EXHIBIT 10.12(e)
HEALTHPLAN SERVICES CORPORATION
SECOND AMENDMENT AND LIMITED WAIVER AND CONSENT
THIS SECOND AMENDMENT AND LIMITED WAIVER AND CONSENT to the Credit
Agreement referred to below (this "Amendment"), is dated as of the 16th day of
April, 2001, by and among HEALTHPLAN SERVICES CORPORATION, a Delaware
corporation (the "Borrower"), THE LENDERS LISTED ON THE SIGNATURE PAGES HEREOF
(the "Lenders"), FIRST UNION NATIONAL BANK ("First Union"), as administrative
agent (the "Administrative Agent"), and, for purposes of Section 5 hereof, the
Credit Parties listed on the signature pages hereof, and is made with reference
to: (i) that certain Second Amended and Restated Credit Agreement dated as of
June 8, 2000 by and among the Borrower, the Lenders and the Administrative Agent
(as modified by the Limited Waiver and Consent thereto dated as of June 29,
2000, the Limited Waiver and Consent thereto dated as of September 12, 2000, the
Limited Waiver thereto dated as of September 19, 2000, the Limited Waiver and
Consent thereto dated as of September 19, 2000, the Limited Waiver and Consent
thereto dated as of October 19, 2000, the Limited Waiver thereto dated as of
December 8, 2000, the First Amendment and Limited Waiver and Consent thereto
dated as of March 29, 2001 (the "First Amendment") and as such agreement may
have otherwise been amended, restated, supplemented or otherwise modified from
time to time prior to the date hereof, the "Credit Agreement"); and (ii) that
certain Security and Second Amended and Restated Pledge Agreement dated as of
June 8, 2000 (as heretofore amended, modified, restated or supplemented from
time to time, the "Security and Pledge Agreement"), among the Borrower, the
Subsidiary Guarantors party thereto and First Union, as administrative agent for
and representative of (in such capacity, the "Secured Party") the Lenders.
Capitalized terms used herein without definition shall have the meanings set
forth in the Credit Agreement or the Security and Pledge Agreement, as
applicable.
R E C I T A L S
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WHEREAS, the Borrower has informed the Administrative Agent and
Lenders that it proposes to form a Wholly-Owned Subsidiary under the name
"PlanVista Corporation" for the sole purpose of merging into the Borrower in a
transaction in which the Borrower will be the surviving corporation under the
name PlanVista Corporation (the "Proposed Transaction").
WHEREAS, the Borrower has informed the Administrative Agent and
Lenders that (i) for administrative reasons, the Borrower intends to cancel all
of the remaining intercompany debt of the Borrower and its Subsidiaries
consisting of (a) $3,481,000 of the remaining debt owing by American Benefit
Plan Administrators, Inc. ("ABPA") to HPSI pursuant to that certain Promissory
Note dated January 20, 2000 made by HPSI in favor of the Borrower in the
aggregate principal amount of $16,245,000 (as amended by the Allonge thereto
dated June 8, 2000, the "ABPA Promissory Note"), which debt was transferred by
HPSI and is currently owing to the Borrower and $12,764,000 of which has already
been cancelled (the "Remaining ABPA Debt Cancellation"), (b) all of the debt
owing by Xxxxxxxxxx Management Corporation ("Xxxxxxxxxx") to HPSI pursuant to
that certain Promissory Note
dated January 20, 2000 made by Xxxxxxxxxx in favor of the HPSI in the aggregate
principal amount of $5,094,000 (as amended by the Allonge thereto dated June 8,
2000, the "Xxxxxxxxxx Promissory Note"), which debt was transferred by HPSI and
is currently owing to the Borrower (the "Xxxxxxxxxx Debt Cancellation"), (c) all
of the debt owing by ProHealth, Inc. ("ProHealth") to HPSI pursuant to that
certain Promissory Note dated January 20, 2000 made by ProHealth in favor of the
HPSI in the aggregate principal amount of $994,000 (as amended by the Allonge
thereto dated June 8, 2000, the "ProHealth Promissory Note"), which debt was
transferred by HPSI and is currently owing to the Borrower (the "ProHealth Debt
Cancellation") and (d) all of the debt owing by Southern Nevada Administrators,
Inc. ("Southern Nevada") to HPSI pursuant to that certain Promissory Note dated
January 20, 2000 made by Southern Nevada in favor of the HPSI in the aggregate
principal amount of $1,244,000 (as amended by the Allonge thereto dated June 8,
2000, the "Southern Nevada Promissory Note"; and together with the ABPA
Promissory Note, the Xxxxxxxxxx Promissory Note and the ProHealth Promissory
Note, the "Subject Notes"), which debt was transferred by HPSI and is currently
owing to the Borrower (the "Southern Nevada Debt Cancellation"; and, together
with the Remaining ABPA Debt Cancellation, the Xxxxxxxxxx Debt Cancellation, the
ProHealth Debt Cancellation and the Southern Nevada Debt Cancellation, the
"Subject Debt Cancellation"), and (ii) the Borrower will treat the Subject Debt
Cancellation as a capital contribution to HPSI equal to the aggregate amount of
such cancelled debt and for which no additional capital stock will be issued to
the Borrower by HPSI;
WHEREAS, pursuant to the Security and Pledge Agreement, the Borrower
and HPSI granted to the Secured Party a security interest in all of its right,
title and interest in and to, among other things, each of the Subject Notes;
WHEREAS, the Borrower has requested that the Administrative Agent and
Required Lenders to (i) waive the restrictions contained in Sections 10.4 and
10.15 of the Credit Agreement to permit the Proposed Transaction and (ii)
consent to the delivery of the Subject Notes for the purpose of the Subject Debt
Cancellation; and
WHEREAS, the Administrative Agent and Required Lenders have agreed to
make certain amendments and waive certain requirements of the Credit Agreement
and consent to the delivery of the Subject Notes, but only on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby agree pursuant to Section 13.12 of the Credit Agreement as follows:
SECTION 1.
AMENDMENTS TO THE CREDIT AGREEMENT
On the basis of the representations and warranties contained in this
Amendment, and subject to the terms and the satisfaction of the conditions set
forth in this Amendment, the Administrative Agent and Required Lenders hereby
agree as follows:
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A. Amendment to Section 1.1. Section 1.1 of the Credit Agreement is
------------------------
hereby amended by deleting the definitions of "Borrowing Base," "Borrowing Base
Certificate," and "Eligible Accounts Receivable" appearing therein in their
entirety.
B. Amendment to Section 2.3(b). Section 2.3(b) of the Credit Agreement
---------------------------
is hereby amended by deleting clauses (iii)(G) and (iii) (H) thereto in its
entirety and substituting the following language therefor:
"(G) Reserved.
(H) Reserved.".
C. Amendment to Section 5.2(g). Section 5.2(g) of the Credit Agreement
---------------------------
is hereby deleted in its entirety and the following new language substituted
therefor:
"(g) Reserved.".
D. Amendment to Exhibit E. Exhibit E of the Credit Agreement is hereby
----------------------
deleted in its entirety and the following new language substituted therefor:
"Exhibit E. Reserved.".
SECTION 2.
LIMITED WAIVER AND CONSENT TO THE CREDIT AGREEMENT; CONDITIONS TO AMENDMENT
A. Proposed Transaction. On the basis of the representations and
--------------------
warranties contained in this Amendment, and subject to the terms and conditions
of this Amendment, the Administrative Agent and Required Lenders hereby agree to
waive compliance with Sections 10.4 and 10.15 of the Credit Agreement solely to
the extent necessary permit the Proposed Transaction; provided, that
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concurrently with the consummation of the Proposed Transaction the Borrower
shall deliver to the Administrative Agent (i) UCC financing statements duly
executed by PlanVista Corporation with respect to all personal and mixed
property Collateral of the Borrower, for filing in all jurisdictions as may be
necessary or, in the opinion of the Administrative Agent, desirable to perfect
the security interests created in such Collateral pursuant to the Security
Documents, (ii) UCC-3 amendments duly executed by the Borrower with respect to
all UCC financing statements previously filed in such jurisdictions as the
Administrative Agent deemed necessary or desirable to perfect the security
interests created in such Collateral pursuant to the Security Documents and
(iii) such other documents or instruments as the Administrative Agent may
reasonably require.
B. Delivery of the Subject Notes. On the basis of the representations
-----------------------------
and warranties contained in this Amendment, and subject to the terms and
conditions of this Amendment, the Required Lenders hereby consent to the
delivery of the Subject Notes by the Secured Party to the Borrower solely for
the purpose of the Subject Debt Cancellation; provided, that concurrently with
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the Subject Debt Cancellation the Borrower shall deliver to the Administrative
Agent duly executed originals of an Officer's Certificate dated as of the date
of the Subject Debt Cancellation (the "Debt Cancellation Date"), in form and
substance
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satisfactory to the Administrative Agent, certifying that the representations
and warranties of the Credit Parties contained in Section 6.1(t) are true,
correct and complete in all material respects as of the Debt Cancellation Date
and attached thereto is a true, correct and complete copy of Schedule 6.1(t) to
the Credit Agreement as of the Debt Cancellation Date.
C. HealthAxis Asset Sale; Delivery of Irrevocable Stock Powers. With
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respect to the HealthAxis Asset Sale (as such term is defined in the First
Amendment), the Required Lenders hereby consent to the return by the
Administrative Agent to the Borrower of any Irrevocable Stock Power executed by
the Borrower and previously delivered to the Administrative Agent in respect of
the Health Axis Securities Collateral (as such term is defined in the First
Amendment) only upon consummation of the HealthAxis Asset Sale in accordance
with each of the terms set forth in Section 2A of the First Amendment.
SECTION 3.
LIMITATION OF WAIVER
Except as expressly provided in this Amendment, the Credit Agreement,
the Security and Pledge Agreement and each other Loan Document shall continue to
be, and shall remain, in full force and effect. Without limiting the generality
of the provisions of Section 13.12 of the Credit Agreement, the waivers set
forth above shall be limited precisely as written and relate solely to
noncompliance by the Borrower with the provisions of Sections 10.4 and 10.15 of
the Credit Agreement in manner and to the extent described above and nothing in
this Limited Waiver and Consent shall be deemed or otherwise construed to:
(a) constitute a waiver of, or consent to or a modification or
amendment of (i) Sections 10.4 and 10.15 of the Credit Agreement in any other
instance or (ii) any other term or condition of the Credit Agreement, the
Security and Pledge Agreement or any other Loan Document;
(b) 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, Security and Pledge Agreement or the
other Loan Documents;
(c) constitute a commitment or any other undertaking or expression of
any willingness to engage in any further discussion with the Borrower or any
other person, firm or corporation with respect to any waiver, amendment,
modification or any other change to the Credit Agreement, the Security and
Pledge 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) constitute 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 Borrower, on the one hand, and the Administrative Agent or any other Lender,
on the other hand.
SECTION 4.
REPRESENTATIONS AND WARRANTIES
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In order to induce the Administrative Agent and Lenders to enter into
this Amendment, Borrower hereby represents and warrants to the Administrative
Agent and Lenders that:
A. Authorization; Binding Obligations. Each Credit Party has all
----------------------------------
requisite corporate power and authority to enter into this Amendment. The
execution, delivery and performance of this Amendment have been duly authorized
by all necessary corporate action by each Credit Party. This Amendment has been
duly executed and delivered by each Credit Party and is the legal, valid and
binding obligation of each Credit Party, enforceable against each Credit Party
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether enforcement
is sought in equity or at law). As of the Second Amendment Effective Date (as
hereinafter defined), the Credit Agreement, as amended by this Amendment, will
constitute the legal, valid and binding obligation of each Credit Party,
enforceable against each Credit Party in accordance with its terms, except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
B. Incorporation of Representations. Each representation and
--------------------------------
warranty of each Credit Party contained in each of the Loan Documents is true,
correct and complete in all material respects on and as of the Second Amendment
Effective Date to the same extent as though made on and as of the Second
Amendment Effective Date, except to the extent such representations and
warranties relate to an earlier date, in which case they were true, correct and
complete in all material respects as of such earlier date.
C. Absence of Defaults. No event has occurred and is continuing or
-------------------
would result from the execution, delivery or performance of this Amendment that
constitutes or would constitute a Default or Event of Default after giving
effect to this Amendment.
D. Financial Projections. All financial projections concerning the
---------------------
Borrower and its Subsidiaries that have been or are hereafter made available to
the Administrative Agent or the other Lenders by the Borrower or any of its
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.
E. Performance. Except as otherwise waived by this Amendment, the
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Borrower has performed in all material respects all agreements to be performed
on its part on or before the date hereof as set forth in the Credit Agreement.
SECTION 5.
ACKNOWLEDGEMENT AND CONSENT BY CREDIT PARTIES
The Borrower and each other Credit Party executing a counterpart
hereto agree to and acknowledge the terms and provisions of this Amendment and
confirm that each Loan Document to which such Credit Party is a party shall
continue in full force and effect and that all
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of its obligations thereunder shall be valid and enforceable and shall not be
impaired or affected by the execution of this Amendment, except as specifically
provided herein. The Borrower and each other Credit Party executing a
counterpart hereof represent and warrant that all representations and warranties
contained in each Loan Document to which such Credit Party is a party are true,
correct and complete in all material respects as of the date hereof to the same
extent as though made on each such date and that the Borrower and each such
Credit Party has performed in all material respects all agreements to be
performed on its part on or before the date hereof as set forth in the Loan
Documents.
SECTION 6.
CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the date hereof (the
"Second Amendment Effective Date") only upon receipt of the following by the
Administrative Agent of (i) counterparts hereof duly executed by each Credit
Party and the Required Lenders and written or telephonic notification of such
execution and authorization of delivery thereof and (ii) such other documents as
the Administrative Agent may reasonably request; provided, however, that,
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notwithstanding the foregoing, the amendments set forth in Section 1 of this
Amendment shall become effective as of the Second Amendment Effective Date only
upon the effectiveness of the First Amendment.
SECTION 7.
MISCELLANEOUS
A. Effect of Amendment. Except as specifically provided herein, this
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Amendment does not in any way waive, amend, modify, affect or impair the terms
and conditions of the Credit Agreement or the other Loan Documents, and all
terms and conditions of the Credit Agreement and the other Loan Documents are
hereby ratified and confirmed and shall remain in full force and effect unless
otherwise specifically amended, waived, modified or changed pursuant to the
terms and conditions of this Amendment.
On and after the Second Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof", or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as modified by this Amendment.
B. Fees and Expenses. The Borrower acknowledges that all costs, fees
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and expenses as described in Section 13.2 of the Credit Agreement incurred by
the Administrative Agent in connection with the preparation, execution and
delivery of this Amendment and the documents and transactions contemplated
hereby, including, without limitation, the reasonable fees and disbursements of
counsel for the Administrative Agent, shall be for the account of the Borrower.
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C. Headings. Section and subsection headings in this Amendment are
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included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS LIMITED WAIVER AND CONSENT 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.
