Exhibit 10.1
EXECUTION COPY
NINTH AMENDMENT TO CREDIT AGREEMENT
THIS
NINTH AMENDMENT TO CREDIT AGREEMENT
(this " Amendment "), dated December 14, 2007, is made
and entered into on the terms and conditions hereinafter set
forth, by and among I-TRAX, INC., a Delaware corporation (the
" Borrower "), the Subsidiaries of the Borrower who
are parties to the Credit Agreement (as hereinafter defined)
as guarantors (the " Guarantors "), the several
lenders who are parties to the Credit Agreement as lenders
(the " Lenders "), and BANK OF AMERICA, N.A., a
national banking association (" Bank of America "), as
administrative agent for the Lenders and the Issuing Bank (in
such capacity, the " Administrative Agent ") and as
Issuing Bank.
RECITALS:
1. Pursuant
to a Credit Agreement dated as of March 19, 2004, among
the Borrower, the Guarantors, the Lenders and Bank of America,
as Administrative Agent and as Issuing Bank, as heretofore
amended by a First Amendment to Credit Agreement dated
June 1, 2004, a Second Amendment to Credit Agreement
dated July 1, 2004, a Third Amendment to Credit Agreement
dated August 12, 2004, a Fourth Amendment to Credit
Agreement dated October 27, 2004, a Fifth Amendment to
Credit Agreement dated March 31, 2005, a Sixth Amendment
to Credit Agreement dated June 29, 2005, a Seventh
Amendment to Credit Agreement dated May 4, 2006 and an
Eighth Amendment to Credit Agreement dated June 29, 2007,
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:
"
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 Last Four
Fiscal Quarters, 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 (other than the
Indebtedness evidenced by the Term Note which was paid during
such period in 2008), plus beginning April 1, 2008 and
on the first day of each succeeding July, October, January and
April thereafter, an amount equal to $312,500, representing
the reduction in the Swingline Commitment as required pursuant
to Seciton 2.4.1.(a) until the Swingline Commitment is
reduced to $0.00, plus Rent Expense; provided,
however, that adjustments to noncash stock-based
compensation expense required by GAAP in connection with
changes in the Borrower's stock price shall be disregarded for
purposes of calculating this ratio.
"
Ninth Amendment Coverage Ratio " shall mean the Ninth
Amendment to Credit Agreement dated December __, 2007, among
the Borrower, the Guarantors, the Lenders and Bank of America,
as Administrative Agent and as Issuing Bank.
"
Pro Forma Effect " shall mean, in making any
calculation of the Funded Indebtedness to EBITDA Ratio for
purposes of Section 2.15 or any calculation
hereunder necessary to determine whether the Borrower is in
compliance with Section 10.1.4 or whether a
Default would result from any Asset Acquisition, (1) any
Disposition of any asset(s) of the Borrower or any of the
other Credit Parties made during the twelve (12) month period
ending on and including the date of determination, other than
a Disposition permitted by subsections 9.3(a) ,
(b) or (d) , and any corresponding repayment or
incurrence of Indebtedness, shall be assumed to have occurred
on the first day of such period, (2) any Asset
Acquisition made during the twelve (12) month period ending on
and including the date of determination, and any corresponding
repayment or incurrence of Indebtedness, shall be assumed to
have occurred on the first day of such period, and (3) any
deduction from Consolidated Net Income for the non-recurring
compensation expense for a former employee paid in connection
with the ProFitness Acquisition during the period of
determination (which is in an aggregate amount that shall not
exceed $50,000) be added back to EBITDA; provided
that the Administrative Agent has been furnished with annual
audited financial statements or interim financial statements
regarding such Asset Acquisition that are in sufficient detail
to provide a basis for determining the Pro Forma Effect
thereof and that otherwise are in form and substance and
prepared by Persons satisfactory to the Administrative
Agent.
"
ProFitness " shall mean Pro Fitness Health Solutions,
LLC, a New York limited liability
company.
" ProFitness Acquisition " shall mean the
acquisition by Borrower of 100% of the membership interests in
ProFitness pursuant to the ProFitness Acquisition
Agreement.
"
ProFitness Acquisition Agreement " shall mean that
certain Member Interest Purchase Agreement dated November 27,
2007, by and among Borrower, ProFitness and Minute Men,
Incorporated.
"
Term Loan Commitments " shall mean, at any time, the
commitment of all the Lenders, collectively, to make Term
Loans to the Borrower pursuant to the provisions of
Section 2.2 , and the " Term Loan
Commitment " of any Lender at any time shall mean an
amount equal to such Lender's Percentage multiplied by the
then effective aggregate Term Loan Commitments. The
Term Loan Commitments are in the aggregate amount set forth in
Section 2.1 .
"
Term Loan Facility " shall mean the term loan facility
provided by the Lenders pursuant to the Term Loan Commitments
as more particularly set forth in Section 2.2
.
