ex10-1.htm


Exhibit 10.1

 

FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

 

THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is entered into as of June 1, 2015 among EXAMWORKS GROUP, INC., a Delaware corporation (the “Company”), 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 parties have entered into that certain Amended and Restated Credit Agreement dated as of April 16, 2015 among the Company, the Designated Borrowers from time to time party thereto, the Guarantors from time to time party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer (as amended or modified from time to time, the “Credit Agreement”); and

 

WHEREAS, the Company has requested that the Lenders amend the Credit Agreement as 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.     Amendment. Clause (b) of the definition of “Change of Control” appearing in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

(b)     during any period of twenty-four (24) consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Company cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election, appointment or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election, appointment or nomination at least a majority of that board or equivalent governing body or (iii) whose election, appointment or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election, appointment or nomination at least a majority of that board or equivalent governing body; or

 

2.     Conditions Precedent. This Amendment shall be effective upon receipt by the Administrative Agent of:

 

(a)      counterparts of this Amendment duly executed by (i) a Responsible Officer of the Company and each Guarantor and (ii) the Required Lenders and the Administrative Agent; and

 

(b)     all reasonable out-of-pocket costs and expenses of the Administrative Agent (including reasonable fees and expenses of its legal counsel) in connection with this Amendment to the extent invoiced as of the date hereof (paid directly to such counsel if requested by the Administrative Agent), without prejudice to a final settling of accounts between the Administrative Agent and the Loan Parties.

 


 




 


 

3.     Miscellaneous. 

 

(a)     The Credit Agreement (as amended hereby) 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. This Amendment shall not be deemed or construed to be a satisfaction, reinstatement, novation or release of any Loan Document or a waiver by the Administrative Agent or any Lender of any rights and remedies under the Loan Documents, at law or in equity.

 

(b)     Each Guarantor (i) acknowledges and consents to all of the terms and conditions of this Amendment, (ii) affirms all of its obligations under the Loan Documents and (iii) agrees that this Amendment 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.

 

(c)     The Company and the Guarantors hereby represent and warrant to the Administrative Agent and the Lenders as follows:

 

(i)     Each of the Company and the Guarantors has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment. This Amendment and the execution, delivery and performance hereof by the Company and the Guarantors do not contravene the terms of any such Person’s Organization Documents or conflict with or result in any breach or contravention of any law, agreement or obligation by which the Company or any Guarantor is bound.

 

(ii)     This Amendment has been duly executed and delivered by each of the Company and the Guarantors and constitutes a legal, valid and binding obligation of each of the Company and the Guarantors, enforceable against each such Person in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency or other similar laws affecting creditors’ rights generally or by principles of equity pertaining to the availability of equitable remedies.

 

(iii)     No approval, consent, exemption, authorization or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by any Loan Party of this Amendment, other than those that have already been obtained and are in full force and effect.

 

(d)     The Company and the Guarantors represent and warrant to the Administrative Agent and the Lenders that (i) after giving effect to this Amendment, the representations and warranties of the Company and each other Loan Party contained in Article VI of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection therewith, are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, and except that for purposes of this Section 3(d)(i), the representations and warranties contained in Section 6.05(a) of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 7.01(a) of the Credit Agreement, and (ii) after giving effect to this Amendment, no Default has occurred and is continuing. 

 


 




 


 

(e)     This Amendment shall constitute a Loan Document for all purposes. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Amendment. This Amendment constitutes the entire contract among the parties relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Amendment will inure to the benefit of and bind the respective successors and permitted assigns of the parties hereto.

 

(f)     THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TERMS OF SECTIONS 11.14 AND 11.15 OF THE CREDIT AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE, MUTATIS MUTANDIS.

 

 

 

[SIGNATURE PAGES FOLLOW]

 


 




 


 

 

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

 

	
COMPANY:
	
EXAMWORKS GROUP, INC. 

	
 
	
By: /s/ J. Miguel Fernandez de Castro

	
 
	
Name: J. Miguel Fernandez de Castro

	
 
	
Title: Chief Financial Officer, Senior Executive 

	
 
	
Vice President and Treasurer

	
 
	
 

	
GUARANTORS: 
	
EXAMWORKS, INC.

	
 
	
MARQUIS MEDICAL ADMINISTRATORS, INC.

	
 
	
SOUTHWEST MEDICAL EXAMINATION SERVICES, INC.

	
 
	
PACIFIC BILLING SERVICES, INC.

	
 
	
DIAGNOSTIC IMAGING INSTITUTE, INC.

	
 
	
NETWORK MEDICAL REVIEW COMPANY, LTD.

	
 
	
MES GROUP, INC.

	
 
	
MEDICAL EVALUATION SPECIALISTS, INC.

	
 
	
LONE STAR CONSULTING SERVICES, INC.

	
 
	
MES MANAGEMENT SERVICES, INC.

	
 
	
MLS GROUP OF COMPANIES, INC.

	
 
	
VERITY ADMINISTRATORS, INC.

	
 
	
EXAMWORKS CLINICAL SOLUTIONS HOLDINGS, INC.

	
 
	
 

	 	By: /s/ J. Miguel Fernandez de Castro
	 	Name: J. Miguel Fernandez de Castro
	 	Title: Chief Financial Officer, Senior Executive
	 	Vice President and Treasurer


  

	 	IME SOFTWARE SOLUTIONS, LLC
	 	EXAMWORKS REVIEW SERVICES, LLC
	 	EXAMWORKS EVALUATIONS OF NEW YORK, LLC
	 	MEDICOLEGAL SERVICES, LLC
	 	IME RESOURCES, LLC
	 	CREDENTIALMED, LLC
	 	NEXWORKS, LLC
	 	RELIABLE RS, LLC
	 	 
	 	By: ExamWorks, Inc.
	 	Its: Sole Member
	 	 
	 	By: /s/ J. Miguel Fernandez de Castro
	 	Name: J. Miguel Fernandez de Castro
	 	Title: Chief Financial Officer, Senior Executive 
	 	Vice President and Treasurer
	 	 


                         


 




 


 

 

	
 
	
DDA MANAGEMENT SERVICES, LLC

	
 
	
 

	
 
	
By: Lone Star Consulting Services, Inc.

