Exhibit 10.20
AMENDMENT NO. 3 TO
THE REVOLVING CREDIT
AGREEMENT
AMENDMENT NO. 3 TO THE REVOLVING
CREDIT AGREEMENT dated as
of December 14, 2006 (this “ Amendment ”)
among MSC-Medical Services Company, a Florida corporation (the
“ Borrower ”), MCP-MSC Acquisition, Inc., a
Delaware corporation (“ Holdings ”), the banks,
financial institutions and other lenders party hereto
(collectively, the “ Lenders ”) and Bank of
America, N.A. (“ Bank of America ”), as
administrative agent (in such capacity, the “
Administrative Agent ”) for the Lenders.
PRELIMINARY
STATEMENTS:
(1) The Borrower, the Guarantors,
the Administrative Agent, the Lenders and Bank of America, as L/C
Issuer, have entered into a Revolving Credit Agreement dated as of
March 31, 2005, as amended by Amendment No. 1 to the
Revolving Credit Agreement dated as of May 12, 2005 and
Amendment No. 2 to the Revolving Credit Agreement dated as of
December 9, 2005 (the “ Credit Agreement
”). Capitalized terms not otherwise defined in this Amendment
have the same meanings as specified in the Credit
Agreement.
(2) The Borrower, the Administrative
Agent and the Lenders have agreed to amend the Credit Agreement in
certain respects as set forth below.
SECTION 1. Amendments to Credit
Agreement . Upon, and subject to, the satisfaction of the
conditions precedent set forth in Section 2 hereof, the
Credit Agreement is hereby amended, as follows:
(a) Section 1.01 is
amended by inserting in the appropriate alphabetical order the
following definitions:
“ Calculation Period
” means, with respect to the calculation of the Consolidated
Fixed Charge Coverage Ratio for purposes of satisfying the
Transaction Conditions, the most recently completed Measurement
Period for which a Compliance Certificate has been delivered
pursuant to Section 6.02(b) ; provided that if
such calculation occurs (A) prior to the delivery of a
Compliance Certificate in respect of the most recently completed
Measurement Period or (B) more than one month after the end of
the most recently completed Measurement Period, “
Calculation Period ” shall mean, at the
Borrower’s option, either (i) the most recently
completed Measurement Period for which a Compliance Certificate has
been delivered pursuant to Section 6.02(b) or
(ii) a 12 month period (the “ Test Period
”) ending on the last day of either of the two calendar
months preceding such calculation to the extent that the Borrower
provides the Administrative Agent with (a) financial
statements meeting the requirements of Section 6.01(b)
for the period commencing with the first day following the last
Measurement Period for which a Compliance Certificate has been
delivered and ending on the last day of the Test Period and
(B) a Compliance Certificate in respect of such Test
Period.
“ Capital Expenditure
Carryover Amount ” has the meaning specified in
Section 7.19 .
Amendment No. 3 to MSC Revolving
Credit Agreement
“ Restricted
Transaction ” means (a) the incurrence of any
Permitted Holdco Debt pursuant to Section 7.02(h) ,
(b) the making of any Investment pursuant to
Section 7.03(h) , 7.03(i) or 7.03(k)(i) ,
(c) the making of any Restricted Payment pursuant to
Section 7.06(d)(i) or 7.06(g) , (d) any
redemption, purchase or prepayment of Holdco Senior Discount Notes
pursuant to Section 7.14(d) and (e) the
determination of whether the Borrower is entitled to any Capital
Expenditure Carryover Amount pursuant to Section 7.19
.
“ Suspension Consolidated
Fixed Charge Coverage Ratio ” means, for any consecutive
twelve month period, as of any date of determination, the ratio of
(but without duplication) (a) Consolidated EBITDA minus
(i) Capital Expenditures minus (ii) Federal,
state, local and foreign income or franchise taxes paid or required
to be paid in cash minus (iii) the aggregate amount
attributable to any Restricted Transaction (excluding any such
amount to the extent included in clause (b) hereof)
consummated during such period to (b) the sum of
(i) Consolidated Cash Interest Charges plus
(ii) the aggregate amount of scheduled payments and
redemptions, repurchases, prepayments and similar acquisitions for
value in respect of, all Consolidated repurchases, prepayments and
similar acquisitions for value in respect of, all Consolidated
Funded Indebtedness, but excluding payments on the Revolving Credit
Loans not accompanied by a corresponding reduction of the
Commitments under the Revolving Credit Facility and any such
redemptions, repurchases, prepayments and similar acquisitions to
the extent refinanced through the incurrence of additional
Indebtedness otherwise expressly permitted under
Section 7.02 .
