Exhibit 10.12(h)
PLANVISTA CORPORATION
FOURTH AMENDMENT AND LIMITED WAIVER
TO FORBEARANCE AGREEMENT
THIS FOURTH AMENDMENT AND LIMITED WAIVER TO FORBEARANCE AGREEMENT (this
"Amendment to Forbearance Agreement") is dated as of December 14, 2001, by and
among PLANVISTA CORPORATION (f/k/a 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 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
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, the
Limited Waiver and Consent thereto dated as of May 4, 2001, the Limited Waiver
and Extension thereto dated as of June 15, 2001, the Third Amendment and Limited
Waiver thereto dated as of July 2, 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
Forbearance Agreement dated as of September 1, 2001 by and among the Borrower,
the Credit Parties listed on the signature pages thereto, the Lenders and the
Administrative Agent (as amended by the First Amendment thereto dated as of
September 30, 2001, the Second Amendment and Limited Waiver thereto dated as of
October 19, 2001, the Third Amended and Limited Waiver thereto dated as of
November 11, 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 "Forbearance Agreement"). Capitalized terms used herein without
definition shall have the meanings set forth in the Forbearance Agreement,
except to the extent not defined herein or therein such terms shall have the
meanings ascribed to them in the Credit Agreement.
R E C I T A L S
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A. Each of the Existing Events of Default listed in clause A of the
recitals to the Forbearance Agreement is continuing.
B. The Borrower has requested that the Administrative Agent and the
Lenders enter into this Amendment to Forbearance Agreement, and the
Administrative Agent and the Lenders have agreed to do so, but only to the
extent, and on the terms, set forth expressly below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby agree as follows:
SECTION 2.
ACKNOWLEDGMENTS
A. The Borrower and each other Credit Party acknowledges that each of the
Existing Events of Default is continuing.
B. The Borrower and each other Credit Party acknowledges and agrees with
the Administrative Agent and each of the Lenders that: (i) it has no claim or
cause of action against the Administrative Agent or any of the Lenders (or any
of the Administrative Agent's or any Lender's directors, officers, shareholders,
employees, agents or affiliates); and (ii) it has no offset, right, counterclaim
or defense of any kind against or with respect to any of the Obligations. The
Administrative Agent and each of the Lenders desire (and the Borrower and each
other Credit Party agrees) to eliminate any possibility that any past
conditions, acts, omissions, events, circumstances or matters would impair or
otherwise adversely affect any of the rights, interests, contracts, collateral
security or remedies of the Administrative Agent or any of the Lenders.
Therefore, the Borrower and each other Credit Party on behalf of itself and each
of its Subsidiaries and Affiliates unconditionally, freely, voluntarily and
after consultation with counsel releases, waives and forever discharges the
Administrative Agent and each of the Lenders, and their respective directors,
officers, shareholders, employees, agents and affiliates, (x) from any and all
claims, liabilities, obligations, duties, promises or indebtedness of any kind
(if any), known or unknown, and (y) from all claims, offsets, causes of action,
suits or defenses of any kind whatsoever (if any), whether known or unknown,
which the Borrower or any of the other Credit Parties might otherwise have
against the Administrative Agent or any of the Lenders or any of the
Administrative Agent's or any of the Lenders' directors, officers, shareholders,
employees, agents or affiliates, in either case set forth in clauses (x) or (y)
above in this Section 2.B, on account of any condition, act, omission, event,
contract, liability, obligation, indebtedness, claim, cause of action, defense,
circumstance or matter of any kind whatsoever which existed arose or occurred at
any time prior to the date hereof.
C. The Borrower and each other Credit Party hereby ratifies and reaffirms
the validity and enforceability of all of the Liens and security interests
heretofore granted, pursuant to the Security Documents, to the Administrative
Agent, for itself and on behalf of the several Lenders, as collateral security
for the Obligations, and acknowledges that all of such Liens and security
interests, and all collateral heretofore pledged as security for the
Obligations, continues to be and remain collateral for the Obligations from and
after the date hereof. Without limiting the foregoing, the Borrower and each
other Credit Party acknowledges and agrees that, pursuant and subject to the
Security Documents, the Administrative Agent, for itself and on behalf of all of
the Lenders, is entitled to receive and apply all proceeds of Collateral.
SECTION 3.
AMENDMENT TO THE FORBEARANCE AGREEMENT
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A. Amendment to Section 3.A. Section 3.A of the Forbearance Agreement is
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hereby amended to delete the date "December 14, 2001" appearing in the sixth
line thereof and substitute therefor the date "January 31, 2002".
B. Amendment to Section 5.A. Section 3.A of the Forbearance Agreement is
------------------------
hereby amended to delete the date "December 15, 2001" appearing in the fifth
line thereof and substitute therefor the date "January 31, 2002".
SECTION 4.
LIMITED WAIVERS TO THE FORBEARANCE AGREEMENT
A. Forbearance Period Interest Payments. On the basis of the
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representations and warranties contained in this Amendment to Forbearance
Agreement, and subject to the terms and conditions of this Amendment to
Forbearance Agreement, the Administrative Lenders and Lenders hereby agree to
waive until January 31, 2002, compliance with the proviso appearing at the end
of Section 3.B solely with respect to payments in respect of interest on the
Loans due October 31, 2001, November 30, 2001 and December 31, 2001.
B. Payments With Respect to Subject Obligations. On the basis of the
--------------------------------------------
representations and warranties contained in this Amendment to Forbearance
Agreement, and subject to the terms and conditions of this Amendment to
Forbearance Agreement, the Administrative Lenders and Lenders hereby agree to
waive until January 31, 2002, compliance with Section 5.A(3) of the Forbearance
Agreement relating to minimum aggregate payments with respect to the Subject
Obligations as of October 31, 2001 and November 30, 2001.
SECTION 5.
LIMITATION OF WAIVER
Except as expressly provided in this Amendment to Forbearance Agreement,
the Forbearance 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 10.B of the Forbearance Agreement and 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 3.B and 5.A(3) of the Forbearance Agreement in manner and to the
extent described above and nothing in this Amendment to Forbearance Agreement
shall be deemed or otherwise construed to:
(1) constitute a waiver of, or consent to or a modification or
amendment of (i) Sections 3.B and 5.A(3) of the Forbearance Agreement in any
other instance or (ii) any other term or condition of the Forbearance Agreement
or any other Loan Document;
(2) 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 Forbearance Agreement or the other Loan Documents;
(3) 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
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Forbearance 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
(4) 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 6.
