EXHIBIT 10.32
FIRST AMENDMENT
TO
MASTER AGREEMENT
This First Amendment To Master Agreement (this "Amendment") dated as of
December 20, 2002, by and among CHOICEPOINT INC., a Georgia corporation, as
Lessee and Guarantor, ATLANTIC FINANCIAL GROUP, LTD., a Texas limited
partnership, as Lessor, and SUNTRUST BANK, a Georgia state banking corporation,
as Agent, and SUNTRUST BANK, FLEET NATIONAL BANK and BNP PARIBAS, as Lenders.
W I T N E S S E T H :
WHEREAS, ChoicePoint, the Lessor, the Agent and the Lenders have
entered into that certain Master Agreement, dated as of August 29, 2001 (the
"Master Agreement") (capitalized terms used herein without definition shall have
the meanings ascribed to them in Appendix A to the Master Agreement); and
WHEREAS, the initial Credit Agreement has been replaced by a Revolving
Credit Agreement dated as of May 10, 2002 among ChoicePoint, as Borrower, the
Lenders party thereto from time to time, SunTrust Bank, as Administrative Agent,
Wachovia Bank, National Association, as Syndication Agent, and U.S. Bank
National Association and BNP Paribas, as Documentation Agents, and ChoicePoint
has requested that certain changes be made to the financial covenants in the
Master Agreement and related definitions in Appendix A to the Master Agreement
in order that they would be substantially the same as in such replacement Credit
Agreement, and the Lessor, the Agent and the Lenders are willing to so agree,
subject to the terms and conditions hereof; and
WHEREAS, the Lessee, the Lessor and the Lenders also wish to amend the
Master Agreement to reflect an increase in the Lessor's Invested Amounts;
NOW, THEREFORE, for and in consideration of the foregoing premises, the
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which hereby is acknowledged, the
parties hereby agree that the Master Agreement is hereby amended as follows:
Section 1. Modifications to Master Agreement. The parties hereto amend
the Master Agreement as follows:
1.1 Section 4.1(w) (Environmental Matters) of the Master Agreement
is hereby amended by deleting the text thereof and substituting therefor the
following:
(i) The Consolidated Companies have received no notices
of claims or potential liability under, and are in compliance with, all
applicable Environmental Laws, where such claims and liabilities under,
and failures to comply with, such statutes, regulations, rules,
ordinances, laws or licenses, would reasonably be expected to result in
penalties, fines, claims or other liabilities to the Consolidated
Companies having a Material Adverse Effect.
(ii) None of the Consolidated Companies has received any
notice of violation or notice of any action, either judicial or
administrative, from any governmental authority (whether United States
or foreign) relating to the actual or alleged violation of any
Environmental Law, including, without limitation, any notice of any
actual or alleged spill, leak, or other release of any Hazardous
Material by any Consolidated Company or its employees or agents, or as
to the existence of any contamination on any properties owned by any
Consolidated Company, where any such violation, spill, leak, release or
contamination would reasonably be expected to result in penalties,
fines, claims or other liabilities to the Consolidated Companies having
a Material Adverse Effect.
(iii) The Consolidated Companies have obtained all
necessary governmental permits, licenses and approvals which are
material to the operations conducted on their respective properties,
including without limitation, all required material permits, licenses
and approvals for (A) the emission of air pollutants or contaminants,
(B) the treatment or pretreatment and discharge of waste water or storm
water, (C) the treatment, storage, disposal or generation of hazardous
wastes, (D) the withdrawal and usage of ground water or surface water,
and (E) the disposal of solid wastes.
1.2 Section 5.1(g)(iii) (No Default/Compliance Certificate) of the
Master Agreement is hereby amended by deleting the reference to "Exhibit E" in
the fourth line thereof and substituting therefor a reference to "Exhibit J".
1.3 Section 5.1(h)(ii) (Funded Debt to Consolidated EBITDA) of the
Master Agreement is hereby amended by replacing such Section in its entirety
with the following:
(ii) Funded Debt to Consolidated EBITDA. Maintain
as of the last day of each fiscal quarter, a maximum ratio of Funded
Debt to Consolidated EBITDA, calculated for the fiscal quarter then
ended and the immediately preceding three fiscal quarters, of less than
or equal to 3.0 to 1.0.
1.4 Section 5.2(a)(xi) (Liens) of the Master Agreement is hereby
amended by deleting the phrase "fifteen percent (15%)" where it appears therein,
and substituting therefor the phrase "ten percent (10%)".
