FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
March 31, 2005, 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, and a
Fourth Amendment to Credit Agreement dated October 27, 2004, among the Borrower,
the Guarantors, the Lenders and Bank of America, as Administrative Agent and as
Issuing Bank (as the same heretofore has been or hereafter may be further
amended, restated, supplemented, extended, renewed, replaced or otherwise
modified from time to time, the "Credit Agreement"), the Lenders agreed to make
Loans to the Borrower and to purchase participations in Letters of Credit issued
for the account of the Borrower, and the Issuing Bank agreed to issue such
Letters of Credit, all as more specifically described in the Credit Agreement.
2. The parties hereto desire to amend the Credit Agreement in certain
respects as more particularly hereinafter set forth.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of all of which are hereby acknowledged, the parties
hereto agree as follows:
1. Amendment of Section 1.1. Section 1.1 of the Credit Agreement is hereby
amended by inserting the following new definitions in the appropriate locations
according to alphabetical order, or by amending and restating existing
definitions to read as indicated, as applicable:
"Fifth Amendment" shall mean the Fifth Amendment to Credit
Agreement dated March 31, 2005, among the Borrower, the Guarantors, the
Lenders and Bank of America, as Administrative Agent and as Issuing
Bank.
"Fifth Amendment Effective Date" shall mean the date on which
the conditions to the effectiveness of the Fifth Amendment, as set
forth in the Fifth Amendment, have been satisfied.
2. Amendment of Section 2.1.1. Section 2.1.1 of the Credit Agreement is hereby
amended to read as follows:
2.1.1. Amounts of Commitments. Subject to reduction as
provided herein:
(a) The aggregate amount of the Commitments at any
time shall be (i) $17,000,000 from the Fifth Amendment
Effective Date through and including Xxxxx 00, 0000, (xx)
$16,000,000 from April 30, 2005 through and including May 30,
2005, (iii) $15,000,000 from May 31, 2005 through and
including June 29, 2005, and (iv) $14,000,000 on June 30, 2005
and thereafter.
(b) The aggregate amount of the Revolving Credit
Commitments at any time shall be an amount equal to (i) (A)
$17,000,000 from the Fifth Amendment Effective Date through
and including Xxxxx 00, 0000, (X) $16,000,000 from April 30,
2005 through and including May 30, 2005, (C) $15,000,000 from
May 31, 2005 through and including June 29, 2005, and (D)
$14,000,000 on June 30, 2005 and thereafter, less (ii) the
aggregate amount of Letter of Credit Liabilities outstanding
at such time.
(c) The aggregate amount of the Letter of Credit
Commitments at any time is equal to the lesser of: (1) the
aggregate amount of the Revolving Credit Commitments in effect
at such time less the aggregate amount of Revolving Loans and
Swingline Loans outstanding at such time, and (2) $3,000,000.
3. Fees. In consideration of the agreements of the Lenders set forth herein, the
Borrower agrees to pay to the Administrative Agent, for distribution to the
Lenders pro rata in accordance with their respective Percentages, a fee in the
amount of $25,500.
4. Conditions to Effectiveness. This Amendment shall be effective only upon the
satisfaction of the following conditions:
(a) the Borrower, each of the Guarantors, the Administrative Agent, the
Issuing Bank and Requisite Lenders shall have executed and delivered a
counterpart of this Amendment;
(b) the Borrower shall have executed and delivered Revolving Notes in form
and substance satisfactory to the Administrative Agent, evidencing the
increased amount of the Revolving Commitments pursuant to this
Amendment;
(c) each of the representations and warranties of the Borrower contained in
Section 5 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
4 shall have been satisfied;
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(d) the Borrower shall have paid the fees required by Section 3 hereof; and
(e) the Administrative Agent shall have received such documents,
instruments, certificates, opinions and approvals as it reasonably may
have requested.
5. Representations and Warranties of the Borrower and the Guarantors. As an
inducement to the Lenders, the Issuing Bank and the Administrative Agent to
enter into this Amendment, the Borrower and the Guarantors hereby represent and
warrant that, on and as of the date hereof, the representations and warranties
contained in the Credit Agreement and the other Loan Documents are true and
correct in all material respects, except for (a) representations and warranties
that expressly relate to an earlier date, which remain true and correct as of
said earlier date, (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.
6. 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.
(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.
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7. 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.
8. 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.
9. 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.
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10. Miscellaneous.
(a) This Amendment shall be governed by, construed and enforced in
accordance with the laws of the State of Tennessee, without reference
to the conflicts or choice of law principles thereof.
(b) The headings in this Amendment and the usage herein of defined terms
are for convenience of reference only, and shall not be construed as
amplifying, limiting or otherwise affecting the substantive provisions
hereof.
(c) All references herein to the preamble, the recitals or sections,
paragraphs, subparagraphs, annexes or exhibits are to the preamble,
recitals, sections, paragraphs, subparagraphs, annexes and exhibits of
or to this Amendment unless otherwise specified. The words "hereof",
"herein" and "hereunder" and words of similar import, when used in this
Amendment, refer to this Amendment as a whole and not to any particular
provision of this Amendment.
(d) Any reference herein to any instrument, document or agreement, by
whatever terminology used, shall be deemed to include any and all
amendments, modifications, supplements, extensions, renewals,
substitutions and/or replacements thereof as the context may require.
(e) When used herein, (1) the singular shall include the plural, and vice
versa, and the use of the masculine, feminine or neuter gender shall
include all other genders, as appropriate, (2) "include", "includes"
and "including" shall be deemed to be followed by "without limitation"
regardless of whether such words or words of like import in fact follow
same, and (3) unless the context clearly indicates otherwise, the
disjunctive "or" shall include the conjunctive "and".
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the date first written above.
[Remainder of Page Intentionally Left Blank;
Signature Pages Follow]
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[Signature Page to Fifth Amendment to Credit Agreement
(I-trax, Inc.) dated March 31, 2005]
BORROWER:
I-TRAX, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
GUARANTORS:
I-TRAX HEALTH MANAGEMENT SOLUTIONS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
I-TRAX HEALTH MANAGEMENT SOLUTIONS, LLC,
a Delaware limited liability company
BY: I-TRAX, INC., its sole member
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
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CHD MERIDIAN HEALTHCARE, LLC,
a Delaware limited liability company
BY: I-TRAX, INC., its sole member
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
AMERICAN OCCUPATIONAL HEALTH MANAGEMENT, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
MEDICENTER, INC.,
an Oklahoma corporation
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
MERIDIAN COMP OF NEW YORK, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
CORPORATE HEALTH DIMENSIONS, INC.
a New York corporation
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
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CHDM, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
CHDM, LLC
an Indiana limited liability company
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
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[Signature Page to Fifth Amendment to Credit Agreement
(I-trax, Inc.) dated March 31, 2005]
ADMINISTRATIVE AGENT, LENDER AND ISSUING BANK:
BANK OF AMERICA, N.A.
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
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