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FIFTH WAIVER dated as of October 7, 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 certain provisions of
the Credit Agreement in the manner provided in this Waiver; and
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:
(a) Section 5.1 (Financial Statements) of the
Credit Agreement as a result of the failure of the Borrower to deliver
the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of July, 1998 and the related
unaudited consolidated statements of income and retained earnings and
of cash
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flows of the Borrower and its consolidated Subsidiaries for July, 1998
and the period from the Filing Date through the end of July, 1998;
(b) Section 6.2 (Limitation on Liens) of the
Credit Agreement as a result of 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;
(c) Section 6.12 (Cash Concentration) of the
Credit Agreement as a result of the transfer of the cash management
system of the Borrower and its Subsidiaries to First Union;
(d) Section 6.19 (Minimum Net Cash Flow From
Operations) of the Credit Agreement as a result of the failure of
each of (i) Sterling and its respective Subsidiaries and Affiliates,
and (ii) Xxxxxxx and its respective Subsidiaries and Affiliates to
achieve the required minimum cumulative Net Cash Flow from Operations
for the period from the Filing Date through September 25, 1998; and
(e) Section 6.20 (Minimum Receipts) of the Credit
Agreement as a result of the failure of (i) the Borrower and the
Guarantors, taken as a whole, (ii) Sterling and its respective
Subsidiaries and Affiliates, and (iii) FPA Florida Medical Groups and
its respective Subsidiaries and Affiliates, to achieve the required
minimum aggregate cash receipts for the period from the Filing Date
through September 25, 1998.
provided that (x) the waiver contained in paragraph (a) of this Section 2 shall
terminate unless such consolidated balance sheet and related unaudited
consolidated statements of income and retained earnings and of cash flows are
received by the Administrative Agent by Friday, October 9, 1998, and (y) each
of the waivers contained in paragraphs (b) through (e) of this Section 2 shall
terminate on October 21, 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 and any previous waivers currently in effect, 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.
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
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Loan Documents are and shall remain in full force and effect. The waivers
contained herein shall 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.
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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.
FPA MEDICAL FOUNDATION
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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.
FPA/XXXXXXX MEDICAL GROUP OF NEVADA,
LTD.
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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.
STERLING MIAMI, INC.
STERLING MICHIGAN, P.C.
STERLING PROFESSIONAL EMERGENCY
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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:
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Name:
Title:
BANKBOSTON, N.A., as Administrative Agent and
as a Lender
By:
-----------------------------------------
Name:
Title:
CHASE SECURITIES INC.,
as Agent for The Chase Manhattan Bank
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:
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Name:
Title:
