1 Exhibit 10.2 FIRST WAIVER dated as of September 9, 1998 (this "Waiver"), among FPA MEDICAL MANAGEMENT, INC., a Delaware corporation and debtor and debtor-in-possession (the "Borrower"), each direct and indirect Subsidiary of the Borrower party to...
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Exhibit 10.2
FIRST WAIVER dated as of September 9, 1998 (this "Waiver"),
among FPA MEDICAL MANAGEMENT, INC., a Delaware corporation and debtor and
debtor-in-possession (the "Borrower"), each direct and indirect Subsidiary of
the Borrower party to the Credit Agreement referred to below (the "Guarantors"),
each of which Guarantors is a debtor and debtor-in-possession, the several banks
and other financial institutions from time to time parties to the Credit
Agreement referred to below (the "Lenders") and BANKBOSTON, N.A., as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
W I T N E S S E T H :
WHEREAS, the parties to this Waiver are parties to the
Revolving Credit and Guarantee Agreement dated as of July 20, 1998 (as
heretofore amended, supplemented or otherwise modified, the "Credit Agreement");
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make certain loans to the Borrower;
WHEREAS, the Borrower and the Guarantors have requested that
the Administrative Agent and the Lenders agree to waive Section 6.19 (Minimum
Net Cash Flow From Operations) of the Credit Agreement in the manner provided in
this Waiver;
WHEREAS, the Administrative Agent and the Lenders have agreed
to such waiver, but only upon the terms and subject to the conditions set forth
herein.
NOW THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
SECTION 1. DEFINITIONS.
1.1. Defined Terms. Unless otherwise defined herein and except
as set forth in this Waiver, terms defined in the Credit Agreement are used
herein as therein defined.
SECTION 2. WAIVER. Subject to the terms and conditions hereof,
the Lenders hereby waive application of, and any Default or Event of Default
that would otherwise occur under:
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(a) Section 6.2 (Limitation on Liens) of the Credit
Agreement but solely as to the existence of the Liens and right of
set-off in favor of First Union National Bank ("First Union") pursuant
to the "Deposit Agreement and Disclosures for Non-Personal Accounts"
between the Borrower and First Union;
(b) Section 6.12 (Cash Concentration) of the Credit
Agreement but solely as to the transfer of the cash management system
of the Borrower and its Subsidiaries to First Union;
(c) Section 6.19 (Minimum Net Cash Flow From
Operations) of the Credit Agreement but solely as to Sterling with
respect to the period from the Filing Date through August 28, 1998; and
(d) Section 6.20 (Minimum Receipts) of the Credit
Agreement but solely with respect to the failure of FPA Florida Medical
Groups to receive approximately $5,400,000 from Humana during the
period from the Filing Date through August 28, 1998;
provided, in each case, that the Administrative Agent shall have received a copy
of the "Negative Covenant Report" for the Borrower and the Core Businesses for
the period from July 20, 1998 to August 28, 1998, together with a certificate of
a Responsible Officer certifying that such Responsible Officer has no reason to
believe that such Report is incorrect or misleading in any material respect;
provided further that (a) the waivers contained in clauses (a) and (b) above
shall remain in effect only through September 15, 1998 and (b) the waiver
contained in clause (d) above shall remain in effect only through September 22,
1998.
SECTION 3. MISCELLANEOUS.
3.1. Effectiveness. This Waiver shall become effective upon
the date on which the Administrative Agent shall have received, with
counterparts for each Lender, this Waiver, duly executed and delivered by the
Borrower, the Guarantors and the Required Lenders.
3.2. Representations and Warranties. After giving effect to
this Waiver, each of the Borrower and the Guarantors hereby confirms, reaffirms
and restates the representations and warranties set forth in Section 3 of the
Credit Agreement, except that solely for purposes of Section 3.5 of the Credit
Agreement, the Liens and right of set-off described in Section 2(a) above shall
constitute "Permitted Liens".
