EXHIBIT 10.10.1
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(TERM LOAN)
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (TERM LOAN)
(this "AMENDMENT") is made and entered into as of this 29th day of March, 2002,
by and between CAPITALSOURCE FINANCE LLC., a Delaware limited liability company
(hereinafter "LENDER") and APS HEALTHCARE HOLDINGS, INC., a Delaware corporation
("BORROWER").
RECITALS
A. WHEREAS, pursuant to the terms and subject to the conditions of that
certain Amended and Restated Credit Agreement (Term Loans) dated as of July 23,
2001 between the Lender and Borrower (such Amended and Restated Credit
Agreement, as the same is hereby amended and may hereafter be amended from time
to time, being hereinafter referred to as the "LOAN AGREEMENT"), the Borrower
was provided a term loan facility in an aggregate amount not to exceed
$20,000,000 which included a letter of credit facility;
B. WHEREAS, payment of the Obligations of the Borrower under the Loan
Agreement is supported by the guaranties of APS Healthcare, Inc. ("PARENT") and
various subsidiaries of Borrower and Parent (collectively, the "GUARANTORS");
C. WHEREAS, to secure, in part, the Obligations (as defined in the Loan
Agreement), the Borrower, Parent and the Guarantors have heretofore executed in
favor of the Lender certain Loan Documents (as defined in the Loan Agreement),
such Loan Documents to continue as amended in connection herewith in full force
and effect upon the execution of this Amendment, all of such Loan Documents to
continue to secure the payment by the Borrower of the Obligations under the Loan
Agreement, all as more fully set forth herein;
D. WHEREAS, the Borrower's subsidiary, APS Healthcare Bethesda, Inc.
("APS BETHESDA"), desires to acquire (the "ACQUISITION") all of the ownership
interests of Innovative Resource Group, LLC ("IRG") from CC Holding, LLC, IRG
being the sole owner of all of the capital stock of CNR Partners, Inc. ("CNR").
The Acquisition is to be made pursuant to the terms of that certain Purchase and
Sale Agreement dated March 29, 2002 by and among APS Bethesda, IRG, CC Holdings,
LLC and Cobalt Corporation (the "PURCHASE AGREEMENT").
E. WHEREAS, APS Bethesda has formed a new wholly-owned subsidiary called
"APS Clinics of Puerto Rico, Inc." ("APS CLINICS") (APS Clinics, together with
IRG and CNR, sometimes collectively referred to herein as the "NEW GUARANTORS")
and has formed a new wholly-owned subsidiary called "APS Healthcare Ohio, Inc."
("APS OHIO").
F. WHEREAS, Borrower has requested Lender increase the amount of the Term
Loan to $30,000,000 and provide a $5,000,000 Bridge Loan in order to consummate
the Acquisition.
G. WHEREAS, in furtherance of the foregoing and to evidence the
agreements of the parties hereto in relation thereto the parties hereto desire
to amend the Loan Agreement as hereinafter provided;
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NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
AGREEMENT
ARTICLE I
DEFINITIONS
1.01 Capitalized terms used in this Amendment are defined in the Loan
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
AMENDMENTS TO LOAN AGREEMENT
The Loan Agreement is hereby amended as follows:
2.01 AMENDMENT AND RESTATEMENT OF SECTION 2.2. Effective as of the date of
this Amendment, Section 2.2 of the Loan Agreement is hereby amended and restated
in its entirety as follows:
"The Term Loan shall be evidenced by the five (5) term promissory notes
(individually, "Note A-1", "Note A-2", "Note B-1", "Note B-2" and "Note C,"
and collectively, the "Term Note"), each dated March 29, 2002 payable by
Borrower to the order of Lender in the original principal amounts of
$6,000,000, $4,000,000, $5,000,000, $5,000,000 and $10,000,000,
respectively, as the same may be modified, amended or supplemented from
time to time."
2.02 AMENDMENT AND RESTATEMENT OF SECTION 2.3. Effective as of the date of
this Amendment, Section 2.3 of the Loan Agreement is hereby amended and restated
in its entirety as follows:
"Interest on the outstanding balance of the Term Loan shall be payable
monthly in arrears on the first day of each calendar month at an annual
rate of the Prime Rate plus 4.5% PROVIDED, HOWEVER, interest on the
outstanding balance of the Term Loan shall be at an annual rate of the
Prime Rate plus 1.0% after the consummation of a Qualified IPO. Interest
under the Term Loan shall be calculated on the basis of a 360-day year and
for the actual number of calendar days elapsed in each interest calculation
period. Interest accrued on the Term Loan shall be due and payable on the
first day of each calendar month commencing July 1, 2001, and continuing
until the later of the expiration of the Term and the full performance and
irrevocable payment in full in cash of the Obligations under the Term Loan.
2.03 AMENDMENT AND RESTATEMENT OF SECTION 2.4(a). Effective as of the date
of this Amendment, Section 2.4(a) of the Loan Agreement is hereby amended and
restated in its entirety as follows:
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"(a) Payment of principal outstanding under the Term Loan shall be
made quarterly as follows:
(i) an amount equal to $250,000 on July 1, 2002;
(ii) on July 2, 2002, an amount to be paid each calendar quarter
during the remaining Term shall be set based upon a seven year
amortizing schedule for the principal outstanding under the Term Loan
as of July 2, 2002, and such quarterly payment shall be due and
payable on October 1, 2002 and on each January 1, April 1, July 1 and
October 1 thereafter during the Term; and
(iii) on March 31, 2005, all outstanding Obligations under the
Term Loan shall be due and payable in full."
2.04 AMENDMENT AND RESTATEMENT OF SECTION 2.8. Effective as of the date of
this Amendment, Section 2.8 of the Loan Agreement is hereby amended and restated
in its entirety as follows:
"In addition to any other mandatory prepayment or acceleration of the
Term Loan required by the terms of this Agreement or any Loan Document:
(a) in the event of a Change of Control on or prior to the
first Business Day following the date of such Change of Control,
Borrower shall prepay the Loans, in full together with accrued
interest thereon to the date of prepayment, and all other Obligations
owing to Lender hereunder or under the other Loan Documents;
(b) if Borrower or any of its Subsidiaries sells any of its
material assets or other properties (other than in the ordinary course
of business), receives any property damage insurance award which is
not used to repair or replace the property covered thereby, or incurs
any Indebtedness except for Permitted Indebtedness, then Borrower
shall apply 100% of the proceeds of any such sale (to the extent such
proceeds exceed $100,000, and then only to the extent of such excess),
award or Indebtedness to the prepayment of the Loans and the
Obligations hereunder, provided, however, that the reduction of
principal amortization shall be applied first to the last principal
payment due under Section 2.4(a) until such payment is reduced to zero
and then to the next preceding principal payment required under
Section 2.4(a) until any such preceding payment or payments is reduced
to zero. Once all principal amounts owing under the Term Loan have
been fully repaid, any such remaining proceeds shall be applied to the
other Obligations as Lender may elect; and
(c) In addition, and notwithstanding any other provision of
this Agreement or any other Loan Document, commencing with the fiscal
year ending December 31, 2003, and for each additional fiscal year of
the Term and until such time as all Obligations shall be indefeasibly
paid in cash in full and performed, fifty percent (50%) of Borrower's
Excess Cash Flow for each fiscal year during such period(s) shall be
paid by Borrower to Lender and shall be applied by Lender to reduce
the outstanding balance of the Term Loan, provided, however, that the
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reduction of principal amortization shall be applied to the reserves
that would replace Letters of Credit, then applied to the last
principal payment due under Section 2.4(a) until such payment is
reduced to zero and thereafter applied to the next preceding principal
payment required under Section 2.4(a) until any such preceding payment
or payments is reduced to zero. Once all principal amounts owing under
the Term Loan have been fully repaid, any such prepayments as a result
of Excess Cash Flow shall be applied to the other Obligations as
Lender may elect. Such payments shall be made no later than thirty
(30) calendar days after preparation of Borrower's audited financial
statements, but in any event not later than one hundred and forty-five
(145) calendar days after the end of the fiscal year to which such
Excess Cash Flow relates."