E. Counterparts. This Amendment 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.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
FIRST UNION NATIONAL BANK,
individually and as Administrative Agent
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Officer
CREDIT LYONNAIS, NEW YORK BRANCH,
as a Lender
By: /s/ Xxxx Xxxxxxx Xxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx Xxx Xxxxxx
Title: Vice President
SUNTRUST BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Director
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxx X. Xxxx, II
-----------------------------------
Name: Xxxx X. Lucy, II
Title: Vice President
SOUTHTRUST BANK, as a Lender
By: /s/ B. E. Xxxxxxx
-----------------------------------
Name: B. E. Xxxxxxx
Title: Group Vice President
S-1
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a
Lender
By: /s/ Xxxxx X. Xxxxxxxxxx /s/ Xxxx XxXxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx Xxxx XxXxxxx
Title: Managing Director Vice President
Chief Risk Officer
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
AMSOUTH BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice president
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
FIFTH THIRD BANK, CENTRAL OHIO, as a
Lender
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
S-2
BORROWER:
HEALTHPLAN SERVICES CORPORATION, as Borrower
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & Chief Executive Officer
OTHER CREDIT PARTIES:
HEALTHPLAN SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
PLANVISTA SOLUTIONS, INC. (f/k/a
NATIONAL PREFERRED PROVIDER
NETWORK, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
NATIONAL NETWORK SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
S-3
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
AMERICAN BENEFIT PLAN ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President & Secretary
HPS OF DELAWARE LLC (f/k/a CENTRA
HEALTHPLAN LLC)
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE
BENEFIT SERVICES, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
GROUP BENEFIT ADMINISTRATORS
INSURANCE AGENCY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Clerk
S-4
HEALTHPLAN SERVICES INSURANCE AGENCY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Clerk
HEALTHPLAN SERVICES INSURANCE
AGENCY OF ILLINOIS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
XXXXXXXXXX MANAGEMENT
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
PROHEALTH, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
HPS OF MISSOURI, INC. (f/k/a REH
AGENCY OF MISSOURI, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
S-5
SOUTHERN NEVADA ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
S-6
EXECUTION
LIMITED WAIVER AND CONSENT
Dated as of April 30, 2001
HealthPlan Services Corporation
0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, President & Chief Operating Officer
Ladies and Gentlemen:
Reference is made to that certain Second Amended and Restated Credit
Agreement dated as of June 8, 2000 among HealthPlan Services Corporation, a
Delaware corporation (the "Borrower"), the lenders referred to therein (the
"Lenders") and First Union National Bank ("First Union"), as administrative
agent (the "Administrative Agent") (as modified by the Limited Waiver and
Consent thereto dated as of June 29, 2000, the Limited Waiver and Consent
thereto dated as of September 12, 2000, the Limited Waiver thereto dated as of
September 19, 2000, the Limited Waiver and Consent thereto dated as of September
19, 2000, the Limited Waiver and Consent thereto dated as of October 19, 2000,
the Limited Waiver thereto dated as of December 8, 2000, the First Amendment and
Limited Waiver and Consent thereto dated as of March 29, 2001 (the "First
Amendment"), the Second Amendment and Limited Waiver and Consent thereto dated
as of April 16, 2001 (the "Second Amendment") and as such agreement may have
otherwise 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 informed the Administrative Agent and Lenders that
certain directors of the Borrower have proposed to make subordinated loans to
the Borrower (each a "Director Loan" and collectively, the "Director Loans") in
the aggregate amount of $1,000,000, in each case pursuant to a subordinated
promissory note (each a "Subordinated Note" and collectively, the "Subordinated
Notes"). The Borrower has requested that Required Lenders waive the restrictions
contained in Sections 10.1 and 10.9 of the Credit Agreement to the extent
necessary to permit the Director Loans.
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to waive compliance with Sections 10.1
and 10.9 of the Credit Agreement solely to the extent necessary to permit the
Borrower to consummate the Director Loans pursuant to the terms of the
Subordinated Notes; provided that (i) the Director Loans shall be made in an
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amount not less than $750,000 in the aggregate and (ii) the proceeds of any
Director Loans shall be applied solely to pay amounts due to The New England
Life Insurance Company; provided further that concurrently with the consummation
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of the Director Loans, the
Administrative Agent shall have received a subordination agreement in form and
substance acceptable to the Administrative Agent duly executed by each director
making a Director Loan and the Borrower.
Notwithstanding anything contained herein to the contrary, this
Limited Waiver and Consent shall cease to be of any force or effect if the
Director Loans have not been consummated on or before June 15, 2001.
Except as expressly provided in this Limited Waiver and Consent, the
Credit Agreement and each other Loan Document shall continue to be, and shall
remain, in full force and effect. The waivers set forth above shall be limited
precisely as written and relate solely to noncompliance by the Borrower with the
provisions of Sections 10.1 and 10.9 of the Credit Agreement in manner and to
the extent described above and nothing in this Limited Waiver and Consent shall
be deemed or otherwise construed: (a) to be a waiver of, or consent to or a
modification or amendment of (i) Sections 10.1 or 10.9 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
Borrower 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 Borrower, 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 Consent and consents to the terms hereof and further hereby
confirms and agrees that, notwithstanding the effectiveness of this Limited
Waiver and Consent, 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, the 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 Consent and (iii) all financial
projections concerning the Borrower and its Subsidiaries that have been or are
hereafter made available to the Administrative Agent or the other Lenders by the
Borrower or any of its 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.
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The Borrower shall pay all reasonable out-of-pocket expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Limited Waiver and Consent, including, without limitation, the
reasonable fees and disbursements of counsel for the Administrative Agent.
This Limited Waiver and Consent 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 and Consent shall become effective as of the date hereof (the
"Limited Waiver Effective Date") upon (i) the execution of counterparts hereof
by the Borrower 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 the final form
of Subordinated Notes in form and substance approved by the Administrative Agent
with such changes thereto as may be acceptable to the Administrative Agent.
Notwithstanding anything to the contrary in the First Amendment or the Second
Amendment, upon the Limited Waiver Effective Date, the First Amendment and
Second Amendment shall be deemed effective in their entirety as of the First
Amendment Effective Date and the Second Amendment Effective Date (as defined in
the Second Amendment), respectively.