3.3. Continuing Effect; No Other Amendments or Waivers. Except
as expressly waived hereby, all of the terms and provisions of the Credit
Agreement and the other Loan Documents are and shall remain in full force and
effect. The waivers contained herein shall
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not constitute an amendment or waiver of any other provision of the Credit
Agreement or the other Loan Documents or for any purpose except as expressly set
forth herein.
3.4. Counterparts. This Waiver may be executed in any number
of counterparts by the parties hereto, each of which counterparts when so
executed shall be an original, but all the counterparts shall together
constitute one and the same instrument.
3.5. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
3.6. No Admission. The request of the Borrower and the
Guarantors for the foregoing waivers shall not constitute an admission, by the
Borrower and the Guarantors, of the existence of a Default or Event of Default.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
BORROWER
FPA MEDICAL MANAGEMENT, INC.
By: __________________________________
Name:
Title:
GUARANTORS
AHI HEALTHCARE SYSTEMS, INC.
AHI (TEXAS) HEALTHCARE SYSTEMS, INC.
AMG MANAGEMENT COMPANY
AMERICAN HEALTH MEDICAL GROUP, XXXXXX,
INC.
ARIZONA MANAGED CARE PROVIDERS, LTD.
AVANTI HEALTH SYSTEMS OF TEXAS, INC.
BHP IPA, INC.
XXXXXXX HILLS/WEST LOS ANGELES MEDICAL
NETWORK, A MEDICAL GROUP, INC.
CAROLINA HEALTH CARE GROUP, P.C.
CENTURY FAMILY MEDICAL GROUP, INC.
CINCINNATI HEALTH PARTNERS, INC.
COMPREHENSIVE PRIMARY CARE MSO, INC.
CONNEKT, LLC
CORNERSTONE PHYSICIANS CORPORATION
CORNERSTONE PHYSICIANS OF PHOENIX, INC.
FHC IPA, INC.
FHMG/TDMC MEDICAL GROUP, A PROFESSIONAL
CORPORATION
FAMILY PRACTICE ASSOCIATES OF SOUTHERN
CALIFORNIA, A MEDICAL CORP.
FPA ACQUISITION CORPORATION
FPA AXMINSTER MEDICAL GROUP, INC.
FPA HOLDING COMPANY OF CALIFORNIA, INC.
FPA INDEPENDENT PRACTICE ASSOCIATION,
A MEDICAL CORP.
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FPA MEDICAL FOUNDATION
FPA MEDICAL GROUP OF ARIZONA, P.C.
FPA MEDICAL GROUP OF CALIFORNIA, INC.
FPA MEDICAL GROUP OF DELAWARE, P.A.
FPA MEDICAL GROUP OF FLORIDA, INC.
FPA MEDICAL GROUP OF GEORGIA, P.C.
FPA MEDICAL GROUP OF KANSAS, P.A.
FPA MEDICAL GROUP OF KENTUCKY, INC.
FPA MEDICAL GROUP OF NEW JERSEY,
A PROFESSIONAL CORPORATION
FPA MEDICAL GROUP OF NORTHERN
CALIFORNIA, INC.
FPA MEDICAL GROUP OF PENNSYLVANIA,
A MEDICAL CORPORATION
FPA MEDICAL GROUP OF TEXAS, A TEXAS
PROFESSIONAL ASSOCIATION
FPA MEDICAL GROUP OF THE GREATER BAY
AREA, INC.
FPA MEDICAL GROUP, P.A.
FPA MEDICAL MANAGEMENT OF ARIZONA, INC.
FPA MEDICAL MANAGEMENT OF CALIFORNIA,
INC.
FPA MEDICAL MANAGEMENT OF FLORIDA, INC.
FPA MEDICAL MANAGEMENT OF GEORGIA, INC.
FPA MEDICAL MANAGEMENT OF ILLINOIS, INC.
FPA MEDICAL MANAGEMENT OF KENTUCKY,
INC.
FPA MEDICAL MANAGEMENT OF LOUISIANA,
INC.
FPA MEDICAL MANAGEMENT OF MISSOURI, INC.