2.05 NEW SECTION 2.14. Effective as of the date of this Amendment, a new
Section 2.14 shall be added to the Loan Agreement to read in its entirety as
follows:
"2.14 BRIDGE LOAN
(a) Subject to the terms and conditions set forth in this
Agreement, Lender agrees to provide a term loan to Borrower in an
amount equal to $5,000,000 (the "BRIDGE LOAN") to be evidenced by a
promissory note (the "BRIDGE NOTE") dated March 29, 2002 payable by
Borrower to the order of Lender in the original principal amount of
$5,000,000, as the same may be modified, amended or supplemented from
time to time. The proceeds of the Bridge Loan will be used solely by
the Borrower's subsidiary, APS Healthcare Bethesda, Inc., to complete
the acquisition of Innovative Resource Group, LLC pursuant to the
terms of the IRG Purchase Agreement. The Bridge Loan is not a
revolving credit facility, and any repayments of principal shall be
applied to permanently reduce the Bridge Loan.
(b) Interest on the outstanding balance of the Bridge Loan
shall be payable monthly in arrears on the first day of each calendar
month at a rate equal to the greater of (i) sixteen percent (16%) per
annum, and (ii) an annual rate of the Prime Rate plus 3.5%, such
interest to be calculated on the basis of a 360-day year and for the
actual number of calendar days elapsed in each interest calculation
period. Interest accrued on the Bridge Loan shall be due and payable
on the first day of each calendar month commencing May 1, 2002, and
shall continue until the later of the expiration of the term and the
full performance and irrevocable payment in full in cash of the
Obligations under the Bridge Loan.
(c) Unless due and payable earlier as required under Section
2.14(d) hereof or any other provision under this Agreement, all
principal outstanding under the Bridge Loan, and all outstanding
Obligations under the Bridge Loan (including, without limitation, all
principal, accrued but unpaid interest to the date of prepayment, fees
and expenses related thereto) shall be due and payable in full on the
earlier of (i) the occurrence of an Event of Default (if so required
pursuant hereto) or Lender's demand upon an Event of Default, and (ii)
September 30, 2003.
(d) In addition to any other mandatory prepayment or
acceleration of the Bridge Loan required by the terms of this
Agreement or any Loan Document, Borrower shall prepay the Bridge Loan
and all Obligations related thereto (including, without
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limitation, all principal, accrued but unpaid interest to the date of
prepayment, fees and expenses related thereto) in full on the earlier
of (i) within three (3) Business Days after the closing of a Qualified
IPO, (ii) on the first Business Day following the date of any Change
of Control; and (iii) simultaneously with the payment in full of all
amounts owing under the Term Loan."
2.06 AMENDMENT AND RESTATEMENT OF SECTION 3.2. Effective as of the date of
this Amendment, Section 3.2 of the Loan Agreement is hereby amended and restated
to read in its entirety as follows:
"3.2 EARLY TERMINATION FEE AND YIELD MAINTENANCE
(a) If on or before September 30, 2003, the Term Loan is repaid in
full by Borrower under SECTION 2.8 hereof as a result of a Change of
Control, Borrower shall pay Lender, as yield maintenance for the loss of
bargain and not as a penalty, an amount equal to the product of (i)
$10,000,000, MULTIPLIED BY the annual interest rate on the Term Loan at the
time of the repayment, MULTIPLIED BY (ii) the number of days remaining
between the repayment date and September 30, 2003, (iii) DIVIDED BY 360
days.
(b) If on or before March 31, 2004, the Term Loan is repaid in full
and terminated by Borrower under SECTION 11.2 hereof or otherwise as a
result of a refinancing of the Term Loan with another lender, Borrower
shall pay Lender as yield maintenance for the loss of bargain and not as a
penalty, an amount equal to the product of (i)the greater of (x)$10,000,000
or (y) the outstanding principal balance of the Term Loan immediately prior
to the subject repayment, MULTIPLIED BY the annual interest rate on the
Term Loan at the time of the repayment, MULTIPLIED BY (ii) the number of
days remaining between the repayment date and ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) DIVIDED
BY 360 days.
(c) If on or before June 30, 2002 the Bridge Loan is repaid in full
for any reason (including without limitation, by Borrower under SECTION
11.2 hereof, Lender's demand for payment in full upon the occurrence of an
Event of Default, or a mandatory prepayment under SECTION 2.14(d) hereof),
then upon such repayment Borrower shall pay to Lender as yield maintenance
for the loss of bargain and not as a penalty, an amount equal to (x)
$200,000 (an amount equal to the aggregate interest scheduled to be earned
by Lender under the Bridge Loan from the date of such loan until June 30,
2002), less (y) the amount of interest actually collected by Lender on the
Bridge Loan prior to the date of such repayment.
(d) If at any time on or before March 31, 2004, the Term Loan is
voluntarily repaid by Borrower to an amount below $10,000,000, Borrower
shall pay Lender as yield maintenance for the loss of bargain and not as a
penalty, an amount equal to (i) $10,000,000, MULTIPLIED BY the annual
interest rate on the Term Loan at the time of the repayment, MULTIPLIED BY
(ii) the number of days remaining between the repayment date and ▇▇▇▇▇ ▇▇,
▇▇▇▇, (▇▇▇) DIVIDED BY 360 days."
2.07 NEW SECTION 3.7. Effective as of the date of this Amendment, a new
Section 3.7 is hereby added to this Agreement as follows:
"3.7 QUALIFIED IPO SUCCESS FEE Within three (3) Business Days after
the closing as a Qualified IPO, Borrower shall pay Lender the Qualified IPO
Success Fee."
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2.08 AMENDMENT AND RESTATEMENT OF SECTION 7.6(b). Effective as of the date
of this Amendment, Section 7.6(b) of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"(b) any Indebtedness set forth on SCHEDULE 5.21 including the
subordinated Indebtedness to Can Partners Investments IV, LLC, which shall
not exceed $7,750,000 (excluding accrued and unpaid interest);"
2.09 NEW SECTIONS 7.6(g) AND (h). Effective as of the date of this
Amendment, new Sections 7.6(g) and (h) shall be added to the Loan Agreement to
read in their entirety as follows:
"(g) Subordinated Indebtedness owing by APS Healthcare Bethesda, Inc.
to CC Holdings, LLC in an amount not to exceed $10,000,000; and
(h) Indebtedness owing by APS Healthcare Bethesda, Inc. to ▇▇▇▇▇▇▇▇
▇▇▇▇▇ Health Systems, Inc. ("SPHS") evidenced by those two (2) certain
promissory notes each dated August 31, 2001 payable by APS Healthcare
Bethesda, Inc. to SPHS in the principal amounts of $466,000 and $240,000,
respectively."
2.10 AMENDMENT AND RESTATEMENT OF SECTION 7.13. Effective as of the date of
this Amendment, Section 7.13 of the Loan Agreement is hereby amended and
restated in its entirety as follows:
"Borrower shall not cause, suffer, agree to or permit a Change of
Control of Borrower or any of its Subsidiaries. Borrower shall not, and
shall not permit any of its Subsidiaries to, amend, modify, restate or
change its certificate of incorporation or bylaws or similar charter
documents in a manner that would be adverse to Lender; and PROVIDED
FURTHER, that Borrower shall not be required to obtain Lender's consent to
a Qualified IPO, provided that the proceeds thereof are applied in
accordance herewith and no Default or Event of Default is caused thereby
but Borrower shall be required to obtain Lender's prior written consent to
any other initial public offerings."
2.11 NEW SECTION 7.16. Effective as of the date of this Amendment, a new
Section 7.16 is hereby added to the Loan Agreement to read in its entirety as
follows:
"7.16 MINIMUM OUTSTANDINGS. Borrower agrees to maintain a minimum
outstanding principal balance under the Term Loan at an amount not less
than $10,000,000 until March 31, 2004, unless Borrower is required to repay
the entire Term Loan earlier under the terms of this Agreement."
2.12 NEW SECTION 7.17. Effective as of the date of this Amendment, a new
Section 7.17 is hereby added to the Loan Agreement to read in its entirety as
follows:
"7.17 APS OHIO. Borrower agrees to do either of the following on or
before May 15, 2002: (a) dissolve APS Healthcare Ohio, Inc., or (b) comply
to Lender's satisfaction with all terms and conditions of Section 6.12 of
the Loan Agreement with respect to APS Healthcare Ohio, Inc."
