EXECUTION
PLANVISTA CORPORATION
THIRD AMENDMENT AND LIMITED WAIVER
THIS THIRD AMENDMENT AND LIMITED WAIVER to the Credit Agreement
referred to below (this "Amendment"), is dated as of the 2nd day of July, 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, for purposes of Sections
5 and 6 hereof, the Credit Parties listed on the signature pages hereof, and is
made with reference to 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 dated as of December 8, 2000, the First Amendment and Limited Waiver and
Consent dated as of March 29, 2001, the Second Amendment and Limited Waiver and
Consent dated as of April 16, 2001, the Limited Waiver and Consent dated as of
April 30, 2001, the Limited Waiver and Consent dated as of May 4, 2001, the
Limited Waiver and Extension dated as of June 15, 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"). Capitalized
terms used herein without definition shall have the meanings set forth in the
Credit Agreement.
R E C I T A L S
- - - - - - - -
WHEREAS, the Borrower has requested that Lenders (i) waive compliance
with the provisions of Section 2.3(a) of the Credit Agreement solely with
respect to the scheduled payments of principal on the Term Loans due June 30,
2001 and July 31, 2001, and (ii) waive compliance with Section 2.3(b)(iii)(C) of
the Credit Agreement solely to permit the Borrower to retain Net Securities
Proceeds in an aggregate amount not to exceed $3,300,000, provided that such Net
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Securities Proceeds are used solely to pay obligations assumed by Borrower in
connection with the closing of that certain Stock Purchase Agreement by and
between the Borrower and HealthPlan Holdings, Inc., dated as of April 1, 2001,
as amended on June 18, 2001 (the "Stock Purchase Agreement"); and
WHEREAS, the Administrative Agent and Lenders have agreed to make
certain amendments to and waive certain requirements of the Credit Agreement,
but only on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby agree pursuant to Section 13.12 of the Credit Agreement as follows:
SECTION 1.
AMENDMENTS TO THE CREDIT AGREEMENT
On the basis of the representations and warranties contained in this
Amendment, and subject to the terms and the satisfaction of the conditions set
forth in this Amendment, the Administrative Agent and Lenders hereby agree as
follows:
A. Amendments to Section 1.1.
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(1) Section 1.1 of the Credit Agreement is hereby amended by
deleting the definitions of "Applicable Margin" and "Carry Over Amount"
appearing therein in their entirety.
(2) Section 1.1 of the Credit Agreement is further amended by
inserting the following definitions therein in alphabetical order:
'Fiscal Month' means any fiscal month of any Fiscal Year.
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'Third Amendment' means that certain Third Amendment to the Second
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Amended and Restated Credit Agreement dated as of July 2, 2001 by and among
the Borrower, the Lenders and the Administrative Agent.
'Third Amendment Effective Date' means the Third Amendment Effective
------------------------------
Date as defined in the Third Amendment."
B. Amendments to Section 4.
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(3) Sections 4.1(a) and (b) of the Credit Agreement are hereby
amended and restated in their entirety as follows:
"SECTION 4.1. Interest.
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(a) Interest Rate. From and after the Third Amendment Effective
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Date, subject to the provisions of Sections 4.1(c) and 4.1(e), the
aggregate principal balance of the Notes or any portion thereof shall bear
interest at a rate per annum equal to the Base Rate plus four percentage
----
points (4%).
(b) Reserved."
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B. Amendment to Section 7. Section 7.1 of the Credit Agreement is
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hereby amended by (i) re-lettering paragraphs (a), (b), (c), (d) and (e) as
paragraphs (b), (c), (d) and (e) and new paragraph (f) and (ii) inserting a new
paragraph (a) thereto as follows:
"(a) Weekly Statements. As soon as practicable and in any event no
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later than Wednesday of each calendar week, an Adjusted Budget as of the
Friday of the calendar week immediately preceding such Wednesday."
C. Amendments to Section 9.
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(1) Section 9.1 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"SECTION 9.1 Minimum Total Receipts. Permit Total Receipts as of the
----------------------
last day of each calendar week for the four week period then ended to be
less than ninety percent (90%) of the Total Receipts set forth in the
Adjusted Budget for such four (4) week period."
(2) Section 9.4 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"SECTION 9.4 Capital Expenditures. Make or incur any Capital
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Expenditures in any Fiscal Month commencing with the Fiscal Month of June
of the Fiscal Year 2001 in an aggregate amount in excess of $10,000;
provided that to the extent that Capital Expenditures permitted for any
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such Fiscal Month exceed actual Capital Expenditures for such Fiscal Month,
the excess shall be permitted to be carried over to the immediately
succeeding Fiscal Month."
SECTION 2.
LIMITED WAIVER AND CONSENT TO THE CREDIT AGREEMENT; CONDITIONS
TO AMENDMENT
A. Certain Scheduled Payments of Principal on Term Loans. On the
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basis of the representations and warranties contained in this Amendment, and
subject to the terms and conditions of this Amendment, the Administrative Agent
and Lenders hereby agree to waive compliance with Section 2.3(a) of the Credit
Agreement solely with respect to the scheduled payments of principal on the Term
Loans due June 30, 2001 and July 31, 2001; provided that such scheduled payments
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and all other outstanding Obligations shall be paid in full no later than the
Final Maturity Date.
B. Certain Mandatory Prepayments Due to Issuance of Equity or Debt
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Securities. On the basis of the representations and warranties contained in
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this Amendment, and subject to the terms and conditions of this Amendment, the
Administrative Agent and Required Lenders hereby agree to waive compliance with
Section 2.3(b)(iii)(C) of the Credit Agreement solely with respect to the
mandatory prepayment of the Loans from Net Securities Proceeds in an amount not
to exceed $3,300,000; provided that on the date of receipt of such Net
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Securities Proceeds the Borrower shall apply such proceeds to pay obligations
assumed by Borrower in connection with the closing of the Stock Purchase
Agreement.
SECTION 3.
LIMITATION OF WAIVER
Except as expressly provided in this Amendment, the Credit Agreement
and each other Loan Document shall continue to be, and shall remain, in full
force and effect. Without limiting the generality of the provisions of Section
13.12 of the Credit Agreement, the waivers set forth above shall be limited
precisely as written and relate solely to noncompliance by the Borrower with the
provisions of Sections 2.3(a) and 2.3(b)(iii)(C) of the Credit Agreement in
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manner and to the extent described above and nothing in this Limited Waiver and
Consent shall be deemed or otherwise construed to:
(a) constitute a waiver of, or consent to or a modification or
amendment of (i) Sections 2.3(a) and 2.3(b)(iii)(C) of the Credit Agreement in
any other instance or (ii) any other term or condition of the Credit Agreement
or any other Loan Document;
(b) prejudice any other right or rights that the Administrative Agent
or the Lenders, or any of them, may now have or may have in the future under or
in connection with the Credit Agreement or the other Loan Documents;
(c) constitute a commitment or any other undertaking or expression of
any willingness to engage in any further discussion with the Borrower or any
other person, firm or corporation with respect to any waiver, amendment,
modification or any other change to the Credit Agreement or the other Loan
Documents or any rights or remedies arising in favor of the Lenders or the
Administrative Agent, or any of them, under or with respect to any such
documents; or
(d) constitute a waiver of, or consent to or a modification or
amendment of, any other term or condition of any other agreement by and among
the Borrower, on the one hand, and the Administrative Agent or any other Lender,
on the other hand.
SECTION 4.
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and Lenders to enter into
this Amendment, the Borrower hereby represents and warrants to the
Administrative Agent and Lenders that:
A. Authorization; Binding Obligations. Each Credit Party has all
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requisite corporate power and authority to enter into this Amendment. The
execution, delivery and performance of this Amendment have been duly authorized
by all necessary corporate action by each Credit Party. This Amendment has been
duly executed and delivered by each Credit Party and is the legal, valid and
binding obligation of each Credit Party, enforceable against each Credit Party
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether enforcement
is sought in equity or at law). As of the Third Amendment Effective Date (as
hereinafter defined), the Credit Agreement, as amended by this Amendment, will
constitute the legal, valid and binding obligation of each Credit Party,
enforceable against each Credit Party in accordance with its terms, except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
B. Incorporation of Representations. Each representation and warranty
--------------------------------
of each Credit Party contained in each of the Loan Documents is true, correct
and complete in all
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material respects on and as of the Third Amendment Effective Date to the same
extent as though made on and as of the Third Amendment Effective Date, except to
the extent such representations and warranties relate to an earlier date, in
which case they were true, correct and complete in all material respects as of
such earlier date.
C. Absence of Defaults. No event has occurred and is continuing or
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would result from the execution, delivery or performance of this Amendment that
constitutes or would constitute a Default or Event of Default after giving
effect to this Amendment.
D. Financial Projections. All financial projections concerning the
---------------------
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
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all agreements to be performed on its part on or before the date hereof as set
forth in the Credit Agreement.
SECTION 5.
RELEASE AND DISCHARGE OF CLAIMS OF ACTION
TO INDUCE THE ADMINISTRATIVE AGENT AND LENDERS TO ENTER INTO THIS
AMENDMENT, THE BORROWER AND EACH OTHER CREDIT PARTY ON BEHALF OF ITSELF AND EACH
OF ITS SUBSIDIARIES AND AFFILIATES EACH HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND IRREVOCABLY RELEASES, ACQUITS AND FOREVER DISCHARGES THE
ADMINISTRATIVE AGENT AND EACH LENDER AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL LIABILITIES, CLAIMS,
DEMANDS, ACTIONS OR CAUSES OF ACTION OF ANY KIND (IF ANY THERE BE), WHETHER
ABSOLUTE OR CONTINGENT, DUE OR TO BECOME DUE, DISPUTED OR UNDISPUTED, AT LAW OR
IN EQUITY, THAT THE BORROWER OR ANY OTHER CREDIT PARTY NOW HAS OR EVER HAD
AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER ARISING UNDER, BASED UPON OR IN
CONNECTION WITH THE LOAN AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY BY REASON OF ANY MATTER, CAUSE OR THING
WHATSOEVER FROM THE BEGINNING OF THE WORLD TO AND INCLUDING THE THIRD AMENDMENT
EFFECTIVE DATE.
SECTION 6.
ACKNOWLEDGEMENT AND CONSENT BY CREDIT PARTIES
The Borrower and each other Credit Party executing a counterpart
hereto agree to and acknowledge the terms and provisions of this Amendment and
confirm that each Loan Document to which such Credit Party is a party shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or affected by the
execution of this Amendment, except as specifically provided herein. The
Borrower and
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each other Credit Party executing a counterpart hereof represent and warrant
that all representations and warranties contained in each Loan Document to which
such Credit Party is a party are true, correct and complete in all material
respects as of the date hereof to the same extent as though made on each such
date and that the Borrower and each such Credit Party has performed in all
material respects all agreements to be performed on its part on or before the
date hereof as set forth in the Loan Documents.
SECTION 7.
FEES; REGISTRATION RIGHTS; RETENTION OF INVESTMENT BANKER
A. Fees. In consideration for the execution and delivery of this
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Amendment, the Borrower agrees to deliver to the Administrative Agent, for the
ratable benefit of the Lenders, an aggregate amount of 75,000 shares of common
stock of the Borrower held in treasury (the "Fee Shares"), which Fee Shares
shall be subject to the Registration Rights Agreement (described below). By no
later than July 11, 2001, Borrower shall have delivered to the Administrative
Agent certificates evidencing the Fee Shares.
B. Registration Rights Agreement. By no later than July 11, 2001,
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the Borrower shall have executed and delivered to the Administrative Agent and
the Lenders a registration rights agreement with respect to the Fee Shares in
form and substance acceptable to the Administrative Agent.
C. Retention of Investment Banker. The Borrower shall retain the
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services of an investment banker reasonably acceptable to the Administrative
Agent and the Lenders to pursue a sale of all or substantially all of the assets
or capital stock of the Borrower or its Subsidiaries. The Administrative Agent
shall receive an executed copy of the engagement letter with such investment
banker by August 1, 2001, which engagement letter shall, among other things,
provide that such investment banker shall be authorized to report to the
Administrative Agent as soon as practicable and in any event no later than
Friday of each calendar week commencing with the calendar week of August 6, 2001
regarding the status of the sale.
SECTION 8.
CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the date hereof (the
"Third Amendment Effective Date") only upon receipt of the following by the
Administrative Agent:
(a) counterparts hereof duly executed by each Credit Party and the
Lenders and written or telephonic notification of such execution and
authorization of delivery thereof;
(b) a duly authorized resolution of Borrower's board of directors
authorizing (i) the issuance and sale of up to 710,000 shares of the common
stock of Borrower held in treasury and (ii) to the extent necessary to raise
funds and pay the obligations assumed by the Borrower in connection with the
closing of the Stock Purchase Agreement, the issuance and sale of up to an
additional 750,000 shares of common stock of the Borrower;
(c) the Borrower shall have retained the services of Xxxx Xxxxx of
Xxxxxx Xxxxxxxx (together with such other professionals from Xxxxxx Xxxxxxxx as
may be necessary
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from time to time) who shall be responsible for the cash management of the
Borrower, receivables tracking and collections and such other duties as may be
agreed upon by the Borrower and the Administrative Agent and, the Administrative
Agent shall have received an executed copy of the engagement letter with Xxxxxx
Xxxxxxxx in form, substance and scope reasonably acceptable to the
Administrative Agent.
SECTION 9.
MISCELLANEOUS
A. Effect of Amendment. Except as specifically provided herein, this
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Amendment does not in any way waive, amend, modify, affect or impair the terms
and conditions of the Credit Agreement or the other Loan Documents, and all
terms and conditions of the Credit Agreement and the other Loan Documents are
hereby ratified and confirmed and shall remain in full force and effect unless
otherwise specifically amended, waived, modified or changed pursuant to the
terms and conditions of this Amendment.
On and after the Third Amendment Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in the
other Loan Documents to the "Credit Agreement", "thereunder", "thereof", or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as modified by this Amendment.
B. Fees and Expenses. The Borrower acknowledges that all costs, fees
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and expenses as described in Section 13.2 of the Credit Agreement incurred by
the Administrative Agent in connection with the preparation, execution and
delivery of this Amendment and the documents and transactions contemplated
hereby, including, without limitation, the reasonable fees and disbursements of
counsel for the Administrative Agent, shall be for the account of the Borrower.
C. Headings. Section and subsection headings in this Amendment are
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included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
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THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts. This Amendment may be executed in any number of
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counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
FIRST UNION NATIONAL BANK,
as a Lender and as Administrative Agent
By:_________________________________
Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH,
as a Lender
By:_________________________________
Name:
Title:
SUNTRUST BANK, as a Lender
By:_________________________________
Name:
Title:
FLEET NATIONAL BANK, as a Lender
By:_________________________________
Name:
Title:
SOUTHTRUST BANK, as a Lender
By:_________________________________
Name:
Title:
S-1
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a
Lender
By:_________________________________
Name:
Title:
BANK OF AMERICA, N.A., as a Lender
By:_________________________________
Name:
Title:
AMSOUTH BANK, as a Lender
By:_________________________________
Name:
Title:
HIBERNIA NATIONAL BANK, as a Lender
By:_________________________________
Name:
Title:
FIFTH THIRD BANK, CENTRAL OHIO, as a
Lender
By:_________________________________
Name:
Title:
S-2
BORROWER:
PLANVISTA CORPORATION, as Borrower
By:_________________________________
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
OTHER CREDIT PARTIES:
PLANVISTA SOLUTIONS, INC. (f/k/a
NATIONAL PREFERRED PROVIDER
NETWORK, INC.)
By:_________________________________
Xxxxxxx X. Xxxxxx
Chief Executive Officer
NATIONAL NETWORK SERVICES, INC.
By:_________________________________
Xxxxxxx X. Xxxxxx
Secretary and Treasurer
QUALITY MEDICAL ADMINISTRATORS, INC.
By:_________________________________
Xxxxxxx X. Xxxxxx
Secretary and Treasurer
HPS OF DELAWARE LLC (f/k/a CENTRA
HEALTHPLAN LLC)
By:_________________________________
Xxxxxxx X. Xxxxxx
Title:
S-3
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE
BENEFIT SERVICES, INC.)
By:_________________________________
Xxxxxxx X. Xxxxxx
President
HPS OF MISSOURI, INC. (f/k/a REH
AGENCY OF MISSOURI, INC.)
By:_________________________________
Xxxxxxx X. Xxxxxx
Secretary and Treasurer
S-4