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and Lenders to enter into this
Amendment to Forbearance Agreement, the Borrower hereby represents and warrants
to the Administrative Agent and Lenders that:
A. Authorization; Binding Obligations. Each Credit Party has all requisite
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corporate power and authority to enter into this Amendment to Forbearance
Agreement. The execution, delivery and performance of this Amendment to
Forbearance Agreement have been duly authorized by all necessary corporate
action by each Credit Party. This Amendment to Forbearance Agreement 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). The Credit Agreement constitutes 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 Fourth Amendment Effective
Date (as defined below) to the same extent as though made on and as of the
Fourth 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. Other than the Existing Events of Default,
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no event has occurred and is continuing or would result from the execution,
delivery or performance of this Amendment to Forbearance Agreement that
constitutes or would constitute a Default or Event of Default after giving
effect to this Amendment to Forbearance Agreement.
D. Financial Projections. 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
4
Projections made available after the date hereof) prepared in good faith based
upon reasonable assumptions.
E. Performance. The 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 7.
ACKNOWLEDGEMENT AND CONSENT BY CREDIT PARTIES
The Borrower and each other Credit Party executing a counterpart hereto
agrees to and acknowledges the terms and provisions of this Amendment to
Forbearance Agreement and confirms that each Loan Document to which such Credit
Party is a party shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be impaired
or affected by the execution of this Amendment to Forbearance Agreement, except
as specifically provided herein. The Borrower and each other Credit Party
executing a counterpart hereof represents and warrants 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 8.
CONDITIONS TO EFFECTIVENESS
This Amendment to Forbearance Agreement shall become effective as of the
date hereof (the "Fourth Amendment Effective Date") only upon receipt of the
following by the Administrative Agent:
(1) 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;
(2) evidence satisfactory to it that the maturity date of each of the
Subordinated Notes (as defined in the Limited Waiver and Consent dated as of
April 30, 2001 (the "April Waiver")) issued in connection with the Director
Loans (as defined in the April Waiver) has been extended to January 31, 2002;
and
(3) such other documents as the Administrative Agent may reasonably
require.
SECTION 9.
MISCELLANEOUS
A. Effect of Amendment. Except as specifically provided herein, this
-------------------
Amendment does not in any way waive, amend, modify, affect or impair the terms
and conditions of the Forbearance Agreement, the Credit Agreement or the other
Loan Documents,
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and all terms and conditions of the Forbearance Agreement, 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 Fourth Amendment Effective Date, each reference in the
Forbearance Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Forbearance Agreement, and each reference
in the Credit Agreement or other Loan Documents to the "Forbearance Agreement",
"thereunder", "thereof", or words of like import referring to the Forbearance
Agreement shall mean and be a reference to the Forbearance Agreement as modified
by this Amendment.
B. Fees and Expenses. The Borrower and each other Credit Party ratify
-----------------
and affirm their reimbursement and indemnification obligations under Section
13.2 of the Credit Agreement, including its obligation to pay all legal and
other fees and expenses incurred by the Administrative Agent and each of the
Lenders in connection with the negotiation, implementation, execution and
enforcement of this Amendment to Forbearance Agreement and any acts contemplated
hereby. Nothing herein shall be construed to limit, affect, modify or alter the
Borrower's obligations under Credit Agreement or elsewhere under the Loan
Documents or the Subsidiary Guarantors' obligations under the Subsidiary
Guaranty Agreement.
C. No Waiver of Rights Under Loan Documents. Any negotiation heretofore
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or hereafter and any action undertaken pursuant to this Amendment to Forbearance
Agreement or any Loan Document or during the Forbearance Period shall not
constitute a waiver of any Default or Event of Default (including without
limitation any Existing Event of Default) or of any Administrative Agent's or
Lender's rights or remedies under the Loan Documents or this Amendment to
Forbearance Agreement or prejudice any Administrative Agent's or Lender's rights
under the Loan Documents or this Amendment to Forbearance Agreement except to
the extent specifically set forth herein. No party shall be bound by any oral
agreement, and no rights or liabilities, either expressed or implied, shall
arise on the part of any party, or any third party, until and unless the
agreement on any given issue has been reduced to a written agreement executed in
accordance with the provisions of Section 13.12 of the Credit Agreement.
Furthermore, the parties agree that this Amendment to Forbearance Agreement may
be amended, replaced or supplemented only by a written agreement executed in
accordance with the provisions of Section 13.12 of the Credit Agreement.
D. No Waiver of Remedies. The Administrative Agent and each Lender
---------------------
expressly reserves any and all rights and remedies available to it under this
Amendment to Forbearance Agreement, the Loan Documents, any other agreement or
at law or in equity or otherwise. No failure to exercise, or delay by the
Administrative Agent or any Lender in exercising, any right, power or privilege
hereunder or under any Loan Document shall preclude any other or further
exercise thereof, or the exercise of any other right, power or privilege. The
rights and remedies provided in this Amendment to Forbearance Agreement and the
Loan Documents are cumulative and not exhaustive of each other or of any right
or remedy provided by law or equity or otherwise. No notice to or demand upon
the Borrower, in any instance shall, in itself, entitle the Borrower to any
other or further notice or demand in similar or other
6
circumstances or constitute a waiver of the right of the Administrative Agent or
any Lender to any other or further action in any circumstance without notice or
demand.
E. No Commitment. This Amendment to Forbearance Agreement is not intended
-------------
as a commitment by the Administrative Agent or the Lenders to modify the Loan
Documents in any respect or otherwise, except as expressly provided herein, and
the Administrative Agent and the Lenders hereby specifically confirm that they
make no such commitment and specifically advise that no action should be taken
by the Borrower based upon any understanding that such a commitment exists or on
any expectation that any such commitment will be made in the future.
F. Time is of the Essence. Time shall be of the strictest essence in the
----------------------
performance of each and every one of the Borrower's obligations hereunder and
under the Loan Documents, including without limitation, the obligations to make
payments to the Administrative Agent and Lenders, to furnish information to the
Administrative Agent and Lenders and to comply with all reporting requirements.
G. Voluntary Agreement. Each of the Borrower, the Subsidiary Guarantors,
-------------------
the Administrative Agent and the Lenders understands that this is a legally
binding agreement that may affect such party's rights. Each represents to the
other that it has received legal advice from counsel of its choice in connection
with the negotiation, drafting, meaning and legal significance of this Amendment
to Forbearance Agreement and that it is satisfied with its legal counsel and the
advice received from it. The Borrower and each other Credit Party (i) has
entered into this Amendment to Forbearance Agreement freely and voluntarily,
without coercion, duress, distress or undue influence by the Administrative
Agent or the Lenders or any other person or entity affiliated with the Borrower
or the other Credit Parties or any of their respective directors, offices,
partners, agents or employees and (ii) acknowledges and agrees that the terms
and provisions of this Amendment to Forbearance Agreement do not conflict with
and are consistent with the manner in which it has determined to conduct its
affairs. The Borrower and each other Credit Party acknowledges and agrees that
this Amendment to Forbearance Agreement is a Loan Document.
