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Exhibit 10.1
SECOND AMENDMENT
THIS SECOND AMENDMENT to the Credit Agreement referred to below (this
"Second Amendment"), is made and entered into as of this 26 day of September,
1996 by and among HEALTHPLAN SERVICES CORPORATION, a corporation organized
under the laws of Delaware (the "Borrower"), certain Subsidiaries of the
Borrower identified on the signature pages hereto, the Lenders party to such
Credit Agreement, and FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as Agent for
the Lenders.
Statement of Purpose
The Existing Lenders have extended certain credit facilities to the
Borrower pursuant to the Credit Agreement dated as of May 17, 1996 (as amended
by the First Amendment thereto dated July 1, 1996 (the "First Amendment"), and
as may be further amended, restated or otherwise modified, the "Credit
Agreement"), by and among the Borrower, the Lenders party thereto on the
Closing Date (the "Existing Lenders"), and the Agent.
The Borrower has requested that the Lenders amend the Credit Agreement
to, among other things, increase the Aggregate Commitment thereunder to One
Hundred Seventy-Five Million Dollars ($175,000,000), and the Lenders have
agreed to do so, but only on the terms and conditions set forth below in this
Second Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. (a) All capitalized undefined terms used in this
Second Amendment shall have the meanings assigned thereto in the Credit
Agreement and (b) "Second Amendment Effective Date" means the date of this
Second Amendment or such later Business Day upon which each condition described
below in Section 4 shall be satisfied or waived in a manner acceptable to the
Agent and Required Lenders.
2. Amendments to the Credit Agreement. The Credit Agreement is
hereby amended as follows:
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(a) Section 1.1 is hereby amended by deleting the definition of
"Aggregate Commitment" in its entirety and substituting the following in lieu
thereof:
"` Aggregate Commitment' means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at
any time or from time to time pursuant to the terms hereof. On the
Second Amendment Effective Date, the Aggregate Commitment shall be
One Hundred and Seventy-Five Million Dollars ($175,000,000)."
(b) Section 1.1 is hereby amended by deleting the definition of
"Capital Expenditures" in its entirety and substituting the following in lieu
thereof:
"` Capital Expenditures' means, with respect to a Person and its
Subsidiaries for any period, the aggregate cost of replacement or
acquisition of all Capital Assets of such Person and its Subsidiaries
during such period, determined on a Consolidated basis in accordance
with GAAP; provided that for purposes of calculating the Interest
Coverage Ratio hereunder, the Capital Expenditure Add-Back shall be
added to Capital Expenditures for each fiscal quarter commencing with
the fiscal quarter ending on December 31, 1996 through and including
the fiscal quarter ending December 31, 1999."
(c) Section 1.1 is hereby amended by deleting the definition of
"Earnings Multiple" in its entirety and substituting the following in lieu
thereof:
"` Earnings Multiple' means, as of any date of determination, Pro
Forma EBITDA times three (3)."
(d) Section 1.1 is hereby amended by deleting the definition of "Pro
Forma EBITDA" in its entirety and substituting the following in lieu thereof:
"` Pro Forma EBITDA' means, as of any date of determination, EBITDA
for the period of four consecutive fiscal quarters ending on, or
immediately prior to, such date of determination, as set forth on the
applicable Officer's Compliance Certificate and financial statements
attached thereto, including on a pro forma basis EBITDA for such
period
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attributable to any Permitted Acquisition; provided that (a)
EBITDA attributable to any Permitted Acquisition (i) for the calendar
month during which such Permitted Acquisition is consummated shall be
included in Pro Forma EBITDA on an actual or pro forma basis as
determined in accordance with GAAP, (ii) for any calendar month
following such Permitted Acquisition which is part of the same fiscal
quarter during which such Permitted Acquisition is consummated shall
be included in Pro Forma EBITDA on an actual basis and (b) the
Acquisition Restructuring Charge (or any reversal of any portion
thereof) shall be excluded, during the fiscal quarter or quarters, as
applicable, in which such charge (or reversal) is treated as expensed
(or reversed) by the Borrower, from the calculation of Pro Forma
EBITDA and such treatment of the Acquisition Restructuring Charge
shall remain in effect for each subsequent calculation of Pro Forma
EBITDA which includes any such fiscal quarter."
