EXHIBIT 10.12(e)
EXECUTION
PLANVISTA CORPORATION
FIRST AMENDMENT TO FORBEARANCE AGREEMENT
THIS FIRST AMENDMENT TO FORBEARANCE AGREEMENT (this "Amendment
to Forbearance Agreement") is dated as of September 30, 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 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, the Third Amendment and Limited Waiver 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, 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 2D, 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.
AMENDMENTS TO THE FORBEARANCE AGREEMENT
A. Amendment to Section 4.E. Section 4.E of the Forbearance
-------------------------
Agreement is hereby amended to delete the date "October 15, 2001" appearing in
the second line thereof and substitute therefor the date "October 19, 2001".
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B. Amendment to Section 5.A. Clause (3) of Section 5.A of the
-------------------------
Forbearance Agreement is hereby deleted in its entirety and the following new
clause (3) substituted therefor:
"(3) Aggregate payments with respect to the Subject Obligations
during the Forbearance Period (excluding any payments required to be made as
a condition to the effectiveness of this Amendment to Forbearance Agreement)
shall not be less than: (a) $450,000 as of October 31, 2001; (b) $700,000 as
of November 30, 2001; and (c) the full amount of the Subject Obligations as
of December 15, 2001."
SECTION 4.
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 Amendment
Effective Date (as defined below) to the same extent as though made on and as
of the 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
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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 5.
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 6.
CONDITIONS TO EFFECTIVENESS
This Amendment to Forbearance Agreement shall become effective
as of the date hereof (the "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; and
(2) such other documents as the Administrative Agent
may reasonably require.
SECTION 7.
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.
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On and after the 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 13.2 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 13.2 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 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
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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 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 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
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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
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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
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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,
as a Lender and as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: AUTHORIZED OFFICER
CREDIT LYONNAIS, NEW YORK BRANCH,
as a Lender
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇ Van Essche
------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇▇ VAN ESSCHE
Title: VICE PRESIDENT
SUNTRUST BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: DIRECTOR
FLEET NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇, II
------------------------------
Name: ▇▇▇▇ ▇. LUCY, II
Title: VICE PRESIDENT
SOUTHTRUST BANK, as a Lender
By: /s/ B.E. ▇▇▇▇▇▇▇
------------------------------
Name: B.E. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
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: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
AMSOUTH BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: VICE PRESIDENT
AMSOUTH BANK
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
FIFTH THIRD BANK, CENTRAL OHIO, as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: VICE PRESIDENT
S-2
Borrower:
PLANVISTA CORPORATION, as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman and Chief Executive Officer
OTHER CREDIT PARTIES:
PLANVISTA SOLUTIONS, INC. (f/k/a
NATIONAL PREFERRED PROVIDER
NETWORK, INC.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
NATIONAL NETWORK SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary and Treasurer
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary and Treasurer
HPS OF DELAWARE LLC (f/k/a CENTRA
HEALTHPLAN LLC)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
S-3
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE
BENEFIT SERVICES, INC.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
HPS OF MISSOURI, INC. (f/k/a REH
AGENCU OF MISSOURI, INC.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary and Treasurer
S-4
EXECUTION
PLANVISTA CORPORATION
SECOND AMENDMENT AND LIMITED WAIVER
TO FORBEARANCE AGREEMENT
THIS SECOND AMENDMENT AND LIMITED WAIVER TO FORBEARANCE
AGREEMENT (this "Amendment to Forbearance Agreement") is dated as of October
19, 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 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 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.
AMENDMENTS TO THE FORBEARANCE AGREEMENT
2
A. Amendment to Section 4.E. Section 4.E of the Forbearance
-------------------------
Agreement is hereby deleted in its entirety and the following new Section 4.E
substituted therefor:
"E. Reserved."
--------
B. Amendment to Section 10.B. Section 10.B of the
--------------------------
Forbearance Agreement is hereby amended to delete the references to "Section
13.2" appearing therein and substituting therefor a reference to "Section
13.12".
SECTION 4.
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 Lenders and Lenders hereby agree to
waive until November 11, 2001, 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.
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 November 11, 2001, compliance with Section
5.A(3)(a) of the Forbearance Agreement relating to minimum aggregate payments
with respect to the Subject Obligations as of October 31, 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)(a) 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)(a) 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
3
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 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 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 Second Amendment
Effective Date (as defined below) to the same extent as though made on and as
of the Second 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
4
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 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 "Second 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; and
(2) 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, 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.
5
On and after the Second 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.