THIS LIMITED WAIVER AND CONSENT 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
and Consent to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
FIRST UNION NATIONAL BANK,
individually and as Administrative Agent
By: /s/ Xxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Officer
FIRST UNION NATIONAL BANK,
as Secured Party
By: /s/ Xxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Officer
CREDIT LYONNAIS, NEW YORK BRANCH, as a Lender
By: /s/ Xxxx Xxxxxxx Xxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx Xxx Xxxxxx
Title: Vice President
SUNTRUST BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Director
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxx X. Xxxx, II
-----------------------------------------
Name: Xxxx X. Lucy, II
Title: Vice President
S-1
SOUTHTRUST BANK, as a Lender
By: /s/ B. E. Xxxxxxx
--------------------------------
Name: B. E. Xxxxxxx
Title: Group Vice President
S-2
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxx /s/ Xxxx XxXxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx Xxxx XxXxxxx
Title: Managing Director Vice President
Chief Risk Officer
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
AMSOUTH BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice president
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
FIFTH THIRD BANK, CENTRAL OHIO, as a Lender
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
S-3
BORROWER:
HEALTHPLAN SERVICES CORPORATION, as Borrower
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & Chief Executive Officer
OTHER CREDIT PARTIES:
HEALTHPLAN SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
PLANVISTA SOLUTIONS, INC. (f/k/a
NATIONAL PREFERRED PROVIDER NETWORK, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
NATIONAL NETWORK SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
S-4
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
AMERICAN BENEFIT PLAN ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President & Secretary
HPS OF DELAWARE LLC (f/k/a CENTRA HEALTHPLAN LLC)
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE BENEFIT
SERVICES, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
GROUP BENEFIT ADMINISTRATORS INSURANCE AGENCY,
INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Clerk
S-5
HEALTHPLAN SERVICES INSURANCE AGENCY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Clerk
HEALTHPLAN SERVICES INSURANCE AGENCY OF
ILLINOIS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
XXXXXXXXXX MANAGEMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
PROHEALTH, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
HPS OF MISSOURI, INC. (f/k/a REH
AGENCY OF MISSOURI, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
S-6
SOUTHERN NEVADA ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
S-7
LIMITED WAIVER AND CONSENT
Dated as of May 4, 2001
HealthPlan Services Corporation
0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, President & Chief Operating Officer
Ladies and Gentlemen:
Reference is made to: (i) that certain Second Amended and Restated
Credit Agreement dated as of June 8, 2000 among HealthPlan Services Corporation,
a Delaware corporation (the "Borrower"), the lenders referred to therein (the
"Lenders") and First Union National Bank ("First Union"), as administrative
agent (the "Administrative Agent") (as modified by the Limited Waiver and
Consent thereto dated as of June 29, 2000, the Limited Waiver and Consent
thereto dated as of September 12, 2000, the Limited Waiver thereto dated as of
September 19, 2000, the Limited Waiver and Consent thereto dated as of September
19, 2000, the Limited Waiver and Consent thereto dated as of October 19, 2000,
the Limited Waiver thereto dated as of December 8, 2000, the First Amendment and
Limited Waiver and Consent thereto dated as of March 29, 2001, the Second
Amendment and Limited Waiver and Consent thereto dated as of April 16, 2001, the
Limited Waiver and Consent thereto dated as of April 30, 2001 and as such
agreement may have otherwise been amended, restated, supplemented or otherwise
modified from time to time prior to the date hereof, the "Credit Agreement");
and (ii) that certain Security and Second Amended and Restated Pledge Agreement
dated as of June 8, 2000 (as heretofore amended, modified, restated or
supplemented from time to time, the "Security and Pledge Agreement"), among the
Borrower, the Subsidiary Guarantors party thereto and First Union, as
administrative agent for and representative of (in such capacity, the "Secured
Party") the Lenders. Capitalized terms used herein without definition shall have
the meanings set forth in the Credit Agreement or the Security and Pledge
Agreement, as applicable.
The Borrower has informed the Administrative Agent and Lenders that
the Borrower, as sole stockholder of HPSI, and the following wholly owned
subsidiaries of HPSI, American Benefit Plan Administrators, a California
corporation ("ABPA"), Southern Nevada Administrators, Inc., a Nevada corporation
("SNA"), Xxxxxxxxxx Management Corporation, a Pennsylvania corporation ("MMC"),
ProHealth, Inc., a Delaware corporation ("PHI"), HealthPlan Services Insurance
Agency of Illinois, Inc., an Illinois corporation ("HPSIA Ill"), Group Benefit
Administrators Insurance Agency, Inc., a Massachusetts corporation ("GBAIA"),
and HealthPlan Services Insurance Agency, Inc., a Massachusetts corporation
("HPSIA" and together with HPSI, MMC, ABPA, SNA, PHI, GBAIA and HPSIA Ill., the
"Companies"), have
entered into a Stock Purchase Agreement dated as of April 1, 2001 (as amended,
restated or supplemented from time to time, the "Stock Purchase Agreement") with
HealthPlan Holdings, Inc., a Delaware corporation as purchaser ("Purchaser"),
pursuant to which the Borrower has agreed to sell to Purchaser all of the issued
and outstanding shares of capital stock of HPSI (the "Subject Assets"). The
Borrower has requested that Required Lenders waive the restrictions contained in
Sections 8.2(a) and 10.6 of the Credit Agreement to the extent necessary to
permit the sale of the Subject Assets (the "Subject Asset Sale") and consent to
the release of the Liens created by the Security and Pledge Agreement on the
Subject Assets pursuant to the terms thereof.
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to waive compliance with Sections
8.2(a) and 10.6 of the Credit Agreement solely to the extent necessary to permit
the Borrower to consummate the Subject Asset Sale pursuant to the terms of the
Stock Purchase Agreement; provided that on or prior to the consummation of the
--------
Subject Asset Sale, the Administrative Agent shall have received (i) an
Officer's Certificate dated as of the date of the Closing under the Stock
Purchase Agreement, duly executed by HPSI certifying evidence satisfactory to
the Administrative Agent that HPSI has contributed the capital stock of each of
HPS of Louisiana, Inc. (f/k/a Employee Benefit Services, Inc.) and HPS of
Missouri, Inc. (f/k/a REH Agency of Missouri, Inc.) and the membership interests
of HPS of Delaware LLC (f/k/a Centra HealthPlan LLC) to the Borrower, (ii) new
certificates (which certificates shall be accompanied by irrevocable undated
stock powers duly endorsed in blank and otherwise satisfactory in form and
substance to the Administrative Agent) representing or evidencing the capital
stock of HPS of Louisiana, Inc. and HPS of Missouri, Inc. and the membership
interests of HPS of Delaware LLC, it being understood that concurrently with the
delivery of such new certificates and instruments, the Administrative Agent is
hereby authorized by the Required Lenders to return for cancellation the
existing certificates representing or evidencing the capital stock or membership
interests, as the case may be, of the foregoing entities and any Irrevocable
Stock Power executed by HPSI in respect of such certificates and previously
delivered to the Administrative Agent and (iii) a Pledge Supplement duly
executed by the Borrower with respect to the capital stock of each of HPS of
Louisiana, Inc. and HPS of Missouri, Inc. and the membership interests of HPS of
Delaware LLC; and provided further that none of the conditions precedent to the
--------
Borrower's obligation to close the Subject Asset Sale as described in Section
6.1 of the Stock Purchase Agreement shall have been waived by the Borrower
except as agreed upon by the Administrative Agent in its sole discretion.
Required Lenders hereby authorize the Administrative Agent to, (a)
upon receipt of an Officer's Certificate from the Borrower by the Administrative
Agent pursuant to Section 20(b) of the Security and Pledge Agreement in respect
of the Subject Assets, at the Borrower's sole cost and expense and so long as
Secured Party has no reason to believe that such Officer's Certificate is not
true and correct, execute and deliver such releases of its security interest in
and Liens on such Collateral which constitutes the Subject Assets as may be
reasonably requested by the Borrower in connection with the Subject Asset Sale,
including, without limitation, any UCC-3 termination statements and other full
or partial release instruments, as applicable and (b) upon consummation of the
Subject Asset Sale in accordance with the Stock Purchase Agreement and the
provisions of this Limited Waiver and Consent, deliver to the Borrower the
certificates representing all of the capital stock of each of the Companies
pledged pursuant to the Security
2
and Pledge Agreement, including any Irrevocable Stock Powers executed by the
Borrower or HPSI, as the case may be, in respect of such certificates and
previously delivered to the Administrative Agent.
Notwithstanding anything contained herein to the contrary, this
Limited Waiver and Consent shall cease to be of any force or effect if the
Subject Asset Sale has not been consummated on or before June 15, 2001.
Except as expressly provided in this Limited Waiver and Consent, the
Credit Agreement, Security and Pledge Agreement and each other Loan Document
shall continue to be, and shall remain, in full force and effect. The waivers
set forth above shall be limited precisely as written and relate solely to
noncompliance by the Borrower with the provisions of Sections 8.2(a) and 10.6 of
the Credit Agreement in manner and to the extent described above and nothing in
this Limited Waiver and Consent shall be deemed or otherwise construed: (a) to
be a waiver of, or consent to or a modification or amendment of (i) Sections
8.2(a) or 10.6 of the Credit Agreement in any other instance or (ii) any other
term or condition of the Credit Agreement, the Security and Pledge 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, Security and Pledge
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 Borrower or any other person, firm or corporation with respect to any
waiver, amendment, modification or any other change to the Credit Agreement,
Security and Pledge 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 Borrower, 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 Consent and consents to the terms hereof and further hereby
confirms and agrees that, notwithstanding the effectiveness of this Limited
Waiver and Consent, 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, the 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, Security and Pledge 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 Consent and (iii) all financial
projections concerning the Borrower and its Subsidiaries that have been or are
hereafter made available to the Administrative Agent or the other Lenders by the
Borrower or any of its 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.
