EXHIBIT 10.23
PEDIATRIX MEDICAL GROUP
AMENDED AND RESTATED CREDIT AGREEMENT
Originally Dated as of June 27, 1996
As Amended and Restated as of November 1, 2000
As Amended and Restated as of August 14, 2001
Amendment No. 1
Dated as of August 29, 2001
FLEET NATIONAL BANK, Agent and Lender
FIRSTAR BANK N.A., Syndication Agent and Lender
[HSBC BANK USA], ________ and Lender
FLEET SECURITIES, INC., Arranger
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
This Agreement, dated as of August 29, 2001 (this "Agreement"), is
among Pediatrix Medical Group, Inc., a Florida corporation, the Material Related
Entities of Pediatrix Medical Group, Inc. from time to time party hereto, and
the Lenders from time to time party hereto including Fleet National Bank,
formerly known as The First National Bank of Boston, both in its capacity as a
Lender and in its capacity as an Agent, Firstar Bank N.A., both in its capacity
as a Lender and in its capacity as Syndication Agent, and [HSBC Bank USA], both
in its capacity as a Lender and in its capacity as _________. The parties agree
as follows:
1. Credit Agreement; Definitions. This Agreement amends the
Credit Agreement originally dated as of June 27, 1996 and amended and restated
as of November 1, 2000 and as further amended and restated as of August 14, 2001
among the parties hereto (as 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. Reference to Assignment. Reference is hereby made to the
Assignment and Acceptance (the "Assignment") dated as of even date herewith
between Fleet National Bank, in its capacity as a Lender under the Credit
Agreement, and [HSBC Bank USA]. The assignment and assumption referred to in the
Assignment is acknowledged to have occurred simultaneously herewith. The Amended
Credit Agreement reflects such assignment and assumption.
3. Amendment of Credit Agreement. Effective upon the date all the
conditions set forth in Section 5 hereof are satisfied (the "Amendment Date"),
which conditions must be satisfied no later than the date provided therein, the
Credit Agreement is amended as follows:
3.1. Amendment of Section 1.125. The definition of
"Required Lenders" in Section 1.125 of the Credit Agreement is amended
to read in its entirety as follows:
1.125. "Required Lenders" means, with respect to any
approval, consent, modification, waiver or other action to be
taken by the Agent or the Lenders under either Loan which
requires action by the Required Lenders, such Lenders as own
at least 66 2/3% of the Percentage Interests of such Loan;
provided, however, that with respect to any matters referred
to in the provisos to Section 11.6, Required Lenders means
such Lenders as own at least the respective portions of the
Percentage Interests of the relevant Loan required by Section
11.6.
3.2. 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 Net Worth. On the last day of each
fiscal quarter of the Company and its Related Entities, Consolidated
Net Worth shall equal at least the sum of (a) $386,389,971, plus (b)
Net Equity Proceeds, plus (c) 50% of Consolidated Net Income (if
positive) for each fiscal quarter of the Company ending after the
Initial Closing Date.
3.3. Amendment of Section 11.1. Section 11.1 of the Credit
Agreement is amended by replacing the table set forth therein with the
following table:
Percentage Interest
Maximum Principal of Revolving Loan
Amount of and Letter of Credit
Revolving Loan Exposure
----------------- --------------------
Fleet National Bank $ 30,000,000 30.00%
Firstar Bank N.A 25,000,000 25.00
[HSBC Bank USA] 25,000,000 25.00
UBS AG, Stamford Branch 15,000,000 15.00
The International Bank of Miami, N.A 5,000,000 5.00
-------------- --------
Total $ 100,000,000 100.00%
============== ========
4. Representations and Warranties. Each of the Obligors jointly
and severally represents and warrants as follows:
4.1. Legal Existence, Organization. Each of the Obligors
is duly organized and validly existing and in good standing under the
laws of the jurisdiction of its organization, with all power and
authority, corporate, limited liability company, partnership or
otherwise, necessary (a) to enter into and perform this Agreement and
the Amended Credit Agreement and (b) to own its properties and carry on
the business now conducted or proposed to be conducted by it. Each of
the Obligors has taken all corporate, limited liability company,
partnership or other action required to make the provisions of this
Agreement and the Amended Credit Agreement the valid and enforceable
obligations they purport to be.
