EXHIBIT 10.47
AMERIPATH, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
Amendment No. 3
This Agreement, dated as of March 29, 2001 (this "Agreement"), is among
AmeriPath, Inc., a Delaware corporation, its Subsidiaries set forth on the
signature pages hereof and Fleet National Bank, as Agent for itself and the
Required Lenders under the Credit Agreement (as defined below). The parties
agree as follows:
1. Credit Agreement; Definitions. This Agreement amends the Amended and
Restated Credit Agreement dated as of December 16, 1999 among the parties hereto
and the Lenders (as previously amended and in effect prior to giving effect to
this Agreement, the "Credit Agreement"). Terms defined in the Credit Agreement
as amended hereby (the "Amended Credit Agreement") and not otherwise defined
herein are used with the meaning so defined.
2. Amendment of Credit Agreement. Effective upon the date hereof, the
Credit Agreement is amended as follows:
2.1. Amendment of Section 2.3.3. Section 2.3.3 of the Credit
Agreement is amended to read in its entirety as follows:
"2.3.3. Form and Expiration of Letters of Credit.
Each Letter of Credit issued under this Section 2.3 and each
draft accepted or paid under such a Letter of Credit shall be
issued, accepted or paid, as the case may be, by the Letter of
Credit Issuer at its principal office. No Letter of Credit
shall provide for the payment of drafts drawn thereunder, and
no draft shall be payable, at a date which is later than the
Final Maturity Date; provided, however, that a Letter of
Credit may be issued hereunder which provides for the payment
of drafts drawn thereunder, and drafts payable, at dates which
are not later than twelve months after the Final Maturity Date
if not less than 5 Banking Days prior to such Final Maturity
Date the Borrower has deposited with the Letter of Credit
Issuer upon terms and conditions satisfactory to such Letter
of Credit Issuer the full amount in cash or Cash Equivalents
of the Letter of Credit Exposure in respect of such Letter of
Credit. Each Letter of Credit and each draft accepted under a
Letter of Credit shall be in such form and minimum amount, and
shall contain such terms, as the Letter of Credit Issuer and
the Borrower may agree upon at the time such Letter of Credit
is issued, including a requirement of not less than three
Banking Days after presentation of a draft before payment must
be made thereunder."
2.2. Amendment of Section 6.5.1. Section 6.5.1 of the Credit
Agreement is amended to read in its entirety as follows:
"6.5.1. Consolidated Total Debt Coverage. At all
times, the amount of (a) Consolidated Total Debt minus (b)
that portion of the outstanding principal amount of any
Contingent Notes and Restructured Seller Notes to the extent
that such portion is not required to be reflected on the
financial statements of the Borrower in accordance with GAAP,
shall not exceed 250% of the Consolidated Adjusted EBITDA for
the period of four consecutive fiscal quarters most recently
ended."
2.3. Amendment of Section 6.5.3. Section 6.5.3 of the Credit
Agreement is amended to read in its entirety as follows:
"6.5.3. Consolidated Operating Cash Flow. On the last
day of each fiscal quarter of the Borrower, Consolidated
Operating Cash Flow for the period of four consecutive fiscal
quarters then ending shall equal or exceed the percentage
specified in the table below of the sum of (i) Consolidated
Total Debt Service for such period minus (ii) voluntary
prepayments of the Loan:
Period Ending Percentage
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Initial Closing Date through
September 30, 2000 125%
December 31, 2000 120%
March 31, 2001 through
June 30, 2001 115%
September 30, 2001 through
December 31, 2001 120%
March 31, 2002 through
December 30, 2003 130%
December 31, 2003 and thereafter 145%
Notwithstanding the foregoing, in calculating Consolidated
Operating Cash Flow for purposes of this Section 6.5.3, for
periods ending June 30, 2000 through March 31, 2001, charges
totaling $5,240,000 in connection with the impairment of
assets and related charges for AmeriPath PCC, Inc. shall not
be subtracted from Consolidated Operating Cash Flow.
