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.
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
“ Preliminary Compliance Certificate ”),
and the Schedule 5.05 referred to in
Section 5.05 of the Credit Agreement is updated as
provided on such Preliminary Compliance Certificate);
(b) Other than the
matters set forth on Schedule 5.06 of the Credit
Agreement and the existence or circumstances s
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