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EXHIBIT 10.3
SECOND AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Second Amendment" or "Agreement") is entered into as of August 11, 2000 (the
"Effective Date"), by and between Xxxxxxxx.xxx, Inc. (f/k/a Medirisk, Inc.), a
Delaware corporation (the "Borrower"), and Bank of America, N.A. (f/k/a
NationsBank, N.A.) (the "Lender").
RECITALS
WHEREAS, the Borrower and the Lender are parties to that certain
Amended and Restated Credit Agreement dated as of June 29, 1998, as amended by
that certain First Amendment (the "First Amendment") to Amended and Restated
Credit Agreement dated as of May 12, 2000 (as the same may be further amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"); and
WHEREAS, as a result of the maturity of the Revolving Loans and
certain defaults under Sections 1.3 and 6.14 of the Credit Agreement occurring
on or before the Effective Date (the "Payment Defaults"), the Borrower and
Lender executed a Letter Agreement dated July 14, 2000 in which the Maturity
Date for the Revolving Loans was extended to July 28, 2000; and
WHEREAS, all Subsidiaries of Borrower have guaranteed full payment and
performance of all Obligations through the execution of Subsidiary Guaranties;
and
WHEREAS, the Borrower has requested, and the Lender has agreed,
subject to the terms and conditions contained herein, to waive the Payment
Defaults and to amend the Credit Agreement in order to, among other things,
further extend the Maturity Date as stated herein.
STATEMENT OF AGREEMENT
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 hereby agree as follows:
1. Definitions. All capitalized terms not defined herein shall
have the meanings ascribed thereto in the Credit Agreement (as amended by this
Second Amendment) and in the Loan Documents (as defined in the Credit
Agreement) except as otherwise defined or limited herein.
2. Amendment to Credit Agreement. With the consent of all the
signatories hereto, including without limitation each party to any of the
Security Documents, and subject to the satisfaction of all terms and conditions
of this Second Amendment, the Borrower and the Lender agree that, in compliance
with the terms of Section 8.12 of the Credit Agreement, the Credit Agreement is
hereby amended as follows:
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(a) Section 1.1 is amended in its entirety so that it reads as
follows:
Section 1.1 Extensions of Credit.
(a) Revolving Loans. The Borrower acknowledges
that as of the Effective Date, $27,190,000 is
outstanding under the Revolving Loans. If at any
time, the Revolving Loans exceed any applicable
limitation set forth in this Agreement, such
Revolving Loans shall nevertheless constitute
Obligations that are secured by, and the repayment
of which is guarantied by, as applicable, the
Security Documents and are entitled to all benefits
thereof. In no event, however, shall the Company
have the right to receive any Advances or Revolving
Loans from and after the Effective Date.
Notwithstanding anything contained in this Agreement
to the contrary, all Revolving Loans or other
Advances (other than amounts outstanding under the
Completion Fee Note) in an aggregate principal
amount in excess of the Revolving Loan Limit, shall
be payable ON DEMAND.
(b) LIBOR Advances. No LIBOR Advances shall be
made or remain outstanding after the Effective Date.
As of the Effective Date, all LIBOR Advances not
theretofore converted to Base Rate Advances shall be
deemed prepaid on the Effective Date and converted
to Base Rate Advances, and the Borrower shall pay to
the Lender such amounts to which the Lender may be
entitled under Section 1.8 in connection with such
prepayment. From and after the Effective Date, all
Revolving Loans, Advances and any Overadvances shall
constitute Base Rate Advances.
(b) A new Section 1.1A is hereby added to the Credit
Agreement immediately following Section 1.1, which shall read as
follows:
Section 1.1A. Completion Fee Obligations. The
Borrower hereby acknowledges and reaffirms its obligation
under Section 22 of the First Amendment to pay to the Lender
a fee (the "Completion Fee") in the amount of $1,250,000,
which Completion Fee has been fully earned and is
nonrefundable, and, but for the provisions of this Section
1.1A, is due and payable in full as of the date hereof . The
parties hereto agree that, subject to the terms and
conditions of this Second Amendment, payment of the entire
amount of the Completion Fee shall be deferred as a loan to
the Borrower, made as of the Effective Date, in the principal
amount of $1,250,000, which loan shall bear interest as
provided in Section 1.3, shall be evidenced by the Completion
Fee Note, and shall be payable in full, together with all
accrued and unpaid interest thereon, on the Maturity Date.
For all purposes of each of the Loan Documents, the
Completion Fee Note shall constitute a Loan Document, the
obligations evidenced by the Completion Fee Note or otherwise
arising under this Section 1.1A shall constitute additional
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Obligations, and all such Obligations shall be secured or
guaranteed, as applicable, by the Security Documents and
shall be entitled to the benefits thereof.
