EXHIBIT 10.20
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT to the Credit Agreement referred to below (this
"Agreement") dated as of December 30, 2002 is made and entered into by and among
CHOICEPOINT INC., a Georgia corporation (the "Borrower"), the Material
Subsidiaries of the Borrower signatories hereto, certain of the Lenders party to
the Credit Agreement referred to below (the "Lenders"), SUNTRUST BANK, a Georgia
banking corporation, as Administrative Agent (the "Administrative Agent"), and
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as
Syndication Agent (the "Syndication Agent" and collectively with the
Administrative Agent, the "Agents").
STATEMENT OF PURPOSE
The Borrower, the Lenders and the Agents have entered into that certain
Revolving Credit Agreement dated as of May 10, 2002 (as amended hereby and as
further amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement") pursuant to which the Lenders have extended certain
credit facilities to the Borrower.
The Borrower and certain of its Subsidiaries have requested that the
Agents and the Required Lenders waive and amend certain provisions of the Credit
Agreement and to consent to certain actions under the Credit Agreement, all as
more particularly set forth herein. The Agents and the Required Lenders have
agreed to do so, but only upon the terms and conditions set forth below in this
Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms used and not defined in
this Agreement shall have the meanings assigned thereto in the Credit Agreement.
SECTION 2. Amendments to the Credit Agreement.
(a) Section 1.01 (Definitions) of the Credit Agreement is hereby
amended by adding the following defined terms in correct alphabetical order:
"2002 Corporate Changes" means the following transactions, all
of which are contemplated to occur on or about December 31,
2002:
(a) The contribution of all of the assets of Marketing
Information and Technology, Inc. ("MITI"), a Massachusetts corporation,
to Marketing Information and Technology Trust, a business trust created
under the laws of Massachusetts ("MITI Trust"), and the subsequent
dissolution of MITI;
(b) The contribution of all of the assets of Direct Mail
Credit Data, Inc. ("DMCD"), a Massachusetts corporation, to Direct Mail
Credit Data
Trust ("DMCD Trust"), a business trust created under the laws of
Massachusetts, and the subsequent dissolution of DMCD;
(c) The contribution of all of the assets of DMCD Trust
to MITI Trust, and the subsequent dissolution of DMCD Trust;
(d) The contribution of all of the assets of MITI Trust
to CPPM Inc. ("CPPM"), a Georgia corporation, and the subsequent
dissolution of MITI Trust; and
(e) The merger of Optimum Graphics Printing, Inc. and
Statewide Data Services Inc. into ChoicePoint Direct Inc., and the
subsequent merger of ChoicePoint Direct Inc. into ChoicePoint Precision
Marketing Inc. ("ChoicePoint Precision"), a Georgia corporation.
"First Amendment Effective Date" means the date of
effectiveness of the First Amendment to this Agreement dated as of
December 30, 2002 by and among the Borrower, the Required Lenders and
the Agents.
(b) Section 5.13 (Subsidiaries) of the Credit Agreement is hereby
amended by:
(i) deleting the first and second sentences thereof in
its entirety and substituting in their place the following:
"Part A of Schedule 5.13, which speaks as of the First
Amendment Effective Date and prior to giving effect to the 2002
Corporate Changes, and Part B of Schedule 5.13, which speaks after
giving effect to the 2002 Corporate Changes, accurately describe (1)
the complete name of each Subsidiary of Borrower, (2) the jurisdiction
of incorporation or organization of each Subsidiary of Borrower, (3)
the ownership of all issued and outstanding Capital Stock of each
Subsidiary of Borrower and (4) whether such Subsidiary is a Material
Subsidiary. Except as disclosed on Schedule 5.13, as of the First
Amendment Effective Date, Borrower has no Subsidiaries and neither
Borrower nor any Subsidiary is a joint venture partner or general
partner in any partnership."
(ii) replacing Schedule 5.13 to the Credit Agreement with
Schedule 5.13 attached hereto.
