EXHIBIT 1
INTERCREDITOR AGREEMENT
INTERCREDITOR AGREEMENT (this "Agreement"), entered into as of the 7th day
of March, 2003, by and between PVC FUNDING PARTNERS LLC (the "Purchaser") and
WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent under the Credit
Agreement and the Series C Issuance Agreement described below (the
"Administrative Agent").
W I T N E S S E T H :
WHEREAS, pursuant to that certain Note and Share Purchase Agreement dated
as of December 20, 2002 and/or one or more other agreements pursuant to which
Shares (as hereinafter defined) have been sold to the Purchaser on or about the
date hereof (collectively, as amended, the "Purchase Agreement"), the Purchaser
has, on the date hereof, purchased and acquired from the Sellers (as hereinafter
defined) an aggregate of (a) $20,500,000 in principal amount of Notes (and the
corresponding Commitments) outstanding under the Third Amended and Restated
Credit Agreement dated as of April 12, 2002 (the "Credit Agreement") by and
among PlanVista Corporation ("PVC"), PlanVista Solutions, Inc., the "Lenders"
thereunder and the Administrative Agent, and (b) 29,851 shares of Series C
Convertible Preferred Stock of PVC; and
WHEREAS, as a condition to the parties' obligations to consummate the
transactions pursuant to the Purchase Agreement, the parties hereto have agreed
to enter into this Agreement to provide for certain matters relating to their
ownership of Notes and Shares (as such terms are hereinafter defined);
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein set forth, the parties hereby covenant and agree
as follows:
1. DEFINITIONS.
(a) As used in this Agreement, (i) the term "Seller" means each person
which has sold Notes and/or Shares to the Purchaser pursuant to the Purchase
Agreement, (ii) the term "Notes" means the "Term Notes" as defined in and under
and pursuant to the Credit Agreement, and shall also include all related
Commitments (including letter of credit funding obligations) under the Credit
Agreement, (iii) the term "Purchaser Notes" means the Notes purchased by the
Purchaser pursuant to the Purchase Agreement, and any Notes issued in
substitution or replacement therefor at any time and from time to time, (iv) the
term "Non-Purchaser Notes" means all Notes outstanding at any time other than
the Purchaser Notes then outstanding, (v) the term "Debt Sellers" means those
Sellers who have sold the Purchaser Notes to the Purchaser on the date hereof
pursuant to the Purchase Agreement, (vi) the term "Shares" means all shares of
Series C Convertible Preferred Stock of PVC outstanding from time to time
(including any shares issued as in-kind dividends on the Series C Convertible
Preferred Stock of PVC), and (vii) the term "Purchaser Shares" means the Shares
purchased by the Purchaser pursuant to the Purchase Agreement.
(b) All other capitalized terms used in this Agreement without
definition have the respective meanings ascribed to them (directly or by
reference) in the Purchase Agreement.
2. DEBT PROVISIONS.
By reason of the Purchaser's purchase of the Purchaser Notes pursuant to
the Purchase Agreement, the Purchaser hereby joins in and becomes a party to the
Credit Agreement as a "Lender" thereunder, and shall have and enjoy all rights
of a "Lender" pursuant to the Credit Agreement and other Loan Documents pursuant
thereto, except that (a) any and all scheduled payments of principal pursuant to
Section 2.2(a) of the Credit Agreement prior to the Maturity Date (as such term
is defined in the Credit Agreement), and any and all mandatory prepayments
pursuant to Sections 2.2(b)(ii)(C), 2.2(b)(ii)(D), 2.2(b)(ii)(E) and/or
2.2(b)(ii)(F) of the Credit Agreement, shall be allocated and paid first to the
holders of the Non-Purchaser Notes, ratably in proportion to the respective
principal balances of such Non-Purchaser Notes, in reduction of such
Non-Purchaser Notes until such Non-Purchaser Notes have been paid in full, and
thereafter to the holders of the Purchaser Notes, ratably in proportion to the
respective principal balances of such Purchaser Notes, until the Purchaser Notes
have been paid in full, and (b) in all matters submitted or required to be
submitted to a vote or consent of the Lenders under any of the Loan Documents
(other than matters described in clauses (a) through (g) of Section 13.12 of the
Credit Agreement, as to which (i) the holders of the Purchaser Notes shall
retain their voting rights, and (ii) the proxy below shall not be applicable),
the Purchaser Notes shall be voted consistently (on a percentage basis) with the
vote or consent given by the Debt Sellers (determined based on the respective
principal amounts of Non-Purchaser Notes held of record by such Debt Sellers),
and the Administrative Agent (as acting from time to time) is hereby authorized
(as a proxy coupled with an interest, which shall not be revocable unless and
until all of the Notes have been paid in full and all Commitments under the
Credit Agreement have been terminated) to vote or give consents with respect to
the Purchaser Notes in accordance with this Section 2(b).
3. EQUITY PROVISIONS.
(a) By reason of its purchase of Purchaser Shares pursuant to the
Purchase Agreement, the Purchaser hereby joins in and becomes a party to, and
agrees to be bound by and comply with, and shall have all rights and benefits
under, the Stockholders Agreement dated as of April 12, 2002 by and among PVC
and the holders of the outstanding Shares (the "Stockholders Agreement")
(b) So long as the Purchaser and/or its affiliates collectively own a
majority of the outstanding Shares, the Purchaser shall have the right to
designate itself as the Administrative Agent under and for all purposes of the
Series C Convertible Preferred Stock Issuance and Restructuring Agreement dated
as of April 12, 2002 by and among PVC, the "Investors" thereunder and the
Administrative Agent (the "Series C Issuance Agreement"). Any such substitution
shall be effective upon written notice thereof from the Purchaser to the
Administrative Agent, and the Administrative Agent hereby agrees to cooperate
with the Purchaser in all reasonable respects in effecting any such transition.
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(c) In order to fill the vacancies in the Board of Directors of PVC
caused by the resignation on the date hereof of the Class B Directors previously
designated by the holders of the Shares, the Purchaser (as the holder of a
majority of the outstanding Shares) hereby designates Xxxxxx Blue, Xxxxxxx
Xxxxxx and Xxxxxxx Xxxx as Class B Directors of PVC, and the Purchaser hereby
votes all of its Shares in favor of such nominees. The Purchaser, the
Administrative Agent and each holder of Shares is hereby authorized to give
written notice to PVC of such new Class B Directors, who shall be deemed to have
taken on such positions effective immediately upon the effectiveness of the
resignations of the prior Class B Directors.
(d) In the event of the first Board Shift Event (as such term is
defined in the Certificate of Designation in respect of the Shares) occurring
subsequent to the date hereof, if, as and when the holders of the Purchaser
Shares (or their Class B Director designees) elect a fourth Class B Director and
thereby constitute the Class B Directors a majority of the entire Board of
Directors of PVC, or if, within fifteen (15) days after any holder of Purchaser
Shares obtains actual knowledge of such Board Shift Event, the holders of the
Purchaser Shares (acting by a majority in interest of such holders) fail to give
written notice to the Administrative Agent (on behalf of the holders of the
Non-Purchaser Notes) indicating that the holders of the Purchaser Shares will
not exercise their right to elect a fourth Class B Director by reason of such
Board Shift Event, then, automatically and without requirement of any further
action, agreement or writing of any person, the subordination provisions set
forth in Annex A annexed hereto shall become operative. In the event that,
within fifteen (15) days after any holder of Purchaser Shares obtains actual
knowledge of such Board Shift Event, the holders of the Purchaser Shares (acting
by a majority in interest of such holders) give written notice to the
Administrative Agent (on behalf of holders of the Non-Purchaser Notes)
indicating that such right of election will not be exercised in respect of such
Board Shift Event, then (i) such subordination provisions shall not become
operative, (ii) the Administrative Agent shall, within five (5) days thereafter,
give written notice to the holders of Non-Purchaser Notes of such notice of
non-exercise by the holders of Purchaser Shares, and (iii) the holders of a
majority of the outstanding Non-Purchaser Notes shall have the option,
exercisable (if at all) within fifteen (15) days after the giving of such notice
by the holders of the Purchaser Shares, to purchase (ratably as among the
electing holders of Non-Purchaser Notes (as buyers) and as among the holders of
Purchaser Shares (as sellers), or in such other proportion(s) as may be agreed
by such holders), at a price of $33.50 per Purchaser Share (which shall be
payable by wire transfer of immediately available funds within five (5) business
days after the exercise of the option hereunder), 14,304 of the Purchaser Shares
purchased by the Purchaser on the date hereof pursuant to the Purchase
Agreement. Upon any exercise of the foregoing option, the subject Purchaser
Shares purchased by the holders of Non-Purchaser Notes shall cease to be
Purchaser Shares for purposes of this Agreement, and the transfer thereof shall
be effective upon the payment therefor in accordance herewith. The provisions of
this Section 3(d) shall only be applicable in respect of the first Board Shift
Event occurring subsequent to the date hereof.
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4. NOTICES.
Any and all notices and other communications pursuant to this Agreement
shall be in writing and shall be deemed given at the time when personally
delivered, one (1) business day after being sent by recognized overnight courier
service with all charges pre-paid or billed to the account of the sender, or
five (5) business days after being sent by post-paid first class mail, in each
case to the party being notified at its address set forth next to its signature
below, or to such changed address as such party may have specified by written
notice given in accordance herewith.
5. MISCELLANEOUS.
(a) This Agreement shall, irrespective of where it is executed and
delivered, be governed by and construed and interpreted in accordance with the
laws of the State of New York, without regard to conflicts of laws principles.
Any dispute, claim or controversy arising out of or in respect of this Agreement
shall be litigated in a state or federal court sitting in New York County, New
York, and each party hereby agrees and submits to the exclusive jurisdiction of
such courts.
(b) Neither this Agreement nor any provision hereof may be waived,
modified or amended orally or by any course of conduct or usage of trade, but
only by an agreement in writing duly executed by the Purchaser and the
Administrative Agent (acting upon authorization by the holders of a majority in
principal amount of the Non-Purchaser Notes then outstanding). Except in those
instances in which specific times for performance are provided herein, no
failure to exercise, or delay in exercising, on the part of any party, any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
(c) This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns. No
party may assign any of its rights or obligations under this Agreement or any of
its Notes and/or Shares except in compliance with the Stockholders Agreement and
to a person(s) who expressly agrees in writing (in form and substance reasonably
satisfactory to the Purchaser and the Administrative Agent) to be bound by and
to comply with this Agreement with respect to the Notes and/or Shares acquired
by such person(s).
(d) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original hereof, but all of which shall
together constitute one and the same instrument. This Agreement may be executed
by fax, and such signatures shall have the same binding legal effect as ink
originals.
(e) Captions and section headings used in this Agreement are for
convenience of reference only, and shall not affect the construction or
interpretation of any provision hereof.
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(f) If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require, and
this Agreement shall be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be.
(g) This Agreement constitutes the sole and entire agreement and
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior discussions, agreements and understandings of every kind
and nature between them as to such subject matter.
(h) This Agreement is intended for the sole and exclusive benefit of
the parties hereto, their respective successors and permitted assigns, the Debt
Sellers, and the holders of Non-Purchaser Notes from time to time, and no other
person shall have any right to rely on this Agreement or derive any benefit
herefrom absent the express written consent of the party to be charged with such
reliance or benefit.
