Exhibit 10.8(g)
EXECUTION
LIMITED WAIVER AND CONSENT
Dated as of May 4, 2001
HealthPlan Services Corporation
0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, President & Chief Operating Officer
Ladies and Gentlemen:
Reference is made to: (i) that certain Second Amended and Restated
Credit Agreement dated as of June 8, 2000 among HealthPlan Services Corporation,
a Delaware corporation (the "Borrower"), the lenders referred to therein (the
"Lenders") and First Union National Bank ("First Union"), as administrative
agent (the "Administrative Agent") (as modified by the Limited Waiver and
Consent thereto dated as of June 29, 2000, the Limited Waiver and Consent
thereto dated as of September 12, 2000, the Limited Waiver thereto dated as of
September 19, 2000, the Limited Waiver and Consent thereto dated as of September
19, 2000, the Limited Waiver and Consent thereto dated as of October 19, 2000,
the Limited Waiver thereto dated as of December 8, 2000, the First Amendment and
Limited Waiver and Consent thereto dated as of March 29, 2001, the Second
Amendment and Limited Waiver and Consent thereto dated as of April 16, 2001, the
Limited Waiver and Consent thereto dated as of April 30, 2001 and as such
agreement may have otherwise been amended, restated, supplemented or otherwise
modified from time to time prior to the date hereof, the "Credit Agreement");
and (ii) that certain Security and Second Amended and Restated Pledge Agreement
dated as of June 8, 2000 (as heretofore amended, modified, restated or
supplemented from time to time, the "Security and Pledge Agreement"), among the
Borrower, the Subsidiary Guarantors party thereto and First Union, as
administrative agent for and representative of (in such capacity, the "Secured
Party") the Lenders. Capitalized terms used herein without definition shall
have the meanings set forth in the Credit Agreement or the Security and Pledge
Agreement, as applicable.
The Borrower has informed the Administrative Agent and Lenders that
the Borrower, as sole stockholder of HPSI, and the following wholly owned
subsidiaries of HPSI, American Benefit Plan Administrators, a California
corporation ("ABPA"), Southern Nevada Administrators, Inc., a Nevada corporation
("SNA"), Xxxxxxxxxx Management Corporation, a Pennsylvania corporation ("MMC"),
ProHealth, Inc., a Delaware corporation ("PHI"), HealthPlan Services Insurance
Agency of Illinois, Inc., an Illinois corporation ("HPSIA Ill"), Group Benefit
Administrators Insurance Agency, Inc., a Massachusetts corporation ("GBAIA"),
and HealthPlan Services Insurance Agency, Inc., a Massachusetts corporation
("HPSIA" and
together with HPSI, MMC, ABPA, SNA, PHI, GBAIA and HPSIA Ill., the "Companies"),
have entered into a Stock Purchase Agreement dated as of April 1, 2001 (as
amended, restated or supplemented from time to time, the "Stock Purchase
Agreement") with HealthPlan Holdings, Inc., a Delaware corporation as purchaser
("Purchaser"), pursuant to which the Borrower has agreed to sell to Purchaser
all of the issued and outstanding shares of capital stock of HPSI (the "Subject
Assets"). The Borrower has requested that Required Lenders waive the
restrictions contained in Sections 8.2(a) and 10.6 of the Credit Agreement to
the extent necessary to permit the sale of the Subject Assets (the "Subject
Asset Sale") and consent to the release of the Liens created by the Security and
Pledge Agreement on the Subject Assets pursuant to the terms thereof.
Subject to the representations and warranties contained herein, the
undersigned Required Lenders hereby agree to waive compliance with Sections
8.2(a) and 10.6 of the Credit Agreement solely to the extent necessary to permit
the Borrower to consummate the Subject Asset Sale pursuant to the terms of the
Stock Purchase Agreement; provided that on or prior to the consummation of the
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Subject Asset Sale, the Administrative Agent shall have received (i) an
Officer's Certificate dated as of the date of the Closing under the Stock
Purchase Agreement, duly executed by HPSI certifying evidence satisfactory to
the Administrative Agent that HPSI has contributed the capital stock of each of
HPS of Louisiana, Inc. (f/k/a Employee Benefit Services, Inc.) and HPS of
Missouri, Inc. (f/k/a REH Agency of Missouri, Inc.) and the membership interests
of HPS of Delaware LLC (f/k/a Centra HealthPlan LLC) to the Borrower, (ii) new
certificates (which certificates shall be accompanied by irrevocable undated
stock powers duly endorsed in blank and otherwise satisfactory in form and
substance to the Administrative Agent) representing or evidencing the capital
stock of HPS of Louisiana, Inc. and HPS of Missouri, Inc. and the membership
interests of HPS of Delaware LLC, it being understood that concurrently with the
delivery of such new certificates and instruments, the Administrative Agent is
hereby authorized by the Required Lenders to return for cancellation the
existing certificates representing or evidencing the capital stock or membership
interests, as the case may be, of the foregoing entities and any Irrevocable
Stock Power executed by HPSI in respect of such certificates and previously
delivered to the Administrative Agent and (iii) a Pledge Supplement duly
executed by the Borrower with respect to the capital stock of each of HPS of
Louisiana, Inc. and HPS of Missouri, Inc. and the membership interests of HPS of
Delaware LLC; and provided further that none of the conditions precedent to the
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Borrower's obligation to close the Subject Asset Sale as described in Section
6.1 of the Stock Purchase Agreement shall have been waived by the Borrower
except as agreed upon by the Administrative Agent in its sole discretion.
Required Lenders hereby authorize the Administrative Agent to, (a)
upon receipt of an Officer's Certificate from the Borrower by the Administrative
Agent pursuant to Section 20(b) of the Security and Pledge Agreement in respect
of the Subject Assets, at the Borrower's sole cost and expense and so long as
Secured Party has no reason to believe that such Officer's Certificate is not
true and correct, execute and deliver such releases of its security interest in
and Liens on such Collateral which constitutes the Subject Assets as may be
reasonably requested by the Borrower in connection with the Subject Asset Sale,
including, without limitation, any UCC-3 termination statements and other full
or partial release instruments, as applicable and (b) upon consummation of the
Subject Asset Sale in accordance with the Stock Purchase Agreement and the
provisions of this Limited Waiver and Consent, deliver to the Borrower the
certificates
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representing all of the capital stock of each of the Companies pledged pursuant
to the Security and Pledge Agreement, including any Irrevocable Stock Powers
executed by the Borrower or HPSI, as the case may be, in respect of such
certificates and previously delivered to the Administrative Agent.
Notwithstanding anything contained herein to the contrary, this
Limited Waiver and Consent shall cease to be of any force or effect if the
Subject Asset Sale has not been consummated on or before June 15, 2001.
Except as expressly provided in this Limited Waiver and Consent, the
Credit Agreement, Security and Pledge Agreement and each other Loan Document
shall continue to be, and shall remain, in full force and effect. The waivers
set forth above shall be limited precisely as written and relate solely to
noncompliance by the Borrower with the provisions of Sections 8.2(a) and 10.6 of
the Credit Agreement in manner and to the extent described above and nothing in
this Limited Waiver and Consent shall be deemed or otherwise construed: (a) to
be a waiver of, or consent to or a modification or amendment of (i) Sections
8.2(a) or 10.6 of the Credit Agreement in any other instance or (ii) any other
term or condition of the Credit Agreement, the Security and Pledge Agreement or
any other Loan Document; (b) to prejudice any other right or rights that the
Administrative Agent or the Lenders, or any of them, may now have or may have in
the future under or in connection with the Credit Agreement, Security and Pledge
Agreement or the other Loan Documents; (c) to be a commitment or any other
undertaking or expression of any willingness to engage in any further discussion
with the Borrower or any other person, firm or corporation with respect to any
waiver, amendment, modification or any other change to the Credit Agreement,
Security and Pledge Agreement or the other Loan Documents or any rights or
remedies arising in favor of the Lenders or the Administrative Agent, or any of
them, under or with respect to any such documents; or (d) to be a waiver of, or
consent to or a modification or amendment of, any other term or condition of any
other agreement by and among the Borrower, on the one hand, and the
Administrative Agent or any other Lender, on the other hand.
