EXHIBIT 10.15(d)
FOURTH AMENDMENT
THIS FOURTH AMENDMENT to the Credit Agreement referred to below (this
"Fourth Amendment"), is made and entered into as of this 13th day of June, 1997
by and among HEALTHPLAN SERVICES CORPORATION, a corporation organized under the
laws of Delaware (the "Borrower"), certain subsidiaries of the Borrower
identified on the signature pages thereto, the Lenders party to such Credit
Agreement, and FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as Agent for the
Lenders.
STATEMENT OF PURPOSE
The Lenders have extended certain credit facilities to the Borrower
pursuant to the Credit Agreement dated as of May 17, 1996 (as amended by the
First Amendment thereto dated July 1, 1996 (the "First Amendment"), the Second
Amendment thereto dated September 26, 1996 (the "Second Amendment"), the Letter
Agreement thereto dated as of March 28, 1997 (the "Letter Agreement"), the Third
Amendment thereto dated as of May 6, 1997 (the "Third Amendment"), and as may be
further amended, restated or otherwise modified, the "Credit Agreement"), by and
among the Borrower, the Lenders party thereto (the "Lenders"), and the Agent.
The Borrower has requested that the Lenders amend the Credit Agreement
to, among other things, permit the establishment of a swingline facility of up
to $10,000,000 and enable the Borrower to pay a quarterly dividend of up to
$.125 per share of the Borrower's capital stock (or up to $.50 per share on an
annualized basis) for 1997, which amount may be increased by the Borrower on an
annualized basis by up to $.05 per share for each calendar year after 1997, and
the Lenders have agreed to do so, but only on the terms and conditions set forth
below in this Fourth Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. (a) All capitalized undefined terms used in this
Fourth Amendment shall have the meanings assigned thereto in the Credit
Agreement and (b) "Fourth Amendment Effective Date" means the date of this
Fourth Amendment or such later Business Day upon which each condition described
below in Section 4 shall be satisfied or waived in a manner acceptable to the
Agent and Required Lenders.
2. Amendments to the Credit Agreement. The Credit Agreement is hereby
amended as follows:
(a) Section 1.1 is hereby amended to insert the following defined
term in the correct alphabetical order:
"'FIXED CHARGE COVERAGE RATIO' means as of any fiscal quarter
end of the Borrower, the ratio of (a) the sum of (i) Pro
Forma EBITDA less Capital Expenditures less the total amount
paid by the Borrower for any open market repurchases (and/or
private purchases) of its capital stock less cash dividends
paid by the Borrower to its shareholders less cash taxes paid
by Borrower, each for the period of four consecutive fiscal
quarters ending on such fiscal quarter end, to (b) Fixed
Charges."
(b) Section 1.1 is hereby amended to insert the following defined
term in the correct alphabetical order:
"'FIXED CHARGES' means as of any date of determination,
without duplication, each calculated for such period in
accordance with GAAP, the sum of (i) interest expense for the
four consecutive fiscal quarter period ending on or
immediately prior to such date of determination plus (ii)
scheduled principal payments with respect to Debt for the
four consecutive fiscal quarter period immediately following
such date of determination."
(c) Section 1.1 is hereby amended to insert the following defined
term in the correct alphabetical order:
"'SWINGLINE FACILITY' means the swingline facility, not to
exceed $10,000,000 in the aggregate, to be entered into
between the Borrower and First Union, on terms and conditions
satisfactory to the Agent.
(d) Section 1.1 is hereby amended by deleting the definition of
"Capital Expenditures" in its entirety and substituting the following
in lieu thereof:
"'CAPITAL EXPENDITURES' means, with respect to a Person and
its Subsidiaries for any period, the aggregate cost of
replacement or acquisition of all Capital Assets of such
Person and its Subsidiaries during such period, determined on
a Consolidated basis in accordance with GAAP."