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IN WITNESS WHEREOF, the parties have executed this Agreement on and as
of the date first set forth above.
Purchaser:
Address For Notices: PVC FUNDING PARTNERS LLC
000 Xxxxx Xxxxxx By: /s/ Xxxxxx Blue
4th Floor --------------------
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Administrative Agent:
Address For Notices: WACHOVIA BANK, NATIONAL ASSOCIATION
000 X. Xxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxx
NC0537 ---------------------
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
SCHEDULE A TO INTERCREDITOR AGREEMENT
PRINCIPAL AMOUNT OF TERM SERIES C PREFERRED SHARES
HOLDER LOAN HELD HELD
------ --------- ----
PVC Funding Partners LLC $20,500,000 29,851
Wachovia Bank, National Association $3,041,820 195
Credit Lyonnais, New York Branch $1,935,000 124
Suntrust Bank $2,211,705 000
Xxxxxx Xxxxxx Capital $2,211,705 142
Southtrust Bank $1,935,000 124
Cooperative Centrale Raiffeisen-Boerenleebank Ba $1,935,000 000
"Xxxxxxxx Xxxxxxxxx," New York Branch
Bank of America, N.A. $2,765,115 178
AmSouth Bank $1,104,885 71
Hibernia National Bank $1,104,885 00
Xxxxx Xxxxx Xxxx, Xxxxxxx Xxxx $1,104,885 71
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ANNEX A TO INTERCREDITOR AGREEMENT
The following provisions shall not be or become operative unless and until they
become operative in accordance with Section 3(d) of this Agreement:
1. Definitions. In addition to those terms defined elsewhere in this
Agreement, the following terms shall have the following meanings wherever used
in this Annex:
(a) "Credit Party" shall have the meaning ascribed thereto in the
Credit Agreement.
(b) "Junior Creditor" means the collective reference to all holders of
Junior Debt from time to time.
(c) "Junior Debt" means all principal, interest and other obligations
owing at any time and from time to time by any Credit Party under or in respect
of the Purchaser Notes, whether now existing or hereafter arising, whether
direct or indirect, absolute or contingent, joint or several, due or not due,
primary or secondary, liquidated or unliquidated, secured or unsecured, or
original, renewed or extended.
(d) "Senior Creditor" means the collective reference to all holders of
Senior Debt from time to time. The Junior Creditor shall at all times be
entitled to rely upon the authority of the Administrative Agent as the
representative of the Senior Creditor for all purposes of this Annex.
(e) "Senior Debt" means all principal, interest and other obligations
owing at any time and from time to time by any Credit Party under or in respect
of the Non-Purchaser Notes, whether now existing or hereafter arising, whether
direct or indirect, absolute or contingent, joint or several, due or not due,
primary or secondary, liquidated or unliquidated, secured or unsecured, or
original, renewed or extended.
2. Subordination of Junior Debt. The Junior Creditor will not ask,
demand, accelerate, xxx for, enforce, take, collect or receive, by set-off or in
any other manner, any payments, prepayments or distributions on or in respect of
the Junior Debt (whether of principal, interest, collection costs or otherwise)
(a) from any Credit Party, or any successor or assign of any Credit Party,
including, without limitation, a receiver, trustee or debtor-in-possession (the
term "Credit Party" hereinafter shall include any such successor or assign of
any Credit Party), or (b) from any other person, firm, partnership or
corporation for the benefit of any Credit Party, unless and until (i) all of the
Senior Debt shall have been fully paid and satisfied with interest (including
without limitation, any and all interest accruing upon and after the
commencement of any proceedings under the United States Bankruptcy Code as in
effect from time to time), and (ii) the Credit Agreement and the other Loan
Documents have been terminated.
