Fifth Amendment to Credit Agreement among I-Trax, Inc., Subsidiaries, Lenders, and Bank of America (March 31, 2005)

Summary

This amendment updates the existing Credit Agreement between I-Trax, Inc., its subsidiaries, several lenders, and Bank of America. It modifies the loan commitment amounts over specific dates in 2005, sets a new fee for the lenders, and outlines conditions that must be met for the amendment to take effect. The agreement ensures that all other terms of the original Credit Agreement remain in force unless specifically changed by this amendment.

EX-10.2 3 ex10-2.txt EXHIBIT 10.2 FIFTH AMENDMENT TO CREDIT AGREEMENT THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated March 31, 2005, is made and entered into on the terms and conditions hereinafter set forth, by and among I-TRAX, INC., a Delaware corporation (the "Borrower"), the Subsidiaries of the Borrower who are parties to the Credit Agreement (as hereinafter defined) as guarantors (the "Guarantors"), the several lenders who are parties to the Credit Agreement as lenders (the "Lenders"), and BANK OF AMERICA, N.A., a national banking association ("Bank of America"), as administrative agent for the Lenders and the Issuing Bank (in such capacity, the "Administrative Agent") and as Issuing Bank. RECITALS: 1. Pursuant to a Credit Agreement dated as of March 19, 2004, among the Borrower, the Guarantors, the Lenders and Bank of America, as Administrative Agent and as Issuing Bank, as heretofore amended by a First Amendment to Credit Agreement dated June 1, 2004, a Second Amendment to Credit Agreement dated July 1, 2004, a Third Amendment to Credit Agreement dated August 12, 2004, and a Fourth Amendment to Credit Agreement dated October 27, 2004, among the Borrower, the Guarantors, the Lenders and Bank of America, as Administrative Agent and as Issuing Bank (as the same heretofore has been or hereafter may be further amended, restated, supplemented, extended, renewed, replaced or otherwise modified from time to time, the "Credit Agreement"), the Lenders agreed to make Loans to the Borrower and to purchase participations in Letters of Credit issued for the account of the Borrower, and the Issuing Bank agreed to issue such Letters of Credit, all as more specifically described in the Credit Agreement. 2. The parties hereto desire to amend the Credit Agreement in certain respects as more particularly hereinafter set forth. AGREEMENTS: NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of all of which are hereby acknowledged, the parties hereto agree as follows: 1. Amendment of Section 1.1. Section 1.1 of the Credit Agreement is hereby amended by inserting the following new definitions in the appropriate locations according to alphabetical order, or by amending and restating existing definitions to read as indicated, as applicable: "Fifth Amendment" shall mean the Fifth Amendment to Credit Agreement dated March 31, 2005, among the Borrower, the Guarantors, the Lenders and Bank of America, as Administrative Agent and as Issuing Bank. "Fifth Amendment Effective Date" shall mean the date on which the conditions to the effectiveness of the Fifth Amendment, as set forth in the Fifth Amendment, have been satisfied. 2. Amendment of Section 2.1.1. Section 2.1.1 of the Credit Agreement is hereby amended to read as follows: 2.1.1. Amounts of Commitments. Subject to reduction as provided herein: (a) The aggregate amount of the Commitments at any time shall be (i) $17,000,000 from the Fifth Amendment Effective Date through and including April 29, 2005, (ii) $16,000,000 from April 30, 2005 through and including May 30, 2005, (iii) $15,000,000 from May 31, 2005 through and including June 29, 2005, and (iv) $14,000,000 on June 30, 2005 and thereafter. (b) The aggregate amount of the Revolving Credit Commitments at any time shall be an amount equal to (i) (A) $17,000,000 from the Fifth Amendment Effective Date through and including April 29, 2005, (B) $16,000,000 from April 30, 2005 through and including May 30, 2005, (C) $15,000,000 from May 31, 2005 through and including June 29, 2005, and (D) $14,000,000 on June 30, 2005 and thereafter, less (ii) the aggregate amount of Letter of Credit Liabilities outstanding at such time. (c) The aggregate amount of the Letter of Credit Commitments at any time is equal to the lesser of: (1) the aggregate amount of the Revolving Credit Commitments in effect at such time less the aggregate amount of Revolving Loans and Swingline Loans outstanding at such time, and (2) $3,000,000. 3. Fees. In consideration of the agreements of the Lenders set forth herein, the Borrower agrees to pay to the Administrative Agent, for distribution to the Lenders pro rata in accordance with their respective Percentages, a fee in the amount of $25,500. 4. Conditions to Effectiveness. This Amendment shall be effective only upon the satisfaction of the following conditions: (a) the Borrower, each of the Guarantors, the Administrative Agent, the Issuing Bank and Requisite Lenders shall have executed and delivered a counterpart of this Amendment; (b) the Borrower shall have executed and delivered Revolving Notes in form and substance satisfactory to the Administrative Agent, evidencing the increased amount of the Revolving Commitments pursuant to this Amendment; (c) each of the representations and warranties of the Borrower contained in Section 5 shall be true and correct in all material respects as of the date as of which all of the other conditions contained in this Section 4 shall have been satisfied; -2- (d) the Borrower shall have paid the fees required by Section 3 hereof; and (e) the Administrative Agent shall have received such documents, instruments, certificates, opinions and approvals as it reasonably may have requested. 5. Representations and Warranties of the Borrower and the Guarantors. As an inducement to the Lenders, the Issuing Bank and the Administrative Agent to enter into this Amendment, the Borrower and the Guarantors hereby represent and warrant that, on and as of the date hereof, the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects, except for (a) representations and warranties that expressly relate to an earlier date, which remain true and correct as of said earlier date, (b) representations and warranties that have become untrue or incorrect solely because of changes permitted by the terms of the Credit Agreement and the other Loan Documents, and (c) the representations and warranties set forth in paragraphs (a), (d) and (e) of Section 7.5 of the Credit Agreement, as to which no further representation or warranty is made herein. 6. Effect of Amendment; Continuing Effectiveness of Credit Agreement and Loan Documents. (a) Neither this Amendment nor any other indulgences that may have been granted to the Borrower or any Guarantor by the Administrative Agent, the Issuing Bank or any Lender shall constitute a course of dealing or otherwise obligate the Administrative Agent, the Issuing Bank or any Lender to modify, expand or extend the agreements contained herein, to agree to any other amendments to the Credit Agreement or to grant any consent to, waiver of or indulgence with respect to any other noncompliance with any provision of the Loan Documents. (b) Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified hereby. This Amendment shall constitute a Loan Document for all purposes of the Credit Agreement and the other Loan Documents. (c) Any noncompliance by the Borrower or any Guarantor with any of the covenants, terms, conditions or provisions of this Amendment shall constitute an Event of Default. (d) Except to the extent amended or modified hereby, the Credit Agreement, the other Loan Documents and all terms, conditions and provisions thereof shall continue in full force and effect in all respects and shall be construed in accordance with the modifications of the Credit Agreement effected hereby. Without limiting the generality of the foregoing, the Security Documents and all of the Collateral described therein secure and shall continue to secure the payment of all Obligations, in each case taking into account the modifications of the Credit Agreement effected hereby. -3- 7. Release and Waiver. The Borrower and the Guarantors hereby stipulate, acknowledge and agree that they have no claims or causes of action of any kind whatsoever against any of the Lenders, the Issuing Bank or the Administrative Agent arising out of or relating in any way to any event, circumstance, action or failure to act with respect to this Amendment, the Credit Agreement, the other Loan Documents or any matters described or referred to herein or therein or otherwise related hereto or thereto. The Borrower and the Guarantors hereby release all of the Lenders, the Issuing Bank and the Administrative Agent from any and all claims, causes of action, demands and liabilities of any kind whatsoever, whether direct or indirect, fixed or contingent, liquidated or unliquidated, disputed or undisputed, known or unknown, that the Borrower or any Guarantor may now or hereafter have and that arise out of or relate in any way to any event, circumstance, action or failure to act on or before the date of this Amendment with respect to this Amendment, the Credit Agreement, the other Loan Documents or any matters described or referred to herein or therein or otherwise related hereto or thereto. The release by the Borrower and the Guarantors herein, together with the other terms and provisions of this Amendment, are entered into by the Borrower and the Guarantors advisedly and without compulsion, coercion or duress, the Borrower and the Guarantors having determined that this Amendment and all of its terms, conditions and provisions are in the economic best interests of the Borrower and the Guarantors. The Borrower and the Guarantors represent that they are entering into this Amendment freely and with the advice of counsel as to their legal alternatives. 8. Further Actions. Each of the parties to this Amendment agrees that at any time and from time to time upon written request of any other party, it will execute and deliver such further documents and do such further acts and things as such other party reasonably may request in order to effect the intents and purposes of this Amendment. 