(e) Section 1.1 is hereby amended by inserting the following
defined term in the correct alphabetical order:
"` Acquisition Restructuring Charge' means an amount equal to the
total restructuring charges, as described in column B of Exhibit I
hereto, expensed in connection with the acquisitions by the Borrower
of Consolidated Group, Inc. (including certain affiliated companies)
and Xxxxxxxxxx Services Corporation in an aggregate amount not to
exceed Thirteen Million Six Hundred Ninety-Five Thousand One Hundred
Eighty-Seven Dollars ($13,695,187); provided such charges are
expensed by the Borrower no later than the fiscal quarter ending on
December 31, 1996."
"` Capital Expenditure Add-Back' means an amount equal to the
Acquisition Restructuring Charge divided by twelve (12); provided,
that if any portion of the Acquisition Restructuring Charge is
subsequently reversed (and thus added back to income), the Capital
Expenditure Add-Back shall be reduced by the amount of such reversal
divided by the total number of fiscal quarters from such reversal
date (including the quarter in which such reversal is taken) through
and including the fiscal quarter ending December 31, 1999."
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"` Second Amendment Effective Date' shall have the meaning given
thereto in the Second Amendment hereto dated as of September 30, 1996
by and among the Borrower, the Lenders and the Agent."
(f) Schedule 1.1(b) is hereby deleted in its entirety and Schedule
1.1(b) attached hereto shall be substituted in lieu thereof.
(g) Section 8.1 is hereby amended by deleting such Section in its
entirety and substituting the following in lieu thereof:
"Section 8.1 Leverage Ratio. As of the end of any fiscal quarter of
the Borrower during the corresponding time period, permit the Leverage
Ratio to exceed (a) 2.50 to 1.00 from the Closing Date through June
29, 1996 and (b) 3.00 to 1.00 at June 30, 1996 and thereafter."
(h) Section 8.3 is hereby amended by deleting such Section in its
entirety and substituting the following in lieu thereof:
"Section 8.3. Capital Expenditures. Make Capital Expenditures during
any period of four consecutive fiscal quarters ending during the
applicable period set forth below in an aggregate amount in excess of
the corresponding amount set forth below:
From the Second Amendment
Effective Date through
December 31, 1999 $12,450,000
January 1, 2000 and
thereafter $17,000,000"
3. Additional Lenders; Commitments. The Fifth Third Bank of
Columbus and SunTrust Bank, Tampa Bay (collectively, the "Additional Lenders")
are hereby added as "Lenders" under the Credit Agreement as if each such
Additional Lender was a Lender party thereto on the Closing Date. Each Lender
shall have the Commitment set forth opposite its name on Schedule 1.1(b)
hereto. On the Second Amendment Effective Date, the Agent shall effect such
transfers of funds as are necessary in order that the outstanding
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Loans reflect the Commitments of all the Lenders as set forth herein.
4. Conditions. The effectiveness of this Second Amendment shall
be conditioned upon satisfaction of the following conditions:
(a) Promissory Notes and Delivery Affidavits. The
Borrower shall have issued and delivered to the Agent duly executed
Promissory Notes payable to each Lender in the amount of such Lender's
respective Commitment as set forth in this Second Amendment. Each
Existing Lender shall return to the Agent for cancellation and
forwarding to the Borrower each Promissory Note delivered thereto in
connection with the First Amendment. Further, the Borrower shall have
executed and delivered all delivery affidavits and such other
documents evidencing execution and delivery of such Promissory Notes
as are reasonably requested by any Lender.
(b) Upfront Fees. The Agent shall have received (a) for
the account the Lenders an amendment fee of Five Thousand Dollars
($5,000) for each Lender, (b) for the account of the Existing Lenders
an upfront fee equal to one-eighth of one percent (1/8%) of the
incremental portion of such Existing Lender's Commitment as increased
by this Second Amendment and (c) for the account of the Additional
Lenders an upfront fee equal to one-eighth of one percent (1/8%) of
the Commitment of such Additional Lenders.
(c) Certificate of the Borrower. The Agent shall have
received a certificate dated as of the Second Amendment Effective Date
from the Borrower, in form and substance satisfactory to the Agent,
certifying on behalf of the Credit Parties that all representations
and warranties of the Credit Parties contained in this Amendment and
the Loan Documents are true and correct in all material respects; that
no Credit Party is in violation of any of the covenants contained in
the other Loan Documents; that, after giving effect to the
transactions contemplated by this Amendment, no Default or Event
of Default has occurred and is continuing; and that the Credit Parties
have satisfied each of the closing conditions regarding the Second
Amendment to be satisfied thereby.