(e) Section 1.1 is hereby amended by deleting the definition of
"Pro Forma EBITDA" in its entirety and substituting the following in
lieu thereof:
"'PRO FORMA EBITDA' means, as of any date of determination,
EBITDA for the period of four consecutive fiscal quarters
ending on, or immediately prior to, such date of
determination, as adjusted for non cash charges of not more
than $13,710,000 for the quarter ended September 30, 1996,
and as set forth on the applicable Officer's Compliance
Certificate and financial statements attached thereto,
including on a pro forma basis EBITDA for such period
attributable to any Permitted Acquisition; provided that
EBITDA attributable to any Permitted Acquisition (i) for the
calendar month during which such Permitted Acquisition is
consummated shall be included in Pro Forma EBITDA on an
actual or PRO FORMA basis as determined in accordance with
GAAP, (ii) for any calendar month following such Permitted
Acquisition which is part of the same fiscal quarter during
which such Permitted Acquisition is consummated shall be
included in Pro Forma EBITDA on an actual basis."
(f) Section 1.1 is hereby amended by deleting the defined terms
"ACQUISITION RESTRUCTURING CHARGE" and "CAPITAL EXPENDITURE ADD-BACK."
(g) Section 8.2 is hereby amended by deleting such Section in its
entirety and substituting the following in lieu thereof:
"Section 8.2. FIXED CHARGE COVERAGE RATIO. As of the end of
any fiscal quarter of the Borrower during the term of the
Credit Facility, permit the Fixed Charge Coverage Ratio to be
less than 1.3 to 1.0."
(h) Section 8.3 is hereby deleted in its entirety.
(i) Section 9.1 is hereby amended by deleting such Section in its
entirety and substituting the following in lieu thereof:
"Section 9.1. LIMITATIONS ON DEBT. Create, incur, assume or
suffer to exist any Debt other than (a) the Obligations, (b)
existing Debt described as of the Closing Date on SCHEDULE
5.1(T) hereto (but not the increase thereof), (c) the
Existing Letters of Credit and any renewal (but not any
increase or other material modification that the Required
Lenders have not previously approved in writing) thereof, (d)
additional letters of credit (with respect to which the
Borrower is the account party) issued in connection with
Permitted Acquisitions or otherwise in the ordinary course of
business of the Borrower and its Subsidiaries, not to exceed
an aggregate amount of $6,000,000 outstanding at any time,
(e) Subordinated Debt of the Borrower which is convertible
into common stock thereof not to exceed an aggregate
principal amount of $50,000,000 during the term of the Credit
Facilities, (f) other Subordinated Debt of the Borrower which
shall not exceed an aggregate principal amount of Five
Million Dollars ($5,000,000) incurred during the term of the
Credit Facility, (g) Debt under any Hedging Agreement
reasonably acceptable to the Agent and Required Lenders, (h)
Debt of the Borrower incurred by reason of merger or
otherwise assumed in connection with any Permitted
Acquisition in an aggregate principal amount not to exceed
$7,000,000 during the term of the Credit Facility, the terms
and conditions of which (including without limitation any
collateral security therefor) shall be reasonably acceptable
to the Agent and Lenders, (i) the Swingline Facility and (j)
Debt of the Borrower, other than that provided for in clauses
(a) through (i) of this
Section, incurred in the ordinary course of business of the
Borrower and its Subsidiaries not to exceed an aggregate
principal amount of One Million Dollars ($1,000,000)
outstanding at any time; PROVIDED, that none of the Debt
permitted to be incurred by this Section shall restrict,
limit or otherwise encumber (by covenant or otherwise) the
ability of any Subsidiary of the Borrower to make any payment
to the Borrower or any of its Subsidiaries (in the form of
dividends, intercompany advances or otherwise) for the
purposes of enabling the Borrower to pay the Obligations."