	
 
	
Its: Sole Member

	
 
	
 

	
 
	
By: /s/ J. Miguel Fernandez de Castro

	
 
	
Name: J. Miguel Fernandez de Castro

	
 
	
Title: Chief Financial Officer, Senior Executive

	
 
	
Vice President and Treasurer

	
 
	
 

	
 
	
CALMED EVALUATION SERVICES, LLC

	
 
	
 

	
 
	
By: MES Group, Inc.

	
 
	
Its: Sole Member

	
 
	
 

	
 
	
By: /s/ J. Miguel Fernandez de Castro

	
 
	
Name: J. Miguel Fernandez de Castro

	
 
	
Title: Chief Financial Officer, Senior Executive 

	
 
	
Vice President and Treasurer

	
 
	
 

	
 
	
EXAMWORKS CLINICAL SOLUTIONS, LLC

	
 
	
By: ExamWorks Clinical Solutions Holdings, Inc.

	
 
	
Its: Sole Member

	
 
	
 

	
 
	
By: /s/ J. Miguel Fernandez de Castro

	 	Name: J. Miguel Fernandez de Castro
	 	Title: Chief Financial Officer, Senior Executive 
	 	Vice President and Treasurer
	 	 
	 	GOULD & LAMB TRUST COMPANY, LLC
	 	 
	 	By: ExamWorks Clinical Solutions, LLC
	 	Its: Sole Member
	 	 
	 	By: ExamWorks Clinical Solutions Holdings, Inc.
	 	Its: Sole Member
	 	 
	 	By: /s/ J. Miguel Fernandez de Castro
	 	Name: J. Miguel Fernandez de Castro
	 	Title: Chief Financial Officer, Senior Executive
	 	Vice President and Treasurer
	 	 


 


 




 


 

	
 
	
NATIONAL INSTITUTE FOR MEDICARE AND MEDICAID EDUCATION, LLC

	
 
	
 

	
 
	
By: ExamWorks Clinical Solutions, LLC

	
 
	
Its: Sole Member

	
 
	
 

	
 
	
By: ExamWorks Clinical Solutions Holdings, Inc.

	
 
	
Its: Sole Member

	
 
	
 

	
 
	
By: /s/ J. Miguel Fernandez de Castro

	
 
	
Name: J. Miguel Fernandez de Castro

	
 
	
Title: Chief Financial Officer, Senior Executive 

	
 
	
Vice President and Treasurer

	
 
	
 

	
 
	
LANDMARK EXAMS, LLC

	
 
	
 

	
 
	
By: Medicolegal Services, LLC

	
 
	
Its: Sole Member

	
 
	
By: ExamWorks, Inc. 

	
 
	
Its: Sole Member

	
 
	
 

	 	By: /s/ J. Miguel Fernandez de Castro
	 	Name: J. Miguel Fernandez de Castro
	 	Title: Chief Financial Officer, Senior Executive 
	 	Vice President and Treasurer


 


 




 


 

	
ADMINISTRATIVE
	
bank of america, n.a.,

	
AGENT: 
	
as Administrative Agent

	 	 
	 	 
	
 
	
By: /s/ Joan Mok

	
 
	
Name: Joan Mok

	
 
	
Title: Vice President



 

 


 




 


 

	
LENDERS:    
	
bank of america, n.a.,

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

	
 
	
 

	 	By: /s/ E. Mark Hardison
	 	Name: Mark Hardison
	 	Title: Senior Vice President


                     


 




 


 

	
 
	
SUNTRUST BANK,

	
 
	
as a Lender

	
 
	
 

	 	By: /s/ Jared Cohen
	 	Name: Jared Cohen
	 	Title: Vice President


 


 




 


 

	
 
	
GOLDMAN SACHS BANK USA,

	
 
	
as a Lender

	
 
	
 

	 	By: /s/ Michelle Latzoni
	 	Name: Michelle Latzoni
	 	Title: Authorized Signatory
	 	 


 


 




 


 

	
 
	
WELLS FARGO BANK, NATIONAL

	
 
	
ASSOCIATION,

	
 
	
as a Lender

	 	 
	 	By: /s/ Kent Davis
	 	Name: Kent Davis
	 	Title: Managing Director
	 	 


 


 




 


 

	
 
	
BARCLAYS BANK PLC,

	
 
	
as a Lender

	
 
	
 

	 	By: /s/ May Huang
	 	Name: May Huang
	 	Title: Assistant Vice President
	 	 


 

 


 




 


 

 

	
 
	
DEUTSCHE BANK AG NEW YORK BRANCH,

	
 
	
as a Lender

	
 
	
 

	 	By: /s/ Peter Cucchiara
	 	Name: Peter Cucchiara
	 	Title: Vice President
	 	 
	 	By: /s/ Michael Winters
	 	Name: Michael Winters
	 	Title: Vice President


 


 




 


 

	
 
	
COMMUNITY & SOUTHERN BANK,

	
 
	
as a Lender

	
 
	
 

	 	By: /s/ Brian R. McLean
	 	Name: Brian R. McLean
	 	Title: SVP, Director Corporate Banking