Exhibit 10.32
Execution Version
SIXTH AMENDMENT TO CREDIT AGREEMENT
This SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
made and entered into as of November 14, 2000, is by and between Health Risk
Management, Inc., a Minnesota corporation (the "Borrower"), and U.S. Bank
National Association, a national banking association (the "Bank").
RECITALS
1. The Bank and the Borrower entered into a Credit Agreement
dated as of May 1, 1998 as amended by a First Amendment dated as of January 27,
1999, a Second Amendment dated as of June 30, 1999, a Third Amendment dated as
of December 21, 1999 and a Fourth Amendment dated as of April 10, 2000, and a
Fifth Amendment to Credit Agreement dated July 31, 2000 (as amended, the "Credit
Agreement"); and
2. The Borrower desires to amend certain provisions of the
Credit Agreement, and the Bank has agreed to make such amendments, subject to
the terms and conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
covenant and agree to be bound as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement, unless the context shall otherwise require.
SECTION 2. AMENDMENTS. The Credit Agreement is hereby amended
as follows:
2.1 DEFINITIONS. Section 1.1 of the Credit Agreement is
amended by deleting the term "Applicable Margin" and adding the
following definitions in the appropriate alphabetical order:
"APPLICABLE MARGIN": With respect to
(a) Reference Rate Advances - 2.75%
(b) Eurodollar Advances - 5.75%
"ASSET DISPOSITION" means (a) the sale, lease, conveyance or
other disposition of any assets or rights (including, without
limitation, by way of a sale and leaseback) other than licensing of
software or the sale or other disposition of inventory, each in the
ordinary course of business consistent with past practices and (b) the
issue or sale by the Borrower or any of its Subsidiaries of any Equity
Interests, in the case of either clause (a) or (b), whether in a single
transaction or a series of related transactions.
"PLEDGE AGREEMENT" means that certain Pledge Agreement dated
as of November 14, 2000 given by the Borrower in favor of the Bank
whereunder the Borrower has pledged to the Bank as security for all of
the Borrower's obligations under this Agreement and the Term Note all
of its capital stock in HRM Claim Management, Inc., Institute for
Healthcare Quality, Inc., and Health Benefit Reinsurance, Inc., as the
same may be amended, restated or otherwise modified from time to time.
"SUBSEQUENT FINANCING THRESHOLD": With respect to all Asset
Dispositions consummated by the Borrower or any Subsidiary from and
after the consummation of the Sixth Amendment to this Agreement, the
amount by which the aggregate Net Available Proceeds received by the
Borrower in connection such Asset Dispositions exceeds $8,000,000.
2.2 REVOLVING LOANS. Section 2.1 of the Credit Agreement is amended by
adding the following new Section 2.1(e) at the end thereof:
(e) CANCELLATION OF REVOLVING FACILITY. Notwithstanding
anything to the contrary in this Agreement, effective upon the
consummation of the Sixth Amendment to this Agreement (a) the Revolving
Credit Commitment shall be terminated for all purposes and the Borrower
shall no longer be entitled to request any further Revolving Loans and
(b) all borrowings under the Revolving Note shall be thereafter
evidenced by the Term Note.
2.3 TERM LOANS. Sections 2.2 (a) and (d) of the Credit Agreement are
deleted in their entireties and the following is substituted in lieu thereof:
(a) TERM LOAN. Upon the consummation of the Sixth Amendment
hereto, the Borrower's outstanding revolving loan obligations in the
principal amount of $2,900,000.00 and outstanding term loan obligations
in the principal amount of $3,619,916.00 shall be combined into a
single term loan (the "Term Loan") in the principal amount of
$6,519,916.00. Payments or prepayments upon the Term Loan may not be
reborrowed.
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(d) [Reserved]
2.4 CD RATE ADVANCES. The following new sentence is added at the end of
Section 2.2(f)(i) of the Credit Agreement:
Notwithstanding anything to the contrary in this Agreement, from and
after the consummation of the Sixth Amendment to this Agreement, the
Borrower shall no longer obtain or continue any Advances as, or convert
any Advances into, CD Rate Advances.
2.5 USE OF PROCEEDS. Section 2.5 of the Credit Agreement is deleted in
its entirety and the following is substituted in lieu thereof:
Section 2.5 USE OF LOAN PROCEEDS. The proceeds of the Term
Loan shall be used to refinance the Borrower's existing term loan and
existing revolving loan obligations to the Bank.
2.6 FACILITY FEES. Section 3.2 of the Credit Agreement is deleted in
its entirety and the following is substituted in lieu thereof:
Section 3.2 [Reserved]
2.7 TERM LOAN REPAYMENT. Section 4.1(b) of the Credit Agreement is
deleted in its entirety and the following is substituted in lieu thereof:
(b) TERM LOAN. The Term Note shall be payable as follows (a)
monthly instalments of $225,000, payable on the last day of each month
of each year commencing on November 30, 2000 and continuing to and
including October 31, 2001 and (b) on November 30, 2001 (or such later
date to which the Bank may agree in advance in writing in its sole and
absolute discretion), all other outstanding principal and interest on
the Term Note.
2.8 MANDATORY PREPAYMENTS. Section 4.5 of the Credit Agreement is
deleted in its entirety and the following is substituted in lieu thereof:
Section 4.5 MANDATORY PREPAYMENT. The Borrower shall
immediately notify the Bank upon the receipt by the Borrower or any
Subsidiary of any Net Available Proceeds. With respect to each
transaction which generates Net Available Proceeds received by the
Borrower, the Borrower shall pay to the Bank that portion of the Net
Available Proceeds received by the Borrower which exceeds the
Subsequent Financing Threshold. Such monies shall be remitted to the
Bank as soon as the same shall have
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been received by the Borrower and shall be applied in payment of the
installments of principal upon the Term Loan, in inverse order of their
maturities and, if the Term Loan has been converted to a Quoted Rate
Advance, to the amounts contemplated by Section 2.3.
2.9 PLEDGE OF HRMPA STOCK. Section 7.14 of the Credit Agreement is
deleted in its entirety and the following is substituted in lieu thereof:
Section 7.14. PLEDGE OF HRMPA ASSETS. Upon written request by
the Bank given from time to time, the Borrower shall undertake best
efforts to cooperate with the Bank in seeking the approval or assent of
the Insurance Regulatory Authority to the pledge to the Bank as
security for the Borrower's obligations under this Agreement and the
Term Notes the following assets (collectively, the "HRMPA Assets") as
designated in such request: (a) all of the Borrower's capital stock in
HRMPA and/or (b) the Surplus Note. Within 10 days after written request
by the Bank given from and after such approval, the Borrower shall
execute and deliver to the (a) Bank such documents and instruments in
the form prescribed by the Bank to grant to the Bank security interest
(and to perfect such grant) in the HRMPA Assets which are the subject
of such request and (b) the original HRMPA Assets which are the subject
of such request.
2.10 SALE OF STOCK OF SUBSIDIARIES. Section 8.6 of the Credit Agreement
is amended by deleting the period at the end thereof and substituting in lieu
thereof the following:
, PROVIDED that the Borrower may sell its capital stock in any
Subsidiary or cause any Subsidiary to issue additional shares of its
capital stock to any Person if (a) no Event of Default is continuing or
would result therefrom, (b) following the consummation of any such
transaction, the Borrower shall own not less than 51% of the capital
stock of such Subsidiary entitled to vote in the election of directors
of such Subsidiary, (c) upon the consummation of such transaction, the
Borrower shall have paid to the Bank the amounts, if any, required to
be paid to the Bank in connection with such transaction pursuant to
Section 4.5, and (d) the Borrower complies with Section 10.16 of this
Agreement with respect to such transaction.
2.11 AMENDED FINANCIAL COVENANTS. Sections 8.17, 8.18, 8.19 and 8.20 of
the Credit Agreement are deleted in their entireties and the following is
substituted in lieu thereof:
Section 8.17 CONSOLIDATED NET WORTH. At any time permit its
Consolidated Net Worth to be less than the sum of (a) $18,000,000 PLUS
(b) at any time from and after March 31, 2001, 85% of its cumulative
positive Consolidated Net Income earned during such period.
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SECTION 8.18 CONSOLIDATED NET INCOME. At any time permit its
Consolidated Net Income to be less than (a) negative $4,500,000 (ie, a
net loss of $4,500,000) for the fiscal quarter ending December 31, 2000
and (b) $750,000 for the fiscal quarters ending on March 31, 2001 and
last day or each fiscal quarter thereafter.
Section 8.19 [Reserved]
Section 8.20 FIXED CHARGE COVERAGE RATIO. At any time permit
the Fixed Charge Coverage Ratio to be less than 1.20 to 1.00 for the
four fiscal quarters ended on December 31, 2000 and for each period of
four fiscal quarters ending on the last day of each fiscal quarter
thereafter.
