|
Exhibit 10.1
CONSENT TO EXTENSION AGREEMENT
This Consent to Extension
Agreement (this " Agreement ") dated as of
December 14, 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.
W I T N E S S E T H:
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 quarters
ended June 30, 2006 and September 30, 2006 within the
time provided by Section 6.01(b) of the Credit
Agreement or the Compliance Certificate for each 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 October 13, 2006 (the " Prior
Extension Agreement ") the parties thereto agreed to extend
such delivery requirement until December 15, 2006; and
WHEREAS , the Company has
now advised the Administrative Agent and the Lenders that it will
not deliver the financial statements for the fiscal quarters ended
June 30, 2006 and September 30, 2006 within the time
provided by Section 6.01(b) of the Credit Agreement or
the Compliance Certificates for such quarters within the time
provided by Section 6.02(b) of the Credit Agreement, as
such time was previously extended by the Prior Extension 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 March 15, 2007,
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 the extension of the time for delivery of the financial
statements for the fiscal quarters of the Company ended
June 30, 2006 and September 30, 2006 pursuant to
Section 6.01(b) of the Credit Agreement, and the
Compliance Certificates for each such period pursuant to Section
6.02(b) of the Credit Agreement, until March 15, 2007;
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 quarters ended June 30,
2006 and September 30, 2006.
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.
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,
2
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
contained in subsections (a) and (b) of
Section 5.05 of the Credit Agreement shall be deemed to
refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 6.01 of the
Credit Agreement (it being understood that for purposes of this
Agreement, the most recent financial statements delivered pursuant
to Section 6.01(b) of the Credit Agreement are those
attached to the preliminary Compliance Certificate delivered by the
Company to the Administrative Agent on November 15, 2006 (the
" Prelimin
| 
