THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
August 12, 2004, is made and entered into on the terms and conditions
hereinafter set forth, by and among I-TRAX, INC., a Delaware corporation (the
"Borrower"), the Subsidiaries of the Borrower who are parties to the Credit
Agreement (as hereinafter defined) as guarantors (the "Guarantors"), the several
lenders who are parties to the Credit Agreement as lenders (the "Lenders"), and
BANK OF AMERICA, N.A., a national banking association ("Bank of America"), as
administrative agent for the Lenders and the Issuing Bank (in such capacity, the
"Administrative Agent") and as Issuing Bank.
RECITALS:
1. Pursuant to a Credit Agreement dated as of March 19, 2004, among the
Borrower, the Guarantors, the Lenders and Bank of America, as Administrative
Agent and as Issuing Bank, as heretofore amended by a First Amendment to Credit
Agreement dated as of June 1, 2004 and by a Second Amendment to Credit Agreement
dated as of July 1, 2004, among the Borrower, the Guarantors, the Lenders and
Bank of America, as Administrative Agent and as Issuing Bank (as the same
heretofore has been or hereafter may be further amended, restated, supplemented,
extended, renewed, replaced or otherwise modified from time to time, the "Credit
Agreement"), the Lenders agreed to make Loans to the Borrower and to purchase
participations in Letters of Credit issued for the account of the Borrower, and
the Issuing Bank agreed to issue such Letters of Credit, all as more
specifically described in the Credit Agreement.
2. The parties hereto desire to amend the Credit Agreement in certain
respects, as more particularly hereinafter set forth.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of all of which are hereby acknowledged, the parties
hereto agree as follows:
1. Amendment of Section 1.1. Section 1.1 of the Credit Agreement is
hereby amended by inserting the following new definitions in the appropriate
locations according to alphabetical order, or by amending and restating existing
definitions to read as indicated, as applicable:
"Fixed Charge Coverage Ratio" shall mean, for the Borrower and
its Subsidiaries on a consolidated basis, calculated as of any date of
determination for the period hereinafter specified, the ratio of (a)
EBITDAR, less the Maintenance Capital Expenditure Adjustment, less
income, value-added and similar tax expenses paid in cash, to (b) the
sum of the portion of Interest Expense that was paid in cash or its
equivalent
during such period, plus current maturities of term Indebtedness, plus
Rent Expense. For each determination date specified below, the Fixed
Charge Coverage Ratio shall be determined for the indicated period:
Determination Date Applicable Period
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June 30, 2004 Last Two Fiscal Quarters
September 30, 2004 Last Three Fiscal Quarters
December 31, 2004 and thereafter Last Four Fiscal Quarters
"Funded Indebtedness to EBITDA Ratio" shall mean, for the
Borrower and its Subsidiaries on a consolidated basis, calculated as of
any date of determination for the period hereinafter specified, the
ratio of Consolidated Funded Indebtedness to EBITDA. For purposes of
calculating the Funded Indebtedness to EBITDA Ratio for any
determination date through and including December 31, 2004, EBITDA
shall be calculated for the Fiscal Year to date and annualized;
thereafter, EBITDA shall be calculated for the Last Four Fiscal
Quarters.
2. Amendment of Section 2.3.1. Section 2.3.1 of the Credit Agreement is
hereby amended by adding the following sentence at the end of such Section:
Notwithstanding the foregoing, or any other provision of this Agreement
that may be to the contrary, (i) the maximum aggregate principal amount
of Revolving Loans outstanding at any time prior to September 1, 2004
shall not exceed $2,000,000, (ii) the maximum aggregate principal
amount of Revolving Loans outstanding at any time prior to November 1,
2004 shall not exceed $2,500,000, and (iii) the maximum aggregate
principal amount of Revolving Loans outstanding on November 1, 2004 and
at any time thereafter shall not exceed $2,500,000 unless (A) as of
September 30, 2004, EBITDA for the Last Three Fiscal Quarters was equal
to or greater than $2,623,000, and (B) the Administrative Agent and the
Lenders have received (1) the financial information required by Section
8.1.2 for the Fiscal Quarter of the Borrower and its Subsidiaries
ending on September 30, 2004, (2) the financial information required by
Section 8.1.4 for September, 2004, and (3) a certificate of a
Responsible Officer of the Borrower evidencing compliance with Section
10.1.5 as of October 31, 2004.
