THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED LOAN
AGREEMENT (the "Amendment") made and entered into this __ day of
March, 1995, by and among PHYSICIAN SUPPORT SYSTEMS, INC., a
Delaware corporation, SPRING ANESTHESIA GROUP, INC., a California
corporation (and the surviving corporation as a result of the
merger of PSS Investment with and into SAG), and MERIDIAN BANK, a
Pennsylvania-chartered bank.
BACKGROUND
A. The Lender and the Borrowers entered into a
certain Amended and Restated Loan Agreement dated August 12, 1993
(which was amended by an Amendment No. 1 between Lender and
Borrowers dated February 25, 1994 and Amendment No. 2 between
Lender and Borrowers dated May 19, 1994) (the "Loan Agreement"),
pursuant to which the Lender agreed to make certain credit
facilities available to the Borrowers, on the terms and subject
to the conditions therein set forth.
B. The Borrowers and the Lender desire to modify and
amend the Loan Agreement to reflect a term loan which the Lender
is making to the Borrowers in addition to the credit facilities
provided under the Loan Agreement.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and intending to be legally bound, the parties
hereto covenant and agree as set forth below.
1. Defined Terms. Any capitalized terms used in this
Amendment which are not defined, but which are defined in the
Loan Agreement, shall have the meanings given to those terms in
the Loan Agreement.
2. New Defined Terms. The following definitions are
hereby added to the provisions of Section 1.2 of the Loan
Agreement and shall read in their entirety as follows:
"1995 Term Note" shall mean the Term Note dated
March 24, 1995 executed by the Borrowers and payable to
the order of the Lender in the original principal
amount of Two Hundred Thousand Dollars ($200,000),
together with any future amendments, restatements,
modifications or supplements thereof or thereto.
"1995 Term Loan" shall mean the $200,000 term loan
made by the Lender to the Borrowers and evidenced by
the 1995 Term Note, together with any future
amendments, restatements, modifications or supplements
thereof or thereto.
3. Amendment to Existing Definitions. The following
definitions set forth in Section 1.2 of the Loan Agreement are
hereby modified, amended, and restated to read in their entirety
as follows:
"Notes" shall mean, collectively,
(i) the promissory note described in subsection 2.2
hereof; (ii) the Line of Credit Note; and (iii) the
1995 Term Note; and any future amendments,
modifications and restatements thereof or supplements
thereto.
"Loan Documents" shall mean, collectively, this
Agreement, the Assignments, the Notes, the Security
Documents and all other documents executed and
delivered to the Lender by or on behalf of either
Borrower or any Surety in connection therewith and in
connection with any modifications, amendments,
restatements, substitutions and replacements of or for
any' of the foregoing.
4. Amended Definitions. (a) Whenever the defined
term "Note" is used in the Loan Agreement, such term shall be
deemed to mean "Notes" as defined in the Loan Agreement.
(b) Whenever the defined term "Obligations" is used in
any of the Loan Documents, such term shall be deemed to include
the "1995 Term Loan" as defined in the Loan Agreement.
5. Unused Facility Fee. On each April 30, July 30,
October 30, and January 30, the Borrowers shall pay to the Lender
an unused facility fee equal to the product of (i) 0.25% and (ii)
$400,000 minus the average daily outstanding balance under the
Line of Credit Loan during the preceding calendar quarter.
Lender shall calculate such fee and furnish the Borrowers with a
copy of such calculation and the fee that is due on or before
each April 20, July 20, October 20 and January 20.
6. Postponement of Principal Payments. The monthly
payments of principal due March 1, 1995 and April 1, 1995 under
the promissory note of Borrowers dated August 12, 1993 in the
original principal amount of $8,000,000 and payable to the order
of Lender are postponed until the maturity of such note on August
31, 1998, at which time such principal payments shall be due and
payable.
7. Dividends. PSS shall not pay the cash dividends
due on the Series A Preferred Stock and Series B Preferred Stock
of PSS due in February 1995. PSS may pay stock dividends on its
outstanding shares of Series A Preferred Stock and Series B
Preferred Stock in lieu of such cash dividends.
