EXHIBIT 10
FOURTH AMENDMENT TO
AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT
AMONG
AMSURG CORP.,
AS BORROWER
ALL THOSE PARTIES HERETO IDENTIFIED HEREIN
AS "LENDERS",
AS LENDERS
AND
SUNTRUST BANK,
AS A LENDER AND AS
"ADMINISTRATIVE AGENT" (AS DEFINED HEREIN)
FOR THE LENDERS
AMENDMENT DATE: MARCH 10, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(this "Fourth Amendment") is made and entered into as of March 10, 2004 (the
"Fourth Amendment Date") by and among AMSURG CORP., a Tennessee corporation (the
"Borrower"), the several banks and other financial institutions from time to
time party hereto (the "Lenders"), and SUNTRUST BANK, in its capacity as
Administrative Agent for the Lenders (the "Administrative Agent").
RECITALS:
1. The Borrower, Administrative Agent and certain lenders entered into
that certain Amended and Restated Revolving Credit Agreement dated May 5, 2000,
as amended by that certain First Amendment to Amended and Restated Revolving
Credit Agreement dated June 22, 2001, as further amended by that certain Second
Amendment to Amended and Restated Revolving Credit Agreement dated February 5,
2003 and as further amended by that certain Third Amendment to Amended and
Restated Revolving Credit Agreement dated March 4, 2003 (as amended, the
"Agreement").
2. The Borrower desires that the credit facility established under the
Agreement be increased and certain other terms described in the Agreement be
amended.
3. Subject to the terms and conditions of this Amendment, the Lenders
severally, to the extent of their respective Commitments, are willing to
increase the credit facilities to Borrower and change certain terms under the
Agreement.
4. The Borrower, Administrative Agent and the Lenders desire to amend
the Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the Borrower, the Lenders and the Administrative Agent
agree as follows:
1. Capitalized terms used herein, but not expressly defined herein,
shall have the meaning given to such terms in the Agreement. In addition
thereto, henceforth, the terms "Fourth Amendment" and "Fourth Amendment Date" as
defined hereinabove in the preamble hereto together with the term "Revised
Schedule 1.1", as defined in Paragraph 3 hereinbelow shall be deemed
incorporated by reference into Section 1.1 of the Agreement in the appropriate
alphabetical order, and made a part thereof.
2. The definition of "Applicable Margin" in Section 1.1 of the
Agreement is hereby amended and restated as follows:
"APPLICABLE MARGIN" shall mean with respect to the Letter of Credit
Fee and all Revolving Loans outstanding on any date, the number of basis
points per annum determined by reference to the applicable Leverage Ratio
in effect on such date in accordance with the table set forth below,
provided, that a change in the Applicable Margin resulting from a change
in the Leverage Ratio shall be
effective on the second Business Day after which the Borrower is required
to deliver the financial statements required by Section 5.1(a) or (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 certificate, the Applicable Margin shall be
at the highest level until such time as such financial statements and
certificate are delivered, at which time the Applicable Margin shall be
determined as provided above.
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Leverage Ratio Less than 0.5x Greater than Greater than Greater than Greater than
or equal to or equal to or equal to or equal to
0.5x and Less 1.0x and Less 1.5x and Less 2.0x
than 1.0x than 1.5x than 2.0x
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Applicable Margin 125 150 175 200 225
for Eurodollar
Loans and Letter basis points basis points basis points basis points basis points
of Credit Fee
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Applicable Margin 25 50 75 100 125
for Base Rate
Loans basis points basis points basis points basis points basis points
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Commitment Fee 37.5 50.0 50.0 50.0 50.0
basis points basis points basis points basis points basis points
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3. To evidence the increase of the credit facility under the Agreement
from $100,000,000 to $125,000,000, the definition of "Revolving Commitment" in
Section 1.1 of the Agreement is hereby amended and restated as follows:
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit in an aggregate principal amount not
exceeding the amount set forth with respect to such Lender on the Revised
Schedule 1.1 (attached to the Fourth Amendment of this Agreement and as
may hereinafter be amended or supplemented from time to time), or in the
case of a Person becoming a Lender after the Fourth Amendment Date, the
amount of the assigned "Revolving Commitment" as provided in the
Assignment and Acceptance Agreement executed by such Person as an
assignee, as the same may be changed pursuant to terms hereof.
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4. Article II entitled "Amount and Terms of the Commitments" of the
Agreement is hereby amended by adding the following Section immediately after
Section 2.20 therein:
SECTION 2.21 INCREASE OF REVOLVING COMMITMENTS; ADDITIONAL LENDERS.