H. Construction. Should any provision of this Amendment to Forbearance
------------
Agreement require judicial interpretation, it is agreed that a court
interpreting or construing the same shall not apply a presumption that the terms
of this Amendment to Forbearance Agreement shall be more strictly construed
against any party by reason of the rule of construction that a document is to be
construed more strictly against the party who itself or through its agent
prepared the same.
I. Entire Agreement; Other Matters. This Amendment to Forbearance
-------------------------------
Agreement constitutes the entire agreement of the Borrower, the Subsidiary
Guarantors, the Administrative Agent and the Lenders concerning the subject
matter hereof, and all prior or contemporaneous understandings, oral
representations or agreements had among the parties with respect to the subject
matter hereof are merged in, and are contained in, this Amendment to Forbearance
Agreement. This Amendment to Forbearance Agreement is not intended to confer
any rights or benefits on any parties other than the parties hereto and their
respective successors and assigns. If any provision of this Amendment to
Forbearance Agreement shall be
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unenforceable under applicable law, such provision shall be ineffective without
invalidating the remaining provisions of this Amendment to Forbearance
Agreement.
J. Binding Agreement. On and as of the Fourth Amendment Effective Date,
-----------------
this Amendment to Forbearance Agreement shall be effective as to and for the
benefit of the Borrower, the Subsidiary Guarantors, the Administrative Agent and
the Lenders, and thereupon shall be binding upon and inure to the benefit of
each of such signatory parties and their respective heirs, successors and
assigns, except that neither the Borrower nor any Subsidiary Guarantor shall
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Administrative Agent and each of the Lenders.
K. Effect on Loan Documents. The Credit Agreement and other Loan
------------------------
Documents, including the Subsidiary Guaranty Agreement, continue in full force
and effect in accordance with their respective terms. Nothing contained herein
shall constitute a waiver of any Existing Event of Default or future Default or
Event of Default.
L. Headings. Section and subsection headings in this Amendment to
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Forbearance Agreement are included herein for convenience of reference only and
shall not constitute a part of Amendment to Forbearance Agreement for any other
purpose or be given any substantive effect.
M. Applicable Law. THIS AMENDMENT TO FORBEARANCE AGREEMENT 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.
N. Counterparts. This Amendment to Forbearance Agreement 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.
[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
Forbearance Agreement 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
CREDIT LYONNAIS, NEW YORK BRANCH,
as a Lender
By: /s/ Xxxx Xxxxxxx Xxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx Xxx Xxxxxx
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
SOUTHTRUST BANK, as a Lender
By: /s/ B. E. Xxxxxxx
-----------------------------------------
Name: B. E. Xxxxxxx
Title: Group Vice President
S-1
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a
Lender
By: /s/ Xxxxx X. Xxxxxxxxxx /s/ Xxxx XxXxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx Xxxx XxXxxxx
Title: Managing Director Vice President
Chief Risk Officer
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
S-2
BORROWER:
PLANVISTA CORPORATION, as Borrower
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
OTHER CREDIT PARTIES:
PLANVISTA SOLUTIONS, INC. (f/k/a
NATIONAL PREFERRED PROVIDER
NETWORK, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
NATIONAL NETWORK SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Secretary and Treasurer
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Secretary and Treasurer
HPS OF DELAWARE LLC (f/k/a CENTRA
HEALTHPLAN LLC)
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President
S-3
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE
BENEFIT SERVICES,INC.)
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
President
HPS OF MISSOURI, INC. (f/k/a REH
AGENCY OF MISSOURI, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxx
Secretary and Treasurer
S-4
PLANVISTA CORPORATION
FIFTH AMENDMENT AND LIMITED WAIVER
TO FORBEARANCE AGREEMENT
THIS FIFTH AMENDMENT AND LIMITED WAIVER TO FORBEARANCE AGREEMENT (this
"Amendment to Forbearance Agreement") is dated as of January 31, 2002, by and
among PLANVISTA CORPORATION (f/k/a 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 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
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, the
Limited Waiver and Consent thereto dated as of May 4, 2001, the Limited Waiver
and Extension thereto dated as of June 15, 2001, the Third Amendment and Limited
Waiver thereto dated as of July 2, 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
Forbearance Agreement dated as of September 1, 2001 by and among the Borrower,
the Credit Parties listed on the signature pages thereto, the Lenders and the
Administrative Agent (as amended by the First Amendment thereto dated as of
September 30, 2001, the Second Amendment and Limited Waiver thereto dated as of
October 19, 2001, the Third Amendment and Limited Waiver thereto dated as of
November 11, 2001, the Fourth Amendment and Limited Waiver thereto dated as of
December 14, 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 "Forbearance Agreement"). Capitalized terms used herein without
definition shall have the meanings set forth in the Forbearance Agreement,
except to the extent not defined herein or therein such terms shall have the
meanings ascribed to them in the Credit Agreement.
R E C I T A L S
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A. Each of the Existing Events of Default listed in clause A of the
recitals to the Forbearance Agreement is continuing.
B. The Borrower and the Administrative Agent and Lenders have agreed
in principle to the terms set forth in that certain Proposed Summary of Key
Terms and Conditions for Restructured Credit Facilities (the "Term Sheet") which
summarizes certain significant
terms and conditions of a restructuring of the existing credit facilities
outstanding under the Credit Agreement and the Forbearance Agreement (the
"Restructuring").
C. The Borrower has requested that the Administrative Agent and
Lenders enter into this Amendment to Forbearance Agreement in order to, among
other things, permit additional time to consummate the Restructuring, and the
Administrative Agent and the Lenders have agreed to do so, but only to the
extent, and on the terms, set forth expressly below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby agree as follows:
SECTION 1.
ACKNOWLEDGMENTS
A. The Borrower and each other Credit Party acknowledge that each of
the Existing Events of Default is continuing.
