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EXHIBIT 10.36
AMENDMENT NO. 2
TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 21,1997
This Agreement, dated as of October 21, 1997, is among Pediatrix
Medical Group, Inc., a Florida corporation, the Related Entities of Pediatrix
Medical Group, Inc. from time to time party hereto, the Lenders from time to
time party hereto including SunTrust Bank/South Florida, National Association
(the "Prior Lender") as Lender under the Revolving Loan, and BankBoston, N.A.
(formerly known as The First National Bank of Boston), both in its capacity as
a Lender under the Revolving Loan and the Mortgage Loan and in its capacity as
agent for itself and the other Lenders (collectively the foregoing parties, the
"Credit Parties") and SunTrust Bank/Central Florida, National Association (the
"New Lender"). The parties agree as follows:
1. REFERENCE TO CREDIT AGREEMENT; DEFINITIONS. Reference is made to the
First Amended and Restated Credit Agreement dated as of June 27, 1996
(the "Credit Agreement"), as amended and in effect from time to time,
among the Credit Parties hereto. Terms defined in the Credit Agreement
and not otherwise defined herein are used herein with the meanings so
defined.
2. ASSIGNMENT AND ASSUMPTION.
2.1. Assignment and Assumption. In consideration of the payment by
the New Lender to the Prior Lender of good and valuable
consideration and of the other agreements, conditions,
representations and warranties contained herein, effective
upon receipt by the Prior Lender of such consideration (the
"Effective Time"):
(a) the Prior Lender hereby sells, transfers and
assigns to the New Lender (i) all of its right, title and
interest in and to the Credit Obligations, and (ii) all of
its rights and obligations under the Credit Agreement and the
other Credit Documents, in each case as in effect as of the
date hereof, and
(b) the New Lender hereby accepts such rights,
titles and interests and such rights and assumes such
obligations on the terms and conditions contained herein.
Notwithstanding anything to the contrary herein, the New Lender shall
not assume any obligation under any Credit Document to be performed by
the Prior Lender prior to the Effective Time and the Prior Lender
shall retain its rights under the Credit Documents to the extent set
forth in Section 3. The Borrowers specifically consent to the
foregoing assignment and assumption.
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2.2 Certain Effects of Assignment and Assumption. From and after
the Effective Time, the Prior Lender agrees that the New
Lender shall be entitled, except to the extent set forth in
Section 3, to all of its rights, powers and privileges under
the Credit Agreement and the other Credit Documents, in each
case as in effect as of the date hereof, including, without
limitation, (a) the rights to receive all monies payable
under the Credit Documents from and after the Effective Time,
whether on account of principal, interest (whether accrued
before or after the Effective Time), fees, indemnities,
increased costs, additional amounts or otherwise (but
excluding indemnities and additional amounts for the benefit
of the Prior Lender to the extent set forth in Section 3),
(b) the right to set-off and to appropriate and apply
deposits of the Company as set forth in the Credit Documents,
(c) the right to receive notices, requests, demands and other
communications and (d) the right to supplement, modify or
amend the Credit Documents and to grant waivers thereunder.
2.3 Replacement of Prior Lender. Upon the Effective Time, the New
Lender shall become party to the Credit Agreement and the
other Credit Documents as though it were the Lender and a
signatory thereto and, except as expressly otherwise provided
herein, shall have all of the rights and obligations of the
Lender under the Credit Agreement and the other Credit
Documents and the Prior Lender shall be released from its
obligations under the Credit Agreement and such other Credit
Documents to a corresponding extent, and no further consent
or action by any party shall be required. From and after the
Effective Time, for purposes of the Credit Agreement and the
other Credit Documents, the term "Lender" shall mean the New
Lender.
3. SURVIVAL OF INDEMNITIES. Notwithstanding the other provisions of this
Agreement, the transfers and assignments made pursuant hereto and any future
amendment of the Credit Agreement or any other Credit Document, the
indemnification provisions and other provisions of the Credit Agreement and the
other Credit Documents assigned hereby that expressly survive the termination
of the Credit Agreement or such other Credit Documents, each as in effect
immediately prior to the execution hereof, shall continue to inure to the
benefit of the Prior Lender with respect to any events which happened or
actions taken or omitted to be taken prior to the Effective Time, without
derogating from any rights of the New Lender against the Company with respect
to any events which happened or actions taken or omitted to be taken prior to
the Effective Time that the New Lender may have acquired in its capacity as
Lender from and after the Effective Time pursuant to the transfers and
assignments provided in this Agreement. The Prior Lender will give the Company
prompt notice of any claim made against it, or the incurring of any expense or
liability, for which it may seek indemnity or reimbursement from the Company
under such provisions.
