EXHIBIT 10.44
AMERIPATH, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
Amendment No. 1
This Agreement, dated as of July 21, 2000 (this "Agreement"), is among
AmeriPath, Inc., a Delaware corporation, its Subsidiaries set forth on the
signature pages hereof and Fleet National Bank (f/k/a BankBoston, N.A.), as
Agent for itself and the Required Lenders under the Credit Agreement (as defined
below). The parties agree as follows:
1. Credit Agreement; Definitions. This Agreement amends the Amended and
Restated Credit Agreement dated as of December 16, 1999 among the parties hereto
and the Lenders (as in effect prior to giving effect to this Agreement, the
"Credit Agreement"). Terms defined in the Credit Agreement as amended hereby
(the "Amended Credit Agreement") and not otherwise defined herein are used with
the meaning so defined.
2. Amendment of Credit Agreement. Effective upon the date hereof, the
Credit Agreement is amended as follows:
2.1. Amendment of Section 6.5.3. Section 6.5.3 of the Credit
Agreement is amended to read in its entirety as follows:
"6.5.3. Consolidated Operating Cash Flow. On the last day of
each fiscal quarter of the Borrower, Consolidated Operating
Cash Flow for the period of four consecutive fiscal quarters
then ending shall equal or exceed the percentage specified in
the table below of the sum of (i) Consolidated Total Debt
Service for such period minus (ii) voluntary prepayments of
the Loan:
Period Ending Percentage
Initial Closing Date through
December 30, 2002 125%
December 31, 2002 through
December 30, 2003 130%
December 31, 2003 and thereafter 145%
Notwithstanding the foregoing, in calculating Consolidated
Operating Cash Flow for purposes of this Section 6.5.3, for
periods ending June 30, 2000 through March 31, 2001, charges
totaling $5,240,000 in connection with the impairment
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of assets and related charges for AmeriPath PCC, Inc. shall
not be subtracted from Consolidated EBITDA."
2.2. Amendment to Section 6.9. Section 6.9 of the Credit
Agreement is amended by inserting the following new Section 6.9.8 at
the end of such Section 6.9:
"6.9.8. Minority equity Investment of up to $3,000,000 in
Genomics Collaborative, Inc."
2.3. Amendment to Section 6.21.2(a). Section 6.21.2(a) of the
Credit Agreement is amended to read in its entirety as follows:
"(a) Purchase Price Limitation. The Financing Debt component
of the consideration for such acquisition shall not exceed the
sum of 450% of the Pro Forma EBITDA of the Acquired Party for
the most recently completed period of four consecutive fiscal
quarters plus the cash and Cash Equivalents of the Acquired
Party that are being purchased. In addition, a minimum of 10%
of the Purchase Price shall be in the form of the Company's
capital stock."
3. Representation and Warranty. In order to induce the Agent to enter
into this Agreement, each of the Borrower and the Guarantors jointly and
severally represents and warrants that, after giving effect to this Agreement,
no Default exists.
4. Payment of Agent's Legal Expenses. Upon or prior to the
effectiveness of this Agreement, the Borrower agrees to pay the reasonable legal
fees and expenses of the Agent with respect to this Agreement and the
transactions contemplated hereby.
5. General. The Amended Credit Agreement and all of the Credit
Documents are each confirmed as being in full force and effect. This Agreement,
the Amended Credit Agreement and the other Credit Documents referred to herein
or therein constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral. Each of this Agreement
and the Amended Credit Agreement is a Credit Document and may be executed in any
number of counterparts, which together shall constitute one instrument, and
shall bind and inure to the benefit of the parties and their respective
successors and assigns, including as such successors and assigns all holders of
any Credit Obligation. This Agreement shall be governed by and construed in
accordance with the laws (other than the conflict of law rules) of The
Commonwealth of Massachusetts.
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first written above.
AMERIPATH, INC.
By /s/ Robert P. Wynn
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Name: Robert P. Wynn
Title: Executive Vice President
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The Guarantors
AMERIPATH ALABAMA, INC.
SHOALS PATHOLOGY ASSOCIATES, INC.
AMERIPATH FLORIDA, INC.
LABORATORY PHYSICIANS, JACKSONVILLE, INC.
PASADENA PATHOLOGY EDWARD K MILLER, M.D., INC.
SOUTH FLORIDA PATHOLOGY ASSOCIATES, INC.
HIALEAH PATHOLOGY ASSOCIATES, INC.
OCMULGEE MEDICAL PATHOLOGY ASSOCIATION, INC.
AMERIPATH INDIANA, INC.
AMERIPATH KENTUCKY, INC.
AMERIPATH MICHIGAN, INC.
AMERIPATH MISSISSIPPI, INC.
R.M.C. PATHOLOGY ASSOCIATES, INC.
AMERIPATH NEW YORK, INC.
AMERIPATH NORTH CAROLINA, INC.
AMERIPATH OHIO, INC.
AMERIPATH CINCINNATI, INC.
AMERIPATH CLEVELAND, INC.
AMERIPATH P.C.C., INC.
AMERIPATH YOUNGSTOWN, INC.
AMERIPATH YOUNGSTOWN LABS, INC.
A. BERNARD ACKERMAN, M.D. DERMATOPATHOLOGY, P.C.
AMERIPATH PENNSYLVANIA, INC.
AMERIPATH PHILADELPHIA, INC.
AMERIPATH 5.01(a) CORPORATION
DFW 5.01(a) CORPORATION
AMERIPATH SAN ANTONIO 5.01(a) CORPORATION
AMERIPATH LUBBOCK 5.01(a) CORPORATION
AMERIPATH TEXAS, INC.
AMERIPATH SHERMAN, INC.
PATHOLOGY AFFILIATED SERVICES, INC.
PLAZA PATHOLOGY, INC.
AMERIPATH PAT, INC.
AMERIPATH WISCONSIN, INC.
By /s/ Robert P. Wynn
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Name: Robert P. Wynn
As an authorized officer of each of the
foregoing corporations
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FLEET NATIONAL BANK,
as Agent under the Credit Agreement
By /s/ Carol P. Castle
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Name: Carol P. Castle
Title: Director
FLEET NATIONAL BANK,
as Lender under the Credit Agreement
By /s/ Carol P. Castle
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Name: Carol P. Castle
Title: Director
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The foregoing amendment is approved by the
Required Lenders signing below:
Bank of America, N.A.
By /s/ Alexander L. Rody
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Name: Alexander L. Rody
Title: Senior Vice President
Bank One, NA
By /s/ Jason D. White
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Name: Jason D. White
Title: Director
First Union National Bank
By /s/ Ann M. Dodd
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Name: Ann M. Dodd
Title: Senior Vice President
Citizens Bank of Massachusetts (as successor
to USTrust)
By
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Name:
Title:
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Bank Austria Creditanstalt
Corporate Finance, Inc.
By
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Name:
Title:
By
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Name:
Title:
SunTrust Bank, Central Florida, National
Association
By
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Name:
Title:
U.S. Bank National Association
By
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Name:
Title:
AmSouth Bank
By
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Name:
Title:
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Imperial Bank
By /s/ Paula J. Barysauskas
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Name: Paula J. Barysauskas
Title: First Vice President
BankAtlantic
By
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Name:
Title:
