- --------------------------------------------------------------------------------
EXHIBIT 10.2
RECEIVABLES SALE AGREEMENT
DATED AS OF SEPTEMBER 7, 2004
AMONG
EQUIFAX INC., EQUIFAX INFORMATION SERVICES LLC, EQUIFAX DIRECT MARKETING
SOLUTIONS LLC, EQUIFAX INFORMATION SERVICES OF PUERTO RICO INC. AND
COMPLIANCE DATA CENTER, INC., AS ORIGINATORS,
AND
EQUIFAX CAPITAL MANAGEMENT, INC.,
AS BUYER
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I AMOUNTS AND TERMS OF THE PURCHASE....................................2
Section 1.1 Initial Contribution of Receivables..............................2
Section 1.2 Purchase of Receivables..........................................2
Section 1.3 Payment for the Purchases........................................3
Section 1.4 Purchase Price Credit Adjustments................................4
Section 1.5 Payments and Computations, Etc...................................5
Section 1.6 License of Software..............................................5
Section 1.7 Characterization.................................................6
ARTICLE II REPRESENTATIONS AND WARRANTIES......................................6
Section 2.1 Representations and Warranties of Originators....................6
ARTICLE III CONDITIONS OF PURCHASE............................................10
Section 3.1 Conditions Precedent to Purchase................................10
Section 3.2 Conditions Precedent to Subsequent Payments.....................10
ARTICLE IV COVENANTS..........................................................11
SECTION 4.1 AFFIRMATIVE COVENANTS OF ORIGINATORS............................11
SECTION 4.2 NEGATIVE COVENANTS OF ORIGINATORS...............................16
ARTICLE V TERMINATION EVENTS..................................................17
Section 5.1 Termination Events..............................................17
Section 5.2 Remedies........................................................18
ARTICLE VI INDEMNIFICATION....................................................19
Section 6.1 Indemnities by Originators......................................19
Section 6.2 Other Costs and Expenses........................................21
ARTICLE VII MISCELLANEOUS.....................................................21
Section 7.1 Waivers and Amendments..........................................21
Section 7.2 Notices.........................................................22
Section 7.3 Protection of Ownership Interests of Buyer......................22
Section 7.4 Confidentiality; Tax Treatment..................................23
Section 7.5 Bankruptcy Petition.............................................24
Section 7.6 Limitation of Liability.........................................24
SECTION 7.7 CHOICE OF LAW...................................................24
SECTION 7.8 CONSENT TO JURISDICTION.........................................25
i
SECTION 7.9 WAIVER OF JURY TRIAL............................................25
Section 7.10 Integration; Binding Effect; Survival of Terms..................25
Section 7.11 Counterparts; Severability; Section References..................26
EXHIBITS AND SCHEDULES
Exhibit I - Definitions
Exhibit II - Principal Place of Business; Location(s) of Records;
State of Organization; Federal Employer Identification
Number; Organizational Identification Number; Other
Names
Exhibit III - Lock-Boxes; Collection Accounts; Collection Banks
Exhibit IV - Form of Compliance Certificate
Exhibit V - Copy of Credit and Collection Policy
Exhibit VI - Form of Revolving Note
Exhibit VII Form of Purchase Report
Schedule A List of Documents to Be Delivered to Buyer Prior to the
Purchases
ii
RECEIVABLES SALE AGREEMENT
THIS RECEIVABLES SALE AGREEMENT, dated as of September 7, 2004, is by
and among EQUIFAX INC., a Georgia corporation ("PARENT"), EQUIFAX INFORMATION
SERVICES LLC, a Georgia limited liability company ("EIS"), EQUIFAX DIRECT
MARKETING SOLUTIONS LLC, a Georgia limited liability company, Equifax
Information Services of Puerto Rico Inc., a Georgia corporation, and Compliance
DatA Center, Inc., a Georgia corporation (each of the foregoing, an "ORIGINATOR"
and collectively, the "ORIGINATORS"), and EQUIFAX CAPITAL MANAGEMENT, INC., a
Georgia corporation ("BUYER") (as the same may from time to time hereafter be
amended, supplemented, restated or otherwise modified, this "AGREEMENT" or the
"FIRST STEP RECEIVABLES SALE AGREEMENT"). UNLESS DEFINED ELSEWHERE HEREIN,
CAPITALIZED TERMS USED IN THIS AGREEMENT SHALL HAVE THE MEANINGS ASSIGNED TO
SUCH TERMS IN EXHIBIT I HERETO (OR, IF NOT DEFINED IN EXHIBIT I HERETO, THE
MEANING ASSIGNED TO SUCH TERM IN EXHIBIT I TO THE CREDIT AND SECURITY
AGREEMENT).
PRELIMINARY STATEMENTS
Each of the Originators now owns, and from time to time
hereafter will own, Receivables. Each of the Originators wishes to sell
and assign to Buyer, and Buyer wishes to purchase from each Originator,
all of such Originator's right, title and interest in and to its
Receivables, together with the Related Security and Collections with
respect thereto.
