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EXHIBIT 10.1
THIRD AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Third Amendment" or "Agreement") is entered into as of October 4, 2000 (the
"Third amendment Effective Date"), by and between Xxxxxxxx.xxx, Inc. (f/k/a
Medirisk, Inc.), a Delaware corporation (the "Borrower"), and Bank of America,
N.A. (f/k/a NationsBank, N.A.) (the "Lender"). Unless the context otherwise
requires, all terms used herein without definition shall have the definitions
provided therefor in the Credit Agreement (as hereinafter defined).
RECITALS
WHEREAS, the Borrower and the Lender are parties to that certain
Amended and Restated Credit Agreement dated as of June 29, 1998, as amended by
that certain First Amendment to Amended and Restated Credit Agreement dated as
of May 12, 2000 (the "First Amendment") and by that certain Second Amendment to
Amended and Restated Credit Agreement dated as of August 11, 2000 (the "Second
Amendment") (as the same may be further amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"); and
WHEREAS, the Credit Agreement provides that from and after the
Effective Date of the Second Amendment, the Borrower shall have no right to
receive any Advances or Revolving Loans; and
WHEREAS, the Borrower has requested the Lender, and the Lender has
agreed, subject to the terms and conditions contained herein, to provide an
additional working capital revolving credit facility in the maximum principal
amount of $1,800,000 to be applied by the Borrower to various working capital
and operating needs prior to the Maturity Date.
STATEMENT OF AGREEMENT
NOW THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Definitions. All capitalized terms not defined herein shall
have the meanings ascribed thereto in the Credit Agreement (as amended by this
Third Amendment) and in the Loan Documents (as defined in the Credit Agreement)
except as otherwise defined or limited herein.
2. Amendment to Credit Agreement. With the consent of all the
signatories hereto, including without limitation each party to any of the
Security Documents, and subject to the satisfaction of all terms and conditions
of this Third Amendment, the Borrower and the Lender agree that, in compliance
with the terms of Section 8.12 of the Credit Agreement, the Credit Agreement is
hereby amended as follows:
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(a) Section 1.1 of the Credit Agreement, Extensions of
Credit, is hereby modified and amended by deleting such section in its
entirety and by substituting the following in lieu thereof:
Section 1.1 Extensions of Credit.
(a) Working Capital Loans. Subject to
the terms and conditions of, and in reliance
upon the representations and warranties made
in, this Agreement and the other Loan
Documents, upon the Third Amendment
Effective Date the Lender agrees that it
shall lend and relend to the Borrower, prior
to the Maturity Date, amounts which in the
aggregate at any one time outstanding do not
exceed the Working Capital Commitment.
Subject to the terms and conditions hereof
and prior to the Maturity Date, Advances
under the Working Capital Commitment may be
repaid and reborrowed from time to time on a
revolving basis. The Working Capital Loans
shall bear interest as provided in Section
1.3 hereof, shall be evidenced by the
Working Capital Note, and shall be payable
in full, together with all accrued and
unpaid interest thereon, on the Maturity
Date. For all purposes of each of the Loan
Documents, the Working Capital Note shall
constitute a Loan Document, the obligations
evidenced by the Working Capital Note or
otherwise arising under this Section 1.1(a)
shall constitute additional Obligations, and
all such Obligations shall be secured or
guaranteed, as applicable, by the Security
Documents and shall be entitled to the
benefits thereof. For purposes of this
Agreement, unless otherwise specifically
indicated or otherwise required by context,
any Working Capital Loan shall be deemed to
be a Revolving Loan, and the term "Revolving
Loans" shall be intended to include the
Working Capital Loans.
(b) Other Revolving Loans. The Borrower
acknowledges that as of the Third Amendment
Effective Date, $27,306,000 is outstanding
under the Revolving Loans. If at any time,
the Revolving Loans exceed any applicable
limitation set forth in this Agreement, such
Revolving Loans (including any Overadvance)
shall nevertheless constitute Obligations
that are secured by, and the repayment of
which is guarantied by, as applicable, the
Security Documents and are entitled to all
benefits thereof. In no event, however,
shall the Borrower have the right to receive
any Advances or Revolving Loans from and
after the Third Amendment Effective Date,
with the exception of Working Capital Loans
made in accordance with Section 1.1(a).
Notwithstanding anything contained in this
Agreement to the contrary, all Revolving
Loans or other Advances (other than amounts
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outstanding under the Completion Fee Note)
in an aggregate principal amount in excess
of the Revolving Loan Limit, shall be
payable ON DEMAND.
(c) Base Rate Advances. As of and at
all times after the Effective Date of the
Second Amendment, all Advances shall be Base
Rate Advances, and any Advances not
theretofore converted to Base Rate Advances
shall be deemed prepaid on such Effective
Date and converted to Base Rate Advances,
and the Borrower shall pay to the Lender
such amounts to which the Lender may be
entitled under Section 1.8 in connection
with such prepayment. From and after such
Effective Date, all Revolving Loans,
Advances and any Overadvances shall
constitute Base Rate Advances.