2.12 RELEASE OF PLEDGED STOCK. The following new Section 10.16 of the
Credit Agreement is added immediately following Section 10.15 of the Credit
Agreement:
Section 10.16. CONDITIONAL RELEASE OF PLEDGED STOCK. The
Borrower shall give the Bank not less than 10 Business Day's written
notice prior to consummating any transaction (each, a "Permitted Stock
Transaction") of the type contemplated by the "proviso" clause of
Section 8.6 of this Agreement and involving the sale by the Borrower of
any shares of capital stock of any Subsidiary pledged to the Bank
pursuant to the Pledge Agreement (with respect to any Permitted Stock
Transaction, the "Transferred Pledged Shares"). Prior to consummating
any Permitted Stock Transaction, the Borrower shall take all actions
reasonably deemed appropriate by the Bank to effectuate a release of
any Transferred Pledged Shares and to continue and perfect the Bank's
security interest in the shares of the applicable Subsidiary which are
not to be sold in such Permitted Stock Transaction (the "Remaining
Pledged Shares"), including (a) modifying or providing partial releases
of the applicable financing statements filed by the Bank in connection
with the Pledge Agreement and (b) executing and delivering to the Bank
all documents required, and take all actions necessary to, obtain
division of the Transferred Pledged Shares from the Remaining Pledged
Shares. Subject to the limitations set forth in the preceding sentence,
the Bank shall, at the Borrowers' expense, release stock certificates
and stock powers evidencing the Transferred Pledged Shares and shall
deliver the same as directed by the Borrower. The provisions of this
Section 10.16 shall apply notwithstanding anything to the contrary in
the Pledge Agreement.
2.13 AMENDED AND RESTATED TERM NOTE. Exhibit B to the Credit Agreement
is hereby amended to read as set forth on Exhibit A attached to this Amendment.
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SECTION 3. EFFECTIVENESS OF AMENDMENTS. The amendments
contained in this Amendment shall become effective upon delivery by the Borrower
of, and compliance by the Borrower with, the following:
3.1 This Amendment and the Amended and Restated Term Note in
the form of Exhibit A hereto (the "Restated Note"), each duly executed
by the Borrower.
3.2 An amended and restated collateral assignment of
trademarks covering all of the Borrower's or any Subsidiary's
trademarks registered with the United States Patents and Trademarks
Office, in form and substance satisfactory to the Bank, duly executed
by the Borrower or such Subsidiary in favor of the Bank.
3.3 A reaffirmation of the Security Agreement in the form of
Exhibits B-1 through B-3 attached to this Amendment, duly executed by each of
Health Resource Management, Ltd., HRM Claim Management, Inc., and Institute for
Healthcare Quality, Inc.
3.4 A Security Agreement in form and substance satisfactory to
the Bank, duly executed by Health Benefits Reinsurance, Inc., together with:
(A) such financing statements and other instruments
required by the Bank to perfect the security interests granted
under such Security Agreement,
(B) completed UCC, tax lien and judgment searches for
the such Subsidiary demonstrating that there are no Liens superior to the Liens
of the Bank in the property of the Borrower described in said financing
statements or other instruments.
3.5 Separate Guaranties in form and substance satisfactory to
the Bank, duly executed by HRM Claim Management, Inc., Institute for Healthcare
Quality, Inc. and Health Benefits Reinsurance, Inc.
3.6 A Pledge Agreement in form and substance satisfactory to
the Bank whereunder the Borrower shall pledge to the Bank all of its capital
stock in HRM Claim Management, Inc., Institute for Healthcare Quality, Inc. and
Health Benefits Reinsurance, Inc., duly executed by the Borrower, together with,
(A) such financing statements and other instruments
required by the Bank to perfect the security interests granted
under each Pledge Agreement,
(B) completed UCC, tax lien and judgment searches for
the Borrower demonstrating that there are no Liens superior to
the Liens of the Bank in the property of the Borrower
described in said financing statements or other instruments;
and
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(C) share certificates representing all of the
issued and outstanding shares of each Subsidiary that is
pledged by such Pledge Agreement and undated stock powers
for such certificates, duly executed in blank.
3.7 A copy of the resolutions of the Board of Directors of the Borrower
authorizing the execution, delivery and performance of this Amendment, the Note
and the other documents and instruments to be delivered by the Borrower in
connection with this Amendment (collectively, the "Amendment Documents")
certified as true and accurate by its Secretary or Assistant Secretary, along
with a certification by such Secretary or Assistant Secretary (i) certifying
that there has been no amendment to the Articles of Incorporation or Bylaws of
the Borrower since true and accurate copies of the same were previously
delivered to the Bank, and (ii) identifying each officer of the Borrower
authorized to execute the Amendment Documents, and certifying as to specimens of
such officer's signature and such officer's incumbency in such offices as such
officer holds.
