EXHIBIT 10.1
FOURTH AMENDMENT TO CREDIT AGREEMENT
This Amendment, dated as of June 6, 2006, but effective as of May 30,
2006, is made by and between HEALTH FITNESS CORPORATION, a Minnesota corporation
(the "Borrower"), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking
association (the "Bank").
Recitals
The Borrower and the Bank are parties to a Credit Agreement dated as
of August 22, 2003, as amended by a First Amendment to Credit Agreement dated as
of December 5, 2003, by a Second Amendment to Credit Agreement and Waiver of
Defaults dated as of May 14, 2004, and by a Third Amendment to Credit Agreement
and Consent dated as of December 29, 2004 (as so amended, the "Credit
Agreement"). Capitalized terms used in these recitals have the meanings given to
them in the Credit Agreement unless otherwise specified.
The Borrower has requested that certain amendments be made to the
Credit Agreement. The Bank is willing to grant the Borrower's requests pursuant
to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, it is agreed as follows:
1. Definitions. All terms defined in the Credit Agreement that are not
otherwise defined herein shall have the meanings given them in the Credit
Agreement. In addition, the following definitions in Section 1.1 are amended:
"Facility Amount" means $7,500,000, reducing by $250,000 on September
30, 2003, and on the last day of each calendar quarter thereafter until
reduced to $3,500,000, unless the Borrower further reduces such amount
pursuant to Section 2.9, in which event it means such further reduced
amount.
"Maturity Date" means June 30, 2008.
2. Reporting. Sections 5.1(b) and (d) of the Credit Agreement are
amended to read as follows:
(b) As soon as available and in any event within 45 days after the end
of each calendar quarter, consolidated balance sheets of the Borrower and
its Subsidiaries as of the end of such quarter and related consolidated
statements of earnings and cash flows of the Borrower and its Subsidiaries
for such quarter and for the year to date, in reasonable detail and stating
in comparative form the figures for
the corresponding date and period in the previous year, all prepared in
accordance with GAAP, subject to year-end audit adjustments.
(d) If the outstanding principal balance of the Advances exceeds
$2,000,000 at any time during any month, a Borrowing Base Certificate as of
the last day of the most recently ended month or, if not available, as of
the last day of the month preceding the most recently ended month, properly
executed by the chief financial officer of the Borrower, together with such
agings of accounts receivable and other supporting documentation as the
Bank may require.
3. No Other Changes. Except as explicitly amended by this Amendment,
all of the terms and conditions of the Credit Agreement shall remain in full
force and effect and shall apply to any advance or letter of credit thereunder.
4. Conditions. This Amendment shall be effective only if the Bank has
received, on or before the date hereof (or such other date as the Bank may agree
to in writing), this Amendment, duly executed by the Borrower.
5. Representations and Warranties. The Borrower hereby represents and
warrants to the Bank as follows:
(a) The Borrower has all requisite power and authority to execute this
Amendment and to perform all of its obligations hereunder, and this
Amendment has been duly executed and delivered by the Borrower and
constitutes the legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms.
(b) The execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by all necessary corporate action and
do not (i) require any authorization, consent or approval by any
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) violate any provision of any
law, rule or regulation or of any order, writ, injunction or decree
presently in effect, having applicability to the Borrower, or the articles
of incorporation or by-laws of the Borrower, or (iii) result in a breach of
or constitute a default under any indenture or loan or credit agreement or
any other agreement, lease or instrument to which the Borrower is a party
or by which it or its properties may be bound or affected.
(c) All of the representations and warranties contained in Article IV
of the Credit Agreement are correct on and as of the date hereof as though
made on and as of such date, except to the extent that such representations
and warranties relate solely to an earlier date.
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6. No Other Waiver. The execution of this Amendment any documents
related hereto shall not be deemed to be a waiver of any Default or Event of
Default under the Credit Agreement or breach, default or event of default under
any Security Document or other document held by the Bank, whether or not known
to the Bank and whether or not existing on the date of this Amendment.
7. Release. The Borrower hereby absolutely and unconditionally
releases and forever discharges the Bank, and any and all participants, parent
corporations, subsidiary corporations, affiliated corporations, insurers,
indemnitors, successors and assigns thereof, together with all of the present
and former directors, officers, agents and employees of any of the foregoing,
from any and all claims, demands or causes of action of any kind, nature or
description, whether arising in law or equity or upon contract or tort or under
any state or federal law or otherwise, which the Borrower has had, now has or
has made claim to have against any such person for or by reason of any act,
omission, matter, cause or thing whatsoever arising from the beginning of time
to and including the date of this Amendment, whether such claims, demands and
causes of action are matured or unmatured or known or unknown.
8. References. All references in the Credit Agreement to "this
Agreement" shall be deemed to refer to the Credit Agreement as amended hereby;
and any and all references in the Loan Documents to the Credit Agreement shall
be deemed to refer to the Credit Agreement as amended hereby.
9. Miscellaneous. The Borrower shall pay all costs and expenses of the
Bank, including attorneys' fees, incurred in connection with the drafting and
preparation of this Amendment and any related documents. Except as amended by
this Amendment, all of the terms and conditions of the Credit Agreement shall
remain in full force and effect. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts of this Amendment, taken together,
shall constitute but one and the same instrument. This Amendment shall be
governed by the substantive law of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first written above.
WELLS FARGO BANK, NATIONAL HEALTH FITNESS CORPORATION
ASSOCIATION
By /s/ Kent Paulson By /s/ Wesley W. Winnekins
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Kent Paulson Wesley W. Winnekins
Its Vice President Its Chief Financial Officer and
Treasurer
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