Exhibit 4.5(j)
EXECUTION
PLANVISTA CORPORATION
PLANVISTA SOLUTIONS, INC.
FIRST AMENDMENT AND LIMITED WAIVER
THIS FIRST AMENDMENT AND LIMITED WAIVER to the Credit Agreement referred to
below (this "Amendment"), is dated as of the 25th day of February, 2003, by and
among PLANVISTA CORPORATION (f/k/a HEALTHPLAN SERVICES CORPORATION) ("PVC"), a
Delaware corporation, PLANVISTA SOLUTIONS, INC. (f/k/a NATIONAL PREFERRED
PROVIDER NETWORK, INC.) ("PVSI") (PVC and PVSI being collectively referred to
herein as the "Borrowers" and sometimes individually as a "Borrower"), THE
LENDERS LISTED ON THE SIGNATURE PAGES HEREOF (the "Lenders"), WACHOVIA BANK
NATIONAL ASSOCIATION (f/k/a FIRST UNION NATIONAL BANK), as administrative agent
(the "Administrative Agent"), and, for purposes of Section 5 hereof, the Credit
Parties listed on the signature pages hereof, and is made with reference to that
certain Third Amended and Restated Credit Agreement dated as of April 12, 2002
by and among the Borrowers, the Lenders and the Administrative Agent (as such
agreement may have 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 Borrowers have requested that Lenders waive any Default or
Event of Default which may have occurred, or may hereafter occur, as a result of
the Borrowers' failure to comply with the maximum Extraordinary Expenses
covenant contained in Section 9.4 of the Credit Agreement for the Fiscal Quarter
ending December 31, 2002; and
WHEREAS, the Administrative Agent and Lenders have agreed to waive any such
Default or Event of Default and to make certain amendments to the Credit
Agreement in the manner set forth herein, 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 9.
(1) Section 9.2 of the Credit Agreement is hereby amended and
restated in its entirety as follows (solely for convenience, modified or added
language is italicized):
"SECTION 9.2 Minimum EBITDA. PVC and its Subsidiaries on a
consolidated basis shall not permit EBITDA as of the last day of each
calendar month set forth below for the calendar month then ended to be less
than the following:
Period Minimum EBITDA
Calendar Month Ending October 31, 2002 $ 951,499
Calendar Month Ending November 30, 2002 $1,007,525
Calendar Month Ending December 31, 2002 $ 980,632
Calendar Month Ending January 31, 2003 $1,000,000
Calendar Month Ending February 28, 2003 $ 700,000
Calendar Month Ending March 31, 2003 $ 800,000
Calendar Month Ending April 30, 2003 $ 800,000
Calendar Month Ending May 31, 2003 $ 800,000
Calendar Month Ending June 30, 2003 $ 800,000
Calendar Month Ending July 31, 2003 $ 800,000
Each Calendar Month thereafter $1,000,000
; provided, that to the extent that actual EBITDA for a calendar month
exceeds the amount of EBITDA required for such calendar month, the excess
shall be permitted to be carried over to the immediately succeeding
calendar month (the `EBITDA Carry Over Amount') for the purpose of
satisfying the amount of EBITDA required for such calendar month; provided,
however, that the EBITDA Carry Over Amount may only be carried forward for
two (2) consecutive calendar months and not beyond."
(2) Section 9.3 of the Credit Agreement is hereby amended to
delete the amount "$250,000" set forth opposite the period "Fiscal Quarter
Ending March 31, 2003 and each Fiscal Quarter thereafter" and substitute
therefor the amount "$375,000".
SECTION 2.
LIMITED WAIVER TO THE CREDIT AGREEMENT; CONDITIONS TO AMENDMENT
On the basis of the representations and warranties contained in this
Amendment, and subject to the terms and conditions of this Amendment, the
Administrative Agent and Required Lenders hereby agree to waive any Default or
Event of Default which may have occurred, or may hereafter occur, under Section
11.1(d) of the Credit Agreement solely as a result of the Borrowers' failure to
comply with the covenant contained in Section 9.4 (Maximum Extraordinary
Expenses) of the Credit Agreement for the Fiscal Quarter ending December 31,
2002 to the extent that Extraordinary Expenses for such Fiscal Quarter are
comprised of restructuring charges incurred in connection with a proposed public
offering of PVC Common Stock that was not consummated during the Fiscal Year
ending December 31, 2002.
2
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 Borrowers with
the provisions of Sections 9.4 and 11.1(d) of the Credit Agreement in the manner
and to the extent described above and nothing in this Amendment shall be deemed
or otherwise construed to:
(a) constitute a waiver of, or consent to or a modification or
amendment of (i) Sections 9.4 and 11.1(d) 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 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 Borrowers 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 Borrowers, 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, each 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. 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 First 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,
3
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 First Amendment Effective
Date to the same extent as though made on and as of the First 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
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 PVC and
its Subsidiaries that have been or are hereafter made available to the
Administrative Agent or the other Lenders by the Borrowers or any of their
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. Such 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
Each 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. Each
Borrower and 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 such 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 shall become effective as of the date hereof (the
"First 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; and
4
(b) such other documents as the Administrative Agent may reasonably
request.
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 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 First 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. Each Borrower acknowledges that all costs, fees
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 Borrowers.
C. Headings. Section and subsection headings in this Amendment are
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
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
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]
5
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.
WACHOVIA BANK NATIONAL
ASSOCIATION,
individually and as Administrative Agent
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
CREDIT LYONNAIS, NEW YORK BRANCH,
as a Lender
By: /s/ Xxxx-Xxxxxxx Van Essche
-------------------------------------
Name: Xxxx-Xxxxxxx Van Essche
Title: Vice President
SUNTRUST BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Director
SPRING STREET PARTNERS - I, L.P., as a
Lender
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Authorized Signatory
SOUTHTRUST BANK, as a Lender
By: /s/ B.E. Xxxxxxx
-------------------------------------
Name: B.E. Xxxxxxx
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/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
AMSOUTH BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title:
FIFTH THIRD BANK, CENTRAL OHIO, as a Lender
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Asst. Vice President
S-2
BORROWERS:
PLANVISTA CORPORATION (f/k/a
HEALTHPLAN SERVICES CORPORATION)
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman & Chief Executive
Officer
PLANVISTA SOLUTIONS, INC. (f/k/a
NATIONAL PREFERRED PROVIDER
NETWORK, INC.)
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
OTHER CREDIT PARTIES:
NATIONAL NETWORK SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
QUALITY MEDICAL ADMINISTRATORS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
S-3