B. Each of the Borrower and each other Credit Party acknowledges and
agrees with the Administrative Agent and each of the Lenders that: (i) it has no
claim or cause of action against the Administrative Agent or any of the Lenders
(or any of the Administrative Agent's or any Lender's directors, officers,
shareholders, employees, agents or affiliates); and (ii) it has no offset,
right, counterclaim or defense of any kind against or with respect to any of the
Obligations. The Administrative Agent and each of the Lenders desire (and the
Borrower and each other Credit Party agree) to eliminate any possibility that
any past conditions, acts, omissions, events, circumstances or matters would
impair or otherwise adversely affect any of the rights, interests, contracts,
collateral security or remedies of the Administrative Agent or any of the
Lenders. Therefore, each of the Borrower and each other Credit Party on behalf
of itself and each of its Subsidiaries and Affiliates unconditionally, freely,
voluntarily and after consultation with counsel releases, waives and forever
discharges the Administrative Agent and each of the Lenders, and their
respective directors, officers, shareholders, employees, agents and affiliates,
(x) from any and all claims, liabilities, obligations, duties, promises or
indebtedness of any kind (if any), known or unknown, and (y) from all claims,
offsets, causes of action, suits or defenses of any kind whatsoever (if any),
whether known or unknown, which the Borrower or any of the other Credit Parties
might otherwise have against the Administrative Agent or any of the Lenders or
any of the Administrative Agent's or any of the Lenders' directors, officers,
shareholders, employees, agents or affiliates, in either case set forth in
clauses (x) or (y) above in this Section 1.B, on account of any condition, act,
omission, event, contract, liability, obligation, indebtedness, claim, cause of
action, defense, circumstance or matter of any kind whatsoever which existed
arose or occurred at any time prior to the date hereof.
C. The Borrower and each other Credit Party hereby ratify and
reaffirm the validity and enforceability of all of the Liens and security
interests heretofore granted, pursuant to the Security Documents, to the
Administrative Agent, for itself and on behalf of the several Lenders, as
collateral security for the Obligations, and acknowledge that all of such Liens
and security interests, and all collateral heretofore pledged as security for
the Obligations, continue to be and remain collateral for the Obligations from
and after the date hereof. Without limiting the
2
foregoing, the Borrower and each other Credit Party acknowledge and agree that,
pursuant and subject to the Security Documents, the Administrative Agent, for
itself and on behalf of all of the Lenders, is entitled to receive and apply all
proceeds of Collateral.
SECTION 2.
AMENDMENT TO THE FORBEARANCE AGREEMENT
A. Amendment to Section 3.A. The first sentence of Section 3.A of
------------------------
the Forbearance Agreement is hereby amended and restated in its entirety as
follows:
"Subject to the terms and conditions of this Agreement, including, without
limitation, the provisions of Sections 4 and 5 of this Agreement, the
Administrative Agent and the Lenders signatory hereto (the 'Forbearing
Lenders') agree to forbear from taking Enforcement Actions in respect of
the Obligations as a result of the Existing Events of Default for the
period (the 'Forbearance Period') from the date hereof through and
including the earlier of: (i) March 15, 2002; (ii) the date upon which the
Borrower indicates, or the Administrative Agent determines in its sole
discretion, that the Borrower is unable to consummate the Restructuring; or
(iii) the date upon which any of the Forbearance Conditions is not
satisfied or ceases to continue to be satisfied (the earlier of clause (i),
(ii) or (iii) being referred to as the 'Forbearance Termination Date')."
B. Amendment to Section 5.A. Clause (3) of Section 5.A of the
------------------------
Forbearance Agreement is hereby amended to delete the date "January 31, 2002"
appearing in the fifth line thereof and substitute therefor the phrase "the
Forbearance Termination Date".
SECTION 3.
LIMITED WAIVERS TO THE FORBEARANCE AGREEMENT
A. Forbearance Period Interest Payments. On the basis of the
------------------------------------
representations and warranties contained in this Amendment to Forbearance
Agreement, and subject to the terms and conditions of this Amendment to
Forbearance Agreement, the Administrative Agent and the Lenders hereby agree to
waive until the Forbearance Termination Date, compliance with the proviso
appearing at the end of Section 3.B of the Forbearance Agreement solely with
respect to payments in respect of interest on the Loans due October 31, 2001,
November 30, 2001, December 31, 2001, January 31, 2002 and February 28, 2002;
provided that, notwithstanding anything to the contrary in the Forbearance
--------
Agreement on the last day of each month commencing February 28, 2002 and
continuing until the Forbearance Termination Date, the Borrower shall pay, in
cash, interest on a portion of the unpaid principal of each Loan owing to each
Lender as if the Restructuring under the Term Sheet has been consummated (a rate
per annum equal to the Base Rate plus one percent (1%) on an outstanding
----
principal amount of Loans equal to $40,000,000).
B. Payments With Respect to Subject Obligations. On the basis of
--------------------------------------------
the representations and warranties contained in this Amendment to Forbearance
Agreement, and subject to the terms and conditions of this Amendment to
Forbearance Agreement, the Administrative Agent and Lenders hereby agree to
waive until the Forbearance Termination
3
Date, compliance with Section 5.A(3) of the Forbearance Agreement relating to
minimum aggregate payments with respect to the Subject Obligations.
SECTION 4.
LIMITATION OF WAIVER
Except as expressly provided in this Amendment to Forbearance
Agreement, the Forbearance 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 10.B of the Forbearance Agreement and
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 3.B and 5.A(3) of the Forbearance Agreement in
manner and to the extent described above and nothing in this Amendment to
Forbearance Agreement shall be deemed or otherwise construed to:
(1) constitute a waiver of, or consent to or a modification or
amendment of (i) Sections 3.B and 5.A(3) of the Forbearance Agreement in any
other instance or (ii) any other term or condition of the Forbearance Agreement
or any other Loan Document;
(2) 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 Forbearance Agreement or the other Loan
Documents;
(3) 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 Forbearance 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
(4) 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 5.
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and Lenders to enter into
this Amendment to Forbearance Agreement, the Borrower hereby represents and
warrants to the Administrative Agent and Lenders that:
A. Authorization; Binding Obligations. Each Credit Party has all
----------------------------------
requisite corporate power and authority to enter into this Amendment to
Forbearance Agreement. The execution, delivery and performance of this
Amendment to Forbearance Agreement have been duly authorized by all necessary
corporate action by each Credit Party. This Amendment to Forbearance Agreement
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
4
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). The Credit Agreement constitutes 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 Fifth Amendment
Effective Date (as defined below) to the same extent as though made on and as of
the Fifth 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. Other than the Existing Events of Default,
-------------------
no event has occurred and is continuing or would result from the execution,
delivery or performance of this Amendment to Forbearance Agreement that
constitutes or would constitute a Default or Event of Default after giving
effect to this Amendment to Forbearance Agreement.
