EXHIBIT 10.34
FIRST AMENDMENT
TO AMENDED AND RESTATED
MASTER AGREEMENT
This First Amendment To Amended and Restated Master Agreement (this
"Amendment") dated as of February 16, 2005, by and among CHOICEPOINT INC., a
Georgia corporation, as Lessee and Guarantor, SUNTRUST EQUITY FUNDING, LLC, a
Delaware limited liability company, as Lessor, 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 Amended and Restated Master Agreement, dated as of June 26,
2003 (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 "Credit Agreement" defined in Appendix A to the Master
Agreement has been replaced by a Revolving Credit Agreement dated as of December
29, 2004, as amended by First Amendment to Revolving Credit Agreement dated as
of February 16, 2005 among ChoicePoint Services, as Borrower, ChoicePoint, as
Parent (and a Guarantor), the Lenders party thereto from time to time, Wachovia
Bank, National Association, as Administrative Agent, SunTrust Bank, as
Syndication Agent, and BNP Paribas Documentation Agent, and ChoicePoint has
requested that certain changes be made to the financial and negative 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, as well as extend the Alteration Expiration Date,
and the Lessor, the Agent and the Lenders are willing to so agree, subject to
the terms and conditions hereof;
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 5.1(g)(i) and (ii) (Reporting Covenants - Annual Financial
Statements and Quarterly Financial Statements) of the Master Agreement is hereby
amended by replacing such Sections in their entirety with the following:
(i) Annual Financial Statements. To the Agent, as soon as available
and in any event within the earlier of (A) eighty (80) days after the
end of each fiscal year of ChoicePoint and (B) five (5) days after
the date of any required
public filing thereof, audited balance sheets of the Consolidated
Companies as at the end of such year, presented on a consolidated
basis, and the related statements of income, and cash flows of the
Consolidated Companies for such fiscal year, presented on a
consolidated basis, setting forth in each case in comparative form
the figures for the previous fiscal year, all in reasonable detail
and accompanied by a report thereon of the independent public
accountants of comparable recognized national standing, which such
report shall be unqualified as to going concern and scope of audit
and shall state that such financial statements present fairly in all
material respects the financial condition as at the end of such
fiscal year on a consolidated basis, and the results of operations
and statements of cash flows of the Consolidated Companies for such
fiscal year in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements
has been made in accordance with generally accepted auditing
standards;
(ii) Quarterly Financial Statements. To the Agent, as soon as
available and in any event within the earlier of (A) fifty (50) days
after the end of each fiscal quarter of ChoicePoint (other than the
fourth fiscal quarter) and (B) five (5) days after the date of any
required public filing thereof for such fiscal quarter, balance
sheets of the Consolidated Companies as at the end of such quarter
presented on a consolidated basis and the related statements of
income, shareholders' equity, and cash flows of the Consolidated
Companies for such fiscal quarter and for the portion of the
ChoicePoint's fiscal year ended at the end of such quarter, presented
on a consolidated basis setting forth in each case in comparative
form the figures for the corresponding quarter and the corresponding
portion of ChoicePoint's previous fiscal year, all in reasonable
detail and accompanied by a certification by the chief financial
officer of ChoicePoint that such financial statements fairly present
in all material respects the financial condition of the Consolidated
Companies as at the end of such fiscal quarter on a consolidated
basis, and the results of operations and statements of cash flows of
the Consolidated Companies for such fiscal quarter and such portion
of ChoicePoint's fiscal year, in accordance with GAAP consistently
applied (subject to normal year-end audit adjustments and the absence
of certain footnotes);
1.2 Section 5.1(h)(i) (Fixed Charge Coverage Ratio) of the Master
Agreement is hereby amended by replacing such Section in its entirety with the
following:
(i) Minimum Interest Coverage Ratio. Maintain as of the last day of
each fiscal quarter, a ratio of (a) Consolidated EBITDA to (b)
Consolidated Interest Expense, calculated for the fiscal quarter then
ended and the immediately preceding three fiscal quarters, equal to or
greater than 4.0 to 1.0.
1.3 Section 5.2(c) (Mergers, Consolidations) of the Master Agreement is
hereby amended by replacing the proviso at the end thereof with the following:
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
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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 $125,000,000, 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 Consolidated
Interest Expense or Funded Debt, as the case may be, for the immediately
succeeding four fiscal quarters (including Consolidated Interest Expense
incurred as a result of the incurrence of any such Funded Debt) and the
historical Consolidated EBITDA (including the Consolidated EBITDA of such
Person)); and (y) no other Default exists;
1.4 Section 5.2(e) (Investments, Loans, Etc.) of the Master Agreement is
hereby amended by replacing Section 5.2(e)(ii) in its entirety with the
following:
(ii) Investments in the stock or other assets of any other Person
that is engaged in a business permitted by Section 5.2(i) 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 $125,000,000,
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 hereunder (based on
the projected Consolidated Interest Expense or Funded Debt, as the case
may be, for the immediately succeeding four fiscal quarters (including
Consolidated Interest Expense incurred a result of the incurrence of any
such Funded Debt) and the historical Consolidated EBITDA (including the
Consolidated EBITDA of such Person)); and (z) as a result of such
Investment, such Person becomes a Subsidiary of ChoicePoint.
