EXHIBIT 10.12b
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THIRD AMENDMENT AND WAIVER
--------------------------
THIS THIRD AMENDMENT AND WAIVER to the Credit Agreement referred to
below (this "Amendment and Waiver"), is made and entered into as of this 15th
day of November, 1999 by the Lenders party to such Credit Agreement and FIRST
UNION NATIONAL BANK, as Administrative Agent for the Lenders and HEALTHPLAN
SERVICES CORPORATION, a corporation organized under the laws of Delaware (the
"Borrower").
Statement of Purpose
--------------------
The Lenders have extended certain credit facilities to the Borrower
pursuant to the Amended and Restated Credit Agreement dated as of May 1, 1998,
(as amended by the First Amendment dated as of June 23, 1998 (the "First
Amendment") and the Second Amendment, dated as of December 15, 1998 (the "Second
Amendment"), and as further amended, restated or otherwise modified, the "Credit
Agreement"), by and among the Borrower, the Lenders party thereto, and the
Administrative Agent.
Pursuant to Section 9.3 of the Credit Agreement (as amended and set
forth in the Second Amendment), the Borrower is required to maintain a minimum
EBITDA. The Borrower anticipates that its minimum EBITDA for the period of
July 1, 1999 - December 31, 1999 (the "Waiver Calculation Period") will not
meet that minimum requirement and the Borrower has requested that the
Administrative Agent and the Lenders waive the requirements of Section 9.3 for
such period. In addition, the Borrower anticipates that it will also fail to
meet the requirements set forth in Sections 9.1 (maximum Leverage Ratio, as
amended and set forth in the First Amendment) and 9.5 (minimum Cash Flow Ratio,
as amended and set forth in the Second Amendment) for the Waiver Calculation
Period.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized undefined terms used in this Waiver and
Amendment shall have the meanings assigned thereto in the Credit Agreement.
2. Amendments to Credit Agreement.
(a) Section 1.1 of the Credit Agreement shall be amended by deleting
the definition of "Aggregate Commitment" in its entirety and inserting the
following in lieu thereof:
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any
time or from time to time pursuant to the terms hereof. On the date of
the Third Amendment, the Aggregate Commitment shall be One Hundred
Fifteen Million Dollars ($115,000,000).
(b) Section 1.1 of the Credit Agreement shall be amended by inserting
the following defined term in the correct alphabetical order:
"Third Amendment" means the Third Amendment and Waiver dated as of
November 15, 1999 by and among, the Borrower, the Lenders and the
Administrative Agent.
3. Waivers and Agreements.
(a) The Administrative Agent and the Lenders hereby waive the
provisions of Sections 9.1, 9.3 and 9.5 and any Default or Event of Default
which shall or may have occurred as a result of non-compliance therewith solely
for the Waiver Calculation Period; provided, that:
(i) Borrower's EBITDA shall not be less than (A) $6,000,000
for the fiscal quarter ending September 30, 1999 and (B) $7,500,000 for
the fiscal quarter ending December 31, 1999;
(ii) the waivers set forth herein shall terminate and an Event
of Default shall be deemed to have occurred and be continuing under the
Credit Agreement on the earlier to occur of (i) the date which is no
later than five (5) Business Days after the date on which the Agreement
and Plan of Merger dated as of October 5, 1999 by and among UICI, UICI
Acquisition Co. and the Borrower (the "Merger Agreement") is terminated
or (ii) February 10, 2000 if the transactions contemplated by the
Merger Agreement shall have failed to be consummated on or prior to
such date (the "Waiver Termination Date"); PROVIDED FURTHER, that
nothing set forth herein shall be deemed to be a consent to or approval
of the Merger, which Merger is prohibited by the terms and conditions
set forth in the Credit Agreement;
(iii) during the period from and after the date hereof to and
including the Waiver Termination Date, the Borrower shall not be
permitted to make the dividends otherwise permitted pursuant to Section
10.7(d) of the Credit Agreement;
(iv) during the period from and after the date hereof to and
including the Waiver Termination Date, the Borrower shall not be
permitted to make the investments otherwise permitted pursuant to
Section 10.4(g); and
(v) during the period from and after the date hereof to and
including the Waiver Termination Date, the Borrower shall not permit
Capital Expenditures to exceed $8,000,000 in the aggregate for any
period of four (4) consecutive fiscal quarters ending during such
period.
(b) The Administrative Agent and the Lenders hereby acknowledge and
agree that the calculation of Net Income for the purposes of calculating the
minimum EBITDA required pursuant to clause (a)(i) above shall be increased by
(i) $5,658,000 in connection with a non-recurring non-cash charge taken during
the fiscal quarter ending September 30, 1999 with respect to reserves
established for litigation claims in accordance with FASB #5, (ii) $973,000 in
connection with a non-recurring cash gain taken during the fiscal quarter ending
September 30, 1999 and (iii) approximately $1,000,000 to 2,000,000 in connection
with a non-recurring cash and non-cash restructuring charge to be taken during
the fiscal quarter ending December 31, 1999.
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(c) The Administrative Agent and the Lenders hereby acknowledge and
agree that the Borrower's failure to comply with Sections 9.1, 9.3 and 9.5 as
described and as limited in paragraph (a) above does not in and of itself
constitute a material adverse change in the properties, businesses, results of
operations, or financial or other condition of the Credit Parties taken as a
whole.