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2.13 AMENDMENT AND RESTATEMENT OF CERTAIN EVENTS OF DEFAULT. Effective as
of the date of this Amendment, paragraphs (i) and (j) of Article VIII of the
Loan Agreement are amended and restated in their entirety as follows:
"(i) any Change of Control of Borrower or any Guarantor shall occur,
or any agreement or commitment to cause or that may result in any such
Change of Control shall have been entered into by Borrower or any Guarantor
or any initial public offering shall occur (except for a Qualified IPO in
which Borrower uses proceeds to satisfy the Bridge Loan, pay the Qualified
IPO Success Fee and satisfy certain other Obligations as required under
this Agreement);
(j) any (i) Material Adverse Effect or Material Adverse Change shall
occur or shall be reasonably expected to occur, (ii) amendment or
termination of any of the Service Agreements (as defined in the IRG
Purchase Agreement without the prior written consent of Lender, (iii)
amendment or modification of the IRG Purchase Agreement without the prior
written consent of Lender, or (iv) default by Cobalt Corporation in its
obligations under Section 4.2 of the Purchase Agreement."
2.14 AMENDMENT OF SECTION 11.3. Effective as of the date of this Amendment,
the term "Term Loan" set forth in Section 11.3 of the Loan Agreement shall be
amended and replaced with the term "Loans."
2.15 AMENDMENT OF SECTION 12.3(b). Effective as of the date of this
Amendment, the fifth sentence of Section 12.3(b) of the Loan Agreement is hereby
deleted.
2.16 NEW SECTION 12.3(d). Effective as of the date of this Amendment, a new
Section 12.3(d) is hereby added to the Loan Agreement to read in its entirety as
follows:
"(d) Borrower agrees to use its commercially reasonable best efforts
to assist the Lender in assigning or selling participations in all or any
part of any Loans made by the Lender to another Person identified by the
Lender and/or appointing Lender the collateral and/or administrative agent
for other lenders or participants (including, without limitation, agreeing
to execute any amendments or modifications to this Agreement and the other
Loan Documents required by Lender to accomplish the foregoing)."
2.17 NEW SECTION 12.13. Effective as of the date of this Amendment, a new
Section 12.13 is hereby added to the Loan Agreement to read in its entirety as
follows:
"12.13 CONFIDENTIALITY AND PUBLICITY Borrower agrees, and agrees to
cause each of its Affiliates, (i) except to the extent required by
applicable laws or regulations (in which case Borrower shall, and shall
cause its Affiliates to, request and use its best efforts to obtain
confidential treatment of such information to the extent permitted by
applicable law), not to transmit or disclose any provision of any Loan
Document to any Person (other than to Borrower's directors, advisors and
officers on a need-to-know basis) without Lender's prior written consent,
and (ii) to inform all Persons of the confidential nature of the Loan
Documents and to direct them not to disclose the same to any other Person
and to require each of them to be bound by these provisions. Lender
reserves the right to review and approve all materials that Borrower or any
of its Affiliates prepares that contain Lender's
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name or describe or refer to any Loan Document, any of the terms thereof or
any of the transactions contemplated thereby. Borrower shall not, and shall
not permit any of its Affiliates to, use Lender's name (or the name of any
of Lender's Affiliates) in connection with any of its business operations,
PROVIDED, that Borrower may disclose the Lender's name, the aggregate
principal amount of the Loans outstanding and other principal terms of such
Loans to its shareholders and prospective purchasers of equity securities
of Borrower so long as Borrower informs such prospective purchasers of the
confidential nature of such information and such Persons agree in writing
not to disclose the same to any other Person and to be bound by the
confidentiality provisions of this Agreement. Nothing contained in any Loan
Document is intended to permit or authorize Borrower or any of its
Affiliates to contract on behalf of Lender. Further, the Borrower agrees
that Lender or any Affiliate of Lender may (i) disclose a general
description of transactions arising under the Loan Documents for
advertising, marketing or other similar purposes, and (ii) use any
Borrower's or Guarantor's name, logo or other indicia germane to such party
in connection with such advertising, marketing or other similar purposes."
2.18 AMENDMENT TO SECTION 12.6. Effective as of the date of this Amendment,
the address for notice purposes for Lender shall be as follows:
CapitalSource Finance LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Finance Group Portfolio Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
2.19 AMENDMENT OF DEFINITION OF "MAXIMUM LOAN AMOUNT". Effective as of the
date of this Amendment, the term "Maximum Loan Amount" set forth in the preamble
to the Loan Agreement and used throughout the Loan Agreement shall be Thirty
Million Dollars ($30,000,000).
2.20 AMENDMENT OF DEFINITION "CHANGE OF CONTROL". Effective as of the date
of this Amendment, paragraph (c) of the definition of "Change of Control" set
forth in Appendix A to the Loan Agreement shall be amended and restated to read
in its entirety as follows:
"(c) the consummation of any sale of the capital stock of Borrower or
any Guarantor in a single or series of related transactions in excess
of $1,000,000 other than (i) pursuant to a Qualified IPO and (ii) any
secondary public sales of securities after a Qualified IPO in a single
or series of related transactions in excess of $1,000,000;"
2.21 AMENDMENT OF DEFINITION OF "GUARANTOR" AND "GUARANTORS". Effective as
of the date of this Amendment, the definition of "Guarantor" and "Guarantors"
set forth in Appendix A to the Loan Agreement shall be amended to include IRG,
CNR and APS Clinics.
2.22 AMENDMENT OF DEFINITION OF "LOAN DOCUMENTS". Effective as of the date
of this Amendment, the definition of "Loan Documents" in Appendix A to the Loan
Agreement shall also include the Warrant.
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2.23 AMENDMENT AND RESTATEMENT OF DEFINITION OF "NOTE". Effective as of the
date of this Amendment, the definition of "Note" set forth in Appendix A to the
Loan Agreement shall be amended and restated in its entirety to read as follows:
"'NOTE' shall mean individually and collectively the Term Notes and
the Bridge Note, as the same may be modified, amended or supplemented from
time to time."
2.24 AMENDMENT AND RESTATEMENT OF DEFINITION OF "OBLIGATIONS". Effective as
of the date of this Amendment, the definition of "Obligations" set forth in
Appendix A to the Loan Agreement shall also include Borrower's obligation to pay
the Qualified IPO Success Fee.
2.25 AMENDMENT AND RESTATEMENT OF DEFINITION OF "PAYMENT OFFICE". Effective
as of the date of this Amendment, the definition of "Payment Offices" set forth
in Appendix A to the Loan Agreement shall be amended and restated in its
entirety as follows:
"'PAYMENT OFFICE' shall mean ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and thereafter, such other office of Lender, if any, which
it may designate by notice to Borrower to be the Payment Office."
2.26 AMENDMENT AND RESTATEMENT OF "PUERTO RICO COLLATERAL". Effective as of
the date of this Amendment, the definition of "Puerto Rico Collateral" set forth
in Appendix A to the Loan Agreement shall be amended and restated in its
entirety as follows:
"'PUERTO RICO COLLATERAL' shall mean all assets owned by APS
Healthcare Puerto Rico, Inc., and/or APS Clinics of Puerto Rico, Inc."
2.27 AMENDMENT AND RESTATEMENT OF "SUBORDINATION AGREEMENT". Effective as
of the date of this Amendment, the definition of "Subordination Agreement" set
forth in Appendix A to the Loan Agreement shall be amended and restated in its
entirety as follows:
"'SUBORDINATION AGREEMENT' shall mean, individually and collectively,
the Subordination Agreement(s) which Lender and junior lenders of Borrower
and the Guarantors are a party, as such may be modified, amended or
supplemented from time to time."
2.28 AMENDMENT AND RESTATEMENT OF DEFINITION OF "TERM". Effective as of the
date of this Amendment, the definition of "Term" set forth in Appendix A to the
Loan Agreement shall be amended and restated as follows:
"'TERM' shall mean the period commencing on the Closing Date and
ending on March 31, 2005."
2.29 AMENDMENT AND RESTATEMENT OF DEFINITION OF "WARRANT". Effective as of
the date of this Amendment, the definition of "Warrant" set forth in Appendix A
to the Loan Agreement shall be amended and restated to read in its entirety as
follows:
"'WARRANT' AND 'AMENDED AND RESTATED WARRANT' shall mean that Warrant
executed by and delivered to Lender in connection herewith, as may be
modified, amended, restated or supplemented from time to time."