3. Amendment of Section 3.1.2. Paragraph (c)(2) of Section 3.1.2 of the
Credit Agreement is hereby amended by adding the following sentence at the end
thereof:
Notwithstanding the foregoing, if and to the extent that the Borrower
issues or sells any Capital Stock on or prior to October 31, 2004
(other than pursuant to a transaction described in clause (4) of the
definition of "Excluded Prepayment Transaction"), such transaction in
no event shall constitute an Excluded Prepayment Transaction; however,
to the extent that the Net Cash Proceeds therefrom exceed the amount
necessary to prepay the Term Loans in full, the excess shall not reduce
the Revolving Credit Commitments as required by Section 2.1.3 and this
Subsection 3.1.2(c)(3).
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4. Amendment of Section 8.1.4. Section 8.1.4 of the Credit Agreement is
hereby amended by adding the following sentence at the end thereof:
The monthly financial information for October, 2004 furnished pursuant
to this Section shall include a certificate of a Responsible Officer of
the Borrower evidencing compliance with Section 10.1.5 as of October
31, 2004.
5. Amendment of Section 8.21. Section 8.21 of the Credit Agreement is
hereby amended by deleting the name "Xxxxxxx X. Xxxxxxxxxx" and substituting in
lieu thereof the name "Xxxxx X. Xxxx".
6. Amendment of Section 10.1.1. Section 10.1.1 of the Credit Agreement
is hereby amended to read as follows:
10.1.1. Funded Indebtedness to EBITDA Ratio. Permit the Funded
Indebtedness to EBITDA Ratio (a) as of the end of any Fiscal Quarter
ending prior to December 31, 2004 to be greater than 3.25 to 1.00, (b)
as of the end of any Fiscal Quarter ending on or after December 31,
2004 but prior to June 30, 2005 to be greater than 2.00 to 1.00, and
(c) as of the end of any Fiscal Quarter ending on or after June 30,
2005 to be greater than 1.75 to 1.00.
7. Amendment of Section 10.1.3. Section 10.1.3 of the Credit Agreement
is hereby amended to read as follows:
10.1.3. Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio (a) as of the end of any Fiscal Quarter ending prior to
December 31, 2004 to be less than 1.10 to 1.00, (b) as of the end of
any Fiscal Quarter ending on or after December 31, 2004 but prior to
June 30, 2005 to be less than 1.25 to 1.00, and (c) as of the end of
any Fiscal Quarter ending on or after June 30, 2005 to be less than
1.50 to 1.00.
8. Addition of New Sections 10.1.4 and 10.1.5. The Credit Agreement is
hereby amended by adding the following new Sections 10.1.4 and 10.1.5 thereto:
10.1.4 Minimum EBITDA. As of December 31, 2004, permit EBITDA
for the Last Four Fiscal Quarters to be less than $3,560,000.
10.1.5 Minimum Shareholders' Equity. As of October 31, 2004
and thereafter, permit Consolidated Net Worth to be less than
$82,878,000.
9. Fees. In consideration of the agreements of the Lenders set forth
herein, the Borrower agrees to pay to the Administrative Agent, for distribution
to the Lenders pro rata in accordance with their respective Percentages, a fee
in an amount equal to three tenths of one percent (0.3%) of the aggregate amount
of the Commitments.
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10. Conditions to Effectiveness. This Amendment shall be effective only
upon the satisfaction of the following conditions:
(a) the Borrower, each of the Guarantors, the Administrative
Agent, the Issuing Bank and Requisite Lenders shall have executed and
delivered a counterpart of this Amendment;
(b) each of the representations and warranties of the Borrower
contained in Section 11 shall be true and correct in all material
respects as of the date as of which all of the other conditions
contained in this Section 10 shall have been satisfied;
(c) the Borrower shall have paid the fees required by Section
9 hereof; and
(d) the Administrative Agent shall have received such
documents, instruments, certificates, opinions and approvals as it
reasonably may have requested.