(c) Section 1.2 of the Credit Agreement, Revolving Loan
Borrowing Mechanics and Disbursement, is hereby modified and amended
by deleting such section in its entirety and by substituting the
following in lieu thereof:
Section 1.2 [Intentionally Omitted]
(d) Section 1.3 of the Credit Agreement, Interest, is
hereby modified and amended by deleting such section in its entirety
and by substituting the following in lieu thereof:
Section 1.3 Interest. Interest shall be payable
as follows:
(a) Calculation. Interest on all
Revolving Loans, Advances, Overadvances and Completion Fee
Outstandings shall be computed for the actual number of days
elapsed on the basis of a hypothetical year of 360 days and,
subject to the provisions of Sections 1.5 and 1.5A hereof,
shall be payable on the Maturity Date; provided, however,
that interest on Overadvances shall be payable ON DEMAND. For
all periods prior to the Effective Date, interest shall
accrue at the rate or rates provided therefor under the
Credit Agreement as in effect immediately prior to giving
effect to the Second Amendment. From and after the Effective
Date, interest shall accrue and be payable on all Revolving
Loans, Advances, Overadvances and Completion Fee Outstandings
at the simple per annum interest rate equal to the sum of (A)
the Base Rate, plus (B) the Applicable Interest Rate Margin.
(b) Upon Default. Upon the occurrence
of an Event of Default, interest on the outstanding
Obligations shall accrue at the Default Rate from the date of
such Event of Default. Interest accruing at the Default Rate
shall be payable on demand and in any event on the Maturity
Date and shall accrue until the earliest to occur of (i)
waiver in writing by the Lender of the applicable Event of
Default, (ii) agreement by the Lender to rescind the charging
of interest at the Default Rate or (iii) payment in full of
the Obligations. The Lender shall not be required to (i)
accelerate the maturity of the Loans or (ii) exercise any
rights or remedies under the Loan Documents in order to
charge interest hereunder at the Default Rate.
(e) Section 1.4 of the Credit Agreement , Fees, is hereby
modified and amended by deleting such section in its entirety and by
substituting the following in lieu thereof:
Section 1.4 Fees.
(a) Commitment Fee. The Borrower shall
pay to the Lender a commitment fee of $271,900 (the
"Commitment Fee") which Commitment Fee is
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due and owing and fully earned as of the Effective Date and
payable at the Maturity Date or on demand upon an Event of
Default under the Credit Agreement. The Commitment Fee shall
constitute an Obligation for all purposes under the Credit
Agreement and shall be non-refundable when paid.
(b) Usage Fee. The Borrower shall pay
to the Lender, on or before the fifth (5th) day of each
month, a usage fee equal to 1/4 of 1% on a per annum basis of
the outstanding principal balance of the Revolving Loans,
including Overadvances on the last Business Day of the
preceding month (the "Usage Fee"). The Usage Fee shall
constitute an Obligation for all purposes under the Credit
Agreement and shall be fully earned when due and
non-refundable when paid. The Usage Fee shall be computed on
the basis of a year of 360 days and calculated for actual
days elapsed.
(f) Amendment to Section 1.5. Section 1.5 of the Credit
Agreement, Repayment and Prepayment, is hereby modified and amended by
deleting such section in its entirety and by substituting the
following in lieu thereof:
Section 1.5 Repayment and Prepayment.
(a) Prepayment. The principal amount of the
Loans may be prepaid in full or in part at
any time, upon written notice to the Lender
on the date of such prepayment; provided
that (x) all prepayments of principal shall
be applied: First, to Overadvances; Second,
to Revolving Loans, and Third, to
Completion Fee Outstandings, and (y)
notwithstanding any payment tendered as a
prepayment under this Section 1.5, in the
event there shall be outstanding at the
time of such tender any fees, costs or
expenses owing to or for the account of the
Lender, or any accrued and unpaid interest
on any Loans (other than the Completion Fee
Loan and the Commitment Fee), then the
amount tendered shall be applied to pay
such items prior to application to any
Loans as a prepayment thereof.
(b) Repayment. Subject to the provisions of
Sections 1.5A and 7.2, the entire principal
balance of all Loans shall be due and
payable in full on the Maturity Date;
provided, however, Overadvances shall be
payable ON DEMAND.
(c) Interim Payments. On the first day of each
calendar month during the term of this
Agreement, Borrower shall pay Lender
$150,000 to be applied to the payment of:
First, all accrued and unpaid fees, costs
and expenses owing to or for the account of
the Lender (excluding any amounts
constituting Completion Fee Outstandings or
the Commitment Fee); Second, all accrued
and unpaid interest on all Revolving Loans
(including Overadvances); and Third, the
Overadvances.
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(g) Section 1.5A. A new Section 1.5A is hereby added
immediately following Section 1.5, which shall read as follows:
Section 1.5A. Additional Mandatory Payments.
Immediately upon receipt of any Net Proceeds arising from the
occurrence of any Liquidity Event, the Borrower shall apply
one hundred percent (100%) of such Net Proceeds to the
payment of: First, all accrued and unpaid fees, costs and
expenses owing to or for the account of the Lender (excluding
any amounts constituting Completion Fee Outstandings or the
Commitment Fee); Second, all accrued and unpaid interest on
all Revolving Loans (including Overadvances); and Third, the
Overadvances; provided that in the event all of the foregoing
items shall have been paid in full as of such date and there
shall remain any balance of such Net Proceeds, then the
Borrower may retain any such balance. The Borrower shall give
the Lender not less than five (5) Business Days prior written
notice of any Liquidity Event, which notice shall include a
description in reasonable detail of the nature and terms of
such Liquidity Event and a preliminary calculation of the
proceeds and the Net Proceeds to result therefrom. Each
payment required to be made under this Section 1.5A shall be
accompanied by a certificate of the chief financial officer
of the Borrower setting forth in reasonable detail
computations of Net Proceeds and the application thereof as
herein provided.