3
The Borrower shall pay all reasonable out-of-pocket expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Limited Waiver and Consent, including, without limitation, the
reasonable fees and disbursements of counsel for the Administrative Agent.
This Limited Waiver and Consent 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 and Consent shall become effective as of the date hereof (the
"Limited Waiver Effective Date") upon (i) the execution of counterparts hereof
by the Borrower and the Required Lenders and receipt by the Administrative Agent
of written or telephonic notification of such execution and authorization of
delivery thereof, (ii) receipt by the Administrative Agent of the final form of
the Stock Purchase Agreement which shall be in form and substance approved by
the Administrative Agent with such changes thereto as may be acceptable to the
Administrative Agent, (iii) receipt by the Administrative Agent of that certain
Letter of Credit No. S165884 issued by First Union for the account of The New
England Life Insurance Co. in the current outstanding amount of $6,000,000,
which Letter of Credit shall be returned to the Administrative Agent undrawn in
its entirety or if drawn upon the Administrative Agent shall have received a
cash payment equal to any amount drawn on such Letter of Credit and (iv) receipt
by the Administrative Agent of (A) an Officer's Certificate duly executed by the
Borrower and dated as of the first day following the Closing under the Stock
Purchase Agreement, in form and substance satisfactory to the Administrative
Agent, certifying that the representations and warranties of the Credit Parties
contained in Section 6.1(b) are true, correct and complete in all material
respects as of such date and attached thereto is a true, correct and complete
copy of Schedule 6.19(b) to the Credit Agreement as of such date, and (B) such
other documents, agreements and instruments as the Administrative Agent may
reasonably require.
THIS LIMITED WAIVER AND CONSENT 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]
4
IN WITNESS WHEREOF, the parties hereto have caused this Limited Waiver
and Consent to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
FIRST UNION NATIONAL BANK,
individually and as Administrative Agent
By: /s/ Xxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Officer
FIRST UNION NATIONAL BANK,
as Secured Party
By: /s/ Xxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Officer
CREDIT LYONNAIS, NEW YORK BRANCH, as a Lender
By: /s/ Xxxx Xxxxxxx Xxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx Xxx Xxxxxx
Title: Vice President
SUNTRUST BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Director
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxx X. Xxxx, II
-----------------------------------------
Name: Xxxx X. Lucy, II
Title: Vice President
S-1
SOUTHTRUST BANK, as a Lender
By: /s/ B. E. Xxxxxxx
------------------------------
Name: B. E. Xxxxxxx
Title: Group Vice President
S-2
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a
Lender
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Managing Director
Chief Risk Officer
By: /s/ Xxxx XxXxxxx
----------------------------------------
Name: Xxxx XxXxxxx
Title: Vice President
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
AMSOUTH BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice president
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
FIFTH THIRD BANK, CENTRAL OHIO, as a Lender
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
S-3
BORROWER:
HEALTHPLAN SERVICES CORPORATION, as Borrower
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & Chief Executive Officer
OTHER CREDIT PARTIES:
HEALTHPLAN SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
PLANVISTA SOLUTIONS, INC. (f/k/a
NATIONAL PREFERRED PROVIDER
NETWORK, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
NATIONAL NETWORK SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
S-4
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
AMERICAN BENEFIT PLAN ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President & Secretary
HPS OF DELAWARE LLC (f/k/a CENTRA HEALTHPLAN LLC)
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE BENEFIT
SERVICES, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
GROUP BENEFIT ADMINISTRATORS INSURANCE AGENCY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Clerk
S-5
HEALTHPLAN SERVICES INSURANCE AGENCY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Clerk
HEALTHPLAN SERVICES INSURANCE
AGENCY OF ILLINOIS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
XXXXXXXXXX MANAGEMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
PROHEALTH, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
HPS OF MISSOURI, INC. (f/k/a REH AGENCY OF
MISSOURI, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
S-6
SOUTHERN NEVADA ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
S-7
LIMITED WAIVER AND EXTENSION
Dated as of June 15, 2001
PlanVista Corporation
0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, President & Chief Executive Officer
Ladies and Gentlemen:
Reference is made to that certain Second Amended and Restated Credit
Agreement dated as of June 8, 2000 among HealthPlan Services Corporation, a
Delaware corporation (n/k/a PlanVista Corporation) (the "Borrower"), the lenders
referred to therein (the "Lenders") and First Union National Bank ("First
Union"), as administrative agent (the "Administrative Agent") (as modified by
the Limited Waiver and Consent thereto dated as of June 29, 2000, the Limited
Waiver and Consent thereto dated as of September 12, 2000, the Limited Waiver
thereto dated as of September 19, 2000, the Limited Waiver and Consent thereto
dated as of September 19, 2000, the Limited Waiver and Consent thereto dated as
of October 19, 2000, the Limited Waiver thereto dated as of December 8, 2000,
the First Amendment and Limited Waiver and Consent thereto dated as of March 29,
2001 (the "First Amendment"), the Second Amendment and Limited Waiver and
Consent thereto dated as of April 16, 2001, the Limited Waiver and Consent
thereto dated as of April 30, 2001, the Limited Waiver and Consent thereto dated
as of May 4, 2001 (the "May Limited Waiver") and as such agreement may have
otherwise 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: (i) waive any
Default or Event of Default which may have occurred under Section 11.1(b) of the
Credit Agreement as a result of the Borrower's failure to make the payments
required by Section 2.3(b)(iii)(I) of the Credit Agreement; (ii) waive the
requirement set forth in the May Limited Waiver as a condition to its
effectiveness that the Administrative Agent receive that certain Letter of
Credit No. S165884 issued by First Union for the account of The New England Life
Insurance Co. in the current outstanding amount of $6,000,000 (the "TNE Letter
of Credit"), (iii) waive the restrictions contained in Sections 10.1 and 10.3 of
the Credit Agreement and reaffirm their consent under the May Limited Waiver to
waive the restrictions contained in Sections 8.2(a) and 10.6, in each case to
the extent necessary to permit the Borrower to consummate the Subject Asset Sale
(as defined in the May Limited Waiver); (iv) waive the Reimbursement Obligation
of the Borrower pursuant to Section 3.5 of the Credit Agreement solely with
respect to any drawing under the TNE Letter of Credit or the Xxx Xxxx Letters of
Credit; (v) extend the June 15, 2001
date set forth in the first full paragraph on page 3 of the May Limited Waiver
to June 20, 2001; and (vi) extend the June 30, 2001 date set forth in Section
2.D of the First Amendment to August 31, 2001.
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 be continuing under Section 11.1(b) of the
Credit Agreement solely as a result of the Borrower's failure to make a
mandatory prepayment of the Loans of tax refunds received for the Fiscal Year
2000 as required by Section 2.3(b)(iii)(I) of the Credit Agreement.
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to waive compliance with the
requirement set forth in the May Limited Waiver as a condition to its
effectiveness that the Administrative Agent shall have received the TNE Letter
of Credit, which Letter of Credit is required thereby to be returned to the
Administrative Agent undrawn in its entirety or if drawn upon the Administrative
Agent is required to receive a cash payment equal to any amount drawn on such
Letter of Credit (the "TNE Requirement").
