AMENDMENT NO. 3 AND WAIVER TO CREDIT AGREEMENT
Exhibit 10.3.4
EXECUTION VERSION
AMENDMENT NO. 3 AND WAIVER TO CREDIT AGREEMENT
This AMENDMENT NO. 3 AND WAIVER TO CREDIT AGREEMENT (this “Amendment”) is made as of March 12, 2014 (the “Effective Date”), by and among CONNECTURE, INC. (the “Connecture”), DESTINATIONRX, Inc. (“DestinationRX” and together with Connecture, the “Borrowers”), the Lenders (as defined below) party hereto and Xxxxx Fargo Bank, National Association, as Agent for the Lenders (in such capacity, the “Agent”). Capitalized terms used in this Amendment (including the Recitals), to the extent not otherwise defined herein, shall have the same meaning as in the Credit Agreement.
RECITALS
WHEREAS, the Borrowers are party to that certain Credit Agreement, dated as of January 15, 2013 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among the Borrowers, the Agent and the lenders party thereto from time to time (the “Lenders”), pursuant to which the Lenders have made certain loans and financial accommodations available to the Borrowers;
WHEREAS, the Borrowers failed to comply with the covenants set forth in Section 7.01 of the Credit Agreement for the three month period ending on December 31, 2013 (the “Specified Noncompliance”);
WHEREAS, the Borrowers have requested that the Agent make certain amendments to the Credit Agreement and waive the Specified Noncompliance; and
WHEREAS, the Agent and the Lenders are willing to amend such terms and conditions of, and waive the Specified Noncompliance under, the Credit Agreement on the terms and conditions set forth herein.
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 agree as follows:
1. Amendment to Credit Agreement. Effective as of the Effective Date, the Credit Agreement shall be amended as follows:
(a). Schedule 1.1 of the Credit Agreement is hereby amended as follows:
| i. | the definition of “Maximum Revolver Amount” shall be amended by deleting “$5,000,000” and in lieu thereof inserting “$10,000,000.” |
(b). Section 2.1(d) of the Credit Agreement is hereby deleted in its entirety and in lieu thereof inserting the words “[intentionally omitted]”.
(c). Section 7 of the Credit Agreement is hereby amended as follows:
| i. | Section 7(a) shall be amended by deleting such subsection in its entirety and replacing it with the following in lieu thereof: |
(a) Fixed Charge Coverage Ratio. From and after January 1, 2015, have a Fixed Charge Coverage Ratio, measured on a quarter-end basis, of no less than 1.25:1.00.
| ii. | Section 7(b) shall be amended by deleting such subsection in its entirety and replacing it with the following in lieu thereof: |
(b) Total Leverage Ratio. From and after January 1, 2015, have a Total Leverage Ratio, measured on a quarter-end basis, of no greater than 2.25:1.00.
| iii. | Section 7(c) shall be amended by deleting such subsection in its entirety and replacing it with the following in lieu thereof: |
(c) Liquidity. From and after March 12, 2014, maintain Liquidity at all times in an amount no less $2,500,000.
| iv. | The following new Section 7(d) shall be added to the Credit Agreement as follows: |
(d) EBITDA. Achieve EBITDA, measured on a year-to-date basis, of at least the required amount set forth in the following table for the applicable period set forth opposite thereto:
| EBITDA | For the period beginning on January 1, 2014 and ending on: | |||
| ($ | 4,250,000 | ) | January 31, 2014 | |
| ($ | 6,750,000 | ) | February 28, 2014 | |
| ($ | 4,000,000 | ) | March 31, 2014 | |
| ($ | 3,300,000 | ) | April 30, 2014 | |
| ($ | 5,800,000 | ) | May 31, 2014 | |
| ($ | 3,200,000 | ) | June 30, 2014 | |
| ($ | 1,750,000 | ) | July 31, 2014 | |
| ($ | 1,550,000 | ) | August 31, 2014 | |
| $ | 2,400,000 | September 30, 2014 | ||
| $ | 1,950,000 | October 31, 2014 | ||
| $ | 2,000,000 | November 30, 2014 | ||
| $ | 6,900,000 | December 31, 2014 | ||
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2. Waiver.
(a) Pursuant to the request of the Borrowers and in reliance upon the representations and warranties of the Borrowers described herein, the Agent and the Lenders hereby waive the Specified Noncompliance and any Default or Event of Default that occurred (or would have otherwise occurred) as a direct result of the failure of the Loan Parties to comply with the covenants set forth in Section 7.01 of the Credit Agreement during the three month period ending on December 31, 2013.
(b) The waiver in this Section 2 shall be effective only in this specific instance and for the specific purpose set forth herein and does not allow for any other or further departure from the terms and conditions of the Financing Agreement or any other Loan Document, which terms and conditions shall continue in full force and effect.
3. Conditions Precedent to Effectiveness of this Amendment. This Amendment shall not become effective until all of the following conditions precedent shall have been satisfied in the sole discretion of Agent or waived by Agent:
(a) Agent shall have received this Amendment fully executed in a sufficient number of counterparts for distribution to all parties.
(b) Agent shall have received an amendment to the Intercreditor Agreement which shall provide for, among other things, an increase to the First Lien Cap (as such term is defined in the Intercreditor Agreement) on terms satisfactory to Agent.
(c) Agent shall have received an amendment to the Fee Letter on terms satisfactory to the Agent.
(d) The Borrowers shall have paid all reasonable out-of-pocket fees, costs and expenses incurred by the Agent in connection with this Amendment, including, without limitation, legal fees and expenses of counsel to the Agent.
(e) The representations and warranties set forth herein and in the Loan Documents (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) must be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any portion of any representation and warranty that is already qualified or modified by materiality in the text thereof).
(f) Agent shall have received all other documents and legal matters in connection with the transactions contemplated by this Amendment and such documents shall have been delivered or executed or recorded and shall be in form and substance satisfactory to Agent.
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4. Representations and Warranties. Each Borrower represents and warrants to Agent and the Lenders as follows:
(a) Authority. Each Borrower has the requisite corporate power and authority to execute and deliver this Amendment, and to perform its obligations hereunder and under the Loan Documents (as amended or modified hereby) to which it is a party. The execution, delivery and performance by each Borrower of this Amendment have been duly approved by all necessary corporate action, have received all necessary governmental approval, if any, and do not contravene any law or any contractual restriction binding on any Borrower. No other corporate proceedings are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and delivered by each Borrower. This Amendment and each Loan Document (as amended or modified hereby) is the legal, valid and binding obligation of each Borrower, enforceable against each Borrower in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally, and is in full force and effect.
(c) Representations and Warranties. The representations and warranties contained in each Loan Document (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any portion of any representation and warranty that is already qualified or modified by materiality in the text thereof) on and as of the date hereof as though made on and as of the date hereof.
(d) No Default. After giving effect to this Amendment, no event has occurred and is continuing that constitutes a Default or Event of Default.
5. Choice of Law. The validity of this Amendment, the construction, interpretation, and enforcement hereof, and the rights of the parties hereto with respect to all matters arising hereunder or related hereto shall be determined under, governed by, and construed in accordance with the laws of the State of New York.
6. Counterparts. This Amendment may be executed in any number of counterparts and by different parties and separate counterparts, each of which when so executed and delivered, shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile or other electronic method of transmission shall be effective as delivery of a manually executed counterpart of this Amendment.
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7. Reference to and Effect on the Loan Documents.
(a) 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”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified and amended hereby.
(b) Except as specifically set forth in this Amendment, the Credit Agreement and all other Loan Documents, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed and shall constitute the legal, valid, binding and enforceable obligations of each Borrower to Agent and Lenders without defense, offset, claim or contribution.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of Agent or any Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
8. Ratification. Each Borrower hereby restates, ratifies and reaffirms each and every term and condition set forth in the Credit Agreement, as amended hereby, and the Loan Documents effective as of the date hereof.
9. Estoppel. To induce Agent and Lenders to enter into this Amendment and to induce Agent and Lenders to continue to make advances to Borrowers under the Credit Agreement, each Borrower hereby acknowledges and agrees that, after giving effect to this Amendment, as of the date hereof, there exists no Default or Event of Default and no right of offset, defense, counterclaim or objection in favor of any Borrower as against Agent or any Lender with respect to the Obligations.
10. Integration. This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.
11. Severability. In case any provision in this Amendment shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Amendment and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
12. Release; Covenant Not to Xxx.
(a) Each of the Borrowers hereby absolutely and unconditionally releases and forever discharges Agent and the Lenders, and any and all participants, parent corporations, subsidiary corporations, affiliated corporations, insurers, indemnitors, successors and assigns thereof, together with all of the present and former directors, officers, agents and employees of any of the foregoing (each a “Released Party”), from any and all known claims, demands or causes of action of any kind, nature or description, whether arising in law or equity or upon contract or tort or under any state or federal law or otherwise, which such Borrower has had, now has or has made claim to have against any such person for or by reason of any act, omission, matter, cause or thing whatsoever arising from the beginning of time to and including the date of
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this Amendment, whether such claims, demands and causes of action are matured or unmatured; provided that, in each case, the foregoing release shall not apply to claims of fraud or willful misconduct. Each of the Borrowers understands, acknowledges and agrees that this release may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.
(b) Each of the Borrowers, on behalf of itself and its successors, assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably, covenants and agrees with and in favor of each Released Party above that it will not xxx (at law, in equity, in any regulatory proceeding or otherwise) any Released Party on the basis of any claim released, remised and discharged by any Borrower pursuant to the above release. If any Borrower or any of its successors, assigns or other legal representations violates the foregoing covenant, each Borrower, for itself and its successors, assigns and legal representatives, agrees to pay, in addition to such other damages as any Released Party may sustain as a result of such violation, all attorneys’ fees and costs incurred by such Released Party as a result of such violation.
13. Submission of Amendment. The submission of this Amendment to the parties or their agents or attorneys for review or signature does not constitute a commitment by Agent or any Lender to waive any of their respective rights and remedies under the Loan Documents, and this Amendment shall have no binding force or effect until all of the conditions to the effectiveness of this Amendment have been satisfied as set forth herein.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
| BORROWERS: | ||
| CONNECTURE, INC. | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | CFO | |
| DESTINATIONRX, INC. | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | CFO | |
AMENDMENT NO. 3 AND WAIVER TO CREDIT AGREEMENT
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| XXXXX FARGO BANK, NATIONAL ASSOCIATION | ||
| as Lender and as Agent | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Vice President | |
AMENDMENT NO. 3 AND WAIVER TO CREDIT AGREEMENT
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