Exhibit 10.8(f)
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, 10.7 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, 10.7 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
--------
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 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, 10.7 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, 10.7 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.
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]
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 Van Essche .
-----------------------------------------
Name: Xxxx-Xxxxxxx Van Essche
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
S-1
SOUTHTRUST BANK, as a Lender
By: /s/ B. E. Xxxxxxx .
-----------------------------------------
Name: B. E. Xxxxxxx
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By: /s/ Xxx Xxxxx .
-----------------------------------------
Name: Xxx Xxxxx
Title: Managing Director
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
S-2
FIFTH THIRD BANK, CENTRAL OHIO, as a Lender
By: /s/ Xxxx Xxxxxx .
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
S-3
BORROWER:
PlanVista corporaiton (f/k/a Health Plan
Service Corporation), as Borrower
By: /s/ Xxxxxxx X. Xxxxxx .
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President 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-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 and 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 Treasuerer
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