4.2. Enforceability. Each of the Obligors has duly
authorized, executed and delivered this Agreement. Each of this
Agreement and the Amended Credit Agreement is the legal, valid and
binding obligation of each of the Obligors and is enforceable against
the Obligors in accordance with its terms.
4.3. No Legal Obstacle to Agreements. Neither the
execution, delivery or performance of this Agreement, nor the
performance of the Amended Credit Agreement, nor the consummation of
any other transaction referred to or contemplated by this Agreement,
nor the fulfillment of the terms hereof or thereof, has constituted or
resulted in or will constitute or result in:
(a) any breach or termination of any agreement,
instrument, deed or lease to which any Obligor is a party or by which
it is bound, or of the Charter or By-laws of any Obligor;
(b) the violation of any law, judgment, decree or
governmental order, rule or regulation applicable to any Obligor;
(c) the creation under any agreement, instrument, deed or
lease of any Lien (other than Liens on the Credit Security which secure
the Credit Obligations) upon any of the assets of the Obligors; or
(d) any redemption, retirement or other repurchase
obligation of any Obligor under any Charter, By-law, agreement,
instrument, deed or lease.
No approval, authorization or other action by, or declaration to or
filing with, any governmental or administrative authority or any other
Person is required to be obtained or made by the Obligors in connection
with the execution, delivery and performance of this Agreement or the
performance of the Amended Credit Agreement, or the consummation of the
transactions contemplated hereby or thereby.
4.4. Defaults. Immediately before and after giving effect
to the amendments set forth in Section 2 hereof, no Default will exist.
4.5. Incorporation of Representations and Warranties. The
representations and warranties set forth in Section 7 of the Amended
Credit Agreement are true and correct on the date hereof as if
originally made on and as of the date hereof.
5. Conditions. The effectiveness of this Agreement shall be
subject to the satisfaction of the following conditions, which conditions must
be satisfied no later than _______ __, 2001 or this Agreement shall terminate:
5.1. Notes. The Borrowers shall have duly authorized,
executed and delivered to the Agent Notes for each Lender.
5.2. Legal Opinion. On the Amendment Date, the Lenders
shall have received from Greenberg Traurig, P.A., counsel for the
Company and its Subsidiaries, their opinion with respect to the
transactions contemplated by this Agreement, which opinion shall be in
form and substance satisfactory to the Lenders. The Company and its
Subsidiaries authorize and direct their counsel to furnish the
foregoing opinion.
5.3. Officer's Certificate. The representations and
warranties of the Obligors set forth or incorporated by reference
herein shall be true and correct as of the Amendment Date as if
originally made on and as of the Amendment Date; no Default shall have
occurred on or prior to the Amendment Date; and the Agent shall have
received a certificate to these effects signed by a Financial Officer
in the event the Amendment Date occurs after the date hereof.
5.4. Payment of Agent's Fees and Expenses. The Company
shall have paid to the Agent (a) for the account of the Lenders, an
amendment fee in an amount equal to ___% of the respective Commitments
of the Lenders and (b) the reasonable legal fees and expenses of the
Agent with respect to this Agreement and the transactions contemplated
hereby.
5.5. Proper Proceedings. This Agreement, each other Credit
Document and the transactions contemplated hereby and thereby shall
have been authorized by all necessary proceedings of each Obligor and
any of their respective Affiliates party thereto. All necessary
consents, approvals and authorizations of any governmental or
administrative agency or any other Person with respect to any of the
transactions contemplated hereby or by any other Credit Document shall
have been obtained and shall be in full force and effect. The Agent
shall have received copies of all documents, including certificates,
records of corporate, limited liability company, partnership or other
proceedings and opinions of counsel, which the Agent may have
reasonably requested in connection therewith, such documents where
appropriate to be certified by proper corporate, limited liability
company, partnership or governmental authorities.
