EXHIBIT 10.24
THIRD AMENDMENT
TO
MASTER AGREEMENT
This Third Amendment To Master Agreement (this "Amendment") dated as of
December 20, 2002, 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, 19 97, as amended by Amendment to
Master Agreement dated as of September 30, 1998 and Second Amendment to Master
Agreement dated as of December 30, 1999 (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 Lessee and certain of its affiliates has entered into a
$100,000,000 asset securitization program and the original revolving credit
agreement of the Lessee has been replaced by a Revolving Credit Agreement dated
as of May 10, 2002 among the Lessee, 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 the Lessee has requested that certain
changes be made to the financial and certain other covenants in the Master
Agreement and related definitions in Appendix A to the Master Agreement in order
that they would reflect the existence of such asset securitization and that such
covenants be substantially the same as in such replacement Revolving Credit
Agreement, 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 4.1(w) (Environmental Matters) of the Master Agreement
is hereby amended by deleting the text thereof and substituting therefor the
following:
(a) 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.
(b) 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.
(c) 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(h) (Financial Covenants) of the Master Agreement
is hereby amended by replacing such Section in its entirety with the following:
(h) Financial Covenants.
(i) Fixed Charge Coverage Ratio. Maintain as of
the last day of each fiscal quarter, a Fixed
Charge Coverage Ratio, calculated for the fiscal quarter then
ended and the immediately preceding three fiscal quarters,
equal to or greater than 2.5 to 1.0.
(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.
1.3 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%)".
1.4 Section 5.2(c) (Mergers, Consolidations) of the Master
Agreement is hereby amended by replacing such Section in its entirety with the
following:
(a) Mergers, Consolidations. Merge or consolidate with
any other Person, except that the foregoing restrictions shall not be
applicable to:
(i) mergers or consolidations of (x) any
Subsidiary with any other Subsidiary or (y) any Subsidiary
with the Lessee; or
(ii) mergers or consolidations in which any
Person engaged in businesses in which the Lessee is engaged as
of the Closing Date or substantially
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related thereto merges or consolidates with the Lessee or any
of its Subsidiaries where the surviving corporation is the
Lessee or such Subsidiary; or
(iii) 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 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 $100,000,000, 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 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 hereunder;
1.5 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
the Lessee and Receivables Subsidiaries existing as of the
Third Amendment Date or existing as Subsidiaries of the Lessee
immediately prior to the making of such Investment, and
Investments in the form of loans and advances by the Lessee 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 the 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 $100,000,000, 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
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 the
Lessee.
1.6 Section 5.2 (Negative Covenants) of the Master Agreement is
hereby amended by adding the following new paragraphs at the end thereof;
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(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 the Lessee 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 the Lessee 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 the
Lessee or any of its Material Subsidiaries.
1.7 Appendix A to the Master Agreement is hereby amended by adding
the following definitions of "Third Amendment Date" and "Receivables
Subsidiaries" 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
▇▇▇▇▇▇ County, as lessor of certain equipment described therein (the
"Development Authority"), and the Lessee, 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 ▇▇▇▇▇▇ 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 the Lessee, in its capacity as
guarantor (in such capacity, the "Bond Guarantor") in favor of the Lessee, 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 the Lessee), and, since the Lessee is the lessee,
the Bond Purchaser and the Bond Guarantor, the Bond Obligations are not required
to be classified as a liability of the Lessee in accordance with GAAP.
"ASSET SECURITIZATION" means the $100,000,000 asset securitization
program entered into by the Receivable Subsidiaries and Three Pillars Funding
Corporation.
"ASSET SECURITIZATION AGREEMENTS" means those documents which govern
the Asset Securitization.
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"THIRD AMENDMENT DATE" means December 20, 2002.
"RECEIVABLES SUBSIDIARIES" means, collectively, ChoicePoint Capital,
Inc., a Delaware corporation and ChoicePoint Financial, Inc., a Delaware
corporation.
1.8 Appendix A to the Master Agreement is further hereby amended
by replacing the definitions of "Consolidated Companies", "Consolidated Fixed
Charges", "Consolidated Interest Expense", "Consolidated Net Income (Loss)",
"Consolidated Rental Expense", "Funded Debt", "Indebtedness", "Lease Documents",
"Lease Obligations", "Material Subsidiary", and "Subsidiary" in their entirety
with the following:
"CONSOLIDATED COMPANIES" means, collectively, the Lessee and all of its
Subsidiaries other than the Receivables Subsidiaries.
