Attached files
file | filename |
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8-K - FORM 8-K - AMSURG CORP | g28056e8vk.htm |
EX-2.1 - EX-2.1 - AMSURG CORP | g28056exv2w1.htm |
EX-10.1 - EX-10.1 - AMSURG CORP | g28056exv10w1.htm |
Exhibit 10.2
Execution Version
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT (this Amendment), is made and entered into
as of August 30, 2011, 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 (the First Amendment), 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, in connection with the First Amendment, the Company entered into that certain Merger
Agreement, dated as of April 7, 2011, by and among the Company, AmSurg Merger Corporation, National
Surgical Care, Inc. and the other parties thereto (the Merger Agreement);
WHEREAS, the Company intends to modify the structure and terms of the Merger Agreement
pursuant to the terms of that certain Asset Purchase Agreement, dated as of August 23, 2011, by and
among the Company, AmSurg Holdings, Inc., National Surgical Care, Inc., AmSurg Merger Corporation
and Brazos GP Partners, LLC; and
WHEREAS, the Company has requested that the Noteholders amend certain provisions of the Note
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 2B of the Note Agreement is hereby amended by replacing such Paragraph in its
entirety with the following:
Increase in Interest Rate after a Major Acquisition. If, immediately
following any Major Acquisition (and the incurrence of Indebtedness in connection
therewith), the Leverage Ratio exceeds 3.25:1.00, then, commencing with the first
day of the first fiscal quarter immediately following such Major Acquisition, the
per annum stated interest rate on the outstanding Notes shall
automatically be increased by 0.75% per annum until the later of (i) the first day
of the fifth fiscal quarter immediately following such Major Acquisition and (ii)
the date on which Company has delivered to the holders of the Notes an Officers
Certificate (x) demonstrating that the Leverage Ratio on the last day of any Fiscal
Quarter ending after such Major Acquisition does not exceed 3.25:1.0 and (y)
certifying that no Default or Event of Default has occurred, at which time the per
annum stated interest rate on the outstanding Notes shall automatically decrease to
the original stated interest rate.
(b) Paragraph 6A(1) of the Note Agreement is hereby amended by replacing such Paragraph in its
entirety with the following:
6A(1) Leverage Ratio. The Company shall maintain, on a consolidated basis and
as calculated at the end of each Fiscal Quarter, a Leverage Ratio of not greater
than 3.25 to 1.00; provided however, that if, immediately following a Major
Acquisition (and the incurrence of Indebtedness in connection therewith), the
Leverage Ratio exceeds 3.25:1.00, then with respect to the calendar quarter in which
such Major Acquisition is closed and each of the three immediately following
calendar quarters, the Company shall maintain a Leverage Ratio of not greater than
3.75 to 1.00 instead of 3.25 to 1.00.
(c) Paragraph 10B of the Note Agreement is hereby amended by replacing the definitions of
EBITDA and NSC Acquisition Agreement in their entirety with the following definitions:
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, 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 provided, further, 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.
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NSC Acquisition Agreement means that certain Asset Purchase Agreement, dated
as of August 23, 2011, by and among the Company, AmSurg Holdings, Inc., National
Surgical Care, Inc., AmSurg Merger Corporation and Brazos GP Partners, LLC.
2. 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) A certificate 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 Agreement after
the NSC Acquisition is completed, in form and substance satisfactory to the Required Holders; and
(d) Such other documents, instruments, agreements, certifications and opinions as any
Noteholder may reasonably request.
3. NSC Acquisition. In connection with the NSC Acquisition, the Noteholders
acknowledge that the conditions and information required to be delivered pursuant to Paragraph
6N(iv) of the Note Agreement with respect to the NSC Acquisition have been satisfied by the
Company.
4. 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 Partys 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
Partys 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
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;
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(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.
5. 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 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.
6. 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.
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7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
[remainder of page intentionally left blank]
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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.
COMPANY: AMSURG CORP. |
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By: | /s/ Claire M. Gulmi | |||
Name: | Claire M. Gulmi | |||
Title: | Executive Vice President, Chief Financial Officer, and Secretary |
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[SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT]
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. |
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By: | /s/ Claire M. Gulmi | |||
Name: | Claire M. Gulmi | |||
Title: | Vice President, Secretary and Treasurer | |||
[SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT]
NOTEHOLDERS: THE PRUDENTIAL INSURANCE COMPANY OF AMERICA |
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By: | /s/ | |||
Senior Vice President | ||||
PRUCO LIFE INSURANCE COMPANY |
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By: | /s/ | |||
Assistant Vice President | ||||
PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY By: Prudential Investment Management, Inc., as investment manager |
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By: | /s/ | |||
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/ | |||
Senior Vice President | ||||
[SIGNATURE PAGE TO SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT]