Exhibit 10.8(e)
EXECUTION
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
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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
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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
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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
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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
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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
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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
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Name: Xxxxxxx Xxxx
Title: Authorized Officer
CREDIT LYONNAIS, NEW YORK BRANCH, as a Lender
By: /s/ Xxxx-Xxxxxxx Van Essche
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Name: Xxxx-Xxxxxxx Van Essche
Title: Vice President
SUNTRUST BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Director
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxx X. Xxxx, II
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Name: Xxxx X. Lucy, II
Title: Vice President
SOUTHTRUST BANK, as a Lender
By: /s/ B.E. Xxxxxxx
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Name: B.E. Xxxxxxx
Title: Group Vice President
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a
Lender
By:
---------------------------------
Name:
Title:
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
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BORROWER:
HEALTHPLAN SERVICES 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
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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
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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 and Chief
Executive Officer
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
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SOUTHERN NEVADA ADMINISTRATORS,
INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
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