forth herein, and in reliance upon the representations and warranties of the Company made herein, the Noteholders hereby waive the Specified Default. The foregoing waiver is a one-time waiver and is limited to the extent specifically set forth above and no other terms, covenants or provisions of the Note Agreement or any other Note Document are intended to be affected hereby, all of which remain in full force and effect. The Company acknowledges and agrees that the foregoing waiver shall not waive (or be deemed to be or constitute a waiver of) any other covenant, term or provision in the Note Agreement or hinder, restrict or otherwise modify the rights and remedies of the Noteholders or the Collateral Agent following the occurrence of any other present or future Default or Event of Default (whether or not related to the Specified Default) under the Note Agreement or any other Note Document.
3. Release of New Port Richey Anesthesia, LLC. Subject to the terms and conditions set forth herein, and in reliance upon the representations and warranties of the Company made herein, the Noteholders hereby release AmSurg New Port Richey Anesthesia, LLC from any and all liabilities and other obligations under the Guaranty Agreement.
4. Conditions to Effectiveness of this Amendment. Notwithstanding any other provision of this Amendment and without affecting in any manner the rights of the holders of the Notes hereunder, it is understood and agreed that this Amendment shall not become effective, and the Company shall have no rights under this Amendment, until the Noteholders shall have received (i) reimbursement or payment of its costs and expenses incurred in connection with this Amendment or the Note Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP, counsel to the Noteholders), and (ii) each of the following documents:
(a) Executed counterparts to this Amendment from the Company, each of the Guarantors and the Noteholders;
(b) A duly executed copy of an amendment to the Credit Agreement, in form and substance satisfactory to the Noteholders and their counsel;
(c) Such other documents, instruments, agreements, certifications and opinions as any Noteholder may reasonably request.
5. Representations and Warranties. To induce the Noteholders to enter into this Amendment, each Credit Party hereby represents and warrants to the Noteholders that:
(a) The execution, delivery and performance by such Credit Party of this Amendment (i) are within such Credit Party’s power and authority; (ii) have been duly authorized by all necessary corporate and shareholder action; (iii) are not in contravention of any provision of such Credit Party’s certificate of incorporation or bylaws or other organizational documents; (iv) do not violate any law or regulation, or any order or decree of any Governmental Authority; (v) do not conflict with or result in the breach or termination of, constitute a default under or accelerate
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any performance required by, any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Credit Party or any of its Subsidiaries is a party or by which such Credit Party or any such Subsidiary or any of their respective property is bound; (vi) do not result in the creation or imposition of any Lien upon any of the property of such Credit Party or any of its Subsidiaries; and (vii) do not require the consent or approval of any Governmental Authority or any other person;
(b) This Amendment has been duly executed and delivered for the benefit of or on behalf of each Credit Party and constitutes a legal, valid and binding obligation of each Credit Party, enforceable against such Credit Party in accordance with its terms;
(c) After giving effect to this Amendment, the representations and warranties contained in the Note Agreement and the other Note Documents are true and correct in all material respects, and no Default or Event of Default has occurred and is continuing as of the date hereof;
(d) The execution, delivery, performance and effectiveness of this Amendment will not: (a) impair the validity, effectiveness or priority of the Liens granted pursuant to any Note Document, and such Liens continue unimpaired with the same priority to secure repayment of all of the applicable Obligations, whether heretofore or hereafter incurred, and (b) require that any new filings be made or other action taken to perfect or to maintain the perfection of such Liens;
(e) Since the date of the most recent financial statements of the Company described in paragraph 5A(i) of the Note Agreement, there has been no change which has had or could reasonably be expected to have a Material Adverse Effect; and
(f) As of the date hereof, the parties listed as signatories to this Amendment represent a true, correct and complete list of the all the Credit Parties.
6. Reaffirmations and Acknowledgments.
(a) Reaffirmation of Guaranty. Each Guarantor consents to the execution and delivery by the Company of this Amendment and jointly and severally ratifies and confirms the terms of the Guaranty Agreement with respect to the indebtedness now or hereafter outstanding under the Note Agreement as amended hereby and all promissory notes issued thereunder. Each Guarantor acknowledges that, notwithstanding anything to the contrary contained herein or in any other document evidencing any indebtedness of the Company to the Noteholders or any other obligation of the Company, or any actions now or hereafter taken by the Noteholders with respect to any obligation of the Company, the Guaranty Agreement (i) is and shall continue to be a primary obligation of the Guarantors, (ii) is and shall continue to be an absolute, unconditional, joint and several, continuing and irrevocable guaranty of payment, and (iii) is and shall continue to be in full force and effect in accordance with its terms. Nothing contained herein to the contrary shall release, discharge, modify, change or affect the original liability of the Guarantors under the Guaranty Agreement.
(b) Acknowledgment of Perfection of Security Interest. Each Credit Party hereby acknowledges that, as of the date hereof, the security interests and liens granted to the Collateral Agent under the Security Documents for the benefit of the Noteholders and other secured parties
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are in full force and effect, are properly perfected and are enforceable in accordance with the terms of the Note Agreement, the Security Documents and the other Note Documents.
7. Release. In consideration of the amendments contained herein, each Credit Party hereby waives and releases each of the Noteholders from any and all claims and defenses, known or unknown as of the date hereof, with respect to the Note Agreement and the other Note Documents and the transactions contemplated thereby.
8. Effect of Amendment. Except as set forth expressly herein, all terms of the Note Agreement, as amended hereby, and the other Note Documents shall be and remain in full force and effect and shall constitute the legal, valid, binding and enforceable obligations of the Company and the other Credit Parties party thereto to all holders of the Notes. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the holders of the Notes under the Note Agreement, nor constitute a waiver of any provision of the Note Agreement. From and after the date hereof, all references to the Note Agreement shall mean the Note Agreement as modified by this Amendment. This Amendment shall constitute a Note Document for all purposes of the Note Agreement.