3.8 A copy of the resolutions of the Board of Directors of the each
Subsidiary executing any documents in connection with this Amendment
(collectively, the "Subsidiary Amendment Documents") authorizing the execution,
delivery and performance of the Subsidiary Amendment Documents to which it is a
party certified as true and accurate by its Secretary or Assistant Secretary,
along with a certification by such Secretary or Assistant Secretary (i)
certifying that true and accurate copies of the Articles of Incorporation or
Bylaws (or the equivalent) of such Subsidiary have been attached to such
certificate, and (ii) identifying each officer of such Subsidiary authorized to
execute the Subsidiary Amendment Documents, and certifying as to specimens of
such officer's signature and such officer's incumbency in such offices as such
officer holds.
3.9 Certified copies of all documents evidencing any necessary
corporate action, consent or governmental or regulatory approval (if any) with
respect to this Amendment.
3.10 The Borrower shall have paid to the Bank a non-refundable
amendment and waiver fee in the amount of $10,000.
3.11 The Borrower shall have satisfied such other conditions as
specified by the Bank, including payment of all unpaid legal fees and expenses
incurred by the Bank through the date of this Amendment in connection with the
Credit Agreement, the Amendment Documents and the Subsidiary Amendment
Documents.
SECTION 4. DEFAULTS AND WAIVERS.
4.1 EVENTS OF DEFAULT. The Borrow has advised the Bank that Defaults
and Events or Default have occurred under Section 8.17, 8.18, 8.19 and 8.20 on
the Credit
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Agreement for the period on and prior to September 30, 2000 due to the
Borrower's failure to comply with the financial covenants set forth therein
during such period.
4.2 WAIVER. Upon the date on which this Amendment becomes effective,
the Bank hereby waives the Borrower's Events of Default described in the
preceding Section 4.1 (the "Existing Defaults"). The waiver of the Existing
Defaults set forth above is limited to the express terms thereof, and nothing
herein shall be deemed a waiver by the Bank of any other term, condition,
representation or covenant applicable to the Borrower under the Credit Agreement
(including but not limited to any future occurrence similar to the Existing
Defaults) or any of the other agreements, documents or instruments executed and
delivered in connection therewith, or of the covenants described therein. The
waivers set forth herein shall not constitute a waiver by the Bank of any other
Event of Default, if any, under the Credit Agreement, and shall not be, and
shall not be deemed to be, a course of action with respect thereto upon which
the Borrower may rely in the future, and the Borrower hereby expressly waives
any claim to such effect.
SECTION 5. REPRESENTATIONS, WARRANTIES, AUTHORITY, NO ADVERSE CLAIM.
5.1 REASSERTION OF REPRESENTATIONS AND WARRANTIES, NO DEFAULT. The
Borrower hereby represents that on and as of the date hereof and after giving
effect to this Amendment (a) all of the representations and warranties contained
in the Credit Agreement are true, correct and complete in all respects as of the
date hereof as though made on and as of such date, except for changes permitted
by the terms of the Credit Agreement, and (b) there will exist no Default or
Event of Default under the Credit Agreement as amended by this Amendment on such
date which has not been waived by the Bank.
5.2 AUTHORITY, NO CONFLICT, NO CONSENT REQUIRED. The Borrower
represents and warrants that the Borrower has the power and legal right and
authority to enter into the Amendment Documents and has duly authorized as
appropriate the execution and delivery of the Amendment Documents and other
agreements and documents executed and delivered by the Borrower in connection
herewith or therewith by proper corporate, and none of the Amendment Documents
nor the agreements contained herein or therein contravenes or constitutes a
default under any agreement, instrument or indenture to which the Borrower is a
party or a signatory or a provision of the Borrower's Articles of Incorporation,
Bylaws or any other agreement or requirement of law, or result in the imposition
of any Lien on any of its property under any agreement binding on or applicable
to the Borrower or any of its property except, if any, in favor of the Bank. The
Borrower represents and warrants that no consent, approval or authorization of
or registration or declaration with any Person, including but not limited to any
governmental authority, is required in connection with the execution and
delivery by the Borrower of the Amendment Documents or other agreements and
documents executed and delivered by the Borrower in connection therewith or the
performance of obligations of the
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Borrower therein described, except for those which the Borrower has
obtained or provided and as to which the Borrower has delivered
certified copies of documents evidencing each such action to the Bank.