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2.30 NEW DEFINITIONS. Effective as of the date of this Amendment, Annex A
to the Loan Agreement is amended by adding the following definitions thereto, to
be inserted in appropriate alphabetical order:
"'ADVANCE' shall mean the Bridge Loan and any Initial Draw or
Additional Draw under this Agreement.
'IRG PURCHASE AGREEMENT' shall mean that certain Purchase and Sale
Agreement dated March ___, 2002 by and among APS Healthcare Bethesda, Inc.,
Innovative Resource Group, LLC, CC Holdings, LLC and Cobalt Corporation.
'QUALIFIED IPO' shall mean an underwritten public offering, pursuant
to an effective registration statement under the Securities Act of 1933, as
amended, and under other applicable securities laws and regulations
covering the offer and sale of capital stock of APS Healthcare, Inc., a
Delaware corporation, which generates a minimum of $30,000,000 in gross
proceeds, and as to which offering Lender has not, prior to the
effectiveness of the offering, indicated Lender's reasonable objection.
'QUALIFIED IPO SUCCESS FEE' shall mean an amount equal to $1,275,000."
2.31 PURPOSE OF TERM LOAN. Effective as of the date of this Amendment, the
Loan Agreement shall be amended to permit $12,000,000 of the proceeds of the
Term Loan to be used to complete the acquisition of Innovative Resource Group,
Inc., pursuant to the terms of the IRG Purchase Agreement.
2.32 AMENDMENT OF SCHEDULE 5.3. Effective as of the date of this Amendment,
Schedule 5.3 to the Loan Agreement is hereby amended to include the names of any
Subsidiaries of IRG, CNR and APS Clinics which are set forth on SCHEDULE A
attached hereto and incorporated herein by reference for all purposes.
2.33 AMENDMENT OF SCHEDULE 5.4. Effective as of the date of this Amendment,
Schedule 5.4 to the Loan Agreement is hereby amended to include any joint
ventures, partnerships or similar arrangements entered into by IRG, CNR and APS
Clinics which are set forth on SCHEDULE B attached hereto and incorporated
herein by reference for all purposes.
2.34 AMENDMENT OF SCHEDULE 5.5A. Effective as of the date of this
Amendment, Schedule 5.5A to the Loan Agreement is hereby amended to include a
listing of all real properties owned or leased by IRG, CNR and APS Clinics which
are set forth on SCHEDULE C attached hereto and incorporated herein by reference
for all purposes.
2.35 AMENDMENT OF SCHEDULE 5.5B. Effective as of the date of this
Amendment, Schedule 5.5B to the Loan Agreement is hereby amended to include any
real property leases of IRG, CNR and APS Clinics which are set forth on SCHEDULE
D attached hereto and incorporated herein by reference for all purposes.
2.36 AMENDMENT OF SCHEDULE 5.8. Effective as of the date of this Amendment,
Schedule 5.8 to the Loan Agreement is hereby amended to include any Subsidiaries
of IRG, CNR
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and APS Clinics which are set forth on SCHEDULE E attached hereto and
incorporated herein by reference for all purposes.
2.37 AMENDMENT OF SCHEDULE 5.14. Effective as of the date of this
Amendment, Schedule 5.14 to the Loan Agreement is hereby amended to include any
Intellectual Property of IRG, CNR and APS Clinics which are set forth on
SCHEDULE F attached hereto and incorporated herein by reference for all
purposes.
2.38 AMENDMENT OF SCHEDULE 5.21. Effective as of the date of this
Amendment, Schedule 5.21 to the Loan Agreement is hereby amended to include any
outstanding Indebtedness or liens of IRG, CNR and APS Clinics required to be
disclosed under Section 5.21 of the Loan Agreement which are set forth on
SCHEDULE G attached hereto and incorporated herein by reference for all
purposes.
2.39 AMENDMENT OF SCHEDULE 5.23. Effective as of the date of this
Amendment, Schedule 5.23 to the Loan Agreement is hereby amended to include any
agreements described in Section 5.23 of the Loan Agreement entered into by IRG,
CNR and APS Clinics which are set forth on SCHEDULE H attached hereto and
incorporated herein by reference for all purposes.
2.40 AMENDMENT OF SCHEDULE 5.24. Effective as of the date of this
Amendment, Schedule 5.24 to the Loan Agreement is hereby amended to include any
of the conflict of interest items described in Section 5.24 of the Loan
Agreement with respect to IRG, CNR and APS Clinics which are set forth on
SCHEDULE I attached hereto and incorporated herein by reference for all
purposes.
2.41 AMENDMENT OF SCHEDULE 5.25. Effective as of the date of this
Amendment, Schedule 5.25 to the Loan Agreement is hereby amended to include all
of the insurance policies of IRG, CNR and APS Clinics which are set forth on
SCHEDULE J attached hereto and incorporated herein by reference for all
purposes.
2.42 AMENDMENT OF SCHEDULE 5.26A. Effective as of the date of this
Amendment, Schedule 5.26A to the Loan Agreement is hereby amended to include all
of the places of business and chief executive offices of IRG, CNR and APS
Clinics which are set forth on SCHEDULE K attached hereto and incorporated
herein by reference for all purposes.
2.43 AMENDMENT OF SCHEDULE 5.26B. Effective as of the date of this
Amendment, Schedule 5.26B to the Loan Agreement is hereby amended to include the
locations of Collateral owned by IRG, CNR and APS Clinics which are set forth on
SCHEDULE L attached hereto and incorporated herein by reference for all
purposes.
2.44 AMENDMENT OF SCHEDULE 5.28. Effective as of the date of this
Amendment, Schedule 5.28 to this Loan Agreement is hereby amended, as set forth
on SCHEDULE M attached hereto and incorporated herein by reference for all
purposes, to include the names under which IRG, CNR and APS Clinics have
conducted business under or used any other names within the last five (5) years.
2.45 AMENDED AND RESTATED ANNEX I. Effective as of the date of this
Amendment, Annex I is hereby amended and restated to read as set forth on Annex
I attached hereto.
-11
2.46 AMENDED AND RESTATED ANNEX II. Effective as of the date of this
Amendment, Annex II is hereby amended and restated to read as set forth on Annex
II attached hereto.
ARTICLE III
CONDITIONS PRECEDENT
3.01 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent in a manner
satisfactory to Lender, unless specifically waived in writing by Lender:
(a) Lender shall have received each of the following, each in form
and substance satisfactory to Lender, in its sole discretion, and, where
applicable, each duly executed by each party thereto, other than Lender:
(i) This Amendment, duly executed by Borrower and the Guarantors;
(ii) A Second Amended and Restated Term Loan--Note A in the
principal amount of $10,000,000, a Second Amended and Restated Term
Loan--Note B in the principal amount of $10,000,000, a Term Loan--Note C in
the principal amount of $10,000,000, and a Bridge Loan--Note in the
principal amount of $5,000,000, (collectively, the "NOTES") duly executed
by Borrower;
(iii) A Guaranty duly executed by the New Guarantors; and
(iv) certified copies of the resolutions of the Board of Directors
of each of the Borrower, the Guarantors and the New Guarantors authorizing
the execution, delivery and performance of this Amendment and any and all
other Loan Documents executed by any of the Borrower, the Guarantors or the
New Guarantors in connection therewith, along with a certificate of
incumbency certified by the secretary of each of the Borrower, the
Guarantors and the New Guarantors with specimen signatures of the officers
of the Borrower, the Guarantors and the New Guarantors who are authorized
to sign such documents, all in form and substance satisfactory to the
Lender; and
(v) Pledge Agreement duly executed by APS Bethesda and IRG
pledging all of their respective ownership interests in IRG, CNR and APS
Clinics, respectively, along with delivery of the original certificates
evidencing ownership of such entities and executed stock powers or similar
documents (undated and in-blank) for each such certificate; and
(vi) A Security Agreement duly executed by IRG;
(vii) A Security Agreement duly executed by CNR;
(viii) A Security Agreement duly executed by APS Clinics;
(ix) A Security Agreement executed by APS Healthcare, Inc.;
(x) A Collateral Patent, Trademark, Copyright and License
Agreement duly executed by IRG;
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(xi) A Collateral Assignment of Undertakings Under the Purchase
Agreement duly executed by APS Bethesda, CC Holdings, LLC and Cobalt
Corporation;
(xii) A Closing Certificate duly executed by APS Bethesda, IRG, CC
Holdings, LLC and Cobalt Corporation confirming that the Purchase Agreement
is in full force and effect and that the Acquisition is closed and
completed;
(xiii) First Amendment to Amended and Restated Subordination and
Intercreditor Agreement duly executed by APS Healthcare, Inc., APS
Healthcare Holdings, Inc., Lender and CanPartners Investments IV, LLC;
(xiv) Subordination Agreement duly executed by APS Bethesda, IRG, CC
Holdings, LLC and CanPartners Investments IV, LLC;
(xv) Amendments to the Security Agreements, executed by Borrower
and the Guarantors.
