CONSENT AND AMENDMENT NO. 13 TO LOAN AND SECURITY AGREEMENT
As of September 22, 1999
Health Fitness Corporation
3500 West 80th Street, Suite 130
Bloomington, Minnesota 55431
Re: Sale of Assets of Health Fitness Corporation
Ladies and Gentlemen:
Ableco Finance LLC, The Long Horizons Overseas Fund, Ltd., Styx
Partners, L.P. and Styx International, Ltd., as direct or indirect assignees of
Madeleine L.L.C. (individually and collectively, "Lender") and Health Fitness
Corporation ("Borrower") have entered into certain financing arrangements as set
forth in the Loan and Security Agreement, dated February 17, 1998 by and among
Lender, Borrower and Health Fitness Rehab, Inc., The Preferred Companies, Inc.,
Health Fitness Rehab of Iowa, Inc., Duffy & Associates Physical Therapy Services
Corp., Medlink Corporation, Medlink Services, Inc., Fitness Centers of America,
Sports & Orthopedic Physical Therapy, Inc., Midlands Physical Therapy, Inc. and
International Fitness Club Network, Inc. (collectively, "Guarantors"), as
amended pursuant to Amendment No. 1 to Loan and Security Agreement, dated
February 28, 1998, by and among Lender, Borrower and Guarantors, Amendment No. 2
to Loan and Security Agreement, dated June 4, 1998, by and among Lender,
Borrower and Guarantors, Amendment No. 3 to Loan and Security Agreement, dated
June 26, 1998, by and among Lender, Borrower and Guarantors, Amendment No. 4 to
Loan and Security Agreement, dated September 10, 1998, by and among Lender,
Borrower and Guarantors, Amendment No. 5 to Loan and Security Agreement, dated
November 2, 1998, by and among Lender, Borrower and Guarantors, Amendment No. 6
to Loan and Security Agreement, dated January 8, 1999, by and among Lender,
Borrower and Guarantors, Amendment No. 7 to Loan and Security Agreement, dated
February 26, 1999, by and among Lender, Borrower and Guarantors, Amendment No. 8
to Loan and Security Agreement, dated as of March 12, 1999, by and among Lender,
Borrower and Guarantors, Consent and Amendment No. 9 to Loan and Security
Agreement, dated as of May 10, 1999, by and among Lender, Borrower and
Guarantors, Consent and Amendment No. 10 to Loan and Security Agreement, dated
May 24, 1999, by and among Lender, Borrower and Guarantors, as amended by a
letter agreement dated as of June 1, 1999, by and among Lender, Borrower and
Guarantors, Consent and Amendment No. 11 to Loan and Security Agreement, dated
as of June 30, 1999, by and among Lender, Borrower and Guarantors, and Amendment
No. 12 to Loan and Security Agreement, dated July 15, 1999, by and among Lender,
Borrower and Guarantors (and together with all supplements thereto and as the
same may hereafter be further amended, modified, supplemented, extended,
renewed, restated or replaced, the "Loan Agreement") and other agreements,
documents and instruments referred to therein or at any time executed and/or
delivered in connection therewith or related thereto, including this letter
agreement (all of the foregoing, together with the Loan Agreement, as the same
now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, being collectively referred to herein as the
"Financing Agreements").
Borrower, The Preferred Companies, Inc. ("Preferred"), Health Fitness
Rehab, Inc. ("HFR"; and together with Preferred, the "Companies"; the Companies
and Borrower, collectively, "Sellers") and Team Spinnaker Incorporated
("Purchaser") have entered into an agreement pursuant to which Sellers are
selling substantially all of the Companies' assets used specifically and
directly by or in Preferred's preferred provider network of physical therapy
clinics and HFR's disabilities and rehabilitation management services business
operating under the names "Isernhagen Limited" and "Isernhagen & Associates"
(collectively, the "Sale Assets") as set forth in the Asset Purchase Agreement,
dated as of September 22, 1999, by and among Sellers and Purchaser (the "Sale
Contract").
Borrower and Guarantors have requested that Lender consent to such sale
and amend the Financing Agreements in certain respects and Lender is willing to
consent to such sale and make such amendments, subject to the terms and
conditions set forth herein.