(j) Section 9.2 is hereby amended by deleting such Section in its
entirety and substituting the following in lieu thereof:
"Section 9.2. LIMITATIONS ON GUARANTEES. Other than
Guarantees created by the Loan Documents, create, incur,
assume or suffer to exist any Guarantee, except (a)
Guarantees securing the Swingline Facility and (b) indemnity
obligations under surety or fidelity insurance coverage (i)
set forth on Schedule 5.1(t) and (ii) incurred in the
ordinary course of business; PROVIDED that the aggregate
amount of such indemnity obligations pursuant to clauses
(b)(i) and (ii) less the amount of any such obligations
secured by the Existing Letters of Credit and any additional
letters of credit issued pursuant to Section 9.1(d) does not
exceed $8,000,000."
(k) Section 9.3 is hereby amended by adding the following
subsection "j" to the end of such Section:
"(j) Liens securing Debt under the Swingline Facility."
(l) Section 9.7 is hereby amended by deleting such Section in its
entirety and substituting the following in lieu thereof:
"Section 9.7. LIMITATIONS ON DIVIDENDS AND DISTRIBUTIONS.
Declare or pay any dividends upon any of its capital stock;
purchase, redeem, retire or otherwise acquire, directly or
indirectly, any shares of its capital stock, or make any
distribution of cash, property or assets among the holders of
shares of its capital stock; or make any change in its
capital structure that could reasonably be expected to have a
Material Adverse Effect; provided that (a) the Borrower may
pay dividends solely in shares of its own capital stock, (b)
any Subsidiary of the Borrower may pay cash dividends or make
any other cash distribution thereto, and (c) as long as no
Default or Event of Default has occurred or is continuing or
would result by the action taken, (i) the Borrower may pay a
cash dividend of up to $.125 per share of its capital stock
on a quarterly basis (or $.50 per share on an annualized
basis) for 1997, which amount may be increased by the
Borrower on an
annualized basis by up to $.05 per share for each calendar
year after 1997, in accordance with the formal dividend plan
adopted by the Board of Directors of the Borrower previously
delivered to the Agent and Lenders, and (ii) the Borrower may
purchase on the open market (and/or through private
purchases) shares of its capital stock in accordance with the
formal share repurchase plan (the "Repurchase Plan," as
amended, restated, or modified, previously delivered to the
Agent and Lenders) adopted by the Board of Directors of the
Borrower."
3. AGREEMENT. The Borrower agrees that it will reduce the amount of
the Aggregate Commitment by an amount equal to the amount of the Swingline
Facility contemporaneous with the closing of the Swingline Facility
4. CONDITIONS. The effectiveness of this Fourth Amendment shall be
conditioned upon satisfaction of the following conditions:
(a) Fourth Amendment. Receipt by the Agent of copies of this
Fourth Amendment executed by the Agent, Borrower, and Lenders.
(b) Upfront Fees. On the Fourth Amendment Effective Date, each
lender shall receive for the account of the Lenders an upfront fee
equal to $5,000.
(c) CERTIFICATE OF THE BORROWER. The Agent shall have received a
certificate dated as of the Fourth Amendment Effective Date from the
Borrower, in form and substance satisfactory to the Agent, certifying
on behalf of the Credit Parties that all representations and warranties
of the Credit Parties contained in this Amendment and the Loan
Documents are true and correct in all material respects; that no Credit
Party is in violation of any of the covenants contained in the other
Loan Documents; that, after giving effect to the transactions
contemplated by this Amendment, no Default or Event of Default has
occurred and is continuing; and that the Credit Parties have satisfied
each of the closing conditions regarding the Fourth Amendment to be
satisfied thereby.
(d) CERTIFICATE OF SECRETARY OF THE CREDIT PARTIES. The Agent
shall have received a certificate of the secretary or assistant
secretary of each Credit Party dated as of the Fourth Amendment
Effective Date certifying on behalf of such Credit Party, as
applicable, that the articles of incorporation and bylaws of such
Credit Party previously rescinded or amended in any respect since such
delivery date; that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of such Credit
party, authorizing the execution, delivery and performance of this
Amendment and the continued effectiveness of other Loan Documents; and
as to the incumbency and genuineness of the signature of each officer
of such Credit Party executing Loan Documents to which such Credit
Party is a party.