Each Subsidiary Guarantor hereby acknowledges that it has read this
Limited Waiver and Consent and consents to the terms hereof and further hereby
confirms and agrees that, notwithstanding the effectiveness of this Limited
Waiver and Consent, the obligations of such Subsidiary Guarantor under the
Subsidiary Guaranty Agreement shall not be impaired or affected and the
Subsidiary Guaranty Agreement is, and shall continue to be, in full force and
effect and is hereby confirmed and ratified in all respects.
By its execution hereof, the Borrower hereby certifies on behalf of
itself and the other Credit Parties that (i) each of the representations and
warranties set forth in the Credit Agreement, Security and Pledge Agreement and
the other Loan Documents is true and correct as of the date hereof as if fully
set forth herein and that, as of the date hereof, no Default or Event of Default
has occurred and is continuing (ii) no Default or Event of Default exists under
the Credit Agreement or the other Loan Documents after giving effect to the
waiver contemplated in this Limited Waiver and Consent and (iii) all financial
projections concerning the Borrower and its Subsidiaries that have been or are
hereafter made available to the Administrative Agent or the other Lenders by the
Borrower or any of its representatives in connection with the transactions
contemplated hereby (the "Projections") have been (or will be, in the case of
Projections made available after the date hereof) prepared in good faith based
upon reasonable assumptions.
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The Borrower shall pay all reasonable out-of-pocket expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Limited Waiver and Consent, including, without limitation, the
reasonable fees and disbursements of counsel for the Administrative Agent.
This Limited Waiver and Consent may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. This
Limited Waiver and Consent shall become effective as of the date hereof (the
"Limited Waiver Effective Date") upon (i) the execution of counterparts hereof
by the Borrower and the Required Lenders and receipt by the Administrative Agent
of written or telephonic notification of such execution and authorization of
delivery thereof, (ii) receipt by the Administrative Agent of the final form of
the Stock Purchase Agreement which shall be in form and substance approved by
the Administrative Agent with such changes thereto as may be acceptable to the
Administrative Agent, (iii) receipt by the Administrative Agent of that certain
Letter of Credit No. S165884 issued by First Union for the account of The New
England Life Insurance Co. in the current outstanding amount of $6,000,000,
which Letter of Credit shall be returned to the Administrative Agent undrawn in
its entirety or if drawn upon the Administrative Agent shall have received a
cash payment equal to any amount drawn on such Letter of Credit and (iv) receipt
by the Administrative Agent of (A) an Officer's Certificate duly executed by the
Borrower and dated as of the first day following the Closing under the Stock
Purchase Agreement, in form and substance satisfactory to the Administrative
Agent, certifying that the representations and warranties of the Credit Parties
contained in Section 6.1(b) are true, correct and complete in all material
respects as of such date and attached thereto is a true, correct and complete
copy of Schedule 6.19(b) to the Credit Agreement as of such date, and (B) such
other documents, agreements and instruments as the Administrative Agent may
reasonably require.
THIS LIMITED WAIVER AND CONSENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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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. Xxxx, II
-------------------------------------.
Name: Xxxx X. Lucy, II
Title: Vice President
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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
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FIFTH THIRD BANK, CENTRAL OHIO, as a
Lender
By: /s/ Xxxx Xxxxxx
-------------------------------------.
Name: Xxxx Xxxxxx
Title: Vice President
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BORROWER:
PlanVista Corporation (f/k/a Health Plan
Services Corporation) as Borrower
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------.
Name: Xxxxxxx X. Xxxxxx
Title: Assistant 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, NC.)
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
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
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