4. RELEASE. In consideration of the agreements by the Prior Lender hereunder
and for other valuable consideration, the receipt and sufficiency of which are
acknowledged, the Company fully releases, discharges and covenants not to xxx
the Prior Lender or any of its
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directors, officers, employees, agents, accountants, attorneys, consultants and
each Person, if any, that controls it, from and with respect to any claims,
liabilities, actions and suits of every nature, whether in law, at equity or
otherwise, arising from or relating to the Credit Agreement or the other Credit
Documents or any event which happened or action taken or omitted to be taken
prior to the date hereof with respect thereto or which arises from or relates
to the Credit Documents, the Credit Security, the Credit Obligations or any
possible refinancing or restructuring thereof.
5. NOTICES. All notices and other communications required to be given or
made to the New Lender under this Agreement, the Credit Agreement or any Credit
Document shall be given or made at its address set forth on the signature page
hereof or at such other address as the New Lender shall have specified and
actually delivered to the addressor. All notices and other communications
required to be given or made to the other parties hereto shall be given or made
at the respective addresses provided in or pursuant to the Credit Agreement.
6. NO WAIVER. Nothing contained herein shall constitute a waiver by the
New Lender of any Defaults or Events of Default now existing or hereafter
arising under the Credit Documents.
7. AMENDMENT TO CREDIT AGREEMENT. Subject to all the terms and conditions
hereof, the Credit Agreement is hereby amended as follows, effective as of the
later of October 10, 1997 and the date each of the conditions in Section 4
hereof is satisfied or waived:
7.1. Amendment of Section 1.34. Section 1.34. of the Credit
Agreement is hereby amended and restated to read as follows:
"1.34. "Consolidated Fixed Charges" means, for any period,
the sum of:
(a) the aggregate amount of interest, including payments in
the nature of interest under Capitalized Leases and Interest Rate
Protection Agreements, paid or accrued by the Company and its Related
Entities (whether such interest is reflected as an item of expense or
capitalized) in accordance with GAAP on a consolidated basis;
plus (b) the aggregate amount of all mandatory scheduled payments,
prepayments and sinking fund payments with respect to principal paid
or accrued by the Company and its Related Entities in respect of
Financing Debt, including payments in the nature of principal under
Capitalized Leases and Interest Rate Protection Agreements, in
accordance with GAAP on a Consolidated basis;
plus (c) any mandatory dividends paid or payable by the Company or
any of its Related Entities to third parties.
7.2. Amendment of Section 1.63. Section 1.63. of the Credit
Agreement is hereby amended and restated to read as follows:
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"1.63. "Final Maturity Date" means (i) with respect to the
Revolving Loan, September 30, 2000 and (ii) with respect to
the Mortgage Loan, June 30, 2003.
7.3. Amendment of Section 2.1.2. Section 2.1.2. of the Credit
Agreement is hereby amended and restated to read as follows:
"2.1.2. Maximum Amount of Revolving Credit. The term "Maximum
Amount of Revolving Credit" means, on any date, the lesser of
(a) $75,000,000 or (b) the amount (in an integral multiple of
$1,000,000) to which the then applicable amount shall have
been irrevocably reduced from time to time by notice from the
Company to the Agent."
7.4. Amendment of Section 6.5.2. Section 6.5.2 of the Credit
Agreement is hereby amended to read in its entirety as
follows:
"6.5.2 Consolidated Total Debt to EBITDA. Consolidated
Financing Debt shall not on any date exceed 300% of
Consolidated EBITDA for the most recently completed period of
four consecutive fiscal quarters, provided, however, for
these purposes, Consolidated EBITDA shall exclude
non-recurring charges."
7.5. Amendment of Section 6.5.3. Section 6.5.3 of the Credit
Agreement is hereby amended to read in its entirety as
follows:
"6.5.3. Consolidated Total Debt Service. On the last day of
each fiscal quarter of the Company and its Related Entities,
Operating Cash Flow shall be at least 200% of Consolidated
Fixed Charges for the period of four consecutive fiscal
quarters then ended.
7.6. Amendment of Section 6.5.4. Section 6.5.4 of the Credit
Agreement is hereby amended to read in its entirety as
follows:
"6.5.4. Consolidated Net Worth. On the last day of each
fiscal quarter, the Consolidated Net Worth shall equal at
least $76,000,000, plus the aggregate net proceeds of any
offerings of equity interests in the Company or any of its
Related Entities occurring on or after the Initial Closing
Date.
7.7. Amendment of Section 6.11. Section 6.11. of the Credit
Agreement is hereby amended to read in its entirety as
follows:
"6.11. Capital Expenditures. None of the Borrowers will
make Capital Expenditures exceeding $3,000,000 in the
aggregate in any fiscal year."