D. Financial Projections. 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.
E. Performance. The 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 6.
ACKNOWLEDGEMENT AND CONSENT BY CREDIT PARTIES
Each of the Borrower and each other Credit Party executing a
counterpart hereto agrees to and acknowledges the terms and provisions of this
Amendment to Forbearance Agreement and confirms that each Loan Document to which
such Credit Party is a party shall continue in full force and effect and that
all of its obligations thereunder shall be valid and enforceable and shall not
be impaired or affected by the execution of this Amendment to Forbearance
Agreement, except as specifically provided herein. Each of the Borrower and
each other Credit Party executing a counterpart hereof represents and warrants
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.
5
SECTION 7.
CONDITIONS TO EFFECTIVENESS
This Amendment to Forbearance Agreement shall become effective as of
the date hereof (the "Fifth Amendment Effective Date") only upon receipt of the
following by the Administrative Agent:
(1) 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;
(2) evidence satisfactory to it that the maturity date of each
of the Subordinated Notes (as defined in the Limited Waiver and Consent dated as
of April 30, 2001 (the "April Waiver")) issued in connection with the Director
Loans (as defined in the April Waiver) has been extended to March 15, 2002; and
(3) such other documents as the Administrative Agent may
reasonably require.
SECTION 8.
MISCELLANEOUS
A. Effect of Amendment. Except as specifically provided herein,
-------------------
this Amendment does not in any way waive, amend, modify, affect or impair the
terms and conditions of the Forbearance Agreement, the Credit Agreement or the
other Loan Documents, and all terms and conditions of the Forbearance Agreement,
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 Fifth Amendment Effective Date, each reference in the
Forbearance Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Forbearance Agreement, and each reference
in the Credit Agreement or other Loan Documents to the "Forbearance Agreement",
"thereunder", "thereof", or words of like import referring to the Forbearance
Agreement shall mean and be a reference to the Forbearance Agreement as modified
by this Amendment.
B. Fees and Expenses. The Borrower and each other Credit Party
-----------------
ratify and affirm their reimbursement and indemnification obligations under
Section 13.2 of the Credit Agreement, including its obligation to pay all legal
and other fees and expenses incurred by the Administrative Agent and each of the
Lenders in connection with the negotiation, implementation, execution and
enforcement of this Amendment to Forbearance Agreement and any acts contemplated
hereby. Nothing herein shall be construed to limit, affect, modify or alter the
Borrower's obligations under Credit Agreement or elsewhere under the Loan
Documents or the Subsidiary Guarantors' obligations under the Subsidiary
Guaranty Agreement.
C. No Waiver of Rights Under Loan Documents. Any negotiation
----------------------------------------
heretofore or hereafter and any action undertaken pursuant to this Amendment to
Forbearance Agreement
6
or any Loan Document or during the Forbearance Period shall not constitute a
waiver of any Default or Event of Default (including without limitation any
Existing Event of Default) or of any Administrative Agent's or Lender's rights
or remedies under the Loan Documents or this Amendment to Forbearance Agreement
or prejudice any Administrative Agent's or Lender's rights under the Loan
Documents or this Amendment to Forbearance Agreement except to the extent
specifically set forth herein. No party shall be bound by any oral agreement,
and no rights or liabilities, either expressed or implied, shall arise on the
part of any party, or any third party, until and unless the agreement on any
given issue has been reduced to a written agreement executed in accordance with
the provisions of Section 13.12 of the Credit Agreement. Furthermore, the
parties agree that this Amendment to Forbearance Agreement may be amended,
replaced or supplemented only by a written agreement executed in accordance with
the provisions of Section 13.12 of the Credit Agreement.
D. No Waiver of Remedies. The Administrative Agent and each Lender
---------------------
expressly reserve any and all rights and remedies available to it under this
Amendment to Forbearance Agreement, the Loan Documents, any other agreement or
at law or in equity or otherwise. No failure to exercise, or delay by the
Administrative Agent or any Lender in exercising, any right, power or privilege
hereunder or under any Loan Document shall preclude any other or further
exercise thereof, or the exercise of any other right, power or privilege. The
rights and remedies provided in this Amendment to Forbearance Agreement and the
Loan Documents are cumulative and not exclusive of each other or of any right or
remedy provided by law or equity or otherwise. No notice to or demand upon the
Borrower or any other Credit Party, in any instance shall, in itself, entitle
the Borrower or such other Credit Party to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the right of the
Administrative Agent or any Lender to any other or further action in any
circumstance without notice or demand.
E. No Commitment. This Amendment to Forbearance Agreement is not
-------------
intended as a commitment by the Administrative Agent or the Lenders to modify
the Loan Documents in any respect or otherwise, except as expressly provided
herein, and the Administrative Agent and the Lenders hereby specifically confirm
that they make no such commitment and specifically advise that no action should
be taken by the Borrower based upon any understanding that such a commitment
exists or on any expectation that any such commitment will be made in the
future.
F. Time is of the Essence. Time shall be of the strictest essence
----------------------
in the performance of each and every one of the Borrower's obligations hereunder
and under the Loan Documents, including without limitation, the obligations to
make payments to the Administrative Agent and Lenders, to furnish information to
the Administrative Agent and Lenders and to comply with all reporting
requirements.
G. Voluntary Agreement. Each of the Borrower, the Subsidiary
-------------------
Guarantors, the Administrative Agent and the Lenders understands that this is a
legally binding agreement that may affect such party's rights. Each represents
to the other that it has received legal advice from counsel of its choice in
connection with the negotiation, drafting, meaning and legal significance of
this Amendment to Forbearance Agreement and that it is satisfied with its legal
counsel and the advice received from it. The Borrower and each other Credit
Party (i) have entered into this
7
Amendment to Forbearance Agreement freely and voluntarily, without coercion,
duress, distress or undue influence by the Administrative Agent or the Lenders
or any other person or entity affiliated with the Borrower or the other Credit
Parties or any of their respective directors, offices, partners, agents or
employees and (ii) acknowledge and agree that the terms and provisions of this
Amendment to Forbearance Agreement do not conflict with and are consistent with
the manner in which it has determined to conduct its affairs. The Borrower and
each other Credit Party acknowledge and agree that this Amendment to Forbearance
Agreement is a Loan Document.
H. Construction. Should any provision of this Amendment to
------------
Forbearance Agreement require judicial interpretation, it is agreed that a court
interpreting or construing the same shall not apply a presumption that the terms
of this Amendment to Forbearance Agreement shall be more strictly construed
against any party by reason of the rule of construction that a document is to be
construed more strictly against the party who itself or through its agent
prepared the same.
