EXHIBIT 10.15(e)
FIFTH AMENDMENT
THIS FIFTH AMENDMENT to the Credit Agreement referred to below (this
"Fifth Amendment"), is made and entered into as of this 30th day of October,
1997 by and among HEALTHPLAN SERVICES CORPORATION, a corporation organized under
the laws of Delaware (the "Borrower"), certain Subsidiaries of the Borrower
identified on the signature pages hereto, the Lenders party to such Credit
Agreement, and FIRST UNION NATIONAL BANK (f/k/a First Union National Bank of
North Carolina), as Agent for the Lenders.
STATEMENT OF PURPOSE
The Lenders have extended certain credit facilities to the Borrower
pursuant to the Credit Agreement dated as of May 17, 1996 (as amended by the
First Amendment thereto dated as of July 1, 1996, as amended by the Second
Amendment thereto dated as of September 26, 1996, as amended by the Letter
Agreement dated as of March 28, 1997, as amended by the Third Amendment thereto
dated as of May 6, 1997, as amended by the Fourth Amendment thereto dated as of
June 13, 1997, and as may be further amended, restated or otherwise modified,
the "Credit Agreement"), by and among the Borrower, the Lenders party thereto
and the Agent.
The Borrower has requested that the Lenders amend the Credit Agreement to
permit the Borrower to make certain an investment in a corporation to be formed
and capitalized jointly by the Borrower and Xxxxx Enterprises, Inc. (the "Joint
Venture") and to permit the Borrower to continue an existing investment
consisting of the purchase of certain shares of capital stock of Health Risk
Management, Inc. with an initial purchase price of up to $2,500,000 (the "HMRI
Investment").
Further, the Borrower has requested that the Lenders waive an existing
Event of Default under the Credit Agreement arising out of the HMRI Investment.
The Lenders have agreed to amend the Credit Agreement and waive the Event
of Default, but only on the terms and conditions set forth below in this Fifth
Amendment.
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 Fifth
Amendment shall have the meanings assigned thereto in the Credit Agreement.
2. AMENDMENTS TO THE CREDIT AGREEMENT. (a) Section 9.4 of the Credit
Agreement is hereby amended by deleting the word "and" at the end of clause (f)
of Section 9.4 and inserting the following text immediately following clause (f)
of Section 9.4:
(g) an investment by the Borrower of up to $15,000,000 consisting
of capital stock and indebtedness of a corporation to be formed and
capitalized jointly by the Borrower and Xxxxx Enterprises, Inc.;
(h) an investment by the Borrower in the form of the ownership of
certain shares of capital stock of Health Risk Management, Inc. with an
initial purchase price of up to $2,500,000; and"
(b) Section 9.4 of the Credit Agreement is hereby further amended by
deleting the "(g)" from the beginning of the current clause (g) of Section 9.4
and inserting "(i)" in lieu thereof.
3. WAIVER. The undersigned Lenders hereby waive the Default and Event of
Default by the Borrower arising under Section 9.4 of the Credit Agreement
resulting from the consummation of the HMRI Investment prior to the effective
date hereof.
4. CONDITIONS. (a) Subject to Section 4(b) below, the effectiveness of
this Fifth Amendment shall be conditioned upon receipt by the Agent of (i) a
copy of this Fifth Amendment duly executed by the Agent, the Borrower and
Lenders constituting Required Lenders and (ii) any other document or instrument
reasonably requested by it in connection with the execution of this Amendment.
(b) The effectiveness of the provisions of Section 2 of this Fifth
Amendment relating to the Joint Venture shall not be effective until receipt by
the Agent of true and correct copies of (as so certified by an officer of HPSC),
and the Agent shall be satisfied with the form and substance of, the following:
(i) all corporate organization documents of the Joint Venture, (ii) the by-laws
of the Joint Venture and (iii) all management and other agreements to which the
Borrower or any Subsidiary thereof is a party concerning the Joint Venture.
5. AGREEMENTS REGARDING JOINT VENTURE. The provisions of Section 9.4 of
the Credit Agreement prohibiting the Borrower from entering into any commitment
or option in respect of certain investments shall not apply to the commitment of
the Borrower, on the terms and conditions previously disclosed to the Agent and
Lenders, to participate in the capitalization of the Joint Venture as permitted
by Section 2 hereof and no Default rate interest shall be payable pursuant to
Section 3.1(d) of the Credit Agreement with respect to the Default and Event of
Default waived in Section 3 hereof.
6. LIMITED AMENDMENT. 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 Fifth Amendment 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 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.
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 after giving effect to the
waiver set forth in Section 3 hereof) 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 Agent in connection with the preparation, execution and delivery of this
Fifth Amendment, including without limitation, the reasonable fees and
disbursements of counsel for the Agent.
9. GOVERNING LAW. This Fifth Amendment shall be governed by and construed
in accordance with the laws of the State of North Carolina.
10. COUNTERPARTS. This Fifth Amendment 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.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to
be duly executed as of the date and year first above written.
BORROWER:
[CORPORATE SEAL] HEALTHPLAN SERVICES CORPORATION
By: /s/ XXXXX X. XXXXXX III
------------------------
Name: Xxxxx X. Xxxxxx, III
Title: Executive Vice President
and Chief Financial Officer
OTHER CREDIT PARTIES:
[CORPORATE SEAL] HEALTHPLAN SERVICES, INC.
[CORPORATE SEAL] HEALTHCARE INFORMATICS CORPORATION
[CORPORATE SEAL] THIRD PARTY CLAIMS MANAGEMENT, INC.
[CORPORATE SEAL] XXXXXXXXXX SERVICES CORPORATION
[CORPORATE SEAL] R.E. XXXXXXXXXX, INC.
[CORPORATE SEAL] AMERICAN BENEFIT PLAN ADMINISTRATORS, INC.
[CORPORATE SEAL] PROHEALTH, INC.
[CORPORATE SEAL] EMPLOYEE BENEFIT SERVICES, INC.
[CORPORATE SEAL] CONSOLIDATED GROUP, INC.
[CORPORATE SEAL] GROUP BENEFIT ADMINISTRATORS INSURANCE
AGENCY, INC.
[CORPORATE SEAL] CONSOLIDATED GROUP CLAIMS, INC., now
known as CONSOLIDATED GROUP, INC.
[CORPORATE SEAL] CONSOLIDATED HEALTH COALITION, INC., now
known as CONSOLIDATED GROUP, INC.
By: /s/ XXXXX X. XXXXXX III
----------------------------
Name: Xxxxx X. Xxxxxx III
Title: Executive Vice President
FIRST UNION NATIONAL BANK (f/k/a First Union
National Bank of North Carolina), as Agent and
Lender
By: /s/ XXXX X. XXXXXXXXX
----------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
XXXXXXX BANK, N.A.,
(as successor by merger to Xxxxxxx Bank of
Tampa, a State Bank), as Lender
By: /s/ XXXXXXXX X. XXXXX
----------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
FLEET BANK, N.A., as Lender
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
NATIONSBANK, N.A. as Lender
By: /s/ XXXXX X. XXXXXX, XX.
----------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President
SOUTHTRUST BANK, NATIONAL
ASSOCIATION (f/k/a SouthTrust Bank
of Alabama, National Association)
By: /s/ XXXXXX X. XXXXX
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
SUNTRUST BANK, TAMPA BAY, as Lender
By: /s/ XXXX XXXXX
----------------------------
Name: Xxxx Xxxxx
Title: 1st Vice President
THE FIFTH THIRD BANK
OF COLUMBUS, as Lender
By: /s/ XXXXXXX X. XXXX
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