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(d) Certificate of Secretary of the Credit Parties. The
Agent shall have received a certificate of the secretary or assistant
secretary of each Credit Party dated as of the Second Amendment
Effective Date certifying on behalf of such Credit Party, as
applicable, that the articles of incorporation and bylaws of such
Credit Party previously delivered to the Agent have not been repealed,
revoked, rescinded or amended in any respect since such delivery date;
that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such Credit Party, authorizing
the execution, delivery and performance of this Amendment and the
continued effectiveness of the other Loan Documents; and as to the
incumbency and genuineness of the signature of each officer of such
Credit Party executing Loan Documents to which such Credit Party is a
party.
(e) Opinions of Counsel. The Agent shall have received
favorable opinions of counsel to the Credit Parties, dated as of the
Second Amendment Effective Date and addressed to the Agent and
Lenders, in form and substance satisfactory to the Agent.
(f) Additional Items. Receipt by the Agent of any other
document or instrument reasonably requested by it in connection with
the execution of this Amendment.
5. Limited Amendment. Except as expressly amended herein, the
Credit Agreement and each other Loan Document shall continue to be, and shall
remain, in full force and effect. This Second Amendment shall not be deemed
(a) to be a waiver of, or consent to, or a modification or amendment of, any
other term or condition of the Credit Agreement or any other Loan Documents or
(b) to prejudice any other right or rights which the Agent or Lenders may now
have or may have in the future under or in connection with the Credit Agreement
or the Loan Documents or any of the instruments or agreements referred to
therein, as the same may be amended, restated or otherwise modified from time
to time.
6. Representations and Warranties. By its execution hereof, the
Borrower hereby certifies on behalf of itself and the other Credit Parties that
each of the representations and warranties set forth in the Credit Agreement
and the other Loan Documents is true
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and correct as of the date hereof as if fully set forth herein and that as of
the date hereof no Default or Event of Default has occurred and is continuing.
7. Confirmation of Security Documents. Each Credit Party hereby
agrees and confirms that the definition of Obligations as used in each Pledge
Agreement and Subsidiary Guaranty Agreement to which it is a party includes the
Credit Agreement as amended hereby.
8. Expenses. The Borrower shall pay all reasonable out-of-pocket
expenses of the Agent in connection with the preparation, execution and
delivery of this Second Amendment, including without limitation, the reasonable
fees and disbursements of counsel for the Agent.
9. Governing Law. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of North Carolina.
10. Counterparts. This Second Amendment may be executed in
separate counterparts, each of which when executed and delivered is an original
but all of which taken together constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the date and year first above written.
BORROWER:
[CORPORATE SEAL] HEALTHPLAN SERVICES CORPORATION
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
and Chief Financial Officer
OTHER CREDIT PARTIES:
[CORPORATE SEAL] HEALTHPLAN SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
and Chief Financial Officer
[CORPORATE SEAL] HEALTHCARE INFORMATICS CORPORATION
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
[CORPORATE SEAL] THIRD PARTY CLAIMS MANAGEMENT, INC.
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
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[CORPORATE SEAL] XXXXXXXXXX SERVICES CORPORATION
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
[CORPORATE SEAL] R.E. XXXXXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
[CORPORATE SEAL] AMERICAN BENEFIT PLAN ADMINISTRATORS, INC.
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
[CORPORATE SEAL] PROHEALTH, INC.
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
[CORPORATE SEAL] EMPLOYEE BENEFIT SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
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[CORPORATE SEAL] CONSOLIDATED GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
[CORPORATE SEAL] GROUP BENEFIT ADMINISTRATORS INSURANCE
AGENCY, INC.
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
[CORPORATE SEAL] CONSOLIDATED GROUP CLAIMS, INC.
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
[CORPORATE SEAL] CONSOLIDATED HEALTH COALITION, INC.
By: /s/ Xxxxx X. Xxxxxx, III
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Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
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XXXXX XXXXX XXXXXXXX XXXX XX XXXXX XXXXXXXX,
as Agent and Lender
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
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XXXXXXX BANK, N.A.,
(as successor by merger to Xxxxxxx Bank
of Tampa, a State Bank), as Lender
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
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NATIONSBANK, N.A. (SOUTH), as Lender
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President
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SOUTHTRUST BANK OF ALABAMA,
NATIONAL ASSOCIATION, as Lender
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
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FLEET BANK, N.A., as Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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SUNTRUST BANK, TAMPA BAY, as Lender
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
State of Georgia
County of Xxxxxx
Subscribed and sworn before me this 25 day of September, 1996
(SEAL) /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Notary Public
My Commission Expires: Notary Public,
Xxxxxxx County, Georgia
My Commission Expires November 1, 1998
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THE FIFTH THIRD BANK
OF COLUMBUS, as Lender
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X.Xxxx
Title: Vice President
