FOURTH AMENDMENT
to
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of November 2, 1998, is executed and entered into by and among BMJ Medical
Management, Inc., a Delaware corporation (the "Borrower"), the Lenders set forth
on the signature pages hereof, and Paribas, in its capacity as agent for the
Lenders (the "Agent").
RECITALS:
A. The Borrower, the Lenders and the Agent are parties to that
certain Credit Agreement dated June 20, 1998 as amended as of July 20, 1998,
September 3, 1998 and October 14, 1998 (hereinafter called the "Agreement";
terms defined by the Agreement, where used in this Amendment, shall have the
same meanings herein as are prescribed by the Agreement).
B. The Borrower has received a financing proposal from Copelco
Capital for a non-recourse credit facility in an amount not to exceed $2 million
(the "Copelco Financing") to provide for improvements to an Ancillary Service
Facility located in Bakersfield, California (the "Bakersfield ASF") and owned by
BMJ Surgical Associates of Bakersfield, Limited Partnership ("BMJ Bakersfield
LP").
C. BMJ of Bakersfield, Inc., a subsidiary of the Borrower ("BMJ
Bakersfield"), is the general partner and 50% owner of BMJ Bakersfield LP.
D. In connection with the Copelco Financing, the Borrower has
requested that the Lenders release their security interest in the Collateral
consisting of the assets located at the Bakersfield ASF and consent to the
taking of a lien by Copelco Capital on the general partnership interest of BMJ
Bakersfield in BMJ Bakersfield LP (the "GP Interest").
E. The Borrower has informed the Lenders that pursuant to a,
resolution of the Borrower's Board of Directors, the Borrower will be initiating
a restructure plan which may involve, among other things, reducing the number of
its acquisitions, terminating a portion of its Management Services Agreements or
otherwise changing the Borrower's business focus (the "Restructure").
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F. The Borrower, the Lenders and the Agent have agreed to amend
the Agreement as provided hereinbelow.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
Section 1. Section References. Unless otherwise expressly stated
herein, all Section references herein shall refer to Sections of the Agreement.
Section 2. Amendment to Definition of "Indebtedness". The
definition of Indebtedness is hereby amended by striking the parenthetical
contained in clause (i) of such definition and replacing it with the following:
(other than the Copelco Financing and trade payables incurred in
the ordinary course of business of such Person)
Section 3. Release of Collateral, Consent to Lien. Each of the
Lenders hereby agrees that, upon the closing of the Copelco Financing pursuant
to documentation satisfactory in form and substance to the Lenders, all of the
assets located at the Bakersfield ASF shall be released as Collateral for the
Obligations under the Agreement. Each of the Lenders further agrees to instruct
the Agent to take all necessary action to effect such release of Collateral. In
addition, each of the Lenders hereby consents to the taking of a lien by Copelco
Capital on the GP Interest pursuant to documentation satisfactory in form and
substance to the Lenders.
Section 4. Required Consent for Restructure. The Borrower
acknowledges that the Restructure may materially impact the future financial
condition of the Borrower and hereby agrees that, notwithstanding anything to
the contrary which may be contained in Section 9.5 of the Agreement, the
Restructure shall not be initiated without the prior written consent of all of
the Lenders. This requirement may only be modified by the written consent of all
of the Lenders.
Section 5. Consent for Additional Tranche A Loans. The parties
hereto agree that from and after the effective date of this Amendment, the
Borrower may not borrow Tranche A Loans without the prior written consent of all
of the Lenders. This requirement may only be modified by the written consent of
all of the Lenders.
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Section 6. Consent for Changes to Section 6.8 ("Capital Expendi-
tures"). Notwithstanding anything to the contrary which may be contained in
Section 9.5 of the Agreement, the parties hereto agree that from and after the
effective date of this Amendment, Section 6.8 of the Agreement may not be
amended, modified or waived without the prior written consent of all of the
Lenders.
Section 7. Conditions Precedent. The effectiveness of this
Amendment is subject to the satisfaction of each of the following conditions
precedent:
(a) The Agent shall have received all of the following,
each dated the date of this Amendment (unless otherwise indicated),
in form and substance satisfactory to the Agent:
(i) Amendment Documents. This Amendment and any other
instrument, document or certificate required by the Agent to be
executed or delivered by the Borrower or any other Person in connection
with this Amendment, duly executed by such Persons (the "Amendment
Documents");
(ii) Resolutions. Resolutions of the board of directors of the
Borrower, certified by its Secretary or Assistant Secretary, which
authorize the execution, delivery and performance by the Borrower of
this Amendment and the other Amendment Documents to which the Borrower
is or is to be a party hereunder;
(iii) Consent of the Lenders. The written consent of the
Lenders to this Amendment; and
(iv) Additional Information. The Agent shall have received such
additional documents, instruments and information as the Agent may
reasonably request to effect the transactions contemplated hereby.