6. Certain Calculations. Amounts in respect of interest,
commitment fees, Letter of Credit fees and other amounts payable under the
Amended Credit Agreement shall be payable in accordance with the terms of the
Credit Agreement as in effect prior to giving effect to the amendments provided
in Section 3 hereof for periods prior to the Amendment Date and in accordance
with the Amended Credit Agreement for periods from and after the Amendment Date.
7. Further Assurances. Each of the Obligors will, promptly upon
the request of the Agent from time to time, execute, acknowledge, deliver, file
and record all such instruments and notices, and take all such other action, as
the Agent deems necessary or advisable to carry out the intent and purposes of
this Agreement.
8. 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, the Assignment 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.
[The remainder of this page is intentionally blank]
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 above written.
PEDIATRIX MEDICAL GROUP, INC. (Florida)
By: /s/ Karl B. Wagner
-------------------------------------------
Karl B. Wagner, Chief Financial Officer
ALASKA NEONATOLOGY ASSOCIATES, INC.
AUGUSTA NEONATOLOGY ASSOCIATES, P.C.
DES MOINES PERINATAL CENTER, P.C.
FOOTHILL MEDICAL GROUP, INC.
FORT WORTH NEONATAL ASSOCIATES, P.A.
OBSTETRIX MEDICAL GROUP OF CALIFORNIA, A
PROFESSIONAL CORPORATION
MAGELLA HEALTHCARE GROUP, L.P.
MAGELLA MEDICAL ASSOCIATES, P.A.
MAGELLA MEDICAL ASSOCIATES OF GEORGIA, P.C.
MAGELLA MEDICAL ASSOCIATES MIDWEST, P.C.
MAGELLA MEDICAL GROUP, INC. (d/b/a MAGELLA
MEDICAL GROUP, A MEDICAL CORPORATION)
MAGELLA NEVADA, LLC
MAGELLA TEXAS, LLC
MARCIA J. PERNOLL, M.D. PROF. CORP. d/b/a OBSTETRIX
MEDICAL GROUP OF NEVADA, LTD.
MOUNTAIN STATES NEONATOLOGY, INC.
NEONATAL AND PEDIATRIC INTENSIVE CARE
MEDICAL GROUP, INC.
NEONATOLOGY ASSOCIATES, P.A.
NEONATOLOGY-CARDIOLOGY ASSOCIATES, P.A.
NEWBORN SPECIALISTS, P.C.
OBSTETRIX MEDICAL GROUP OF COLORADO, P.C.
OBSTETRIX MEDICAL GROUP OF KANSAS AND
MISSOURI, P.A.
OBSTETRIX MEDICAL GROUP OF TEXAS, P.A.
OZARK NEONATAL ASSOCIATES, INC.
By: /s/ Karl B. Wagner
-------------------------------------------
Karl B. Wagner, Attorney-in-Fact
PEDIATRIX MEDICAL GROUP OF ARKANSAS, P.A.
PEDIATRIX MEDICAL GROUP OF CALIFORNIA, A
PROFESSIONAL CORPORATION
PEDIATRIX MEDICAL GROUP OF COLORADO, P.C.
PEDIATRIX MEDICAL GROUP OF GEORGIA, P.C.
PEDIATRIX MEDICAL GROUP OF INDIANA, P.C.
PEDIATRIX MEDICAL GROUP OF KANSAS, P.A.
PEDIATRIX MEDICAL GROUP OF MISSOURI, P.C.
PEDIATRIX MEDICAL GROUP OF OKLAHOMA, P.C.
PEDIATRIX MEDICAL GROUP OF PENNSYLVANIA, P.C.
PEDIATRIX MEDICAL GROUP OF PUERTO RICO, P.S.C.
PEDIATRIX MEDICAL GROUP OF TEXAS, P.A.
PEDIATRIX MEDICAL GROUP NEONATOLOGY AND
PEDIATRIC INTENSIVE CARE SPECIALISTS
OF NEW YORK, P.C.