(d) The Administrative Agent and the Lenders hereby waive any Default
or Event of Default which shall or may have occurred as a result of the
non-compliance by the Borrower with Section 10.1(c) of the Credit Agreement
solely by reason of the Borrower's December 1998 renewal of the following two
Letters of Credit with The Fifth Third Bank of Columbus: (i) Irrevocable Standby
Letter of Credit dated April 14, 1995 in the amount of $25,000 for the benefit
of the State of South Carolina Budget and (ii) Irrevocable Standby Letter of
Credit dated September 9, 1994 in the amount of $490,696.29 for the benefit of
the State of South Carolina Budget.
(e) The parties hereto hereby acknowledge and agree that the "Amendment
Period" (as defined and set forth in the Second Amendment) has not yet
terminated and, notwithstanding any of the terms and provisions of such
definition, shall not terminate at any time prior to the Waiver Termination
Date.
4. Conditions. The effectiveness of this Amendment and Waiver shall be
conditioned upon receipt by the Administrative Agent of this Amendment and
Waiver executed by Lenders constituting Required Lenders.
5. Limited Amendment and Waiver. Except as expressly amended herein,
the Credit Agreement and each other Loan Document shall continue to be, and
shall remain, in full force and effect. This Amendment and Waiver shall not be
deemed (a) to be a waiver of, or consent to, or a modification or amendment of,
any other term or condition of the Credit Agreement or any other Loan Documents
or (b) to prejudice any other right or rights which the Administrative Agent or
Lenders may now have or may have in the future under or in connection with the
Credit Agreement or the Loan Documents or any of the instruments or agreements
referred to therein, as the same may be amended, restated or otherwise modified
from time to time.
6. Representations and Warranties. By its execution hereof, the
Borrower hereby certifies on behalf of itself and the other Credit Parties that
each of the representations and warranties set forth in the Credit Agreement and
the other Loan Documents is true and correct as of the date hereof as if fully
set forth herein and that as of the date hereof, and no Default or Event of
Default (other than those specifically and expressly waived hereunder) has
occurred and is continuing.
7. Fees. The Borrower shall pay to each of the Lenders party to this
Second Amendment an amendment fee in an amount equal to the product of (i) 0.10%
multiplied by (ii) the commitment of such Lender under the Credit Agreement, as
reduced pursuant to the Third Amendment.
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8. Expenses. The Borrower shall pay all reasonable out-of-pocket
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment and Waiver, including without
limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent.
9. Governing Law. This Amendment and Waiver shall be governed by and
construed in accordance with the laws of the State of North Carolina.
10. Counterparts. This Amendment and Waiver may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be duly executed as of the date and year first above written.
FIRST UNION NATIONAL BANK, as
Administrative Agent and Lender
By /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
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Title: Senior Vice President
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[Signature Pages Continue]
CREDIT LYONNAIS NEW YORK BRANCH, as
Lender
By /s/ Philippe Soustra
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Name: Philippe Soustra
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Title: Senior Vice President
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[Signature Pages Continue]
SUNTRUST BANK, TAMPA BAY, as Lender
By /s/ Xxx X. Xxxxxx
--------------------
Name: Xxx X. Xxxxxx
----------------
Title: Director
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[Signature Pages Continue]
FLEET NATIONAL BANK, as Lender
By /s/ Xxxxxx Xxxxxx
----------------------
Name: Xxxxxx Xxxxxx
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Title: Sr. Vice President
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[Signature Pages Continue]
SOUTHTRUST BANK, NATIONAL
ASSOCIATION, as Lender
By /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------
Title: Corporate Banking Officer
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[Signature Pages Continue]
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH, as
Lender
By /s/ Michiel X.X. Xxxxxx Voort
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Name: Michiel X.X. Xxxxxx Voort
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Title: Vice President
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[Signature Pages Continue]
BANK OF AMERICA, N.A., as Lender
By /s/ Sadahri Xxxxx
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Name: Sadahri Xxxxx
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Title: Vice President
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[Signature Pages Continue]
AMSOUTH BANK, as Lender
By /s/ Xxxx Xxx Xxxxxx
----------------------------
Name: Xxxx Xxx Xxxxxx
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Title: Assistant Vice President
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[Signature Pages Continue]
HIBERNIA NATIONAL BANK, as Lender
By /s/ Xxxxxx Xxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxx
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Title: Portfolio Manager
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[Signature Pages Continue]
THE FIFTH THIRD BANK OF COLUMBUS,
as Lender
By _______________________________
Name:_____________________________
Title:____________________________
[CORPORATE SEAL] HEALTHPLAN SERVICES
CORPORATION, as Borrower
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: Executive Vice President & CFO
------------------------------
NONWAIVER AND STANDSTILL AGREEMENT
----------------------------------
THIS NONWAIVER AND STANDSTILL AGREEMENT (this "Agreement") is made and
entered into as of the 11th day of February, 2000 by the Lenders party to the
Credit Agreement identified below and FIRST UNION NATIONAL BANK, as
Administrative Agent for the Lenders; and HEALTHPLAN SERVICES CORPORATION, a
corporation organized under the laws of Delaware (the "Borrower").
Statement of Purpose
--------------------
The parties to this Agreement are parties to that certain Third
Amendment and Waiver (the "Third Amendment") dated as of November 15, 1999, as
well as to that certain Amended and Restated Credit Agreement dated as of May 1,
1998 (as amended by the Third Amendment and certain prior amendments, and as
further amended, restated or otherwise modified, the "Credit Agreement").
