EXHIBIT 10.26
FOURTH AMENDMENT
TO
MASTER AGREEMENT
This Fourth Amendment To Master Agreement (this "Amendment") dated as of
February 16, 2005, by and among CHOICEPOINT INC., a Georgia corporation, as
Lessee and Guarantor, SUNTRUST BANKS, INC., a Georgia corporation, as Lessor,
and SUNTRUST BANK (formerly known as SunTrust Bank, Atlanta), a Georgia state
banking corporation, as Agent.
W I T N E S S E T H :
WHEREAS, the Lessee, the Lessor and the Agent have entered into that
certain Master Agreement, dated as of July 31, 1997, as amended by Amendment to
Master Agreement dated as of September __, 1998, Second Amendment to Master
Agreement dated as of December 30, 1999 and Third Amendment to Master Agreement
dated as of December 20, 2002 (as so amended, 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Agreement has been replaced by a Revolving Credit Agreement dated as of December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, the Lessee, 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 Lessee 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, 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 the Lessee 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 Lessee (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 Lessee'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 Lessee's previous fiscal
year, all in reasonable detail and accompanied by a certification by
the chief financial officer of Lessee 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 Lessee'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.
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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 the Lessee or such
Subsidiary in connection with such merger or consolidation, (x) the Lessee
is and will be in compliance with Section 5.1(h) hereof and if the
consideration paid by the Lessee or such Subsidiary in connection with
such merger or consolidation is greater than $125,000,000, the Lessee 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 Lessee or such Subsidiary in connection with making such
Investment, (x) the Lessee is and will be in compliance with Section
5.1(h) hereof and if the Investment is greater than $125,000,000, the
Lessee 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 the Lessee.
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.
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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 Fourth Amendment Date, which 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 Fourth 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 "Fourth Amendment Date" as follows:
"Fourth Amendment Date" mean February 16, 2005.
1.8 Appendix A to the Master Agreement is further hereby amended by
replacing the definitions of "Consolidated Interest Expense" and "Credit
Agreement" in their entirety with the following:
"Consolidated Interest Expense" means, for any fiscal period of the
Lessee, 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, the
Lessee, as Parent (and a Guarantor), the Lenders party thereto from time
to time, Wachovia Bank, National Association, as Administrative Agent,
SunTrust Bank,
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as Syndication Agent, and BNP Paribas, as Documentation Agent, and the
Lessee, as amended by the First Amendment to Revolving Credit Agreement
dated as of February 16, 2005.
1.9 Exhibit E attached hereto hereby replaces Exhibit E (Compliance
Certificate) to the Master Agreement.
Section 2. Representations and Warranties. The Lessee represents and
warrants to each of the other parties hereto that each of the representations
and warranties of the Lessee 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 Third 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 Secretary
[CORPORATE SEAL]
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SUNTRUST BANKS, INC.,
as Lessor
By: /s/ R. Todd Shutley
-------------------------
Name Printed: R. Todd Shutley
Title: Vice President
SUNTRUST BANK,
as Agent
By: /s/ Bradley J. Staples
----------------------------
Name Printed: Bradley J. Staples
Title: Managing Director
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