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Notwithstanding the foregoing, in calculating Consolidated
Operating Cash Flow for purposes of this Section 6.5.3,
charges of up to $22,900,000 (comprised of one time cash
transaction and restructuring charges of up to $12,800,000 in
connection with the acquisition of Pathology Consultants of
America Inc., and nonrecurring non-cash charges of up to
$10,100,000, including charges resulting from an increase in
the accounts receivable reserve in connection with the
acquisition of Pathology Consultants of America Inc., and
potential unidentified impairment charges relating to good
will and other intangibles of not more than $5,000,000) shall
not be subtracted from Consolidated Operating Cash Flow;
provided, however, that no such amount shall be subtracted
from Consolidated Operating Cash Flow for longer than the
fiscal quarter in which such amount is first subtracted and
the three consecutive fiscal quarters immediately following
the first fiscal quarter in which such amount is first
subtracted."
2.4. Amendment to Section 6.21.2. The first paragraph of
Section 6.21.2 of the Credit Agreement is amended to read in its
entirety as follows:
"In the case of any such acquisition for which the Purchase
Price is greater than or equal to $5,000,000 and the Cash
Purchase Price is less than $10,000,000, the Borrower shall
comply with all the requirements of Section 6.21.1, with the
exception of 6.21.1(f), and:"
2.5. Amendment to Section 6.21.2(a). Section 6.21.2(a) of the
Credit Agreement is amended to read in its entirety as follows:
"(a) Purchase Price Limitation. The Financing Debt
component of the consideration for such acquisition (i) shall
not exceed the sum of 450% of the Pro Forma EBITDA of the
Acquired Party for the most recently completed period of four
consecutive fiscal quarters plus the cash and Cash Equivalents
of the Acquired Party that are being purchased and (ii) shall
not exceed 70% of the Purchase Price. In addition, no less
than 30% of the total Purchase Price shall consist of common
stock of the Company and no more than 20% of the total
Purchase Price shall consist of Contingent Notes."
2.6. Amendment to Section 6.21.3. Section 6.21.3 of the Credit
Agreement is amended to read in its entirety as follows:
"6.21.3 In the case of any such acquisition for
which the Cash Purchase Price is equal to or exceeds
$10,000,000, in addition to meeting the requirements of
Sections 6.21.1 and 6.21.2 the Borrower shall receive prior
written consent of the Required Lenders and provide all
further documentation and meet all further requirements
reasonably requested by the Agent."
2.7. Amendment of Exhibit 1. Exhibit 1 of the Credit Agreement
is restated to read in its entirety as appears on Exhibit 1 to this
Agreement.
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3. No Default. In order to induce the Agent to enter into this
Agreement, each of the Borrower and the Guarantors jointly and severally
represents and warrants that, after giving effect to this Agreement, no Default
exists.
4. Fees; Payment of Agent's Legal Expenses. Lenders which return a
signed counterpart of this Amendment to the Agent by 5:00 p.m. (EST) on March
29, 2001 will be entitled to receive from the Borrower a one-time fee equal to
0.30% (30 bps) multiplied by such Lender's Percentage Interest in the Maximum
Amount of Revolving Credit. Lenders which return a signed counterpart of this
Amendment to the Agent after 5:00 p.m. (EST) on March 29, 2001 but prior to 5:00
p.m. (EST) on April 6, 2001 will be entitled to receive from the Borrower a
one-time fee equal to 0.20% (20 bps) multiplied by such Lender's Percentage
Interest in the Maximum Amount of Revolving Credit. Upon or prior to the
effectiveness of this Agreement, the Borrower agrees to pay the reasonable legal
fees and expenses of the Agent with respect to this Agreement and the
transactions contemplated hereby.
5. General. The Amended Credit Agreement and all of the Credit
Documents are each confirmed as being in full force and effect. This Agreement,
the Amended Credit Agreement and the other Credit Documents referred to herein
or therein constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral. Each of this Agreement
and the Amended Credit Agreement is a Credit Document and may be executed in any
number of counterparts, which together shall constitute one instrument, and
shall bind and inure to the benefit of the parties and their respective
successors and assigns, including as such successors and assigns all holders of
any Credit Obligation. This Agreement shall be governed by and construed in
accordance with the laws (other than the conflict of law rules) of The
Commonwealth of Massachusetts.