Capitalized terms used but not otherwise defined in this Agreement shall have
the meanings as such terms are defined in the Third Amendment or the Credit
Agreement, as the case may be.
The Third Amendment recited that the Borrower anticipated that it would
fail to meet certain covenants (the "Breached Covenants") specified under
Sections 9.1, 9.3 and 9.5 of the Credit Agreement, for the Waiver Calculation
Period as defined in the Third Amendment. Such failures have since occurred.
Among other terms, the Third Amendment included a provisional waiver of
any Default or Event of Default occurring by reason of the failure to comply
with the Breached Covenants for the Waiver Calculation Period, and further
expressly provided that such provisional waiver would terminate on February 10,
2000 if a proposed merger of the Borrower with UICI and UICI Acquisition Co.
(collectively, "UICI") and the other transactions contemplated by the Merger
Agreement (as defined in the Third Amendment) shall have failed to be
consummated on or prior to such date.
Circumstances have intervened such that the transaction contemplated by
the Merger Agreement in effect as of the date of the Third Amendment in fact
cannot be consummated prior to February 10, 2000. The Borrower and UICI have
engaged in further discussions and negotiations with the view toward certain
modifications of the Merger Agreement. Among other terms under consideration
between such parties as of the time of this Agreement is a provision proposed by
UICI that the merger be conditioned upon agreement by the Lenders that all
Obligations under the Credit Agreement be assumed by the entity surviving the
consummation of the proposed merger (such entity, the "Surviving Entity"). As of
the time of this Agreement, neither the Lenders nor the Administrative Agent,
nor any of them, have agreed to any such assumption, or expressed any
willingness to negotiate or otherwise consider the terms of any such assumption.
In light of the impending termination of the waivers as provided under
the Third Amendment, the Borrower has nevertheless requested an additional
period of time in which to continue negotiations with UICI, and to seek
agreement by the Lenders and the Administrative Agent as to disposition of the
Obligations, if in fact the proposed merger should occur.
The Lenders and the Administrative Agent are willing to defer the
exercise of remedies for a limited period of time, subject to the express terms
and provisions of this Agreement.
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Agreement
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NOW, THEREFORE in consideration of the foregoing and for other and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Acknowledgments by Borrower. To induce the Lenders and the
Administrative Agent to execute this Agreement, the Borrower hereby
acknowledges, stipulates and agrees as follows:
(a) Notwithstanding any provisional waiver as otherwise provided in the
Third Amendment, failures by the Borrower to comply with the Breached Covenants
calculated with respect to the Waiver Calculation Period constitute Defaults and
Events of Default that have occurred, remain uncured and are continuing as of
the time of this Agreement;
(b) Neither the Lenders nor the Administrative Agent, nor any of them,
nor anyone acting on behalf of any such Person, have any obligation or have
otherwise made any commitment or other undertaking or expression of any
willingness to agree or otherwise consent (i) to any assumption by the Surviving
Entity of any of the Obligations or (ii) to any other term or provision of any
proposed merger between the Borrower and UICI, and neither the Borrower nor
anyone acting on its behalf is relying on any expression or assumption to the
contrary;
(c) Except for the provisional waiver that is the subject of the Third
Amendment (which shall in all events expire as of February 10, 2000), as of the
time of this Agreement nothing has occurred that constitutes or otherwise can be
construed or interpreted as a waiver of, or otherwise to limit in any respect
any rights or remedies the Lenders or the Administrative Agent, or any of them,
have or may have arising as the result of Events of Default that have occurred
under the Credit Agreement, the remaining Loan Documents or applicable law; and
(d) Except as expressly modified by this Agreement, all terms and
provisions of the Credit Agreement and the remaining Loan Documents, including
without limitation the provisions of Sections 11.3 and 13.12 of the Credit
Agreement, remain in full force and effect according to their respective terms.
2. Limited Deferral. The Lenders and the Administrative Agent
respectively agree to defer (a) the exercise of any rights or remedies arising
by reason of Events of Default that have occurred as a result of failure to
comply with the Breached Covenants, calculated for the Waiver Calculation Period
and (b) the enforcement of the conditions to borrowing set forth in Section 5.3
(solely with respect to the enforcement of such conditions to prohibit
borrowings by reason of Events of Default that have occurred as a result of
failure to comply with the Breached Covenants, calculated for the Waiver
Calculation Period), in each case, until the earliest of (i) March 24, 2000;
(ii) the date that is thirty (30) days following the date of execution of the
amended Merger Agreement by or on behalf of the Borrower and UICI; (iii) the
occurrence of any Event of Default other than Events of Default occurring as a
result of failure to comply with the Breached Covenants, calculated for the
Waiver Calculation Period; and (iv) breach of any of the further conditions or
agreements, as provided in the following paragraph 3(a) - (i) of this Agreement,
it being agreed that the breach of any such further condition or agreement shall
constitute an immediate Default and Event of Default under the Credit Agreement.
Notwithstanding the foregoing, nothing herein shall prevent, or be construed to
prevent, the Administrative Agent and the Lenders from enforcing the conditions
to borrowing set forth in Section 5.3 to prohibit borrowings by reason of any
Default or Event of Default other than by reason of Events of Default that have
occurred as a result of failure to comply with the Breached Covenants,
calculated for the Waiver Calculation Period.
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3. Further Conditions and Agreements.