9. Governing Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York and all applicable federal laws of the United States of America.
10. No Novation. This Amendment is not intended by the parties to be, and shall not be construed to be, a novation of the Note Agreement or an accord and satisfaction in regard thereto.
11. Costs and Expenses. The Company agrees to pay on demand all costs and expenses of the Noteholders in connection with the preparation, execution and delivery of this Amendment, including, without limitation, the reasonable fees and out-of-pocket expenses of outside counsel for the Noteholders with respect thereto.
12. Counterparts. This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of this Amendment by facsimile transmission or by electronic mail in pdf form shall be as effective as delivery of a manually executed counterpart hereof.
13. Binding Nature. This Amendment shall be binding upon and inure to the benefit of the parties hereto, any other holders of Notes from time to time and their respective successors, successors-in-titles, and assigns.
14. Entire Understanding. This Amendment sets forth the entire understanding of the parties with respect to the matters set forth herein, and shall supersede any prior negotiations or agreements, whether written or oral, with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, under seal in the case of the Company and the Guarantors, by their respective authorized officers as of the day and year first above written.
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Company: |
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AMSURG CORP |
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[SIGNATURE PAGE TO THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT]
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GUARANTORS:
AmSurg Holdings, Inc. AmSurg Anesthesia Management Services, LLC AmSurg EC Topeka, Inc. AmSurg EC St. Thomas, Inc. AmSurg EC Beaumont, Inc. AmSurg KEC, Inc. AmSurg EC Santa Fe, Inc. AmSurg EC Washington, Inc. AmSurg Torrance, Inc. AmSurg Abilene, Inc. AmSurg Suncoast, Inc. AmSurg Lorain, Inc. AmSurg La Jolla, Inc. AmSurg Hillmont, Inc. AmSurg Palmetto, Inc. AmSurg Northwest Florida, Inc. AmSurg Ocala, Inc. AmSurg Maryville, Inc. AmSurg Miami, Inc. AmSurg Burbank, Inc. AmSurg Melbourne, Inc. AmSurg El Paso, Inc. AmSurg Crystal River, Inc. AmSurg Abilene Eye, Inc. AmSurg Inglewood, Inc. AmSurg Glendale, Inc. AmSurg San Antonio TX, Inc. AmSurg San Luis Obispo CA, Inc. AmSurg Temecula CA, Inc. AmSurg Escondido CA, Inc. AmSurg Scranton PA, Inc. AmSurg Arcadia CA Inc. AmSurg Main Line PA, Inc. AmSurg Oakland CA, Inc. AmSurg Lancaster PA, Inc. AmSurg Pottsville PA, Inc. AmSurg Glendora CA, Inc. AmSurg Kissimmee FL, Inc. AmSurg Altamonte Springs FL., Inc. AmSurg New Port Richey FL, Inc. AmSurg EC Centennial, Inc. AmSurg Naples, Inc. Illinois NSC, Inc. NSC Healthcare, Inc.
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[SIGNATURE PAGE TO THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT] |
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NSC RBO West, LLC NSC RBO East, LLC Long Beach NSC, LLC Torrance NSC, LLC Davis NSC, LLC Fullerton NSC, LLC San Antonio NSC, LLC Austin NSC, LLC Twin Falls NSC, LLC Ardmore NSC, LLC Kenwood NSC, LLC Towson NSC, LLC Wilton NSC, LLC NSC West Palm, LLC Tampa Bay NSC, LLC Coral Springs NSC, LLC Weston NSC, LLC
By: _/s/ Christopher R. Kelly___________ Name: Christopher R. Kelly Title: Vice President
Austin NSC, LP
By: Austin NSC, LLC, its general partner
By: _/s/ Christopher R. Kelly___________ Name: Christopher R. Kelly Title: Vice President |
[SIGNATURE PAGE TO THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT]
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NOTEHOLDERS: THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Billy Greer________________________ Senior Vice President
PRUCO LIFE INSURANCE COMPANY
By: /s/ Billy Greer________________________ Assistant Vice President
PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY
By: Prudential Investment Management, Inc., as investment manager
By: /s/ Billy Greer__________________ Senior Vice President
forethought life insurance company
By: Prudential Private Placement Investors, L.P. (as Investment Advisor)
By: Prudential Private Placement Investors, Inc. (as its General Partner)
By: /s/ Billy Greer__________________ Senior Vice President
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[SIGNATURE PAGE TO THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT]
Exhibit A
EXHIBIT E
FORM OF ACQUISITION INFORMATION PACKAGE
Pursuant to paragraphs 6N of the Note Purchase Agreement, AmSurg Corp. (the “Company”) shall deliver to the holders of the Notes (as defined in the Note Purchase Agreement) the following information in connection with any Acquisition:
(1) the total consideration given in connection with any Acquisition in the following format:
(a) Cash: $
(b) Stock: $
(c) Contingent Consideration: $__________
(d) Personal Property: $
(e) Other Property: [identify type and value]
TOTAL: $__________
(2) summary financial information relating to the interest or entity to be acquired, including percentage interest being acquired and operating forecasts,
(3) (a) the Acquisition Pro Forma duly certified by the chief financial officer of the Company and (b) calculations of the chief financial officer of the Company demonstrating compliance on a Pro Forma Basis with the financial covenants contained in paragraph 6A of the Note Purchase Agreement after such Acquisition is completed.
As used herein, the “Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of May 28, 2010 among the Company, The Prudential Insurance Company of America and the other Purchasers party thereto as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms.