1
EXHIBIT 10.32
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 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
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT Page 1
2
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.
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT Page 2
3
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 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
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT Page 3
4
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 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
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT Page 4
5
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
-----------------------------
Xxxxx Xxxxxxxxxx
Executive Vice President
LENDERS:
BANQUE PARIBAS, as Agent and a Lender
Commitment:
$25,000,000.00
By:/s/ XXXXX X. XXXX III
--------------------------------
Name: Xxxxx X. Xxxx III
------------------------------
Title: Director
-----------------------------
By:/s/ XXXXXXXX XXXXXXXX
--------------------------------
Name: Xxxxxxxx Xxxxxxxx
------------------------------
Title: Vice President
-----------------------------
BANK OF AMERICA TEXAS, N.A., as
Co-Agent and a Lender
Commitment:
$25,000,000.00
By:/s/ XXXXXX XXXXXX
--------------------------------
Name: Xxxxxx Xxxxxx
------------------------------
Title: Vice President
-----------------------------
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT Page 5
6
BANK ONE, TEXAS, N.A.
Commitment:
$15,000,000.00
By:/s/ XXXXX XXXX
--------------------------------
Name: Xxxxx Xxxx
------------------------------
Title: Vice President
-----------------------------
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.
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.
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT Page 6
7
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.
MMS SECURITIES, INC.
ZIPSHRED,INC.
MICRO PUBLICATION SYSTEMS, INC.
By:/s/ XXXXX XXXXXXXXXX
-------------------------------------
Xxxxx Xxxxxxxxxx, authorized
officer acting on behalf of each of
the Loan Parties listed above
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT Page 7