(b) A new Section 1.2 is hereby added to the Credit
Agreement, which shall read in its entirety as follows:
Section 1.2 Working Capital Loan Borrowing Mechanics.
(a) Interest Rate. Any Advance under
the Working Capital Note shall be made as a Base Rate
Advance.
(b) Advances.
(i) Initial and Subsequent Advances.
The Company shall give the Lender
irrevocable prior notice by telecopy
reflecting written approval by the
Restructuring Consultant not later than
11:00 a.m. (Charlotte, North Carolina time)
on the Business Day of the date of a
proposed Advance, and shall confirm any
notice by telecopy with a written Request
for Advance.
(ii) Repayments and Reborrowings.
Subject to the Company's compliance with the
conditions precedent to any Advance under
Section 2.2(b), the Company may repay or
prepay an Advance and (a) at any time
reborrow all or a portion of the principal
amount thereof as one or more Advances, or
(b) not reborrow all or any portion of such
Advance. Upon the date indicated by the
Company, such Advance shall be so repaid
and, as applicable, reborrowed.
(c) Telecopy Notice. The failure by the
Company to confirm any notice by telecopy with a
Request for Advance shall not invalidate any notice
so given. The Lender may rely upon telecopy
instructions reasonably believed given by any
Authorized Signatory of the Company and shall have no
obligation to inquire into the propriety of any such
instructions.
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(d) Disbursement. Prior to 3:00 p.m.
(Charlotte, North Carolina time) on the date of an
Advance hereunder, the Lender shall, subject to the
satisfaction of the conditions set forth in Section
2.2 hereof, disburse the Advance by depositing such
amount in same day funds into the Company's account
maintained with the Lender or by wire transfer
pursuant to the Company's instructions.
(c) Section 1.4 of the Credit Agreement, Fees, is hereby
modified and amended by deleting such section in its entirety and by
substituting the following in lieu thereof:
Section 1.4 Fees.
(a) Commitment Fee. The Borrower shall
pay to the Lender (i) a commitment fee of $271,900
(the "Commitment Fee") which Commitment Fee is due
and owing and fully earned as of the Effective Date
of the Second Amendment and payable at the Maturity
Date or on demand upon an Event of Default under the
Credit Agreement, and (ii) a commitment fee of
$18,000.00 (the "Working Capital Commitment Fee")
which Working Capital Commitment Fee is due and
owing, fully earned and payable at the Third
Amendment Effective Date. The Commitment Fee and the
Working Capital Commitment Fee shall constitute
Obligations for all purposes under the Credit
Agreement and shall be non-refundable when paid.
(b) Usage Fee. The Borrower shall pay
to the Lender, on or before the fifth (5th) day of
each month, a usage fee equal to 1/4 of 1% on a per
annum basis of the outstanding principal balance of
the Revolving Loans, including Overadvances, on the
last Business Day of the preceding month (the "Usage
Fee"). The Usage Fee shall constitute an Obligation
for all purposes under the Credit Agreement and shall
be fully earned when due and non-refundable when
paid. The Usage Fee shall be computed on the basis of
a year of 360 days and calculated for actual days
elapsed.
(d) Amendment to Section 1.6. Section 1.6 of the Credit
Agreement, Notes and Loan Accounts, is hereby modified and amended by
deleting the section in its entirety and by substituting the following
in lieu thereof:
Section 1.6. Notes and Loan Accounts.
(a) The Revolving Loans shall be
payable in accordance with the terms and provisions
of this Agreement and shall be evidenced by the
Revolving Note, except for the Working Capital Loans
which shall be evidenced by the Working Capital Note.
The Completion Fee Loan shall be payable in
accordance with the provisions of this Agreement and
shall be evidenced by the Completion Fee Note. The
Revolving Note, Working
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Capital Note and Completion Fee Note shall be issued
by the Company to the Lender and shall be duly
executed and delivered by the Authorized Signatories.
(b) The Lender shall open and maintain
on its books in the name of the Company loan accounts
with respect to the Revolving Loans and Completion
Fee Loan and interest thereon, provided that a
separate loan account shall be opened and maintained
with respect to Working Capital Loans. The Lender
shall debit each such loan account for the principal
amount outstanding and accrued interest thereon, and
shall credit each such loan account for each payment
on account of principal of or interest on the
Revolving Loans and Completion Fee Loan. The records
of the Lender with respect to the loan accounts shall
be prima facie evidence of the Revolving Loans,
Working Capital Loans and Completion Fee Loan and
accrued interest thereon but the failure to maintain
such records shall not impair the obligation of the
Company to repay Indebtedness hereunder.
(e) Amendment to Section 2.2. Section 2.2 of the Credit
Agreement, Advances, is hereby modified and amended by deleting the
section in its entirety and by substituting the following in lieu
thereof:
Section 2.2 Advances.
(a) No Advances shall be permitted from
and after the Third Amendment Effective Date other
than Advances under the Working Capital Note. The
Lender may, in its sole and absolute discretion,
elect to make additional Advances upon the request of
the Borrower.
(b) The obligation of the Lender to
make Advances under the Working Capital Note is
subject to the satisfaction of each of the following
conditions immediately prior to or contemporaneously
with such Advance:
(i) the Company shall have delivered
a duly executed Request for Advance to the
Lender and the Restructuring Consultant,
which Request for Advance must be approved
in writing by the Restructuring Consultant;
(ii) the Company shall be in
compliance, to the satisfaction of the Bank,
with the requirements of Section 5.4 hereof,
and the Restructuring Consultant shall have
approved the reports or information
delivered by the Company pursuant to such
Section;
(iii) the Company shall have
complied with the recommendations of the
Restructuring Consultant regarding the
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resignation or termination of certain full
time employees, in accordance with the
projected "summary of salaried labor"
schedule prepared by the Restructuring
Consultant and presented to the Lender on
September 11, 2000;
(iv) there shall not exist, as of
the date of the making of the Advance and
after giving effect thereto, a Default or an
Event of Default hereunder, and the Request
for Advance shall so state;
(v) all of the representations and
warranties of the Company under this
Agreement, which, pursuant to Section 3.2
hereof (as the same shall have been amended
by a report delivered to the Lender pursuant
to Section 5.5(e) hereof, which report shall
not contain any information of a materially
adverse nature with respect to the Company
or any of its Subsidiaries) are made at and
as of the time of such Advance, shall be
true and correct at such time, both before
and after giving effect to the Advance, and
the Lender shall have received a certificate
to that effect from an Authorized Signatory
of the Company;
(vi) the incumbency of the
Authorized Signatories shall be as stated in
the Request for Advance delivered pursuant
to Section 1.2 or as subsequently modified
and reflected in a more recent Request for
Advance;
(vii) the Lender shall have received
all other reports, certificates, statements
or opinions in connection with the Advance
as the Lender may reasonably request.
(f) Amendment to Article 5. The preamble to Article 5
under Information Covenants is hereby modified and amended by deleting
the section in its entirety and by substituting the following in lieu
thereof:
So long as any of the Obligations is outstanding and
unpaid or the Lender has any obligation to make Advances
hereunder, and unless the Lender shall otherwise consent in
writing, the Company shall furnish or cause to be furnished to
the Lender:
(g) Amendment to Section 5.4. Section 5.4 of the Credit
Agreement, Copies of Other Reports, is hereby modified and amended by
deleting the existing subsection (7) and by substituting the following
in lieu thereof and by deleting the existing subsection (8) and
redesignating subsection (9) as subsection (8):
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(7) On:
(a) each Tuesday, beginning September
26, 2000 and continuing each Tuesday thereafter, a
report (the "Projections Report") setting forth for
both the Company and its Subsidiaries (on a
consolidated basis), and each of its business lines,
projected cash receipts and cash disbursements for
both (i) each of the immediately succeeding thirteen
(13) weeks beginning from the Friday preceding the
Projections Report and (ii) the
immediately-succeeding thirteen-week period as a
whole;
(b) each Tuesday, beginning September
26, 2000 and continuing each Tuesday thereafter, a
report for the week ending on the prior Friday,
setting forth for both the Company and its
Subsidiaries (on a consolidated basis), and each of
its business lines, actual cash receipts and cash
disbursements for the prior week and for the
cumulative period from August 21, 2000, to said prior
Friday, showing variances from the Projections Report
for the prior week and the cumulative period from
August 21, 2000 to said prior Friday;
(c) each Tuesday, beginning September
26, and continuing each Thursday thereafter, a report
setting forth for the Company and its Subsidiaries
(on a consolidated basis), actual cash receipts and
cash disbursements for the thirteen-week period
ending on the prior Friday; and
(d) a weekly basis, any other
calculations, reports or information relating to the
Company's financial performance requested by the
Lender.
(h) Amendment to Section 6.6. Section 6.6 of the Credit
Agreement, Liquidation, Disposition or Acquisition of Assets, is hereby
modified and amended by deleting the existing subsection (b) and
substituting the following in lieu thereof:
(b) acquire the assets, property, stock or
business of any other Person, or make Capital Expenditures,
whether in the ordinary course of business or otherwise, from
the Third Amendment Effective Date through the Maturity Date.
(i) Amendment to Section 6.14. Section 6.14 of the Credit
Agreement, Cash Receipts and Disbursements, is hereby modified and
amended by deleting the existing Section 6.14 and by substituting the
following in lieu thereof:
Section 6.14 Cash Disbursements.
(a) The Company agrees that it shall not make
any cash disbursements in respect of accounts payable or other
Indebtedness of the Company without the approval of the
Restructuring Consultant, which approval shall be in writing
and provided to the Bank prior to any such disbursement.
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(b) The Company shall not permit cash
disbursements (exclusive of (i) the required fees paid under
Section 1.4 hereof; (ii) required interim payments made under
Section 1.5(c) hereof; and (iii) any prepayments of the
Revolving Loans under Section 1.5(a) and 1.5A hereof) for any
period of four (4) consecutive weeks ending each Friday during
the period from the Effective Date of the Second Amendment
through the Maturity Date (as set forth on the weekly report
to be delivered to the Lender pursuant to Section 5.4(7)
hereof) to be more than $2,300,000.
(j) Amendment to Section 7.2. Section 7.2 of the Credit
Agreement, Remedies, is hereby modified and amended by renumbering
existing subsections (a), (b) and (c) as (b), (c) and (d),
respectively, and adding a new subsection (a) to read in its entirety
as follows:
(a) Not make any further Advances;
(k) Amendment to Section 9.1. Section 9.1 of the Credit
Agreement, LIBOR Base Rate Determination, is hereby modified and
amended by deleting such section in its entirety and by substituting
the following in lieu thereof:
[Intentionally Omitted]
(l) Amendment to Section 9.2. Section 9.2 of the Credit
Agreement, Illegality, is hereby modified and amended by deleting such
section in its entirety and by substituting the following in lieu
thereof:
[Intentionally Omitted]
(m) Amendment to Section 9.3. Section 9.3 of the Credit
Agreement, Increased Costs, is hereby modified and amended by deleting
such section in its entirety and by substituting the following in lieu
thereof:
[Intentionally Omitted]
(n) Amendment to Section 9.4. Section 9.4 of the Credit
Agreement, Effect On Other Advances, is hereby modified and amended by
deleting such section in its entirety and by substituting the following
in lieu thereof:
[Intentionally Omitted]
(o) Amendments to Article 10.
(i) Article 10 of the Credit Agreement,
Definitions, is hereby modified and amended by adding the
following definitions in appropriate alphabetical order:
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"Restructuring Consultant" means The Recovery Group,
Charlotte, North Carolina.
"Third Amendment" shall mean that Third Amendment to
Amended and Restated Credit Agreement dated as of the Third
Amendment Effective Date between the Company and the Lender.
"Third Amendment Effective Date" shall have the
meaning provided in the first paragraph of the Third
Amendment.
"Working Capital Commitment" shall mean the
obligation of the Lender to advance the aggregate sum of up to
$1,800,000.00 to the Company under the Working Capital Note
pursuant to the terms hereof.
"Working Capital Loans" means Revolving Loans made to
the Borrower pursuant to Section 1.1(a), not to exceed the
Working Capital Commitment, and evidenced by the Working
Capital Note, and "Working Capital Loan" shall mean one of the
Working Capital Loans made by the Borrower.
"Working Capital Note" shall mean that certain
Working Capital Promissory Note in the original principal
amount of $1,800,000 issued to the Lender, substantially in
the form of Exhibit G-1 attached hereto, and any amendments,
renewals or extensions thereof.
(ii) Article 10 of the Credit Agreement, Definitions, is
hereby further modified and amended by deleting the existing
definitions of "Obligations," "Restricted Payment," "Revolving Loan
Limit" and "Revolving Loans" in their entirety and by substituting the
following in lieu thereof:
"Obligations" shall mean all payment and performance
duties, liabilities and obligations of the Company to the
Lender, whether now existing or hereafter created, incurred or
arising, and whether direct or indirect, absolute or
contingent, primary or secondary, due or to become due,
including without limitation, all liabilities now or at any
time or times hereafter owing to the Lender under this
Agreement, the Revolving Note, the Working Capital Note and
the other Loan Documents.
"Restricted Payment" shall mean (a) any direct or
indirect distribution, dividend or other payment to any Person
on account of any shares of capital stock or other securities
of the Company, (b) any payment of any management, consulting
or similar fees payable by the Company and to any Affiliate,
and (c) any other payment or distribution made without the
written consent of the Restructuring Consultant.
"Revolving Loan Limit" means, as of any date,
$28,990,000 minus the aggregate amount of payments or
prepayments applied after the
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Effective Date to repay the principal amount of
Revolving Loans not constituting Overadvances.
"Revolving Loans" shall mean, collectively,
the amounts advanced by the Lender to the Company
prior to the Third Amendment Effective Date under
this Agreement, plus the amounts advanced by the
Lender to the Company from time to time subsequent to
the Third Amendment Effective Date under the Working
Capital Note, plus any Overadvance.
(iii) Article 10 of the Credit Agreement,
Definitions, is hereby further modified and amended by
deleting the definitions of "LIBOR," "LIBOR Advance," "LIBOR
Advance Period," "LIBOR Basis," "LIBOR Reserve Percentage,"
"Payment Date," and "Request for Acquisition Advance" in their
entirety.
(p) The Credit Agreement is hereby modified and amended
to add Exhibit G-1 attached hereto, Form of Working Capital Note, as
Exhibit G-1 thereto.
3. No Other Amendments. Except for the amendments set forth
above, the text of the Credit Agreement and the other Loan Documents shall
remain unchanged and in full force and effect, and the Lender hereby reserves
the right to require strict compliance with the terms of the Credit Agreement
and the other Loan Documents as so modified, including, without limitation, all
terms applicable to Subsidiaries of the Borrower, in the future.
4. Reaffirmation of Duties and Obligations. In consideration of
the amendments and waivers contained herein, the Borrower and (by their consent
hereto) the Subsidiaries hereby acknowledge and reaffirm (a) their joint and
several liability to pay the aggregate principal amount of the Revolving Loans
outstanding as of the Third Amendment Effective Date of $27,306,000 (plus all
accrued interest, fees and expenses which shall not have been charged against
the loan account on or before the Third Amendment Effective Date), (b) their
joint and several liability to pay the aggregate principal amount of the
Completion Fee Note as of the Third Amendment Effective Date of $1,250,000, and
(c) the accuracy of the covenants, representations, warranties and agreements
made by the Borrower or any Subsidiary in favor of the Lender set forth in the
Credit Agreement and the other Loan Documents.
5. Release. In order to induce the Lender to execute, deliver and
perform this Amendment, the Borrower and each Subsidiary represents and warrants
that there are no claims, causes of action, suits, debts, obligations,
liabilities, demands of any kind, character or nature whatsoever, fixed or
contingent, which the Borrower or the Subsidiaries may have, or claim to have,
against the Lender, and the Borrower and (by their consent hereto) the
Subsidiaries hereby release, acquit and forever discharge the Lender and its
agents, employees, officers, directors, servants, representatives, attorneys,
affiliates, successors and assigns (collectively, the "Released Parties") from
any and all liabilities, claims, suits, debts, causes of action and the like of
any kind, character or nature whatsoever, known or unknown, fixed or contingent
that such Person may have, or claim to have, against each of the such Released
Parties from the beginning of time until and through the dates of execution and
delivery of this Amendment.
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6. Conditions. As conditions to the consummation and
effectiveness of this Agreement, the Borrower shall perform or cause to be
performed the following (the failure by the Borrower to so perform or cause to
be performed constituting an Event of Default under the Credit Agreement) all in
a form and manner and in substance satisfactory to the Lender:
(a) Execution of Agreement. Borrower shall deliver to
Lender a counterpart hereof duly executed by the Borrower and the
Subsidiaries.
(b) Execution of Working Capital Note. Borrower shall
deliver to Lender the duly executed Working Capital Note.
(c) Fees. Borrower shall have paid to the Lender the
Working Capital Commitment Fee in the amount of $18,000.00, plus any
expenses of the Lender incurred in connection with this Amendment.
(d) Warrants. Borrower shall have delivered to the
Lender, in form and substance satisfactory to the Lender and its
counsel, substantially in the form of Exhibit A hereto, a warrant or
warrants (the "Warrant") entitling the Lender or its assigns to
purchase, at an aggregate total cost of one dollar ($1.00), the number
of validly authorized and issued, fully paid and nonassessable shares
of the Company's Common Stock, as such Common Stock is constituted at
the time or times such warrant(s) is/are exercised, which would cause
the Lender to hold nine and one-half percent (9.5%) of the fully
diluted Common Stock of the Company.
(e) Corporate Resolutions. Borrower shall deliver to
Lender corporate resolutions of the Borrower and its Subsidiaries
certified by the secretary of the Borrower or its Subsidiaries, as
applicable, authorizing the Working Capital Loans and the other
transactions contemplated hereby, including without limitation the
Warrant described in subsection (d) above.
(f) Other Closing Documents. Borrower and Subsidiaries
shall deliver to Lender such other information, documents, instruments
or approvals as the Lender or the Lender's counsel may require.
7. Representations and Warranties. The Borrower, for itself and
on behalf of each of its Subsidiaries, agrees, represents and warrants in favor
of the Lender that:
(a) This Agreement (including the Consent affixed hereto)
has been executed and delivered by duly authorized representatives of
the Borrower and the Subsidiaries, as applicable, and the Credit
Agreement and the other Loan Documents, as modified and amended by this
Agreement, and the Warrant, constitute the legal, valid and binding
obligation of the Borrower and the Subsidiaries, as applicable, and are
enforceable against the Borrower and the Subsidiaries, as applicable,
in accordance with their terms;
(b) After giving effect to this Third Amendment, no
Default or Event of Default under the Credit Agreement has occurred or
is continuing; and
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(c) All of the representations and warranties of the
Borrower and each of its Subsidiaries contained in the Credit Agreement
and the other Loan Documents continue to be true and correct as of the
date hereof as though made on and as of such date.
8. Permitted Take-out Transaction. At the Borrower's request,
this Third Amendment shall evidence the Lender's agreement to the sale of the
Borrower (whether by merger, tender offer, transfer of stock or sale of assets)
or a refinancing in full of the Obligations (in each case, a "Permitted Take-out
Transaction"), provided that (a) such Permitted Take-out Transaction shall be
consummated not later than the Maturity Date and (b) all of the Obligations
(including, without limitation, the fees set forth in Section 1.4 hereof) shall
be paid in full upon consummation of such Permitted Take-out Transaction. The
Borrower shall deliver promptly to the Lender (a) a copy of any term sheet
provided to the Borrower with respect to a proposal for a Permitted Take-out
Transaction, and (b) copies of any agreements entered into by the Borrower in
connection with a Permitted Take-out Transaction.
9. Expenses. The Borrower hereby agrees to pay all expenses of
the Lender incurred in connection with this Third Amendment, including, without
limitation, all fees and expenses of counsel, accountants and consultants to the
Lender. In the event that Borrower does not have sufficient funds on hand to pay
such expenses as they accrue, Lender agrees to pay such expenses on Borrower's
behalf, provided however, that Borrower agrees to reimburse Lender as specified
in Section 1.5(c) of the Credit Agreement.
10. Further Assurances. The Borrower will promptly cure, or cause
to be cured, any defects in the creation, execution or delivery of the Loan
Documents resulting from any act or failure to act by the Borrower or any of the
Borrower's Subsidiaries or any employee or officer thereof. The Borrower, at its
sole expense, will promptly execute and deliver to the Lender, or cause to be
executed and delivered to the Lender, all such other and further documents,
agreements, and instruments in compliance with or accomplishment of the
covenants and agreements of the Borrower and its Subsidiaries in the Loan
Documents or to obtain any consents, all as may be necessary or appropriate in
connection therewith or as may be requested by the Lender.
11. Effect on the Credit Agreement. Except as specifically
provided herein, the Credit Agreement and each of the Loan Documents shall
remain in full force and effect, and is hereby ratified, reaffirmed and
confirmed. Each of the Working Capital Note and the Warrant shall be deemed to
be a Loan Document for all purposes.
12. Counterparts. This Third Amendment may be executed in any
number of separate counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original and all of which, taken
together, shall be deemed to constitute one and the same instrument. In proving
this Third Amendment in any judicial proceedings, it shall not be necessary to
produce or account for more than one such counterpart signed by the party
against whom such enforcement is sought. Any signatures delivered by a party by
facsimile transmission shall be deemed an original signature hereto.
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13. Law of Contract. THIS THIRD AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
14. No Waiver of Remedies. The terms of this Agreement shall not
act or be construed to limit or diminish the rights of the Lender to pursue its
full legal remedies for the collection of the indebtedness outstanding under the
Loan Documents, including, without limitation, the right to pursue liens or
security interests in any other Collateral held by the Lender in any way
permitted by law. Except as expressly modified hereby, the terms, conditions,
representations, warranties and covenants of each of the Credit Agreement and
the Loan Documents as well as the recitals, representations and warranties set
forth herein shall continue to remain in full force and effect and are true as
if made on the date hereof.
15. Negotiations. This Agreement is being executed in connection
with all negotiations between the Borrower and the Lender to discuss the
modification of the Credit Agreement and the Loan Documents (the "Loan
Discussions"). All of the terms of this Agreement were negotiated at
arms'-length, and the Borrower has at all times had access to independent
counsel. This Agreement was prepared and executed without fraud, duress, undue
influence or coercion of any kind exerted by any of the parties upon the other.
This Agreement and the Loan Documents constitute the entire agreement between
the parties with respect to the Credit Agreement, the Loan Documents and the
Loan Discussions and supersedes any prior oral or written representations or
agreements not contained herein that relate to the subject matter hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
13
14
IN WITNESS WHEREOF, this Third Amendment has been duly executed as of
the day and year first written above.
BORROWER: XXXXXXXX.XXX, INC. (F/K/A MEDIRISK, INC.)
By: /s/ Xxxxxx X. Xxxx III
-----------------------------------
XXXXXX X. XXXX III
Executive Vice President &
Chief Financial Officer
LENDER: BANK OF AMERICA, N.A. (F/K/A NATIONSBANK, N.A.)
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: SVP
THIRD AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
Signature Page 1 of 2
15
CONSENT TO THIRD AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing Third
Amendment to Amended and Restated Credit Agreement (the "Agreement"), (ii)
consents to the execution and delivery of the Agreement by the parties thereto,
and acknowledges and agrees to the terms thereof, including, without limitation
Sections 4 and 5 thereof to the same extent as if each of the undersigned were
signatories thereto, and (iii) reaffirms all of its obligations and covenants
under the Subsidiary Guaranties executed by it in favor of the Bank, and agrees
that such guarantees and their obligations and covenants with respect thereto
shall remain in full force and effect with respect to the Obligations as defined
in the Agreement.
GUARANTORS:
MEDIRISK OF ILLINOIS, INC.
CIVS, INC.
MEDSOURCE, INC.
SUCCESSFUL SOLUTIONS, INC.
CITIZEN 1 SOFTWARE, INC.
MEDIRISK OF MISSOURI, INC.
CAREDATA REPORTS, INC.
HEALTHDEMOGRAPHICS, INC.
SWEETWATER HEALTH ENTERPRISES, INC.
BY: /s/ Xxxxxx X. Xxxx III
---------------------------
XXXXXX X. XXXX III
Executive Vice President
XXXXXXXX.XXX LIMITED
BY: /s/ Xxxxx X. Xxxx
---------------------------
XXXXX X. XXXX
Secretary
THIRD AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
Signature Page 2 of 2
16
EXHIBIT A
WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER ANY FEDERAL OR STATE SECURITIES LAW
AND HAS BEEN ISSUED UNDER EXEMPTIONS THAT DEPEND, IN PART, ON THE INTENT OF THE
HOLDER HEREOF NOT TO SELL OR TRANSFER SUCH WARRANT OR THE SHARES ISSUABLE UPON
EXERCISE THEREOF IN ANY MANNER NOT PERMITTED BY SUCH LAWS. THIS WARRANT
THEREFORE MAY BE SOLD OR TRANSFERRED ONLY IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH HEREIN.
XXXXXXXX.XXX, INC.
Common Stock Purchase Warrant No. 1
1. GENERAL PROVISIONS. The undersigned, XXXXXXXX.XXX, INC., a
Delaware corporation (f/k/a Medirisk, Inc.) (the "Company"), in consideration of
the extension to the Company of a Working Capital Loan in the maximum principal
amount of $1,800,000, pursuant to that certain Amended and Restated Credit
Agreement between the Company and Bank of America, N.A, a national banking
association (f/k/a NationsBank, National Association) ("Bank of America") dated
as of June 29, 1998 (as amended, modified, supplemented, or restated, the
"Credit Agreement"), and in further consideration of one dollar ($1.00) and in
accordance with the terms hereof, hereby certifies that Bank of America or its
registered assigns (the "Holder"), is entitled to purchase, at an aggregate
total cost of one dollar ($1.00), the number of validly authorized and issued,
fully paid and nonassessable shares of the Company's Common Stock, as such
Common Stock is constituted at the time or times this Warrant or applicable
portions hereof are exercised (the "Common Stock"), as is set forth in Section 3
below, by surrendering this Warrant, or the applicable portion hereof, with the
subscription form attached hereto duly executed (the "Subscription Form"), at
the office of the Company in Atlanta, Georgia and upon compliance with and
subject to the conditions set forth herein, except no fractional shares shall be
issued hereunder, and instead, any fractional shares created by exercise
hereunder shall be purchased in cash by Company at a reasonable price per share
agreed upon by the Company and Bank of America. Capitalized terms not otherwise
defined herein shall have the meanings ascribed to such terms in the Agreement.
2. EXERCISE PERIOD. This Warrant shall be exercisable in whole or
in part and from time to time beginning on the date hereof.
3. NUMBER OF WARRANT SHARES. The number of shares for which this
Warrant may be exercised shall be that number of shares of the Company's Common
Stock which, after issuance, would cause the Holder to hold nine and one-half
percent (9.50%) (the "Exercise Percentage") of the fully diluted Common Stock of
the Company (which calculation shall be made as if all options, warrants and
other securities exercisable for or convertible into, directly or indirectly,
shares of Common Stock have been so exercised, and shall further include,
A-1
17
without duplication, all securities of the Company that would entitle the
holders thereof to participate with the holders of Common Stock in a final
distribution of the Company's assets in the event of a liquidation of the
Company).
4. RESERVATION OF SHARES. Company shall at all times reserve and
keep available a number of its authorized but unissued shares of its Common
Stock sufficient to permit the exercise in full of this Warrant including any
adjustments, from time to time, of the Exercise Percentage.
5. SALE OF WARRANT OR SHARES. Neither this Warrant nor the shares
of Common Stock issuable upon exercise hereof (the "Warrant Shares") have been
registered under the Securities Act of 1933, as amended, or under the securities
laws of any state. Neither this Warrant nor such Warrant Shares, when issued,
may be sold, transferred, pledged or hypothecated (i) in the absence of an
effective registration statement for this Warrant, or the shares, as the case
may be, under the Securities Act of 1933, as amended, and such registration or
qualification as may be necessary under the securities laws of any state, or an
opinion of counsel satisfactory to Company that such registration or
qualification is not required and (ii) without the prior consent of Company. The
certificate or certificates evidencing all or any of the shares issued upon
exercise of this Warrant shall bear the following legend:
"The shares evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended, or
under the securities laws of any state. The shares may not be
sold, transferred, pledged or hypothecated in the absence of
an effective registration statement under the Securities Act
of 1933, as amended, and such registration or qualification as
may be necessary under the securities laws of any state, or an
opinion of counsel satisfactory to Company that such
registration or qualification is not required.
