FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"AMENDMENT") is entered into to be effective as of April 28, 2000, 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 (the
"AGENT"), and Bank of America, 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 certain of the Lenders
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, a Second Amendment thereto dated as of April 13, 1999, a Third
Amendment thereto dated August 13, 1999, and a Fourth Amendment dated as of
November 10, 1999, 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 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 THE COMMITMENT. Effective as of the date
hereof, the aggregate principal amount of the Commitments is increased from
$150,000,000 to $175,000,000. 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 after giving effect to this
Amendment..
3. DEFINITIONS.
(a) Effective as of the date hereof, the following definition
appearing in SECTION 1.1 of the Credit Agreement is hereby amended to
read in its entirety as follows:
"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 Fifth 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
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 1
"COMMITMENTS" means such obligations of all Lenders. As of
the date of the execution of the Fifth Amendment to this
Agreement, the aggregate principal amount of the
Commitments is $175,000,000.
(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 its proper alphabetical order and to
read in its entirety as follows:
"FIFTH AMENDMENT" means the Fifth Amendment to this
Agreement dated as of April 28, 2000.
4. CONDITIONS PRECEDENT. This Amendment shall be effective
upon the occurrence of each of the following:
(a) FIFTH 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 F.Y.I. 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. New Notes duly completed and executed by
F.Y.I. and payable, respectively, to the order of each Lender whose
Commitment is increased hereby in the principal amount of such
Lender's Commitment after giving effect to this Amendment;.
(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) 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;
(g) OPINIONS OF COUNSEL. A favorable opinion of Xxxxx
Liddell & Xxxx LLP, counsel for the Loan Parties, in form and
substance satisfactory to the Agent with respect to F.Y.I. and its
Subsidiaries;
(h) LENDER COMMITMENT FEES. F.Y.I. shall have paid all
fees and expenses to Agent on behalf of, respectively, each Lender
whose Commitment is increased hereby as set forth in that certain
fee letter dated as of April 28, 2000, between Agent and F.Y.I.; and
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 2
(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.
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 to permit the Agent to
distribute a copy of the same to each Lender.
5. REPRESENTATION AND WARRANTIES. F.Y.I. represents and warrants
to the Agent and each Lender that:
(a) 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; and
(b) the Total Debt to EBITDA Ratio computed as of and
for the twelve calendar month period most recently ended is equal to
or less than 2.00 to 1.00.
6. 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.
7. 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
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 3
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.
(Remainder of page intentionally left blank)
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 4
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
$35,000,000
By: /s/ Xxxxx X. Xxxx, III
------------------------------
Name: Xxxxx X. Xxxx III
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
Commitment: BANK OF AMERICA, N.A.,
$35,000,000 as Co-Agent and a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
Commitment: BANK ONE, TEXAS, N.A.,
$35,000,000 as Co-Agent and a Lender
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
Commitment: TEXAS CAPITAL BANK,
$10,000,000 NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Senior Vice President
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 5
Commitment: XXXXX FARGO BANK TEXAS,
$35,000,000 NATIONAL ASSOCIATION, successor by
consolidation to Xxxxx Fargo Bank
(Texas), National Association, as a
Lender
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
Commitment: SUNTRUST BANK, ATLANTA,
$25,000,000 as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 6
Each of the undersigned hereby consents and agrees to this
Amendment, and each of the undersigned 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 and agrees that the "Obligations," as
defined in the Credit Agreement, shall include all indebtedness under the
Credit Agreement, as amended hereby, including, without limitation, the
indebtedness evidenced by the new Notes executed pursuant hereto.
LOAN PARTIES:
APS SERVICES ACQUISITION CORP.
ACADIAN CONSULTANTS CORP.
ADVANCED DIGITAL GRAPHICS, INC.
AMERICAN ECONOMICS GROUP ACQUISITION CORP.
AMERICAN ECONOMICS GROUP, INC.
ASSOCIATE RECORD TECHNICIAN SERVICES ACQUISITION CORP.
B&B (BALTIMORE-WASHINGTON) ACQUISITION CORP.
BANKNOTE PRINTING COMPANY
CH ACQUISITION CORP.
CALIFORNIA MEDICAL RECORD SERVICE ACQUISITION CORP.
COPYRIGHT ACQUISITION CORP.