(xvi) Opinion from ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ PC,
opining, in form and substance satisfactory to Lender, which shall cover
such matters incident to the transactions contemplated by this Amendment
and the other Loan Document as Lender may reasonably require and the
Borrower hereby authorizes and directs such counsel to deliver such
opinions to Lender;
(xvii) Such new UCC financing statements or amendments to existing
UCC financing statements on the Borrower, Guarantors and New Guarantors as
Lender may require.
(xviii) All other documents Lender may request with respect to any
matter relevant to this Amendment or the transactions contemplated hereby.
(b) All conditions set forth in Section 6.12 of the Loan Agreement
shall have been met to Lender's satisfaction with respect to the New Guarantors.
(c) All terms and conditions set forth in the commitment letter dated
March 8, 2002 between Borrower and Lender, as amended and extended pursuant to
the letter dated March 26, 2002 between Borrower and Lender, shall have been met
to Lender's satisfaction (collectively, the "COMMITMENT LETTER").
(d) The representations and warranties contained herein and in the
Loan Agreement and the other documents executed in connection with the Loan
Agreement (herein referred to as "LOAN DOCUMENTS"), as each is amended hereby,
shall be true and correct as of the date hereof, as if made on the date hereof,
except for such representations and warranties as are by their express terms
limited to a specific date.
(e) No Default or Event of Default shall have occurred and be
continuing, unless such Default or Event of Default has been otherwise
specifically waived in writing by Lender.
(f) Borrower shall pay to Lender a commitment fee of $100,000 for
this increase in the Term Loan and a commitment fee of $100,000 for providing
the Bridge Loan.
-13
(g) There has been no Material Adverse Change since the date of the
Commitment Letter.
(h) Lender's completion to its satisfaction of its due diligence and
audits in connection with the Acquisition.
(i) Borrower shall have delivered to Lender documents, in form and
substance satisfactory to Lender, evidencing (i) the capitalization of Borrower
in such amounts as are satisfactory to Lender, and (ii) a Minimum Working
Capital of NEGATIVE FIVE MILLION SEVEN HUNDRED FIFTY THOUSAND DOLLARS
(-$5,750,000).
(j) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents, instruments and
other legal matters incident thereto shall be satisfactory to Lender.
ARTICLE IV
LIMITED CONSENT AND WAIVER
4.01 LIMITED CONSENT AND WAIVER. Borrower has (i) requested permission from
Lender to consummate the Acquisition and accordingly effectuate the purchase by
APS Bethesda of all of the outstanding ownership interests in IRG, and (ii)
requested that Lender waive the covenants embodied in the Loan Agreement to the
extent such covenants would be deemed violated solely due to the consummation of
the Acquisition. SUBJECT TO THE SATISFACTION OF THE CONDITIONS PRECEDENT IN
ARTICLE III OF THIS AMENDMENT AND TO THE OTHER TERMS, CONDITIONS AND PROVISIONS
OF THIS AMENDMENT, Lender hereby (i) consents to the consummation of the
Acquisition, and (ii) waives the covenants embodied in the Loan Agreement to the
extent such covenants would be deemed violated solely due to the consummation of
the Acquisition under the terms of the Purchase Agreement attached as Exhibit A
to the Closing Certificate referenced in SECTION 3.01(a)(xi) hereof. The consent
and waiver described in this SECTION 4.01 is strictly limited to the Acquisition
and to the provisions of the Loan Agreement as they relate to the Acquisition.
4.02 NO OTHER WAIVERS. Except as otherwise specifically provided for in
this Amendment, nothing contained herein shall be construed as a waiver by
Lender of any covenant or provision of the Loan Agreement, the other Loan
Documents, this Amendment or any other contract or instrument between the Lender
and the Borrower or any Guarantor, and the failure of Lender at any time or
times hereafter to require strict performance by the Borrower or any Guarantor
of any provision thereof shall not waive, affect or diminish any right of Lender
to thereafter demand strict compliance therewith. Lender hereby reserves all
rights granted under the Loan Agreement, the other Loan Documents, this
Amendment, and any other contract or instrument between the Borrower and Lender.
ARTICLE V
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
5.01 RATIFICATIONS. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Loan Agreement and the other
-14
Loan Documents, and, except as expressly modified and superseded by this
Amendment, the terms and provisions of the Loan Agreement and the other Loan
Documents are ratified and confirmed and shall continue in full force and
effect. The Borrower, the Guarantors and Lender agree that the Loan Agreement
and the other Loan Documents, as amended hereby, shall continue to be legal,
valid, binding and enforceable in accordance with their respective terms. This
Amendment is not intended to be or to create, nor shall it be construed as or
constitute, a novation or an accord and satisfaction but shall constitute an
amendment of the Loan Agreement.
5.02 REPRESENTATIONS AND WARRANTIES. The Borrower and the Guarantors hereby
represent and warrant to Lender that (a) the execution, delivery and performance
of this Amendment and any and all other Loan Documents executed and/or delivered
in connection herewith have been authorized by all requisite corporate or
limited partnership or limited liability company action (as applicable) on the
part of the Borrower and the Guarantors and will not violate the Articles (or
Certificates) of Incorporation or Bylaws of the Borrower and the Guarantors that
are corporations or the limited partnership agreements or certificates of
limited partnership of the Borrower and the Guarantors that are limited
partnerships or the articles of formation/organization, regulations or limited
liability company agreements of the Borrower that are limited liability
companies; (b) each of the Company's and Guarantor's Board of Directors (or the
general partner of the applicable limited partnership) or the members or the
Board of Managers of the applicable limited liability company has authorized the
execution, delivery and performance of this Amendment and any and all other Loan
Documents executed and/or delivered in connection herewith; (c) the
representations and warranties contained in the Loan Agreement, as amended
hereby, and any other Loan Document are true and correct on and as of the date
hereof and on and as of the date of execution hereof as though made on and as of
each such date; (d) no Default or Event of Default under the Loan Agreement, as
amended hereby, has occurred and is continuing, unless such Default or Event of
Default has been specifically waived in writing by Lender; (e) the Borrower and
the Guarantors are in full compliance with all covenants and agreements
contained in the Loan Agreement and the other Loan Documents, as amended hereby;
(f) the Borrower and the Guarantors have not amended their Articles (or
Certificates) of Incorporation or their Bylaws or similar organizational
documents since the date of the Loan Agreement; (g) the execution, delivery and
performance of this Amendment and the Loan Documents executed in connection
herewith by Borrower and each Guarantor, as applicable, are with respect to
Borrower and each Guarantor, within its powers, have been duly authorized, and
do not contravene (A) its articles of organization, operating agreement, or
other organization documents, or (B) any applicable law; and (h) no consent,
license, permit, approval or authorization of, or registration, filing or
declaration with any Governmental Authority or other Person, is required in
connection with the execution, delivery, performance, validity or enforceability
of this Amendment or the Loan Documents executed in connection herewith, as
applicable, by or against Borrower or any Guarantor. Borrower further represents
and warrants that (a) all of the entities originally identified on SCHEDULE 5.3
of the Loan Agreement as inactive and in the process of being dissolved have
been dissolved, and (b) all of the entities originally identified on SCHEDULE
5.4 of the Loan Agreement have been dissolved or will be divided within 30 days
after the date hereof.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made herein and in the Loan Agreement or any other Loan Document,
including, without limitation,
-15
any document furnished in connection with this Amendment, shall survive the
execution and delivery of this Amendment and the other Loan Documents and the
fundings of the Term Loan and Bridge Loan, and no investigation by Lender or any
closing shall affect the representations and warranties or the right of Lender
to rely upon them.
6.02 REFERENCE TO LOAN AGREEMENT. Each of the Loan Agreement and the other
Loan Documents, and any and all other Loan Documents, documents or instruments
now or hereafter executed and delivered pursuant to the terms hereof or pursuant
to the terms of the Loan Agreement, as amended hereby, are hereby amended so
that any reference in the Loan Agreement and such other Loan Documents to the
Loan Agreement shall mean a reference to the Loan Agreement, as amended hereby.
