SECOND AMENDMENT TO CREDIT
AGREEMENT AND LIMITED WAIVER
This
SECOND AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER, dated as
of October 5, 2009 (this “ Amendment ”),
modifies that certain Credit Agreement, dated as of
September 30, 2008 (as amended, restated, amended and
restated, extended, supplemented, modified and otherwise in effect
from time to time, the “ Credit Agreement ”),
among ATHENAHEALTH, INC., a Delaware corporation (the “
Borrower ”), each lender from time to time party
thereto (the “ Lenders ”), BANK OF AMERICA,
N.A., as administrative agent (in such capacity, the “
Administrative Agent ”) for itself and the other
Lenders, the Swing Line Lender and the L/C Issuer. Any capitalized
term used herein and not defined shall have the meaning assigned to
it in the Credit Agreement.
WHEREAS , the Borrower has informed the undersigned Lenders
and the Administrative Agent of its intention to purchase all of
the Equity Interests in Anodyne Health Partners, Inc. (“
Anodyne ”, and such purchase referred to hereinafter
as the “ Anodyne Purchase ”) and has requested
that the undersigned Lenders and the Administrative Agent waive
certain provisions of Section 7.03(g) of the Credit Agreement
in connection with such purchase;
WHEREAS , the Borrower has requested that the undersigned
Lenders and the Administrative Agent agree to amend certain
provisions of the Credit Agreement; and
WHEREAS , the undersigned Lenders and the Administrative
Agent are prepared to waive certain provisions of and amend the
Credit Agreement on the terms, subject to the conditions and in
reliance on the representations set forth herein;
NOW THEREFORE , in consideration of the premises and other
good and valuable consideration, the parties hereto hereby agree as
follows:
Section 1. Limited Waiver .
(a) In
connection with the Anodyne Purchase, the Borrower has advised the
Administrative Agent that it will not be able to comply with
Section 7.03(g)(vi) of the Credit Agreement which requires
that the EBITDA set forth on the most recent income statement for
the four fiscal quarter period then ended with respect to the
Person to be purchased be greater than $0.00. The Administrative
Agent and undersigned Lenders, solely with respect to the Anodyne
Purchase, waive such requirement set forth in
Section 7.03(g)(vi).
(b) In
connection with the Anodyne Purchase, the Borrower has advised the
Administrative Agent that it will not be able to comply with
Section 7.03(g)(ix) of the Credit Agreement which requires the
Borrower to deliver to the Administrative Agent and each Lender, at
least 25 days prior to the date of consummation of the Anodyne
Purchase, (i) a description of such purchase,
(ii) diligence materials, (iii) a certificate of a
Responsible Officer certifying that the Anodyne Purchase is in
compliance with Section 7.03(g)(vi) of the Credit Agreement,
and (iv) calculations in support thereof. The Administrative
Agent and undersigned Lenders, solely with respect to the Anodyne
Purchase, waive such requirement set forth in
Section 7.03(g)(ix).
(c) The
foregoing waivers in Sections 1(a) and 1(b)
hereof are limited waivers and the execution and delivery of this
Amendment does not (a) constitute a waiver by the
Administrative Agent and the undersigned Lenders of any other term
or condition under the Credit Agreement or any other Loan Document,
and of any right, power or remedy of the Lenders under any of the
Loan
Documents (all
such rights, powers and remedies being expressly reserved),
(b) establish a custom or a course of dealing or conduct
between the Lenders and the Borrower, or (c) prejudice any
rights which the Lenders now have or may have in the future under
or in connection with the Loan Documents.
Section 2. Amendments to Credit Agreement
.
(a) Section 1.01
is hereby amended by inserting the following new definition in
correct alphabetical order:
“
Anodyne ” means Anodyne Health Partners,
Inc.
“
Anodyne Acquisition ” means the acquisition by the
Borrower of all of the Equity Interests in Anodyne pursuant to the
terms of the Anodyne Acquisition Agreement.
“
Anodyne Acquisition Agreement ” means the Agreement
and Plan of Merger, dated as of October 5, 2009, by and among
athenahealth, Inc., Aries Acquisition Corporation, Anodyne, and
Walter Beinecke and Richard Maclean as representatives of the
Securityholders (as defined therein).
(b) Section 7.03(g)(v)
of the Credit Agreement is hereby amended as follows:
(i)
“$30,000,000” is hereby replaced with
“$50,000,000” in each instance in which such number is
included in such section; and ‘
(ii)
The following clause is inserted at the end of
Section 7.03(g)(v):
“
provided that , the Anodyne Acquisition shall not be
included in a calculation of the cumulative amount of acquisitions
or purchases calculated in clause (B) of this
Section 7.03(g)(v) ;”
Section 3. Conditions Precedent . This Amendment
shall become effective as of the date first written above (the
“ Effective Date ”) upon the satisfaction of the
following con
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