EX-10.32 FIRST AMENDMENT TO MASTER AGREEMENT

EX-10.32 9 g81483exv10w32.txt EX-10.32 FIRST AMENDMENT TO MASTER AGREEMENT 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the meanings ascribed to them in Appendix A to the Master Agreement); and WHEREAS, the initial Credit Agreement has been replaced by a Revolving Credit Agreement dated as of May 10, 2002 among ChoicePoint, as Borrower, the Lenders party thereto from time to time, SunTrust Bank, as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 2 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. 3 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. 4 "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 5 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 6 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) 7 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 S-2 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