I. Entire Agreement; Other Matters. This Amendment to Forbearance
-------------------------------
Agreement constitutes the entire agreement of the Borrower, the Subsidiary
Guarantors, the Administrative Agent and the Lenders concerning the subject
matter hereof, and all prior or contemporaneous understandings, oral
representations or agreements had among the parties with respect to the subject
matter hereof are merged in, and are contained in, this Amendment to Forbearance
Agreement. This Amendment to Forbearance Agreement is not intended to confer
any rights or benefits on any parties other than the parties hereto and their
respective successors and assigns. If any provision of this Amendment to
Forbearance Agreement shall be unenforceable under applicable law, such
provision shall be ineffective without invalidating the remaining provisions of
this Amendment to Forbearance Agreement.
J. Binding Agreement. On and as of the Fifth Amendment Effective
-----------------
Date, this Amendment to Forbearance Agreement shall be effective as to and for
the benefit of the Borrower, the Subsidiary Guarantors, the Administrative Agent
and the Lenders, and thereupon shall be binding upon and inure to the benefit of
each of such signatory parties and their respective heirs, successors and
assigns, except that neither the Borrower nor any Subsidiary Guarantor shall
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Administrative Agent and each of the Lenders.
K. Effect on Loan Documents. The Credit Agreement and other Loan
------------------------
Documents, including the Subsidiary Guaranty Agreement, continue in full force
and effect in accordance with their respective terms. Nothing contained herein
shall constitute a waiver of any Existing Event of Default or future Default or
Event of Default.
L. Headings. Section and subsection headings in this Amendment to
--------
Forbearance Agreement are included herein for convenience of reference only and
shall not constitute a part of Amendment to Forbearance Agreement for any other
purpose or be given any substantive effect.
M. Applicable Law. THIS AMENDMENT TO FORBEARANCE AGREEMENT AND THE
--------------
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
8
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.
N. Counterparts. This Amendment to Forbearance Agreement may be
------------
executed in any number of counterparts, including by telecopy, 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; signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Forbearance Agreement 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
CREDIT LYONNAIS, NEW YORK BRANCH,
as a Lender
By: /s/ Xxxx Xxxxxxx Xxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx Xxx Xxxxxx
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
SOUTHTRUST BANK, as a Lender
By: /s/ B. E. Xxxxxxx
-------------------------------------
Name: B. E. Xxxxxxx
Title: Group Vice President
S-1
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a
Lender
By: /s/ Xxxxx X. Xxxxxxxxxx /s/ Xxxx XxXxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx Xxxx XxXxxxx
Title: Managing Director Vice President
Chief Risk Officer
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
S-2
BORROWER:
PLANVISTA CORPORATION, as Borrower
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
OTHER CREDIT PARTIES:
PLANVISTA SOLUTIONS, INC. (f/k/a
NATIONAL PREFERRED PROVIDER
NETWORK, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
NATIONAL NETWORK SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
Secretary and Treasurer
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
Secretary and Treasurer
HPS OF DELAWARE LLC (f/k/a CENTRA
HEALTHPLAN LLC)
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
President
S-3
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE
BENEFIT SERVICES, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
President
HPS OF MISSOURI, INC. (f/k/a REH
AGENCY OF MISSOURI, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
Secretary and Treasurer
S-4
PLANVISTA CORPORATION
SIXTH AMENDMENT TO FORBEARANCE AGREEMENT
THIS SIXTH AMENDMENT TO FORBEARANCE AGREEMENT (this "Amendment to
Forbearance Agreement") is dated as of March 15, 2002, by and among PLANVISTA
CORPORATION (f/k/a 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 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 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, the Limited
Waiver and Consent thereto dated as of May 4, 2001, the Limited Waiver and
Extension thereto dated as of June 15, 2001, the Third Amendment and Limited
Waiver thereto dated as of July 2, 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
Forbearance Agreement dated as of September 1, 2001 by and among the Borrower,
the Credit Parties listed on the signature pages thereto, the Lenders and the
Administrative Agent (as amended by the First Amendment thereto dated as of
September 30, 2001, the Second Amendment and Limited Waiver thereto dated as of
October 19, 2001, the Third Amendment and Limited Waiver thereto dated as of
November 11, 2001, the Fourth Amendment and Limited Waiver thereto dated as of
December 14, 2001, the Fifth Amendment and Limited Waiver thereto dated as of
January 31, 2002 and as such agreement may have otherwise been amended,
restated, supplemented or otherwise modified from time to time prior to the date
hereof, the "Forbearance Agreement"). Capitalized terms used herein without
definition shall have the meanings set forth in the Forbearance Agreement,
except to the extent not defined herein or therein such terms shall have the
meanings ascribed to them in the Credit Agreement.
R E C I T A L S
---------------
A. Each of the Existing Events of Default listed in clause A of the
recitals to the Forbearance Agreement is continuing.
B. The Borrower and the Administrative Agent and Lenders have agreed in
principle to the terms set forth in that certain Proposed Summary of Key Terms
and Conditions for Restructured Credit Facilities (the "Term Sheet") which
summarizes certain significant
terms and conditions of a restructuring of the existing credit facilities
outstanding under the Credit Agreement and the Forbearance Agreement (the
"Restructuring").
C. The Borrower has requested that the Administrative Agent and Lenders
enter into this Amendment to Forbearance Agreement in order to, among other
things, permit additional time to consummate the Restructuring, and the
Administrative Agent and the Lenders have agreed to do so, but only to the
extent, and on the terms, set forth expressly below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby agree as follows:
SECTION 1.
ACKNOWLEDGMENTS
A. The Borrower and each other Credit Party acknowledge that each of the
Existing Events of Default is continuing.
B. Each of the Borrower and each other Credit Party acknowledges and
agrees with the Administrative Agent and each of the Lenders that: (i) it has
no claim or cause of action against the Administrative Agent or any of the
Lenders (or any of the Administrative Agent's or any Lender's directors,
officers, shareholders, employees, agents or affiliates); and (ii) it has no
offset, right, counterclaim or defense of any kind against or with respect to
any of the Obligations. The Administrative Agent and each of the Lenders desire
(and the Borrower and each other Credit Party agree) to eliminate any
possibility that any past conditions, acts, omissions, events, circumstances or
matters would impair or otherwise adversely affect any of the rights, interests,
contracts, collateral security or remedies of the Administrative Agent or any of
the Lenders. Therefore, each of the Borrower and each other Credit Party on
behalf of itself and each of its Subsidiaries and Affiliates unconditionally,
freely, voluntarily and after consultation with counsel releases, waives and
forever discharges the Administrative Agent and each of the Lenders, and their
respective directors, officers, shareholders, employees, agents and affiliates,
(x) from any and all claims, liabilities, obligations, duties, promises or
indebtedness of any kind (if any), known or unknown, and (y) from all claims,
offsets, causes of action, suits or defenses of any kind whatsoever (if any),
whether known or unknown, which the Borrower or any of the other Credit Parties
might otherwise have against the Administrative Agent or any of the Lenders or
any of the Administrative Agent's or any of the Lenders' directors, officers,
shareholders, employees, agents or affiliates, in either case set forth in
clauses (x) or (y) above in this Section 1.B, on account of any condition, act,
omission, event, contract, liability, obligation, indebtedness, claim, cause of
action, defense, circumstance or matter of any kind whatsoever which existed
arose or occurred at any time prior to the date hereof.