"CONSOLIDATED FIXED CHARGES" means, for any fiscal period of the
Lessee, the sum of (A) Consolidated Interest Expense, plus (B) Consolidated
Rental Expense, plus (C) dividends and distributions on Capital Stock paid in
cash during such fiscal period by the Lessee, any other Consolidated Company or
any Receivables Subsidiary.
"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 in accordance with GAAP, 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) determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME (LOSS)" means, for any fiscal period of the
Lessee, the net income (or loss) of the Consolidated Companies and the
Receivables Subsidiaries for such period (taken as a single accounting period),
but excluding therefrom (to the extent otherwise included therein) the income of
any Consolidated Company or any Receivables Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Consolidated Company or Receivables Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation.
"CONSOLIDATED RENTAL EXPENSE" means, for any fiscal period of the
Lessee, the operating lease expense of the Consolidated Companies and the
Receivables Subsidiaries determined in accordance with GAAP for leases with an
initial term greater than one year, as disclosed in the notes to the Lessee's
consolidated financial statements of the Consolidated Companies or as disclosed
in the Notes to any Receivables Subsidiary's financial statements, determined on
a consolidated basis in accordance with GAAP.
"CREDIT AGREEMENT" means the Revolving Credit Agreement, dated as of
May 10, 2002 among the Lessee, 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.
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"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 which a
Consolidated Company or a Receivables Subsidiary or their respective assets
otherwise have become liable for payment thereof, plus (iii) the redemption
amount with respect to the stock of the Lessee 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.
"LEASE DOCUMENTS" means, collectively, (i) the Operative Documents,
(ii) that certain Lease Agreement, dated as of August 29, 2001, by and between
the Lessee and certain of its Subsidiaries, as lessees, and Atlantic Financial
Group, Ltd., as lessor, pursuant to which the Lessee has leased certain real
property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (iii) that
certain Master Agreement, dated as of August 29, 2001, by and among the Lessee
and certain of its Subsidiaries, as lessees, the Lessee, as guarantor, Atlantic
Financial Group, Ltd., as lessor, and SunTrust Bank, as Agent, (iv) a
contemplated transaction by and among Development Authority of ▇▇▇▇▇▇ County,
the Lessee, and Atlantic Financial Group, Ltd., wherein, in connection with a
contemplated Development Authority of ▇▇▇▇▇▇ 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 property subject to the Master Agreement and the Lease
Agreement described in clauses (ii) and (iii) will be transferred by Atlantic
Financial Group, Ltd. to Development Authority of ▇▇▇▇▇▇ County, leased back by
Atlantic Financial Group, Ltd. and subleased by the Lessee from Atlantic
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Financial Group, Ltd., still subject to such Master Agreement and the terms
contained in such Lease Agreement and (v) all other documents, instruments and
agreements executed in connection therewith (as the same may be amended,
restated, supplemented or otherwise modified from time to time as permitted by
this Agreement).
"LEASE OBLIGATIONS" means the obligations of the Lessee 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.
"MATERIAL SUBSIDIARY" means each Subsidiary of the Lessee (other than
the Receivables Subsidiaries), now existing or hereafter established or
acquired, that at any time prior to the Lease Termination Date (i) has or
acquires assets which constitute fifteen percent (15%) or more of the Total
Assets or (ii) accounts for or produces fifteen percent (15%) or more of
Consolidated EBITDA during the most recently completed fiscal year of the
Lessee.
"SUBSIDIARY" means, with respect to any Person, any corporation or
other entity (including, without limitation, partnerships, joint ventures, and
associations) regardless of its jurisdiction of organization or formation, at
least a majority of the total combined voting power of all classes of voting
stock or other ownership interests of which shall, at the time as of which any
determination is being made, be owned by such Person, either directly or
indirectly through one or more other Subsidiaries; provided, that the
Receivables Subsidiaries shall not be deemed to be Subsidiaries hereunder.
1.9 Exhibit E (Compliance Certificate) to the Master Agreement is
hereby deleted and Exhibit E attached hereto is substituted therefor.
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.
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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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
Attest: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name Printed: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Corporate Secretary
[CORPORATE SEAL]
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SUNTRUST BANKS, INC.,
as Lessor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name Printed: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
SUNTRUST BANK,
as Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name Printed: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
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