"
Term Loan Maturity Date " shall mean September 30,
2008.
"
Term Loans " shall mean the loans made to the Borrower
by the Lenders pursuant to the provisions of
Section 2.2 .
"
Term Notes " shall mean the promissory notes,
substantially in the form of Exhibit 2.10A ,
executed by the Borrower in favor of the Lenders, evidencing
the indebtedness of the Borrower to the Lenders in connection
with the Term Loans.
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
$20,000,000.
(b)
The
aggregate amount of the Term Loan Commitments shall be
$3,000,000.
(c)
The
aggregate amount of the Revolving Credit Commitments at any time
shall be $17,000,000 less the aggregate amount of Letter of
Credit Liabilities outstanding at such time.
(d)
The
aggregate amount of the Letter of Credit Commitments at any time
shall be an amount equal to the lesser of: (1) the aggregate
amount of the Revolving Credit Commitments in effect at such time
less the aggregate amount of Revolving Loans outstanding at
such time, and (2) $3,000,000.
3.
Amendment of Section 2.2.1. Section
2.2.1 of the Credit Agreement is hereby amended to read as
follows:
2.2.1
Commitment to Make Term Loans . Subject to
all of the terms and conditions of Section 6.2 of this
Agreement (including the conditions set forth in the Ninth
Amendment) and in reliance upon the representations and
warranties of the Borrower set forth herein and in the Ninth
Amendment, each Lender holding a Term Loan Commitment hereby
severally agrees to make a Term Loan to the Borrower in the
amount of its respective Term Loan Commitment, for the
purposes identified in Section 2.12. The Term
Loans shall be funded in a single Borrowing on the same
Funding Date. Each Lender's Term Loan Commitment
shall expire upon the earlier of the funding of the Term
Loans or December 31, 2007, and the Term Loans shall be paid
in full no later than the Term Loan Maturity
Date.
4.
Amendment of Section 2.12 .
Section 2.12(a) of the Credit Agreement is hereby amended by
substituting the phrase "ProFitness Acquisition" with the word
"Merger".
5.
Amendment of Section 2.15 .
Section 2.15 of the Credit Agreement is hereby
amended to read as follows:
2.15
Interest and Fees Margins . For purposes of
interest and fee computations hereunder involving the
Applicable Base Rate Margin, the Applicable Eurodollar Rate
Margin, the Applicable Letter of Credit Fee Percentage and the
Applicable Commitment Fee Percentage, such margins and
percentages shall be determined as follows:
|
Tier
|
|
Applicable
Eurodollar
Rate
Margin
|
|
Applicable
Base
Rate
Margin
|
|
Applicable
Letter
of
Credit
Fee
Percentage
|
|
Applicable
Commitment
Fee
Percentage
|
| |
|
|
|
|
|
|
|
|
|
1
|
|
1.250%
|
|
0.000%
|
|
1.250%
|
|
0.300%
|
|
2
|
|
1.625%
|
|
0.000%
|
|
1.625%
|
|
0.300%
|
|
3
|
|
2.000%
|
|
0.250%
|
|
2.000%
|
|
0.375%
|
|
4
|
|
2.500%
|
|
0.500%
|
|
2.500%
|
|
0.500%
|
Except
as expressly hereinafter provided, the applicable tier at any
time shall be determined with reference to the Borrower's
Funded Indebtedness to EBITDA Ratio, as follows:
|
Tier
|
Funded Indebtedness to EBITDA Ratio
|
| |
|
|
1
|
Less
than 1.50 to 1.00
|
|
2
|
Greater
than or equal to 1.50 to 1.00 but less than 2.25 to
1.00
|
|
3
|
Greater
than to or equal to 2.25 to 1.00 but less than 2.50 to
1.00
|
|
4
|
Equal
to or greater than 2.50 to 1.00
|
From the date hereof to
but not including the first Pricing Tier Determination Date
occurring after the date of the Ninth Amendment, Tier 4 shall
be applicable. Any adjustment in the margins set
forth above shall take effect on the first Pricing Tier
Determination Date following the Fiscal Quarter as of the end
of which such ratio was calculated; provided,
however, that following any failure of the Borrower to
deliver to the Administrative Agent any of the financial
statements, financial reports, certificates or other
financial information required by Section 8.1.1
or Section 8.1.2 in a timely manner and until
such failure is cured or corrected, and without limitation of
or prejudice to any other right or remedy of the
Administrative Agent, the Lenders or the Issuing Bank in
respect of such failure, Tier 4 shall be
applicable.
6.
Amendments of Subsection 3.1.2 .
(a)
Subsection (a)
of Section 3.1.2 of the Credit Agreement is hereby amended to
read as follows:
(a)
Scheduled Principal Payments – Term Loans
. The Borrower shall make principal payments in
respect of the Term Loans in amounts and on the dates set
forth in the following schedule:
|
Payment Date
|
|
Principal Payment Amount
|
|
Mar
|
|
