ex10-1.htm


 


Exhibit 10.1


 


FOURTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT


 


THIS FOURTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT dated as of August 27, 2012 (this “Agreement”) is entered into among ExamWorks Group, Inc., a Delaware corporation (the “Borrower”), the Guarantors, the Lenders party hereto and Bank of America, N.A., as Administrative Agent.  All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (as defined below).







RECITALS




 


WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative Agent entered into that certain Credit Agreement dated as of October 11, 2010 (as amended or modified from time to time, the “Credit Agreement”);







WHEREAS, the Borrower (or one of its Wholly Owned Subsidiaries) wishes to acquire substantially all of the assets used in the operation of MedHealth Holdings Pty Limited for cash consideration of approximately $100,000,000, subject to post-closing working capital adjustments (collectively, the “Australian Acquisition”);







WHEREAS, the aggregate consideration paid by Borrower for the Australian Acquisition will exceed the amount of consideration for an Acquisition permitted by clause (ix) of the definition of “Permitted Acquisitions” in Section 1.01 of the Credit Agreement; and







WHEREAS, the Borrower has requested that the Lenders permit the Australian Acquisition notwithstanding the limit on consideration set forth above and make one other concession set forth below, together with certain related amendments to the Credit Agreement as set forth below;







WHEREAS, the Lenders are willing to permit the Australian Acquisition and amend the Credit Agreement subject to the terms and conditions set forth below;







NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:







1.           Consent.







(a)           Subject to the other terms and conditions of this Agreement, notwithstanding that the Australian Acquisition exceeds the limit on consideration permitted by clause (ix) of the definition of “Permitted Acquisitions” in Section 1.01 of the Credit Agreement, the Lenders hereby consent to the Australian Acquisition and agree that the Australian Acquisition shall constitute a “Permitted Acquisition” for purposes of Section 8.02(g) of the Credit Agreement; provided that the Australian Acquisition satisfies all other requirements set forth in the definition of “Permitted Acquisitions.”  The consent of the Lenders provided pursuant to this Section 1(a) shall become null and void if the Australian Acquisition shall not have occurred by October 5, 2012.







(b)           The above consent shall not modify or affect the Loan Parties’ obligations to comply fully with the terms of Section 8.02(g) of the Credit Agreement or any other duty, term, condition or covenant contained in the Credit Agreement or any other Loan Document in the future, except as expressly set forth herein. The above consent is limited solely to the matters described above, and nothing contained in this Agreement shall be deemed to constitute a waiver of any other rights or remedies the Administrative Agent or any Lender may have under the Credit Agreement or any other Loan Documents or under applicable law.


 




  





  











  











2.           Amendments to Credit Agreement.  Section 1.01 of the Credit Agreement is hereby amended as follows:







(a)           In the definition of “Alternative Currency”, the term “Australian Dollars” is inserted immediately after the term “Euro”.







(b)           In the definition of “Alternative Currency Sublimit”, the reference to “$60,000,000” is amended to read “$100,000,000”.







(c)           The following definition is inserted in the appropriate alphabetical order:







“Australian Dollars” and “AUD” means the lawful currency of Australia.







3.           Conditions Precedent.  Receipt by the Administrative Agent of the following:







(a)           counterparts of this Agreement duly executed by the Borrower, the Guarantors, the Lenders and Bank of America, N.A., as Administrative Agent.







(b)           a consent and amendment fee, for the account of each Lender that consents to the Amendment, equal to five basis points (0.05%) of the amount of such Lender’s Revolving Commitment.







4.           Miscellaneous.


 


(a)           The Credit Agreement and the obligations of the Loan Parties thereunder and under the other Loan Documents, are hereby ratified and confirmed and shall remain in full force and effect according to their terms.  The Loan Parties hereby confirm and agree that all Liens now or hereafter held by the Administrative Agent for the benefit of the holders of the Obligations as security for payment thereof remain in full force and effect and are unimpaired by this Agreement.







(b)           Each Guarantor (i) acknowledges and consents to all of the terms and conditions of this Agreement, (ii) affirms all of its obligations under the Loan Documents as modified hereby and (iii) agrees that this Agreement and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Credit Agreement or the other Loan Documents except as expressly set forth herein.


 


(c)           The Loan Parties hereby represent and warrant as follows:


 


(i)           Each Loan Party has taken all necessary action to authorize the execution, delivery and performance of this Agreement.







(ii)          This Agreement has been duly executed and delivered by the Loan Parties and constitutes each of the Loan Parties’ legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be subject to (A) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).


 




  





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(iii)         No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by any Loan Party of this Agreement.


 










(d)           The Loan Parties represent and warrant to the Lenders that (i) the representations and warranties of the Loan Parties set forth in Article VI of the Credit Agreement and in each other Loan Document are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the date hereof with the same effect as if made on and as of the date hereof, except to the extent such representations and warranties expressly relate solely to an earlier date or have been previously updated or amended and (ii) no event has occurred and is continuing, or would result from the execution and delivery of this Agreement, which constitutes a Default or an Event of Default.


  




(e)           This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument.  Delivery of an executed counterpart of this Agreement by telecopy shall be effective as an original and shall constitute a representation that an executed original shall be delivered.