5.3 NO ADVERSE CLAIM. The Borrower warrants, acknowledges and
agrees that no events have been taken place and no circumstances exist
at the date hereof which would give the Borrower a basis to assert a
defense, offset or counterclaim to any claim of the Bank with respect
to the Borrower's obligations under the Credit Agreement as amended by
this Amendment.
SECTION 6. AFFIRMATION OF CREDIT AGREEMENT, FURTHER
REFERENCES. The Bank and the Borrower each acknowledge and affirm that the
Credit Agreement, as hereby amended, is hereby ratified and confirmed in all
respects and all terms, conditions and provisions of the Credit Agreement,
except as amended by this Amendment, shall remain unmodified and in full force
and effect. All references in any document or instrument to the Credit Agreement
are hereby amended and shall refer to the Credit Agreement as amended by this
Amendment. The Borrower confirms to the Bank that the Borrower's obligations
under the Credit Agreement, as amended by this Amendment are and continue to be
secured by the security interest granted by the Borrower in favor of the Bank
under the Security Agreement, and all of the terms, conditions, provisions,
agreements, requirements, promises, obligations, duties, covenants and
representations of the Borrower under such documents and any and all other
documents and agreements entered into with respect to the obligations under the
Credit Agreement are incorporated herein by reference and are hereby ratified
and affirmed in all respects by the Borrower.
SECTION 7. MERGER AND INTEGRATION, SUPERSEDING EFFECT. This
Amendment, from and after the date hereof, embodies the entire agreement and
understanding between the parties hereto and supersedes and has merged into this
Amendment all prior oral and written agreements on the same subjects by and
between the parties hereto with the effect that this Amendment, shall control
with respect to the specific subjects hereof and thereof.
SECTION 8. SEVERABILITY. Whenever possible, each provision of
this Amendment and the other Amendment Documents and any other statement,
instrument or transaction contemplated hereby or thereby or relating hereto or
thereto shall be interpreted in such manner as to be effective, valid and
enforceable under the applicable law of any jurisdiction, but, if any provision
of this Amendment, the other Amendment Documents or any other statement,
instrument or transaction contemplated hereby or thereby or relating hereto or
thereto shall be held to be prohibited, invalid or unenforceable under the
applicable law, such provision shall be ineffective in such jurisdiction only to
the extent of such prohibition, invalidity or unenforceability, without
invalidating or rendering unenforceable the remainder of such provision or the
remaining provisions of this Amendment, the other Amendment Documents or any
other statement, instrument or transaction contemplated hereby or
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thereby or relating hereto or thereto in such jurisdiction, or affecting the
effectiveness, validity or enforceability of such provision in any other
jurisdiction.
SECTION 9. SUCCESSORS. The Amendment Documents shall be
binding upon the Borrower and the Bank and their respective successors and
assigns, and shall inure to the benefit of the Borrower and the Bank and the
successors and assigns of the Bank.
SECTION 10. LEGAL EXPENSES. As provided in Section 10.2 of the
Credit Agreement, the Borrower agrees to reimburse the Bank, upon execution of
this Amendment, for all reasonable out-of-pocket expenses (including attorneys'
fees and legal expenses of Xxxxxx & Xxxxxxx LLP, counsel for the Bank) incurred
in connection with the Credit Agreement, including in connection with the
negotiation, preparation and execution of the Amendment Documents and all other
documents negotiated, prepared and executed in connection with the Amendment
Documents, and in enforcing the obligations of the Borrower under the Amendment
Documents, and to pay and save the Bank harmless from all liability for, any
stamp or other taxes which may be payable with respect to the execution or
delivery of the Amendment Documents, which obligations of the Borrower shall
survive any termination of the Credit Agreement.
SECTION 11. HEADINGS. The headings of various sections of this
Amendment have been inserted for reference only and shall not be deemed to be a
part of this Amendment.
SECTION 12. COUNTERPARTS. The Amendment Documents may be
executed in several counterparts as deemed necessary or convenient, each of
which, when so executed, shall be deemed an original, provided that all such
counterparts shall be regarded as one and the same document, and either party to
the Amendment Documents may execute any such agreement by executing a
counterpart of such agreement.
SECTION 13. GOVERNING LAW. THE AMENDMENT DOCUMENTS SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT
TO CONFLICT OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date and year first above written.
BORROWER: HEALTH RISK MANAGEMENT, INC.
By: /s/ Xxxxxx X. XxXxxxx
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Title: Chief Financial Officer
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BANK: U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President
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