FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
October 27, 2004, 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, and a Third Amendment to Credit Agreement dated August 12, 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 convert the currently outstanding Term
Loans to Revolving Loans and to amend the Credit Agreement in certain respects,
all 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:
"EBITDA" shall mean, for the Borrower and its Subsidiaries on
a consolidated basis for any period, the sum of Consolidated Net Income
plus (a) the following, without duplication and to the extent deducted
in computing Consolidated Net Income:
(1) Interest Expense, (2) federal, state, local and foreign income,
value-added and similar tax expense, (3) depreciation, (4) amortization
of intangible assets and other non-cash charges, and (5) for
calculations of EBITDA as of any date of determination prior to January
1, 2005 only, Merger expenses equal to $2,770,000, less (b) any
non-cash items increasing Consolidated Net Income for such period
(except to the extent cash relating to such item has been received
after the date of this Agreement).
"Fixed Charge Coverage Ratio" shall mean, for the Borrower and
its Subsidiaries on a consolidated basis, calculated as of any date of
determination for the period hereinafter specified, the ratio of (a)
EBITDAR, less the Maintenance Capital Expenditure Adjustment, less
income, value-added and similar tax expenses paid in cash, to (b) the
sum of the portion of Interest Expense that was paid in cash or its
equivalent during such period, plus current maturities of term
Indebtedness, plus Rent Expense. For any date of determination through
and including September 30, 2004, the Fixed Charge Coverage Ratio shall
be calculated for the Fiscal Year to date and annualized; thereafter,
the Fixed Charge Coverage Ratio shall be calculated for the Last Four
Fiscal Quarters.
"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 period hereinafter specified, the
ratio of Consolidated Funded Indebtedness to EBITDA. For purposes of
calculating the Funded Indebtedness to EBITDA Ratio for any date of
determination from and including March 31, 2004 through and including
December 31, 2004, EBITDA shall be calculated for the Fiscal Year to
date and annualized; thereafter, EBITDA shall be calculated for the
Last Four Fiscal Quarters.
"Revolving Credit Maturity Date" shall mean April 1, 2007.
"Term Loan Commitments" - Not applicable.
"Term Loan Facility" - Not applicable.
"Term Loan Maturity Date" - Not applicable.
"Term Loans" - Not applicable.
"Term Notes" - Not applicable.
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 shall be
$14,000,000.
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(b) The aggregate amount of the Revolving Credit
Commitments at any time shall be $14,000,000 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 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. Amendment of Section 2.3.1.
(a) Clauses (d) and (e) of Section 2.3.1 of the Credit Agreement are
hereby amended to read as follows:
(d) on and after the date described in the preceding
clause (c) and prior to January 1, 2006, the aggregate
principal amount of the Loans that are outstanding at any time
shall not exceed the Credit Facility Base, and
(e) on and after January 1, 2006, 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.
(b) Section 2.3.1 of the Credit Agreement is hereby further amended
by deleting the following sentence currently appearing at the end
of such Section:
Notwithstanding the foregoing, or any other provision of this
Agreement that may be to the contrary, (i) the maximum
aggregate principal amount of Revolving Loans outstanding at
any time prior to September 1, 2004 shall not exceed
$2,000,000, (ii) the maximum aggregate principal amount of
Revolving Loans outstanding at any time prior to November 1,
2004 shall not exceed $2,500,000, and (iii) the maximum
aggregate principal amount of Revolving Loans outstanding on
November 1, 2004 and at any time thereafter shall not exceed
$2,500,000 unless (A) as of September 30, 2004, EBITDA for the
Last Three Fiscal Quarters was equal to or greater than
$2,623,000, and (B) the Administrative Agent and the Lenders
have received (1) the financial information required by
Section 8.1.2 for the Fiscal Quarter of the Borrower and its
Subsidiaries ending on September 30, 2004, (2) the financial
information required by Section 8.1.4 for September, 2004, and
(3) a certificate of a Responsible Officer of the Borrower
evidencing compliance with Section 10.1.5 as of October 31,
2004.
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4. Amendment of Section 3.1.2. Paragraph (c)(2) of Section 3.1.2 of the
Credit Agreement is hereby amended by deleting the following sentence currently
appearing at the end thereof:
Notwithstanding the foregoing, if and to the extent that the Borrower
issues or sells any Capital Stock on or prior to October 31, 2004
(other than pursuant to a transaction described in clause (4) of the
definition of "Excluded Prepayment Transaction"), such transaction in
no event shall constitute an Excluded Prepayment Transaction; however,
to the extent that the Net Cash Proceeds therefrom exceed the amount
necessary to prepay the Term Loans in full, the excess shall not reduce
the Revolving Credit Commitments as required by Section 2.1.3 and this
Subsection 3.1.2(c)(3).
5. Amendment of Section 8.1.3. Section 8.1.3 of the Credit Agreement is
hereby amended by adding the following language at the end of such section:
, together with unaudited consolidating balance sheets for the
Borrower's Onsite and HMS divisions as of the end of such month and the
related consolidating statements of income for such divisions for such
month, certified by a Responsible Officer of the Borrower.
6. Amendment of Section 8.1.4. Section 8.1.4 of the Credit Agreement is
hereby amended by (a) deleting the word and figure "ten (10)" where the same
appears in the second line and substituting in lieu thereof the word and figure
"fifteen (15)", and (b) deleting the following sentence currently appearing at
the end thereof:
The monthly financial information for October, 2004 furnished pursuant
to this Section shall include a certificate of a Responsible Officer of
the Borrower evidencing compliance with Section 10.1.5 as of October
31, 2004.
7. Amendment of Section 10.1.1. Section 10.1.1 of the Credit Agreement
is hereby amended to read as follows:
10.1.1. Funded Indebtedness to EBITDA Ratio. Permit the Funded
Indebtedness to EBITDA Ratio (a) as of the end of any Fiscal Quarter
ending prior to March 31, 2005 to be greater than 4.50 to 1.00, (b) as
of the end of any Fiscal Quarter ending on or after March 31, 2005 but
prior to September 30, 2005 to be greater than 4.00 to 1.00, (c) as of
the end of any Fiscal Quarter ending on or after September 30, 2005 but
prior to March 31, 2006 to be greater than 3.50 to 1.00, (d) as of the
end of any Fiscal Quarter ending on or after March 31, 2006 but prior
to September 30, 2006 to be greater than 3.00 to 1.00, (e) as of the
end of any Fiscal Quarter ending on or after September 30, 2006 but
prior to December 31, 2006 to be greater than 2.50 to 1.00, and (f) as
of the end of any Fiscal Quarter ending on or after December 31, 2006
to be greater than 2.00 to 1.00.
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8. 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 (a) as of the end of any Fiscal Quarter ending prior to
June 30, 2005 to be less than 1.10 to 1.00, (b) as of the end of any
Fiscal Quarter ending on or after June 30, 2005 but prior to December
31, 2005 to be less than 1.25 to 1.00, and (c) as of the end of any
Fiscal Quarter ending on or after December 31, 2005 to be less than
1.50 to 1.00.
9. Amendment of Section 10.1.4. Section 10.1.4 of the Credit Agreement
is hereby deleted, and the following is hereby substituted in lieu thereof:
10.1.4 [Reserved.]
10. 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 Shareholders' Equity. Permit Consolidated Net
Worth as of the end of any Fiscal Quarter ending on or after December
31, 2005 to be less than the sum of (a) an amount equal to ninety
percent (90%) of Consolidated Net Worth as of December 31, 2005, plus
(b) seventy-five percent (75%) of cumulative Consolidated Net Income
for each Fiscal Quarter beginning with the Fiscal Quarter ending March
31, 2006, 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 December 31, 2005; 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.
11. 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 an amount equal to six tenths of one percent (0.6%) of the aggregate amount
of the Commitments.
12. 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 to Bank of America
a warrant to purchase 100,000 shares of the Borrower's common
Capital Stock, such warrant to be in the form attached hereto as
Exhibit A (the "Warrant");
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(c) each of the representations and warranties of the Borrower
contained in Section 13 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 12 shall have been satisfied;
(d) the Borrower shall have paid the fees required by Section 11
hereof; and
(e) the Administrative Agent shall have received such documents,
instruments, certificates, opinions and approvals as it
reasonably may have requested.
13. 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.
14. 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 and the Warrant shall constitute Loan Documents 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
or the Warrant shall constitute an Event of Default.
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(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.
15. 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.
16. 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.
17. 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
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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. 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 Third Amendment to Credit Agreement
(I-trax, Inc.) dated October 27, 2004]
BORROWER:
I-TRAX, INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: S.V.P. & C.F.O
-------------------------------------
GUARANTORS:
I-TRAX HEALTH MANAGEMENT SOLUTIONS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: S.V.P. & C.F.O
-------------------------------------
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: S.V.P. & C.F.O
-------------------------------------
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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: S.V.P. & C.F.O
-------------------------------------
AMERICAN OCCUPATIONAL HEALTH MANAGEMENT, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: S.V.P. & C.F.O
-------------------------------------
MEDICENTER, INC.,
n Oklahoma corporation
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: S.V.P. & C.F.O
-------------------------------------
MERIDIAN COMP OF NEW YORK, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: S.V.P. & C.F.O
-------------------------------------
CORPORATE HEALTH DIMENSIONS, INC.
a New York corporation
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: S.V.P. & C.F.O
-------------------------------------
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CHDM, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: S.V.P. & C.F.O
-------------------------------------
CHDM, LLC
an Indiana limited liability company
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: S.V.P. & C.F.O
-------------------------------------
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[Signature Page to Third Amendment to Credit Agreement
(I-trax, Inc.) dated October 27, 2004]
ADMINISTRATIVE AGENT, LENDER AND ISSUING BANK:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxxx Xxxx
---------------------------------------
Name: Xxxxxxxxx Xxxx
-------------------------------------
Title: S.V.P.
-------------------------------------
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EXHIBIT A
[Form of Warrant]
