EXHIBIT 10.14
SECOND AMENDMENT TO CREDIT AGREEMENT
This Amendment, dated as of April 30, 2001, is made by and
between FACTUAL DATA CORP., a Colorado corporation (the "Borrower"), and XXXXX
FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the "Lender"),
and is effective as of December 31, 2000.
Recitals
The Borrower and the Lender have entered into that certain
Credit Agreement dated as of May 23, 2000, as amended by that certain Amendment
to Credit Agreement dated as of March 27, 2001 (as amended, the "Credit
Agreement"). Capitalized terms used in these recitals have the meanings given to
them in the Credit Agreement unless otherwise specified.
The Borrower desires to extend the Maturity Date with respect
to the Revolving Facility, and the Lender is willing to do so pursuant to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained, it is agreed as follows:
1. Defined Terms. Capitalized terms used in this Amendment
which are defined in the Credit Agreement shall have the same meanings specified
therein, unless otherwise defined herein. In addition, Section 1.1 of the Credit
Agreement is hereby amended by amending the definition of "Maturity Date" in its
entirety to read as follows:
"'Maturity Date"" means (a) with respect to the Revolving
Facility, April 30, 2002, and (b) with respect to the Term Facility,
April 30, 2005."
2. No Other Changes. Except as explicitly amended by this
Amendment, all of the terms and conditions of the Credit Agreement shall remain
in full force and effect and shall apply to any advance or letter of credit
thereunder.
3. Conditions Precedent. This Amendment shall be effective
when the Lender shall have received an executed original hereof, together with
each of the following, each in substance and form acceptable to the Lender in
its sole discretion:
(a) The Acknowledgment and Agreement of Guarantor set forth at
the end of this Amendment, duly executed by the Guarantor.
(b) A Certificate of the Secretary of the Borrower certifying
as to (i) the resolutions of the board of directors of the Borrower
approving the execution and delivery of this Amendment, (ii) the fact
that the articles of incorporation and bylaws of the Borrower, which
were certified and delivered to the Lender pursuant to the Certificate
of Authority of the Borrower's secretary or assistant secretary dated
as of
April 28, 2000, in connection with the execution and delivery of the
Credit Agreement, continue in full force and effect and have not been
amended or otherwise modified except as set forth in the Certificate to
be delivered, and (iii) certifying that the officers and agents of the
Borrower who have been certified to the Lender, pursuant to the
Certificate of Authority of the Borrower's secretary or assistant
secretary dated as of April 28, 2000, as being authorized to sign and
to act on behalf of the Borrower continue to be so authorized or
setting forth the sample signatures of each of the officers and agents
of the Borrower authorized to execute and deliver this Amendment and
all other documents, agreements and certificates on behalf of the
Borrower.
(c) An opinion of the Borrower's counsel as to the matters set
forth in paragraphs 4(a) and 4(b) hereof and as to such other matters
as the Lender shall require.
(d) Payment of or reimbursement for the costs and expenses
described in Paragraph 8.
(e) Such other matters as the Lender may require.
4. Representations and Warranties. The Borrower hereby
represents and warrants to the Lender as follows:
(a) The Borrower has all requisite power and authority to
execute this Amendment and to perform all of its obligations hereunder,
and this Amendment has been duly executed and delivered by the Borrower
and constitutes the legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms.
(b) The execution, delivery and performance by the Borrower of
this Amendment have been duly authorized by all necessary corporate
action and do not (i) require any authorization, consent or approval by
any governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) violate any provision of any
law, rule or regulation or of any order, writ, injunction or decree
presently in effect, having applicability to the Borrower, or the
articles of incorporation or by-laws of the Borrower, or (iii) result
in a breach of or constitute a default under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which
the Borrower is a party or by which it or its properties may be bound
or affected.
(c) All of the representations and warranties contained in
Article IV of the Credit Agreement are correct on and as of the date
hereof as though made on and as of such date, except to the extent that
such representations and warranties relate solely to an earlier date.
5. References. All references in the Credit Agreement to "this
Agreement" shall be deemed to refer to the Credit Agreement as amended hereby;
and any and all
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references in the Security Documents to the Credit Agreement shall be deemed to
refer to the Credit Agreement as amended hereby.
6. No Waiver. The execution of this Amendment and acceptance
of any documents related hereto shall not be deemed to be a waiver of any breach
or default under the Credit Agreement or breach, default or event of default
under any Security Document or other document held by the Lender, whether or not
known to the Lender and whether or not existing either on the date hereof or the
effective date hereof.
7. Release. The Borrower, and the Guarantor by signing the
Acknowledgment and Agreement of Guarantor set forth below, hereby absolutely and
unconditionally releases and forever discharges the Lender, and any and all
participants, parent corporations, subsidiary corporations, affiliated
corporations, insurers, indemnitors, successors and assigns thereof, together
with all of the present and former directors, officers, agents and employees of
any of the foregoing, from any and all claims, demands or causes of action of
any kind, nature or description, whether arising in law or equity or upon
contract or tort or under any state or federal law or otherwise, which the
Borrower or the Guarantor has had, now has or has made claim to have against any
such person for or by reason of any act, omission, matter, cause or thing
whatsoever arising from the beginning of time to and including the date hereof,
whether such claims, demands and causes of action are matured or unmatured or
known or unknown.
8. Costs and Expenses. The Borrower hereby reaffirms its
agreement under the Credit Agreement to pay or reimburse the Lender on demand
for all costs and expenses incurred by the Lender in connection with the Credit
Agreement, the Security Documents and all other documents contemplated thereby,
including without limitation all reasonable fees and disbursements of legal
counsel. Without limiting the generality of the foregoing, the Borrower
specifically agrees to pay all fees and disbursements of counsel to the Lender
for the services performed by such counsel in connection with the preparation of
this Amendment and the documents and instruments incidental hereto. The Borrower
hereby agrees that the Lender may, at any time or from time to time in its sole
discretion and without further authorization by the Borrower, make a loan to the
Borrower under the Credit Agreement, or apply the proceeds of any loan, for the
purpose of paying any such fees, disbursements, costs and expenses.
9. Miscellaneous. This Amendment and the Acknowledgment and
Agreement of Guarantor may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original and all of
which counterparts, taken together, shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first written above.
XXXXX FARGO BANK, NATIONAL ASSOCIATION FACTUAL DATA CORP.
By /s/ Xxxxxxx X. XxXxxxxxx By Xxxx X. Xxxxxxxxx
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Xxxxxxx X. XxXxxxxxx Xxxx X. Xxxxxxxxx
Its Vice President Its Chief Financial Officer
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ACKNOWLEDGMENT AND AGREEMENT OF GUARANTOR
The undersigned, a guarantor of the indebtedness of Factual
Data Corp., a Colorado corporation (the "Borrower"), to Xxxxx Fargo Bank,
National Association, a national banking association (the "Lender") pursuant to
a Guaranty dated as of May 23, 2000 (the "Guaranty"), hereby (i) acknowledges
receipt of the foregoing Amendment; (ii) consents to the terms (including
without limitation the release set forth in paragraph 7 of the Amendment) and
execution thereof; (iii) reaffirms its obligations to the Lender pursuant to the
terms of its Guaranty; and (iv) acknowledges that the Lender may amend, restate,
extend, renew or otherwise modify the Credit Agreement and any indebtedness or
agreement of the Borrower, or enter into any agreement or extend additional or
other credit accommodations, without notifying or obtaining the consent of the
undersigned and without impairing the liability of the undersigned under the
Guaranty for all of the Borrower's present and future indebtedness to the
Lender.
FDC ACQUISITION, INC.
By Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
Its Chief Financial Officer
