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EXHIBIT 10.32
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (the "Fifth Amendment") is
entered into to be effective as of January 1, 1998, by and among F.Y.I.
Incorporated, a Delaware corporation ("F.Y.I."), Imagent Acquisition Corp., a
Delaware corporation ("Imagent"), Researchers Acquisition Corp., a Delaware
corporation ("Researchers"), Recordex Acquisition Corp., a Delaware corporation
("Recordex"), DPAS Acquisition Corp., a Delaware corporation ("DPAS"), Xxxxxxx
Archives Acquisition Corp., a Delaware corporation ("Xxxxxxx"), Deliverex
Acquisition Corp., a Delaware corporation ("Deliverex"), Permanent Records
Acquisition Corp., a Delaware corporation ("Permanent"), Deliverex Sacramento
Acquisition Corp., a Delaware corporation ("Sacramento"), (F.Y.I., Imagent,
Researchers, Recordex, DPAS, Xxxxxxx, Deliverex, Permanent and Sacramento are
collectively referred to as the "Original Borrowers"), B&B (Baltimore-
Washington) Acquisition Corp., a Delaware corporation ("B&B"), Premier
Acquisition Corp., a Delaware corporation ("Premier"), Xxxxxx X. Xxxx
Acquisition Corp., a Delaware corporation ("Xxxx"), Peninsula Record
Management, Inc., a California corporation ("Peninsula"), RAC (California)
Acquisition Corp., a Delaware corporation ("RAC"), California Medical Record
Service Acquisition Corp., a Delaware corporation ("California Medical"),
Minnesota Medical Record Service Acquisition Corp., a Delaware corporation
("Minnesota Medical"), Texas Medical Record Service Acquisition Corp., a
Delaware corporation ("Texas Medical"), ZIA Information Analysis Group, Inc.,
formerly known as ZIA Acquisition Corp., a Delaware corporation ("Zia"), CH
Acquisition Corp., a Delaware Corporation ("CH") and DISC Acquisition Corp., a
Delaware corporation ("DISC") (B&B, Premier, Xxxx, Peninsula, RAC, California
Medical, Minnesota Medical, Texas Medical, Zia, CH and DISC are referred to
collectively as the "New Borrowers") (the Original Borrowers and the New
Borrowers are referred to collectively as the "Borrowers"), Banque Paribas, a
bank organized under the laws of the Republic of France, as Agent (the
"Agent"), and the Lenders (as such term is defined in the Credit Agreement, as
hereinafter defined) which are parties hereto.
RECITALS
A. The Original Borrowers, the Agent and the Lenders entered into
that certain Credit Agreement dated as of April 18, 1996 (the "Original Credit
Agreement"), pursuant to which, among other things, the Lenders agreed to make
certain loans available to the Original Borrowers upon the terms and conditions
set forth therein;
B. The Borrowers, certain of the New Borrowers, the Agent and the
Lenders entered into that certain First Amendment to Credit Agreement dated as
of June 26, 1996, that certain Second Amendment to Credit Agreement dated as of
August 30, 1996, that certain Third Amendment to Credit Agreement dated as of
December 18, 1996 and that certain Fourth Amendment to Credit Agreement dated
as of November 21, 1997 (the Original Credit
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Agreement, as amended, is hereinafter referred to as the "Credit Agreement").
C. FYI hopes to enter into a new credit facility (the "New Credit
Facility") by and among the Borrowers, the Agent and certain other financial
institutions.
D. F.Y.I. and the other Borrowers have requested the Lenders to
issue a $10,000,000 irrevocable letter of credit (the "Letter of Credit") for
the benefit of the New York State Workers' Compensation Board.
E. The $10,000,000 Letter of Credit must be issued before the New
Credit Facility, if any, is closed.
F. The Agent and the Lenders desire to accommodate the request of
F.Y.I. and the other Borrowers to issue the Letter of Credit under the Credit
Agreement and to otherwise 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, the Borrowers, 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
Fifth Amendment.
2. Amendment to Section 2.14. Effective as of the date hereof,
the limitations on the aggregate amount of outstanding Letter of Credit
Liabilities permitted under the Revolving Credit Loan Commitments and the Term
Loan Commitments shall be amended and modified to $2,157,136.90 and
$11,242,863.10, respectively, and the aggregate amount of Letter of Credit
Liabilities permitted under the Credit Agreement shall not exceed $13,400,000.
Without the express written consent of all Lenders, no other Letters of Credit
may be issued under the Credit Agreement.
3. Issuance of Letter of Credit in favor of New York State
Workers' Compensation Board. Effective as of the date hereof, the Lenders
authorize the Agent to issue the Letter of Credit in the face amount of
$10,000,000 to New York State Workers' Compensation Board for the account of
F.Y.I. under the Credit Agreement.
4. New Credit Facility. The Agent and the Borrowers agree that
the Letter of Credit will be deemed part of the "Obligations" under the Credit
Agreement and will also be deemed to be part of the "Obligations" under the New
Credit Facility if and when the New
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Credit Facility is closed.
5. Prepayment and Reduction of Commitments. If the New Credit
Facility does not close or become effective on or before February 28, 1998, (a)
the Borrowers shall be required to prepay $10,000,000 on the Term Loans on
January 31, 1999; and such prepayment shall be applied in inverse order of
maturity, (b) the Term Loan Commitments shall be permanently reduced by
$10,000,000 and (c) the Borrowers shall immediately grant to Agent for the
benefit of the Lenders a first and prior lien and security interest in
$10,000,000 cash.
6. Representations and Warranties. The representations and
warranties made by the Borrowers in the Loan Documents, as the same are amended
hereby, are true and correct at the time this Fifth 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.
7. Costs. The Borrowers jointly and severally agree to pay all
costs incurred in connection with the negotiation, preparation, execution and
consummation of this Fifth Amendment and the transactions preceding and
contemplated by this Fifth Amendment including, without limitation, the fees
and expenses of counsel to the Agent and the Lenders.
8. Miscellaneous.
(a) Headings. Section headings are for reference only,
and shall not affect the interpretation or meaning of any provision of
this Fifth 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 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 Fifth Amendment. The Credit
Agreement, as amended by this Fifth 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 Fifth Amendment.
(d) Governing Law. EXCEPT TO THE EXTENT THAT THE CREDIT
AGREEMENT EXPRESSLY PROVIDES OTHERWISE, THIS THIRD AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF TEXAS.
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(e) Counterparts. This Fifth 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 Fifth Amendment.
(f) NO ORAL AGREEMENTS. THE CREDIT AGREEMENT, AS AMENDED
BY THIS FIFTH 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 Fifth
Amendment to be executed by their respective duly authorized officers as of the
date first above written.
BORROWERS:
F.Y.I. INCORPORATED
By: /s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx
Executive Vice President
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IMAGENT ACQUISITION CORP.
RESEARCHERS ACQUISITION CORP.
RECORDEX ACQUISITION CORP.
DPAS ACQUISITION CORP.
XXXXXXX ARCHIVES ACQUISITION CORP.
DELIVEREX ACQUISITION CORP.
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.
By: /s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx
Executive Vice President,
acting on behalf of each of
the above
LENDERS:
BANQUE PARIBAS, as Agent and as a Lender
By: /s/ Xxxxx X. Xxxx, III
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Name: Xxxxx X. Xxxx, III
Title: Director
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FIRST SOURCE FINANCIAL LLP
By: FIRST SOURCE FINANCIAL, INC., its
Agent/Manager
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President
IBJ XXXXXXXX BANK & TRUST COMPANY
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Director
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