1.5 Section 5.2(c) (Mergers, Consolidations) of the Master
Agreement is hereby amended by replacing such Section in its entirety with the
following:
(C) MERGERS, CONSOLIDATIONS. Merge or consolidate with
any other Person, except that the foregoing restrictions shall not be
applicable to:
(a) mergers or consolidations of (x) any Subsidiary with
any other Subsidiary or (y) any Subsidiary with ChoicePoint;
or
(b) mergers or consolidations in which any Person engaged
in businesses in which ChoicePoint is engaged as of the
Closing Date or substantially related thereto merges or
consolidates with ChoicePoint or any of its
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Subsidiaries where the surviving corporation is ChoicePoint or
such Subsidiary; or
(c) the merger of ChoicePoint Capital Corporation into
ChoicePoint Capital, Inc.;
provided that before and after giving effect to any such merger or
consolidations and any Funded Debt incurred by ChoicePoint or such
Subsidiary in connection with such merger or consolidation, (x)
ChoicePoint is and will be in compliance with Section 5.1(h) hereof and
if the consideration paid by ChoicePoint or such Subsidiary in
connection with such merger or consolidation is greater than
$100,000,000, ChoicePoint has delivered pro forma financial covenants
calculations demonstrating such compliance, in such detail and using
such form of presentation of historical and forecasted financial
information as may be satisfactory to the Agent with copies provided to
each Funding Party (based on the projected Fixed Charges or Funded
Debt, as the case may be, for the immediately succeeding four fiscal
quarters (including Fixed Charges incurred as a result of the
incurrence of any such Funded Debt) and the historical Consolidated
EBIT (including the Consolidated EBIT of such Person)); and (y) no
other Default exists;
1.6 Section 5.2(e) (Investments, Loans, Etc.) of the Master
Agreement is hereby amended by replacing Section 5.2(e)(i) and (ii) in its
entirety with the following:
(i) Investments in the stock of Subsidiaries of
ChoicePoint and Receivables Subsidiaries existing as of the First
Amendment Date or existing as Subsidiaries of ChoicePoint immediately
prior to the making of such Investment, and Investments in the form of
loans and advances by ChoicePoint to any Subsidiary;
(ii) Investments in the stock or other assets of any other
Person that is engaged in a business permitted by Section 5.2(j)
hereof; provided, that after giving effect to such Investment and any
Funded Debt incurred by ChoicePoint or such Subsidiary in connection
with making such Investment, (x) ChoicePoint is and will be in
compliance with Section 5.1(h) hereof and if the Investment is greater
than $100,000,000, ChoicePoint has delivered pro forma financial
covenants calculations demonstrating such compliance, in such detail
and using such form of presentation of historical and forecasted
financial information as may be satisfactory to the Agent; (y) no other
Default exists (based on the projected Fixed Charges or Funded Debt, as
the case may be, for the immediately succeeding four fiscal quarters
(including Fixed Charges incurred a result of the incurrence of any
such Funded Debt) and the historical Consolidated EBIT (including the
Consolidated EBIT of such Person)); and (z) as a result of such
Investment, such Person becomes a Subsidiary of ChoicePoint.
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1.7 Section 5.2 (Negative Covenants) of the Master Agreement is
hereby amended by adding the following new paragraphs at the end thereof;
(m) Sale and Leaseback Transactions. Sell or transfer any
property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which any Consolidated
Company intends to use for substantially the same purpose as the property being
sold or transferred.
(n) Actions under Certain Documents. Without the prior written
consent of the Agent and the Required Funding Parties, modify, amend or
supplement the Asset Securitization Agreements to (i) increase the program limit
amount in excess of $175,000,000, (ii) modify any requirement of prepayment or
repayment thereunder which would shorten the final maturity or average life of
the Indebtedness outstanding thereunder or make the requirement of prepayment
more onerous, or (iii) make any covenant or event of default contained therein
more restrictive as to ChoicePoint and its Subsidiaries than the provisions of
this Master Agreement.
(o) Amendments; Payments and Prepayments of Subordinated Debt.
Amend or modify (or permit the modification or amendment of) any of the terms or
provisions of any subordinated debt of ChoicePoint or any of its Material
Subsidiaries, or cancel or forgive, make any voluntary or optional payment or
prepayment on, or redeem or acquire for value (including, without limitation, by
way of depositing with any trustee with respect thereto money or securities
before due for the purpose of paying when due) any subordinated debt of
ChoicePoint or any of its Material Subsidiaries.
1.8 Appendix A to the Master Agreement is hereby amended by adding
the following definitions of "Bond Obligations", "First Amendment Date", "Lease
Documents" and Lease Obligations" in the appropriate alphabetical order:
"BOND OBLIGATIONS" means all obligations of the Consolidated
Companies arising under or pursuant to that certain Lease Agreement
(the "Equipment Lease") dated as of December 1, 2001, by and between
Development Authority of Fulton County, as lessor of certain equipment
described therein (the "Development Authority"), and ChoicePoint, as
lessee of such equipment, and all other instruments, documents, and
agreements relating to such lease or that certain $30,000,000
Development Authority of Fulton County Taxable Industrial Development
Revenue Bond (ChoicePoint Inc. Project), Equipment Series (the "Bond"),
including, without limitation, that certain Bond Guaranty Agreement
dated as of December 31, 2001, issued by ChoicePoint, in its capacity
as guarantor (in such capacity, the "Bond Guarantor") in favor of
ChoicePoint, in its capacity as purchaser of the Bond (the "Bond
Purchaser") pursuant to which the Bond Guarantor unconditionally
guaranteed payment and performance of the debt service on the Bond for
the benefit of the Bond Purchaser (the Bond Purchaser having financed
the acquisition by the Development Authority of the equipment which was
leased to ChoicePoint), and, since ChoicePoint is the lessee, the Bond
Purchaser and the Bond Guarantor, the Bond Obligations are not required
to be classified as a liability of ChoicePoint in accordance with GAAP.
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"FIRST AMENDMENT DATE" shall mean December 20, 2002.
"LEASE DOCUMENTS" shall mean, collectively, (i) the Operative
Documents, (ii) the Existing Lease and the "Operative Documents" as
defined therein, (iii) a contemplated transaction by and among
Development Authority of Fulton County, ChoicePoint, and Lessor,
wherein, in connection with a contemplated Development Authority of
Fulton County Taxable Industrial Development Revenue Bond (ChoicePoint
Inc. Project), Building Series, which bond is currently contemplated to
be in a principal amount of approximately $52,200,000, the Leased
Property located in Alpharetta, Georgia will be transferred by Lessor
to the Development Authority of Fulton County, leased back by Lessor
and subleased by ChoicePoint from Lessor pursuant to the Lease and (iv)
all other documents, instruments and agreements executed in connection
therewith.
"LEASE OBLIGATIONS" shall mean the obligations of ChoicePoint
under the Lease Documents in an aggregate amount not to exceed
$77,000,000, as such amount may be increased with the consent of the
Funding Parties and in accordance with Section 7.12 of the Credit
Agreement.
1.9 Appendix A to the Master Agreement is further hereby amended
by replacing the definitions of "Asset Securitization", "Credit Agreement,"
"Funded Debt" and "Indebtedness" in their entirety with the following:
"ASSET SECURITIZATION" means the asset securitization program
entered into by the Receivable Subsidiaries and Three Pillars Funding
Corporation.
"CREDIT AGREEMENT" means the Revolving Credit Agreement, dated
as of May 10, 2002 among ChoicePoint, as Borrower, the Lenders party
thereto from time to time, SunTrust Bank, as Administrative Agent,
Wachovia Bank, National Association, as Syndication Agent, and U.S.
Bank National Association and BNP Paribas, as Documentation Agents.
"FUNDED DEBT" means all Indebtedness for money borrowed,
Indebtedness evidenced or secured by purchase money Liens, capitalized
leases, outstandings under asset securitization vehicles, conditional
sales contracts and similar title retention debt instruments, including
any current maturities of the foregoing, which by its terms matures
less than one year from the date of any calculation thereof or which is
renewable or extendable at the option of the obligor to a date beyond
one year from such date. The calculation of Funded Debt shall include
(i) all Funded Debt of the Consolidated Companies and the Receivables
Subsidiaries, plus (ii) all Funded Debt of other Persons to the extent
guaranteed by a Consolidated Company or a Receivables Subsidiary, to
the extent supported by a letter of credit issued for the account of a
Consolidated Company or a Receivables Subsidiary, or as to which and to
the extent to which a Consolidated Company or a Receivables Subsidiary
or their respective assets otherwise have become liable for payment
thereof, plus (iii) the redemption
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amount with respect to the stock of ChoicePoint required to be redeemed
during the next succeeding twelve months at the option of the holder or
its Subsidiaries. Notwithstanding the foregoing, "Funded Debt" shall
exclude (x) the Lease Obligations in an amount not to exceed
$77,000,000 (but Lease Obligations in excess of $77,000,000 shall be
included in "Funded Debt"), and (y) all operating lease obligations.