1.5 Section 5.2(h) (Additional Negative Pledges) of the Master Agreement
is hereby amended by replacing it in its entirety with the following:
(h) Additional Negative Pledges. Create or otherwise cause or suffer
to exist or become effective, directly or indirectly, any prohibition or
restriction on the creation or existence of any Lien upon any asset of any
Consolidated Company, other than the prohibitions and restrictions
contained in this Master Agreement, unless such asset is subject to a
Permitted Lien and such prohibition or restriction is limited to such
asset.
1.6 Section 5.2(i) (Changes in Business) of the Master Agreement is hereby
amended by replacing it in its entirety with the following:
(i) Changes in Business. Enter into any business which is substantially
different from that presently conducted by the Consolidated Companies as of
First Amendment Date, which
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includes providing risk management and fraud prevention information and related
technology solutions to the property and casualty insurance industry, life and
health insurance industry and other industries, (including, without limitation,
(1) providing automated and traditional underwriting and claim information
services to assist U.S. insurance companies in assessing the insurability of
individuals and property and the validity of insurance claims, (2) providing
background investigations, (3) performing paramedical exams, (4) furnishing
access to motor vehicles reports, (5) maintaining a database of claims
histories, (6) providing claim verification and investigative services to both
the property and casualty and the life and health insurance markets, (7)
providing pre-employment background investigations, pre-employment and
regulatory compliance drug testing services and public record information to
other corporate and government organizations and (8) DNA and other forensic
testing service, unless such business is a strategic extension of the business
of the Consolidated Companies as of the First Amendment Date.
1.7 Appendix A to the Master Agreement is hereby amended by (i) deleting
the definitions of "Consolidated EBITR", "Consolidated Fixed Charges",
"Consolidated Rental Expense and "Fixed Charge Coverage Ratio and (ii) adding a
definition of "First Amendment Date" as follows:
"First Amendment Date" mean February 16, 2005.
1.8 Appendix A to the Master Agreement is further hereby amended by
replacing the definitions of "Alteration Expiration Date", "Consolidated
Interest Expense" and "Credit Agreement" in their entirety with the following:
"Alteration Expiration Date means June 30, 2005.
"Consolidated Interest Expense" means, for any fiscal period of
ChoicePoint, total interest expense of the Consolidated Companies and the
Receivables Subsidiaries (including, without limitation, interest expense
attributable to capitalized leases, all net payment obligations pursuant
to swap agreements (as defined in 11 U.S.C. Section 101), all commissions,
discounts and other fees and charges owed with respect to bankers
acceptance financing, and total interest expense (whether shown as
interest expense or as loss and expenses on sale of receivables) under a
receivables purchase facility (including, without limitation, the Asset
Securitization)) determined on a consolidated basis in accordance with
GAAP.
"Credit Agreement" means the Revolving Credit Agreement dated as of
December 29, 2004, among ChoicePoint Services, Inc., as Borrower,
ChoicePoint, as Parent (and a Guarantor), the Lenders party thereto from
time to time, Wachovia Bank, National Association, as Administrative
Agent, SunTrust Bank, as Syndication Agent, and BNP Paribas, as
Documentation Agent, and ChoicePoint, as amended by the First Amendment to
Revolving Credit Agreement dated as of February 16, 2005.
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1.9 Exhibit J attached hereto hereby replaces Exhibit J (Compliance
Certificate) to the Master Agreement.
Section 2. 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 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 3. 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 4. 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 5. References. All references to the words "Master Agreement"
shall hereinafter refer to the Master Agreement as amended by this Amendment.
Section 6. 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
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Name Printed: Mary M. Young
Title: Assistant Secretary
SUNTRUST EQUITY FUNDING, LLC, as
By: /s/ R. Todd Shutley
---------------------------------
Name Printed: R. Todd Shutley
Title: Sr. Vice President & Manager
SUNTRUST BANK, as Agent and a Lender
By: /s/ Bradley J. Staples
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Name Printed: Bradley J. Staples
Title: Managing Director
FLEET NATIONAL BANK, as a Lender
By: /s/ John B. Desmond
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Name Printed: John B. Desmond
Title: Director
BNP PARIBAS, as a Lender
By: /s/ Barry Mendelsohn
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Name Printed: Barry Mendelsohn
Title: Director