 




(f)           Each of the parties hereto hereby agrees that this Amendment shall be deemed to be, and is, a Loan Document.







(g)           THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.







[Signature pages follow]


 




  





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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.







BORROWER:                                                                                        EXAMWORKS GROUP, INC.,


a Delaware corporation












By:                      /S/                                


Name: J. Miguel Fernandez de Castro


Title: Chief Financial Officer, Senior Executive Vice President and Treasurer












GUARANTORS:                                                                                   EXAMWORKS, INC., a Delaware corporation












By:                      /S/                                


Name: J. Miguel Fernandez de Castro


Title: Chief Financial Officer, Senior Executive Vice President and Treasurer












IME SOFTWARE SOLUTIONS, LLC,


a Michigan limited liability company


EXAMWORKS REVIEW SERVICES, LLC,


a Delaware limited liability company


EXAMWORKS EVALUATIONS OF NEW YORK,


LLC, a New York limited liability company


MEDICOLEGAL SERVICES, LLC,


a Delaware limited liability company


IME RESOURCES, LLC,


a Delaware limited liability company


CREDENTIALMED, LLC,


a Delaware limited liability company


ISALUS, LLC,


a Delaware limited liability company












By: ExamWorks, Inc., its sole member







By:                      /S/                                


Name: J. Miguel Fernandez de Castro


Title: Chief Financial Officer, Senior Executive Vice President and Treasurer









  





 











  











EXAMWORKS CANADA, INC., a Delaware corporation


EXAMWORKS EUROPE, INC., a Delaware corporation


FLORIDA MEDICAL SPECIALISTS, INC.,


a New Jersey corporation


MARQUIS MEDICAL ADMINISTRATORS, INC.,


a New York corporation


SOUTHWEST MEDICAL EXAMINATION SERVICES, INC.,


a Texas corporation


PACIFIC BILLING SERVICES, INC.,


a Texas corporation


DIAGNOSTIC IMAGING INSTITUTE, INC.,


a Texas corporation


NETWORK MEDICAL REVIEW COMPANY,


LTD., an Illinois corporation


MES GROUP, INC.,


a Michigan corporation


MEDICAL EVALUATION SPECIALISTS, INC.,


a Michigan corporation


MEDICAL EVALUATION SPECIALISTS,


a California corporation


MEDICAL EVALUATION SPECIALISTS-MASSACHUSETTS, INC.,


a Massachusetts corporation


MEDICAL EVALUATION SPECIALISTS, INC.,


a Pennsylvania corporation


LONE STAR CONSULTING SERVICES, INC.,


a Texas corporation


MES MANAGEMENT SERVICES, INC.,


a New York corporation


MLS GROUP OF COMPANIES, INC.,


a Michigan corporation












By:                      /S/                                


Name: J. Miguel Fernandez de Castro


Title: Chief Financial Officer, Senior Executive Vice President and Treasurer












RICWEL OF WEST VIRGINIA, LLC,


a West Virginia limited liability company


CFO MEDICAL SERVICES, LLC,


a New Jersey limited liability company







By: ExamWorks, Inc., its sole member and manager







By:                      /S/                                


Name: J. Miguel Fernandez de Castro


Title: Chief Financial Officer, Senior Executive Vice President and Treasurer












DDA MANAGEMENT SERVICES, LLC,


a New York limited liability company







By: Lone Star Consulting Services, Inc., its sole member







By:                      /S/                                


Name: J. Miguel Fernandez de Castro


Title: Chief Financial Officer, Senior Executive Vice President and Treasurer









  





 











  






 


ADMINISTRATIVE


AGENT:                                                                                                 BANK OF AMERICA, N.A.,


as Administrative Agent







By:                      /S/                                


Name:  Anne M. Zeschke


Title:    Vice President







LENDERS:                                                                                             BANK OF AMERICA, N.A.,


as a Lender, Swing Line Lender and L/C Issuer







By:                      /S/                                


Name:  E. Mark Hardison


Title:    Vice President







GENERAL ELECTRIC CAPITAL CORPORATION,


as a Lender







By:                      /S/                                


Name:  Andrew D. Moore


Title:    Duly Authorized Signatory







FIFTH THIRD BANK,


as a Lender







By:                      /S/                                


Name:  Philip Renwick


Title:    Vice President







SUNTRUST BANK,


as a Lender







By:                      /S/                                


Name:  Mary E. Coke


Title:    Vice President







WELLS FARGO BANK, NATIONAL ASSOCIATION,


as a Lender







By:                      /S/                                


Name:   William B. Nixon


Title:     Senior Vice President







CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,


as a Lender







By:                      /S/                                                      By:                      /S/                      


Name:   Ari Bruger                                                      Name:   Kevin Buddhdew


Title:     Vice President                                                Title: Associate







BARCLAYS BANK PLC,


as a Lender


 




  





 











  











By:                      /S/                                


Name:  Diane Rolfe


Title:    Director







COMMUNITY & SOUTHERN BANK,


as a Lender







By:                      /S/                                


Name:  Thomas A. Bethel


Title:    Corporate Banking Manager







GOLDMAN SACHS BANK USA,


as a Lender







By:                      /S/                                


Name:  Ashwin Ramakrishna


Title:    Authorized Signatory