In consideration of the foregoing, and other good and valuable
consideration, the parties hereto agree as follows:
1. Definitions. For purposes of this Consent and Amendment, unless
otherwise defined herein, all terms used herein, including, but not limited to,
those terms used and/or defined in the recitals above, shall have the respective
meanings assigned to such terms in the Loan Agreement.
2. Consent. Subject to the terms and conditions contained herein,
Lender hereby consents to the sale by Borrower of the Sale Assets in accordance
with the terms of the Sale Contract as in effect on the date hereof.
3. Maximum Amount. The definition of Maximum Amount set forth in
Section 1.57 of the Loan Agreement is hereby amended by deleting the reference
therein to "$12,500,000" and substituting therefor "$3,600,000".
4. Reduction in Borrowing Base. Effective upon the consummation of the
sale of the Sale Assets, Section 1.8(a)(i) of the Loan Agreement and Section
3(a) of Amendment No. 6 are each hereby amended by (i) deleting each reference
therein to "$4,730,000" and in each case substituting therefor "$3,680,000" and
(ii) adding at the end of each such section the following:
"and as reduced on or before November 30, 1999 by an amount
equal to the Net Holdback Amount (as defined in the Asset
Purchase Agreement, dated as of September 22, 1999, by and
among Borrower, Health Fitness Rehab, Inc., The Preferred
Companies, Inc. and Team Spinnaker Incorporated) payable by
Team Spinnaker Incorporated to Borrower less $100,000."
5. Conditions Precedent. The effectiveness of the consent of Lender
contained in Section 2 hereof is subject to the satisfaction of each of the
following conditions precedent in a manner satisfactory to Lender:
(a) all representations, warranties and covenants contained
herein shall be true and correct;
(b) Lender shall have received from Borrower as of the date
hereof a sum of not less than $1,050,000 from the proceeds from the
sale of the Sale Assets payable to Sellers on the Closing Date (as
defined in the Sales Contract) pursuant to the Sale Contract (as in
effect on the date hereof), by wire transfer of immediately available
funds to the following account: Chase Bank of Texas, N.A., ABA No.:
113000609, AC: 00102619468, BNF: Wires-Clearing-Asset Backed
Securities, OBI: Ref: Kevin Celestine/Ableco Finance/Health
Fitness/Acct. #2316401, which sum shall be applied to the reduction of
the Obligations in such order and manner as Lender shall determine;
(c) the sale by Borrower of the Sale Assets to Purchaser
pursuant to the Sale Contract shall have occurred by no later than
September 24, 1999;
(d) Lender shall have received an original of this Consent and
Amendment, duly authorized, executed and delivered by Borrower and
Guarantors; and
(e) as of the date hereof and after giving effect to the
transactions contemplated by the Sale Contract, no Event of Default, or
event, act or condition which with notice or passage of time or both
would constitute an Event of Default, shall exist or have occurred.
6. Additional Representations, Warranties and Covenants. Borrower and
Guarantors, each hereby jointly and severally represents, warrants and covenants
to Lender as follows, which representations, warranties and covenants are
continuing and shall survive the execution and delivery hereof, and the truth
and accuracy of, or compliance with each, together with the representations,
warranties and covenants in the other Financing Agreements, being a continuing
condition of the making of loans and providing other financial accommodations by
Lender to Borrower:
(a) Effective as of September 1, 1999, Sellers have sold to
Purchaser all of the Sale Assets pursuant to the Sale Contract (as in
effect on the date hereof).
(b) A true, correct and complete copy of the Sale Contract,
together with all exhibits and schedules thereto, as executed by the
parties thereto is annexed hereto as Exhibit A.
(c) The security interests in and liens of Lender upon the
Collateral (as such term is defined in the Loan Agreement), other than
the Sale Assets, are and shall continue to be in full force and effect,
including, but not limited to, all amounts at any time payable to
Borrower, any Guarantor or any of their respective affiliates pursuant
to the Sale Contract (and all related agreements, documents and
instruments), and all rights, benefits and remedies of Borrower, any
Guarantor or any of their respective affiliates pursuant to the Sale
Contract (and all related agreements, documents and instruments).