----------------------------------
(a) The failure of the Borrower and its Subsidiaries to generate EBITDA
of at least $7,500,000 for the fiscal quarter ending December 31, 1999 shall be
an immediate Default and Event of Default under the Credit Agreement. The
Administrative Agent and the Lenders hereby acknowledge and agree that the
calculation of Net Income for the purposes of calculating the minimum EBITDA
required pursuant to this paragraph 3(a) shall be increased in an aggregate
amount not to exceed $3,000,000 (which such amount shall include the $1,000,000
amount allowed in any fiscal quarter without the consent of Required Lenders per
the definition of "Net Income") in connection with a non-recurring cash and
non-cash restructuring charge to be taken during the fiscal quarter ending
December 31, 1999.
(b) The Borrower agrees that during the period from and after the date
hereof until otherwise consented to by the Required Lenders in writing, the
Borrower shall not be permitted to (i) make the dividends otherwise permitted
pursuant to Section 10.7(d) of the Credit Agreement or (ii) make any Stock
Repurchase (as defined in the Second Amendment and Waiver the to the Credit
Agreement dated as of December 15, 1998) otherwise permitted pursuant to Section
10.7(c) of the Credit Agreement.
(c) The Borrower agrees that during the period from and after the date
hereof until otherwise consented to by the Required Lenders in writing, the
Borrower and its Subsidiaries shall not be permitted to make any new investments
which would otherwise be permitted pursuant to Section 10.4(g) of the Credit
Agreement. Nothing herein shall restrict the ability of the Borrower and its
Subsidiaries to carry investments existing on the date hereof.
(d) Other than borrowings under the Swingline Credit Agreement, the
Borrower agrees that during the period from and after the date hereof until
otherwise consented to by the Required Lenders in writing, the Borrower and its
Subsidiaries shall not be permitted to incur any new Debt otherwise permitted to
be incurred pursuant to Section 10.1 of the Credit Agreement; provided that the
Borrower and its Subsidiaries may (i) continue to carry Debt existing as of the
date hereof; (ii) renew and replace existing Hedging Agreements in a manner
consistent with Section 10.1(d); (iii) renew (but not increase) Letters of
Credit existing on the date hereof; and (iv) subject to paragraph 2 above,
continue to borrow and repay existing obligations under the Credit Agreement.
(e) The Borrower agrees that during the period from and after the date
hereof until otherwise consented to by the Required Lenders in writing, the
Borrower and its Subsidiaries shall not be permitted to incur any new Guaranty
Obligations otherwise permitted to be incurred pursuant to Section 10.2(c) - (d)
of the Credit Agreement. Nothing herein shall prohibit the renewal (but not the
increase) of Guaranty Obligations existing on the date hereof.
(f) The Borrower agrees that during the period from and after the date
hereof until otherwise consented to by the Required Lenders in writing, the
Borrower and its Subsidiaries shall not be permitted to incur any new Liens
otherwise permitted to be incurred pursuant to Section 10.3(e) of the Credit
Agreement.
(g) The Borrower agrees that during the period from and after the date
hereof until otherwise consented to by the Required Lenders in writing, the
Borrower and its Subsidiaries shall not permit Capital Expenditures to exceed
$8,000,000 in the aggregate for any period of four (4) consecutive fiscal
quarters ending during such period.
(h) The Borrower hereby agrees that the Aggregate Commitment of the
Lenders under the Credit Agreement shall be automatically and permanently
reduced by an amount equal to one hundred percent (100%) of the gross cash
proceeds, net of all reasonable costs of sale and taxes paid or payable as a
result thereof by the Borrower and its Subsidiaries, from the sale or other
disposition of assets by the
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Borrower or any of its Subsidiaries after the date hereof. Such reduction shall
be made immediately upon receipt of such net cash proceeds. The Borrower agrees
that this provision shall not be deemed to permit the sale of assets not
otherwise permitted pursuant to the Credit Agreement.
(i) As soon as practicable, and in any event no later than February 18,
2000, the Borrower shall cause to be executed and delivered to the
Administrative Agent (i) a supplement to the Pledge Agreement pledging 100% of
the capital stock of XxxxxxXxxx.xxx owned by the Borrower in form and content
satisfactory to the Administrative Agent and (ii) such other documents
reasonably requested by the Administrative Agent, in order that the capital
stock of such Subsidiary shall become Collateral for the Obligations.
(j) The parties hereto hereby agree that the Credit Agreement shall be
amended by deleting the proviso contained in Section 4.1(c) of the Credit
Agreement (as amended by the Second Amendment to the Credit Agreement dated as
of December 15, 1998, such amendment, the "Second Amendment") in its entirety
and inserting the following text in lieu thereof:
"; PROVIDED, that notwithstanding the foregoing, the Applicable
Margin with respect to Base Rate Loans shall be 1.50% and the
Applicable Margin with respect to LIBOR Rate Loans shall be 2.50%."
4. Conditions. The effectiveness of this Agreement shall be conditioned
upon receipt by the Administrative Agent of (a) this Agreement executed by the
Borrower and the Lenders constituting Required Lenders and (b) payment by the
Borrower to the Administrative Agent, for the benefit of itself and the Lenders,
of the fees and expenses set forth in paragraph 7 of this Agreement.
5. Limited Amendment and Waiver. Except as expressly provided in this
Agreement, the Credit Agreement and each other Loan Document shall continue to
be, and shall remain, in full force and effect. This Agreement shall not be
deemed or otherwise construed (a) to be a waiver of, or consent to or a
modification or amendment of, any other term or condition of the Credit
Agreement or any other Loan 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
Loan Documents, as such documents may be amended, restated or otherwise modified
from time to time; (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 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.