8. Financial Covenants. The Borrowers agree to
negotiate with Lender reasonably appropriate changes to the
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financial covenants contained in subsections 5.11, 5.12, 5.13 and
5.14 to reflect the changes in the Borrowers' accounting
practices. Lender and Borrower will negotiate such changes in
good faith in an effort to complete such negotiations by April
30, 1995. The changes in such financial covenants shall be
evidenced by a letter setting forth such new financial covenants
signed by the Lender and the Borrowers.
9. Representations and Warranties. As a material
inducement for the Lender to enter into this Amendment, the
Borrowers jointly and severally make the following
representations and warranties to the Lender and acknowledge the
Lander's justifiable reliance thereon:
(a) No Default or Event of Default has occurred
and is continuing.
(b) Except as has otherwise been disclosed in
writing to the Lender on or before the date hereof, all
representations and warranties previously made to the Lender by
the Borrowers remain true, accurate, and complete in all material
respects as of the date hereof, except that the capital stock of
PSS Investment has been cancelled in connection with the merger
of PSS Investment into SAG.
(c) The Loan Agreement, as modified and amended
herein, is the valid and binding obligation of the Borrowers and
is fully enforceable in accordance with all stated terms.
10. Binding Effect. This Amendment shall be binding
upon and shall inure to the benefit of the Lender, the Borrowers,
and their respective successors and assigns subject, however, to
the restrictions set forth in Section 8.7 of the Loan Agreement.
11. Governing Law. This Amendment shall be governed
by and construed in accordance with the domestic, internal laws
(but not the law of conflict of laws) of the Commonwealth of
Pennsylvania.
12. Costs and Expenses. Without limiting the
generality of the provisions of Sections 8.3 and 8.4 of the Loan
Agreement, the Borrowers shall reimburse the Lender for its out-
of-pocket expenses, including counsel fees, incurred by the
Lender in connection with the development, preparation, and
negotiation of this Amendment and the documents executed in
connection herewith.
13. Ratification. Except as expressly modified and
amended herein, the Loan Agreement is hereby ratified and
affirmed.
IN WITNESS WHEREOF, the parties hereto have caused this
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Amendment to be duly executed by their duly authorized officers
as of the day and year first above written.
PHYSICIAN SUPPORT SYSTEMS, INC., a
Delaware Corporation
/s/ Xxxxxxxx X. Xxxxxx III
By________________________________
Xxxxxxxx X. Xxxxxx III,
Executive Vice President
/s/ Xxxxxxxx Xxxxxxxxx III
Attest:___________________________
Secretary
SPRING ANESTHESIA GROUP, INC., a
California corporation (the
surviving corporation as a result
of the merger of PSS INVESTMENT,
INC. with and into SPRING
ANESTHESIA GROUP, INC.)
/s/ Xxxxxxxx X. Xxxxxx III
By________________________________
Xxxxxxxx X. Xxxxxx III,
Vice President
/s/ Xxxxxxxx Xxxxxxxxx III
Attest:___________________________
Assistant Secretary
MERIDIAN BANK, a Pennsylvania
banking corporation
/s/ Xxxxxxx X. Xxxxxxxx
By________________________________
Xxxxxxx X. Xxxxxxxx,
Assistant Vice President
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CONSENT AND JOINDER
The undersigned corporations are Sureties for the
prompt payment and performance of all of the Obligations pursuant
to the terms and conditions of the Suretyship and, as a material
inducement for the Lender to execute and deliver the foregoing
Amendment, hereby:
(i) consent to and approve of the terms and
conditions of the Amendment;
(ii) recognize, acknowledge, covenant, and agree
that all of the Borrowers' duties, obligations, and liabilities
under or in connection with the 1995 Term Note and the 1995 Term
Loan are assured by the Suretyship in accordance with the
provisions thereof; and
(iii) ratify and affirm each of their duties,
obligations, and liabilities under the Suretyship.
