EXHIBIT 10.35
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT (this "Amendment"), made as of December 31, 2001,
is by and among Bank of America, N.A., (the "Bank"), Jacksonville Beach Surgery
Center, L.P., a Tennessee limited partnership (the "Borrower"), and Symbion
Ambulatory Resource Centres, Inc., a Tennessee corporation (the "Guarantor").
RECITALS
Bank, Borrower and Guarantor are parties to a Loan and Security
Agreement dated June 15, 2001 (as amended from time to time, the "Loan
Agreement"). Capitalized terms not otherwise defined in this Amendment shall
have the meaning provided in the Loan Agreement. Borrower has requested that
Bank make certain changes to the Loan Agreement, and the Bank is willing to do
so, subject, among other things, to the execution of this Amendment and
compliance with the terms hereof.
NOW, THEREFORE, the parties to this Amendment hereby agree as
follows:
Article I. Amendment to Loan Agreement. The parties hereto amend the
Loan Agreement by deleting Section 6.15(c) in its entirety.
Article II. General.
Section 2.1 Loan Agreement. Except as amended hereby, the
provisions of the Loan Agreement shall remain in full force and effect.
References in the Loan Agreement and the other Loan Documents shall be
references to the Loan Agreement as amended by this Amendment.
Section 2.2 Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of Tennessee without
reference to its choice of law rules.
Section 2.3 Execution in Counterparts. This Amendment may be
executed in one or more counterparts, each of which shall be considered an
original instrument, but all of which shall be considered one and the same
agreement, and shall become binding when one or more counterparts have been
signed by each of the parties and delivered to each of the parties.
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Section 2.4 Representations. Borrower hereby makes the following
representations and warranties:
(a) as of the date hereof, Borrower has no defense against
payment of any or all of the Obligations;
(b) as of the date hereof, no Event of Default or Unmatured
Default has occurred or is continuing (after giving effect to this Amendment).
Section 2.5 Waiver. Bank hereby waives any breach by Borrower of
the covenant in Section 6.15(c) of the Loan Agreement prior to the date hereof.
The foregoing waiver shall not apply to any other provision of the Loan
Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
BANK: BORROWER:
BANK OF AMERICA, N.A. JACKSONVILLE SURGERY CENTER, L.P.
By: SARC/Jacksonville, Inc., its General
Partner
By:
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Title: By:
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Title:
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GUARANTOR:
SYMBION AMBULATORY RESOURCE
CENTRES, INC.
By:
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Title:
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By:
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Title:
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The undersigned guarantor acknowledges the foregoing Amendment and agrees that
its Guaranty and Suretyship Agreement is not affected thereby and remains in
full force and effect.
SYMBION, INC.
By:
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Title:
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