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EXHIBIT 10.2
SIXTH MODIFICATION OF
AMENDED AND RESTATED CREDIT AGREEMENT
THIS MODIFICATION (the "Modification") is made and entered into as of
this 21st day of October, 1996, among MEDAPHIS CORPORATION, a Delaware
corporation (hereinafter referred to as the "Borrower"), the banks and other
lending institutions listed on Annex I attached to the Credit Agreement
described below (collectively, the "Lenders") and SUNTRUST BANK, ATLANTA, a
Georgia banking corporation formerly known as Trust Company Bank, in its
capacity as the Agent for the Lenders pursuant to Article X of such Credit
Agreement (the "Agent").
STATEMENT OF FACTS
Pursuant to that certain Amended and Restated Credit Agreement, dated
as of August 13, 1993, among Borrower, the Lenders signatory thereto and the
Agent, as amended by the First Modification of Amended and Restated Credit
Agreement, dated as of July 1, 1994, among such parties, the Second
Modification of Amended and Restated Credit Agreement, dated as of November 23,
1994, among such parties, the Third Modification of Amended and Restated Credit
Agreement dated as of March 17, 1995, among such parties, the Fourth
Modification of Amended and Restated Credit Agreement dated as of January 31,
1996 and the Fifth Modification of Amended and Restated Credit Agreement dated
as of October 21, 1996 (collectively, the "Credit Agreement"), such Lenders
agreed to provide Borrower with certain credit facilities on the terms and
conditions set forth in the Credit Agreement (all capitalized terms used in
this Modification and which are not otherwise expressly defined herein shall
have the respective meanings given such terms in the Credit Agreement).
The parties are entering into this Modification in order to make
certain changes in the Credit Agreement, all in accordance with and subject to
the terms and conditions hereinafter set forth in this Modification.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants herein set forth, as well as for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties do hereby agree as follows:
STATEMENT OF TERMS
Section 1. Modifications of Credit Agreement. Subject to the terms and
conditions of this Modification (including without limitation the fulfillment
of the conditions precedent to the effectiveness of this Modification which are
set forth in Section 2 below), the parties hereby agree to modify the Credit
Agreement, effective as of September 30, 1996, in the following respects:
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(A) Section 1.01 of the Credit Agreement shall be amended by
adding thereto, in the appropriate alphabetical order, the
following new term:
"Acquired Companies" shall mean, collectively, Consort
Technologies, Inc., Medical Management Sciences, Inc., The
Halley Exchange, Inc., Intelligent Visual Computing, Inc.,
Rapid Systems Solutions, Inc., BSG Corporation, and Health
Data Sciences Corporation.
(B) Section 1.01 of the Credit Agreement shall be further amended
by deleting the definitions therein of the term "Consolidated
Net Income (Loss)" and by substituting, in lieu thereof, the
following new definition of such term:
"Consolidated Net Income (Loss)" shall mean, for any fiscal
period of the Borrower, the net income (or loss) of the
Consolidated Companies on a consolidated basis for such
period (taken as a single accounting period) determined in
conformity with GAAP, but excluding therefrom (to the extent
otherwise included therein) (i) any gains or losses, together
with any related provisions for taxes, realized upon any sale
of assets other than in the ordinary course of business, (ii)
any income or loss of any Person acquired prior to the date
such Person becomes a Subsidiary of the Borrower or is merged
into or consolidated with the Borrower or any of its
Subsidiaries or all or substantially all of such Person's
assets are acquired by the Borrower or any of its
Subsidiaries, (iii) the amount, net of Federal, state and
local income tax effects, in actual expenses incurred in
connection with the purchase of the Acquired Companies, which
actual net expenses shall not exceed the pretax equivalent of
$22,000,000 and only to the extent that these charges were
incurred during the fiscal period being measured, and (iv)
actual restructuring charges, net of Federal, state and local
income tax effects, incurred in the third quarter of 1996
ending September 30, 1996, which actual charges shall not
exceed the pretax equivalent of $44,000,000.
Section 2. Conditions Precedent to Effectiveness. This Modification
shall become effective, from and after the date hereof, upon the satisfaction
of each and every one of the following conditions to such effectiveness:
(a) The Agent shall have received the following documents in
form and substance reasonably satisfactory to the Agent (collectively,
the "Supplemental Credit Documents"):
(i) 10 counterparts of this Modification duly
completed and executed by Borrower, the Agent and the Lenders;
(ii) The written consent of each of the Guarantors
to the execution, delivery and performance of this
Modification, which written consent shall be
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evidenced by each Guarantor's signing one or more
counterparts of this Modification in the appropriate space
indicated below;
(iii) Certificates of the Borrower in substantially
the form of Attachment 1 attached hereto, duly executed and
appropriately completed; and
(iv) Resolutions of the Board of Directors or other
governing body of the Borrower approving this Modification
certified by the Secretary of the Borrower.