Any capitalized terms used in this Consent and Joinder shall have
the meanings given to those terms in the Loan Agreement referred
to in the foregoing Amendment. Each of the undersigned has
executed this Consent and Joinder intending to be legally bound.
Dated: March 24, 1995
INDEPENDENT ANESTHESIA IPA OF
ARIZONA, INC., an Arizona
Corporation
/s/ Xxxxxxxx X. Xxxxxx III
By________________________________
Xxxxxxxx X. Xxxxxx III,
Vice President
/s/ Xxxxxxxx Xxxxxxxxx III
Attest:___________________________
Assistant Secretary
INDEPENDENT ANESTHESIA IPA OF
CALIFORNIA, INC., a California
corporation
/s/ Xxxxxxxx X. Xxxxxx III
By________________________________
Xxxxxxxx X. Xxxxxx III,
Vice President
/s/ Xxxxxxxx Xxxxxxxxx III
Attest:___________________________
Assistant Secretary
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COMMONWEALTH OF PENNSYLVANIA :
:ss.
COUNTY OF LANCASTER :
On this 24th day of March, 1995, before me, a notary
public, the undersigned officer, personally appeared Xxxxxxxx X.
Xxxxxx, III, who acknowledged himself to be the Vice President of
INDEPENDENT ANESTHESIA IPA OF ARIZONA, INC., an Arizona
corporation, and that he as such officer, being authorized to do
so, executed the foregoing instrument for the purposes therein
contained by signing the name of the corporation by himself as
such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
/s/ Xxxx Xx Xxxxx
----------------------------------
Notary Public
COMMONWEALTH OF PENNSYLVANIA :
:ss.
COUNTY OF LANCASTER :
On this 24th day of March, 1995, before me, a notary
public, the undersigned officer, personally appeared Xxxxxxxx X.
Xxxxxx, III, who acknowledged himself to be the Vice President of
INDEPENDENT ANESTHESIA IPA OF CALIFORNIA, INC., a California
corporation, and that he as such officer, being authorized to do
so, executed the foregoing instrument for the purposes therein
contained by signing the name of the corporation by himself as
such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
/s/ Xxxx Xx Xxxxx
----------------------------------
Notary Public
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COMMONWEALTH OF PENNSYLVANIA :
:ss.
COUNTY OF LANCASTER :
On this 24th day of March, 1995, before me, a notary public,
the undersigned officer, personally appeared Xxxxxxxx X. Xxxxxx,
III, who acknowledged himself to be the Executive Vice President
of PHYSICIAN SUPPORT SYSTEMS, INC., a Delaware corporation, and
that he as such officer, being authorized to do so, executed the
foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
/s/ Xxxx Xx Xxxxx
----------------------------------
Notary Public
COMMONWEALTH OF PENNSYLVANIA :
:ss.
COUNTY OF LANCASTER :
On this 24th day of March, 1995, before me, a notary
public, the undersigned officer, personally appeared Xxxxxxxx X.
Xxxxxx, III, who acknowledged himself to be the Vice President of
SPRING ANESTHESIA GROUP, INC., a California corporation (the
surviving corporation as a result of the merger of PSS
INVESTMENT, INC. with and into SPRING ANESTHESIA GROUP, INC.),
and that he as such officer, being authorized to do so, executed
the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
/s/ Xxxx Xx Xxxxx
----------------------------------
Notary Public
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COMMONWEALTH OF PENNSYLVANIA :
:ss.
COUNTY OF LANCASTER :
On this 24th day of March, 1995, before me, a notary
Public, the undersigned officer, personally appeared Xxxxxxx X.
Xxxxxxxx who acknowledged himself to be an Assistant Vice
President of MERIDIAN BANK, a Pennsylvania banking corporation
and that he as such officer, being authorized to do so, executed
the foregoing instrument for the purposes therein contained by
signing the name of the corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal.
/s/ Xxxxx X. Xxxxxxx
----------------------------------
Notary Public
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