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EXHIBIT 10.1
HEALTHCARE RECOVERIES, INC.
AS THE BORROWER
AND
THE FINANCIAL INSTITUTIONS NAMED HEREIN
AS LENDERS
AND
NATIONAL CITY BANK OF KENTUCKY
AS ADMINISTRATIVE AGENT
---------------------
AMENDMENT NO. 3
DATED AS OF
MAY 15, 2000
TO
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 1, 1998
---------------------
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AMENDMENT NO. 3 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT, dated as of May 15, 2000
("THIS AMENDMENT"), among the following:
(i) HEALTHCARE RECOVERIES, INC., a Delaware corporation
(herein, together with its successors and assigns, the "BORROWER");
(ii) the financial institutions listed on the signature
pages hereof (the "Lenders"); and
(iii) NATIONAL CITY BANK OF KENTUCKY, a national banking
association, as Administrative Agent (the "ADMINISTRATIVE AGENT") for
the Lenders under the Credit Agreement:
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders named therein, and the
Administrative Agent entered into the Credit Agreement, dated as of February 1,
1998, as amended by Amendment No. 1 thereto, dated as of May 15, 1998, and
Amendment No. 2 thereto, dated as of March 1, 1999 (as so amended, the "CREDIT
AGREEMENT"; with the terms defined therein, or the definitions of which are
incorporated therein, being used herein as so defined).
(2) The parties hereto desire to amend certain of the terms of the
Credit Agreement, as more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
1. AMENDMENTS, ETC.
1.1. PERMANENT REDUCTION OF THE TOTAL COMMITMENT, ETC. Immediately
prior to the time this Amendment becomes effective, (i) the Borrower permanently
reduced the Total Commitment from $50,000,000 to $40,000,000, in accordance with
the provisions of section 4.2(b) of the Credit Agreement, and (ii) there was a
transfer of Commitments and Loans among the Lenders which resulted in the
Commitments of the respective Lenders being as follows:
<TABLE>
<CAPTION>
Lender Commitment
------ -----------
<S> <C>
National City Bank of Kentucky $13,500,000
Bank One, Kentucky, N.A. $11,500,000
AmSouth Bank (f/k/a First American National Bank) $ 7,500,000
LaSalle National Bank $ 7,500,000
-----------
Total Commitment $40,000,000
===========
</TABLE>
The parties hereto hereby agree that Annex I of the Credit Agreement shall be
deemed amended to reflect the Commitments as specified above.
1.2. EXTENSION OF MATURITY DATE. Effective on the Effective Date of
this Amendment provided for in section 3 hereof, the term "MATURITY DATE"
contained in section 1.1 of the Credit Agreement is amended to read in its
entirety as follows:
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"MATURITY DATE" shall mean April 30, 2002, unless earlier
terminated.
1.3. PRICING CHANGES. (a) CHANGES IN INTEREST RATE MARGINS.
Effective on the Effective Date of this Amendment provided for in section 3
hereof, section 2.7(g) of the Credit Agreement is amended to read in its
entirety as follows:
(g) As used herein, the term "APPLICABLE EURODOLLAR
MARGIN" means 200 basis points and the term "APPLICABLE PRIME RATE
MARGIN" means 50 basis points.
The change in the Applicable Eurodollar Margin and Applicable Prime Rate Margin
provided for above shall be effective as to all Loans outstanding on or after
the Effective Date of this Amendment for all periods (including any portion of
an Interest Period) on or after such Effective Date.
(a) CHANGE IN APPLICABLE COMMITMENT FEE RATE. Effective on the
Effective Date of this Amendment provided for in section 3 hereof, the last
paragraph of section 4.1(a) of the Credit Agreement is amended to read in its
entirety as follows:
As used herein, the term "APPLICABLE COMMITMENT FEE RATE"
means 37.50 basis points.
