Exhibit 10.1
AMENDMENT NO. 1, WAIVER and
CONSENT dated as of November 8, 2005 (this “
Amendment ”), to the Amended and Restated
Credit Agreement dated as of February 17, 2004 (the “
Credit Agreement ”), among AmeriPath, Inc., a
Delaware corporation (the “ Borrower ”),
AmeriPath Holdings, Inc., a Delaware corporation (“
Holdings ”), the lenders from time to time
party thereto (the “ Lenders ”) and
Credit Suisse (formerly known as Credit Suisse First Boston), as
administrative agent (in such capacity, the “
Administrative Agent ”) and collateral agent
(in such capacity, the “ Collateral Agent
”) for the Lenders.
A. Pursuant to the Credit Agreement,
the Lenders have extended, and have agreed to extend, credit to the
Borrower.
B. The Borrower has requested an
amendment to Section 6.10 (Capital Expenditures) of the Credit
Agreement as set forth herein.
C. The Borrower has informed the
Administrative Agent that the Borrower’s Capital Expenditures
have exceeded the amount permitted under Section 6.10 (Capital
Expenditures) of the Credit Agreement for the period
January 1, 2005 through December 31, 2005. The Borrower
has requested that the Required Lenders grant a limited waiver of
compliance with Section 6.10 of the Credit Agreement as set
forth herein.
D. Pursuant to Section 9.17(d)
of the Credit Agreement, the Borrower has further requested the
consent of the Required Lenders to the prepayment of certain
Contingent Notes at a discount to the principal amount thereof, as
more fully described in the “Consent of Required
Lenders” attached as Annex I hereto (the “
Prepayment Consent ”).
E. Capitalized terms used but not
defined herein shall have the meanings assigned to them in the
Credit Agreement.
Accordingly, in consideration of the
mutual agreements herein contained and other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment.
Section 6.10 (Capital Expenditures) of the Credit Agreement is
hereby amended by deleting the amount “$20,000,000”
appearing opposite the period January 1, 2005 through
December 31, 2005, and substituting therefor the amount
“$36,000,000”.
SECTION 2. Waiver . The
Required Lenders hereby waive any Default or Event of Default that
may have existed under the provisions of Section 6.10 (Capital
Expenditures) of the Credit Agreement as a result of Capital
Expenditures made prior to the Effective Date (as defined below),
to the extent that such Capital Expenditures would have been
permitted by such Section 6.10 under the terms of the Credit
Agreement as amended hereby.
SECTION 3. Consent . The
Required Lenders hereby authorize the Administrative Agent to enter
into the Prepayment Consent.
SECTION 4. Representations and
Warranties. To induce the other parties hereto to enter into
this Amendment, Holdings and the Borrower represent and warrant to
each of the Lenders, the Administrative Agent and the Collateral
Agent that, after giving effect to this
Amendment, (a) the representations and
warr
