CONSENT TO EXTENSION
AGREEMENT
This Consent to
Extension Agreement (this “ Agreement ”)
dated as of October 13, 2006 is made by and among PEDIATRIX
MEDICAL GROUP, INC., a Florida corporation, and certain of its
subsidiaries and affiliates (collectively, the “
Borrowers ”), BANK OF AMERICA, N.A., a national
banking association organized and existing under the laws of the
United States (“ Bank of America ”), in
its capacity as administrative agent for the Lenders (as defined in
the Credit Agreement (as defined below)) (in such capacity, the
“ Administrative Agent ”), and each of
the Lenders signatory hereto.
WHEREAS ,
the Borrowers, the Administrative Agent and the Lenders have
entered into that certain Credit Agreement dated as of
July 30, 2004 (as previously amended and as from time to time
hereafter further amended, modified, supplemented, restated, or
amended and restated, the “ Credit Agreement ”;
capitalized terms used in this Agreement not otherwise defined
herein shall have the respective meanings given thereto in the
Credit Agreement), pursuant to which the Lenders have made
available to the Borrowers a revolving credit facility, including a
letter of credit facility and a swing line facility; and
WHEREAS ,
the Company previously advised the Administrative Agent and the
Lenders that it would not deliver the financial statements for the
fiscal quarter ended June 30, 2006 within the time provided by
Section 6.01(b) of the Credit Agreement or the
Compliance Certificate for such quarter within the time provided by
Section 6.02(b) of the Credit Agreement, and pursuant
to that certain Consent to Extension Agreement dated as of
August 11, 2006 (the “ Prior Extension Agreement
”) the parties thereto agreed to extend such delivery
requirement until October 15, 2006; and
WHEREAS ,
the Company has now advised the Administrative Agent and the
Lenders that it will not deliver (a) the financial statements
for the fiscal quarter ended June 30, 2006 within the time
provided by Section 6.01(b) of the Credit Agreement or
the Compliance Certificate for such quarter within the time
provided by Section 6.02(b) of the Credit Agreement, as
such time was previously extended by the Prior Extension Agreement,
or (b) the financial statements for the fiscal quarter ended
September 30, 2006 within the time provided by
Section 6.01(b) of the Credit Agreement or the
Compliance Certificate for such quarter within the time provided by
Section 6.02(b) of the Credit Agreement, and the
Company has therefore requested that the Administrative Agent, the
Swing Line Lender, the L/C Issuer and the Lenders consent to extend
the time for delivering all such financial statements and
Compliance Certificates until December 15, 2006, and the
parties hereto are willing so to consent to the extension of each
such delivery pursuant to Section 10.01 of the Credit
Agreement until such time on the terms and conditions set forth in
this Agreement;
NOW,
THEREFORE , in consideration of the premises and further
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as
follows:
1.
Consent to Extension . Subject to the terms and conditions
set forth herein, Administrative Agent, the Swing Line Lender, the
L/C Issuer and the Required Lenders consent to:
(a) the extension
of the time for delivery of the financial statements for the fiscal
quarter of the Company ended June 30, 2006 pursuant to
Section 6.01(b) of the Credit Agreement, and the
Compliance Certificate for such period pursuant to Section
6.02(b) of the Credit Agreement, until December 15, 2006;
provided that such consent shall only apply to an extension
for the financial statements required by
Section 6.01(b) of the Credit Agreement and the
Compliance Certificate required by Section 6.02(b) of
the Credit Agreement for the fiscal quarter ended June 30,
2006; and
(b) the extension
of the time for delivery of the financial statements for the fiscal
quarter of the Company ended September 30, 2006 pursuant to
Section 6.01(b) of the Credit Agreement, and the
Compliance Certificate for such period pursuant to Section
6.02(b) of the Credit Agreement, until December 15, 2006;
provided that (i) such consent shall only apply to an
extension for the financial statements required by
Section 6.01(b) of the Credit Agreement and the
Compliance Certificate required by Section 6.02(b) of
the Credit Agreement for the fiscal quarter ended
September 30, 2006, and (ii) the consent provided in this
paragraph 1(b) shall terminate on November 15, 2006 unless, on
or prior to such date the Company has delivered to the
Administrative Agent, for further delivery to the Lenders,
preliminary financial statements for the fiscal quarter ended
September 30, 2006 and calculations of the financial covenants
in scope and detail as provided in the Preliminary Compliance
Certificate (defined below) based on such preliminary financial
statement information.
2.
Effectiveness; Conditions Precedent . The effectiveness of
this Agreement and the consent to extension of time provided herein
are subject to the satisfaction of the following conditions
precedent, after which such satisfaction the consent to extension
of time herein provided shall be deemed to be effective:
(a) the
Administrative Agent shall have received each of the following
documents or instruments in form and substance reasonably
acceptable to the Administrative Agent:
(i) an original or
facsimile (promptly followed by originals) executed counterpart of
this Agreement, duly executed by each Borrower, the Administrative
Agent, the Swing Line Lender, the L/C Issuer and the Required
Lenders; and
(ii) such other
documents, instruments, certifications, undertakings, further
assurances and other matters as the Administrative Agent shall
reasonably request;
(b) all fees and
expenses payable to the Administrative Agent and the Lenders
(including the fees and expenses of counsel to the Administrative
Agent) invoiced to date shall have been paid in full.
2
3.
Consent and Continued Enforceability . Each Borrower hereby
consents, acknowledges and agrees to the consent to extension of
time set forth herein and hereby confirms and ratifies in all
respects its obligations under the Credit Agreement and each other
Loan Document (including without limitation the continuation of
such Borrower’s payment and performance obligations
thereunder upon and after the effectiveness of this Agreement and
the consent to extension of time contemplated hereby) and the
enforceability of each such Loan Document against such Borrower in
accordance with its terms.
4.
Representations and Warranties . In order to induce the
Administrative Agent and the Lenders to enter into this Agreement,
each Borrower represents and warrants to the Administrative Agent
and the Lenders as follows:
(a) Except to the
extent that such representations and warranties relate to the
existence, outcome or circumstances surrounding the previously
disclosed review of the Company’s stock option practices and
any adjustments that may need to be made to its financial
statements as a result thereof, the representations and warranties
made by each Borrower in Article V of the Credit
Agreement and in each of the other Loan Documents to which such
Borrower is a party are true and correct on and as of the date
hereof, except to the extent that such representations and
warranties expressly relate to an earlier date, and except that for
purposes of this Section 4 , the representations and
warranties c
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