(b) Other than as heretofore disclosed to the Lenders,
the representations and warranties contained herein and in the Agreement shall
be true and correct as of the date hereof as if made on the date hereof (except
for those which by their terms specifically refer to a different date).
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(c) All corporate proceedings taken in connection with
the transactions contemplated by this Amendment and all other agreements,
documents and instruments executed and/or delivered pursuant hereto, and all
legal matters incident thereto, shall be satisfactory to the Agent.
(d) No Default or Event of Default shall have occurred
and be continuing.
Section 8. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Lenders that, as of the date of and
after giving effect to this Amendment, (a) the execution, delivery and
performance of this Amendment and any and all other Amendment Documents executed
and/or delivered in connection herewith have been authorized by all requisite
corporate action on the part of the Borrower and will not violate the Borrower's
certificate of incorporation or bylaws, (b) other than as heretofore disclosed
to the Lenders, all representations and warranties set forth in the Agreement
and in any other Loan Document are true and correct as if made again on and as
of such date (except those, if any, which by their terms specifically relate
only to a different date), (c) no Default or Event of Default has occurred and
is continuing, and (d) the Agreement (as amended by this Amendment), and all
other Loan Documents are and remain legal, valid, binding and enforceable
obligations in accordance with the terms thereof.
Section 9. Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Loan Document
shall survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by the Agent or the Lenders, or any closing,
shall affect the representations and warranties or the right of the Agent and
the Lenders to rely upon them.
Section 10. Reference to Agreement. Each of the Loan Documents,
including the Agreement, and any and all other agreements, documents or
instruments now or hereafter executed and/or delivered pursuant to the terms
hereof or pursuant to the terms of the Agreement as amended hereby, are hereby
amended so that any reference in such Loan Documents to the Agreement, whether
direct or indirect, shall mean a reference to the Agreement as amended hereby.
Section 11. Governing Law. This Amendment shall be deemed to be
a contract made under and governed by and construed in accordance with the
internal laws (as opposed to the conflicts of laws provisions) of the State of
New York.
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Section 12. Execution. This Amendment may be executed in
counterparts, each of which shall be an original and all of which, collectively,
shall constitute one instrument.
Section 13. Ratification By Guarantors. Each of the Guarantors
hereby agrees to this Amendment and acknowledges that such Guarantor's Guarantee
shall remain in full force and effect without modification thereto.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their officers hereunder duly authorized as of
the date first above written.
BMJ MEDICAL MANAGEMENT,
INC., as the Borrower
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name:
Title:
GUARANTORS:
BMJ of Bakersfield Inc.
BMJ of Bethlehem, Inc.
BMJ BROG. Inc.
BMJ Capital Corp.
BMJ of ▇▇▇▇▇▇▇▇, Inc.
BMJ of Glendale, Inc.
BMJ IPA of Florida, Inc.
BMJ of Lake Tahoe, Inc.
BMJ of Nevada, Inc.
BMJ of North Broward, Inc.
BMJ of San Antonio, Inc.
BMJ of Santa ▇▇▇▇▇▇▇, Inc.
Orthopaedic Management Network, Inc.
Valley Sports Surgeons, Inc.
All By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name:
Title:
S-1
BMJ Surgical Associates of Bakers-
field, Limited Partnership
By: BMJ of Bakersfield, Inc. its general
partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name:
Title:
Surgical Associates of Lake Tahoe,
Limited Partnership
By: BMJ of Lake Tahoe, Inc., its general
partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name:
Title:
Surgical Associates of North Broward,
Limited Partnership
BY: BMJ of North Broward, Inc., its
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------
Name:
Title:
S-2
PARIBAS, as Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: DIRECTOR
By: /s/ ▇▇▇▇ ▇. CONION
-----------------------
Name: ▇▇▇▇ ▇. CONION
Title: DIRECTOR
(4th Amendment)
BMJ MEDICAL MGT.
NOV. 2, 1998
S-3
FLEET CAPITAL CORPORATION, as
a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
S-4
THE ING CAPITAL SENIOR SE-
CURED HIGH INCOME FUND, L.P,
as a Lender
By: ING Capital Advisors, Inc., as In-
vestment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: VICE PRESIDENT & PORTFOLIO
MANAGER
S-5
SILICON VALLEY BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: SVP
BMJ Medical Management
(4th Amendment)
S-6
PARIBAS CAPITAL FUNDING LLC,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: DIRECTOR
S-7