1
EXHIBIT 10.49
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is entered into to be effective as of April 13, 1999, 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, Paribas, a bank organized under the laws of France acting
through its Chicago Branch, as agent for itself and the other Lenders (formerly
"Banque Paribas," the "Agent"), and NationsBank, N.A., dba Bank of America,
National Association, successor by merger to Bank of America, Texas, N.A., and
Bank One, Texas, N.A., as co-agents for themselves and the other Lenders (the
"Co-Agents").
RECITALS
A. F.Y.I., the Agent, the Co-Agents and the Lenders (other than Texas
Capital Bank, National Association) entered into that certain Amended and
Restated Credit Agreement dated as of February 17, 1998 (as amended by a First
Amendment thereto dated as of August 3, 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, the Co-Agents and the Lenders desire to amend
the Credit Agreement to increase the aggregate principal amount of the
Commitments, to add Texas Capital Bank, National Association as a Lender, to
adjust the pricing grid and in certain other 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, the Agent and the Co-Agents 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 $65,000,000 to
$100,000,000. 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, or, in the case of Texas Capital
Bank, as first established hereby.
3. Definitions.
(a) Effective as of the date hereof, the following definitions
appearing in Section 1.1 of the Credit Agreement are hereby amended to
read in their entirety as follows:
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 1
2
"Applicable Margin" means, with respect to any period and with
respect to Prime Rate Loans, Eurodollar Loans and the Commitment
Fees, the percentage set forth in the table below that corresponds
to the ratio of (a) Total Debt as of the date of the relevant
financial statements referred to below to (b) EBITDA for the four
fiscal quarters of F.Y.I. then most recently ended as of the date
of such financial statements, calculated in accordance with Section
1.4:
Applicable Margins
for
Total Debt to Eurodollar Prime Commitment
EBITDA Ratio Loans Rate Loans Fee
>= 2.50 to 1.00 1.75% 0% 0.375%
>= 2.00 to 1.00 and < 2.50 to 1.00 1.25% 0% 0.250%
>= 1.50 to 1.00 and < 2.00 to 1.00 1.00% 0% 0.250%
< 1.50 to 1.00 0.75% 0% 0.250%
For purposes hereof and notwithstanding the preceding sentence, the
Applicable Margin for the period from the date of the execution of
the Second Amendment to this Agreement to the first Calculation
Date thereafter shall be deemed to be 0.75% for Eurodollar Loans,
0% for Prime Rate Loans and 0.250% for Commitment Fees and shall
thereafter be calculated on each Calculation Date based upon the
preceding table and the financial statements delivered by F.Y.I.
pursuant to Section 8.1(b) and the certificate delivered by F.Y.I.
pursuant to Section 8.1(c); provided, that if F.Y.I. fails to
deliver to the Agent such financial statements or certificate on or
before the relevant Calculation Date, the Applicable Margin shall
be deemed to be the percentage reflected in the preceding table as
if the ratio of Total Debt to EBITDA were greater than 2.50 to 1.00
until the date such statements and certificate are received by the
Agent, after which the Applicable Margin shall be determined as
otherwise provided herein.
"Commitment" means, as to any Lender, the obligation of such
Lender to make or continue Loans and incur or participate in Letter
of Credit Liabilities hereunder in an aggregate principal amount at
any one time outstanding up to but not exceeding the amount set
forth opposite the name of such Lender on the signature pages to
the Second Amendment to this Agreement under the heading
"Commitment" or, if such Lender is a party to an Assignment and
Acceptance, the amount set forth in the most recent Assignment and
Acceptance of such Lender, as the same may be reduced or terminated
pursuant to Section 2.13 or 11.2, and "Commitments" means such
obligations of all Lenders. As of the date of the execution of the
Second
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 2
3
Amendment to this Agreement, the aggregate principal amount of the
Commitments is $100,000,000.