“ Suspension Date
” means the first date following the consummation of a
Restricted Transaction on which the Suspension Consolidated Fixed
Charge Coverage Ratio for the consecutive twelve month period
ending with the month for which financial statements have most
recently been delivered pursuant to Section 6.01(c) ,
is no less than 1.00:1.00.
“ Transaction
Conditions ” means, with respect to any Restricted
Transaction, the satisfaction at the time of the consummation of
such Restricted Transaction of the following conditions:
(a) no Default shall exist, or would result from the
consummation of such Restricted Transaction; (b) the
Consolidated Fixed Charge Coverage Ratio for the most recently
completed Calculation Period ending prior to such Restricted
Transaction, after giving pro forma effect to such
Restricted Transaction and to any other Restricted Transaction
occurring after such Calculation Period as if such Restricted
Transaction had occurred as of the first day of such Calculation
Period shall be not less than (i) prior to March 31,
2008: (A) with respect to the determination of whether the
Borrower is entitled to any Capital Expenditure Carryover Amount,
1.25:1.00 and (B) with respect to any other Restricted
Transaction, 1.00:1.00, (ii) on and after March 31, 2008
but prior to June 30, 2008: (A) with respect to the
determination of whether the Borrower is entitled to any Capital
Expenditure Carryover Amount, 1.25:1.00 and (B) with respect
to any other Restricted Transaction, 1.10:1.00, (iii) on and
after June 30, 2008 but prior to September 30, 2008:
(A) with respect to the determination of whether the Borrower
is entitled to any Capital Expenditure Carryover Amount, 1.25:1.00
and (B) with respect to any other Restricted Transaction,
1.20:1.00 and (iv) on and after September 30, 2008 ,
1.25:1.00; and (c) solely with respect to any Restricted
Transaction contemplated by clauses (a) through
(d) of the
Amendment No. 3 to MSC Revolving
Credit Agreement
2
definition thereof, the Borrowing
Availability shall be at least $5,000,000 both before and after
giving effect to such Restricted Transaction.
(b) Section 1.01 is
further amended as follows:
(i) The definition of “
Consolidated EBITDA ” is amended and restated in its
entirety as follows:
“ Consolidated EBITDA
” means, at any date of determination, an amount equal to
Consolidated Net Income of the Borrower and its Subsidiaries for
the most recently completed Measurement Period plus the
following to the extent deducted in calculating, or otherwise
reducing, such Consolidated Net Income, without duplication:
(a) Consolidated Interest Charges, (b) the provision for
Federal, state, local and foreign income or franchise taxes
payable, (c) depreciation and amortization expense and
(d) any non-cash charges relating to the impairment of
goodwill not to exceed $125,000,000 in the aggregate for fiscal
years 2006 and 2007.
(ii) The definition of “
Consolidated Fixed Charge Coverage Ratio ” is amended
and restated in its entirety as follows:
“ Consolidated Fixed Charge
Coverage Ratio ” means, for any Measurement Period, as of
any date of determination, the ratio of (a) Consolidated
EBITDA to (b) the sum of (i) Consolidated Cash Interest
Charges plus (ii) the aggregate amount of scheduled
payments and redemptions, repurchases, prepayments and similar
acquisitions for value in respect of, all Consolidated Funded
Indebtedness, but excluding payments on the Revolving Credit Loans
not accompanied by a corresponding reduction of the Commitments
under the Revolving Credit Facility and any such redemptions,
repurchases, prepayments and similar acquisitions to the extent
refinanced through the incurrence of additional Indebtedness
otherwise expressly permitted under Section 7.02
.
(c) The first sentence of
Section 5.11 is amended and restated in its entirety as
follows:
The Borrower and its Subsidiaries
have filed all Federal, state and other material tax returns and
reports required to be filed, and have paid all Federal, state and
other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except (a) as set forth on
Schedule 5.11 , (b) certain sales tax payable by the
Borrower and its Subsidiaries for any period prior to
December 14, 2006 in an aggregate amount of not more than
$3,530,000 as to which the Borrower and its Subsidiaries are
currently engaged in good faith settlement negotiations with the
relevant state or local authority (or have filed voluntary
disclosure requests or sales and use tax agreements) and for which
the Borrower and its Subsidiaries have established adequate
reserves in accordance with GAAP and (c) such other taxes,
assessments, fees or charges as are being contested in good faith
by appropriate action diligently conducted and for which adequate
reserves have been provided in accordance with GAAP.