(a) So long as no Default or Event of Default has occurred and is
continuing, Borrower may, from time to time during the term of this
Agreement, upon prior notice to the Administrative Agent (which shall
promptly notify each Lender following its receipt thereof), propose to
increase the Aggregate Revolving Commitments from $125,000,000.00 up to an
aggregate amount that would not exceed $150,000,000.00 (the amount of any
such increase, the "Additional Commitment Amount"). Each Lender shall have
the right for a period of ten (10) Business 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. No Lender shall
have any obligation to increase its Revolving Commitment and any decision
by a Lender to increase its Revolving Commitment shall be made in its sole
discretion independently from any other Lender. Any Lender which does not
respond within such ten (10) Business Day period shall be deemed to have
advised the Administrative Agent and the Borrower that it elected not to
increase its Revolving Commitment.
(b) If any one or more Lenders shall elect not to increase its
Revolving Commitment pursuant to subsection (a) of this Section (each a
"Non-Consenting Lender"), the Administrative Agent shall, promptly after
the end of such ten (10) Business Day period or promptly after the date
the Administrative Agent shall have received all written responses from
the Lenders, whichever shall occur first, notify all other Lenders (the
"Consenting Lenders") of the amount of the Additional Commitment Amount
that remains unsubscribed (the "Unsubscribed Amount"). Each such
Consenting Lender shall have the right for a period of five (5) Business
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 up to the remaining Unsubscribed Amount. The sum of
the increases in the Revolving Commitments of the Consenting Lenders
pursuant to subsections (a) and (b) of this Section shall not in the
aggregate exceed the Additional Commitment Amount; provided, however, that
if accepted by the Borrower, and subject to the right of any Consenting
Lender to promptly revoke its prior election to increase its Revolving
Commitment in such event, such increases in the Revolving Commitments of
the Consenting Lenders may exceed the Unsubscribed Amount (but shall in no
event cause the Aggregate Revolving Commitments in effect to exceed
$150,000,000.00). If the sum of the additional increases in the Revolving
Commitments of the Consenting Lenders pursuant to this subsection (b)
exceeds the Unsubscribed Amount, or any greater amount accepted by the
Borrower as provided in the immediately preceding sentence, then the
additional increases in Revolving Commitments pursuant to this
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subsection (b) shall be reduced pro-rata such that amount of the
Consenting Lenders' Revolving Commitments increased pursuant to this
subsection (b) shall not exceed the Unsubscribed Amount or such greater
amount, as applicable.
(c) If the Consenting Lenders shall not increase their Revolving
Commitments pursuant to subsection (a) and (b) of this Section in an
amount equal to the Additional Commitment Amount, then not later than five
(5) Business Days prior to the effective date of the increase in the
Revolving Commitments, the Borrower may designate in writing to the
Administrative Agent other banks or financial institutions which at the
time agree to become parties to this Agreement (each an "Additional
Lender"); provided, however, that any new bank or financial institution
must be reasonably acceptable to the Administrative Agent. The sum of the
increases in the Revolving Commitments of the Consenting Lenders pursuant
to subsections (a) and (b), plus the Commitments of the Additional Lenders
pursuant to this subsection (c), shall not in the aggregate exceed the
Additional Commitment Amount.
(d) An increase in the aggregate amount of the Revolving
Commitments pursuant to this SECTION 2.21 shall become effective upon the
receipt by the Administrative Agent of an agreement in form and substance
satisfactory to the Administrative Agent signed by the Borrower, by each
Additional Lender and by each Consenting Lender, setting forth the new
Revolving Commitments of such Lenders and setting forth the agreement of
each Additional Lender to become a party to this Agreement and to be bound
by all the terms and provisions hereof, together with such evidence of
appropriate authorization on the part of the Borrower with respect to the
increase in the Revolving Commitments, such opinions of counsel for the
Borrower with respect to the increase in the Revolving Commitments as the
Administrative Agent may reasonably request, and such other certificates
and documents as the Administrative Agent may reasonably request.
(e) Upon the acceptance of any such agreements and documentation
by the Administrative Agent, the Aggregate Revolving Commitments shall
automatically be increased by the amount of the Revolving Commitments
added through such agreements and this Agreement shall automatically be
deemed amended to reflect the Revolving Commitments of all Lenders after
giving effect to such additional Revolving Commitments and Additional
Lenders, as applicable.