6. Representations and Warranties. By its execution hereof, the
Borrower hereby certifies on behalf of itself and the other Credit Parties that
each of the representations and warranties set forth in the Credit Agreement and
the other Loan Documents is true and correct as of the date hereof as if fully
set forth herein and that as of the date hereof, and no Default or Event of
Default (other than Events of Default occurring by reason of failure to comply
with the Breached Covenants calculated as of the Waiver Calculation Period) has
occurred and is continuing.
7. Fees and Expenses. The Borrower shall pay to each of the Lenders
party to this Agreement a consent fee in an amount equal to the product of (i)
0.20% MULTIPLIED BY (ii) the Commitment of such Lender under the Credit
Agreement. Additionally, the Borrower shall pay all reasonable out-of-pocket
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expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Agreement, including without limitation, the
reasonable fees and disbursements of counsel for the Administrative Agent.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
9. Counterparts. This Agreement may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
[SIGNATURES PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
FIRST UNION NATIONAL BANK, as
Administrative Agent and Lender
By /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
---------------------------
Title: Senior Vice President
---------------------------
[Signature Pages Continue]
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CREDIT LYONNAIS NEW YORK BRANCH, as
Lender
By /s/ Xxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxxx
-------------------------
Title: Senior Vice President
-------------------------
[Signature Pages Continue]
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SUNTRUST BANK, TAMPA BAY, as Lender
By /s/ Xxx X. Xxxxxx
-------------------------
Name: Xxx X. Xxxxxx
---------------------
Title: Director
---------------------
[Signature Pages Continue]
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FLEET NATIONAL BANK, as Lender
By /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
-----------------------
Title: Senior Vice President
-----------------------
[Signature Pages Continue]
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SOUTHTRUST BANK, NATIONAL
ASSOCIATION, as Lender
By /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------
Title: Corporate Banking Officer
-------------------------
[Signature Pages Continue]
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH, as
Lender
By /s/ Xxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxxx
------------------------
Title: Vice President
------------------------
[Signature Pages Continue]
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BANK OF AMERICA, N.A., as Lender
By /s/ Sadahri Xxxxx
-------------------------
Name: Sadahri Xxxxx
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Title: Vice President
---------------------
[Signature Pages Continue]
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AMSOUTH BANK, as Lender
By /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
------------------------
Title: Assistant Vice President
------------------------
[Signature Pages Continue]
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HIBERNIA NATIONAL BANK, as Lender
By /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
----------------------
Title: Portfolio Manager
----------------------
[Signature Pages Continue]
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THE FIFTH THIRD BANK OF COLUMBUS,
as Lender
By ________________________________
Name:______________________________
Title:_____________________________
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[CORPORATE SEAL] HEALTHPLAN SERVICES
CORPORATION, as Borrower
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: Executive Vice President & CFO
---------------------------------
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NONWAIVER AND STANDSTILL AGREEMENT
----------------------------------
THIS NONWAIVER AND STANDSTILL AGREEMENT (this "Agreement") is made and
entered into as of the 11th day of February, 2000 by FIRST UNION NATIONAL BANK,
as swingline lender (the "Swingline Lender") under the Swingline Credit
Agreement referred to below; and HEALTHPLAN SERVICES CORPORATION, a corporation
organized under the laws of Delaware ("HPS").
Statement of Purpose
--------------------
The parties to this Agreement are parties to that certain Swingline
Credit Agreement dated as of May 1, 1998 (as amended, restated or otherwise
modified, the "Swingline Credit Agreement"). The parties to this Agreement, as
well as the Lenders referred to below, are also parties to that certain Third
Amendment and Waiver (the "Third Amendment") dated as of November 15, 1999, as
well as to that certain Amended and Restated Credit Agreement dated as of May 1,
1998 (as amended by the Third Amendment and certain prior amendments, and as
further amended, restated or otherwise modified, the "Syndicated Credit
Agreement") by and among HPS, the lenders party thereto (the "Lenders") and
First Union National Bank, as administrative agent (the "Administrative Agent")
for the Lenders. Capitalized terms used but not otherwise defined in this
Agreement shall have the meanings as such terms are defined in the Swingline
Credit Agreement, the Third Amendment or the Syndicated Credit Agreement, as the
case may be.
Pursuant to Section 6.1(i) of the Swingline Credit Agreement, any Event
of Default (as defined in the Syndicated Credit Agreement) under the Syndicated
Credit Agreement constitutes an Event of Default (as defined in the Swingline
Credit Agreement) under the Swingline Credit Agreement. Additionally, any
termination of the Syndicated Credit Agreement will result in the termination of
the Swingline Credit Agreement pursuant to Section 6.1(i) of the Swingline
Credit Agreement. Furthermore, pursuant to Section 5.2 of the Swingline Credit
Agreement, HPS is obligated to comply with the financial and other covenants set
forth in the Articles VIII, IX and X of the Syndicated Credit Agreement.
The Third Amendment recited that HPS anticipated that it would fail to
meet certain covenants (the "Breached Covenants") specified under Sections 9.1,
9.3 and 9.5 of Article IX of the Syndicated Credit Agreement, for the Waiver
Calculation Period as defined in the Third Amendment. Such failures have since
occurred.
