Exhibit 4.5(k)
EXECUTION
LIMITED WAIVER
Dated as of March 6, 2003
PlanVista Corporation
PlanVista Solutions, Inc.
0000 Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Chairman and Chief Executive Officer
Ladies and Gentlemen:
Reference is made to that certain Third Amended and Restated Credit
Agreement dated as of April 12, 2002 by and among PlanVista Corporation (f/k/a
HealthPlan Services Corporation) ("PVC"), a Delaware corporation, PlanVista
Solutions, Inc. (f/k/a National Preferred Provider Network, Inc.) ("PVSI") (PVC
and PVSI being collectively referred to herein as the "Borrowers" and sometimes
individually as a "Borrower"), the lenders referred to therein (the "Lenders")
and Wachovia Bank, National Association (f/k/a First Union National Bank), as
administrative agent (the "Administrative Agent") (as such agreement may have
been amended, restated, supplemented or otherwise modified from time to time
prior to the date hereof, the "Credit Agreement"). Capitalized terms used herein
without definition shall have the meanings set forth in the Credit Agreement.
The Borrower has requested that Required Lenders waive any Default or
Event of Default which may have occurred, or may hereafter occur, under Section
11.1(d) of the Credit Agreement solely as a result of the Borrowers' failure to
comply with the covenant contained in Section 9.2 (Minimum EBITDA) of the Credit
Agreement for the calendar month ending December 31, 2002.
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to waive any Default or Event of
Default which may have occurred, or may hereafter occur, under Section 11.1(d)
of the Credit Agreement solely as a result of the Borrowers' failure to comply
with the covenant contained in Section 9.2 (Minimum EBITDA) of the Credit
Agreement for the calendar month ending December 31, 2002 strictly due to
noncash adjustments to the financials for such calendar month as a result of the
completion of PricewaterhouseCoopers, LLC's audit of the Consolidated financial
statements of PVC and its Subsidiaries for Fiscal Year ending December 31, 2002.
Except as expressly provided in this Limited Waiver, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect. The waiver set forth above shall be limited precisely
as written and relates solely to noncompliance by the Borrowers with the
provisions of Sections 9.2 and 11.1(d) of the Credit Agreement in
manner and to the extent described above and nothing in this Limited Waiver
shall be deemed or otherwise construed: (a) to be a waiver of, or consent to or
a modification or amendment of (i) Sections 9.2 and 11.1(d) of the Credit
Agreement in any other instance or (ii) any other term or condition of the
Credit Agreement or any other Loan Document; (b) to prejudice any other right or
rights that the Administrative Agent or the Lenders, or any of them, may now
have or may have in the future under or in connection with the Credit Agreement
or the other Loan Documents; (c) to be a commitment or any other undertaking or
expression of any willingness to engage in any further discussion with the
Borrowers or any other person, firm or corporation with respect to any waiver,
amendment, modification or any other change to the Credit Agreement or the other
Loan Documents or any rights or remedies arising in favor of the Lenders or the
Administrative Agent, or any of them, under or with respect to any such
documents; or (d) to be a waiver of, or consent to or a modification or
amendment of, any other term or condition of any other agreement by and among
the Borrowers, on the one hand, and the Administrative Agent or any other
Lender, on the other hand.
Each Subsidiary Guarantor hereby acknowledges that it has read this
Limited Waiver and consents to the terms hereof and further hereby confirms and
agrees that, notwithstanding the effectiveness of this Limited Waiver, the
obligations of such Subsidiary Guarantor under the Subsidiary Guaranty Agreement
shall not be impaired or affected and the Subsidiary Guaranty Agreement is, and
shall continue to be, in full force and effect and is hereby confirmed and
ratified in all respects.
By its execution hereof, each Borrower hereby certifies on behalf of
itself and the other Credit Parties that (i) each of the representations and
warranties set forth in the Credit Agreement and the other Loan Documents is
true 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, (ii) no Default or Event of Default exists under the Credit
Agreement or the other Loan Documents after giving effect to the waiver
contemplated in this Limited Waiver and (iii) all financial projections
concerning PVC and its Subsidiaries that have been or are hereafter made
available to the Administrative Agent or the other Lenders by the Borrowers or
any of their representatives in connection with the transactions contemplated
hereby (the "Projections") have been (or will be, in the case of Projections
made available after the date hereof) prepared in good faith based upon
reasonable assumptions.
The Borrowers shall pay all reasonable out-of-pocket expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Limited Waiver, including, without limitation, the reasonable fees and
disbursements of counsel for the Administrative Agent.
This Limited Waiver may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. This Limited Waiver
shall become effective as of the date hereof upon: (i) the execution of
counterparts hereof by the Borrowers, the Subsidiary Guarantors and the Required
Lenders and receipt by the Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof; and (ii)
receipt by the Administrative Agent of
2
all fees and expenses of counsel and advisors to the Administrative Agent
invoiced on or prior to the date hereof.
THIS LIMITED WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
3
IN WITNESS WHEREOF, the parties hereto have caused this Limited Waiver
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
WACHOVIA BANK, NATIONAL
ASSOCIATION,
individually and as Administrative Agent
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
CREDIT LYONNAIS, NEW YORK BRANCH,
as a Lender
By: /s/ Xxxx-Xxxxxxx Van Essche
-----------------------------------
Name: Xxxx-Xxxxxxx Van Essche
Title: Vice President
SUNTRUST BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
SPRING STREET PARTNERS - I, L.P., as
a Lender
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
SOUTHTRUST BANK, as a Lender
By: /s/ B.E. Xxxxxxx
-----------------------------------
Name: B.E. Xxxxxxx
Title: Vice President
S-1
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEEBANK
BA "RABOBANK NEDERLAND", NEW YORK BRANCH,
as a Lender
By: ________________________________________
Name:
Title:
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
AMSOUTH BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Asst. Vice President
FIFTH THIRD BANK, CENTRAL OHIO, as a Lender
S-2
ACKNOWLEDGED AND AGREED BY:
BORROWERS:
PLANVISTA CORPORATION (f/k/a
HEALTHPLAN SERVICES CORPORATION)
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
PLANVISTA SOLUTIONS, INC. (f/k/a
NATIONAL PREFERRED PROVIDER
NETWORK, INC.)
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
SUBSIDIARY GUARANTORS:
NATIONAL NETWORK SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
S-3