PEDIATRIX MEDICAL GROUP
PEDIATRIX OF MARYLAND, P.A.
PERINATAL PEDIATRICS, P.A.
PERNOLL MEDICAL GROUP OF NEVADA, LTD.
d/b/a PEDIATRIX MEDICAL GROUP OF NEVADA
SAVANNAH NEONATOLOGY, INC.
ST. JOSEPH NEONATOLOGY CONSULTANTS, P.A.
TEXAS MATERNAL FETAL MEDICINE, P.A.
By: /s/ Karl B. Wagner
----------------------------------
Karl B. Wagner, Attorney-in-Fact
PEDIATRIX MEDICAL GROUP OF OHIO CORP.
By: /s/ Karl B. Wagner
----------------------------------
Karl B. Wagner, Secretary
ASSOCIATES IN NEONATOLOGY, INC.
BNA ACQUISITION COMPANY, INC.
CENTRAL OKLAHOMA NEONATOLOGY
ASSOCIATES, INC.
FLORIDA REGIONAL NEONATAL ASSOCIATES, P.A.
GNPA ACQUISITION COMPANY, INC.
MAGELLA HEALTHCARE CORPORATION
MNPC ACQUISITION COMPANY, INC.
NACF ACQUISITION COMPANY, INC.
NEONATAL SPECIALISTS, LTD.
NSPA ACQUISITION COMPANY, INC.
OBSTETRIX MEDICAL GROUP OF ARIZONA, P.C.
OBSTETRIX MEDICAL GROUP OF DELAWARE, INC.
OBSTETRIX MEDICAL GROUP OF PENNSYLVANIA, P.C.
OBSTETRIX MEDICAL GROUP OF PHOENIX, P.C.
OBSTETRIX MEDICAL GROUP OF
WASHINGTON, INC., P.S.
OBSTETRIX MEDICAL GROUP, INC.
PALM BEACH NEO ACQUISITIONS, INC.
PASCV ACQUISITION COMPANY, INC.
PEDIATRIX MEDICAL GROUP OF DELAWARE, INC.
PEDIATRIX MEDICAL GROUP OF FLORIDA, INC.
PEDIATRIX MEDICAL GROUP OF NEW MEXICO, P.C.
PEDIATRIX MEDICAL GROUP OF SOUTH CAROLINA, P.A.
PEDIATRIX MEDICAL GROUP OF TENNESSEE, P.C.
PEDIATRIX MEDICAL GROUP OF WASHINGTON, INC., P.S.
PEDIATRIX MEDICAL GROUP, INC. (Utah)
PEDIATRIX MEDICAL GROUP, P.A.
PEDIATRIX MEDICAL GROUP, P.C. (Virginia)
PEDIATRIX MEDICAL GROUP, P.C. (West Virginia)
PMG ACQUISITION CORP.
PNA ACQUISITION CO., INC.
RPNA ACQUISITION COMPANY, INC.
SCPMC ACQUISITION CO.
SNCA ACQUISITION COMPANY, INC.
By: /s/ Karl B. Wagner
----------------------------------
Karl B. Wagner, Treasurer
FLEET NATIONAL BANK
By /s/ Thomas Farley, Jr.
----------------------------------
Thomas Farley, Jr.
Group Manager
FIRSTAR BANK N.A.
By: /s/ L. Alec Blanc III
----------------------------------
Name: L. Alec Blanc III
Title: Sr. Vice President
UBS AG, STAMFORD BRANCH
By: /s/ Wilfred V. Saint
---------------------------------------------------------
Name: Wilfred V. Saint
Title: Associate Director Banking Products Services, US
By: /s/ Susan Brunner
---------------------------------------------------------
Name: Susan Brunner
Title: Associate Director, Banking Products, US
THE INTERNATIONAL BANK OF MIAMI, N.A.
By: /s/ Eduardo Hornero
----------------------------------
Name: Eduardo Hornero
Title: Vice President
[HSBC BANK USA]
By: /s/ John A. Kaiser
----------------------------------
Name: John A. Kaiser
Title: Senior Vice President