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to waive compliance with Sections 10.1
and 10.3 of the Credit Agreement to permit the Borrower to (i) incur
Indebtedness on the terms of that certain 6% Subordinated Secured Convertible
Note to be made by the Borrower in favor of the Purchaser (as defined in the May
Limited Waiver) in the aggregate principal amount of $5,000,000 (the
"Subordinated Note") and (ii) grant Liens on the terms of the Subordinated Note,
that certain Subordination Agreement by and between First Union, as
Administrative Agent and Lender, and the Purchaser, and that certain Security
and Pledge Agreement among the Borrower, the Subsidiaries of the Borrower and
the Purchaser, in each case in connection with the Subject Asset Sale and solely
to the extent necessary to permit the Borrower to consummate the Subject Asset
Sale pursuant to the terms of the Stock Purchase Agreement (as defined in the
May Limited Waiver), as amended. The undersigned Required Lenders hereby
reaffirm their consent to waive compliance with Sections 8.2(a) and 10.6 of the
Credit Agreement solely to the extent necessary to permit the Borrower to
consummate the Subject Asset Sale pursuant to the terms of the Stock Purchase
Agreement, as amended; provided that each of the conditions set forth in the
--------
first full paragraph on page 2 of the May Limited Waiver are met.
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to waive compliance with the
Reimbursement Obligation of the Borrower set forth in Section 3.5 of the Credit
Agreement solely with respect to any drawing under the TNE Letter of Credit or
the Xxx Xxxx Letters of Credit.
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to extend: (i) the June 15, 2001
date set forth in the first full paragraph on page 3 of the May Limited Waiver
to June 20, 2001 and (ii) the June 30, 2001 date set forth in Section 2.D of the
First Amendment to August 31, 2001.
In order to induce the Required Lenders to enter into this Limited
Waiver and Extension, the Borrower agrees as follows: (i) to pay to the
Administrative Agent for the benefit
2
of Lenders a waiver fee ("Waiver Fee") in the amount of $172,500 which Waiver
Fee shall be payable in cash on the earlier of (x) the Final Maturity Date and
(y) the date on which the Loans have been repaid in full, the Revolving Loan
Commitments terminated, all outstanding Letters of Credit replaced or cash
collateralized and all other Obligations then due and owing paid in full. For
the avoidance of doubt, this Limited Waiver and Extension shall be deemed a Loan
Document and any failure by the Borrower to comply with any term, covenant or
condition hereof shall constitute an immediate Event of Default.
Except as expressly provided in this Limited Waiver and Extension, the
Credit Agreement, the May Limited Waiver and each other Loan Document shall
continue to be, and shall remain, in full force and effect. The waivers set
forth above shall be limited precisely as written and relate solely to
noncompliance by the Borrower with the provisions of Sections 2.3(b)(iii)(I),
3.5, 10.6 and 11.1(b) of the Credit Agreement and the TNE Requirement of the May
Limited Waiver in manner and to the extent described above and nothing in this
Limited Waiver and Extension shall be deemed or otherwise construed: (a) to be
a waiver of, or consent to or a modification or amendment of (i) Sections
2.3(b)(iii)(I), 3.5, 10.6 and 11.1(b) of the Credit Agreement or the May Limited
Waiver in any other instance or (ii) any other term or condition of the Credit
Agreement, the May Limited Waiver 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, the May Limited Waiver 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 Borrower or any other person, firm or
corporation with respect to any waiver, amendment, modification or any other
change to the Credit Agreement, the May Limited Waiver 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 Borrower, 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 Extension and consents to the terms hereof and further hereby
confirms and agrees that, notwithstanding the effectiveness of this Limited
Waiver and Extension, 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, the 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 Extension; and (iii) all financial
projections concerning the Borrower and its Subsidiaries that have been or are
hereafter made available to the Administrative Agent or the other Lenders by the
Borrower or any of its representatives in connection with the transactions
contemplated
3
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 Borrower shall pay all reasonable out-of-pocket expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Limited Waiver and Extension, including, without limitation, the
reasonable fees and disbursements of counsel for the Administrative Agent.
This Limited Waiver and Extension 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 and Extension shall become effective as of the date hereof upon
the execution of counterparts hereof by the Borrower and the Required Lenders
and receipt by the Administrative Agent of written or telephonic notification of
such execution and authorization of delivery thereof.
THIS LIMITED WAIVER AND EXTENSION 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]
4
IN WITNESS WHEREOF, the parties hereto have caused this Limited Waiver
and Extension to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
FIRST UNION NATIONAL BANK,
as a Lender and as Administrative Agent
By: /s/ Xxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Officer
CREDIT LYONNAIS, NEW YORK BRANCH, as a Lender
By: /s/ Xxxx Xxxxxxx Xxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx Xxx Xxxxxx
Title: Vice President
SUNTRUST BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Director
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxx X. Lucy, II
--------------------------------------
Name: Xxxx X. Xxxx, II
Title: Vice President
SOUTHTRUST BANK, as a Lender
By: /s/ B. E. Xxxxxxx
--------------------------------------
Name: B. E. Xxxxxxx
Title: Group Vice President
S-1
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK NEDERLAND",
NEW YORK BRANCH, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxx /s/ Xxxx XxXxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx Xxxx XxXxxxx
Title: Managing Director Vice President
Chief Risk Officer
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
AMSOUTH BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
FIFTH THIRD BANK, CENTRAL OHIO, as a Lender
By: /s/ Xxxx Xxxxxx
------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
S-2
BORROWER:
PLANVISTA CORPORATION, as Borrower
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
OTHER CREDIT PARTIES:
HEALTHPLAN SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
PLANVISTA SOLUTIONS, INC. (f/k/a NATIONAL PREFERRED
PROVIDER NETWORK, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
NATIONAL NETWORK SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
S-3
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
AMERICAN BENEFIT PLAN ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President &
Secretary
HPS OF DELAWARE LLC (f/k/a CENTRA
HEALTHPLAN LLC)
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE
BENEFIT SERVICES, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
GROUP BENEFIT ADMINISTRATORS INSURANCE
AGENCY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Clerk
S-4
HEALTHPLAN SERVICES INSURANCE AGENCY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Clerk
HEALTHPLAN SERVICES INSURANCE AGENCY OF ILLINOIS,
INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
XXXXXXXXXX MANAGEMENT CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
PROHEALTH, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
HPS OF MISSOURI, INC. (f/k/a REH AGENCY OF
MISSOURI, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
S-5
SOUTHERN NEVADA ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
S-6
PLANVISTA CORPORATION
THIRD AMENDMENT AND LIMITED WAIVER
THIS THIRD AMENDMENT AND LIMITED WAIVER to the Credit Agreement
referred to below (this "Amendment"), is dated as of the 2nd day of July, 2001,
by and among PLANVISTA CORPORATION (f/k/a HEALTHPLAN SERVICES CORPORATION), a
Delaware corporation (the "Borrower"), THE LENDERS LISTED ON THE SIGNATURE PAGES
HEREOF (the "Lenders"), FIRST UNION NATIONAL BANK ("First Union"), as
administrative agent (the "Administrative Agent"), and, for purposes of Sections
5 and 6 hereof, the Credit Parties listed on the signature pages hereof, and is
made with reference to that certain Second Amended and Restated Credit Agreement
dated as of June 8, 2000 by and among the Borrower, the Lenders and the
Administrative Agent (as modified by the Limited Waiver and Consent thereto
dated as of June 29, 2000, the Limited Waiver and Consent thereto dated as of
September 12, 2000, the Limited Waiver thereto dated as of September 19, 2000,
the Limited Waiver and Consent thereto dated as of September 19, 2000, the
Limited Waiver and Consent thereto dated as of October 19, 2000, the Limited
Waiver dated as of December 8, 2000, the First Amendment and Limited Waiver and
Consent dated as of March 29, 2001, the Second Amendment and Limited Waiver and
Consent dated as of April 16, 2001, the Limited Waiver and Consent dated as of
April 30, 2001, the Limited Waiver and Consent dated as of May 4, 2001, the
Limited Waiver and Extension dated as of June 15, 2001 and as such agreement may
have otherwise 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.