(f) Upon any increase in the aggregate amount of the Revolving
Commitments pursuant to this SECTION 2.21 that is not pro rata among all
Lenders, and effective upon such increase, the amount of the
participations held by the Lenders (including any Additional Lenders) in
the Revolving Credit Exposure shall be adjusted such that, after giving
effect to such adjustments, each Lender (including each Additional Lender)
shall hold participations in each such Revolving Credit Exposure in the
proportion of its respective Revolving
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Commitment bears to the aggregate Revolving Commitments after giving
effect to such increase.
5. Section 4.14 entitled "Subsidiaries" of the Agreement is hereby
amended to (i) delete "Schedule 4.14" and (ii) replace with "Revised Schedule
4.14", which Revised Schedule 4.14 is attached to the Fourth Amendment to the
Agreement.
6. Section 5.11 entitled "Intercompany Loans and Third Party Notes" of
the Agreement is hereby amended and restated in its entirety as follows:
SECTION 5.11 INTERCOMPANY LOANS AND THIRD PARTY NOTES. Within
fifteen (15) days after receipt of the same, the Borrower shall deliver to
the Administrative Agent on behalf of all Lenders appropriate Assignment
and Security Agreements, together with all notes, loan agreements,
security agreements, guaranties, and financing statements evidenced
thereby, obtained by the Borrower in connection with any Intercompany
Loans and Third Party Notes made and/or received by Borrower at any time
after the Closing Date; provided, however, that promissory notes dated
after the Third Amendment Date (a) evidencing Intercompany Loans in an
amount of less than $200,000.00 shall be excluded from such delivery and
assignment subject to a maximum exclusion of $6,000,000.00 in the
aggregate of such Intercompany Loans and (b) evidencing Third Party Notes
in an amount of less than $100,000.00 shall be excluded from such delivery
and assignment subject to a maximum exclusion of $1,000,000.00 in the
aggregate of such Third Party Notes.
7. Section 6.4 entitled "Consolidated Net Worth" of the Agreement is
amended and restated in its entirety as follows:
SECTION 6.4 CONSOLIDATED NET WORTH. The Borrower, on a consolidated
basis, shall maintain at all times a Consolidated Net Worth, as measured
on the last day of each fiscal quarter, of not less than (a)
$194,728,000.00 plus (b) fifty percent (50%) of its cumulative positive
Consolidated Net Income since December 31, 2002 plus (c) one hundred
percent (100%) of the net proceeds received from the issuance, sale, or
disposition of the Borrower's capital stock (common, preferred, or
special), converted into or exchanged for capital stock, and any rights,
options, warrants, and similar instruments from December 31, 2002 to any
date of determination less (d) up to $50,000,000.00 for permitted treasury
stock purchases, if applicable, from December 31, 2002 to any date of
determination.
8. Section 7.5 entitled "Restricted Payments" of the Agreement shall be
amended and restated in its entirety as follows:
SECTION 7.5 RESTRICTED PAYMENTS. Except for dividends payable from a
Wholly Owned Subsidiary to the Borrower, the Borrower will not, and will
not permit any of its corporate Subsidiaries to, declare or make, or agree
to pay or make, directly or indirectly, any dividend on any class of its
stock, or make any
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payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement, defeasance or
other acquisition of, any shares of treasury stock (each, a "Restricted
Payment"); provided however the Borrower shall be permitted after the
Fourth Amendment Date to purchase in the aggregate during the remaining
term of this Agreement treasury stock totaling no greater than $25,000,000
plus fifty percent (50%) of its cumulative positive Consolidated Net
Income since December 31, 2003.
9. Section 7.6(c) of the Agreement shall be amended and restated in its
entirety as follows:
(c) subject to Section 2.9(b), the sale or other disposition of such
assets in an amount not to exceed in the aggregate five percent (5%) of
the Borrower's consolidated total assets as determined as of the date of
any sale or disposition and as calculated on a cumulative basis measured
from the Fourth Amendment Date.
10. Subsection (a)(iii) of Section 7.13 entitled "Acquisitions" of the
Agreement shall be amended and restated in its entirety as follows:
(iii) the aggregate number of Acquisitions, in a rolling
twelve (12) month period does not exceed twelve (12); provided,
however that if the sum of the aggregate Revolving Commitment of all
Lenders less an amount equal to all outstanding Revolving Loans,
less an amount equal to the LC Exposure, less the pro forma cost of
any proposed Acquisition is greater than or equal to $50,000,000.00,
the limitations set forth in this Section 7.13(a)(iii) shall not
apply;
11. The amendments to the Agreement set forth herein shall become
effective on the Fourth Amendment Date. Except as set forth expressly herein,
all terms of the Agreement shall remain unchanged. It is intended by the Parties
that this Fourth Amendment shall not constitute a novation of the Agreement.