(c) Section 6.01 (Corporate Existence, Etc.) of the Credit
Agreement is hereby amended by deleting such section in its entirety and
substituting in its place the following:
Preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, (A) its corporate existence, except (i)
for mergers, divestitures and consolidations permitted
pursuant to Section 7.03, and (ii) that a Subsidiary that is
not a Material Subsidiary may dissolve, so long as either it
has no assets or transfers all of its assets to one or more
other Consolidated Companies; and (B)
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except where the failure to be so qualified would reasonably
be expected to have a Materially Adverse Effect, its
qualification to do business as a foreign corporation in all
jurisdictions where it conducts business or other activities
making such qualification necessary
(d) Section 6.09 (Additional Credit Parties) of the Credit
Agreement is hereby amended by deleting the cross-reference to Section 4.01(c),
(v), (vi), (vii), (viii), (xi) and (xiv) in the last sentence thereof and
replacing it with "Section 4.01(c)(iv), (v), (vi), (vii), (viii) and (xi)."
(e) Section 7.03 (Mergers, Consolidations) of the Credit Agreement
is hereby amended by deleting clause (a) in its entirety and substituting in its
place the following:
"(a) mergers or consolidations of (i) any Subsidiary with any
other Subsidiary which is a Guarantor, (ii) any Subsidiary with
Borrower and (iii) any Subsidiary other than a Material Subsidiary into
any Consolidated Company;"
(f) Section 7.04 (Asset Sales) of the Credit Agreement is hereby
amended by deleting clause (a) in its entirety and substituting in its place the
following:
"(a) sales, leases, transfers or dispositions of assets of (i)
any Consolidated Company to Borrower or any Guarantor and (ii) any
Subsidiary other than a Material Subsidiary to any Consolidated
Company.
SECTION 3. Consent. Subject to the terms and conditions hereof and
notwithstanding any provision of the Credit Agreement to the contrary, the
Agents and the Required Lenders hereby consent to the 2002 Corporate Changes;
provided that the Agents and the Required Lenders shall not be deemed to have
consented to the release of any Guarantor from its obligations under the
Guaranty Agreement.
SECTION 4. Waiver. Subject to the terms and conditions hereof, the
Agents and the Required Lenders hereby waive any Default or Event of Default
arising under Section 8.03 of the Credit Agreement resulting solely from any
violation by the Borrower of Section 6.01 in connection with the dissolution of
BTi Inc.
SECTION 5. Conditions to Effectiveness. This Agreement shall become
effective on the date each of the following conditions has been satisfied:
(a) Execution of Agreement. Receipt by the Agents of a fully
executed original of this Agreement executed by the Borrower, the Guarantors,
the Agents and the Required Lenders.
(b) Certificate of Secretary. Receipt by the Agents of a
certificate of the secretary or assistant secretary of ChoicePoint Precision
certifying as to the incumbency and genuineness of the signature of each officer
of ChoicePoint Precision executing the Credit Documents and certifying that
attached thereto is a true, complete and correct copy of (i) the articles of
incorporation of ChoicePoint Precision, certified as of a recent date by the
Secretary of State of Georgia, (ii) the bylaws of ChoicePoint Precision as in
effect on the First Amendment Effective
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Date, (iii) resolutions duly adopted by the Board of Directors of ChoicePoint
Precision authorizing the execution, delivery and performance of the Guaranty
Agreement and the Contribution Agreement and the other Credit Documents to which
it is a party, and (iv) a certificate of a recent date of the good standing of
ChoicePoint Precision from the Secretary of State of Georgia.
(c) Closing Certificate. Receipt of a duly executed certificate of
the Borrower, in substantially the form of Exhibit E to the Credit Agreement and
appropriately completed, certifying that, after giving effect to this Agreement,
(i) the representations and warranties contained in Article V of the Credit
Agreement are true and correct in all material respects as of the First
Amendment Effective Date, (ii) the Borrower and the Guarantors are in compliance
with all terms and provisions of the Credit Agreement and the other Credit
Documents as of the First Amendment Effective Date, (iii) on the First Amendment
Effective Date, no Default or Event of Default has occurred and is continuing,
and (iv) as of the First Amendment Effective Date, there has been no materially
adverse change in the financial condition of the Borrower and its Subsidiaries
as of the reflected in the most recently delivered financial statements
delivered to the Agents pursuant to Section 6.07 of the Credit Agreement.
(d) Solvency Certificate. Receipt by the Agents of a duly executed
solvency certificate of the Borrower and the Guarantors, in form and substance
satisfactory to the Agents and the Lenders.