Amendment No. 3 to MSC Revolving
Credit Agreement
3
(d) Section 6.01 shall
be amended by inserting a new subsection (e) following
the end of subsection (d) thereto as
follows:
(e) On or prior to the tenth
Business Day following each month commencing with the month ending
December 31, 2006, (i) forecasts, prepared by management
of the Borrower, in form satisfactory to the Administrative Agent,
of Consolidated statements of cash flows on a weekly basis for the
subsequent 13 week period (including cash receipts and
disbursements) for the Borrower and its Subsidiaries and
(ii) Consolidated statements of cash flows (including cash
receipts and disbursements) for the Borrower and its Subsidiaries
for the immediately preceding 13 week period, setting forth, to the
extent available based on forecasts delivered previously delivered
pursuant to clause (i) above, in comparative form
actual cash flow and planned cash flow for such 13 week
period.
(e) Section 6.01 shall
be further amended by inserting a new subsection (f)
following the end of subsection (e) thereto as
follows:
(f) As soon as available, but in any
event within 45 days after the end of each fiscal quarter of the
Borrower, a Pay Report.
(f) Section 6.04(a) is
hereby amended and restated in its entirety as follows:
(a) all tax liabilities, assessments
and governmental charges or levies upon it or its properties or
assets, unless (i) the same are being contested in good faith
by appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by the
Borrower or such Subsidiary or (ii) with respect to sales tax
payable by the Borrower and its Subsidiaries for any period prior
to December 14, 2006 in an aggregate amount of not more than
$3,530,000, the Borrower and its Subsidiaries are engaged in good
faith settlement negotiations in respect of the payment of such
sales tax with the relevant state or local authority, or are filing
or have filed voluntary disclosure requests or sales and use tax
agreements and have established adequate reserves in accordance
with GAAP;
(g) Article VI shall be
amended by inserting a new Section 6.20 after the end
of Section 6.19 , as follows:
Section 6.20
. Restricted Transactions. Upon the
consummation of any Restricted Transaction and at all times
thereafter until the Suspension Date, the Borrower shall maintain a
Borrowing Availability of not less than $5,000,000.
(h) Section 7.02(h) is
hereby amended by inserting “(I)” immediately after the
words “ provided , further” and further
inserting the words “and (II) with respect to any Permitted
Holdco Debt incurred after December 14, 2006, the Transaction
Conditions are met” immediately after the words “in the
aggregate” and before “; and”.
(i) Section 7.03(h)(v)
is hereby amended by (i) replacing the word “and”
with “;”immediately prior to “(B)” and
(ii) further inserting the words “and (C) with
respect to any Investment
Amendment No. 3 to MSC Revolving
Credit Agreement
4
made pursuant to this
Section 7.03(h) after December 14, 2006, the
Transaction Conditions are met” immediately after the words
“fiscal period covered thereby” and before “;
and”.
(j) Section 7.03(i) is
hereby amended and restated in its entirety as follows:
at any time after December 1,
2007, so long as the applicable Transaction Conditions are met,
other Investments by the Borrower and its Subsidiaries not
exceeding in the aggregate (i) prior to the Bridge Covenant
Release, $1,000,000, and (ii) thereafter,
$2,500,000;
(k) Section 7.03(k)(i)
is hereby amended and restated in its entirety as
follows:
(i) at any time after
December 1, 2007, so long as the Transaction Conditions are
met, any accrued interest in respect of any Permitted Holdco Debt
and any Permanent Financing issued by Holdings, in each case,
incurred in accordance with the terms hereof and required to be
paid in cash pursuant to the terms thereof so long as such
Investment is made five days prior to the required date for such
payment,
(l) Section 7.06 is
amended by deleting the “.” at the end of clause
(g) and inserting the following “:” and
adding the following proviso to Section 7.06 : “
provided that notwithstanding anything in this
Section 7.06 to the contrary, in no event shall the
Borrower or Holdings make any payment in respect of, or redeem or
defease any Permitted Holdco Debt prior to December 1,
2007.
(m) Section 7.06(d)(i)
is hereby amended and restated in its entirety as
follows:
(i) at any time after
December 1, 2007, so long as the Transaction Conditions are
met, any accrued interest in respect of any Permitted Holdco Debt
and any Permanent Financing issued by Holdings, in each case,
incurred in accordance with the terms hereof and required to be
paid in cash pursuant to the terms thereof so long as such
Restricted Payment is made five days prior to the required date for
such payment,
(n) Section 7.06(g) is
hereby amended and restated in its entirety as follows:
at any time after December 1,
2007, so long as the Transaction Conditions are met and after the
Bridge Covenant Release, the Borrower may make dividend payments
and distributions to Holdings in an amount not to exceed $1,000,000
in any fiscal year (any portion of which, if not paid in the fiscal
year for wh