6.03 EXPENSES OF LENDER. As provided in the Loan Agreement, Borrower shall
pay all costs and expenses incurred by Lender or any of its Affiliates,
including, without limitation, documentation and diligence fees and expenses,
all search, audit, appraisal, recording, professional and filing fees and
expenses and all other out-of-pocket charges and expenses (including, without
limitation, UCC and judgment and tax lien searches and UCC filings and fees for
post-closing UCC and judgment and tax lien searches) and reasonable attorneys'
fees and expenses, in connection with entering into, negotiating, preparing,
reviewing and executing this Amendment and the other Loan Documents contemplated
hereby and all related agreements, documents and instruments, including, without
limitation, the UCC-1 Financing Statements and searches required hereunder and
under the Loan Agreement, and all of the same may be charged to Borrower's
account and shall be part of the Obligations. If Lender or any of its Affiliates
uses in-house counsel for any of the purposes set forth above Borrower expressly
agrees that its Obligations include reasonable charges for such work
commensurate with the fees that would otherwise be charged by outside legal
counsel selected by Lender or such Affiliate in its sole discretion for the work
performed. In addition and without limiting the foregoing, Borrower shall pay
all taxes (other than taxes based upon or measured by Lender's income or
revenues or any personal property tax), if any, in connection with the issuance
of the amended note and the recording of the security documents and financing
statements therefor and pursuant to the Security Documents contemplated hereby.
6.04 BROKER FEES. Borrower agrees that Lender will not be liable in any way
for the payment of any brokerage fees or commissions to any broker or other
person entitled or claiming to be entitled to the same in connection herewith
and the transactions contemplated hereby and by the Acquisition, and Borrower
agrees to indemnify and hold Lender harmless from all claims for brokerage fees
and commissions (other than claims of a broker with whom Lender has directly
contracted with in writing), which may be made in connection with the
transactions contemplated hereby and the Acquisition. Borrower agrees to provide
to Lender specific wire transfer instructions and directions for Lender to pay
on behalf of Borrower, EDL Advisors, LLC, a brokerage fee of $150,000.
6.05 SEVERABILITY. If any term or provision of this Amendment is
adjudicated to be invalid under applicable laws or regulations, such provision
shall be inapplicable to the extent of such invalidity without affecting the
validity or enforceability of the remainder of this Amendment which shall be
given effect so far as possible.
6.06 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall inure
to the benefit of Lender, all future holders of any Note and all Transferees,
and each of their respective
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successors and permitted assigns. Borrower may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of Lender.
Lender's ability to sell, assign or transfer all or any part of this Loan
Agreement, and the other Loan Documents, continue to be governed by Section 12.3
of the Loan Agreement.
6.07 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, all of which taken together shall constitute but one and the same
instrument. This Amendment may be executed by facsimile transmission, which
facsimile signatures shall be considered original executed counterparts for
purposes of this SECTION 6.06, and each party to this Amendment agrees that it
will be bound by its own facsimile signature and that it accepts the facsimile
signature of each other party to this Amendment.
6.08 EFFECT OF WAIVER. No consent or waiver, express or implied, by Lender
to or for any breach of or deviation from any covenant or condition by Borrower
shall be deemed a consent to or waiver of any other breach of the same or any
other covenant, condition or duty.
6.09 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6.10 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED
PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE CHOICE
OF LAW PROVISIONS SET FORTH IN THE LOAN AGREEMENT AND SHALL BE SUBJECT TO THE
WAIVER OF JURY TRIAL AND NOTICE PROVISIONS OF THE LOAN AGREEMENT.
6.11 FINAL AGREEMENT. THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, EACH
AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BORROWER AND
LENDER.
6.12 RELEASE BY THE BORROWER. THE BORROWER HEREBY ACKNOWLEDGES THAT
BORROWER HAS NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND
OF ANY KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL
OR ANY PART OF ITS LIABILITY TO REPAY THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE
RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM LENDER. THE BORROWER HEREBY
VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES LENDER AND ITS
PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE
"RELEASED PARTIES"), FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF
ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR
-17
UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING
IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH THE
BORROWER MAY NOW OR HEREAFTER HAVE AGAINST THE RELEASED PARTIES, IF ANY, AND
IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION
OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY "LOANS", INCLUDING,
WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING
OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE
EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN AGREEMENT OR OTHER LOAN
DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Amendment has been executed and is effective as of
the date first above-written.
BORROWER:
APS HEALTHCARE HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Chief Executive Officer
-------------------------------
LENDER:
CAPITALSOURCE FINANCE LLC
By: /s / ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Senior Vice President
-------------------------------
CONSENT, RATIFICATION AND RELEASE
The undersigned each hereby consents to the terms of the within and
foregoing Amendment (including, without limitation, the terms of new Sections
12.3(d) and 12.3 of the Loan Agreement), confirms and ratifies the terms of (a)
that certain Amended and Restated Guaranty Agreement dated July 23, 2001
executed by APS Healthcare, Inc. for the benefit of Lender, (b) that certain
Amended and Restated Subsidiary Guaranty Agreement dated July 23, 2001 executed
by the undersigned (other than APS Healthcare, Inc. and the New Guarantors) for
the benefit of Lender, and (c) that certain Guaranty Agreement, dated of even
date with the foregoing Amendment, executed by the New Guarantors for the
benefit of Lender (collectively, the "GUARANTY AGREEMENTS"), and acknowledges
that the Guaranty Agreements are in full force and effect and ratifies the same,
that the undersigned each has no defense, counterclaim, set-off or any other
claim to diminish the undersigned's liability under such document, that the
undersigned's consent is not required to the effectiveness of the within and
foregoing Amendment, and that no consent by the undersigned is required for the
effectiveness of any future amendment, modification, forbearance or other action
with respect to the Obligations, the Collateral, or any of the other Loan
Agreements.
The undersigned each hereby acknowledges and agrees that (a) the term
"Guaranteed Obligations" as referenced in the Guaranty Agreements include the
Term Loan and Bridge Loan (as described in the foregoing Amendment) and all
other Obligations (as defined in the Loan Agreement) and (b) the term "Note" (as
defined in the Guaranty Agreements) shall include the Notes described in Section
3.01(a)(ii) in the foregoing Amendment, and all renewals, modifications,
restatements and replacement thereof.
The undersigned each hereby acknowledges and agrees (a) that the
indebtedness and obligations secured by the Security Documents (as defined in
the Loan Agreement) executed by the undersigned includes the Term Loan and
Bridge Loan (as described in the foregoing Amendment) and all other Obligations
(as defined in the Loan Agreement) and (b) the Notes described in Section
3.01(a)(iii) of the foregoing Amendment, and all renewal, modifications,
restatements and replacements thereof.
THE UNDERSIGNED EACH HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES LENDER, ITS PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS,
FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS,
EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR
UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT
LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS
AMENDMENT IS EXECUTED, WHICH THE UNDERSIGNED MAY NOW OR HEREAFTER HAVE AGAINST
LENDER, ITS PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND
IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION
OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY "LOANS", INCLUDING,
WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING
OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE
EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN AGREEMENT OR OTHER
AGREEMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
GUARANTORS:
APS HEALTHCARE, INC.
APS HEALTHCARE NORTHWEST, INC.
APS HEALTHCARE SOUTHWEST, INC.
APS HEALTHCARE BETHESDA, INC.
CH/ECP SYSTEMS, INC.
PSYCH SYSTEMS IPA, INC.
METROPOLITAN IPA, INC.
PSYCH SYSTEMS PPO, INC.
APS HEALTHCARE PUERTO RICO, INC.
INNOVATIVE RESOURCE GROUP, LLC
CNR PARTNES, INC.