"Fee Letter" means the letter dated as of February 17, 1998,
between F.Y.I. and the Agent, as supplemented by an amendment fee
letter dated as of March 23, 1999.
"Guaranties" means the guaranty agreements, in form and
substance satisfactory to the Agent (including, without limitation,
the Master Guaranty) executed at any time pursuant to the Prior
Agreement or this Agreement by any of the Subsidiaries of F.Y.I. or
any other Loan Party in favor of the Agent for the benefit of the
Agent and the Lenders, and any guaranty agreement executed pursuant
to Section 5.3 hereof, and any and all amendments, modifications,
supplements, renewals, extensions or restatements thereof.
"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 $25,000,000 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 date of the Second Amendment
shall not exceed $30,000,000, in total consideration (including any
Debt assumed or guaranteed in connection therewith) in any
twelve-month period without Required Lenders' approval, (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 acquired are located outside
the U.S. or Canada; provided, however, that up
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 3
4
to $10,000,000 (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.
"Required Lenders" means, at any date of determination, the
Lenders having in the aggregate at least 71% (in Dollar amount as
to any one or more of the following) of the sum of the aggregate
outstanding Commitments (or, if the Commitments have terminated or
expired, the aggregate outstanding principal amount of the Loans
and the aggregate Letter of Credit Liabilities).
(b) Effective as of the date hereof, the following additional
definitions are added to Section 1.1 of the Credit Agreement to appear
therein in their proper alphabetical order and to read in their
entirety as follows:
"Master Guaranty" means the Master Guaranty Agreement
substantially in the form of Exhibit B to the Second Amendment to
this Agreement, together with the Joinder Agreement attached
thereto pursuant to which a Subsidiary of F.Y.I. may join in as a
Guarantor as required by Section 5.3(b) of the Credit Agreement.
"Second Amendment" means the Second Amendment to this Agreement
dated as of April 13, 1999.
4. Amendment to Section 2.2(a). Effective as of the date hereof, the
first sentence of Section 2.2(a) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
The Loans made by each Lender shall be evidenced by a single
promissory note of F.Y.I. in substantially the form of Exhibit A to
the Second Amendment to this Agreement, dated the date of such
Second Amendment, payable to the order of such Lender in a
principal amount equal to its Commitment (as originally in effect
or thereafter increased) and otherwise duly completed; provided,
however, that the Swingline Advances made by Paribas shall be
evidenced by a single promissory note of F.Y.I. in the maximum
original principal amount of $1,000,000 payable to the order of
Paribas in substantially the form of Exhibit D hereto, dated the
Closing Date.
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 4
5
5. Conditions Precedent. This Amendment shall be effective upon the
occurrence of each of the following:
(a) Second Amendment. The execution of this Amendment by each of
F.Y.I., the Agent, the Co-Agents and the Lenders;
(b) Consents. The execution of a consent to this Amendment by each
of the Loan Parties other than the Borrower in the form requested by
the Agent, which, among other things, shall reaffirm the Guaranty and
Security Agreement, if any, executed by each such Loan Party;
(c) Notes. The Notes duly completed and executed by F.Y.I.
(d) Resolutions. Resolutions of the board of directors of F.Y.I.
certified by its Secretary or an Assistant Secretary or other
analogous officer or representative which authorize the execution,
delivery and performance by the Loan Parties of this Amendment and
such other Loan Documents to be executed in connection herewith to
which F.Y.I. or any other Loan Party is to be a party;
(e) Officers' Certificate. An officers' certificate of F.Y.I.