Among other terms, the Third Amendment included a provisional waiver of
any Default or Event of Default occurring by reason of the failure to comply
with the Breached Covenants for the Waiver Calculation Period, and further
expressly provided that such provisional waiver would terminate on February 10,
2000 if a proposed merger of HPS with UICI and UICI Acquisition Co.
(collectively, "UICI") and the other transactions contemplated by the Merger
Agreement (as defined in the Third Amendment) shall have failed to be
consummated on or prior to such date.
1
Circumstances have intervened such that the transaction contemplated by
the Merger Agreement in effect as of the date of the Third Amendment in fact
cannot be consummated prior to February 10, 2000. HPS and UICI have engaged in
further discussions and negotiations with the view toward certain modifications
of the Merger Agreement. Among other terms under consideration between such
parties as of the time of this Agreement is a provision proposed by UICI that
the merger be conditioned upon agreement by the Lenders that all Obligations
under the Syndicated Credit Agreement be assumed by the entity surviving the
consummation of the proposed merger (such entity, the "Surviving Entity"). As of
the time of this Agreement, neither the Lenders nor the Administrative Agent,
nor any of them, have agreed to any such assumption, or expressed any
willingness to negotiate or otherwise consider the terms of any such assumption.
As of the time of this Agreement, neither HPS nor UICI have requested
that the Surviving Entity be permitted to assume the obligations of HPS under
the Swingline Credit Agreement.
In light of the impending termination of the waivers as provided under
the Third Amendment, HPS has nevertheless requested an additional period of time
in which to continue negotiations with UICI, and to seek agreement by the
Swingline Lender as to disposition of the Obligations (as defined in the
Swingline Credit Agreement), if in fact the proposed merger should occur.
The Swingline Lender is willing to defer the exercise of remedies for a
limited period of time, subject to the express terms and provisions of this
Agreement.
Agreement
---------
NOW, THEREFORE in consideration of the foregoing and for other and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Acknowledgments by HPS. To induce the Swingline Lender to execute
this Agreement, HPS hereby acknowledges, stipulates and agrees as follows:
(a) Notwithstanding any provisional waiver as otherwise provided in the
Third Amendment, failures by HPS to comply with the Breached Covenants
calculated with respect to the Waiver Calculation Period constitute Defaults and
Events of Default under the Swingline Credit Agreement that have occurred,
remain uncured and are continuing as of the time of this Agreement;
(b) Neither the Swingline Lender, nor anyone acting on behalf thereof,
has any obligation or has otherwise made any commitment or other undertaking or
expression of any willingness to agree or otherwise consent (i) to any
assumption by the Surviving Entity of any of the Obligations under the Swingline
Credit Agreement or (ii) to any other term or provision of
2
any proposed merger between HPS and UICI, and neither HPS nor anyone acting on
its behalf is relying on any expression or assumption to the contrary;
(c) As of the time of this Agreement nothing has occurred that
constitutes or otherwise can be construed or interpreted as a waiver of, or
otherwise to limit in any respect any rights or remedies the Swingline Lender,
have or may have arising as the result of Events of Default that have occurred
under the Swingline Credit Agreement, the related loan documents or applicable
law; and
(d) Except as expressly modified by this Agreement, all terms and
provisions of the Swingline Credit Agreement and the related loan documents,
including without limitation the provisions of Sections 7.2 and 7.15 of the
Swingline Credit Agreement, remain in full force and effect according to their
respective terms.
2. Limited Deferral. The Swingline Lender agrees to defer (a) the
exercise of any rights or remedies arising by reason of Events of Default that
have occurred as a result of failure to comply with the Breached Covenants,
calculated for the Waiver Calculation Period and (b) the enforcement of the
conditions to borrowing set forth in Section 4.3 (solely with respect to the
enforcement of such conditions to prohibit borrowings by reason of Events of
Default that have occurred as a result of failure to comply with the Breached
Covenants, calculated for the Waiver Calculation Period), in each case, until
the earliest of (i) March 24, 2000; (ii) the date that is thirty (30) days
following the date of execution of the amended Merger Agreement by or on behalf
of HPS and UICI; (iii) the occurrence of any Event of Default (including,
without limitation any Event of Default arising pursuant to Section 6.1(i) of
the Swingline Credit Agreement) other than Events of Default occurring as a
result of failure to comply with the Breached Covenants, calculated for the
Waiver Calculation Period and (iv) any breach of any of the further conditions
and agreements set forth in paragraph 3(a) - (i) of the Non-Waiver and
Standstill Agreement of even date executed by the Administrative Agent, the
Lenders and HPS with respect to the Syndicated Credit Agreement, it being
expressly agreed that any breach of such further conditions and agreements shall
constitute an immediate Event of Default under the Swingline Credit Agreement.
Notwithstanding the foregoing, nothing herein shall prevent, or be construed to
prevent, the Swingline Lender from enforcing the conditions to borrowing set
forth in Section 4.3 to prohibit borrowings by reason of any Default or Event of
Default other than by reason of Events of Default that have occurred as a result
of failure to comply with the Breached Covenants, calculated for the Waiver
Calculation Period.
3. Swingline Credit Agreement Termination Date. The parties hereto
hereby agree that Section 1.1 of the Swingline Credit Agreement shall hereby be
amended by deleting the defined term "Termination Date" and substituting the
following text in lieu thereof:
"'Termination Date' shall mean April 30, 2000."
