SIXTH AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER (this
"Amendment"), dated June 29, 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, a Fourth
Amendment to Credit Agreement dated October 27, 2004, and a 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 (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 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 shall be $15,000,000.
(b) The aggregate amount of the Revolving Credit Commitments at any
time shall be an amount equal to $15,000,000 less 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 shall be an amount 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.
2. Amendment of Section 2.3.1. Section 2.3.1 of the Credit Agreement is hereby
amended by inserting the word "and" at the end of clause (c), deleting clause
(e) and amending clause (d) to read as follows:
(d) the aggregate principal amount of the Loans and Letter of Credit
Liabilities that are outstanding at any time shall not exceed the Credit
Facility Base.
3. Amendment of Section 8.1.3. Section 8.1.3 of the Credit Agreement is hereby
amended to read as follows:
8.1.3. Monthly Financial Statements and Reports. Furnish to
the Administrative Agent and each Lender, as soon as available and in
any event within thirty (30) days after the end of each month, an
unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such month and the related consolidated
statement of income of the Borrower and its Subsidiaries for such
month, certified by a Responsible Officer of the Borrower.
4. Amendment of Section 10.1.4. Section 10.1.4 of the Credit Agreement is hereby
amended by deleting "[Reserved.]" and inserting in lieu thereof the following:
10.1.4. Minimum EBITDA. Permit EBITDA for each period
indicated below to be less than the amount specified for such period:
Period Minimum EBITDA
------ --------------
July 1, 2005 - September 30, 2005 $ 780,000
July 1, 2005 - December 31, 2005 1,560,000
July 1, 2005 - March 31, 2006 2,560,000
Last Four Fiscal Quarters ending June 30, 2006 3,580,000
Last Four Fiscal Quarters ending September 30, 2006 3,960,000
Last Four Fiscal Quarters ending December 31, 2006 4,450,000
5. Limited Waiver of Section 10.1.1. The Administrative Agent, the Issuing Bank
and the Lenders hereby waive compliance with the requirements of Section 10.1.1
of the Credit Agreement for the period beginning on April 1, 2005 and ending on
December 31, 2006.
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6. 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 one-half of one percent (0.5%) of the aggregate amount of the
Commitments in effect on and as of the date hereof.
7. Conditions to Effectiveness. This Amendment shall be effective only upon the
satisfaction of the following conditions:
(a) the Borrower, each of the Guarantors, the Administrative Agent, the
Issuing Bank and Requisite Lenders shall have executed and delivered a
counterpart of this Amendment;
(b) each of the representations and warranties of the Borrower
contained in Section 8 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 7 shall have been satisfied;
(c) the Borrower shall have paid the fees required by Section 6; and
(d) the Administrative Agent shall have received such documents,
instruments, certificates, opinions and approvals as it reasonably may have
requested.
8. 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.
9. 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
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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.
10. 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.
11. 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.
12. 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
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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.
13. 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".
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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 Sixth Amendment to Credit Agreement
(I-trax, Inc.) dated June 29, 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 Sixth Amendment to Credit Agreement
(I-trax, Inc.) dated June 29, 2005]
ADMINISTRATIVE AGENT, LENDER AND
ISSUING BANK:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