(b) Copies of all additional agreements, instruments and
documents which the Agent may reasonable request, such documents, when
appropriate, to be certified by appropriate governmental authorities.
(c) All proceedings of the Borrower relating to the matters
provided for herein shall be satisfactory to the Lenders, the Agent
and their counsel.
SECTION 3. BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower
represents and warrants to the Lenders and the Agent that (a) each of Borrower
and the Guarantors has all requisite corporate power and authority to execute
and deliver this Modification to which it is a party and to perform its
obligations under such Modification, and the Modification to which each such
Credit Party is a party have been duly authorized by all requisite corporate
action on the part of such Credit Party, have been duly executed and delivered
by authorized officers of such Credit Party, and constitute valid obligations
of such Credit Party, legally binding upon and enforceable against such Credit
Party in accordance with their terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally or
by general principles of equity; and (b) after giving effect to this
Modification, (i) no Default or Event of Default is existing under the Credit
Agreement on and as of the date of this Modification and (ii) the
representations and warranties of the Borrower set forth in Article VI of the
Credit Agreement are true and correct in all material respects on and as of the
date of this Modification as if made on and as of each of such date (except as
to the extent that any of such representations or warranties relates to a
specific prior date or period).
SECTION 4. AGENT EXPENSES. Without limiting its obligations under the
Credit Agreement, the Borrower agrees to pay on demand all of the reasonable
attorneys fees and expenses and all other reasonable out-of-pocket costs
incurred by the Agent and NationsBank, N.A. (South), a national banking
association, in connection with the evaluation, negotiation, documentation or
consummation of this Modification, the other Supplemental Credit Documents and
the transactions contemplated hereby or thereby.
SECTION 5. MISCELLANEOUS. (A) Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect, and each
reference to the Credit Agreement in the Credit Agreement and the other Credit
Documents shall be deemed to be a reference to the Credit
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Agreement as hereby amended and as the same may be further amended,
supplemented or otherwise modified and in effect from time to time hereafter.
(B) This Modification may be executed in a number of several
counterparts, each of which shall be identical and all of which when taken
together shall constitute one and the same instrument, and any of the parties
hereto may execute this Modification by signing one or more of such
counterparts.
(C) This Modification shall be governed by, and construed in
accordance with, the internal laws of the State of Georgia (without giving
effect to its conflicts of law rules).
(D) Should any one or more of the provisions of this Modification be
determined to be illegal or unenforceable as to one or more of the parties
hereto, all other provisions nevertheless shall remain binding on the parties
hereto.
(E) This Modification shall be binding upon and inure to the benefit
of each of the Borrower, the Lenders, the Agent and their respective
successors, assigns and legal representatives; provided, however, that the
Borrower, without the prior consent of the Lenders, may not assign any rights,
powers, duties and obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Modification
to be executed as of the day and year first above written and Borrower has
caused its seal to be hereunto affixed as of such date.
BORROWER:
(CORPORATE SEAL) MEDAPHIS CORPORATION
ATTEST:
By: /s/ MEDAPHIS CORPORATION
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/s/ Peggy B. Sherman
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Secretary
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AGENT:
SUNTRUST BANK, ATLANTA, as Agent
By: /s/ SUNTRUST BANK, ATLANTA
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LENDERS:
SUNTRUST BANK, ATLANTA, as a Lender
By: /s/ SUNTRUST BANK, ATLANTA
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NATIONSBANK, N.A. (SOUTH),
SUCCESSOR BY MERGER TO BANK SOUTH,
AS A LENDER
By: /s/ NATIONSBANK, N.A. (SOUTH)
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THE CHASE MANHATTAN BANK,
N.A., AS A LENDER
By: /s/ THE CHASE MANHATTAN BANK, N.A.
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CREDITANSTALT-BANKVEREIN, as a
LENDER
By: /s/ CREDITANSTALT-BANKVEREIN
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NATIONSBANK, N.A. (SOUTH), AS A LENDER
By: /s/ NATIONSBANK, N.A. (SOUTH)
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PNC BANK, N.A., AS A LENDER
By: /s/ PNC BANK, N.A.
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WACHOVIA BANK OF GEORGIA, N.A., AS A
LENDER
By: /s/ WACHOVIA BANK OF GEORGIA, N.A.
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