4. Conditions. The effectiveness of this Agreement shall be conditioned
upon receipt by the Swingline Lender of (a) this Agreement executed by HPS and
the Swingline Lender and (b) payment by HPS to the Swingline Lender of the
expenses set forth in paragraph 7 of this Agreement.
3
5. Limited Amendment and Waiver. Except as expressly provided in this
Agreement, the Swingline Credit Agreement and each other related loan document
shall continue to be, and shall remain, in full force and effect. This Agreement
shall not be deemed or otherwise construed (a) to be a waiver of, or consent to
or a modification or amendment of, any other term or condition of the Swingline
Credit Agreement or any other related loan document; (b) to prejudice any other
right or rights that the Swingline Lender may now have or may have in the future
under or in connection with the Swingline Credit Agreement or the other related
loan documents, as such documents may be amended, restated or otherwise modified
from time to time; (c) to be a commitment or any other undertaking or expression
of any willingness to engage in any further discussion with HPS or any other
person, firm or corporation with respect to any waiver, amendment, modification
or any other change to the Swingline Credit Agreement or the other related loan
documents or any rights or remedies arising in favor of the Swingline Lender
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 HPS, on the one hand, and the Swingline Lender, on the
other hand.
6. Representations and Warranties. By its execution hereof, HPS hereby
certifies on behalf of itself and its Subsidiaries that each of the
representations and warranties set forth in the Swingline Credit Agreement and
the other related loan documents is true and correct as of the date hereof as if
fully set forth herein and that as of the date hereof, and no Default or Event
of Default (other than Events of Default occurring by reason of failure to
comply with the Breached Covenants calculated as of the Waiver Calculation
Period) has occurred and is continuing.
7. Fees and Expenses. HPS shall pay all reasonable out-of-pocket
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Agreement, including without limitation, the
reasonable fees and disbursements of counsel for the Administrative Agent.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
9. Counterparts. This Agreement may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
[SIGNATURES PAGES FOLLOW]
4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
FIRST UNION NATIONAL BANK, as Swingline
Lender
By /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
---------------------------------
Title: Senior Vice President
---------------------------------
[Signature Pages Continue]
5
[CORPORATE SEAL] HEALTHPLAN SERVICES CORPORATION, as
Borrower under the Swingline Credit Agreement
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: Executive Vice President & CFO
---------------------------------
6
WAIVER AND CONSENT
------------------
THIS WAIVER AND CONSENT to the Credit Agreement identified below (this
"Agreement"), is made and entered into as of this 1st day of March, 2000 by the
Lenders party to such Credit Agreement and FIRST UNION NATIONAL BANK, as
Administrative Agent for the Lenders and HEALTHPLAN SERVICES CORPORATION, a
corporation organized under the laws of Delaware (the "Borrower").
Statement of Purpose
--------------------
The Lenders have extended certain credit facilities to the Borrower
pursuant to the Amended and Restated Credit Agreement dated as of May 1, 1998
(as previously amended, and as further amended, restated or otherwise modified,
the "Credit Agreement"), by and among the Borrower, the Lenders party thereto,
and the Administrative Agent.
Pursuant to the terms and conditions of the Credit Agreement, the
Borrower is required to deliver to the Administrative Agent, for the ratable
benefit of itself and the Lenders, certain additional Collateral, Guaranty
Agreements and related documents identified on SCHEDULE I hereto (collectively,
the "Supplemental Collateral"). Because the Borrower delivered the Supplemental
Collateral after the dates specified in the Credit Agreement for the delivery
thereof, the Borrower has requested that the Lenders waive any Default or Event
of Default caused by the failure to deliver the Supplemental Collateral in a
timely fashion.
Additionally, the Borrower has requested that the Lenders consent to
the sale of one hundred percent (100%) of the capital stock of Xxxxxxxx.xxx
(such sale of stock, the "Xxxxxxxx.xxx Sale") owned by the Borrower or any
Subsidiary thereof.
The Administrative Agent and the Lenders have agreed to the requested
waiver and consent, subject to the terms and conditions of this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized undefined terms used in this Agreement
shall have the meanings assigned thereto in the Credit Agreement.
2. Waiver. The Administrative Agent and the Lenders hereby waive any
Default or Event of Default caused by the failure of the Borrower and its
Subsidiaries to deliver the Supplemental Collateral on or prior to the dates
specified in the Credit Agreement for the delivery thereof.
3. Consent. The Administrative Agent and the Lenders hereby consent to
the Xxxxxxxx.xxx Sale; PROVIDED that the proceeds of such sale shall be applied
as required by paragraph 3(h) of the Standstill Agreement (as defined below)
with the effect that the Aggregate Commitment of the Lenders under the Credit
Agreement shall be automatically and permanently reduced by an amount equal to
one hundred percent (100%) of the gross cash proceeds, net of all reasonable
costs of sale and taxes paid or payable as a result of thereof by the Borrower
and its Subsidiaries, from the Xxxxxxxx.xxx Sale. Such reduction shall be made
immediately upon receipt of such net cash proceeds.
4. Confirmation. The Administrative Agent and the Lenders hereby
confirm that after giving effect to the waiver contained in paragraph 2 hereof,
the Non-Waiver and Standstill Agreement (the "Standstill Agreement") dated as of
February 11, 2000 executed in connection with the Credit Agreement shall
continue in effect pursuant to the terms thereof, with the effect, INTER ALIA
that if any Event of Default other than Events of Default that are the subject
of the Standstill Agreement or this Agreement should occur or be discovered, the
limited deferral described in paragraph 2 of the Standstill Agreement shall be
subject to immediate termination as provided in the Standstill Agreement.