Each of the Originators and Buyer intend the transactions
contemplated hereby to be true sales to Buyer by such Originator of the
Receivables originated by it, providing Buyer with the full benefits of
ownership of such Receivables, and none of the Originators nor Buyer
intends these transactions to be, or for any purpose to be characterized
as, loans from Buyer to such Originator.
Following the purchase of the Receivables from each Originator
through the First Step Receivables Sale Agreement, Buyer will sell or
contribute all of its interests in the Receivables to Equifax
Receivables Finance LLC. The sale and contribution of all of Buyer's
right, title and interest in and to the Receivables will be made
pursuant to that certain Receivable Sales Agreement dated as of
September 7, 2004 (as the same may from time to time hereafter be
amended, supplement, restated or otherwise modified, the "SECOND STEP
RECEIVABLES SALE AGREEMENT") between Buyer and Equifax Receivables
Finance LLC.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASE
Section 1.1 INITIAL CONTRIBUTION OF RECEIVABLES. On the date hereof,
Parent does hereby contribute, assign, transfer, set-over and otherwise convey
to Buyer, and Buyer does hereby accept from Parent, Receivables originated by
Parent and existing as of the close of business on the Business Day immediately
prior to the date hereof (the "INITIAL CUTOFF DATE") having an aggregate
Outstanding Balance of $103,515,953.31 (the "INITIAL CONTRIBUTED RECEIVABLES"),
together with all Related Security relating thereto and all Collections thereof.
Section 1.2 PURCHASE OF RECEIVABLES.
(a) Effective on the date hereof, in consideration for the
Purchase Price paid to each Originator and upon the terms and subject to the
conditions set forth herein, each Originator does hereby sell, assign, transfer,
set-over and otherwise convey to Buyer, without recourse (except to the extent
expressly provided herein), and Buyer does hereby purchase from such Originator,
all of such Originator's right, title and interest in and to all Receivables
originated by such Originator and existing as of the close of business on the
Initial Cutoff Date (other than the Initial Contributed Receivables) and all
Receivables thereafter originated by such Originator through and including the
Termination Date, together, in each case, with all Related Security relating
thereto and all Collections thereof. In accordance with the preceding sentence,
on the date hereof Buyer shall acquire all of each Originator's right, title and
interest in and to all Receivables existing as of the Initial Cutoff Date (other
than the Initial Contributed Receivables) and thereafter arising through and
including the Termination Date, together with all Related Security relating
thereto and all Collections thereof. Buyer shall be obligated to pay the
Purchase Price for the Receivables purchased hereunder from each Originator in
accordance with SECTION 1.3.
(b) On the 20th day of each month hereafter (or if any such
day is not a Business Day, on the next succeeding Business Day thereafter, each
Originator shall (or shall require the Servicer to) deliver to Buyer a report in
substantially the form of Exhibit VII hereto (each such report being herein
called a "PURCHASE REPORT") with respect to the Receivables sold by such
Originator to Buyer during the Settlement Period then most recently ended. In
addition to, and not in limitation of, the foregoing, in connection with the
payment of the Purchase Price for any Receivables purchased hereunder, Buyer may
request that the applicable Originator deliver, and such Originator shall
deliver, such approvals, opinions, information or documents as Buyer may
reasonably request.
(c) It is the intention of the parties hereto that each
Purchase of Receivables from an Originator made hereunder shall constitute a
sale, which sale is absolute and irrevocable and provides Buyer with the full
benefits of ownership of the Receivables originated by such Originator. Except
for the Purchase Price Credits owed to Buyer pursuant to SECTION 1.4, the sale
of Receivables hereunder by each Originator is made without recourse to such
Originator; PROVIDED, HOWEVER, that (i) such Originator shall be liable to Buyer
for all representations, warranties, covenants and indemnities made by such
Originator pursuant to the terms of the Transaction Documents to which such
Originator is a party, and (ii) such sale does not constitute and is not
intended to result in an assumption by Buyer or any assignee thereof of any
2
obligation of such Originator or any other Person arising in connection with the
Receivables, the related Contracts and/or other Related Security or any other
obligations of such Originator. In view of the intention of the parties hereto
that each Purchase of Receivables made hereunder shall constitute a sale of such
Receivables rather than loans secured thereby, each Originator agrees that it
will, on or prior to the date hereof and in accordance with SECTION 4.1(E)(II),
mark its books and records including aged trial balance with respect to the
Receivables originated by it with a legend acceptable to Buyer and to the Agent
(as Buyer's assignee), evidencing that Buyer has purchased such Receivables as
provided in this Agreement and to note in its financial statements that its
Receivables have been sold to Buyer. Upon the request of Buyer or the Agent (as
Buyer's assignee), each Originator will execute and file such financing or
continuation statements, or amendments thereto or assignments thereof, and such
other instruments or notices, as may be necessary or appropriate to perfect and
maintain the perfection of Buyer's ownership interest in the Receivables
originated by such Originator and the Related Security and Collections with
respect thereto, or as Buyer or the Agent (as Buyer's assignee) may reasonably
request.
Section 1.3 PAYMENT FOR THE PURCHASES.