11. Representations and Warranties of the Borrower and the Guarantors.
As an inducement to the Lenders, the Issuing Bank and the Administrative Agent
to enter into this Amendment, the Borrower and the Guarantors hereby represent
and warrant that, on and as of the date hereof, the representations and
warranties contained in the Credit Agreement and the other Loan Documents are
true and correct in all material respects, except for (a) representations and
warranties that expressly relate to an earlier date, which remain true and
correct as of said earlier date, and (b) representations and warranties that
have become untrue or incorrect solely because of changes permitted by the terms
of the Credit Agreement and the other Loan Documents.
12. Effect of Amendment; Continuing Effectiveness of Credit Agreement
and Loan Documents.
(a) Neither this Amendment nor any other indulgences that may
have been granted to the Borrower or any Guarantor by the
Administrative Agent, the Issuing Bank or any Lender shall constitute a
course of dealing or otherwise obligate the Administrative Agent, the
Issuing Bank or any Lender to modify, expand or extend the agreements
contained herein, to agree to any other amendments to the Credit
Agreement or to grant any consent to, waiver of or indulgence with
respect to any other noncompliance with any provision of the Loan
Documents.
(b) Upon and after the effectiveness of this Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Credit Agreement, and
each reference in the other Loan Documents to "the Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as
modified hereby. This Amendment shall constitute a Loan Document for
all purposes of the Credit Agreement and the other Loan Documents.
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(c) Any noncompliance by the Borrower or any Guarantor with
any of the covenants, terms, conditions or provisions of this Amendment
shall constitute an Event of Default.
(d) Except to the extent amended or modified hereby, the
Credit Agreement, the other Loan Documents and all terms, conditions
and provisions thereof shall continue in full force and effect in all
respects and shall be construed in accordance with the modifications of
the Credit Agreement effected hereby. Without limiting the generality
of the foregoing, the Security Documents and all of the Collateral
described therein secure and shall continue to secure the payment of
all Obligations, in each case taking into account the modifications of
the Credit Agreement effected hereby.
13. Release and Waiver. The Borrower and the Guarantors hereby
stipulate, acknowledge and agree that they have no claims or causes of action of
any kind whatsoever against any of the Lenders, the Issuing Bank or the
Administrative Agent arising out of or relating in any way to any event,
circumstance, action or failure to act with respect to this Amendment, the
Credit Agreement, the other Loan Documents or any matters described or referred
to herein or therein or otherwise related hereto or thereto. The Borrower and
the Guarantors hereby release all of the Lenders, the Issuing Bank and the
Administrative Agent from any and all claims, causes of action, demands and
liabilities of any kind whatsoever, whether direct or indirect, fixed or
contingent, liquidated or unliquidated, disputed or undisputed, known or
unknown, that the Borrower or any Guarantor may now or hereafter have and that
arise out of or relate in any way to any event, circumstance, action or failure
to act on or before the date of this Amendment with respect to this Amendment,
the Credit Agreement, the other Loan Documents or any matters described or
referred to herein or therein or otherwise related hereto or thereto. The
release by the Borrower and the Guarantors herein, together with the other terms
and provisions of this Amendment, are entered into by the Borrower and the
Guarantors advisedly and without compulsion, coercion or duress, the Borrower
and the Guarantors having determined that this Amendment and all of its terms,
conditions and provisions are in the economic best interests of the Borrower and
the Guarantors. The Borrower and the Guarantors represent that they are entering
into this Amendment freely and with the advice of counsel as to their legal
alternatives.
14. Further Actions. Each of the parties to this Amendment agrees that
at any time and from time to time upon written request of any other party, it
will execute and deliver such further documents and do such further acts and
things as such other party reasonably may request in order to effect the intents
and purposes of this Amendment.