C. The Borrower and each other Credit Party hereby ratify and reaffirm the
validity and enforceability of all of the Liens and security interests
heretofore granted, pursuant to the Security Documents, to the Administrative
Agent, for itself and on behalf of the several Lenders, as collateral security
for the Obligations, and acknowledge that all of such Liens and security
interests, and all collateral heretofore pledged as security for the
Obligations, continue to be and remain collateral for the Obligations from and
after the date hereof. Without limiting the
2
foregoing, the Borrower and each other Credit Party acknowledge and agree that,
pursuant and subject to the Security Documents, the Administrative Agent, for
itself and on behalf of all of the Lenders, is entitled to receive and apply all
proceeds of Collateral.
SECTION 2.
AMENDMENT TO THE FORBEARANCE AGREEMENT
Amendment to Section 3.A. The first sentence of Section 3.A of the
------------------------
Forbearance Agreement is hereby amended and restated in its entirety as follows:
"Subject to the terms and conditions of this Agreement, including, without
limitation, the provisions of Sections 4 and 5 of this Agreement, the
Administrative Agent and the Lenders signatory hereto (the 'Forbearing
Lenders') agree to forbear from taking Enforcement Actions in respect of
the Obligations as a result of the Existing Events of Default for the
period (the 'Forbearance Period') from the date hereof through and
including the earlier of: (i) March 29, 2002; (ii) the date upon which the
Borrower indicates, or the Administrative Agent determines in its sole
discretion, that the Borrower is unable to consummate the Restructuring; or
(iii) the date upon which any of the Forbearance Conditions is not
satisfied or ceases to continue to be satisfied (the earlier of clause (i),
(ii) or (iii) being referred to as the 'Forbearance Termination Date')."
SECTION 3.
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and Lenders to enter into
this Amendment to Forbearance Agreement, the Borrower hereby represents and
warrants to the Administrative Agent and Lenders that:
A. Authorization; Binding Obligations. Each Credit Party has all
----------------------------------
requisite corporate power and authority to enter into this Amendment to
Forbearance Agreement. The execution, delivery and performance of this
Amendment to Forbearance Agreement have been duly authorized by all necessary
corporate action by each Credit Party. This Amendment to Forbearance Agreement
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). The Credit Agreement constitutes
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 Sixth Amendment
Effective Date (as defined below) to the
3
same extent as though made on and as of the Sixth 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. Other than the Existing Events of Default,
-------------------
no event has occurred and is continuing or would result from the execution,
delivery or performance of this Amendment to Forbearance Agreement that
constitutes or would constitute a Default or Event of Default after giving
effect to this Amendment to Forbearance Agreement.
D. Financial Projections. 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.
E. Performance. The 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 4.
ACKNOWLEDGEMENT AND CONSENT BY CREDIT PARTIES
Each of the Borrower and each other Credit Party executing a
counterpart hereto agrees to and acknowledges the terms and provisions of this
Amendment to Forbearance Agreement and confirms that each Loan Document to which
such Credit Party is a party shall continue in full force and effect and that
all of its obligations thereunder shall be valid and enforceable and shall not
be impaired or affected by the execution of this Amendment to Forbearance
Agreement, except as specifically provided herein. Each of the Borrower and
each other Credit Party executing a counterpart hereof represents and warrants
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 5.
CONDITIONS TO EFFECTIVENESS
This Amendment to Forbearance Agreement shall become effective as of
the date hereof (the "Sixth Amendment Effective Date") only upon receipt of the
following by the Administrative Agent:
(1) 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;
(2) evidence satisfactory to it that the maturity date of each
of the Subordinated Notes (as defined in the Limited Waiver and Consent dated as
of April 30, 2001
4
(the "April Waiver")) issued in connection with the Director Loans (as defined
in the April Waiver) has been extended to March 29, 2002; and
(3) such other documents as the Administrative Agent may
reasonably require.
SECTION 6.
MISCELLANEOUS
A. Effect of Amendment. Except as specifically provided herein, this
-------------------
Amendment does not in any way waive, amend, modify, affect or impair the terms
and conditions of the Forbearance Agreement, the Credit Agreement or the other
Loan Documents, and all terms and conditions of the Forbearance Agreement, 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 Sixth Amendment Effective Date, each reference in the
Forbearance Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Forbearance Agreement, and each reference
in the Credit Agreement or other Loan Documents to the "Forbearance Agreement",
"thereunder", "thereof", or words of like import referring to the Forbearance
Agreement shall mean and be a reference to the Forbearance Agreement as modified
by this Amendment.
B. Fees and Expenses. The Borrower and each other Credit Party
-----------------
ratify and affirm their reimbursement and indemnification obligations under
Section 13.2 of the Credit Agreement, including its obligation to pay all legal
and other fees and expenses incurred by the Administrative Agent and each of the
Lenders in connection with the negotiation, implementation, execution and
enforcement of this Amendment to Forbearance Agreement and any acts contemplated
hereby. Nothing herein shall be construed to limit, affect, modify or alter the
Borrower's obligations under Credit Agreement or elsewhere under the Loan
Documents or the Subsidiary Guarantors' obligations under the Subsidiary
Guaranty Agreement.
C. No Waiver of Rights Under Loan Documents. Any negotiation
----------------------------------------
heretofore or hereafter and any action undertaken pursuant to this Amendment to
Forbearance Agreement or any Loan Document or during the Forbearance Period
shall not constitute a waiver of any Default or Event of Default (including
without limitation any Existing Event of Default) or of any Administrative
Agent's or Lender's rights or remedies under the Loan Documents or this
Amendment to Forbearance Agreement or prejudice any Administrative Agent's or
Lender's rights under the Loan Documents or this Amendment to Forbearance
Agreement except to the extent specifically set forth herein. No party shall be
bound by any oral agreement, and no rights or liabilities, either expressed or
implied, shall arise on the part of any party, or any third party, until and
unless the agreement on any given issue has been reduced to a written agreement
executed in accordance with the provisions of Section 13.12 of the Credit
Agreement. Furthermore, the parties agree that this Amendment to Forbearance
Agreement may be amended, replaced or supplemented only by a written agreement
executed in accordance with the provisions of Section 13.12 of the Credit
Agreement.