(h) Amendment to Section 1.6. Section 1.6 of the Credit
Agreement, Notes and Loan Accounts, is hereby modified and amended by
deleting the section in its entirety and by substituting the following
in lieu thereof:
Section 1.6. Notes and Loan Accounts.
(a) The Revolving Loans shall be
payable in accordance with the terms and provisions
of this Agreement and shall be evidenced by the
Revolving Note. The Completion Fee Loan shall be
payable in accordance with the provisions of this
Agreement and shall be evidenced by the Completion
Fee Note. The Revolving Note and Completion Fee Note
shall be issued by the Company to the Lender and
shall be duly executed and delivered by the
Authorized Signatories.
(b) The Lender shall open and maintain
on its books in the name of the Company loan
accounts with respect to the Revolving Loans and
Completion Fee Loan and interest thereon. The Lender
shall debit such loan account for the principal
amount outstanding and accrued interest thereon, and
shall credit each such loan account for each payment
on account of principal of or interest on the
Revolving Loans and Completion Fee Loan. The records
of the Lender with respect to the loan accounts
shall be prima facie evidence of the Revolving Loans
and Completion Fee Loan and accrued interest thereon
but the failure to maintain such records shall not
impair the obligation of the Company to repay
Indebtedness hereunder.
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(i) Amendment to Section 2.2. Section 2.2 of the Credit
Agreement, Conditions Precedent to Each Advance Subsequent to the
Agreement Date, is hereby modified and amended by deleting the section
in its entirety and by substituting the following in lieu thereof:
Section 2.2 Advances. No Advances shall be
permitted from and after the Effective Date. The Lender may,
in its sole and absolute discretion, elect to make additional
Advances upon the request of the Borrower.
(j) Amendment to Section 3.1(h). Section 3.1(h) of the
Credit Agreement, Title to Properties, is hereby modified and amended
by inserting "and the URL Domain Names" on line 3 within the
parenthetical after the word Accounts.
(k) Amendment to Section 3.1(y). Section 3.1(y) of the
Credit Agreement, Year 2000, is hereby modified and amended by
deleting such subsection in its entirety.
(l) Amendment to Article 5. The preamble to Article 5
under Information Covenants shall be amended to delete "or the Lender
has any obligation to make Advances hereunder," from the first
sentence.
(m) Amendment to Section 5.4. Section 5.4 of the Credit
Agreement, Copies of Other Reports, is hereby modified and amended by
deleting the existing subsection (7) and by substituting the following
in lieu thereof and by adding the following new subsections (8) and
(9) thereto:
"(7) On:
(a) Thursday, August 24, 2000 a
one-time report setting forth for both the
consolidated Company and each of its business lines
actual cash receipts and cash disbursements for the
thirteen (13) week period ending on August 18, 2000;
(b) each Thursday, beginning August 24,
2000 and continuing each Thursday thereafter, a
report (the "Projections Report") setting forth for
both the consolidated Company and each of its
business lines projected cash receipts and cash
disbursements for both (i) each of the immediately
succeeding thirteen (13) weeks beginning from the
Friday preceding the Projections Report and (ii) the
immediately-succeeding thirteen-week period as a
whole;
(c) each Thursday, beginning August 31,
2000, and continuing each Friday thereafter, a
report for the week ending on the prior Friday,
setting forth for both the consolidated Company and
each of its business lines actual cash receipts and
cash disbursements for the prior week and for the
cumulative period from August 21, 2000, to said
prior Friday, showing variances from the Projections
Report for the prior week and the cumulative period
from August 21, 2000 to said prior Friday;
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(d) each Thursday, beginning August 24,
2000, and continuing each Thursday thereafter, a
report setting forth for the consolidated Company
actual cash receipts and cash disbursements for the
four-week period ending on the prior Friday;
(e) a weekly basis, any other
calculations, reports or information relating to the
Company's financial performance requested by the
Lender."
"(8) On a monthly basis, delivered no later than
the 15th day of the next succeeding month, a detailed and
aged accounts payable and accounts receivable report in a
form satisfactory to the Lender."
"(9) Copies of any and all offering memorandum
for the Company or any of its Subsidiaries or prepared in
conjunction with any Liquidity Event."
(n) Amendment to Section 6.1. Section 6.1 of the Credit
Agreement, Indebtedness, is hereby modified and amended by deleting
subsections 6.1(c) and 6.1(e) in their entirety and redesignating
Sections 6.1(d), 6.1(f) and 6.1(g) as Sections 6.1(c), 6.1(d) and
6.1(e) respectively, deleting the figure $2,150,000 from the second
line of redesignated Section 6.1(e) and substituting in lieu thereof
$1,000,000, and by adding Section 6.1(f), which shall read as follows:
"Other Indebtedness incurred in connection with a Debt Offering,
provided that the proceeds thereof shall be applied as required in
Section 1.5A."
(o) Amendment to Section 6.5. Section 6.5 of the Credit
Agreement, Investments, is hereby modified and amended by deleting the
phrase "Except for the making of Required Investments with the
proceeds of Indebtedness of the type described in Section 6.1(f)
hereof or from the issuance of additional equity interests in the
Company, the" and replacing such phrase with "The".
(p) Amendment to Section 6.6. Section 6.6 of the Credit
Agreement, Liquidation, Disposition or Acquisition of Assets, is
hereby modified and amended by (a) deleting the phrase "Except in
connection with a Permitted Take-out Transaction" and replacing such
phrase with "Except in connection with a Permitted Take-out
Transaction, an Asset Disposition (provided that the proceeds thereof
shall be applied as provided in Section 1.5A) or as otherwise approved
in writing by the Bank in its sole discretion" and (b) by deleting the
phrase "$30,000 during the period from the First Amendment Date" on
line 5 of 6.6(b) and replacing it with "$30,000 during the period from
the Effective Date".
(q) Amendment to Section 6.9. Section 6.9 of the Credit
Agreement, Debt/Capitalization Ratio, is hereby modified and amended
by deleting such section in its entirety and by substituting the
following in lieu thereof:
[Intentionally Omitted]
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(r) Amendment to Section 6.10. Section 6.10 of the Credit
Agreement, Cash Flow Leverage Ratio, is hereby modified and amended by
deleting such section in its entirety and by substituting the
following in lieu thereof:
[Intentionally Omitted]
(s) Amendment to Section 6.11. Section 6.11 of the Credit
Agreement, Debt Service Coverage Ratio, is hereby modified and amended
by deleting such section in its entirety and by substituting the
following in lieu thereof:
[Intentionally Omitted]
(t) Amendment to Section 6.13. Section 6.13 of the Credit
Agreement, Minimum Net Worth, is hereby modified and amended by
deleting such section in its entirety and by substituting the
following in lieu thereof:
[Intentionally Omitted]
(u) Amendment to Article 6.14. Section 6.14 of the Credit
Agreement, Cash Receipts, is hereby modified and amended by deleting
the existing Section 6.14 and by substituting the following in lieu
thereof:
"Section 6.14 Cash Receipts and Disbursements.
(a) Cash Receipts. The
Company shall not permit cash
receipts for any period of four (4)
consecutive weeks ending each
Friday during the period from the
Effective Date through the Maturity
Date (as set forth on the weekly
report to be delivered to the
Lender pursuant to Section 5.4(7)
hereof) to be less than
$1,440,000.00.
(b) Cash Disbursements.
The Company shall not permit cash
disbursements (exclusive of (i) the
required fees paid under Section
1.4 hereof; (ii) required interim
payments made under Section 1.5(c)
hereof; and (iii) any prepayments
of the Revolving Loans under
Section 1.5(a) hereof) for any
period of four (4) consecutive
weeks ending each Friday during the
period from the Effective Date
through the Maturity Date (as set
forth on the weekly report to be
delivered to the Lender pursuant to
Section 5.4(7) hereof) to be more
than $2,300,000.
(v) Amendment to Section 6.15. Section 6.15 of the Credit
Agreement, Negative Covenants, is hereby modified and amended by
adding the following new Section 6.15 at the end thereof:
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"Section 6.15 Salaries, Dividends and Bonuses. The
Company shall not increase the aggregate monthly
payroll above $1,300,000, nor make Restricted
Payments to the stockholders of the Company prior to
the Maturity Date."
(w) Amendment to Section 7.2. Section 7.2 of the Credit
Agreement, Remedies, is hereby modified and amended by deleting
subsection (a) in its entirety and renumbering existing subsections
(b), (c) and (d) as (a), (b) and (c), respectively.
(x) Section 8.1 Notices. Section 8.1 of the Credit
Agreement is hereby modified and amended by deleting "(1)" at the
beginning of the first paragraph and substituting "(a)" in lieu
thereof and by deleting Sections 8.1(a)(i) and (ii) in their entirety
and substituting in lieu thereof the following:
(i) If to the Company, to it at:
Two Piedmont Center, Suite 400
3565 Piedmont Road, N.E.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Chief Financial Officer
Fax: (000) 000-0000
with a copy, except for routine billing and
administrative notices (which shall not
constitute notice) to:
X. Xxxx Xxxxxxx, Esq.
Xxxxxxxxxx Xxxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Fax: (000) 000-0000
(ii) If to the Lender, to it at:
Bank of America, N.A.
000 X. Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Vice President
Fax: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Xxxxx X. Xxxxxx, Esq.
Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Fax: (000) 000-0000
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(y) Amendments to Article 10.
(i) Article 10 of the Credit Agreement,
Definitions, is hereby modified and amended by adding the
following definitions in appropriate alphabetical order:
"Asset Disposition" means any voluntary
disposition, whether by sale, lease or transfer, of
(a) any of the assets (excluding cash and cash
equivalents utilized in the ordinary course of the
operations of the Borrower and its Subsidiaries in
compliance with the Loan Documents), of the Borrower
or its Subsidiaries, or (b) any of the capital
stock, or securities or investments exchangeable,
exercisable or convertible for or into, or otherwise
entitling the holder to receive any of the capital
stock, of any Subsidiary or any Investment Target
(other than a disposition to the Borrower or a
Guarantor), provided, however, there shall be
excluded (i) the disposition of obsolete, worn out
or outdated equipment to the extent that the
proceeds thereof are applied promptly to the
replacement thereof with equipment having equal or
greater value or utility and (ii) proceeds of
insurance resulting from damage, theft or
destruction of any asset to the extent that the
proceeds thereof are applied to the repair or
replacement, as applicable, of those assets so
damaged, lost or destroyed.