certifying as to the incumbency and signature of each officer of the
Loan Parties executing this Amendment and the other Loan Documents to
be executed in connection herewith, as to no changes to such Loan
Parties' articles or certificates of incorporation, other analogous
constitutional documents, or bylaws since the copies thereof most
recently certified and delivered to the Agent, and as to the
continuing existence and good standing of each Loan Party, such
certificate to be dated as of a current date and in form reasonably
satisfactory to the Agent and its counsel;
(f) Guaranty. A Master Guaranty executed by each existing
Subsidiary of F.Y.I. (other than MMS Securities, Inc.) in the form
attached hereto;
(g) Payment of Fees and Expenses. F.Y.I. shall have paid all fees
and expenses of or incurred by the Agent and its counsel to the extent
billed on or before the date hereof and payable pursuant to this
Amendment;
(h) Opinions of Counsel. A favorable opinion of Xxxxx Xxxxxxx &
Xxxx LLP, counsel for the Loan Parties, in form and substance
satisfactory to the Agent with respect to F.Y.I. and its Subsidiaries;
and
(i) Proceedings Satisfactory. All matters and proceedings taken in
connection with this Amendment and the other Loan Documents to be
delivered in connection herewith shall be reasonably satisfactory to
the Agent and its counsel.
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 5
6
Borrower shall deliver, or cause to be delivered, to the Agent
sufficient counterparts of each agreement, document or instrument to
be received by the Agent under this Section 4.1 to permit the Agent to
distribute a copy of the same to each Lender.
6. Representation and Warranties. F.Y.I. represents and warrants to
the Agent and each Lender that:
(a) On and as of the date hereof, the authorized Capital Stock,
share ownership and par value per share of each of the Subsidiaries of
F.Y.I. are listed on Schedule 1 hereto.
(b) All of the issued and outstanding Capital Stock of F.Y.I. and
its Subsidiaries has been validly issued and is fully paid and
nonassessable. Except as described on Schedule 1, there are no
outstanding subscriptions, options, warrants, calls or rights
(including preemptive rights) to acquire, and no outstanding
securities or instruments convertible into, Capital Stock of F.Y.I. or
any of its Subsidiaries.
(c) F.Y.I. has (i) undertaken or, in the case of recently acquired
Subsidiaries, is undertaking a detailed review and assessment of all
areas within the business and operations of it and its Subsidiaries
that could be adversely affected by the "Year 2000 Problem" (that is,
the risk that computer applications used by F.Y.I. or its Subsidiaries
may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after December
31, 1999), (ii) developed or, in the case of recently acquired
Subsidiaries, is developing a detailed plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented (except in respect of recently acquired Subsidiaries) that
plan in accordance with that timetable. F.Y.I. reasonably anticipates
that all computer applications that are material to the business and
operations of it and its Subsidiaries will on a timely basis be able
to perform properly date-sensitive functions for all dates before and
after January 1, 2000 (that is, be "Year 2000 Compliant").
(d) 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 the Agent and the 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 the other Loan Parties, as appropriate, and will
not violate the articles of incorporation or bylaws of F.Y.I. or such
other Loan Parties; (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.
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 6
7
7. Costs. F.Y.I. agrees to pay all reasonable 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 reasonable fees and expenses of
Jenkens & Xxxxxxxxx, P.C., 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
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 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
be construed as 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.
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 7
8
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/ XXXXXXX X. XXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President
LENDERS:
Commitment: PARIBAS, as Agent and a Lender
$30,000,000
By: /s/ XXXXX X.XXXX, III
---------------------------------------
Name: XXXXX X. XXXX, III
-------------------------------------
Title: MANAGING DIRECTOR
------------------------------------
By: /s/ XXXXXXXX XXXXXXXX
---------------------------------------
Name: XXXXXXXX XXXXXXXX
-------------------------------------
Title: VICE PRESIDENT
------------------------------------
Commitment: NATIONSBANK, N.A.,
$30,000,000 dba BANK OF AMERICA, NATIONAL
ASSOCIATION, successor by merger to
BANK OF AMERICA, TEXAS, N.A.,
as Co-Agent and a Lender
By: /s/ XXXX X. XXXXX
---------------------------------------
Name: XXXX X. XXXXX
-------------------------------------
Title: Vice President
------------------------------------
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 8
9
Commitment: BANK ONE, TEXAS, N.A.,
$30,000,000 as Co-Agent and a Lender
By: /s/ XXXX POINTS
---------------------------------------
Name: XXXX POINTS
-------------------------------------
Title: Vice President
------------------------------------
Commitment: TEXAS CAPITAL BANK,
$10,000,000 NATIONAL ASSOCIATION, as a Lender
By: /s/XXXXXXX HARTSHEILD
---------------------------------------
Name: XXXXXXX HARTSHEILD
-------------------------------------
Title: SVP
------------------------------------
Each Loan Party (other than Borrower) 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:
ACT MEDICAL RECORD SERVICES, INC.