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7.8. Amendment of Section 11.1. Section 11.1. of the Credit
Agreement is hereby amended to read in its entirety as
follows:
"11.1. Interests in Credits. The percentage interest of
each Lender in the Revolving Loan and Mortgage Loan, and the
related Commitments, shall be computed based on the maximum
principal amount for each Lender as follows:
Maximum Percentage
------- ----------
Principal Amount Percentage Interest of
---------------- ---------- -----------
of Revolving Interest of Principal of Mortgage
---------------- ----------- ------------ -------
Lender Loan Revolving Loan Mortgage Loan Loan
------ ---- ---- ------------- ----
BankBoston, $37,500,000 50% $3,000,000 100%
N.A.
SunTrust/Central $37,500,000 50% $ 0 0%
Florida =========== === ========== ===
Total $75,000,000 100% $3,000,000 100%
8. NO DEFAULT. In order to induce the Lenders to enter into this Amendment
and to continue to extend credit to the Borrowers under the Credit Agreement as
amended hereby, each of the Borrowers represents and warrants that, after
giving effect to this Amendment, no Default under the Credit Agreement as
amended hereby exists.
9. CONDITIONS. On or prior to the Amendment Date:
9.1. Each Borrower shall have duly executed and delivered to the
Agent a Revolving Note for each Lender, dated as of June 27,
1996;
9.2. Each Borrower shall have delivered to the Agent an Officers
Certificate in the form of Exhibit 5.4.1 to the Credit Agreement
certifying that the representations and warranties contained
in Section 7 of the Credit Agreement are true and correct on and
as of the Amendment Date with the same force and effect as
though made on and as of such date (except as to any
representation or warranty which refers to a specific earlier
date); that the Borrowers are in compliance with the convenants
contained in Section 6 of the Credit Agreement and no Default
shall exist on the Amendment Date prior to or immediately after
giving effect to the requested extension of credit; and that no
Material Adverse Change has occurred since December 31, 1995;
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9.3. The making of the requested Amendment and extension of credit
shall not (a) subject any Lender to any penalty or special
tax (other than a Tax for which the Borrowers are required to
reimburse the Lenders under Section 3.5 of the Credit
Agreement), (b) be prohibited by any Legal Requirement or (c)
violate any credit restraint program of the executive branch
of the government of the United States of America, the Board
of Governors of the Federal Reserve System or any other
governmental or administrative agency so long as any Lender
reasonably believes that compliance is in the best interests
of the Lender.
9.4. This Amendment. the Credit Agreement and each other Credit
Document and the transactions contemplated hereby and thereby
shall have been authorized by all necessary corporate or
other proceedings of the Borrowers. All necessary consents,
approvals and authorizations of any governmental or
administrative agency or any other Person of any of the
transactions contemplated hereby or by any other Credit
Document shall have been obtained and shall be in full force
and effect;
9.5. All legal and corporate proceedings in connection with the
transactions contemplated by this Amendment, the Credit
Agreement and each other Credit Document shall be
satisfactory in form and substance to the Agent and the Agent
shall have received copies of all documents, including
certified copies of the Charter and By-Laws of the Borrowers
and the other Obligors, records of corporate proceedings,
certificates as to signatures and incumbency of officers and
opinions of counsel, which the Agent may have reasonably
requested in connection therewith, such documents where
appropriate to be certified by proper corporate or
governmental authorities.
10. MISCELLANEOUS. Except to the extent specifically amended hereby, the
provisions of the Credit Agreement shall remain unmodified, and the Credit
Agreement as amended hereby is confirmed as being in full force and effect.
This Amendment may be executed in any number of counterparts which together
shall constitute one instrument, shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts (other than
conflict of laws rules), and shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, including as such
successors and assigns all holders of Credit Obligations.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
above written.
PEDIATRIX MEDICAL GROUP, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Title:
PEDIATRIX MEDICAL GROUP OF
FLORIDA, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Title:
PEDIATRIX MEDICAL GROUP, P.C. (WV)
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Title:
PEDIATRIX MEDICAL GROUP, P.C.
(VA)
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Title:
8
PEDIATRIX MEDICAL GROUP, S.P.
(PR)
By: /s/ Xxxxxx Xxxxx, M.D.
------------------------------------------
Title:
PEDIATRIX MEDICAL GROUP, P.A.
(NJ)
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
Title:
PEDIATRIX MEDICAL GROUP OF
KANSAS, P.A.
By: /s/ Xxxxxxx X. Xxxxx, M.D.
------------------------------------------
Title:
PEDIATRIX MEDICAL GROUP
NEONATOLOGY
AND PEDIATRIC INTENSIVE CARE
SPECIALISTS OF NEW YORK, P.C.
By: /s/ Xxxxxxx Xxxxxxx, M.D.
------------------------------------------
Title:
PEDIATRIX MEDICAL GROUP OF
CALIFORNIA, P.C.
By: /s/ Xxxxxx Xxxxx, M.D.