1.4. DEFINITION OF PERMITTED ACQUISITION. Effective on the
Effective Date of this Amendment provided for in section 3 hereof, the term
"PERMITTED ACQUISITION" contained in section 1.1 of the Credit Agreement is
amended by deleting the word "and" at the end of clause (iv) thereof, by adding
the word "and" following the semicolon at the end of clause (v) thereof, and by
adding a new clause (vi) thereto, reading in its entirety as follows:
(vi) the aggregate consideration for such Acquisition
(taken together with any other substantially contemporaneous
Acquisition with the same party or parties and/or their Affiliates),
including the principal amount of any assumed Indebtedness and (without
duplication) any Indebtedness of any acquired person or persons, does
not exceed $5,000,000, UNLESS the Required Lenders specifically approve
or consent to such Acquisition in writing;
1.5. CHANGES IN MONTHLY FINANCIAL REPORTING. Effective on the
Effective Date of this Amendment provided for in section 3 hereof, section
8.1(d) of the Credit Agreement is amended to change the time for monthly
reporting from 30 to 35 days and to eliminate a monthly reporting requirement
for any month which is also the end of a fiscal quarter or fiscal year, with the
result that, as so amended, section 8.1(d) of the Credit Agreement reads in its
entirety as follows:
(D) MONTHLY FINANCIAL REPORTS AND GROSS RECOVERIES IN
PROCESS. As soon as available and in any event within 35 days after the
end of each calendar month (other than any calendar month which is also
the end of a fiscal quarter or fiscal year), a copy of the monthly
financial statements the Borrower customarily prepares for its senior
financial or accounting officers, in form reasonably acceptable to the
Administrative Agent, together with a certificate or statement on
behalf of the Borrower of the Chief Financial Officer or other
Authorized Officer of the Borrower providing a computation in
reasonable detail of the Borrower's Gross Recoveries in Process as of
the end of such month.
1.6. CHANGES IN TIMING OF QUARTERLY AND ANNUAL REPORTING. Effective
on the Effective Date of this Amendment provided for in section 3 hereof,
section 8.1(a) of the Credit Agreement is amended to change the phrase "90
days", which appears therein, to "95 days", and section 8.1(b) of the Credit
Agreement is amended to change the phrase "45 days", which appears therein, to
"50 days".
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1.7. CONSOLIDATED CAPITAL EXPENDITURES. Effective on the Effective
Date of this Amendment provided for in section 3 hereof, section 9.9 of the
Credit Agreement is amended by changing the amount "$4,500,000", which appears
therein, to "$6,000,000".
1.8. COVENANT AS TO ADVANCES, INVESTMENTS, LOANS AND GUARANTY
OBLIGATIONS. Effective on the Effective Date of this Amendment provided for in
section 3 hereof, a new clause (iv) is added to section 9.5(p) of the Credit
Agreement, with the result that section 9.5(p) of the Credit Agreement, as so
amended, reads in its entirety as follows:
(p) any other loans, advances, investments (whether in
the form of cash or contribution of property, and if in the form of a
contribution of property, such property shall be valued for purposes of
this clause (p) at the fair value thereof as reasonably determined by
the Borrower) and Guaranty Obligations, including, without limitation,
in or to or for the benefit of, Subsidiaries, joint ventures, or other
persons, not otherwise permitted by the foregoing clauses, made after
the end of the most recent fiscal quarter of the Borrower for which
financial statements were furnished to the Lenders prior to the
Effective Date (such loans, advances and investments and Guaranty
Obligations, collectively, "BASKET INVESTMENTS AND GUARANTEES"), shall
be permitted to be incurred if (i) no Event of Default shall have
occurred and be continuing, or would result therefrom, (ii) the
aggregate Basket Investments and Guarantees outstanding at any time
does not exceed $10,000,000, (iii) no more than $750,000 of the
aggregate Basket Investments and Guarantees outstanding at any time
consists of loans or advances to, and Guaranty Obligations incurred to
support Indebtedness of, officers, directors and employees of the
Borrower and its Subsidiaries, and (iv) at the time the Borrower or any
Subsidiary makes any Basket Investment or Guarantee after May 1, 2000
(and after giving pro forma effect to any Indebtedness incurred in
connection therewith), the Borrower's ratio of (A) the amount of
Consolidated Total Indebtedness at such time to (B) the lesser of (x)
Consolidated EBITDA for the Testing Period consisting of the most
recent four fiscal quarters (whether or not in the same fiscal year),
or (y) two times the Consolidated EBITDA for the Testing Period
consisting of the most recent two fiscal quarters (whether or not in
the same fiscal year), was less than 1.50 to 1.00.
1.9. COVENANT AS TO DIVIDENDS, STOCK REPURCHASES. Effective on the
Effective Date of this Amendment provided for in section 3 hereof, section 9.6
of the Credit Agreement is amended by adding a new clause (y) to paragraph (ii)
thereof, with the result that section 9.6 of the Credit Agreement as so amended
reads in its entirety as follows:
9.6. DIVIDENDS; STOCK REPURCHASES, ETC. The Borrower will
not (a) directly or indirectly declare, order, pay or make any dividend
(other than dividends payable solely in capital stock of the Borrower)
or other distribution on or in respect of any capital stock of any
class of the Borrower, whether by reduction of capital or otherwise, or
(b) directly or indirectly make, or permit any of its Subsidiaries to
directly or indirectly make, any purchase, redemption, retirement or
other acquisition of any capital stock of any class of the Borrower
(other than for a consideration consisting solely of capital stock of
the same class of the Borrower) or of any warrants, rights or options
to acquire or any securities convertible into or exchangeable for any
capital stock of the Borrower, EXCEPT that if no Event of Default shall
have occurred and be continuing or would result therefrom,
(i) the Borrower shall be permitted to declare
and pay cash dividends of up to 100% of the net after tax
proceeds of any extraordinary or other non-recurring cash
gain, if such dividend is declared and paid within 90 days
following the recognition of such gain; and
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(ii) the Borrower and its Subsidiaries shall be
permitted to purchase and/or repurchase for cash consideration
shares of common stock of the Borrower (and any associated
rights), if (x) the aggregate amount expended for such
purposes subsequent to December 31, 1998 does not exceed
$10,000,000, and (y) at the time of any such purchase or
repurchase (and after giving pro forma effect to any
Indebtedness incurred in connection therewith), the Borrower's
ratio of (A) the amount of Consolidated Total Indebtedness at
such time to (B) the lesser of (aa) Consolidated EBITDA for
the Testing Period consisting of the most recent four fiscal
quarters (whether or not in the same fiscal year), or (bb) two
times the Consolidated EBITDA for the Testing Period
consisting of the most recent two fiscal quarters (whether or
not in the same fiscal year), was less than 1.50 to 1.00.
1.10. CONSOLIDATED TOTAL INDEBTEDNESS/CONSOLIDATED EBITDA RATIO.
Effective on the Effective Date of this Amendment provided for in section 3
hereof, section 9.7 of the Credit Agreement is amended to read in its entirety
as follows:
9.7. CONSOLIDATED TOTAL INDEBTEDNESS/CONSOLIDATED EBITDA
RATIO. The Borrower will not at any time permit the ratio of (i) the
amount of Consolidated Total Indebtedness at such time to (ii) the
lesser of (x) Consolidated EBITDA for the Testing Period consisting of
the most recent four fiscal quarters (whether or not in the same fiscal
year), or (y) two times the Consolidated EBITDA for the Testing Period
consisting of the most recent two fiscal quarters (whether or not in
the same fiscal year), to exceed 2.50 to 1.00.
1.11. COVERAGE RATIOS. Effective on the Effective Date of this
Amendment provided for in section 3 hereof, section 9.8 of the Credit Agreement
is amended to add a fixed charge coverage ratio thereto, with the result that,
after giving effect to such amendment, section 9.8 of the Credit Agreement reads
in its entirety as follows:
9.8. COVERAGE RATIOS. (A) INTEREST COVERAGE RATIO. The
Borrower will not permit its ratio of (i) the sum of Consolidated EBIT
plus Consolidated Amortization, to (ii) Consolidated Interest Expense,
for any Testing Period to be less than 2.25 to 1.00.