"INDEBTEDNESS" of any Person means, without duplication (i)
all obligations of such Person which in accordance with GAAP would be
shown on the balance sheet of such Person as a liability (including,
without limitation, obligations for borrowed money and for the deferred
purchase price of property or services, and obligations evidenced by
bonds, debentures, notes or other similar instruments); (ii) all rental
obligations under leases required to be capitalized under GAAP; (iii)
all Guaranties of such Person; (iv) all obligations, contingent or
otherwise, of such Person relative to the face amount of letters of
credit, whether or not drawn, including, without limitation (but
without duplication), any Reimbursement Obligations (as defined in the
Credit Agreement), and banker's acceptances issued for the account of
such Person; (v) Indebtedness of others secured by any Lien upon
property owned by such Person, whether or not assumed; (vi) obligations
or other liabilities under currency contracts, interest rate hedging
contracts, or similar agreements or combinations thereof to the extent
required to be disclosed in such Person's financial statements in
accordance with GAAP and (vii) the Lease Obligations. Notwithstanding
the foregoing, "Indebtedness" shall exclude the Bond Obligations to the
extent not required to be classified as a liability in accordance with
GAAP.
1.10 Exhibit J attached hereto is hereby added as Exhibit J
(Compliance Certificate) to the Master Agreement.
Section 2. Commitments. Schedule 2.2 to the Master Agreement is hereby
deleted in its entirety, and Schedule 2.2 attached hereto is hereby substituted
therefor.
Section 2.2(b) of the Master Agreement is hereby amended by deleting
the number "3.5%" where it appears therein, and substituting therefor the number
"5.0%".
On such date as shall mutually be agreed to by ChoicePoint and the
Agent, Lessor shall make a payment to the Agent, for the benefit of the Lenders,
in an amount such that, after giving effect to such payment, the Lessor's
Commitment shall have been fully funded and the outstanding A Loans and B Loans
of each Lender shall be as set forth on Schedule 2.2 and any further fundings of
Funded Amounts shall be made by the Lenders pro rata in proportion to their
respective unused Commitments.
Section 3. Representations and Warranties. ChoicePoint represents and
warrants to each of the other parties hereto that each of the representations
and warranties of ChoicePoint contained in the Master Agreement and in each
other Operative Document is true and correct in all material respects on the
Effective Date, with the same effect as though made on and as of the Effective
Date and, for purposes of this Section, all references in such representations
and
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warranties to the "Operative Documents" shall be deemed to include this
Amendment (except to the extent such representations and warranties expressly
refer to an earlier date, in which case they shall be true and correct as of
such earlier date).
Section 4. Effectiveness. Subject to the execution and delivery of this
Amendment by all parties hereto, this Amendment shall be deemed effective on the
date set forth in the preamble to this Amendment (the "Effective Date").
Section 5. GOVERNING LAW. THIS AMENDMENT HAS BEEN DELIVERED IN, AND
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF GEORGIA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
Section 6. References. All references to the words "Master Agreement"
shall hereinafter refer to the Master Agreement as amended by this Amendment.
Section 7. Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
executed counterpart constituting an original but all together one agreement.
(signatures on following page)
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Master Agreement to be duly executed by their respective officers thereunto
duly authorized as of the date and year first above written.
CHOICEPOINT INC.,
as Lessee and Guarantor
By: /s/ David E. Trine
Name Printed: David E. Trine
Title: Treasurer
Attest: /s/ Mary M. Young
Name Printed: Mary M. Young
Title: Assistant Corporate Secretary
S-1
ATLANTIC FINANCIAL GROUP, LTD, as Lessor
By: Atlantic Financial Managers, Inc., its
General Partner
By: /s/ Stephen Brookshire
Name Printed: Stephen Brookshire
Title: President
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SUNTRUST BANK, as Agent and a Lender
By: /s/ Daniel S. Komitor
Name Printed: Daniel S. Komitor
Title: Director
S-3
FLEET NATIONAL BANK, as a Lender
By: /s/ John B. Desmond
Name Printed: John B. Desmond
Title: Director
S-4
BNP PARIBAS, as a Lender
By: /s/ John Stacy
Name Printed: John Stacy
Title: Managing Director
By: /s/ Lloyd G. Cox
Name Printed: Lloyd G. Cox
Title: Managing Director
S-5