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EXHIBIT 10.48
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment") is entered into to be effective as of August 3, 1998, by and among
F.Y.I. Incorporated, a Delaware corporation ("F.Y.I."), the Lenders (as such
term is defined in the Credit Agreement, as hereinafter defined) which are
parties hereto, Banque Paribas, a bank organized under the laws of France acting
through its Chicago Branch, as agent for itself and the other Lenders (the
"Agent"), and Bank of America Texas, N.A., as co-agent for itself and the other
Lenders ("Co-Agent").
RECITALS
A. F.Y.I., the Agent, Co-Agent and the Lenders entered into that
certain Amended and Restated Credit Agreement dated as of February 17, 1998 (the
"Credit Agreement"), pursuant to which, among other things, the Lenders agreed
to make certain loans available to F.Y.I. upon the terms and conditions set
forth therein;
B. F.Y.I., the Agent, Co-Agent and the Lenders desire to amend the
Credit Agreement in certain respects as more fully set out herein.
AGREEMENT
NOW, THEREFORE, for and in consideration of the premises and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, F.Y.I., the Lenders, and the Agent hereby agree as follows:
1. Terms. All terms used herein which begin with an initial capital
letter shall, unless otherwise expressly defined herein, have the same
definitions assigned to such terms in the Credit Agreement, as modified by this
Amendment.
2. Amendment to Commitment. Effective as of the date hereof, the
aggregate principal amount of the Commitments is increased from $50,000,000.00
to $65,000,000.00. The amount set forth opposite the name of each Lender on the
signature pages hereto under the heading "Commitment" shall represent the
obligation of such Lender as increased hereby.
3. Amendment to Definitions. Effective as of the date hereof, the
following definition of "EBITA" shall be added to Section 1.1 of the Credit
Agreement:
"EBITA" means, for any period, without duplication, the sum of the
following for F.Y.I. and its Subsidiaries (or other applicable Person)
for such period determined on a consolidated basis in accordance with
GAAP: (a) Consolidated Net Income, plus (b) Consolidated Interest
Expense, plus (c) income and franchise taxes to the extent deducted in
determining Consolidated Net Income plus (d) amortization expense and
other non-cash, non-tax items (other than depreciation) to the extent
deducted in determining Consolidated Net Income. For purposes of
calculating the
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EBITA of F.Y.I. and its consolidated Subsidiaries for any period of
four consecutive fiscal quarters, the EBITA associated with any Person
or assets acquired in a Permitted Acquisition during such period of
four consecutive fiscal quarters shall be added, without duplication,
if the Permitted Acquisition and the EBITA of the Person or assets
acquired were approved in writing by the Required Lenders.
4. Amendment to Consolidated Fixed Charge Coverage Ratio. Effective as
of the date hereof, the definition of "Consolidated Fixed Charge Coverage Ratio"
in Section 1.1 of the Credit Agreement is hereby amended and restated to read in
its entirety as follows:
"Consolidated Fixed Charge Coverage Ratio" means, for any
period, the ratio of (a)(i) EBITA of F.Y.I. and its Subsidiaries for
such period minus (ii) taxes of F.Y.I. and its Subsidiaries paid or
payable in cash during such period, to (b) the Fixed Charges of F.Y.I.
and its Subsidiaries for such period.
5. Amendment to Permitted Acquisitions. Effective as of the date
hereof, the definition of "Permitted Acquisitions" in Section 1.1 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"Permitted Acquisition" means any Acquisition which has been
approved in writing by the Agent and the Required Lenders or any other
Acquisition which satisfies each of the following requirements: (a) the acquiror
(or surviving corporation if the acquisition is by means of a merger) is F.Y.I.