(B) FIXED CHARGE COVERAGE RATIO. The Borrower will not
permit its ratio of (i) Consolidated EBITDA for any Testing Period, to
(ii) the sum for such Testing Period of (1) Consolidated Interest
Expense, (2) Consolidated Income Tax Expense, (3) scheduled or
mandatory repayments, prepayments or redemptions of the principal of
any Indebtedness other than the Obligations hereunder (including the
principal portion of any Capitalized Lease), (4) Consolidated Capital
Expenditures, and (5) capitalized commissions, to be less than 1.10 to
1.00; PROVIDED, HOWEVER, that specified capitalized commissions shall
be excluded from computations of the foregoing ratio if, prior to
making payment of any such specified capitalized commissions, the
Borrower has requested that the Required Lenders to consent in writing
to such exclusion of such specified capitalized commissions and the
Required Lenders have signed and delivered a written consent to such
effect, any such consent not to be unreasonably withheld by any Lender.
1.12. DEFINITION OF TESTING PERIOD. Effective on the Effective Date
of this Amendment provided for in section 3 hereof, the definition of the term
"TESTING PERIOD" in section 1.1 of of the Credit Agreement is changed to read in
its entirety as follows:
"TESTING PERIOD" shall mean for any determination a single
period consisting of the four consecutive fiscal quarters of the
Borrower then last ended (whether or not such quarters are all within
the same fiscal year), EXCEPT that if a particular provision of this
Agreement indicates that
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a Testing Period shall be of a different specified duration, such
Testing Period shall consist of the particular fiscal quarter or
quarters then last ended which are so indicated in such provision.
2. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants as follows:
2.1. AUTHORIZATION, VALIDITY AND BINDING EFFECT. This Amendment has
been duly authorized by all necessary corporate action on the part of the
Borrower, has been duly executed and delivered by a duly authorized officer or
officers of the Borrower, and constitutes the valid and binding agreement of the
Borrower, enforceable against the Borrower in accordance with its terms.
2.2. REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The
representations and warranties of the Borrower contained in the Credit
Agreement, as amended hereby, are true and correct on and as of the date hereof
as though made on and as of the date hereof, except to the extent that such
representations and warranties expressly relate to a specified date, in which
case such representations and warranties are hereby reaffirmed as true and
correct when made.
2.3. NO EVENT OF DEFAULT, ETC. No condition or event has occurred
or exists which constitutes or which, after notice or lapse of time or both,
would constitute an Event of Default.
2.4. COMPLIANCE. The Borrower is in full compliance with all
covenants and agreements contained in the Credit Agreement, as amended hereby.
2.5. RECENT FINANCIAL STATEMENTS. The Borrower has furnished to the
Lenders and the Administrative Agent complete and correct copies of the audited
consolidated balance sheets of the Borrower and its consolidated subsidiaries as
of December 31, 1999, and December 31, 1998, and the related audited
consolidated statements of income, changes in shareholders' equity, and cash
flows for each of the three years in the period ended December 31, 1999,
accompanied by the unqualified report thereon of the Borrower's independent
accountants, as contained in the Form 10-K Annual Report filed by the Borrower
with the SEC for its fiscal year ended December 31, 1999. All such financial
statements have been prepared in accordance with GAAP, consistently applied
(except as stated therein), and fairly present the financial position of the
Borrower and its consolidated subsidiaries as of the respective dates indicated
and the consolidated results of their operations and cash flows for the
respective periods indicated.