9. Counterparts. This Amendment may be executed in multiple counterparts or copies, each of which shall be deemed an original hereof for all purposes. One or more counterparts or copies of this Amendment may be executed by one or more of the parties hereto, and some different counterparts or copies executed by one or more of the other parties. Each counterpart or copy hereof executed by any party hereto shall be binding upon the party executing same even though other parties may execute one or more different counterparts or copies, and all counterparts or copies hereof so executed shall constitute but one and the same agreement. Each party hereto, by execution of one or more counterparts or copies hereof, expressly authorizes and directs any other party hereto to detach the signature pages and any corresponding acknowledgment, attestation, witness or similar pages relating thereto from any such counterpart or copy hereof executed by the authorizing party and affix same to one or more other identical counterparts or copies hereof so that upon execution of multiple counterparts or copies hereof by all parties hereto, there shall be one or more counterparts or copies hereof to which is(are) attached signature pages containing signatures of all parties hereto and any corresponding acknowledgment, attestation, witness or similar pages relating thereto. -4- 10. Miscellaneous. (a) This Amendment shall be governed by, construed and enforced in accordance with the laws of the State of Tennessee, without reference to the conflicts or choice of law principles thereof. (b) The headings in this Amendment and the usage herein of defined terms are for convenience of reference only, and shall not be construed as amplifying, limiting or otherwise affecting the substantive provisions hereof. (c) All references herein to the preamble, the recitals or sections, paragraphs, subparagraphs, annexes or exhibits are to the preamble, recitals, sections, paragraphs, subparagraphs, annexes and exhibits of or to this Amendment unless otherwise specified. The words "hereof", "herein" and "hereunder" and words of similar import, when used in this Amendment, refer to this Amendment as a whole and not to any particular provision of this Amendment. (d) Any reference herein to any instrument, document or agreement, by whatever terminology used, shall be deemed to include any and all amendments, modifications, supplements, extensions, renewals, substitutions and/or replacements thereof as the context may require. (e) When used herein, (1) the singular shall include the plural, and vice versa, and the use of the masculine, feminine or neuter gender shall include all other genders, as appropriate, (2) "include", "includes" and "including" shall be deemed to be followed by "without limitation" regardless of whether such words or words of like import in fact follow same, and (3) unless the context clearly indicates otherwise, the disjunctive "or" shall include the conjunctive "and". IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the date first written above. [Remainder of Page Intentionally Left Blank; Signature Pages Follow] -5- [Signature Page to Fifth Amendment to Credit Agreement (I-trax, Inc.) dated March 31, 2005] BORROWER: I-TRAX, INC. By: /s/ David R. Bock -------------------------------- Name: David R. Bock Title: Chief Financial Officer GUARANTORS: I-TRAX HEALTH MANAGEMENT SOLUTIONS, INC., a Delaware corporation By: /s/ David R. Bock -------------------------------- Name: David R. Bock Title: Chief Financial Officer I-TRAX HEALTH MANAGEMENT SOLUTIONS, LLC, a Delaware limited liability company BY: I-TRAX, INC., its sole member By: /s/ David R. Bock -------------------------------- Name: David R. Bock Title: Chief Financial Officer -6- CHD MERIDIAN HEALTHCARE, LLC, a Delaware limited liability company BY: I-TRAX, INC., its sole member By: /s/ David R. Bock -------------------------------- Name: David R. Bock Title: Chief Financial Officer AMERICAN OCCUPATIONAL HEALTH MANAGEMENT, INC., a Delaware corporation By: /s/ David R. Bock -------------------------------- Name: David R. Bock Title: Chief Financial Officer MEDICENTER, INC., an Oklahoma corporation By: /s/ David R. Bock -------------------------------- Name: David R. Bock Title: Chief Financial Officer MERIDIAN COMP OF NEW YORK, INC., a Delaware corporation By: /s/ David R. Bock -------------------------------- Name: David R. Bock Title: Chief Financial Officer CORPORATE HEALTH DIMENSIONS, INC. a New York corporation By: /s/ David R. Bock -------------------------------- Name: David R. Bock Title: Chief Financial Officer -7- CHDM, INC. a Delaware corporation By: /s/ David R. Bock -------------------------------- Name: David R. Bock Title: Chief Financial Officer CHDM, LLC an Indiana limited liability company By: /s/ David R. Bock -------------------------------- Name: David R. Bock Title: Chief Financial Officer -8- [Signature Page to Fifth Amendment to Credit Agreement (I-trax, Inc.) dated March 31, 2005] ADMINISTRATIVE AGENT, LENDER AND ISSUING BANK: BANK OF AMERICA, N.A. By: /s/ Hope Walker -------------------------------- Name: Hope Walker Title: Vice President -9-