5
D. No Waiver of Remedies. The Administrative Agent and each Lender
---------------------
expressly reserve any and all rights and remedies available to it under this
Amendment to Forbearance Agreement, the Loan Documents, any other agreement or
at law or in equity or otherwise. No failure to exercise, or delay by the
Administrative Agent or any Lender in exercising, any right, power or privilege
hereunder or under any Loan Document shall preclude any other or further
exercise thereof, or the exercise of any other right, power or privilege. The
rights and remedies provided in this Amendment to Forbearance Agreement and the
Loan Documents are cumulative and not exclusive of each other or of any right or
remedy provided by law or equity or otherwise. No notice to or demand upon the
Borrower or any other Credit Party, in any instance shall, in itself, entitle
the Borrower or such other Credit Party to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the right of the
Administrative Agent or any Lender to any other or further action in any
circumstance without notice or demand.
E. No Commitment. This Amendment to Forbearance Agreement is not
-------------
intended as a commitment by the Administrative Agent or the Lenders to modify
the Loan Documents in any respect or otherwise, except as expressly provided
herein, and the Administrative Agent and the Lenders hereby specifically confirm
that they make no such commitment and specifically advise that no action should
be taken by the Borrower based upon any understanding that such a commitment
exists or on any expectation that any such commitment will be made in the
future.
F. Time is of the Essence. Time shall be of the strictest essence in
----------------------
the performance of each and every one of the Borrower's obligations hereunder
and under the Loan Documents, including without limitation, the obligations to
make payments to the Administrative Agent and Lenders, to furnish information to
the Administrative Agent and Lenders and to comply with all reporting
requirements.
G. Voluntary Agreement. Each of the Borrower, the Subsidiary
-------------------
Guarantors, the Administrative Agent and the Lenders understands that this is a
legally binding agreement that may affect such party's rights. Each represents
to the other that it has received legal advice from counsel of its choice in
connection with the negotiation, drafting, meaning and legal significance of
this Amendment to Forbearance Agreement and that it is satisfied with its legal
counsel and the advice received from it. The Borrower and each other Credit
Party (i) have entered into this Amendment to Forbearance Agreement freely and
voluntarily, without coercion, duress, distress or undue influence by the
Administrative Agent or the Lenders or any other person or entity affiliated
with the Borrower or the other Credit Parties or any of their respective
directors, offices, partners, agents or employees and (ii) acknowledge and agree
that the terms and provisions of this Amendment to Forbearance Agreement do not
conflict with and are consistent with the manner in which it has determined to
conduct its affairs. The Borrower and each other Credit Party acknowledge and
agree that this Amendment to Forbearance Agreement is a Loan Document.
H. Construction. Should any provision of this Amendment to
------------
Forbearance Agreement require judicial interpretation, it is agreed that a court
interpreting or construing the same shall not apply a presumption that the terms
of this Amendment to Forbearance Agreement shall be more strictly construed
against any party by reason of the rule of construction that a
document is to be construed more strictly against the party who itself or
through its agent prepared the same.
I. Entire Agreement; Other Matters. This Amendment to Forbearance
-------------------------------
Agreement constitutes the entire agreement of the Borrower, the Subsidiary
Guarantors, the Administrative Agent and the Lenders concerning the subject
matter hereof, and all prior or contemporaneous understandings, oral
representations or agreements had among the parties with respect to the subject
matter hereof are merged in, and are contained in, this Amendment to Forbearance
Agreement. This Amendment to Forbearance Agreement is not intended to confer
any rights or benefits on any parties other than the parties hereto and their
respective successors and assigns. If any provision of this Amendment to
Forbearance Agreement shall be unenforceable under applicable law, such
provision shall be ineffective without invalidating the remaining provisions of
this Amendment to Forbearance Agreement.
J. Binding Agreement. On and as of the Sixth Amendment Effective
-----------------
Date, this Amendment to Forbearance Agreement shall be effective as to and for
the benefit of the Borrower, the Subsidiary Guarantors, the Administrative Agent
and the Lenders, and thereupon shall be binding upon and inure to the benefit of
each of such signatory parties and their respective heirs, successors and
assigns, except that neither the Borrower nor any Subsidiary Guarantor shall
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Administrative Agent and each of the Lenders.
K. Effect on Loan Documents. The Credit Agreement and other Loan
------------------------
Documents, including the Subsidiary Guaranty Agreement, continue in full force
and effect in accordance with their respective terms. Nothing contained herein
shall constitute a waiver of any Existing Event of Default or future Default or
Event of Default.
L. Headings. Section and subsection headings in this Amendment to
--------
Forbearance Agreement are included herein for convenience of reference only and
shall not constitute a part of Amendment to Forbearance Agreement for any other
purpose or be given any substantive effect.
M. Applicable Law. THIS AMENDMENT TO FORBEARANCE AGREEMENT 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.
N. Counterparts. This Amendment to Forbearance Agreement may be
------------
executed in any number of counterparts, including by telecopy, 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; signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document.
[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
Forbearance Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first written above.
FIRST UNION NATIONAL BANK,
as a Lender and as Administrative Agent
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Officer
CREDIT LYONNAIS, NEW YORK BRANCH,
as a Lender
By: /s/ Xxxx Xxxxxxx Xxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxxx Xxx Xxxxxx
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
SOUTHTRUST BANK, as a Lender
By: /s/ B. E. Xxxxxxx
----------------------------------
Name: B. E. Xxxxxxx
Title: Group Vice President
S-1
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a
Lender
By: /s/ Xxxxx X. Xxxxxxxxxx /s/ Xxxx XxXxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxx Xxxx XxXxxxx
Title: Managing Director Vice President
Chief Risk Officer
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
S-2
BORROWER:
PLANVISTA CORPORATION, as Borrower
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive
Officer
OTHER CREDIT PARTIES:
PLANVISTA SOLUTIONS, INC. (f/k/a
NATIONAL PREFERRED PROVIDER
NETWORK, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
NATIONAL NETWORK SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
Secretary and Treasurer
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
Secretary and Treasurer
HPS OF DELAWARE LLC (f/k/a CENTRA
HEALTHPLAN LLC)
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
President
S-3
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE
BENEFIT SERVICES, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
President
HPS OF MISSOURI, INC. (f/k/a REH
AGENCY OF MISSOURI, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
Secretary and Treasurer
S-4