or any Subsidiary of F.Y.I., (b) the assets to be acquired in connection with
such Acquisition are assets that are to be used in the existing businesses of
the acquiror as such business is presently conducted, (c) such Acquisition has
been approved by the Board of Directors of the acquired entity, (d) the acquired
entity shall have generated positive EBITDA during the twelve-month period
preceding the Acquisition, which positive EBITDA shall be audited or reviewed by
an accounting firm acceptable to the Agent if (but only if) the Acquisition
involves total consideration paid or payable of $10,000,000 or more, after
adjusting for excess owners' compensation and other pro forma charges as
validated by the Agent, (e) after giving effect to such Acquisition and any Debt
incurred in connection therewith, Total Debt does not exceed 2.5 times EBITDA
for the four fiscal quarters most recently completed of F.Y.I. and its
Subsidiaries (and including the acquired entity's trailing twelve-month EBITDA
as adjusted for any interest not acquired, if audited or reviewed by an
accounting firm acceptable to the Agent) (EBITDA may include proforma
adjustments to an acquired entity's earnings, as adjusted for any interest not
acquired, acceptable to the Agent), (f) such Acquisition shall not exceed
$20,000,000 in total consideration (including any Debt assumed or guaranteed in
connection therewith), without Required Lenders' approval, (g) the aggregate
amount of all such Acquisitions made on or after the Closing Date shall not
exceed $25,000,000, in total consideration (including any Debt assumed or
guaranteed in connection therewith) in any twelve-month period without Required
Lenders' approval; provided, however, for purposes hereof, the amount of such
consideration relating to the acquisition of XxXxxx Associates Acquisition Corp.
and the acquisition of Associate Record Technician Services Acquisition Corp.
shall not be included in such aggregate amount of $25,000,000, (h) prior to and
after giving effect to the Acquisition, no Default shall exist, (i) after giving
effect to such Acquisition, F.Y.I. will not violate any financial covenant, and
(j) no material part of the Property or business operations to be
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acquired are located outside the U.S. or Canada; provided, however, that up to
$7,000,000 (valued at total purchase consideration including any Debt assumed or
guaranteed in connection therewith) in Acquisitions made on or after the Closing
Date and during the term of this Agreement will be deemed to be Permitted
Acquisitions despite their failure to meet the requirements of items (d) and (j)
preceding so long as no such acquired entity or entities shall have annual sales
(individually for any one such acquired entity or in the aggregate for all such
acquired entities) in excess of $10,000,000 or cumulative EBITDA losses
(individually for any one such acquired entity or in the aggregate for all such
acquired entities) in excess of $1,500,000 incurred, in each case during the
twelve-month period preceding the respective dates of acquisition.
6. Amendment to Section 10.3. Effective as of the date hereof, Section
10.3 of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
Section 10.3 Consolidated Fixed Charge Coverage Ratio. F.Y.I. will not
permit the Consolidated Fixed Charge Coverage Ratio, calculated as of
the end of each fiscal quarter of F.Y.I. for the four fiscal quarters
of F.Y.I. then ended, (i) commencing with the fiscal quarter ended
December 31, 1997 and ending with the fiscal quarter ending March 31,
1998 to be less than 1.50 to 1.00 and (ii) commencing with the fiscal
quarter ended June 30, 1998, and as of the last day of each fiscal
quarter thereafter, to be less than 1.20 to 1.00.
7. Representations and Warranties. The representations and warranties
made by F.Y.I. in the Loan Documents, as the same are amended hereby, are true
and correct at the time this Amendment is executed and delivered, except to the
extent that such representations and warranties are expressly by their terms
made only as of the Closing Date or another specified date. F.Y.I. further
represents and warrants to Agent and Lenders that (i) the execution, delivery
and performance of this Amendment and any and all other Loan Documents executed
and/or delivered in connection herewith have been authorized by all requisite
corporate action on the part of F.Y.I. and will not violate the articles of
incorporation or bylaws of F.Y.I., (ii) no Event of Default has occurred and is
continuing and no event or condition has occurred that with the giving of notice
or lapse of time or both would be an Event of Default, and (iii) F.Y.I. is in
full compliance with all covenants and agreements contained in the Credit
Agreement as amended hereby.
8. Costs. F.Y.I. agrees to pay all costs incurred in connection with
the negotiation, preparation, execution and consummation of this Amendment and
the transactions preceding and contemplated by this Amendment including, without
limitation, the fees and expenses of counsel to the Agent and the Lenders.
9. Miscellaneous.
(a) Headings. Section headings are for reference only, and
shall not affect the interpretation or meaning of any provision of this
Amendment.
(b) No Waiver. No failure on the part of the Agent or the
Lenders to exercise, and no delay in exercising, and no course of
dealing with respect to, any right, power, or
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privilege under the Loan Documents shall operate as a waiver thereof,
and no single or partial exercise of any right, power, or privilege
under the Loan Documents shall preclude any other or further exercise
thereof or the exercise of any other right, power, or privilege.