COPYRIGHT INC.
CREATIVE MAILINGS, INC.
DATA ENTRY & INFORMATIONAL SERVICES ACQUISITION CORP.
DATA ENTRY & INFORMATIONAL SERVICES, INC.
DPAS ACQUISITION CORP.
XXXXXX ASSOCIATES ACQUISITION CORP.
DELIVEREX ACQUISITION CORP. (successor in interest by merger to Deliverex
Sacramento Acquisition Corp.)
DELIVEREX SACRAMENTO ACQUISITION CORP.
DISC ACQUISITION CORP.
DOCTEX ACQUISITION CORP.
EAGLE LEGAL SERVICES ACQUISITION CORP.
ECONOMIC RESEARCH SERVICES, INC.
EXIGENT COMPUTER GROUP ACQUISITION CORP.
EXIGENT COMPUTER GROUP, INC.
F.Y.I. CORPORATE ACQUISITION CORP.
F.Y.I. DIRECT INC.
F.Y.I. DISCOVERY SERVICES INCORPORATED (formerly known as Xxxxxx X. Xxxx
Acquisition Corp. and successor in interest by merger to Delaware Major
Acquisition Corp.)
F.Y.I. ETRIEVE INCORPORATED
F.Y.I. HEALTHSERVE INCORPORATED
F.Y.I. IMAGE INC.
F.Y.I. INPUT INC.
F.Y.I. INTEGRATION SOLUTIONS INC.
F.Y.I. LEGAL INCORPORATED
F.Y.I. PRINT INC.
F.Y.I. RECORDS INC.
F.Y.I. STORAGE INC.
F.Y.I. INVESTMENTS, INC.
GLOBAL DIRECT ACQUISITION CORP.
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 7
GLOBAL DIRECT, INC.
HEALTHSERVE V.C. CORP.
IMAGENT ACQUISITION CORP.
IMC MANAGEMENT, INC.
INFORMATION MANAGEMENT SERVICES ACQUISITION CORP.
INFORMATION MANAGEMENT SERVICES, INC.
INPUT MANAGEMENT, INC.
LIFO MANAGEMENT, INC.
XXXXXXX ARCHIVES ACQUISITION CORP.
MAILING AND MARKETING ACQUISITION CORP.
MANAGED CARE PROFESSIONALS ACQUISITION CORP.
MANAGED CARE PROFESSIONALS, INC.
MAVRICC MANAGEMENT SYSTEMS, INC.
MMS ESCROW AND TRANSFER AGENCY, INC.
MMS SECURITIES, INC.
MEDICOPY ACQUISITION CORP.
MICRO PUBLICATION SYSTEMS, INC.
MICROFILM DISTRIBUTION SERVICES, INC.
MICROFILMING SERVICES, INC.
MINNESOTA MEDICAL RECORD SERVICE ACQUISITION CORP.
NBDE ACQISITON CORP.
NORTHERN MINNESOTA MEDICAL RECORD SERVICES ACQUISITION CORP.
PENINSULA RECORD MANAGEMENT, INC.
PERMANENT RECORDS MANAGEMENT, INC.
PMI IMAGING SYSTEMS ACQUISITION CORP.
PMI IMAGING SYSTEMS, INC.
PREMIER ACQUISITION CORP.
QUALITY DATA CONVERSIONS ACQUISITION CORP.
QUALITY DATA CONVERSIONS, INC.
QCS INET ACQUISITION CORP.
QUALITY COPY ACQUISITION CORP.
RAC (CALIFORNIA) ACQUISITION CORP.
RESEARCHERS ACQUISITION CORP.
RECORDEX ACQUISITION CORP.
RUST CONSULTING ACQUISITION CORP.
RUST CONSULTING, INC.
TAPS ACQUISITION CORP.
T.C.H. GROUP, INC.
TCH MAILHOUSE, INC.
THE RUST CONSULTING GROUP, INC.
ZIA INFORMATION ANALYSIS GROUP, INC. (formerly known as ZIA ACQUISITION CORP.)
ZIP SHRED CANADA ACQUISITION CORP.
ZIPSHRED, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx, Authorized Officer for each of the corporations above
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 8
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
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
IMC, L.P.
By: IMC Management, Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx, Vice President
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT - Page 9
