SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.1
SECOND
AMENDMENT TO
CREDIT AGREEMENT
THIS
SECOND AMENDMENT TO CREDIT AGREEMENT
(this
“Amendment”),
dated
as of September 28,
2006,
is entered into by and among WELLCARE
HEALTH PLANS, INC.
(formerly known as WellCare Group, Inc., successor by merger to WellCare
Holdings, LLC), a Delaware corporation (the “Parent”),
WCG
HEALTH MANAGEMENT, INC.
(formerly known as WellCare Health Plans, Inc.), a Delaware corporation
(“WCGHM”),
THE
WELLCARE MANAGEMENT GROUP, INC.,
a New
York corporation (“WMG”),
and
COMPREHENSIVE
HEALTH MANAGEMENT, INC.,
a
Florida corporation (“CHM”,
and
together with WCGHM and WMG, the “Borrowers”
and
each individually, a “Borrower”),
each
Person identified on the signature pages hereto as a “Subsidiary Guarantor” (the
“Subsidiary
Guarantors”),
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
administrative agent (in such capacity, “Administrative
Agent”)
under
the Credit Agreement.
W
I T N E S S E T H
WHEREAS,
the
Borrowers, the Parent, the Subsidiary Guarantors, the lenders
from time to time party thereto (the “Lenders”)
and
the Administrative Agent are parties to that certain Credit Agreement dated
as
of May 13, 2004 (as amended, modified or supplemented from time to time,
the
“Credit
Agreement”);
WHEREAS,
the
Borrowers
have requested that the Credit Agreement be amended as set forth herein;
and
WHEREAS,
the
Required Lenders have agreed to amend the Credit Agreement on the terms and
conditions set forth herein;
NOW,
THEREFORE,
in
consideration of the agreements hereinafter set forth, and for other good
and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
PART
1
DEFINITIONS
SUBPART
1.1 Certain
Definition.
Unless
otherwise defined herein or the context otherwise requires, the following
term
used in this Amendment, including its preamble and recitals, has the following
meaning:
“Second
Amendment Effective Date”
has
the
meaning ascribed thereto in Subpart
3.1.
SUBPART
1.2 Other
Definitions.
Unless
otherwise defined herein or the context otherwise requires, terms used in
this
Amendment, including its preamble and recitals, have the meanings provided
in
the Credit Agreement.
PART
2
AMENDMENT
TO CREDIT AGREEMENT
SUBPART
2.1 Section
6.10.
Section
6.10 of the Credit Agreement is hereby amended and restated in its entirety
to
read as follows:
SECTION
6.10 Capital Expenditures.
Permit the aggregate amount of Capital Expenditures made by Parent and the
Subsidiaries in any period set forth below to exceed the amount set forth
below
for such period:
|
Period
|
Amount
|
|
January
1, 2004 through December 31, 2004
|
$9,000,000
|
|
January
1, 2005 through December 31, 2005
|
$30,000,000
|
|
January
1, 2006 through December 31, 2006
|
$35,000,000
|
|
January
1, 2007 through December 31, 2007 and each year
thereafter
|
$30,000,000
|
The
amount of any Capital Expenditures permitted to be made in respect of any
period
above shall be increased by the amount of permitted Capital Expenditures
set
forth above for the immediately preceding period that were not made during
such
preceding period. Capital Expenditures in any period shall be deemed to use,
first, the amount set forth above for such period and, second, any amount
carried forward to such period pursuant to this paragraph.
PART
3
CONDITIONS
TO EFFECTIVENESS
SUBPART
3.1 Second
Amendment Effective Date.
This
Amendment shall be and become effective as of the date on which all of the
conditions set forth in this Part
3
shall
have been satisfied (the “Second
Amendment Effective Date”)
and
thereafter this Amendment shall be known, and may be referred to, as the
“Second
Amendment.”
SUBPART
3.2 Execution
of Counterparts of Amendment.
The
Administrative Agent shall have received counterparts (or other evidence
of
execution, including telephonic message, satisfactory to the Administrative
Agent) of this Amendment, which collectively shall have been duly executed
on
behalf of each of the parties hereto.
SUBPART
3.3 Execution
of Lender Consents.
The
Administrative Agent shall have received counterparts (or other evidence
of
execution, including telephonic message, satisfactory to the Administrative
Agent) of executed consents, in substantially the form of Exhibit
A
attached
hereto, from the Required Lenders authorizing the Administrative Agent to
enter
into this Amendment on their behalf. The delivery by the Administrative Agent
of
its signature page to this Amendment shall constitute conclusive evidence
that
the consents from the Required Lenders have been obtained.
SUBPART
3.4 Management
Agreement.
The
Administrative Agent shall have received a copy, certified by a Financial
Officer of the Parent as true and complete, of each management agreement
(including any amendments thereto) between CHM and an HMO Subsidiary.
SUBPART
3.5 Payment
of Fees.
The
Borrowers shall have paid in full all reasonable out-of-pocket fees and expenses
of the Administrative Agent in connection with the preparation, execution
and
delivery of this Amendment, including without limitation, the reasonable
fees
and expenses of Xxxxx & Xxx Xxxxx PLLC.
SUBPART
3.6 Other.
The
Administrative Agent shall have received such other documents, agreements
or
information which may be reasonably requested by the Administrative Agent
relating to the existence of the Loan Parties, the corporate authority for
and
the validity of this Amendment and the transactions contemplated hereby,
and any
other matters relevant hereto, all in form and substance satisfactory to
the
Administrative Agent in its sole good faith discretion.
PART
4
MISCELLANEOUS
SUBPART
4.1 Representations
and Warranties.