(c) Effect of this Amendment. The Credit Agreement, as amended
by this Amendment, shall remain in full force and effect except that
any reference therein, or in any other Loan Document, referring to the
Credit Agreement, shall be deemed to refer to the Credit Agreement, as
amended by this Amendment.
(d) Governing Law. EXCEPT TO THE EXTENT THAT THE CREDIT
AGREEMENT EXPRESSLY PROVIDES OTHERWISE, THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
TEXAS.
(e) Counterparts. This Amendment may be executed by the
different parties hereto on separate counterparts, each of which, when
so executed, shall be deemed an original, but all such counterparts
shall constitute but one and the same Amendment.
(f) NO ORAL AGREEMENTS. THE CREDIT AGREEMENT, AS AMENDED BY
THIS AMENDMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS, REPRESENTS THE
ENTIRE AGREEMENT AMONG THE PARTIES, AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized officers as of the date first above
written.
F.Y.I.:
F.Y.I. INCORPORATED
By: /s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx
Executive Vice President
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LENDERS:
BANQUE PARIBAS, as Agent and a Lender
Commitment:
$25,000,000.00
By: /s/ XXXXX X. XXXX, III
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Name: Xxxxx X. Xxxx, III
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Title: Director
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By: /s/ XXXXXXXX XXXXXXXX
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Name: Xxxxxxxx Xxxxxxxx
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Title: Vice President
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BANK OF AMERICA TEXAS, N.A., as Co-Agent
and a Lender
Commitment:
$25,000,000.00
By: /s/ CONNOR DUFFEY
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Name: Connor Duffey
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Title: Vice President
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BANK ONE, TEXAS, N.A.
Commitment:
$15,000,000.00
By: /s/ XXXXX XXXX
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Name: Xxxxx Xxxx
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Title: Vice President
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Each Loan Party (other than F.Y.I.) hereby consents and agrees to this
Amendment and agrees that the Guaranty and the Security Agreements (if any)
executed by such Loan Party shall remain in full force and effect and shall
continue to be the legal, valid and binding obligations of such Loan Party
enforceable against such Loan Party in accordance with its respective terms.
LOAN PARTIES:
IMAGENT ACQUISITION CORP.
RESEARCHERS ACQUISITION CORP.
RECORDEX ACQUISITION CORP.
DPAS ACQUISITION CORP.
XXXXXXX ARCHIVES ACQUISITION CORP.
DELIVEREX ACQUISITION CORP.
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PERMANENT RECORDS ACQUISITION CORP.
DELIVEREX SACRAMENTO ACQUISITION CORP.
B&B (BALTIMORE-WASHINGTON) ACQUISITION CORP.
PREMIER ACQUISITION CORP.
XXXXXX X. XXXX ACQUISITION CORP.
PENINSULA RECORD MANAGEMENT, INC.
RAC (CALIFORNIA) ACQUISITION CORP.
CALIFORNIA MEDICAL RECORD SERVICE
ACQUISITION CORP.
MINNESOTA MEDICAL RECORD SERVICE
ACQUISITION CORP.
TEXAS MEDICAL RECORD SERVICE
ACQUISITION CORP.
ZIA INFORMATION ANALYSIS GROUP, INC.
CH ACQUISITION CORP.
DISC ACQUISITION CORP.
ACADIAN CONSULTANTS CORP.
ACT MEDICAL RECORD SERVICES, INC.
APS SERVICES ACQUISITION CORP.
COMPUTER CENTRAL CORPORATION
DELAWARE MAJOR ACQUISITION CORP.
INFORMATION MANAGEMENT ACQUISITION CORP.
INPUT OF TEXAS, INC.
MAVRICC MANAGEMENT SYSTEMS, INC.
MMS ESCROW AND TRANSFER AGENCY, INC.
QCS INET ACQUISITION CORP.
QUALITY COPY ACQUISITION CORP.
THE RUST CONSULTING GROUP, INC.
ZIP SHRED CANADA ACQUISITION CORP.
ASSOCIATE RECORD TECHNICIAN SERVICES
ACQUISITION CORP.
XXXXXX ASSOCIATES ACQUISITION CORP.
LIFO SYSTEMS, INC.
MEDICOPY ACQUISITION CORP.
MSS SECURITIES, INC.
ZIPSHRED, INC.
MICRO PUBLICATION SYSTEMS, INC.
By: /s/ XXXXX XXXXXXXXXX
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Xxxxx Xxxxxxxxxx, authorized officer acting on
behalf of each of the Loan Parties listed above
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