-----------------------------------------
Title:
9
PEDIATRIX MEDICAL GROUP OF
ILLINOIS, P.C.
By: /s/ Xxxxx XXxxx, M.D.
-------------------------------------------
Title:
PEDIATRIX MEDICAL GROUP OF
MICHIGAN, P.C.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
Title:
PEDIATRIX MEDICAL GROUP OF
PENNSYLVANIA, P.C.
By: /s/ Xxxxx XXxxx, M.D.
-------------------------------------------
Title:
PEDIATRIX MEDICAL GROUP OF
TEXAS, P.A.
By: /s/ Xxxxxxx Xxxxxxx, M.D.
-------------------------------------------
Title:
PEDIATRIX MEDICAL GROUP OF
OHIO, CORP.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
Title:
NEONATAL SPECIALISTS, LTD. (AZ)
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
Title:
10
PEDIATRIX MEDICAL GROUP OF
COLORADO, P.C.
By: /s/ Xxxx Xxxxxxxx, M.D.
-------------------------------------------
Title:
ST. XXXXXX NEONATOLOGY
CONSULTANTS, P.A.
By: /s/ Xxxxxxx Xxxxxxx, M.D.
-------------------------------------------
Title:
PERNOLL MEDICAL GROUP OF
NEVADA, LTD. D/B/A PEDIATRIX MEDICAL
GROUP OF NEVADA
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
Title:
PEDIATRIX MEDICAL GROUP OF
SOUTH CAROLINA, P.A.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
Title:
FLORIDA REGIONAL NEONATAL
ASSOCIATES, P.A.
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
Title:
11
PEDIATRIX MEDICAL GROUP, INC.
(Utah)
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Title:
PEDIATRIX MEDICAL GROUP OF
NEW
MEXICO, P.C.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Title:
PEDIATRIX MEDICAL GROUP OF
WASHINGTON, INC., P.C.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Title:
PEDIATRIX MEDICAL GROUP OF
INDIANA, P.C.
By: /s/ Xxxxx XXxxx, M.D.
-----------------------------------------
Title:
FORT WORTH NEONATAL
ASSOCIATES, P.A.
By: /s/ Xxxxxxx Xxxxxxx, M.D.
-----------------------------------------
Title:
12
PMG ACQUISITION CORP.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Title:
PEDIATRIX MEDICAL GROUP OF
PUERTO RICO, P.S.C.
By: /s/ Xxxxxx Xxxxx, M.D.
-----------------------------------------
Title:
13
BANKBOSTON, N.A.
(formerly known as The First National Bank
of Boston)
By: /s/ Xxxxxxx X. X'Xxxxx
------------------------------------------
Xxxxxxx X. X'Xxxxx
Managing Director
BankBoston, N.A.
New England Corporate Banking
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Telex: 940581
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SUNTRUST BANK/SOUTH FLORIDA,
NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxxxx
----------------------------------------------
Name:
Title:
SunTrust Bank/South Florida, National Association
000 X. Xxx Xxxx Xxxxxxxxx
0xx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telecopy (000) 000-0000
XXXXX XX XXXXXXX
XXXXXX XX XXXXXX
Xx the _____ day of ____________ personally appeared
___________________________, as the ____________ PRESIDENT of SunTrust Bank,
South Florida, National Association, and before me executed the attached
AMENDMENT NO. 2 TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT among Pediatrix
Medical Group, Inc., the Related Entities of Pediatrix Medical Group, Inc. from
time to time and the Lenders from time to time party hereto including SunTrust
Bank, South Florida, National Association as lender under the Revolving Loan.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, in
the state and county aforesaid.
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Signature of Notary Public, State of
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(Print, Type or Stamp Commissioned Name of
Notary Public) Personally known _________; OR Produced
identification
Type of identification produced:
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(Notary Seal)
SUNTRUST BANK/CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name:
Title:
SunTrust Bank/Central Florida, National Association
Health Care Banking Group
Mail Code: 0-1101
000 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy (000) 000-0000
XXXXX XX XXXXXXX
XXXXXX XX XXXXXX
Xx the _____ day of ____________ personally appeared
___________________________, as the ____________ PRESIDENT of SunTrust Bank,
Central Florida, National Association, and before me executed the attached
AMENDMENT NO. 2 TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT among Pediatrix
Medical Group, Inc., the Related Entities of Pediatrix Medical Group, Inc. from
time to time and the Lenders from time to time party thereto including SunTrust
Bank, Central Florida, National Association as lender under the Revolving Loan.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, in
the state and county aforesaid.
---------------------------------------------------
Signature of Notary Public, State of
---------------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public) Personally known _________; OR
Produced identification
Type of identification produced:
---------------------------------------------------
16
--------------------------------------------------
(Notary Seal)
