EXHIBIT 10.4
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TROVER SOLUTIONS, INC.
(F/K/A HEALTHCARE RECOVERIES, INC.)
AS THE BORROWER
AND
THE FINANCIAL INSTITUTIONS NAMED HEREIN
AS LENDERS
AND
NATIONAL CITY BANK OF KENTUCKY
AS ADMINISTRATIVE AGENT
AND
BANK ONE, KENTUCKY, N.A.
AS SYNDICATION AGENT
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AMENDMENT NO. 2
DATED AS OF
FEBRUARY 21, 2003
TO
AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF
NOVEMBER 1, 2001
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AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of February 21, 2003 (this "AMENDMENT"), among the following:
(I) TROVER SOLUTIONS, INC. (f/k/a 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");
(III) NATIONAL CITY BANK OF KENTUCKY, a national banking
association, as Administrative Agent (the "ADMINISTRATIVE AGENT") for
the Lenders under the Credit Agreement; and
(IV) BANK ONE, KENTUCKY, N.A., a national banking
association, as Syndication Agent (the "SYNDICATION AGENT").
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders named therein, the Administrative
Agent and the Syndication Agent entered into the Amended and Restated Credit
Agreement, dated as of November 1, 2001, as amended by Amendment No. 1 thereto,
dated as of September 23, 2002 (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 terms of the Credit
Agreement, all as more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. AMENDMENT.
Effective on the Amendment Effective Date (as defined in section 3
hereof), section 9.6(ii) of the Credit Agreement is amended to read in its
entirety as follows:
(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) subsequent to the
Closing Date, PROVIDED that as of the date of any such purchase or
repurchase, and after giving effect thereto, the Borrower's (i) ratio
of (a) the amount of Consolidated Total Indebtedness to (b)
Consolidated EBITDA is less than 1.00 to 1.00, and (ii) amount of
Consolidated Total Indebtedness is less than $10,000,000 in the
aggregate.
SECTION 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.
SECTION 3. EFFECTIVENESS.
This Amendment shall become effective as of February 21, 2003
(the "AMENDMENT EFFECTIVE DATE"), 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
the Required Lenders that such Lenders have executed this Amendment
(which notification may be by facsimile or other written confirmation
of such execution); and
(c) the Borrower shall have paid to the Administrative
Agent, in immediately available funds, for the account of each Lender
executing a counterpart of this Amendment, by 5:00 P.M. on February
___, 2003, a non-refundable amendment fee computed at the rate of 5
basis points on the amount of the Commitment of each such Lender (the
Administrative Agent shall promptly pay over to each Lender its
amendment fee).
The Administrative Agent shall notify the Borrower and each Lender in
writing of the effectiveness hereof.
SECTION 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.
SECTION 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.
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.
[SIGNATURES FOLLOW.]
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the date first above written.
TROVER SOLUTIONS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive VP & CFO
NATIONAL CITY BANK OF KENTUCKY,
individually as a Lender, a Letter of
Credit Issuer and as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
BANK ONE, KENTUCKY, N.A.,
individually as a Lender and as Syndication
Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FIFTH THIRD BANK, KENTUCKY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President