APS CLINICS OF PUERTO RICO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Chief Executive Officer
-------------------------------
ANNEX I
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT (TERM LOAN)
FUNDING COVENANT SCHEDULE
(DOLLARS IN THOUSANDS)
MINIMUM
EBITDA
DATE (TTM)(1)
------------------------------------------------
Jun--02 $ 2,847
Sept--02 $ 5,719
Dec--02 $ 8,677
Mar--03 $ 11,724
Jun--03 $ 12,015
Sept--03 $ 12,375
Dec--03 $ 12,747
Mar--04 $ 13,129
Jun--04 $ 13,129
Sept--04 $ 13,129
Dec--04 $ 13,129
Mar--05 $ 13,129
TOTAL DEBT/
DATE EBITDA(2)
--------------------------------------------------
Sept--01 2.50 x
Dec--01 2.50
Mar--02 2.40
Jun--02 2.40
Sept--02 2.30
Dec--02 2.30
Mar--03 2.25
Jun--03 2.25
Sept--03 2.20
Dec--03 2.10
Mar--04 and thereafter 2.00 x
INTEREST
DATE COVERAGE
------------------------------------------------
Sept--01 2.75
Dec--01 2.75
Mar--02 3.00
Jun--02 3.00
Sept--02 3.00
Dec--02 3.25
Mar--03 3.25
Jun--03 3.25
Sept--03 3.50
Dec--03 3.50
Mar--04 and thereafter 3.50
FIXED CHARGE
DATE COVERAGE(3)
------------------------------------------------
Sept--01 1.60
Dec--01 1.60
Mar--02 1.60
Jun--02 1.60
Sept--02 1.60
Dec--02 1.60
Mar--03 1.60
Jun--03 1.60
Sept--03 1.60
Dec--03 1.60
Mar--04 and thereafter 1.60
----------
(1) MINIMUM EBITDA will represent the cumulative EBITDA for the preceding
four quarters, however, the calculation will exclude any period prior to
July 1, 2001.
(2) TOTAL DEBT/EBITDA is based on annualized Minimum EBITDA for the first
three quarterly calculations.
(3) FIXED CHARGE COVERAGE: (EBITDA - Capital Expenditures - Cash Taxes)
DIVIDED BY (Principal + Interest)
ANNEX II
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED
CREDIT AGREEMENT (TERM LOAN)
DEFAULT COVENANT SCHEDULE
(DOLLARS IN THOUSANDS)
MINIMUM
EBITDA
DATE (TTM)(1)
-----------------------------------------------
Sept--01 $ 2,313
Dec--01 $ 4,647
Mar--02 $ 7,050
Jun--02 $ 9,526
Sept--02 $ 9,762
Dec--02 $ 10,055
Mar--03 $ 10,357
Jun--03 $ 10,667
Sept--03 $ 10,667
Dec--03 $ 10,667
Mar--04 $ 10,667
Jun--04 $ 10,667
Sept--04 $ 10,667
Dec--05 $ 10,667
Mar--05 $ 10,667
TOTAL DEBT/
DATE EBITDA(2)
-------------------------------------------------
Jun--02 2.75 x
Sept--02 2.75
Dec--02 2.75
Mar--03 2.75
Jun--03 2.75
Sept--03 2.50
Dec--03 2.50
Mar--04 2.50
Jun--04 2.40
Sept--04 2.30
Dec--04 2.20 x
Mar--05 2.20x
INTEREST
DATE COVERAGE
-----------------------------------------------
Jun--02 3.50
Sept--02 3.50
Dec--02 3.75
Mar--03 3.75
Jun--03 4.00
Sept--03 4.00
Dec--03 4.25
Mar--04 4.25
Jun--04 4.50
Sept--04 4.50
Dec--04 4.50
Mar--05 4.50
FIXED CHARGE
DATE COVERAGE(3)
-----------------------------------------------
Jun--02 1.30
Sept--02 1.30
Dec--02 1.30
Mar--03 1.30
Jun--03 1.30
Sept--03 1.30
Dec--03 1.30
Mar--04 1.30
Jun--04 1.30
Sept--04 1.30
Dec--04 1.30
Mar--05 1.30
----------
(1) MINIMUM EBITDA will represent the cumulative EBITDA for the preceding
four quarters, however, the calculation will exclude any period prior to
July 1, 2001.
(2) TOTAL DEBT/EBITDA is based on annualized Minimum EBITDA for the first
three quarterly calculations.
(3) FIXED CHARGE COVERAGE: (EBITDA-Capital Expenditures-Cash Taxes)
DIVIDED BY (Principal + Interest)
SCHEDULE A
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED
CREDIT AGREEMENT (TERM LOAN)
SUBSIDIARIES
SUBSIDIARY AUTHORIZED ISSUED AND OUTSTANDING
---------- ---------- ----------------------
APS Clinics of Puerto Rico, Inc. 1,000 100
Innovative Resource Group, LLC 1,000 100
CNR Partners, Inc.
The issued and outstanding shares of APS Clinics of Puerto Rico, Inc. are held
by APS Healthcare of Bethesda, Inc.
The issued and outstanding membership units of Innovative Resource Group, LLC
are held by APS Healthcare of Bethesda, Inc.
CNR Partners, Inc. is a Texas non-profit, non-stock corporation and as such does
not have any authorized capital stock. By the terms of the CNR Partners, Inc.
Articles of Incorporation, CNR Partners, Inc. has one member. The Bylaws of CNR
Partners, Inc. designate Innovative Resource Group, LLC as the sole member. The
Bylaw have been amended and restated to permit issuance of a certificated
membership interest in CNR Partners, Inc.
SCHEDULE B
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED
CREDIT AGREEMENT (TERM LOAN)
JOINT VENTURES
None
SCHEDULE C
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED
CREDIT AGREEMENT (TERM LOAN)
MATERIAL LEASES
1. Sublease dated March 29, 2002 by and between APS Healthcare Bethesda, Inc.,
and Cobalt Corporation, for the premises located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇, 2514 South 102nd Street, 1st and ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇.
2. Office Lease dated June 20, 2000 by and between Innovative Resource Group,
Inc. and Crescent Real Estate Funding III, L.P., for the premises located
at Eight Greenway Plaza, Houston, TX.
3. Lease dated October 29, 1998 by and between United Wisconsin Services, Inc.
and Insurance Building Associates Limited Partnership, for the premises
located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇.
4. Office Lease dated July 1, 2001 by and between Cobalt Corporation and Metro
Square Partnership, for the premises located at Metro Square One, Suite
125, 10 ▇▇▇▇▇▇▇ Rd., Vernon Hills, IL.
5. Office Lease Agreement dated May 18, 1999 by and between ▇▇▇▇▇▇▇/▇▇▇▇▇▇,
Inc. and Opus Real Estate America I, LLC, as amended by the Consent and
Agreement dated June 16, 2000, for the premises located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇.
6. Commercial Lease Agreement dated November 1, 1999 by and between Innovative
Resource Group, Inc. and ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, for the
premises located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇.
7. Lease Agreement dated October 2, 1996 by and between Innovative Resource
Group, Inc. and ▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., for the premises located at Oyster
Creek Professional Center, Lake Jackson, TX.
8. Lease dated October 1. 1989 by and between Innovative Resource Group, Inc.
and State Compensation Fund of the State of Arizona, as amended November 1,
1989, April 15, 1992, November 30, 1992, December 1, 1992, July 1, 1995,
April 11, 1996, December 2, 1996 and September 1, 1999, for the premises
located at The Abacus Tower Building, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇.
9. Sublease Agreement dated July 1, 1999 by and between CNR Health, Inc. and
Clear Lake Psychotherapy and Diagnostics, for the premises located at ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇.
10. Lease dated October 1, 1989 by and between United Wisconsin Services, Inc.
and ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, for the premises located at Riverview
Center, Plover, WI.
11. Office Lease dated January 20, 1999 by and between NOVA II, L.L.P. and
Family Health Systems, Inc., for the premises located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇.
12. Lease dated December 10, 2001 by and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Memorial
Hospital Association and Innovative Resource Group, LLC, for the premises
located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇.
SCHEDULE D
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED
CREDIT AGREEMENT (TERM LOAN)
LEASED PROPERTIES
See Schedules K and L
SCHEDULE E
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT (TERM LOAN)
CONSENTS
CapitalSource Finance, LLC
Canpartners Investments IV, LLC
Board of Directors of Borrower and each Guarantor
SCHEDULE F
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT (TERM LOAN)
INTELLECTUAL PROPERTY
1. Trademarks:
▇▇▇▇ RECORD OWNER APPLICATION/REG. NO.
---- ------------ --------------------
INNOVATIVE RESOURCE GROUP Innovative Resource Group, Inc. 2,516,674 (fed.)
CAVION Innovative Resource Group, Inc. 2,284,027 (fed.)
