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Exhibit
10.40
SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT (this “ Amendment ”)
is made and entered into as of January 14, 2008, effective in
accordance with Section 3 below, by and among
CHOICEPOINT SERVICES INC., a Georgia corporation (the “
Borrower ”), CHOICEPOINT INC., a Georgia corporation
(the “ Parent ”), the financial institutions
from time to time party to the Credit Agreement referred to below
(the “ Lenders ”) and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as Administrative
Agent for the Lenders (the “ Administrative Agent
”).
Statement of
Purpose
The Borrower, the Parent, the
Lenders and the Administrative Agent are parties to that certain
Revolving Credit Agreement dated as of October 25, 2006 (as
amended by the First Amendment dated as of April 6, 2007, the
“ Credit Agreement ”), by and among the
Borrower, the Parent, the Lenders, and the Administrative Agent
pursuant to which the Lenders have extended certain credit
facilities to the Borrower.
The Borrower and the Parent
have requested that the Lenders consent to an amendment to the
Credit Agreement to amend certain provisions as described herein.
Subject to the terms and conditions of this Amendment, the
Administrative Agent and the Lenders are willing to agree to the
requested amendments.
NOW THEREFORE, for good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions
. All capitalized, undefined terms used in this Amendment shall
have the meanings assigned thereto in the Credit
Agreement.
SECTION 2. Amendment to
Credit Agreement . Subject to the conditions to effectiveness
set forth in Section 3 below, the Credit Agreement is
hereby amended by amending or amending and restating the following
provisions as set forth below:
(a) The definition of
“Lease Documents” set forth in Section 1.01
shall be amended by deleting clause (vi) thereof and replacing
such clause with the following:
“(vi) Amended and
Restated Lease Agreement, Amended and Restated Common Definitions
and Provisions Agreement, Amended and Restated Purchase Agreement,
Amended and Restated TI Authorization and Funding Agreement (each
dated as of June 28, 2006), and Closing Certificate and
Agreement (dated as of June 1, 2006), each between Parent, as
lessee, and BNP Paribas Leasing Corporation, as lessor, pursuant to
which Parent has leased certain real property located at Bluegrass
Promenade, 1200 Bluegrass Lakes Parkway, Cumming,
Georgia,”
(b) Section 1.01
shall be amended by adding the following defined terms in
appropriate alphabetical order:
“ Term Loan Credit
Agreement ” shall mean that certain Term Loan Credit
Agreement dated as of January 14, 2008, by and among Parent,
Borrower, the lenders party thereto, and Wachovia Bank, National
Association, as administrative agent, as amended, restated or
otherwise modified from time to time.
“ Term Loan Credit
Documents ” shall mean (a) the Term Loan Credit
Agreement and (b) all “ Credit Documents ”
(as such term is defined and used in the Term Loan Credit
Agreement), in each case, as the same may be amended, restated,
supplemented, or otherwise modified from time to time.
(c)
Section 5.15(a) shall be deleted and replaced in its
entirety by the following:
“(a) Identification
of Plans . (i) None of the Consolidated Companies nor any
of their respective ERISA Affiliates maintains or contributes to,
or has during the past two years maintained or contributed to, any
Plan that is subject to Title IV of ERISA, except for a Plan which
was subject to Title IV, was established for the benefit of two
former employees of Insurity LLC (as the acquirer of SteelCard,
LLC), lawfully terminated on September 30, 2006, and the last
distribution from which was made on May 23, 2007, and
(ii) none of the Consolidated Companies maintains or
contributes to any Foreign Plan, except for a group life insurance
plan (Canada Life policy no. G90689) and a group personal pension
plan (Aegon Scottish Equitable policy no. 105564), each of
which has been established by i2 Limited;”
(d) Section 5.21
shall be deleted and replaced in its entirety by the
following:
“ Section 5.21
Payment or Dividend Restrictions . None of the
Consolidated Companies is party to or subject to any agreement or
understanding restricting or limiting the payment of any dividends
or other distributions by any such Consolidated Company, except as
set forth in the Term Loan Credit Documents.”
(e)
Section 7.04(d) shall be deleted and replaced in its
entirety by the following:
“(d) the sale or other
disposition of the assets or Capital Stock of iMapData, Inc.;
and”
(f) Section 7.09
shall be deleted and replaced in its entirety by the
following:
“ Section 7.09
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 Agreement and in
the Term Loan Credit Documents, unless such asset is subject to a
Permitted Lien and such prohibition or restriction is limited to
such asset.”
2
(g) Section 7.11
shall be deleted and replaced in its entirety by the
following:
“ Section 7.11
Limitation on Payment Restrictions Affecting Consolidated
Companies . Create or otherwise cause or suffer to exist or
become effective, any consensual encumbrance or restriction on the
ability of any Consolidated Company to (i) pay dividends or
make any other distributions to Parent or any other Consolidated
Company on such Consolidated Company’s Capital Stock, or
(ii) pay any indebtedness owed to Parent or any other
Consolidated Company, or (iii) transfer any of its property or
assets to Parent or any other Consolidated Company, except any
consensual encumbrance or restriction existing under the Credit
Documents or under the Term Loan Credit
Documents.”
SECTION 3.
Effectiveness . This Amendment shall become effective upon
receipt by the Administrative Agent of an executed original of this
Amendment by the Borrower, the Parent, the Guarantors and the
Required Lenders.
SECTION 4. Waiver .
The Lenders hereby waive any Default or Event of Default which
exists on account of the Borrower’s and the Parent’s
breach of the representation and warranty set forth in
Section 5.15(a) of the Credit Agreement, but only to
the extent such breach exists as of the date hereof and arises
solely from Borrower’s omission to disclose the existence of
(a) the Title IV Plan described in
Section 5.15(a)(i) of the Credit Agreement (as amended
hereby) and (b) the two Foreign Plans described in
Section 5.15(a)(ii) of the Credit Agreement (as
amended hereby).
SECTION 5. Limited
Consent, Waiver and Amendment . Except as expressly provided in
this Amendment, the Credit Agreement and each other Credit Document
shall continue to be, and shall remain, in full force and
eff
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