15. Counterparts. This Amendment may be executed in multiple
counterparts or copies, each of which shall be deemed an original hereof for all
purposes. One or more counterparts or copies of this Amendment may be executed
by one or more of the parties hereto, and some different counterparts or copies
executed by one or more of the other parties. Each counterpart or copy hereof
executed by any party hereto shall be binding upon the party executing same even
though other parties may execute one or more different counterparts or copies,
and all counterparts or copies hereof so executed shall constitute but one and
the same agreement. Each party hereto, by execution of one or more counterparts
or copies hereof,
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expressly authorizes and directs any other party hereto to detach the signature
pages and any corresponding acknowledgment, attestation, witness or similar
pages relating thereto from any such counterpart or copy hereof executed by the
authorizing party and affix same to one or more other identical counterparts or
copies hereof so that upon execution of multiple counterparts or copies hereof
by all parties hereto, there shall be one or more counterparts or copies hereof
to which is(are) attached signature pages containing signatures of all parties
hereto and any corresponding acknowledgment, attestation, witness or similar
pages relating thereto.
16. Miscellaneous.
(a) This Amendment shall be governed by, construed and
enforced in accordance with the laws of the State of Tennessee, without
reference to the conflicts or choice of law principles thereof.
(b) The headings in this Amendment and the usage herein of
defined terms are for convenience of reference only, and shall not be
construed as amplifying, limiting or otherwise affecting the
substantive provisions hereof.
(c) All references herein to the preamble, the recitals or
sections, paragraphs, subparagraphs, annexes or exhibits are to the
preamble, recitals, sections, paragraphs, subparagraphs, annexes and
exhibits of or to this Amendment unless otherwise specified. The words
"hereof", "herein" and "hereunder" and words of similar import, when
used in this Amendment, refer to this Amendment as a whole and not to
any particular provision of this Amendment.
(d) Any reference herein to any instrument, document or
agreement, by whatever terminology used, shall be deemed to include any
and all amendments, modifications, supplements, extensions, renewals,
substitutions and/or replacements thereof as the context may require.
(e) When used herein, (1) the singular shall include the
plural, and vice versa, and the use of the masculine, feminine or
neuter gender shall include all other genders, as appropriate, (2)
"include", "includes" and "including" shall be deemed to be followed by
"without limitation" regardless of whether such words or words of like
import in fact follow same, and (3) unless the context clearly
indicates otherwise, the disjunctive "or" shall include the conjunctive
"and".
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the date first written above.
[Remainder of Page Intentionally Left Blank;
Signature Pages Follow]
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[Signature Page to Third Amendment to Credit Agreement
(I-trax, Inc.) dated August 12, 2004]
BORROWER:
I-TRAX, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
------------------------------------
Title: Senior Vice President and
Chief Financial Officer
------------------------------------
GUARANTORS:
I-TRAX HEALTH MANAGEMENT SOLUTIONS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------
Title: Chief Executive Officer
------------------------------------
I-TRAX HEALTH MANAGEMENT SOLUTIONS, LLC,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------
Title: Chief Executive Officer
------------------------------------
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CHD MERIDIAN HEALTHCARE, LLC,
a Delaware limited liability company
BY: I-TRAX, INC., its sole member
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
------------------------------------
Title: Senior Vice President and
Chief Financial Officer
------------------------------------
AMERICAN OCCUPATIONAL HEALTH MANAGEMENT, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
------------------------------------
Title: Senior Vice President and
Chief Financial Officer
------------------------------------
MEDICENTER, INC.,
an Oklahoma corporation
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
------------------------------------
Title: Senior Vice President and
Chief Financial Officer
------------------------------------
MERIDIAN COMP OF NEW YORK, INC.,
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
------------------------------------
Title: Senior Vice President and
Chief Financial Officer
------------------------------------
CORPORATE HEALTH DIMENSIONS, INC.
a New York corporation
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
------------------------------------
Title: Senior Vice President and
Chief Financial Officer
------------------------------------
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CHDM, INC.
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
------------------------------------
Title: Senior Vice President and
Chief Financial Officer
------------------------------------
CHDM, LLC
an Indiana limited liability company
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
------------------------------------
Title: Senior Vice President and
Chief Financial Officer
------------------------------------
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[Signature Page to Third Amendment to Credit Agreement
(I-trax, Inc.) dated August 12, 2004]
ADMINISTRATIVE AGENT, LENDER AND ISSUING BANK:
BANK OF AMERICA, N.A.
By: /s/ H. Xxxx Xxxxxx
--------------------------------------------
Name: H. Xxxx Xxxxxx
------------------------------------
Title: Vice President
------------------------------------
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