"Completion Fee Loan" means the loan made
to the Borrower pursuant to Section 1.1A.
"Completion Fee Note" means the promissory
note of the Borrower payable to the order of the
Lender in the form of Exhibit D attached hereto,
which shall evidence the Borrower's obligation to
pay Completion Fee Outstandings and interest thereon
as herein and therein provided.
"Completion Fee Outstandings" means, at any
date, the aggregate principal amount outstanding
under Section 1.1A hereof.
"Debt Offering" means the incurrence of any
Indebtedness (including the issuance of any security
exchangeable or convertible into Indebtedness) of
the Borrower or any Subsidiary in connection with a
public offering or private placement, which
Indebtedness shall be issued on terms, including
without limitation terms pertaining to operating or
financial covenants, security or subordination, as
shall be in all respects acceptable to the Lender in
its sole and absolute discretion and shall have been
approved by the Lender prior to the creation or
issuance thereof.
"Effective Date" shall mean August 11,
2000, the date of execution of the Second Amendment.
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"Equity Offering" means a public or private
sale by the Borrower or any Subsidiary of equity
securities (including, without limitation, any
security or investment not constituting Indebtedness
exchangeable, exercisable or convertible for or
into, or otherwise entitling the holder to receive,
equity securities) of the Borrower or any Subsidiary
to any Person other than the Borrower or any
Subsidiary, including, without limitation, the sale
of equity securities pursuant to the Master Facility
Agreement between the Borrower and Fusion Capital
Fund II, LLC dated as of July 5, 2000 and by the
Equity Purchase Agreements (as defined in said
Master Facility Agreement, in the respective forms
of such documents as filed on Form 8-K with the
Securities and Exchange Commission on July 7, 2000).
"Internet Property Rights" shall mean all
of Borrower's and any of the Subsidiaries' right,
title and interest in and to all internet domain
names and registration rights relating thereto, all
internet websites and all contents thereof, whether
now existing or hereafter created or acquired and
wheresoever located.
"Liquidity Event" means any Debt Offering,
any Equity Offering, or any Asset Disposition
"Loans" means, collectively, the Revolving
Loans (including any Overadvances) and the
Completion Fee Loan
"Net Proceeds" (a) from any Equity Offering
or any Debt Offering means cash payments received by
the Borrower or any Subsidiary therefrom as and when
received, net of all legal, accounting, banking and
underwriting fees and expenses, commissions,
discounts and other issuance expenses incurred in
connection therewith and all taxes required to be
paid or accrued as a consequence of such issuance;
and (b) from any Asset Disposition means cash
payments received by the Borrower or any Subsidiary
therefrom (including any cash payments received
pursuant to any note or other debt security received
in connection with any Asset Disposition) as and
when received, net of (i) all legal fees and
expenses and other fees and expenses paid to third
parties and incurred in connection therewith, (ii)
all taxes required to be paid or accrued as a
consequence of such disposition, and (iii) all
amounts applied to repayment of Indebtedness (other
than the Obligations) secured by a Lien permitted
hereunder on the asset or property disposed of.
"Overadvances" means, as of any date, the
aggregate principal amount of Revolving Loans or
Advances outstanding on such date (other than
Completion Fee Note Outstandings) in excess of the
Revolving Loan Limit on such date.
"Revolving Loan Limit" means, as of any
date, $27,190,000 minus the aggregate amount of
payments or prepayments applied after the
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Effective Date to repay the principal amount of
Revolving Loans not constituting Overadvances.
"Second Amendment" shall mean that Second
Amendment to Amended and Restated Credit Agreement
and Security Agreement dated as of the Effective
Date between the Company and the Lender.
"URL Domain Names" shall mean all Uniform
Reference Locator Domain Names registered in the
name of Borrower or any of the Subsidiaries as set
forth in Schedule 11.
(ii) Article 10 of the Credit Agreement,
Definitions, is hereby further modified and amended by
deleting the definitions of "Acceptable Counterparty,"
"Approved Contract," "Commitment," "New Commitment" and
"Current Outstandings" in their entirety.
(iii) Article 10 of the Credit Agreement,
Definitions, is hereby further modified and amended by
deleting the existing definitions of "Applicable Interest
Rate Margin," "Current Outstandings," "Default Rate,"
"Maturity Date" and "Revolving Loans" in their entirety and
by substituting the following in lieu thereof:
"Applicable Interest Rate Margin" means
1.00% (100 basis points).
"Default Rate" means the Base Rate plus
3.00% (300 basis points).
"Maturity Date" shall mean January 15,
2001.
"Revolving Loans" shall mean, collectively,
the amounts advanced by the Lender to the Company
prior to the Effective Date under this Agreement,
plus any Overadvance.
(iv) Article 10 of the Credit Agreement,
Definitions, is hereby further modified and amended by
supplementing the existing definition of "Permitted Liens" by
adding the following subparagraph (m) thereto:
"(m) Liens incurred in connection with a
Debt Offering."
(z) Amendments to Schedules to the Credit Agreement.
(i) Schedule 3.1(c) to the Credit Agreement,
Subsidiaries, is hereby modified and amended by deleting the
existing schedule in its entirety and by substituting
Schedule 3.1(c) attached hereto in lieu thereof.
(ii) Schedule 3.1(d) to the Credit Agreement,
Capital Stock, is hereby modified and amended by deleting the
existing schedule in its entirety and by substituting
Schedule 3.1(d) attached hereto in lieu thereof.
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(iii) Schedule 3.1(f) to the Credit Agreement,
Real Property, is hereby modified and amended by deleting the
existing schedule in its entirety and by substituting
Schedule 3.1(f) attached hereto in lieu thereof.
(iv) Schedule 3.1(k) to the Credit Agreement,
Material Adverse Effects, is hereby modified and amended by
deleting the existing schedule in its entirety and by
substituting Schedule 3.1(k) attached hereto in lieu thereof.
(v) Schedule 3.1(1) to the Credit Agreement,
Litigation, is hereby modified and amended by deleting the
existing schedule in its entirety and by substituting
Schedule 3.1(1) attached hereto in lieu thereof.
(vi) Schedule 3.1(p) to the Credit Agreement,
Material Customer Contracts, is hereby modified and amended
by deleting the existing schedule in its entirety and by
substituting Schedule 3.1(p) attached hereto in lieu thereof.
(vii) Schedule 3.1(t) to the Credit Agreement,
Name Changes, is hereby modified and amended by deleting the
existing schedule in its entirety and by substituting
Schedule 3.1(t) attached hereto in lieu thereof.
(viii) Schedule 3.1(v) to the Credit Agreement,
Intellectual Property, is hereby modified and amended by
deleting the existing schedule in its entirety and by
substituting Schedule 3.1(v) attached hereto in lieu thereof.
(ix) The Credit Agreement is hereby modified and
amended to add Schedule 11 attached hereto, URL Domain Names,
as Schedule 11 thereto.
3. Amendment to Security Agreement, Subsidiary Security
Agreement, and Trademark Security Agreement. With the consent of all parties
hereto, and subject to the satisfaction of all the terms and conditions of this
Second Amendment, Borrower and all Subsidiaries agree to execute a Second
Amendment to Security Agreement, Second Amendment to Subsidiary Security
Agreement and First Amendment to Trademark Security Agreement (collectively,
and together with this Agreement (including the Consent affixed hereto) and the
Completion Fee Note, the "Second Amendment Documents") both in forms
satisfactory to the Lender.
4. Waiver. Subject to the satisfaction by the Borrower of the
Conditions set forth in Section 10 below, the Lender hereby waives (a) the
Payment Defaults, (b) any Default which may have occurred prior to the
Effective Date as a result of the Borrower's failure to deliver on a timely
basis all documentation required to be delivered to the Lender pursuant to
Section 4.9 of the Credit Agreement, (c) any Default which may have occurred
prior to the Effective Date under Sections 3.1, 5.5, and 6.6 of the Credit
Agreement as a result of the Borrower's acquisition of an equity interest in
Provider Solutions Corp., and (d) any Default which may have occurred prior to
the Effective Date under Sections 1.3 and 6.14 of the Credit Agreement. The
waivers contained in the foregoing sentence shall not waive any other
requirement or hinder, restrict or
14
otherwise modify the rights and remedies of the Lender following the occurrence
of any other Default or Event of Default under the Credit Agreement or arising
after the Effective Date.
5. No Other Amendments, Waivers or Consents. Except for the
amendments and waivers set forth above and in the other Second Amendment
Documents, the text of the Credit Agreement and the other Loan Documents shall
remain unchanged and in full force and effect, and the Lender hereby reserves
the right to require strict compliance with the terms of the Credit Agreement
and the other Loan Documents as so modified, including, without limitation, all
terms applicable to Subsidiaries of the Borrower, in the future.
6. Reaffirmation of Duties and Obligations. In consideration of
the amendments and waivers contained herein, the Borrower and (by their consent
hereto) the Subsidiaries hereby acknowledge and reaffirm (a) their joint and
several liability to pay the aggregate principal amount of the Revolving Loans
outstanding as of the Effective Date of $27,190,000 (plus all accrued interest,
fees and expenses which shall not have been charged against the loan account on
or before the Effective Date), (b) their joint and several liability to pay the
aggregate principal amount of the Completion Fee Note as of the Effective Date
of $1,250,000 and (c) the accuracy of the covenants and agreements made by the
Borrower in favor of the Lender set forth in the Credit Agreement and the other
Loan Documents.
7. Release. In order to induce the Lender to execute, deliver and
perform this Amendment, the Borrower represents and warrants that there are no
claims, causes of action, suits, debts, obligations, liabilities, demands of
any kind, character or nature whatsoever, fixed or contingent, which the
Borrower or the Subsidiaries may have, or claim to have, against the Lender,
and the Borrower and (by their consent hereto) the Subsidiaries hereby release,
acquit and forever discharge the Lender and its agents, employees, officers,
directors, servants, representatives, attorneys, affiliates, successors and
assigns (collectively, the "Released Parties") from any and all liabilities,
claims, suits, debts, causes of action and the like of any kind, character or
nature whatsoever, known or unknown, fixed or contingent that such Person may
have, or claim to have, against each of the such Released Parties from the
beginning of time until and through the dates of execution and delivery of this
Amendment.
8. Restructuring Consultant. The Borrower hereby agrees that,
notwithstanding that no Default or Event of Default may have occurred and be
continuing, the Lender shall have the right, in its sole, absolute and
unconditional discretion, at any time during the term of the Credit Agreement
to require that the Borrower engage at the Borrower's expense a restructuring
consultant acceptable to the Lender.
9. Permitted Take-out Transaction. At the Borrower's request,
this Second Amendment shall evidence the Lender's agreement to the sale of the
Borrower (whether by merger, tender offer, transfer of stock or sale of assets)
or a refinancing in full of the Obligations (in each case, a "Permitted
Take-out Transaction"), provided that (a) such Permitted Take-out Transaction
shall be consummated not later than the Maturity Date and (b) all of the
Obligations (including, without limitation, the fees set forth in Section 1.4
hereof) shall be paid in full upon consummation of such Permitted Take-out
Transaction. The Borrower shall deliver promptly to the Lender (a) a copy of
any term sheet provided to the Borrower with respect to a proposal for a
15
Permitted Take-out Transaction, and (b) copies of any agreements entered into
by the Borrower in connection with a Permitted Take-out Transaction.
10. Conditions. As conditions to the consummation and
effectiveness of this Agreement, the Borrower shall perform or cause to be
performed the following (the failure by the Borrower to so perform or cause to
be performed constituting an Event of Default under the Credit Agreement) all
in a form and manner and in substance satisfactory to the Lender:
(a) Investment Targets. The Borrower shall use its best
efforts to obtain all original stock certificates and corresponding
stock powers relating to the Investment Targets which the Borrower was
unable to obtain prior to the closing of the First Amendment, and
shall provide such certificates and powers to the Lender promptly.
(b) Investment Agreements. The Borrower shall provide the
Lender with copies of all Investment Agreements and all other
agreements and documentation relating in any way to the Borrower's
Investment in the Investment Targets, and all amendments thereto.
(c) Shareholders' Agreements. The Borrower shall use its
best efforts to obtain all consents necessary to permit the Borrower
to grant a security interest in all of the equity interests owned by
the Borrower in each of the Investment Targets, including, without
limitation, the consent of all parties to each of the shareholders'
agreements necessary to effectively waive any restriction on the
ability of the Borrower to grant such a security interest. Commencing
on August 15, 2000, the Borrower shall deliver to the Lender and its
counsel a bi-weekly report setting forth the status of its efforts in
obtaining such consents.
(d) Restructuring Consultant. On or before July 31, 2000,
Borrower shall have retained the services of a Restructuring
Consultant, reasonably acceptable to the Borrower and the Lender, to
serve as the Restructuring Consultant of the Borrower and the
Subsidiaries. The Restructuring Consultant, (who in addition to the
Borrower shall communicate directly to the Lender), shall be retained
to provide Borrower with ongoing business advice and consultation
regarding Borrower's current financial and operational issues and the
development of strategies that, in addition to the consideration of
the Borrower's interests and the interests of its shareholders, will
reflect consideration of the Lender's and other creditors' interests,
and will address, without limitation, the areas listed on the attached
Exhibit B.
(e) Execution of Agreement. Borrower shall deliver to
Lender a counterpart hereof duly executed by the Borrower and the
Subsidiaries.
(f) Execution of Commitment Fee Note. Borrower shall
deliver to Lender the duly executed Commitment Fee Note.
(g) Execution of the other Second Amendment Documents.
Borrower shall execute and deliver or cause to be executed and
delivered the other Second Amendment Documents
16
(h) Corporate Resolutions. Borrower shall deliver to
Lender corporate resolutions of the Borrower and its Subsidiaries
certified by the secretary of the Borrower or its Subsidiaries, as
applicable, authorizing the transactions contemplated hereby.
(i) Opinion Letter. Borrower shall deliver to Lender an
opinion of its counsel for the Borrower and its Subsidiaries in a form
and substance acceptable to the Lender.
(j) Other Closing Documents. Borrower and Subsidiaries
shall deliver to Lender each of the agreements and other items set
forth on Exhibit C attached hereto and such other information,
documents, instruments or approvals as the Lender or the Lender's
counsel may require.
11. Representations and Warranties. The Borrower, for itself and
on behalf of each of its Subsidiaries, agrees, represents and warrants in favor
of the Lender that:
(a) This Agreement (including the Consent affixed hereto)
has been executed and delivered by duly authorized representatives of
the Borrower and the Subsidiaries, as applicable, and the Credit
Agreement and the other Loan Documents, as modified and amended by
this Agreement or the other Second Amendment Documents, constitutes a
legal, valid and binding obligation of the Borrower and the
Subsidiaries, as applicable, and is enforceable against the Borrower
and the Subsidiaries, as applicable, in accordance with its terms;
(b) After giving effect to this Second Amendment, no
Default or Event of Default under the Credit Agreement has occurred or
is continuing;
(c) As of the Effective Date, (i) the property of the
Borrower, at a fair valuation on a going concern basis, will exceed
its debt; (ii) the capital of the Borrower will not be unreasonably
small to conduct its business; and (iii) the Borrower will not have
incurred debts, or have intended to incur debts, beyond its ability to
pay such debts as they mature; and
(d) All of the representations and warranties of the
Borrower and each of its Subsidiaries contained in the Credit
Agreement and the other Loan Documents continue to be true and correct
as of the date hereof as though made on and as of such date.