APS SERVICES ACQUISITION CORP.
ACADIAN CONSULTANTS CORP.
ADVANCED DIGITAL GRAPHICS, INC.
ASSOCIATE RECORD TECHNICIAN SERVICES
ACQUISITION CORP.
B&B (BALTIMORE-WASHINGTON) ACQUISITION
CORP.
CH ACQUISITION CORP.
CALIFORNIA MEDICAL RECORD SERVICE
ACQUISITION CORP.
COMPUTER CENTRAL CORPORATION
CREATIVE MAILINGS, INC.
DPAS ACQUISITION CORP.
XXXXXX ASSOCIATES ACQUISITION CORP.
DELAWARE MAJOR ACQUISITION CORP.
DELIVEREX ACQUISITION CORP.
DELIVEREX SACRAMENTO ACQUISITION CORP.
DISC ACQUISITION CORP.
DOCTEX ACQUISITION CORP.
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 9
10
EAGLE LEGAL SERVICES ACQUISITION CORP.
ECONOMIC RESEARCH SERVICES, INC.
F.Y.I. INVESTMENTS, INC.
IMAGENT ACQUISITION CORP.
INFORMATION MANAGEMENT ACQUISITION
CORP.
INPUT MANAGEMENT, INC.
LIFO MANAGEMENT, INC.
XXXXXXX ARCHIVES ACQUISITION CORP.
MAVRICC MANAGEMENT SYSTEMS, INC.
MMS ESCROW AND TRANSFER AGENCY, INC.
MEDICOPY ACQUISITION CORP.
MICRO PUBLICATION SYSTEMS, INC.
MINNESOTA MEDICAL RECORD SERVICE
ACQUISITION CORP.
PERMANENT RECORDS MANAGEMENT, INC.
PREMIER ACQUISITION CORP.
QCS INET ACQUISITION CORP.
QUALITY COPY ACQUISITION CORP.
RAC (CALIFORNIA) ACQUISITION CORP.
RESEARCHERS ACQUISITION CORP.
XXXXXX X. XXXX ACQUISITION CORP.
RECORDEX ACQUISITION CORP.
T.C.H. GROUP, INC.
TCH MAILHOUSE, INC.
THE RUST CONSULTING GROUP, INC.
ZIA ACQUISITION CORP.
ZIP SHRED CANADA ACQUISITION CORP.
ZIPSHRED, INC.
By: /s/ XXXXXXX X. XXXXX
----------------------------------------
Xxxxxxx X. Xxxxxx, Authorized Officer for
each of the Original Guarantors
INPUT OF TEXAS, L.P. (formerly known as
Input of Texas, Inc.)
By: Input Management, Inc., its general
partner
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxx, Vice President
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 10
11
LIFO SYSTEMS, L.P. (formerly known as LIFO
Systems, Inc.)
By: LIFO Management, Inc., its general partner
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Xxxxxxx X. Xxxxxx, Vice President
PERMANENT RECORDS, L.P. (successor, by merger,
to Texas Medical Record Service
Acquisition Corp. and Permanent Records
Acquisition Corp.)
By: Permanent Records Management, Inc., its
general partner
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Xxxxxxx X. Xxxxxx, Vice President
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 11