3. EFFECTIVENESS.
This Amendment shall become effective on and as of the date (the
"EFFECTIVE DATE"), on or before May 15, 2000 if the following conditions are
satisfied:
(A) this Amendment shall have been executed by the Borrower and
the Administrative Agent, and counterparts hereof as so executed shall have been
delivered to the Administrative Agent;
(B) the Administrative Agent shall have been notified by all of
the Lenders at the time party to the Credit Agreement that such Lenders have
executed this Amendment (which notification may be by facsimile or other written
confirmation of such execution);
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(C) immediately prior to the time this Amendment becomes
effective, (i) the Total Commitment shall have been permanently reduced from
$50,000,000 to $40,000,000, (ii) the Borrower shall have paid to the
Administrative Agent for immediate distribution to the Lenders all accrued
interest and Fees, and (iii) the Loans and Commitments shall have been
transferred and re-allocated among the Lenders so that the Commitments are as
stated in section 1.1 hereof; and
(D) the Borrower shall have paid to the Administrative Agent, for
immediate distribution to the Lenders pro rata based on their respective
portions of the reduced Total Commitment of $40,000,000, an amendment fee in the
amount previously agreed to by the Borrower, the Administrative Agent and such
Lenders.
The Administrative Agent shall notify the Borrower and each Lender in writing of
the effectiveness hereof and of the specific Effective Date.
4. RATIFICATIONS.
The terms and provisions set forth in this Amendment shall modify and
supersede all inconsistent terms and provisions set forth in the Credit
Agreement, and except as expressly modified and superseded by this Amendment,
the terms and provisions of the Credit Agreement are ratified and confirmed and
shall continue in full force and effect.
5. MISCELLANEOUS.
5.1. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the Borrower, each Lender and the Administrative
Agent and their respective permitted successors and assigns.
5.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Amendment shall survive the
execution and delivery of this Amendment, and no investigation by the
Administrative Agent or any Lender or any subsequent Loan or issuance of a
Letter of Credit shall affect the representations and warranties or the right of
the Administrative Agent or any Lender to rely upon them.
5.3. REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any
and all other agreements, instruments or documentation now or hereafter executed
and delivered pursuant to the terms of the Credit Agreement as amended hereby,
are hereby amended so that any reference therein to the Credit Agreement shall
mean a reference to the Credit Agreement as amended hereby.
5.4. EXPENSES. As provided in the Credit Agreement, but without
limiting any terms or provisions thereof, the Borrower agrees to pay on demand
all costs and expenses incurred by the Administrative Agent in connection with
the preparation, negotiation, and execution of this Amendment, including without
limitation the costs and fees of the Administrative Agent's special legal
counsel, regardless of whether this Amendment becomes effective in accordance
with the terms hereof, and all costs and expenses incurred by the Administrative
Agent or any Lender in connection with the enforcement or preservation of any
rights under the Credit Agreement, as amended hereby.
5.5. SEVERABILITY. Any term or provision of this Amendment held by
a court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the term or provision so held to be invalid or
unenforceable.
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5.6. APPLICABLE LAW. This Amendment shall be governed by and
construed in accordance with the laws of the Commonwealth of Kentucky.
5.7. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.8. ENTIRE AGREEMENT. This Amendment is specifically limited to
the matters expressly set forth herein. This Amendment and all other
instruments, agreements and documentation executed and delivered in connection
with this Amendment embody the final, entire agreement among the parties hereto
with respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto relating to the subject matter hereof or any other
subject matter relating to the Credit Agreement.
5.9. COUNTERPARTS. This Amendment may be executed by the parties
hereto separately in one or more counterparts, each of which when so executed
shall be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the date first above written.
<TABLE>
<S> <C>
HEALTHCARE RECOVERIES, INC. NATIONAL CITY BANK OF KENTUCKY,
INDIVIDUALLY AS A LENDER, A LETTER OF
CREDIT ISSUER AND AS ADMINISTRATIVE AGENT
BY: /s/
-----------------------------------
CHIEF FINANCIAL OFFICER BY: /s/
--------------------------------
SENIOR VICE PRESIDENT
BANK ONE, KENTUCKY, N. A. AMSOUTH BANK (SUCCESSOR IN INTEREST BY
MERGER TO FIRST AMERICAN NATIONAL BANK)
BY: /s/
-----------------------------------
SENIOR VICE PRESIDENT BY: /s/
--------------------------------
VICE PRESIDENT
LASALLE BANK NATIONAL ASSOCIATION
F/K/A LASALLE NATIONAL BANK
BY: /s/
--------------------------------
VICE PRESIDENT
</TABLE>
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