12. Expenses. The Borrower hereby agrees to pay all expenses of
the Lender incurred in connection with this Amendment, including, without
limitation, all fees and expenses of counsel, accountants and consultants to
the Lender. In the event that Borrower does not have sufficient funds on hand
to pay such expenses as they accrue, Lender agrees to pay such expenses on
Borrower's behalf, provided however, that Borrower agrees to reimburse Lender
as specified in Section 1.5(c) hereof.
13. Further Assurances. The Borrower will promptly cure, or cause
to be cured, any defects in the creation, execution or delivery of the Loan
Documents (including, without limitation, any of the Second Amendment
Documents), resulting from any act or failure to act by
17
the Borrower or any of the Borrower's Subsidiaries or any employee or officer
thereof. The Borrower, at its sole expense, will promptly execute and deliver
to the Lender, or cause to be executed and delivered to the Lender, all such
other and further documents, agreements, and instruments in compliance with or
accomplishment of the covenants and agreements of the Borrower and its
Subsidiaries in the Loan Documents (including, without limitation, any of the
Second Amendment Documents), or to obtain any consents, all as may be necessary
or appropriate in connection therewith or as may be requested by the Lender.
14. Effect on the Credit Agreement. Except as specifically
provided herein, the Credit Agreement shall remain in full force and effect,
and is hereby ratified, reaffirmed and confirmed. Each of the Second Amendment
Documents shall be deemed to be a Loan Document for all purposes.
15. Counterparts. This Second Amendment may be executed in any
number of separate counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original and all of which, taken
together, shall be deemed to constitute one and the same instrument. In proving
this Second Amendment in any judicial proceedings, it shall not be necessary to
produce or account for more than one such counterpart signed by the party
against whom such enforcement is sought. Any signatures delivered by a party by
facsimile transmission shall be deemed an original signature hereto.
16. Law of Contract. THIS SECOND AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
17. No Waiver of Remedies. The terms of this Agreement shall not
act or be construed to limit or diminish the rights of the Lender to pursue its
full legal remedies for the collection of the indebtedness outstanding under
the Loan Documents, including, without limitation, the right to pursue liens or
security interests in any other Collateral held by the Lender in any way
permitted by law. Except as expressly modified hereby, the terms, conditions,
representations, warranties and covenants of each of the Credit Agreement and
the Loan Documents as well as the recitals, representations and warranties set
forth herein shall continue to remain in full force and effect and are true as
if made on the date hereof.
18. Negotiations. This Agreement is being executed in connection
with all negotiations between the Borrower and the Lender to discuss the
modification of the Credit Agreement and the Loan Documents (the "Loan
Discussions"). All of the terms of this Agreement were negotiated at arms'
length, and the Borrower has at all times had access to independent counsel.
This Agreement was prepared and executed without fraud, duress, undue influence
or coercion of any kind exerted by any of the parties upon the other. This
Agreement and the Loan Documents constitute the entire agreement between the
parties with respect to the Credit Agreement, the Loan Documents and the Loan
Discussions and supersedes any prior oral or written representations or
agreements not contained herein that relate to the subject matter hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
18
IN WITNESS WHEREOF, this Second Amendment has been duly executed as of
the day and year first written above.
BORROWER: XXXXXXXX.XXX, INC. (f/k/a Medirisk, Inc.)
By: /s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: President & CEO
LENDER: BANK OF AMERICA, N.A. (f/k/a NationsBank, N.A.)
By: /s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
19
CONSENT TO SECOND AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT AND REAFFIRMATION OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing
Second Amendment to Amended and Restated Credit Agreement (the "Agreement"),
(ii) consents to the execution and delivery of the Agreement by the parties
thereto, and acknowledges and agrees to the terms thereof, including, without
limitation Sections 6 and 7 thereof to the same extent as if each of the
undersigned were signatories thereto, and (iii) reaffirms all of its
obligations and covenants under the Subsidiary Guaranties executed by it in
favor of the Bank, and agrees that such guarantees and their obligations and
covenants with respect thereto shall remain in full force and effect with
respect to the Obligations as defined in the Agreement.
GUARANTORS:
MEDIRISK OF ILLINOIS, INC.
CIVS, INC.
MEDSOURCE, INC.
SUCCESSFUL SOLUTIONS, INC.
CITIZEN 1 SOFTWARE, INC.
MEDIRISK OF MISSOURI, INC.
HEALTHDEMOGRAPHICS, INC.
SWEETWATER HEALTH ENTERPRISES, INC.
BY: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------
TITLE: President & CEO
GUARANTOR:
CAREDATA REPORTS, INC.
BY: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------
TITLE: Chief Executive Officer
GUARANTOR:
XXXXXXXX.XXX LIMITED
BY: /s/ Xxxxx X. Xxxx
----------------------------
TITLE: Secretary