Each
Borrower hereby represents and warrants to the Administrative Agent and the
Lenders that (a) no Default or Event of Default exists under the Credit
Agreement or any of the other Loan Documents or will exist under the Credit
Agreement,
in each
case
after
giving effect to this Amendment,
and (b)
the representations and warranties set forth in Article III of the Credit
Agreement are, subject to the limitations set forth therein, true and correct
in
all material respects as of the date hereof (except for those which expressly
relate to an earlier date).
SUBPART
4.2 Reaffirmation
of Obligations and
Guarantees.
The
Parent and each Borrower hereby
ratifies the Credit Agreement and acknowledges and reaffirms (a) that it
is
bound by all terms of the Credit Agreement applicable to it and (b) that
it is
responsible for the observance and full performance of its respective
Obligations.
The
Parent and each Subsidiary
Guarantor
hereby
ratifies the Guarantee and Collateral Agreement and acknowledges and affirms
or
reaffirms (a) that it is bound by all terms of the Guarantee and Collateral
Agreement applicable to it and (b) that it is responsible for the observance
and
full performance of its respective obligations and guarantees
thereunder.
SUBPART
4.3 Cross-References.
References in this Amendment to any Part or Subpart are, unless otherwise
specified, to such Part or Subpart of this Amendment.
SUBPART
4.4 Credit
Agreement.
As used
in the Credit Agreement, the terms “Agreement”, “Credit Agreement”, “herein”,
“hereinafter”, “hereunder”, “hereto”, and words of similar import shall mean,
from and after the date hereof, the Credit Agreement as amended by this
Amendment.
SUBPART
4.5 Counterparts/Telecopy.
This
Amendment may be executed by the parties hereto in several counterparts,
each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. Delivery of executed counterparts
of
the Amendment by telecopy shall be effective as an original and shall constitute
a representation that an original shall be delivered.
SUBPART
4.6 Governing
Law.
THIS
AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402
OF
THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW
AND
CONFLICTS OF LAW RULES).
SUBPART
4.7 Successors
and Assigns.
This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
SUBPART
4.8 General.
Except
as amended hereby, the Credit Agreement and all other Loan Documents shall
continue in full force and effect.
[remainder
of page intentionally left blank]
IN
WITNESS WHEREOF the parties hereto have caused this Amendment to be duly
executed on the date first above written.
BORROWERS:
WCG
HEALTH MANAGEMENT, INC.
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
President and CEO
THE
WELLCARE MANAGEMENT GROUP, INC.
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
President and CEO
COMPREHENSIVE
HEALTH MANAGEMENT, INC.
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
President and CEO
PARENT:
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
President and CEO
SUBSIDIARY
GUARANTORS:
HARMONY
HEALTH SYSTEMS, INC.
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
President and CEO
HARMONY
HEALTH MANAGEMENT, INC.
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
President and CEO
HARMONY
BEHAVIORAL HEALTH, INC.
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
President and CEO
HARMONY
BEHAVIORAL HEALTH IPA, INC.
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
President and CEO
COMPREHENSIVE
HEALTH MANAGEMENT OF FLORIDA, L.C.
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
President and CEO
COMPREHENSIVE
LOGISTICS, LLC
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
President and CEO
WELLCARE
HEALTHCARE PLANS, INC.
SECOND
AMENDMENT TO CREDIT AGREEMENT
ADMINISTRATIVE
AGENT: WACHOVIA
BANK, NATIONAL ASSOCIATION, as a Lender and as Administrative Agent on
behalf
of the Required Lenders
By:
/s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx
X. Xxxxxxx
Title:
Director
WELLCARE
HEALTHCARE PLANS, INC.
SECOND
AMENDMENT TO CREDIT AGREEMENT
EXHIBIT
A
[FORM
OF]
TO
CREDIT AGREEMENT
This
Consent is given pursuant to the Credit Agreement, dated as of May 13, 2004
(as
previously amended and modified, the “Credit Agreement”; and as further amended
by the Amendment (as hereinafter defined), the “Amended Credit Agreement”), by
and among WELLCARE
HEALTH PLANS, INC.
(formerly known as WellCare Group, Inc., successor by merger to WellCare
Holdings, LLC), a Delaware corporation (the “Parent”), WCG
HEALTH MANAGEMENT, INC.
(formerly known as WellCare Health Plans, Inc.), a Delaware corporation
(“WCGHM”), THE
WELLCARE MANAGEMENT GROUP, INC.,
a New
York corporation (“WMG”), and COMPREHENSIVE
HEALTH MANAGEMENT, INC.,
a
Florida corporation (“CHM”, and together with WCGHM and WMG, the “Borrowers” and
each individually, a “Borrower”), the Subsidiary Guarantors from time to time
party thereto, the lenders from time to time party thereto (the “Lenders”), and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
administrative agent (in such capacity, “Administrative Agent”) under the Credit
Agreement. Capitalized
terms used herein shall have the meanings ascribed thereto in the Amended Credit
Agreement unless otherwise defined herein.
The
undersigned hereby approves the amendment of the Credit Agreement effected
by
the Second Amendment to Credit Agreement (the “Amendment”), dated as of
September [__],
2006 by
and among the Borrowers, the Parent, the Subsidiary Guarantors party thereto,
and the Administrative Agent and hereby authorizes the Administrative Agent
to
execute and deliver the Amendment on its behalf and, by its execution below,
the
undersigned agrees to be bound by the terms and conditions of the Amendment
and
the Amended Credit Agreement.
Delivery
of this Consent by telecopy shall be effective as an original.
A
duly
authorized officer of the undersigned has executed this Consent as of the ___
day of ______________, 2006. ______________________________,
as
a
Lender
By:
Name:
Title:
