EIGHTH AMENDMENT TO CREDIT AGREEMENT
EIGHTH
AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH
AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
June 29, 2007, 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 June 1, 2004, a Second Amendment to Credit Agreement dated
July 1, 2004, a Third Amendment to Credit Agreement dated August 12,
2004, a Fourth Amendment to Credit Agreement dated October 27, 2004, a
Fifth Amendment to Credit Agreement dated March 31, 2005, a Sixth Amendment
to Credit Agreement dated June 29, 2005, and a Seventh Amendment to Credit
Agreement dated May 4, 2006, 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:
"Annual
Permitted Acquisition Limit" shall mean $10,000,000; provided,
however, that not more than $5,000,000 of such amount shall consist of
consideration that is not common Capital Stock of the Borrower.
"Applicable
Base Rate Margin" shall mean the margin to be added to the Base Rate for
purposes of determining the interest rate(s) applicable to Base Rate Loans
from
time to time, which shall be determined as provided in
Section 2.15.
"Base
Rate Loans" shall mean Loans bearing interest at rates determined by
reference to the Base Rate.
"Credit
Facility Base" shall mean, as of any date of determination, an amount equal
to eighty percent (80%) of Eligible Accounts.
"Credit
Facility Base Certificate" shall mean a certificate of a Responsible Officer
of the Borrower, substantially in the form of Exhibit 1.1B to the
Eighth Amendment, duly completed, regarding the calculation of the Credit
Facility Base.
"Defaulting
Lender" shall mean any Lender that (a) has failed to fund any portion
of the Loans or participations in Letter of Credit Liabilities required to
be
funded by it hereunder, within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid
by
it hereunder within one Business Day of the date when due, unless the subject
of
a good faith dispute, or (c) has been deemed insolvent or become the
subject of a bankruptcy or insolvency case or proceeding.
"Eighth
Amendment" shall mean the Eighth Amendment to Credit Agreement dated
June 29, 2007, among the Borrower, the Guarantors, the Lenders and Bank of
America, as Administrative Agent and as Issuing Bank.
"Eligible
Accounts" shall mean, as of any date of determination, accounts of the
Borrower and the Guarantors, excluding:
(a) any
account that does not represent a complete bona fide transaction fully earned
by
performance and requiring no further action to make such account payable by
the
account debtor;
(b) any
account for which the invoice therefor has not been delivered;
(c) any
account not payable in Dollars;
-2-
(d) [reserved];
(e) any
account due from (i) any Subsidiary or Affiliate of the Borrower or
(ii) any employee, agent or representative of the Borrower or any of its
Subsidiaries or Affiliates;
(f) any
account with respect to all or part of which a check, promissory note, draft,
trade acceptance or other instrument for the payment of money has been presented
for payment and returned uncollected for any reason;
(g) any
account as to which any one or more of the following events has occurred with
respect to the applicable account debtor: the filing by or against
such account debtor of a request or petition for liquidation, reorganization,
arrangement, adjustment of debts, adjudication as a bankrupt, or other relief
under the bankruptcy, insolvency, or similar laws of the United States of
America, any state or territory thereof, or any foreign jurisdiction; the making
of any general assignment by such account debtor for the benefit of creditors,
or the appointment of a receiver or trustee for such account debtor or for
any
of the assets of such account debtor; the inability to pay or the nonpayment
by
such account debtor of its debts generally as they become due; or the cessation
of the business of such account debtor as a going concern; provided that this
clause (g) shall not apply to any billed account of a
debtor-in-possession in a case under Chapter 11 of Title 11 of the
United States Code that has received court-approved debtor-in-possession
financing, if such account arises from the sale of goods or the provision of
services to such debtor subsequent to the filing of the petition for relief
in
the case;
(h) any
account due from an account debtor incorporated under the laws of any
jurisdiction other than the United States of America or any state thereof or
whose principal place of business or a substantial portion of whose assets
is
located outside of the United States of America;
(i) any
account that remains unpaid for more than 150 days after the date of the
original invoice or is past due by more than 120 days;
(j) [reserved];
(k) any
account with respect to which there is any unresolved dispute, defense, offset
or counterclaim with or by the respective account debtor, but only to the extent
of the amount shown to be due on the invoice(s) with respect to which there
is
any dispute;
(l) any
account as to which either (i) the perfection, enforceability or validity
of the Administrative Agent's security interest in such account, or
(ii) the Administrative Agent's right or ability to obtain direct payment
of the proceeds of such account, is governed by any federal or state statutory
requirements other than those of the UCC (including the Federal Assignment
of
Claims Act, 31 U.S.C. § 3727);
-3-
(m) any
account as to which (i) the Administrative Agent does not have a valid and
enforceable first priority security interest, subject to no other Liens other
than Permitted Liens or (ii) there exists any material regulatory,
administrative or judicial obstacles to the Administrative Agent's direct
enforcement of the account against the account debtor or (iii) the
Administrative Agent does not have a right of direct payment upon an Event
of
Default;
(n) any
account that has not been created in the ordinary course of business;
and
(o) [reserved].
"Eligible
FF&E" – Not applicable.
"Eurodollar
Loans" shall mean Loans bearing interest at rates determined by reference to
the Eurodollar Rate.
"Excluded
Prepayment Transaction" shall mean (1) the incurrence of any
Indebtedness in accordance with subsections 9.1 (a), (b),
(c), (d), (g), (h) or (i), (2) the
incurrence of Subordinated Indebtedness permitted by this Agreement, the
proceeds of which are used in compliance with subsection 9.5(c),
(3) the issuance of any Capital Stock pursuant to
subsection 9.6(a), provided that the proceeds thereof are
used in compliance with subsections 9.5(b) or (c) or as a
part of the consideration for a Permitted Acquisition, and (4) the issuance
of any Capital Stock pursuant to any stock option, stock incentive or similar
plan of the Borrower.
"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 Last Four Fiscal Quarters after giving Pro Forma Effect to any relevant
transaction occurring during such period, the ratio of Consolidated Funded
Indebtedness to EBITDA.
"Individual
Permitted Acquisition Limit" shall mean $5,000,000; provided,
however, that not more than $2,500,000 of such amount shall consist of
consideration that is not common Capital Stock of the Borrower.
"Interest
Payment Date" shall mean, (a) with respect to any Base Rate Loan,
January 1, April 1, July 1 and October 1 of each year, commencing on the first
such date after the applicable Funding Date, and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to such Loan;
provided, however, that with respect to any Interest Period of six (6)
months "Interest Payment Date" also shall include the day that is three (3)
months after the day on which that Interest Period commenced.
-4-
"Maintenance
Capital Expenditure Adjustment" shall mean, for the Borrower and its
Subsidiaries on a consolidated basis, as of any date of determination, an amount
equal to $1,500,000.
"Notice
of Borrowing" shall mean (a) a notice substantially in the form of
Exhibit 2.2.4 with respect to a proposed Borrowing of Term Loans,
and (b) a notice substantially in the form of Exhibit 2.3.4
with respect to a proposed Borrowing of Revolving Loans or Swingline Loans
(conformed appropriately, in the case of Swingline Loans).
"Permitted
Acquisition" shall mean any Asset Acquisition by the Borrower or any
Guarantor with respect to which (a) the Borrower and the Guarantors shall
have complied with the provisions of Section 8.2.7, (b) the
Borrower or a Guarantor is the surviving entity in the transaction, (c) all
assets acquired in the transaction are held or acquired by the Borrower or
a
Guarantor, (d) at the time of such Asset Acquisition and after giving Pro
Forma Effect thereto and to any other relevant transaction occurring during
the
then most recent twelve (12) month period, no Default shall have occurred or
be
continuing or would result therefrom, and (e) the aggregate consideration paid
or to be paid in connection with such Asset Acquisition, inclusive of all
Indebtedness incurred or assumed, (i) will not exceed the Individual
Permitted Acquisition Limit and (ii) when combined with the aggregate
consideration paid or to be paid (inclusive of all Indebtedness incurred or
assumed) in connection with all other Asset Acquisitions by the Borrower and
the
Guarantors occurring during the twelve (12) month period immediately preceding
such Asset Acquisition, will not exceed the Annual Permitted Acquisition
Limit.
"Pro
Forma Effect" shall mean, in making any calculation of the Funded
Indebtedness to EBITDA Ratio for purposes of Section 2.15 or any
calculation hereunder necessary to determine whether the Borrower is in
compliance with Section 10.1.4 or whether a Default would result
from any Asset Acquisition, (1) any Disposition of any asset(s) of the
Borrower or any of the other Credit Parties made during the twelve (12) month
period ending on and including the date of determination, other than a
Disposition permitted by subsections 9.3(a), (b) or
(d), and any corresponding repayment or incurrence of
Indebtedness, shall
be assumed to have occurred on the first day of such period, and (2) any
Asset Acquisition made during the twelve (12) month period ending on and
including the date of determination, and any corresponding repayment or
incurrence of Indebtedness, shall be assumed to have occurred on the first
day
of such period; provided that the Administrative Agent has been
furnished with annual audited financial statements or interim financial
statements regarding such Asset Acquisition that are in sufficient detail to
provide a basis for determining the Pro Forma Effect thereof and that otherwise
are in form and substance and prepared by Persons satisfactory to the
Administrative Agent.
"Requisite
Lenders" shall mean, as of any date of determination, Lenders holding in the
aggregate more than fifty percent (50%) of (a) the Revolving Credit
Commitments, the Swingline Commitment and the outstanding Term Loans or
(b) if the Revolving Credit Commitments and the Swingline Commitment have
been terminated, the outstanding Loans, Letter of Credit Liabilities and
participations therein. The Revolving Credit Commitments of,
Swingline Commitment of and the outstanding Term Loans held or deemed held
by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Requisite Lenders.
-5-
"Revolving
Credit Maturity Date" shall mean July 1, 2009.
"Swingline
Commitment" shall mean the commitment of the Swingline Lender to make
Swingline Loans pursuant to Section 2.4.
"Swingline
Commitment Period" shall mean that period commencing on the date on which
the Eighth Amendment becomes effective and continuing to, but not including,
the
Revolving Credit Maturity Date.
"Swingline
Facility" shall mean the credit facility provided by the Swingline Lender
pursuant to the Swingline Commitment as more particularly set forth in
Section 2.4.
"Swingline
Lender" shall mean Bank of America and any other financial institution that,
subject to approval by the Administrative Agent and the Borrower, agrees to
become a party to this Agreement and to make Swingline Loans pursuant to
Section 2.4. As used herein and in the other Loan
Documents, "Lender" shall include the Swingline Lender except to the extent
that
the context requires otherwise.
"Swingline
Loans" shall mean the loans made to the Borrower by the Swingline Lender
pursuant to Section 2.4.
"Swingline
Note" shall mean the promissory note, in substantially the form of
Exhibit 2.10C to the Eighth Amendment, executed by the Borrower in
favor of the Swingline Lender, evidencing the indebtedness of the Borrower
to
the Swingline Lender in connection with the Swingline Loans.
2. Amendment
of Section 2.1.1. Subsection (c)
of Section 2.1.1 of the Credit Agreement is hereby amended by deleting the
words "and Swingline Loans".
3. Amendment
of Section 2.1.2. Section 2.1.2 of
the Credit Agreement is hereby amended by deleting the words and punctuation
"Swingline Loans,".
4. Amendment
of Section 2.1.3. Section 2.1.3 of
the Credit Agreement is hereby amended to read as follows:
2.1.3. Mandatory
Reductions of Commitments. Any Net Cash Proceeds or Reinvestment
Prepayment Amount, as the case may be, not applied to the repayment of Term
Loans pursuant to paragraph (3) or paragraph (4) of
subsection 3.1.2(c) shall be applied to the permanent reduction of
the Swingline Commitment so long as any portion of the Swingline Commitment
remains in effect and thereafter to the permanent reduction of the Revolving
Credit Commitments so long as any portion of the Revolving Credit Commitments
remains in effect. Any reduction of the Swingline Commitment pursuant
to this Section 2.1.3 shall be applied to scheduled reductions of
the Swingline Commitment pursuant to subsection 2.4.1(a), in direct
order of the scheduled reductions, to the extent not previously so
applied. In connection with any reduction of the Swingline Commitment
or the Revolving Credit Commitment as aforesaid, the Borrower shall prepay
Swingline Loans and Revolving Loans as and to the extent required by
paragraph (2) of subsection 3.1.2(c). If
after any such prepayment of Revolving Loans the aggregate principal amount
of
Letter of Credit Liabilities then outstanding exceeds the amount of the
Revolving Credit Commitments as so reduced, the Borrower shall, to the extent
of
the balance of such excess, replace outstanding Letters of Credit or deposit
an
amount in immediately available funds in a Collateral Account established with
the Administrative Agent in accordance with the procedures specified in
Section 11.3 in the same manner as if an Event of Default had
occurred and was continuing. After the Revolving Credit Commitments
have been reduced to zero and all Obligations have been satisfied, any remaining
amounts shall be paid to or retained by the Borrower or such other Person as
shall be lawfully entitled thereto.
-6-
5. Amendment
of Section 2.3.1. Section 2.3.1 of
the Credit Agreement is hereby amended to read as follows:
2.3.1. Commitment
to Make Revolving Loans. Subject to all of the terms and
conditions of this Agreement (including the conditions set forth in
Sections 6.1 and 6.2) and in reliance upon the
representations and warranties of the Borrower set forth herein, each Lender
holding a Revolving Credit Commitment hereby severally agrees to make Revolving
Loans to the Borrower from time to time during the Revolving Credit Commitment
Period, in amounts up to its Percentage of the aggregate Revolving Credit
Commitments, for the purposes identified in Section 2.12;
provided, however, that:
(a) the
aggregate principal amount of the Revolving Loans made by any Lender that are
outstanding at any time shall not exceed such Lender's Revolving Credit
Commitment,
(b) the
aggregate principal amount of the Revolving Loans made by all Lenders that
are
outstanding at any time shall not exceed the Revolving Credit Commitments then
in effect, and
(c) the
aggregate principal amount of the Revolving Loans and Letter of Credit
Liabilities that are outstanding at any time shall not exceed the Credit
Facility Base.
Each
Lender's Revolving Credit Commitment shall expire upon the expiration of the
Revolving Credit Commitment Period, and all Revolving Loans shall be paid in
full no later than the Revolving Credit Maturity Date.
-7-
6. Amendment
of Section 2.4. Section 2.4 of the
Credit Agreement is hereby amended to read as follows:
2.4 Swingline
Loans.
2.4.1. Amount
of Swingline Commitment. The initial amount of the Swingline
Commitment is $5,000,000, subject to reduction as follows:
(a)
On April 1, 2008 and on the first day of each succeeding July, October,
January and April thereafter, the amount of the Swingline Commitment as then
in
effect shall be reduced by $312,500.
(b) The
Borrower shall have the right, at any time and from time to time, to terminate
in whole or permanently reduce in part, without premium or penalty, the
Swingline Commitment in an amount up to the amount by which the Swingline
Commitment exceeds the aggregate amount of the then outstanding Swingline
Loans. The Borrower shall give not less than ten (10) Business
Days' prior written notice to the Administrative Agent and the Swingline Lender
designating the date (which shall be a Business Day) of such termination or
reduction and the amount of any reduction. Such termination or
reduction of the Swingline Commitment shall be effective on the date specified
in the Borrower's notice. Any such reduction of the Swingline
Commitments shall be in a minimum amount of $500,000 and in integral multiples
of $100,000. Any reduction of the Swingline Commitment pursuant to
this subsection (b) shall be applied to the scheduled reductions of
the Swingline Commitment pursuant to the preceding subsection (a),
in direct order of the scheduled reductions, to the extent not previously so
applied.
2.4.2 Commitment
to Make Swingline Loans. Subject to all of the terms and
conditions of this Agreement (including the conditions set forth in
Sections 6.1 and 6.2 and the limitations set forth in
Section 2.3.1), and in reliance upon the representations and
warranties of the Borrower set forth herein, the Swingline Lender hereby agrees
to make Swingline Loans to the Borrower from time to time during the Swingline
Commitment Period, for the purposes identified in Section 2.12, in
an aggregate principal amount at any time outstanding not to exceed the amount
of the Swingline Commitment at such time. Swingline Loans may be
Eurodollar Loans or Base Rate Loans. The Swingline Lender's
commitment to make Swingline Loans as provided in this Section 2.4
shall expire upon the expiration of the Swingline Commitment Period, and all
Swingline Loans shall be paid in full no later than the Revolving Credit
Maturity Date.
2.4.3 Revolving
Credit; Minimum Borrowings. Amounts borrowed by the Borrower
under the Swingline Commitment may be prepaid and reborrowed from time to time
during the Swingline Commitment Period. The amount of the Swingline
Loan made on any Funding Date shall be in a minimum amount of $500,000 and
in
integral multiples of $100,000 in excess of that amount.
-8-
2.4.4 Notice
of Borrowing.
(a) Delivery
of Notice. Whenever the Borrower desires to borrow under
Section 2.4, it shall deliver to the Swingline Lender a Notice of
Borrowing no later than 11:00 a.m. (Central time) on the proposed Funding Date
(in the case of Base Rate Loans) or three (3) Business Days in advance of
the proposed Funding Date (in the case of Eurodollar Loans). The
Notice of Borrowing shall specify (i) the proposed Funding Date (which
shall be a Business Day), (ii) the amount of the proposed Borrowing,
(iii) whether the proposed Borrowing shall be in the form of Base Rate
Loans or Eurodollar Loans, and (iv) in the case of Eurodollar Loans, the
requested Interest Period. In lieu of delivering a Notice of
Borrowing, the Borrower may give the Swingline Lender telephonic notice by
the
required time of notice of any proposed Borrowing under this
Section 2.4.4; provided, however, that such notice shall be
promptly confirmed in writing by delivery of a Notice of Borrowing to the
Swingline Lender on or prior to the Funding Date of the requested Swingline
Loan. The execution and delivery of each Notice of Borrowing shall be
deemed a representation and warranty by the Borrower that the requested
Swingline Loan may be made in accordance with, and will not violate the
requirements of, this Agreement, including those set forth in
Sections 2.4.1 and 2.4.2.
(b) No
Liability for Telephonic Notices. The Swingline Lender shall not
incur any liability to the Borrower in acting upon any telephonic notice given
pursuant to this Section 2.4.4 that the Swingline Lender believes in
good faith to have been given by a duly authorized officer or other person
authorized to borrow on behalf of the Borrower or for otherwise acting in good
faith under this Section 2.4.4 and, upon the funding of a Swingline
Loan by the Swingline Lender in accordance with this Agreement pursuant to
any
telephonic notice, the Borrower shall have effected a Borrowing of a Swingline
Loan hereunder.
(c) Notice
Irrevocable. A Notice of Borrowing for Eurodollar Loans (or a
telephonic notice in lieu thereof) shall be irrevocable on and after the related
Interest Rate Determination Date, and the Borrower shall be bound to make a
Borrowing in accordance therewith.
2.4.5 Disbursement
of Funds. Not later than 2:00 p.m., Central time, on the Business
Day of the proposed Borrowing of a Swingline Loan, the Swingline Lender shall
make the proceeds of the requested Swingline Loan available to the Borrower
at
the office of the Swingline Lender by crediting an account of the Borrower
maintained at such office that has been designated for such purpose in writing
by the Borrower to the Swingline Lender.
-9-
7. Amendment
of Section 2.8.1. Section 2.8.1 of
the Credit Agreement is hereby amended to read as follows:
2.8.1. Interest
Rate on Loans. Subject to Section 2.8.3, the unpaid
principal balances of the Loans shall bear interest from their respective
Funding Dates through maturity (whether by acceleration or otherwise) (including
post-petition interest in any case or proceeding under applicable bankruptcy
laws) at a rate determined by reference to the Base Rate or the Eurodollar
Rate. The applicable basis for determining the rate of interest for
Loans shall be selected by the Borrower at the time a Notice of Borrowing is
given pursuant to Section 2.2.4 or Section 2.3.4 or at
the time a Notice of Conversion/Continuation is given pursuant to
Section 2.9.2. If on any day any Loan is outstanding with
respect to which notice has not been delivered to the Administrative Agent
in
accordance with the terms of this Agreement specifying the basis for determining
the rate of interest, then for that day such Loan shall bear interest determined
by reference to the Base Rate. The Loans shall bear interest as
follows:
(a) if
a Base Rate Loan, then at a fluctuating rate per annum equal to the sum of
the
Base Rate, as it varies from time to time, plus the Applicable Base Rate Margin;
or
(b) if
a Eurodollar Loan, then at a rate per annum equal to the sum of the Eurodollar
Rate plus the Applicable Eurodollar Rate Margin.
8. Amendment
of Section 2.12(b). Clause (3) of
Section 2.12(b) is hereby amended by adding the words "Permitted
Acquisitions and" immediately prior to the words "the making of Capital
Expenditures".
9. Amendment
of Section 2.13.3. The first sentence
of Section 2.13.3 is hereby amended to read as follows:
The
Borrower agrees to pay (a) to the Administrative Agent, for distribution to
the Lenders holding Revolving Credit Commitments in proportion to their
respective Percentages, during the Revolving Credit Commitment Period, annual
commitment fees equal to the average of the daily unused portion of the
Revolving Credit Commitments (i.e., the aggregate amount of the
Revolving Credit Commitments less the aggregate amount of Revolving Loans
and Letter of Credit Liabilities outstanding) multiplied by the Applicable
Commitment Fee Percentage, and (b) to the Swingline Lender, during the
Swingline Commitment Period, an annual commitment fee equal to the average
of
the daily unused portion of the Swingline Commitment (i.e., the amount
of the Swingline Commitment less the aggregate amount of Swingline Loans
outstanding) multiplied by the Applicable Commitment Fee Percentage (such fees
payable in respect of the Revolving Credit Commitments and the Swingline
Commitment being referred to herein as "Commitment Fees").
-10-
10. Amendment
of Section 2.15. Section 2.15 of
the Credit Agreement is hereby amended to read as follows:
2.15 Interest
and Fees Margins. For purposes of interest and fee computations
hereunder involving the Applicable Base Rate Margin, the Applicable Eurodollar
Rate Margin, the Applicable Letter of Credit Fee Percentage and the Applicable
Commitment Fee Percentage, such margins and percentages shall be determined
as
follows:
|
Tier
|
Applicable
Eurodollar
Rate
Margin
|
Applicable
Base
Rate
Margin
|
Applicable
Letter
of
Credit
Fee
Percentage
|
Applicable
Commitment
Fee
Percentage
|
||||
|
1
|
1.250%
|
0.000%
|
1.250%
|
0.300%
|
||||
|
2
|
1.625%
|
0.000%
|
1.625%
|
0.300%
|
||||
|
3
|
2.000%
|
0.250%
|
2.000%
|
0.375%
|
Except
as
expressly hereinafter provided, the applicable tier at any time shall be
determined with reference to the Borrower's Funded Indebtedness to EBITDA Ratio,
as follows:
Tier
Funded
Indebtedness to EBITDA Ratio
1 Less
than 1.50 to 1.00
2 Greater
than or equal to 1.50 to 1.00 but less than 2.25 to 1.00
3 Equal
to or greater than 2.25
From
the date hereof to but not
including the first Pricing Tier Determination Date occurring after
June 30, 2007, Tier 2 shall be applicable. Any adjustment
in the margins set forth above shall take effect on the first Pricing Tier
Determination Date following the Fiscal Quarter as of the end of which such
ratio was calculated; provided, however, that following any failure of
the Borrower to deliver to the Administrative Agent any of the financial
statements, financial reports, certificates or other financial information
required by Section 8.1.1 or Section 8.1.2 in a timely
manner and until such failure is cured or corrected, and without limitation
of
or prejudice to any other right or remedy of the Administrative Agent, the
Lenders or the Issuing Bank in respect of such failure, Tier 3 shall be
applicable.
-11-
11. Amendment
of Subsection 3.1.2.
(a) Subsection (b)(1)
of Section 3.1.2 of the Credit Agreement is hereby amended to read as
follows:
(1) The
Borrower may prepay Swingline Loans, in whole or in part, at any time and from
time to time. Except to the extent that repayment of Swingline Loans
is being administered through an automated cash management system mutually
approved in writing by the Borrower and the Administrative Agent, (A) the
Borrower shall give the Administrative Agent written notice (or telephonic
notice confirmed in writing) not later than 11:00 a.m. (Central time) on the
Business Day of any proposed prepayment of Base Rate Loans and not less than
three (3) Business Days' prior written notice (or telephonic notice confirmed
in
writing) with respect to any proposed prepayment of Eurodollar Loans (each
of
which notices the Administrative Agent will promptly transmit to each Lender
in
writing, or by telephone confirmed in writing), and (B) Swingline Loans
shall be prepaid in whole, or in part in integral multiples of
$100,000. Notwithstanding the foregoing, (A) Eurodollar Loans
may only be prepaid in part if, after such prepayment, the unpaid portion of
such Loans shall have aggregate minimum balances of $500,000, and (B) in
connection with any prepayment of Eurodollar Loans, the Borrower shall pay
to
the Administrative Agent, for distribution to the Lenders, the accrued interest
on such Eurodollar Loans required to be paid pursuant to
Section 3.1.1 and any amounts required to be paid pursuant to
Section 3.4.5.
(b) Subsections (c)(1)
through (c)(5) of Section 3.1.2 of the Credit Agreement are hereby amended
to read as follows:
(1) [Reserved.].
(2) The
Borrower shall prepay Loans as and to the extent necessary so that at no time
will (A) the aggregate principal amount of Swingline Loans outstanding
exceed the Swingline Commitment in effect at such time, (B) the aggregate
principal amount of Term Loans, Revolving Loans and Letter of Credit Liabilities
outstanding exceed the Commitments in effect at such time, and (C) any
applicable limits specified in Section 2.3.1,
Section 2.4.1, Section 2.4.2 or
Section 2.5.1 be exceeded. Any prepayments made by the
Borrower in respect of Term Loans pursuant to this paragraph (2)
shall be applied first to outstanding Term Loans that are Base Rate
Loans, to the full extent thereof, in inverse order of maturity, and next
to Term Loans that are Eurodollar Loans, to the full extent thereof, in inverse
order of maturity. Any prepayments made by the Borrower in respect of
Swingline Loans pursuant to this paragraph (2) shall be applied
first to outstanding Swingline Loans that are Base Rate Loans, to
the
full extent thereof, and next to outstanding Swingline Loans that are
Eurodollar Loans, to the full extent thereof. Any prepayments made by
the Borrower in respect of Revolving Loans pursuant to this
paragraph (2) shall be applied first to outstanding Revolving
Loans that are Base Rate Loans, to the full extent thereof, and next to
outstanding Revolving Loans that are Eurodollar Loans, to the full extent
thereof.
-12-
(3) If
on any date any Capital Stock shall be issued or Indebtedness shall be incurred
by the Borrower or any of the other Credit Parties other than pursuant to an
Excluded Prepayment Transaction, then an amount equal to 100% of the Net Cash
Proceeds thereof shall be applied on such date to the prepayment of outstanding
Term Loans to the full extent thereof and thereafter to the reduction of the
Swingline Commitment and the Revolving Credit Commitments and the repayment
of
outstanding Swingline Loans and Revolving Loans as set forth in
subsection 2.1.3.
(4) If
on any date the Borrower or any Guarantor shall receive Net Cash Proceeds from
any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall have
been delivered previously to the Administrative Agent in respect thereof, such
Net Cash Proceeds shall be applied on such date to the prepayment of outstanding
Term Loans to the full extent thereof and thereafter to the reduction of the
Swingline Commitment and the Revolving Credit Commitments and the repayment
of
Swingline Loans and Revolving Loans as set forth in
subsection 2.1.3; provided that on each Reinvestment
Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event shall be applied to the prepayment
of
outstanding Term Loans to the full extent thereof and thereafter to the
reduction of the Swingline Commitment and the Revolving Credit Commitments
and
the repayment of Swingline Loans and Revolving Loans as set forth in
subsection 2.1.3.
(5) Prepayments
of Loans pursuant to the preceding paragraphs (3) and (4)
shall be applied first to outstanding Term Loans that are Base Rate
Loans, to the full extent thereof, in inverse order of maturity, next to
outstanding Term Loans that are Eurodollar Loans, to the full extent thereof,
in
inverse order of maturity, next to outstanding Swingline Loans that are
Base Rate Loans, to the full extent thereof, next to outstanding
Swingline Loans that are Eurodollar Loans, to the full extent thereof,
next to outstanding Revolving Loans that are Base Rate Loans, to the full
extent thereof, and finally to outstanding Revolving Loans that are
Eurodollar Loans, to the full extent thereof.
-13-
12. Amendment
of Section 8.2. Section 8.2.7 of
the Credit Agreement is hereby renumbered as Section 8.2.9, and the
following new Sections 8.2.7 and 8.2.8 are hereby
inserted immediately prior thereto:
8.2.7. Asset
Acquisitions. Not later than thirty (30) days prior to the
consummation of any Asset Acquisition, notice of the pendency of such Asset
Acquisition, and not later than ten (10) Business Days prior to the consummation
of such Asset Acquisition, the following:
(a) a
reasonably detailed description of the operating profile for the assets to
be
acquired in such Asset Acquisition, and
(b) a
reasonably detailed description of the terms and conditions of such Asset
Acquisition, including the proposed purchase price and the manner and structure
of payment(s), accompanied by copies of the then-current drafts of the proposed
acquisition agreement(s), and
(c) copies
of financial statements for the Person owning the assets to be acquired or
in
which Capital Stock is being purchased in the transaction for the two (2) most
recent fiscal years, if available, and for any subsequent interim accounting
periods, if available, and
(d) a
certificate duly executed by a Responsible Officer of the Borrower, in form
satisfactory to the Administrative Agent, certifying that no Default has
occurred and is continuing or will result from such Asset Acquisition,
certifying that after giving Pro Forma Effect to such Asset Acquisition and
to
any other relevant transaction occurring during the then most recent
twelve (12) month period such Responsible Officer reasonably believes that
such Asset Acquisition will not result in a violation of any of the financial
covenants contained herein during the twelve (12) month period following
such Asset Acquisition, and setting forth computations demonstrating compliance
with all financial covenants contained herein as of the end of the Fiscal
Quarter then most recently completed, after giving Pro Forma Effect to such
Asset Acquisition and to any other relevant transaction occurring during the
then most recent twelve (12) month period.
8.2.8. Acquisition
Documents. Not later than fifteen (15) days after the
consummation of any Asset Acquisition, copies of the material executed documents
evidencing the transaction.
13. Amendment
of Section 8.21. Section 8.21 of the
Credit Agreement is hereby amended by deleting "Xxxxxxx X. Xxxxxxxx, Xx. – Vice
Chairman", and substituting in lieu thereof "X. Xxxxx Xxxxxx – Chief Executive
Officer".
14. Amendment
of Section 9.4. Section 9.4 of the
Credit Agreement is hereby amended by (a) deleting the word "and" at the
end of clause (i), (b) relettering clause (j) as clause (l),
and (c) inserting the following new clauses (j) and (k) immediately
prior to relettered clause (l):
-14-
(j) Investments
consisting of Permitted Acquisitions;
(k) Investments
consisting of amounts potentially due from a seller of assets in a Permitted
Acquisition that (i) relate to customary post-closing adjustments with
respect to accounts receivable, accounts payable and similar items typically
subject to post-closing adjustments in similar transactions, and (ii) at
the time made or incurred are reasonably expected to be outstanding for a period
of one hundred eighty (180) days or less following the closing of such Permitted
Acquisition;
15. Amendment
of Section 9.7. Section 9.7
of the Credit Agreement is hereby amended by (a) inserting the words "other
than a Permitted Acquisition" after the words "Asset Acquisition" in
clause (c), and (b) inserting the following new clause (1) as the
first clause of the proviso and relettering subsequent clauses
accordingly:
(1) notwithstanding
clause (a) of this Section 9.7, the merger,
consolidation or amalgamation of any Subsidiary of the Borrower with any other
Person as the method by which a Permitted Acquisition is accomplished shall
be
permitted, provided that either (A) the Borrower or such
Subsidiary is the surviving entity in the transaction, or (B) such Person
is the surviving entity in the transaction and has complied with the provisions
of Section 8.18 prior to or contemporaneously with the consummation
of the transaction;
16. Amendment
of Section 9.8. Section 9.8 of the
Credit Agreement is hereby amended to read as follows:
9.8 Capital
Expenditures. Make or commit to make Capital Expenditures in an
aggregate amount exceeding $5,000,000 in any Fiscal Year, excluding Capital
Expenditures fully reimbursed in cash by its customer (without any corresponding
obligation by the Borrower or any of its Subsidiaries) within sixty (60) days
of
the making of such Capital Expenditures.
17. Amendment
of
Section 10.1.1. Section 10.1.1
of the Credit Agreement is hereby amended to read as follows:
10.1.1. [Reserved.]
18. Amendment
of
Section 10.1.2. Section 10.1.2
of the Credit Agreement is hereby amended to read as follows:
10.1.2. [Reserved.]
-15-
19. 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 as
of the end of any Fiscal Quarter to be less than 1.25 to 1.00.