3. Payments Received by the Junior Creditor. In the event that any
payment, prepayment or distribution shall be received by the Junior Creditor
upon or with respect to the Junior Debt prior to the satisfaction of all of the
Senior Debt and termination of the Credit
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Agreement and all other Loan Documents, the Junior Creditor shall receive and
hold the same in trust, as trustee for the benefit of the Senior Creditor, and
shall forthwith wire transfer the amount of the same to the Senior Creditor, for
application on the Senior Debt, due or not due, and, until so delivered, the
same shall be held in trust by the Junior Creditor as the property of the Senior
Creditor, and shall not be commingled with any other property of the Junior
Creditor. In the event of the failure of the Junior Creditor to make any such
endorsement, assignment or transfer to the Senior Creditor, the Senior Creditor
or any of its officers or employees is hereby irrevocably authorized to make the
same.
4. Ownership. The Junior Creditor shall not transfer or assign any of the
Junior Debt except to an assignee or transferee who expressly agrees in writing
to hold such Junior Debt subject to the terms of this Annex.
5. Amendments; Legend.
(a) None of the stated terms of the Junior Debt, as in effect at the
inception of the effectiveness of this Annex, may be altered, amended or
otherwise modified in any manner such as would in any manner increase or
otherwise alter any Credit Party's obligations thereunder in any manner adverse
to any Credit Party, without the prior written consent of a majority in interest
of the Senior Creditor.
(b) Each Purchaser Note shall be inscribed with a legend or provision
conspicuously indicating that payment thereof and thereunder may, under the
circumstances provided in Section 3(d) of this Agreement, be subordinated to the
claims of the holders of Senior Debt pursuant to the terms of this Annex, and
true and complete copies thereof will be delivered to the Administrative Agent.
Any instrument evidencing any of the Junior Debt, or any portion thereof, which
is thereafter executed by any Credit Party will, on the date thereof, be
inscribed with the aforesaid legend or provision and a true and complete copy
thereof will be delivered to the Administrative Agent on the date of its
execution or within five (5) business days thereafter.
6. Continuing Subordination; Nature of Subordination.
(a) The Junior Creditor acknowledges and agrees that the terms and
provisions of this Annex do not conflict with or violate any terms or provisions
of any agreement, instrument or document executed by any Credit Party and, or in
favor of, the Junior Creditor, and that, to the extent the terms and provisions
of this Annex may be inconsistent with any such Annex, instrument or document,
such agreements, instruments and documents shall be deemed to be superseded by
this Annex.
(b) This Annex shall be irrevocable and shall remain in effect until
the Senior Debt shall have been paid in full and the Credit Agreement and the
other Loan Documents have been terminated.
(c) Notwithstanding that this Annex may cease to be effective at any
time or for any reason, in the event that any payment made to the Senior
Creditor in reliance upon this Annex is subsequently required to be returned to
any Credit Party or any trustee in bankruptcy of a Credit Party by reason of
such payment having been a fraudulent conveyance or
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other avoidable payment, this Annex shall be reinstated to the extent of any
such avoidable payment which is required to be returned.
(d) The provisions of this Annex are intended solely for the purpose of
defining the relative rights of the holders of the Senior Debt (on the one hand)
and the holders of the Junior Debt (on the other hand), and none of such
provisions shall impair, as between the Junior Creditor and any Credit Party,
the obligations of any Credit Party to make payments in respect of the Junior
Debt in accordance with the terms thereof (subject to the terms and conditions
of this Annex).
7. Waivers. No waiver or amendment shall be deemed to be made by the
Senior Creditor of any of its rights hereunder, unless the same shall be in
writing and signed by the Administrative Agent on behalf of a majority in
interest of the Senior Creditor, and each waiver, if any, shall be a waiver only
with respect to the specific instance involved and shall in no way impair the
rights of the Senior Creditor or the obligations of the Junior Creditor to the
Senior Creditor in any other respect at any other time.
8. Subrogation. Upon payment in full of the Senior Debt, the Junior
Creditor shall be subrogated to all rights of the Senior Creditor in respect of
the Senior Debt.
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