(e) DIVIDEND RESOLUTION AND REPURCHASE PLAN. The Agent and each
Lender shall have received a copy of the board resolutions approving
the dividend and Repurchase Plan.
(f) ADDITIONAL ITEMS. Receipt by the Agent or any other document
or instrument reasonably requested by it in connection with the
execution of this Amendment.
5. LIMITED AMENDMENT. Except as expressly amended herein, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect. This Fourth Amendment shall not be deemed (a) to be a
waiver of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or any other Loan Documents or (b) to
prejudice any other right or rights which the Agent or Lenders may now have or
may have in the future under or in connection with the Credit Agreement or the
Loan Documents or any of the instruments or agreements referred to therein, as
the same may be amended, restated or otherwise modified from time to time.
6. REPRESENTATIONS AND WARRANTIES. By its execution hereof, the
Borrower hereby certifies on behalf of itself and the other Credit Parties that
each of the representations and warranties set forth in the Credit Agreement and
the other Loan Documents is true and correct as of the date hereof as if fully
set forth herein and that as of the date hereof no Default or Event of Default
has occurred and is continuing.
7. CONFIRMATION OF SECURITY DOCUMENTS. Each Credit Party hereby agrees
and confirms that the definition of obligations as used in each Pledge Agreement
and Subsidiary Guaranty Agreement to which it is a party includes the Credit
Agreement as amended hereby.
8. CONSENT TO SWINGLINE FACILITY SECURITY. Each Lender hereby consents
and agrees that the Swingline Facility may be secured, on a pari passu basis,
with the Obligations, by the Collateral and the Subsidiary Guaranty Agreements.
9. EXPENSES. The Borrower shall pay all reasonable out-of-pocket
expenses of the Agent in connection with the preparation, execution and delivery
of this Fourth Amendment, including without limitation, the reasonable fees and
disbursements of counsel for the Agent.
10. GOVERNING LAW. This Fourth Amendment shall be governed by and
construed in accordance with the laws of the State of North Carolina.
11. COUNTERPARTS. This Fourth Amendment may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitutes one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be duly executed as of the date and year first above written.
BORROWER:
HEALTHPLAN SERVICES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Executive Vice President and
Chief Financial Officer
OTHER CREDIT PARTIES:
HEALTHPLAN SERVICES, INC.
HEALTHCARE INFORMATICS
CORPORATION
THIRD PARTY CLAIMS
MANAGEMENT, INC.
▇▇▇▇▇▇▇▇▇▇ SERVICES CORPORATION
R.E. ▇▇▇▇▇▇▇▇▇▇, INC.
AMERICAN BENEFIT PLAN
ADMINISTRATORS, INC.
PROHEALTH, INC.
EMPLOYEE BENEFIT SERVICES, INC.
CONSOLIDATED GROUP, INC.
GROUP BENEFIT ADMINISTRATORS
INSURANCE AGENCY, INC.
CONSOLIDATED CLAIMS, INC. now known
as CONSOLIDATED GROUP, INC.
CONSOLIDATED HEALTH COALITION, INC.
now known as CONSOLIDATED GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Executive Vice President
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as Agent and Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇ BANK, N.A.
(as successor by merger to ▇▇▇▇▇▇▇ Bank of
Tampa, a State Bank), as Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
NATIONSBANK, N.A. (SOUTH), as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
SOUTHTRUST BANK, NATIONAL
ASSOCIATION (formerly knownas SouthTrust
Bank of Alabama, National Association), as
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FLEET BANK, N.A., as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
SUNTRUST BANK, TAMPA BAY, as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: 1st Vice President
THE FIFTH THIRD BANK OF COLUMBUS, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President