HEALTHY ADDITIONS Innovative Resource Group, Inc. 1,779,315 (fed.)
CNR HEALTH, INC. CNR Health, Inc. ▇▇▇▇▇▇▇▇▇▇ (WI state)
2. Copyrights:
COPYRIGHT REGISTERED OWNER APPLICATION/REG. NO.
--------- ---------------- --------------------
CMC2 Innovative Resource Group, Inc. TX - 4 - 684 - 112
CMC3 Innovative Resource Group, Inc. TX - 4 - 701 - 609
"Manage the business as well as Innovative Resource Group, Inc. TXu - 900 - 755
the care"
Medical Case Management Criteria Not registered Not registered
to Open Cases
Medical Case Management Criteria Not registered Not registered
to Close Cases
Physical Medicine Criteria Not registered Not registered
(includes PT, OT, and Chiropractic
but not speech)
Behavioral Health Criteria Not registered Not registered
Screening Script: Focused Target Not registered Not registered
Review
The Medical Criteria Set (including the manuals associated therewith) used
by IRG, LLC are the property of Cobalt or a Cobalt affiliate (this includes
the Adult Criteria by Body System, Pediatric Criteria by Body System,
Inpatient Criteria for Adult Elective Cardiac Catheterization, Therapy
Criteria - PT, OT and ST, and General Medical Compendium).
The Medical Informatics (data) used by IRG, LLC to produce its utilization
management reports is the property of Cobalt or a Cobalt affiliate.
3. Domain Names:
NAME RECORD OWNER
---- ------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Innovative Resource Group, Inc.
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Innovative Resource Group, Inc.
▇▇▇▇▇▇.▇▇▇ Innovative Resource Group, Inc.
4. Patents:
Non-provisional patent application (no. 09/187,394) for: Method and
Apparatus for Managing Health Care and CAVION Software.
5. Licenses:
a. Software License Agreement by and between GEO Access, Inc. and
Innovative Resource Group
▇. ▇▇▇▇▇▇ Behavioral Health Software Lease Agreement, made June 25, 2001,
by and between Innovative Resource Group and Landmark Solutions
c. That certain Software License Agreement for Utilization Review/Managed
Care Information System, entered into as of April 17, 1997, by and
between Cobalt (f/k/a United Wisconsin Services, Inc.) and Trinity
Computer Services, Inc., as amended to, among other things, add IRG,
LLC as a party and to permit termination on a quarterly basis.
SCHEDULE G
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT (TERM LOAN)
EXISTING INDEBTEDNESS
Innovative Resource Group, LLC has a liability of approximately $402,000 as of
March 31, 2002, designated as "Due to Consolidated Affiliate". This liability is
for amounts owed to Cobalt Corporation.
SCHEDULE H
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT (TERM LOAN)
RELATED PARTY TRANSACTIONS
▇▇▇▇▇▇ ▇▇▇▇▇▇, an employee of Innovative Resource Group, LLC received a cash
bonus from Cobalt, LLC upon the closing of the acquisition by APS Healthcare
Bethesda, Inc. of Innovative Resource Group, LLC.
SCHEDULE I
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT (TERM LOAN)
CONFLICTS OF INTEREST
See Schedule H
SCHEDULE J
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT (TERM LOAN)
INSURANCE
See attached - CNR Partners, Inc., Innovative Resource Group, LLC and APS
Clinics of Puerto Rico, Inc. have all been added as additional insured parties
to the policies listed in the attached Schedule.
APS HEALTHCARE INC. - COVERAGE SUMMARY
(AS OF MARCH 31, 2002)
--------------------------------------------------------------------------------------------------------------------------------
COVERAGE LIMITS DEDUCTIBLE POLICY NUMBER CARRIER POLICY PERIOD PREMIUM & TAXES
--------------------------------------------------------------------------------------------------------------------------------
Auto (Puerto $1,000,000 CSL $ 1,000 2225010000050 Preferred Risk 3/27/02 - 3/27/03 $ 1,181
Rico) Ins. Co.
--------------------------------------------------------------------------------------------------------------------------------
Auto $1,000,000 CSL $ 500 AP74311 Progressive 3/31/02 - 3/31/03 $ 1,694
--------------------------------------------------------------------------------------------------------------------------------
Crime $500,000 $ 50,000 0021427844 National Union 3/31/02 - 3/31/03 $ 5,246
Fire Insurance
--------------------------------------------------------------------------------------------------------------------------------
Directors & $5,000,000 Includes EPLI $100,▇▇▇ ▇▇▇▇-▇▇▇▇ Executive Risk 3/31/01 - 6/30/02 $ 74,360
Officers
Liability
--------------------------------------------------------------------------------------------------------------------------------
Errors & $3,000,000/$5,000,000 $100,▇▇▇ ▇▇▇▇-▇▇▇▇ Executive Risk 3/31/02 - 3/31/03 $130,415
Omissions Specialty Ins.
Liability (MGD Co.
Care)
--------------------------------------------------------------------------------------------------------------------------------
Errors & $1,000,000 $100,000 TBD Executive Risk 3/31/01 - 3/31/02 $ 10,000
Omissions Specialty Ins.
Liability (Puerto Co.
Rico)
--------------------------------------------------------------------------------------------------------------------------------
General $1,000,000/$2,000,000 $ 1,000 ▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Union 12/31/01 - 12/31/02 $ 94,755
Liability
--------------------------------------------------------------------------------------------------------------------------------
General $9,000,000 xs $1,000,000 PHA015331 Royal Specialty 12/31/01 - 12/31/02 $ 48,015
Liability Excess Underwriting
--------------------------------------------------------------------------------------------------------------------------------
Health Care $3,000,000/$5,000,000 $100,▇▇▇ ▇▇▇▇-▇▇▇▇ Executive Risk 3/31/02 - 3/31/03 $ 75,000
Consultant Specialty
Professional Insurance
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
Liab. Company
--------------------------------------------------------------------------------------------------------------------------------
Professional $1,000,000/$3,000,000 -0- 2000MUT.0008 MAI 12/31/01 - 12/31/02 $127,900
Liab. (Puerto
Rico)
--------------------------------------------------------------------------------------------------------------------------------
Property (APS) Per Schedule $ 5,000 ESP1500516 Chubb 10/1/01 - 10/01/02 $ 23,173
--------------------------------------------------------------------------------------------------------------------------------
Property (Puerto See Schedule $ 250 CBP8621007 Preferred Risk 8/23/01 - 8/23/02 $ 23,295
Rico) Insur. Co.
--------------------------------------------------------------------------------------------------------------------------------
Workers Statutory -0- WC-633-17-12 American Home 10/06/01 - 10/06/02 $148,060
Compensation Assurance
--------------------------------------------------------------------------------------------------------------------------------
Workers' Comp
(PR and WA)
--------------------------------------------------------------------------------------------------------------------------------
SCHEDULE K
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT (TERM LOAN)
PLACES OF BUSINESS AND CHIEF EXECUTIVE OFFICERS
Innovative Resources Group, LLC
Prior to April 1, 2002:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
As of April 1, 2002 the proposed corporate office will be:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CNR Partners, Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
APS Clinics of Puerto Rico, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE L
TO
FIRST AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT (TERM LOAN)
LOCATIONS OF COLLATERAL
INNOVATIVE RESOURCES GROUP, LLC
Prior to April 1, 2002:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
As of April 1, 2002 the proposed corporate office will be:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
List of locations of collateral
between April 1, 2002
and approximately
June 29, 2002:
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Metro Square ▇▇▇
▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
List of locations of collateral
on or about
June 29, 2002:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Metro Square ▇▇▇
▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CNR PARTNERS, INC.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
APS CLINICS OF PUERTO RICO, INC.
APS Clinics of Puerto Rico, Inc. intends to assume certain leases of clinics
operated by APS Healthcare Puerto Rico, Inc. The collateral locations for APS
Clinics of Puerto Rico, Inc. will consist of one or more of the current
collateral locations listed for APS Healthcare Puerto Rico, Inc. on Schedule
5.26B of the Loan Agreement. The exact locations have not yet been determined.
SCHEDULE M
TO
FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT (TERM LOAN)
NAMES
Innovative Resources Group, LLC
formerly known as Innovative Resources Group, Inc. which was formerly known as
CNR Health, Inc.
CNR Partners, Inc.
APS Clinics of Puerto Rico, Inc.