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 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
6
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 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 Second 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
7
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 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]
8
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/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: AUTHORIZED OFFICER
CREDIT LYONNAIS, NEW YORK BRANCH,
as a Lender
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇ Van Essche
------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇▇ VAN ESSCHE
Title: VICE PRESIDENT
SUNTRUST BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: DIRECTOR
FLEET NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇, II
------------------------------
Name: ▇▇▇▇ ▇. LUCY, II
Title: VICE PRESIDENT
SOUTHTRUST BANK, as a Lender
By: /s/ B.E. ▇▇▇▇▇▇▇
------------------------------
Name: B.E. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
S-1
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEEBANK BA "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: VICE PRESIDENT
BANK OF AMERICA, N.A., as a Lender
By:
----------------------------
Name:
Title:
AMSOUTH BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: VICE PRESIDENT
AMSOUTH BANK
HIBERNIA NATIONAL BANK, as a Lender
By:
----------------------------
Name:
Title:
FIFTH THIRD BANK, CENTRAL OHIO, as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: VICE PRESIDENT
S-2
Borrower:
PLANVISTA CORPORATION, as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman and Chief Executive Officer
OTHER CREDIT PARTIES:
PLANVISTA SOLUTIONS, INC. (f/k/a
NATIONAL PREFERRED PROVIDER
NETWORK, INC.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
NATIONAL NETWORK SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary and Treasurer
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary and Treasurer
HPS OF DELAWARE LLC (f/k/a CENTRA
HEALTHPLAN LLC)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
S-3
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE
BENEFIT SERVICES, INC.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
HPS OF MISSOURI, INC. (f/k/a REH
AGENCU OF MISSOURI, INC.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary and Treasurer
S-4
EXECUTION
PLANVISTA CORPORATION
THIRD AMENDMENT AND LIMITED WAIVER
TO FORBEARANCE AGREEMENT
THIS THIRD AMENDMENT AND LIMITED WAIVER TO FORBEARANCE AGREEMENT (this
"Amendment to Forbearance Agreement") is dated as of November 11, 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 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 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
Amendment to Section 5.B. Clause (1) of Section 5.B of the
------------------------
Forbearance Agreement is hereby deleted in its entirety and the following new
clause (1) substituted therefor:
"(1) Any amount required to be applied as a mandatory prepayment
of the Obligations pursuant to Sections 5A(1) and (2) of this Agreement
shall be applied first, to Outstanding Professional Fees, second, to the
----- ------
extent of any remaining portion of such amount, to the Incurred Fees,
third, to the extent of any remaining portion of such amount, to the
-----
Forbearance Fee (as defined below), fourth, to the extent of any remaining
------
portion of such amount, to the Interest Forbearance Fee (as defined below),
fifth, to the extent of any remaining portion of such amount, to
-----
Outstanding Interest, and sixth, to the extent of any remaining portion of
-----
such amount, to the Loans as set forth in Section 2.3(b)(iv) of the Credit
Agreement. Each date for payment set forth in this Section 5 shall be
referred to as a "Recapture Date". For the avoidance of doubt and
notwithstanding anything herein to the contrary, the mandatory prepayment
requirements of Section 2.3(b)(iii) of the Credit Agreement and the
application of such mandatory prepayments as provided in Section 2.3(b)(iv)
of the Credit Agreement shall remain in full force and effect, including,
without limitation, the requirement that one hundred percent (100%) of Net
Securities Proceeds from the issuance of any equity or Debt Securities of
the Borrower shall be used by the Borrower to prepay the Loans."
SECTION 4.
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 Lenders and Lenders hereby agree to
waive until December 15, 2001, 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 and November 30, 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
2
Administrative Lenders and Lenders hereby agree to waive until December 15,
2001, compliance with Section 5.A(3)(a) 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)(a) 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)(a) 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 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 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 Third Amendment
Effective Date (as defined below) to the same extent as though made on and as of
the Third Amendment Effective Date, except to the
3
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 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 "Third 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; and
(2) 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, 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 Third 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
4
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.
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 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
5
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 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 Third 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 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,
as a Lender and as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Authorized Officer
CREDIT LYONNAIS, NEW YORK BRANCH, as a Lender
By: /s/ ▇▇▇▇-▇▇▇▇▇▇▇ Van Essche
----------------------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇▇ Van Essche
Title: Vice President
SUNTRUST BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
FLEET NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇ ▇▇
----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Title: Vice President
SOUTHTRUST BANK, as a Lender
By: /s/ B. E. ▇▇▇▇▇▇▇
----------------------------------------------
Name: B. E. ▇▇▇▇▇▇▇
Title: Vice President
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: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
FIFTH THIRD BANK, CENTRAL OHIO, as a Lender
By: ______________________________________________
Name:
Title:
S-2
BORROWER:
PLANVISTA CORPORATION, as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman and Chief Executive Officer
OTHER CREDIT PARTIES:
PLANVISTA SOLUTIONS, INC. (f/k/a NATIONAL
PREFERRED PROVIDER NETWORK, INC.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
NATIONAL NETWORK SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary and Treasurer
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary and Treasurer
HPS OF DELAWARE LLC (f/k/a CENTRA HEALTHPLAN LLC)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
S-3
HPS OF LOUISIANA, INC. (f/k/a EMPLOYEE BENEFIT
SERVICES, INC.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
HPS OF MISSOURI, INC. (f/k/a REH AGENCY OF
MISSOURI, INC.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary and Treasurer
S-4