This Warrant shall be registered on the books of Company, which shall
be kept by it at its principal office for that purpose and shall be transferable
only on said books by the registered Holder hereof in person or by the
registered Holder's duly authorized attorney upon surrender of this Warrant
properly endorsed, and only in compliance with the provisions of the preceding
paragraph.
6. ISSUANCE OF CERTIFICATES. The stock certificate or
certificates will be issued in the name of the Holder and dated as of the date
the Subscription Form is received by Company. Company shall pay all expenses,
taxes (not to include any income, capital gains or other similar tax applicable
to Bank of America) and other charges payable with respect to this Warrant or
the issue of any stock certificates upon the exercise of this Warrant.
7. NO DIVIDENDS OR VOTING RIGHTS. Unless and until exercised, no
provision of this Warrant shall be construed as conferring upon the Holder the
right to receive dividends or to vote as a shareholder of Company.
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18
8. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
[Remainder of Page Intentionally Left Blank]
A-3
19
DATED: October __, 2000.
COMPANY:
ATTEST: XXXXXXXX.XXX, INC.
By:
------------------------------------ --------------------------------
, Secretary Name:
------------------ --------------------------------
Title:
--------------------------------
(Corporate Seal)
A-4
20
Form of Subscription Form
XXXXXXXX.XXX, INC.
Subscription Form
I (We) hereby irrevocably subscribe for the shares of Common Stock
indicated below, upon the terms and subject to the terms and conditions of the
attached Warrant, receipt of which is hereby acknowledged.
No. of Shares
--------------------------
By:
------------------------------------------------------------------------- ----------------------------
(Subscriber's Name and Signature of Authorized Representative) (Area Code Telephone)
Date:
-------------------------------
A-5
21
EXHIBIT G-1
FORM OF WORKING CAPITAL NOTE
Working Capital Promissory Note
(Revolving Credit)
$1,800,000.00 October __, 2000
FOR VALUE RECEIVED, Xxxxxxxx.xxx, Inc., a Delaware corporation having
its principal place of business located in Atlanta, Georgia (the "Borrower"),
hereby promises to pay to the order of the Bank of America, N.A. (the "Lender"),
at the office of BANK OF AMERICA, N.A., located at 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such other place or places
as the Lender may designate in writing) at the times set forth in the Amended
and Restated Credit Agreement between the Borrower and the Lender (as the same
may be amended, restated, supplemented or otherwise modified from time to time
(the "Credit Agreement"-all capitalized terms not otherwise defined herein shall
have the respective meanings set forth in the Credit Agreement) among the
Borrower and the Lender, in lawful money of the United States of America, in
immediately available funds, the principal amount of One Million Eight Hundred
Thousand and No/100 DOLLARS ($1,800,000.00) on the maturity date or on demand as
may be required pursuant to the terms of the Credit Agreement, and to pay
interest from the date hereof on the unpaid principal amount hereof, in like
money, at said office, on the dates and at the rates provided in Section 1.3 of
the Credit Agreement. All or any portion of the principal amount of the Working
Capital Note may be prepaid or required to be prepaid as provided in the Credit
Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Credit Agreement or under the terms of the other Loan Documents executed in
connection with the Credit Agreement, the then remaining principal amount hereof
and accrued but unpaid interest thereon evidenced by this Working Capital Note
shall become immediately due and payable, without presentation, demand, protest
or notice of any kind, all of which are hereby waived by the Borrower.
In the event that this Working Capital Note is not paid when due at any
stated or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest due hereunder, all costs of collection, including
reasonable attorneys' fees, and interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Credit
Agreement.
This Working Capital Note is referred to in the Credit Agreement and is
issued pursuant to and entitled to the benefits and security of the Credit
Agreement to which reference is hereby made for a more complete statement of the
terms and conditions upon which the Loan evidenced hereby was made and is to be
repaid. The Obligations evidenced hereby are secured by the
Exhibit G-1
Page 1 of 3
22
Security Documents. This Working Capital Note is subject to certain restrictions
on transfer or assignment as provided in the Credit Agreement.
This Working Capital Note shall be governed by and construed in
accordance with the laws of the State of Georgia.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Working Capital Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
[SIGNATURE PAGE FOLLOWS.]
Exhibit G-1
Page 2 of 3
23
IN WITNESS WHEREOF, the Borrower has caused this Working Capital Note
to be made, executed and delivered by its duly authorized representative as of
the date and year first above written, all pursuant to authority duly granted.
XXXXXXXX.XXX, INC.
WITNESS:
By:
--------------------------- ------------------------------------------
Name:
--------------------------- ----------------------------------------
Title:
-----------------------------------
Exhibit G-1
Page 3 of 3