(d) Borrower and Guarantors shall cause all amounts at any
time payable to Borrower, any Guarantor or any of their respective
affiliates pursuant to the Sale Contract or any related agreements,
documents and instruments to be paid by Purchaser directly to Lender or
to be deposited in one of the Collection Accounts (as such term is
defined in the Loan Agreement) for application to the Obligations (as
such term is defined in the Loan Agreement) in such order and manner as
Lender shall determine. The net amount payable by Purchaser to Sellers
pursuant to the Sale Contract shall be not less than the sum of (i)
$1,050,000, which shall be payable in cash or other immediately
available funds as of the date hereof plus (ii) the Net Holdback Amount
(as defined in the Sales Contract in effect on the date hereof), which
shall be payable in cash or other immediately available funds on or
before November 30, 1999.
(e) In the event Borrower, Guarantors or any of their
respective affiliates receives any amounts at any time payable to
Borrower, any Guarantor or any of their respective affiliates pursuant
to the Sale Contract or any related agreement, document or instrument,
such amounts shall be collected by Borrower, such Guarantor or such
affiliate, as the case may be, as the property of Lender and held by it
or them in trust for Lender and shall on the date received be remitted
to Lender in the form received, with any necessary assignments or
endorsements, for application to the Obligations in such order and
manner as Lender shall determine.
7. Effect of this Consent and Amendment. Except for the consent and
amendments expressly provided herein, no other changes or modifications to the
Financing Agreements are intended or implied and in all other respects the
Financing Agreements are hereby specifically ratified, restated and confirmed by
all parties hereto as of the date hereof. To the extent of conflict between the
terms of this Consent and Amendment and the other Financing Agreements, the
terms of this Consent and Amendment shall control. Any acknowledgment or consent
contained herein shall not be construed to constitute a consent to any other or
further action by Borrower or any Guarantor or to entitle Borrower or any
Guarantor to any other consent.
8. Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary or
proper to effectuate the provisions and purposes of this Consent and Amendment.
9. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the State of New York (without giving effect to
principles of conflicts of law or choice of law).
10. Counterparts. This Consent and Amendment may be executed in any
number of counterparts, but all of such counterparts shall together constitute
but one and the same agreement. In making proof of this Consent and Amendment,
it shall not be necessary to produce or account for more than one counterpart
hereof signed by each of the parties hereto.
Very truly yours,
ABLECO FINANCE, for itself
and as agent
By: /s/ Kevin P. Genda
Title: Senior Vice President and Chief
Credit Officer
AGREED:
HEALTH FITNESS CORPORATION
HEALTH FITNESS REHAB, INC.
DUFFY & ASSOCIATES PHYSICAL
THERAPY SERVICES CORP.
THE PREFERRED COMPANIES, INC.
MEDLINK CORPORATION
HEALTH FITNESS REHAB OF IOWA, INC.
MEDLINK SERVICES, INC.
FITNESS CENTERS OF AMERICA
SPORTS & ORTHOPEDIC PHYSICAL THERAPY, INC.
INTERNATIONAL FITNESS CLUB NETWORK, INC.
MIDLANDS PHYSICAL THERAPY, INC.
By: /s/ Thomas Knox
Title: Vice President
EXHIBIT A
TO
CONSENT AND AMENDMENT NO. 13 TO LOAN AND SECURITY AGREEMENT
AMONG
HEALTH FITNESS CORPORATION
HEALTH FITNESS REHAB, INC.
DUFFY & ASSOCIATES PHYSICAL
THERAPY SERVICES CORP.
THE PREFERRED COMPANIES, INC.
MEDLINK CORPORATION
HEALTH FITNESS REHAB OF IOWA, INC.
MEDLINK SERVICES, INC.
FITNESS CENTERS OF AMERICA
SPORTS & ORTHOPEDIC PHYSICAL THERAPY, INC.
INTERNATIONAL FITNESS CLUB NETWORK, INC.
MIDLANDS PHYSICAL THERAPY, INC.
AND
ABLECO FINANCE, FOR ITSELF AND AS AGENT
DATED: As of September 22, 1999
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