20. Amendment
of
Section 10.1.4. Section 10.1.4
of the Credit Agreement is hereby amended to read as follows:
10.1.4. Minimum
EBITDA. Permit EBITDA for each period indicated below, calculated
after giving Pro Forma Effect to any relevant transaction occurring during
such
period, to be less than the amount specified for such period:
|
Period
|
Minimum
EBITDA
|
|
January
1, 2007 – June 30, 2007
|
$
3,365,000
|
|
April
1, 2007 – September 30, 2007
|
3,400,000
|
|
April
1, 2007 – December 31, 2007
|
4,665,000
|
|
Last
Four Fiscal Quarters ending March 31, 2008
|
6,040,000
|
|
Last
Four Fiscal Quarters ending June 30, 2008
|
5,830,000
|
|
Last
Four Fiscal Quarters ending September 30, 2008
|
6,505,000
|
|
Last
Four Fiscal Quarters ending December 31, 2008
|
7,185,000
|
|
Last
Four Fiscal Quarters ending March 31, 2009
|
7,185,000
|
21. Amendment
of
Section 10.1.5. Section 10.1.5
of the Credit Agreement is hereby amended to read as follows:
10.1.5. Minimum
Net Worth. Permit Consolidated Net Worth as of the end of any
Fiscal Quarter ending on or after June 30, 2007 to be less than the sum of
(a) $61,296,000, plus (b) seventy-five percent (75%) of cumulative
Consolidated Net Income for each Fiscal Quarter beginning with the Fiscal
Quarter ending June 30, 2007, without reduction for any losses during any
Fiscal Quarter, plus (c) 100% of the Net Cash Proceeds of any Capital Stock
issued by the Borrower or any of the other Credit Parties (excluding Capital
Stock issued by a Credit Party other than the Borrower to any other Credit
Party) subsequent to June 30, 2007; provided, however, that the
calculations made pursuant to this Section 10.1.5 shall be adjusted
annually following receipt by the Administrative Agent of the financial
statements furnished pursuant to Section 8.1.1 in order to take into
account customary year-end adjustments to Consolidated Net Income consistent
with the foregoing.
22. 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;
-16-
(b) the
Borrower shall have executed and delivered to the Swingline Lender the Swingline
Note;
(c) each
of
the representations and warranties of the Borrower contained in
Section 23 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 22 shall have been satisfied; and
(d) the
Administrative Agent shall have received such documents, instruments,
certificates, opinions and approvals as it reasonably may have
requested.
23. 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, and taking into account the provisions 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,
(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, and (c) the representations and warranties set forth
in paragraphs (a), (d) and (e) of Section 7.5 of the Credit Agreement, as
to which no further representation or warranty is made herein.
24. 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.
(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.
-17-
(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.
25. 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.
26. 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.
27. 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, 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.
-18-
28. 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]
-19-
[Signature
Page to Eighth Amendment to Credit Agreement
(I-trax,
Inc.) dated June 29, 2007]
BORROWER:
I-TRAX,
INC.
By: /s/
Xxxxx X. Xxxxxx
Name:
_____________________________________
Title: Chairman
GUARANTORS:
I-TRAX
HEALTH MANAGEMENT SOLUTIONS, INC.,
a
Delaware corporation
By: /s/
Xxxxx X. Xxxxxx
Name:
_____________________________________
Title: Chairman
CONTINUUM
MANAGEMENT SOLUTIONS, LLC
(formerly
I-trax Health Management Solutions, LLC),
a
Delaware limited liability company
BY: I-TRAX,
INC., its sole member
By: /s/
Xxxxx X. Xxxxxx
Name:
________________________________
Title: Chairman
-20-
CHD
MERIDIAN HEALTHCARE, LLC,
a
Delaware limited liability company
BY: I-TRAX,
INC., its sole member
By: /s/
Xxxxx X. Xxxxxx
Name:
________________________________
Title: Chairman
AMERICAN
OCCUPATIONAL HEALTH MANAGEMENT, INC.,
a
Delaware corporation
By: /s/
Xxxxx X. Xxxxxx
Name:
_____________________________________
Title: Chairman
MEDICENTER,
INC.,
an
Oklahoma corporation
By: /s/
Xxxxx X. Xxxxxx
Name:
_____________________________________
Title: Chairman
MERIDIAN
COMP OF NEW YORK, INC.,
a
Delaware corporation
By: /s/
Xxxxx X. Xxxxxx
Name:
_____________________________________
Title: Chairman
CORPORATE
HEALTH DIMENSIONS, INC.
a
New
York corporation
By: /s/
Xxxxx X. Xxxxxx
Name:
_____________________________________
Title: Chairman
-21-
CHDM,
INC.
a
Delaware corporation
By: /s/
Xxxxx X. Xxxxxx
Name:
_____________________________________
Title: Chairman
CHDM,
LLC
an
Indiana limited liability company
By: /s/
Xxxxx X. Xxxxxx
Name:
_____________________________________
Title: Chairman
-22-
[Signature
Page to Eighth Amendment to Credit Agreement
(I-trax,
Inc.) dated June 29, 2007]
ADMINISTRATIVE
AGENT, LENDER, SWINGLINE LENDER AND ISSUING BANK:
BANK
OF
AMERICA, N.A.
By: /s/
H. Xxxx Xxxxxx
Name:
______________________________________
Title: Vice
President
-23-