12. To induce all other parties to enter into this Fourth Amendment (A)
each party hereby restates and renews each and every representation and warranty
heretofore made by it under, or in connection with, the execution and delivery
of, the Agreement as of the Fourth Amendment Date, except to the extent that any
such representation or warranty relates to a specific prior date; (B) each party
hereby restates, ratifies and reaffirms each and every term and condition set
forth in the Agreement, as amended hereby, and in the Security Documents,
effective as of the date hereof; and (C) each party hereby certifies that no
Default or Event of Default has occurred and is continuing (after giving effect
to this Fourth Amendment).
13. The following shall constitute express conditions precedent to any
obligations of the Lenders hereunder becoming effective:
(a) the Administrative Agent shall have received a fully executed,
original of this Fourth Amendment;
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(b) each Lender whose Revolving Commitment is being altered as a
result of this Fourth Amendment shall have received an Amended and
Restated Revolving Credit Note executed by Borrower in conformity
herewith, in exchange for such Lender's existing Revolving Credit Note;
(c) the secretary or assistant secretary of the Borrower shall have
executed and delivered to the Administrative Agent a certificate, in form
satisfactory to the Administrative Agent, confirming corporate authority
and officer incumbency in respect of the execution of this Fourth
Amendment and the Amended and Restated Revolving Credit Notes described
above;
(d) legal counsel to the Borrower shall have issued its opinion in
respect of the foregoing, in a form satisfactory to the Administrative
Agent;
(e) the Administrative Agent shall have received and approved the
unaudited consolidated financial statements of Borrower and its
Subsidiaries for the fiscal year ended 2003, including balance sheets,
income and cash flow statements which have been prepared in conformity
with GAAP and such other financial information as the Administrative Agent
may request;
(f) there shall not have occurred a material adverse change since
the date of the most recently filed public filing made with the Securities
and Exchange Commission, in the business, assets, liabilities (actual or
contingent), operations, conditions (financial or otherwise) or prospects
of Borrower and its Subsidiaries taken as a whole or in the facts and
information regarding such entities as represented to date;
(g) there exists no Default or Event of Default under the Agreement,
Security Documents or any related documentation or instruments;
(h) the Administrative Agent shall have received certified copies of
the articles of incorporation or other charter documents of the Borrower,
together with certificates of good standing or existence, as may be
available from the Secretary of State of the jurisdiction of incorporation
of the Borrower and each other jurisdiction where the Borrower is required
to be qualified to do business as a foreign corporation;
(i) the Administrative Agent shall have received certified copies of
all required consents, approvals, authorizations, registrations, and
filings required to be made or obtained by the Borrower and all Loan
Parties in connection with the Agreement;
(j) the Administrative Agent shall have received duly executed
Notices of Borrowing, if applicable;
(k) receipt by Administrative Agent of all government, shareholder
and third-party consents and approvals necessary or desirable in
connection with
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the transactions contemplated hereby in a form acceptable to
Administrative Agent;
(l) receipt by Administrative Agent of all fees and other amounts
due and payable on or prior to the Fourth Amendment Date, including
reimbursement or payment of all out-of-pocket expenses (including
reasonable fees, charges and disbursements of counsel to the
Administrative Agent and filing fees, recording costs, indebtedness tax
and similar expenses) required to be reimbursed or paid by the Borrower
hereunder; and
(m) receipt of all other documents and information as Administrative
Agent may request.
14. The Borrower agrees that its obligations are valid and binding,
enforceable in accordance with their respective terms, subject to no defense,
counterclaim, or objection.
15. This Fourth Amendment may be executed in any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument and will be
effective on the Fourth Amendment Date upon execution by Borrower,
Administrative Agent and the Lenders.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment
to be duly executed by their respective authorized officers as of the day and
year first above written.
BORROWER:
AMSURG CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: CFO
Fourth Amendment
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SUNTRUST BANK
as Administrative Agent, as Issuing Bank,
and as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Director
Fourth Amendment
NAME OF LENDER:
Bank of America, N.A.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: SVP
Fourth Amendment
NAME OF LENDER:
U.S. Bank, N.A.,
as a Lender
By: /s/ ▇. ▇▇▇▇▇▇▇
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Title: S.V.P.
NAME OF LENDER:
Key Corporate Capital, Inc.,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
NAME OF LENDER:
Standard Federal Bank N.A.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Assistant Vice President