FPA MEDICAL MANAGEMENT OF NORTH
CAROLINA, INC.
FPA MEDICAL MANAGEMENT OF SOUTH
CAROLINA, INC.
FPA MEDICAL MANAGEMENT OF TENNESSEE,
INC.
FPA MEDICAL MANAGEMENT OF TEXAS, INC.
FPA MEDICAL MANAGEMENT OF THE
MID-ATLANTIC, INC.
FPA OF GEORGIA, INC.
FPA SURGICAL CENTER, INC.
FPA WOMEN'S CARE OF GEORGIA, INC.
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FPA/XXXXXXX MEDICAL GROUP OF NEVADA,
LTD.
FOUNDATION HEALTH IPA, A PROFESSIONAL
MEDICAL CORPORATION
G.P.M. IPA, INC.
GATEWAY IPA, INC.
GATEWAY PHYSICIANS SERVICES, INC.
GOTHAM MANAGEMENT, INC.
GOTHAM MID-TOWN MANAGEMENT, INC.
XXXXXXX XXXXXX MEDICAL GROUP, INC.
HEALTH ONE ASSOCIATES, INC.
HEALTH PARTNERS, INC.
HEALTHCAP, INC.
HEALTHCAP-MISSOURI, INC.
HEALTHCAP-NEVADA, INC.
INTERGROUP IPA, P.C.
MID-LEVEL PRACTITIONERS, INC.
MONTEBELLO PHYSICIANS MEDICAL GROUP,
INC.
NOVA HEALTHCARE MEDICAL GROUP, INC.
NOVA PHYSICIANS MEDICAL CORPORATION, INC.
OB-GYN MANAGEMENT, INC.
PHYSICIAN NETWORK OF WHITTIER MEDICAL
ASSOCIATES, INC.
PHYSICIANS MEDICAL GROUP OF FLORIDA, INC.
PRIMARY CARE MEDICAL GROUP AT LITTLE
COMPANY OF XXXX HOSPITAL, INC.
PRIVATE PHYSICIANS GROUP AT STANFORD, A
MEDICAL GROUP, INC.
SAN ANTONIO HEALTH PARTNERS, INC.
ST. XXXXXXX CARE MEDICAL GROUP
STERLING ANESTHESIA, INC.
STERLING CREDENTIALS VERIFICATION
SERVICES, INC.
STERLING EMERGENCY MEDICAL CARE, INC.
STERLING EMERGENCY TREATMENT
ASSOCIATES, INC.
STERLING HEALTHCARE GROUP, INC.
STERLING HEALTHCARE MEDICAL CORP.
STERLING HEALTHCARE OF TEXAS, P.A.
STERLING MEDICAL GROUP OF MICHIGAN, INC.
STERLING MEDICAL GROUP OF MICHIGAN, P.C.
STERLING MEDNET EMERGENCY SERVICES, INC.
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STERLING MIAMI, INC.
STERLING MICHIGAN, P.C.
STERLING PROFESSIONAL EMERGENCY
PHYSICIANS, LLC
STERLING RADIOLOGY, INC.
STERLING REGIONAL EMERGENCY SERVICES,
INC.
STERLING SUB TEXAS, INC.
THE DOCTORS OFFICENTER MEDICAL GROUP OF
HOUSTON, P.A.
THE DOCTORS OFFICENTER MEDICAL GROUP OF
DALLAS, P.A.
XXXXXX-XXXXX MEDICAL CENTERS, P.C.
VIP IPA, A PROFESSIONAL MEDICAL
CORPORATION
VIRGINIA HEALTH PARTNERS, INC.
VMS MEDICAL IPA, INC.
By: _____________________________________
Name:
Title:
BANKBOSTON, N.A., as Administrative Agent and
as a Lender
By: _____________________________________
Name:
Title:
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: _____________________________________
Name:
Title:
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XXXXXX COMMERCIAL PAPER INC.
By: _____________________________________
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By: _____________________________________
Name:
Title:
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