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first written above.
AMERIPATH, INC.
By:
----------------------------------
Name:
Title:
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The Guarantors
AMERIPATH ALABAMA, INC.
SHOALS PATHOLOGY ASSOCIATES, INC.
AMERIPATH FLORIDA, INC.
LABORATORY PHYSICIANS, JACKSONVILLE, INC.
PASADENA PATHOLOGY XXXXXX X XXXXXX, M.D., INC.
SOUTH FLORIDA PATHOLOGY ASSOCIATES, INC.
HIALEAH PATHOLOGY ASSOCIATES, INC.
OCMULGEE MEDICAL PATHOLOGY ASSOCIATION, INC.
AMERIPATH INDIANA, INC.
AMERIPATH KENTUCKY, INC.
AMERIPATH MICHIGAN, INC.
AMERIPATH MISSISSIPPI, INC.
R.M.C. PATHOLOGY ASSOCIATES, INC.
AMERIPATH NEW YORK, INC.
AMERIPATH NORTH CAROLINA, INC.
AMERIPATH OHIO, INC.
AMERIPATH CINCINNATI, INC.
AMERIPATH CLEVELAND, INC.
AMERIPATH P.C.C., INC.
AMERIPATH YOUNGSTOWN, INC.
AMERIPATH YOUNGSTOWN LABS, INC.
A. XXXXXXX XXXXXXXX, M.D.
DERMATOPATHOLOGY, P.C.
AMERIPATH PENNSYLVANIA, INC.
AMERIPATH PHILADELPHIA, INC.
AMERIPATH 5.01(a) CORPORATION
DFW 5.01(a) CORPORATION
AMERIPATH SAN ANTONIO 5.01(a) CORPORATION
AMERIPATH LUBBOCK 5.01(a) CORPORATION
AMERIPATH TEXAS, INC.
AMERIPATH SHERMAN, INC.
PATHOLOGY AFFILIATED SERVICES, INC.
PLAZA PATHOLOGY, INC.
AMERIPATH XXX, INC.
AMERIPATH WISCONSIN, INC.
By:
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Name:
As an authorized officer of each of the
foregoing corporations
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FLEET NATIONAL BANK,
as Agent under the Credit Agreement
By:
-----------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as Lender under the Credit Agreement
By:
-----------------------------------
Name:
Title:
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The foregoing amendment is approved by the
Required Lenders signing below:
Bank of America, N.A.
By:
-----------------------------------
Name:
Title:
Bank One, NA
By:
-----------------------------------
Name:
Title:
First Union National Bank
By:
-----------------------------------
Name:
Title:
Citizens Bank of Massachusetts
By:
-----------------------------------
Name:
Title:
HypoVereinsbank
By:
-----------------------------------
Name:
Title:
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SunTrust Bank, National Association
By:
-----------------------------------
Name:
Title:
U.S. Bank National Association
By:
-----------------------------------
Name:
Title:
AmSouth Bank
By:
-----------------------------------
Name:
Title:
Imperial Bank
By:
-----------------------------------
Name:
Title:
BankAtlantic
By:
-----------------------------------
Name:
Title:
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EXHIBIT 1
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Ratio of Consolidated Total
Debt to Consolidated
Adjusted EBITDA for the most Interest Rate on Portions of Interest Rate on Portions of Applicable Commitment
recently completed Revolving Loan Subject to Revolving Loan Not Subject to Fee Rate
Levels four fiscal quarters LIBOR Pricing Options LIBOR Pricing Option
-------- ------------------------------ ---------------------------- ----------------------------- ---------------------
Level I Greater than 2.0 to 1 but less LIBOR Rate plus 2.375% Base Rate plus 1.375% 0.50%
than or equal to 2.5 to 1
-------- ------------------------------ ---------------------------- ----------------------------- ---------------------
Level II Less than or equal to 2.0 to 1 LIBOR Rate plus 2.125% Base Rate plus 1.125% 0.375%
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