(e) Contribution and Guaranty Agreement Supplements. Receipt by
the Agents of a supplement to the Contribution Agreement and the Guaranty
Agreement in the forms attached thereto, duly executed by ChoicePoint Precision.
SECTION 6. Delivery Covenants.
(a) Opinions of Counsel. On or before January 10, 2003, the
Borrower shall deliver to the Agents opinions of Xxxxx, Day, Xxxxxx & Xxxxx and
in-house general counsel to the Credit Parties, both in form and substance
satisfactory to the Agents with respect to the addition of ChoicePoint Precision
as a Guarantor.
(b) 2002 Corporate Changes. Upon the request of the Agents, the
Borrower shall deliver copies of all documentation (including articles of
merger, certificates of dissolution, and any other documents necessary to
consummate the 2002 Corporate Changes) relating to the 2002 Corporate Changes.
SECTION 7. References to Credit Agreement. On and after the date this
Agreement becomes effective, each and every reference in the Credit Documents to
the Credit Agreement shall be deemed to refer to and to mean the Credit
Agreement as amended by this Agreement. The Borrower and Material Subsidiaries
confirm and agree that (a) except as expressly amended herein, the Credit
Agreement remains in full force and effect in accordance with its terms, and (b)
all other Credit Documents remain in full force and effect in accordance with
their respective terms.
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SECTION 8. Reaffirmation. Each Guarantor reaffirms its obligations
under the Guaranty Agreement, the Contribution Agreement, and the other Credit
Documents, consents to the execution and delivery of this Agreement by the
Borrower, and agrees and acknowledges that its obligations under the Guaranty
Agreement, the Contribution Agreement, and the other Credit Documents shall not
be diminished in any way by the execution and delivery of this Agreement or by
the consummation of any of the transactions contemplated herein.
SECTION 9. Limited Amendment, Consent, and Waiver. Except as expressly
amended hereby, the Credit Agreement and each other Credit Document shall
continue to be, and shall remain, in full force and effect. This Agreement shall
not be deemed (a) to be a waiver of, or consent to, or a modification or
amendment of, any other term or condition of, or Default or Event of Default
under, the Credit Agreement or any other Credit Document or (b) to prejudice any
other right or remedies to which the Agents or the Lenders may now have or may
have in the future under or in connection with the Credit Agreement or the
Credit Documents or any of the instruments or agreements referred to therein, as
the same may be amended, restated or otherwise modified from time to time. This
document is part of the Credit Agreement and constitutes a Credit Document
thereunder.
SECTION 10. Expenses. The Borrower shall pay all reasonable
out-of-pocket expenses of the Agents in connection with the preparation,
execution and delivery of this Agreement, including without limitation the
reasonable fees and disbursements of counsel for the Agents.
SECTION 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia, without reference
to the conflicts or choice of law principles thereof.
SECTION 12. Counterparts. This Agreement may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
SECTION 13. Fax Transmission. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more parties hereto,
and an executed copy of this Agreement may be delivered by one or more parties
hereto by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for
all purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Agreement as well as any facsimile, telecopy or
other reproduction hereof.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
BORROWER AND GUARANTORS:
CHOICEPOINT INC., as Borrower
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Treasurer
CHOICEPOINT SERVICES INC., as Guarantor
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Treasurer
CHOICEPOINT DIRECT INC., as Guarantor
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Treasurer
NATIONAL SAFETY ALLIANCE,
INCORPORATED, as Guarantor
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Treasurer
CHOICEPOINT PUBLIC RECORDS INC., as Guarantor
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Treasurer
[Signature Pages Continue]
AGENTS AND LENDERS:
SUNTRUST BANK, as Administrative Agent and
Lender
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Director
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Syndication Agent and Lender
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Director
BNP PARIBAS, as Lender
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Xxxxx: Managing Director
BNP PARIBAS, as Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Associate
U.S. BANK NATIONAL ASSOCIATION, as Lender
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as Lender
By: Not Required
Name:
Title:
[Signature Pages Continue]
XX XXXXXX CHASE BANK, as Lender
By: /s/ H. Xxxxx Xxxxx
Name: H. Xxxxx Xxxxx
Title: Vice President
FLEET NATIONAL BANK, as Lender
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Director