5. Conditions. The effectiveness of this Agreement shall be conditioned
upon receipt by the Administrative Agent of this Agreement executed by Lenders
constituting Required Lenders.
6. Limited Waiver and Consent. Except as expressly provided in this
Agreement, the Credit Agreement and each other Loan Document shall continue to
be, and shall remain, in full force and effect. This Agreement shall not be
deemed or otherwise construed (a) to be a waiver of, or consent to or a
modification or amendment of, any other term or condition of the Credit
Agreement or any other Loan Document; (b) to prejudice any other right or
remedies 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 Loan Documents, as such documents may be amended, restated or otherwise
modified from time to time; (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 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.
7. Representations and Warranties. By its execution hereof, the
Borrower hereby certifies on behalf of itself and the other Credit Parties that
each of the representations and warranties set forth in the Credit Agreement and
the other Loan Documents is true and correct as of the date hereof as if fully
set forth herein and that as of the date hereof, and no Default or Event of
Default has occurred and is continuing.
8. Expenses. The Borrower shall pay all reasonable out-of-pocket
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Agreement, including without limitation, the
reasonable fees and disbursements of counsel for the Administrative Agent.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
10. Counterparts. This Agreement may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
[Signature Pages to Follow]
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
FIRST UNION NATIONAL BANK, as
Administrative Agent and Lender
By /s/ Xxxxxxx Xxxx
-------------------------
Name: Xxxxxxx Xxxx
---------------------
Title: Director
---------------------
[Signature Pages Continue]
[WAIVER AND CONSENT]
CREDIT LYONNAIS ATLANTA AGENCY, as
Lender
By /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
--------------------------
Title: Senior Vice President
--------------------------
[Signature Pages Continue]
[WAIVER AND CONSENT]
SUNTRUST BANK, TAMPA BAY, as Lender
By /s/ Xxx X. Xxxxxx
------------------------
Name: Xxx X. Xxxxxx
--------------------
Title: Director
--------------------
[Signature Pages Continue]
[WAIVER AND CONSENT]
FLEET NATIONAL BANK, as Lender
By /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
-----------------------
Title: Senior Vice President
-----------------------
[Signature Pages Continue]
[WAIVER AND CONSENT]
SOUTHTRUST BANK, NATIONAL
ASSOCIATION, as Lender
By /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: Corporate Banking Officer
---------------------------
[Signature Pages Continue]
[WAIVER AND CONSENT]
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH, as
Lender
By ___________________________________
Name:_________________________________
Title:________________________________
[Signature Pages Continue]
[WAIVER AND CONSENT]
BANK OF AMERICA, N.A., as Lender
By /s/ Sadhari Xxxxx
------------------------------
Name: Sadhari Xxxxx
--------------------------
Title: Vice President
--------------------------
[Signature Pages Continue]
[WAIVER AND CONSENT]
AMSOUTH BANK, as Lender
By /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
-----------------------------
Title: Assistant Vice President
-----------------------------
[Signature Pages Continue]
[WAIVER AND CONSENT]
HIBERNIA NATIONAL BANK, as Lender
By /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
--------------------------
Title: Portfolio Manager
--------------------------
[Signature Pages Continue]
[WAIVER AND CONSENT]
THE FIFTH THIRD BANK OF COLUMBUS,
as Lender
By /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
-------------------------
Title: Vice President
-------------------------
[WAIVER AND CONSENT]
[CORPORATE SEAL] HEALTHPLAN SERVICES CORPORATION, as
Borrower
By /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: Executive Vice President & CFO
------------------------------
[WAIVER AND CONSENT]
SCHEDULE I
----------
1) Supplement to Pledge Agreement, pledging the stock of XxxxxxXxxx.xxx, Inc.
2) Certificate No. C-12 for 950,365 Shares of the Common Stock of
XxxxxxXxxx.xxx, Inc., Stock Power (executed in blank), and Acknowledgement and
Consent
3) Confirmation and Supplement to Pledge Agreement, pledging the stock of
Group Benefit Administrators Insurance Agency, Inc.
4) Certificate No. 47 for 100,000 shares of the Common Stock of Group Benefit
Administrators Insurance Agency, Inc. and Stock Power (executed in blank)
5) Confirmation and Supplement to Pledge Agreement, pledging ownership
interests in CENTRA HealthPlan LLC and the capital stock of Xxxxxxxxxx
Management Corporation
6) Certificate No. 5 for 49.9% Interest in CENTRA HealthPlan LLC and Warranty
Assignment of LLC Interest (executed in blank)
7) Certificate Nos. C-2, C-4, and C-6 for 12,740, 8,060, and 5,200 Shares,
respectively, of the Common Stock of Xxxxxxxxxx Management Corporation, and
Stock Power (executed in blank)
8) Amended and Restated Subsidiary Guaranty Agreement executed by Xxxxxxxxxx
Management Corporation (including a delivery affidavit)
9) Confirmation and Supplement to Pledge Agreement, pledging the stock of
Southern Nevada Administrators, Inc.
10) Certificate No. 1 for 100 Shares of the Common Stock of Southern Nevada
Administrators, Inc. and Stock Power (executed in blank)
11) Amended and Restated Subsidiary Guaranty Agreement (including a delivery
affidavit)
12) UCC-1 financing statements and UCC-3 financing statement amendments
requested by the Administrative Agent
13) Legal Opinion