R E C I T A L S
- - - - - - - -
WHEREAS, the Borrower has requested that Lenders (i) waive compliance
with the provisions of Section 2.3(a) of the Credit Agreement solely with
respect to the scheduled payments of principal on the Term Loans due June 30,
2001 and July 31, 2001, and (ii) waive compliance with Section 2.3(b)(iii)(C) of
the Credit Agreement solely to permit the Borrower to retain Net Securities
Proceeds in an aggregate amount not to exceed $3,300,000, provided that such Net
--------
Securities Proceeds are used solely to pay obligations assumed by Borrower in
connection with the closing of that certain Stock Purchase Agreement by and
between the Borrower and HealthPlan Holdings, Inc., dated as of April 1, 2001,
as amended on June 18, 2001 (the "Stock Purchase Agreement"); and
WHEREAS, the Administrative Agent and Lenders have agreed to make
certain amendments to and waive certain requirements of the Credit Agreement,
but only on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby agree pursuant to Section 13.12 of the Credit Agreement as follows:
SECTION 1.
AMENDMENTS TO THE CREDIT AGREEMENT
On the basis of the representations and warranties contained in this
Amendment, and subject to the terms and the satisfaction of the conditions set
forth in this Amendment, the Administrative Agent and Lenders hereby agree as
follows:
A. Amendments to Section 1.1.
-------------------------
(1) Section 1.1 of the Credit Agreement is hereby amended
by deleting the definitions of "Applicable Margin" and "Carry Over Amount"
appearing therein in their entirety.
(2) Section 1.1 of the Credit Agreement is further amended
by inserting the following definitions therein in alphabetical order:
'Fiscal Month' means any fiscal month of any Fiscal Year.
------------
'Third Amendment' means that certain Third Amendment to the Second
---------------
Amended and Restated Credit Agreement dated as of July 2, 2001 by and among
the Borrower, the Lenders and the Administrative Agent.
'Third Amendment Effective Date' means the Third Amendment Effective
------------------------------
Date as defined in the Third Amendment."
B. Amendments to Section 4.
-----------------------
(3) Sections 4.1(a) and (b) of the Credit Agreement are
hereby amended and restated in their entirety as follows:
"SECTION 4.1. Interest.
--------
(a) Interest Rate. From and after the Third Amendment Effective
-------------
Date, subject to the provisions of Sections 4.1(c) and 4.1(e), the
aggregate principal balance of the Notes or any portion thereof shall bear
interest at a rate per annum equal to the Base Rate plus four percentage
----
points (4%).
(b) Reserved."
--------
B. Amendment to Section 7. Section 7.1 of the Credit Agreement is
----------------------
hereby amended by (i) re-lettering paragraphs (a), (b), (c), (d) and (e) as
paragraphs (b), (c), (d) and (e) and new paragraph (f) and (ii) inserting a new
paragraph (a) thereto as follows:
"(a) Weekly Statements. As soon as practicable and in any event no
-----------------
later than Wednesday of each calendar week, an Adjusted Budget as of the
Friday of the calendar week immediately preceding such Wednesday."
2
C. Amendments to Section 9.
-----------------------
(1) Section 9.1 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"SECTION 9.1 Minimum Total Receipts. Permit Total Receipts as of the
----------------------
last day of each calendar week for the four week period then ended to be
less than ninety percent (90%) of the Total Receipts set forth in the
Adjusted Budget for such four (4) week period."
(2) Section 9.4 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"SECTION 9.4 Capital Expenditures. Make or incur any Capital
---------------------
Expenditures in any Fiscal Month commencing with the Fiscal Month of June
of the Fiscal Year 2001 in an aggregate amount in excess of $10,000;
provided that to the extent that Capital Expenditures permitted for any
--------
such Fiscal Month exceed actual Capital Expenditures for such Fiscal Month,
the excess shall be permitted to be carried over to the immediately
succeeding Fiscal Month."
SECTION 2.
LIMITED WAIVER AND CONSENT TO THE CREDIT AGREEMENT; CONDITIONS
TO AMENDMENT
A. Certain Scheduled Payments of Principal on Term Loans. On the
-----------------------------------------------------
basis of the representations and warranties contained in this Amendment, and
subject to the terms and conditions of this Amendment, the Administrative Agent
and Lenders hereby agree to waive compliance with Section 2.3(a) of the Credit
Agreement solely with respect to the scheduled payments of principal on the Term
Loans due June 30, 2001 and July 31, 2001; provided that such scheduled payments
--------
and all other outstanding Obligations shall be paid in full no later than the
Final Maturity Date.
B. Certain Mandatory Prepayments Due to Issuance of Equity or Debt
---------------------------------------------------------------
Securities. On the basis of the representations and warranties contained in
----------
this Amendment, and subject to the terms and conditions of this Amendment, the
Administrative Agent and Required Lenders hereby agree to waive compliance with
Section 2.3(b)(iii)(C) of the Credit Agreement solely with respect to the
mandatory prepayment of the Loans from Net Securities Proceeds in an amount not
to exceed $3,300,000; provided that on the date of receipt of such Net
--------
Securities Proceeds the Borrower shall apply such proceeds to pay obligations
assumed by Borrower in connection with the closing of the Stock Purchase
Agreement.
SECTION 3.
LIMITATION OF WAIVER
Except as expressly provided in this Amendment, the Credit Agreement
and each other Loan Document shall continue to be, and shall remain, in full
force and effect. Without limiting the generality of the provisions of Section
13.12 of the Credit Agreement, the waivers set forth above shall be limited
precisely as written and relate solely to noncompliance by the Borrower with the
provisions of Sections 2.3(a) and 2.3(b)(iii)(C) of the Credit Agreement in
3
manner and to the extent described above and nothing in this Limited Waiver and
Consent shall be deemed or otherwise construed to:
(a) constitute a waiver of, or consent to or a modification or
amendment of (i) Sections 2.3(a) and 2.3(b)(iii)(C) 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) 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) constitute a commitment or any other undertaking or expression of
any willingness to engage in any further discussion with the Borrower 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) constitute 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 Borrower, on the one hand, and the Administrative Agent or any other Lender,
on the other hand.
SECTION 4.
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and Lenders to enter into
this Amendment, the Borrower hereby represents and warrants to the
Administrative Agent and Lenders that:
A. Authorization; Binding Obligations. Each Credit Party has all
----------------------------------
requisite corporate power and authority to enter into this Amendment. The
execution, delivery and performance of this Amendment have been duly authorized
by all necessary corporate action by each Credit Party. This Amendment has been
duly executed and delivered by each Credit Party and is the legal, valid and
binding obligation of each Credit Party, enforceable against each Credit Party
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether enforcement
is sought in equity or at law). As of the Third Amendment Effective Date (as
hereinafter defined), the Credit Agreement, as amended by this Amendment, will
constitute the legal, valid and binding obligation of each Credit Party,
enforceable against each Credit Party in accordance with its terms, except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
B. Incorporation of Representations. Each representation and
--------------------------------
warranty of each Credit Party contained in each of the Loan Documents is true,
correct and complete in all
4
material respects on and as of the Third Amendment Effective Date to the same
extent as though made on and as of the Third Amendment Effective Date, except to
the extent such representations and warranties relate to an earlier date, in
which case they were true, correct and complete in all material respects as of
such earlier date.
C. Absence of Defaults. No event has occurred and is continuing or
-------------------
would result from the execution, delivery or performance of this Amendment that
constitutes or would constitute a Default or Event of Default after giving
effect to this Amendment.
D. Financial Projections. All financial projections concerning the
---------------------
Borrower and its Subsidiaries that have been or are hereafter made available to
the Administrative Agent or the other Lenders by the Borrower or any of its
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.
E. Performance. The Borrower has performed in all material respects
-----------
all agreements to be performed on its part on or before the date hereof as set
forth in the Credit Agreement.
SECTION 5.
RELEASE AND DISCHARGE OF CLAIMS OF ACTION
TO INDUCE THE ADMINISTRATIVE AGENT AND LENDERS TO ENTER INTO THIS
AMENDMENT, THE BORROWER AND EACH OTHER CREDIT PARTY ON BEHALF OF ITSELF AND EACH
OF ITS SUBSIDIARIES AND AFFILIATES EACH HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND IRREVOCABLY RELEASES, ACQUITS AND FOREVER DISCHARGES THE
ADMINISTRATIVE AGENT AND EACH LENDER AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL LIABILITIES, CLAIMS,
DEMANDS, ACTIONS OR CAUSES OF ACTION OF ANY KIND (IF ANY THERE BE), WHETHER
ABSOLUTE OR CONTINGENT, DUE OR TO BECOME DUE, DISPUTED OR UNDISPUTED, AT LAW OR
IN EQUITY, THAT THE BORROWER OR ANY OTHER CREDIT PARTY NOW HAS OR EVER HAD
AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER ARISING UNDER, BASED UPON OR IN
CONNECTION WITH THE LOAN AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY BY REASON OF ANY MATTER, CAUSE OR THING
WHATSOEVER FROM THE BEGINNING OF THE WORLD TO AND INCLUDING THE THIRD AMENDMENT
EFFECTIVE DATE.
SECTION 6.
ACKNOWLEDGEMENT AND CONSENT BY CREDIT PARTIES
The Borrower and each other Credit Party executing a counterpart
hereto agree to and acknowledge the terms and provisions of this Amendment and
confirm that each Loan Document to which such Credit Party is a party shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or affected by the
execution of this Amendment, except as specifically provided herein. The
Borrower and
5
each other Credit Party executing a counterpart hereof represent and warrant
that all representations and warranties contained in each Loan Document to which
such Credit Party is a party are true, correct and complete in all material
respects as of the date hereof to the same extent as though made on each such
date and that the Borrower and each such Credit Party has performed in all
material respects all agreements to be performed on its part on or before the
date hereof as set forth in the Loan Documents.
SECTION 7.
FEES; REGISTRATION RIGHTS; RETENTION OF INVESTMENT BANKER
A. Fees. In consideration for the execution and delivery of this
----
Amendment, the Borrower agrees to deliver to the Administrative Agent, for the
ratable benefit of the Lenders, an aggregate amount of 75,000 shares of common
stock of the Borrower held in treasury (the "Fee Shares"), which Fee Shares
shall be subject to the Registration Rights Agreement (described below). By no
later than July 11, 2001, Borrower shall have delivered to the Administrative
Agent certificates evidencing the Fee Shares.
B. Registration Rights Agreement. By no later than July 11, 2001,
-----------------------------
the Borrower shall have executed and delivered to the Administrative Agent and
the Lenders a registration rights agreement with respect to the Fee Shares in
form and substance acceptable to the Administrative Agent.
C. Retention of Investment Banker. The Borrower shall retain the
------------------------------
services of an investment banker reasonably acceptable to the Administrative
Agent and the Lenders to pursue a sale of all or substantially all of the assets
or capital stock of the Borrower or its Subsidiaries. The Administrative Agent
shall receive an executed copy of the engagement letter with such investment
banker by August 1, 2001, which engagement letter shall, among other things,
provide that such investment banker shall be authorized to report to the
Administrative Agent as soon as practicable and in any event no later than
Friday of each calendar week commencing with the calendar week of August 6, 2001
regarding the status of the sale.
SECTION 8.
CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the date hereof (the
"Third Amendment Effective Date") only upon receipt of the following by the
Administrative Agent:
(a) counterparts hereof duly executed by each Credit Party and the
Lenders and written or telephonic notification of such execution and
authorization of delivery thereof;
(b) a duly authorized resolution of Borrower's board of directors
authorizing (i) the issuance and sale of up to 710,000 shares of the common
stock of Borrower held in treasury and (ii) to the extent necessary to raise
funds and pay the obligations assumed by the Borrower in connection with the
closing of the Stock Purchase Agreement, the issuance and sale of up to an
additional 750,000 shares of common stock of the Borrower;
(c) the Borrower shall have retained the services of Xxxx Xxxxx of
Xxxxxx Xxxxxxxx (together with such other professionals from Xxxxxx Xxxxxxxx as
may be necessary
6
from time to time) who shall be responsible for the cash management of the
Borrower, receivables tracking and collections and such other duties as may be
agreed upon by the Borrower and the Administrative Agent and, the Administrative
Agent shall have received an executed copy of the engagement letter with Xxxxxx
Xxxxxxxx in form, substance and scope reasonably acceptable to the
Administrative Agent.
SECTION 9.
MISCELLANEOUS
A. Effect of Amendment. Except as specifically provided herein, this
-------------------
Amendment does not in any way waive, amend, modify, affect or impair the terms
and conditions of the Credit Agreement or the other Loan Documents, and all
terms and conditions of the Credit Agreement and the other Loan Documents are
hereby ratified and confirmed and shall remain in full force and effect unless
otherwise specifically amended, waived, modified or changed pursuant to the
terms and conditions of this Amendment.
On and after the Third Amendment Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in the
other Loan Documents to the "Credit Agreement", "thereunder", "thereof", or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as modified by this Amendment.
B. Fees and Expenses. The Borrower acknowledges that all costs, fees
-----------------
and expenses as described in Section 13.2 of the Credit Agreement incurred by
the Administrative Agent in connection with the preparation, execution and
delivery of this Amendment and the documents and transactions contemplated
hereby, including, without limitation, the reasonable fees and disbursements of
counsel for the Administrative Agent, shall be for the account of the Borrower.
C. Headings. Section and subsection headings in this Amendment are
--------
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT 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.
E. Counterparts. This Amendment 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.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
7
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
FIRST UNION NATIONAL BANK,
as a Lender and as Administrative Agent
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Officer
CREDIT LYONNAIS, NEW YORK BRANCH, as a Lender
By: /s/ Xxxx Xxxxxxx Xxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx Xxx Xxxxxx
Title: Vice President
SUNTRUST BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Director
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxx X. Lucy, II
-------------------------------------
Name: Xxxx X. Xxxx, II
Title: Vice President
SOUTHTRUST BANK, as a Lender
By: /s/ B. E. Xxxxxxx
-------------------------------------
Name: B. E. Xxxxxxx
Title: Group Vice President
Exhibit C-1
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxxx /s/ Xxxx XxXxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx Xxxx XxXxxxx
Title: Managing Director Vice President
Chief Risk Officer
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
AMSOUTH BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
FIFTH THIRD BANK, CENTRAL OHIO, as a Lender
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
2
BORROWER:
PLANVISTA CORPORATION, as Borrower
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
OTHER CREDIT PARTIES:
PLANVISTA SOLUTIONS, INC. (f/k/a NATIONAL
PREFERRED PROVIDER NETWORK, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Chief Executive Officer
NATIONAL NETWORK SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Secretary and Treasurer
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Secretary and Treasurer
HPS OF DELAWARE LLC (f/k/a CENTRA HEALTHPLAN LLC)
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Title:
3
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE BENEFIT
SERVICES, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President
HPS OF MISSOURI, INC. (f/k/a REH AGENCY OF
MISSOURI, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Secretary and Treasurer
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