(a) The Purchase Price for the Purchase from each Originator
of its Receivables in existence as of the close of business on the Initial
Cutoff Date (other than the Initial Contributed Receivables) shall be payable in
full by Buyer to such Originator on the date hereof, and shall be paid to such
Originator in the following manner:
(i) by delivery of immediately available funds, and
(ii) the balance, by delivery of the proceeds of a
revolving loan from such Originator to Buyer (a "REVOLVING LOAN") in an
amount not to exceed the least of (A) the remaining unpaid portion of
such Purchase Price, (B) the maximum Revolving Loan that could be
borrowed without rendering Buyer insolvent, and (C) fifteen percent
(15%) of such Purchase Price. Each Originator is hereby authorized by
Buyer to endorse on the schedule attached to its Revolving Note an
appropriate notation evidencing the date and amount of each advance
thereunder, as well as the date of each payment with respect thereto,
PROVIDED THAT the failure to make such notation shall not affect any
obligation of Buyer thereunder.
The Purchase Price for each Receivable coming into existence after the Initial
Cutoff Date shall be due and owing in full by Buyer to the applicable Originator
or its designee on the date each such Receivable came into existence (except
that Buyer may, with respect to any such Purchase Price, offset against such
Purchase Price any amounts owed by such Originator to Buyer hereunder and which
have become due but remain unpaid) and shall be paid to such Originator in the
manner provided in the following paragraphs (b), (c) and (d).
(b) With respect to any Receivables coming into existence
after the Initial Cutoff Date, on each Settlement Date, Buyer shall pay the
applicable Originator the Purchase Price therefor in accordance with SECTION
1.3(D) and in the following manner:
3
FIRST, by delivery to the applicable Originator or its
designee of immediately available funds, to the extent of funds
available to Buyer from cash on hand;
SECOND, by delivery to the applicable Originator or its
designee of the proceeds of a Revolving Loan, PROVIDED THAT the making
of any such Revolving Loan shall be subject to the provisions set forth
in SECTION 1.3(A)(II); and
THIRD, solely in the case of Receivables originated by
EIS, unless the Termination Date has occurred in accordance with this
Agreement, by accepting a contribution to its capital in an amount equal
to the remaining unpaid balance of such Purchase Price.
Subject to the limitations set forth in SECTION 1.3(A)(II), each Originator
irrevocably agrees to advance each Revolving Loan requested by Buyer on or prior
to the Termination Date. The Revolving Loans owing to each Originator shall be
evidenced by, and shall be payable in accordance with the terms and provisions
of its Revolving Note and shall be payable solely from funds which Buyer is not
required under the Credit and Security Agreement to set aside for the benefit
of, or otherwise pay over to, the Lenders.
(c) From and after the Termination Date, (i) no Originator
shall be obligated to (but may, at its option) sell Receivables to Buyer, or
(ii) EIS shall not be obligated to (but may, at its option) contribute
Receivables to Buyer's capital pursuant to clause THIRD of SECTION 1.3(B).
(d) Although the Purchase Price for each Receivable coming
into existence after the Initial Cutoff Date shall be due and payable in full by
Buyer to the applicable Originator on the date such Receivable came into
existence, settlement of the Purchase Price between Buyer and such Originator
shall be effected on a monthly basis on Settlement Dates with respect to all
Receivables originated by such Originator during the same Calculation Period and
based on the information contained in the Purchase Report delivered by such
Originator for the Calculation Period then most recently ended. Although
settlement shall be effected on Settlement Dates, increases or decreases in the
amount owing under the Revolving Note made pursuant to SECTION 1.3 and any
contribution of capital by EIS to Buyer made pursuant to SECTION 1.3(B) shall be
deemed to have occurred and shall be effective as of the last Business Day of
the Calculation Period to which such settlement relates.
Section 1.4 PURCHASE PRICE CREDIT ADJUSTMENTS. If on any day:
(a) the Outstanding Balance of a Receivable purchased from
any Originator is:
(i) reduced as a result of any defective or rejected
or returned goods or services, any discount or any adjustment or
otherwise by such Originator (other than as a result of such Receivable
becoming a Defaulted Receivable or to reflect cash Collections on
account of such Receivable),
4
(ii) reduced or canceled as a result of a setoff in
respect of any claim by any Person (whether such claim arises out of the
same or a related transaction or an unrelated transaction), or
(b) any of the representations and warranties set forth in
SECTIONS 2.1(H), (I), (J), (L), (R), (S), (T), (U), the second sentence of
SECTION 2.1(Q) hereof and the last clause (relating to bulk sales laws) of
SECTION 2.1(C) are not true when made or deemed made with respect to any
Receivable,
then, in such event, Buyer shall be entitled to a credit (each, a "PURCHASE
PRICE CREDIT") against the Purchase Price otherwise payable to the applicable
Originator hereunder equal to (x) in the case of a partial reduction, the amount
of such reduction, and (y) in the case of a total reduction or cancellation, the
lesser of the total Purchase Price paid for and the Outstanding Balance of such
Receivable (calculated before giving effect to the applicable reduction or
cancellation). If such Purchase Price Credit exceeds the Original Balance of the
Receivables originated by the applicable Originator on any day, such Originator
shall pay the remaining amount of such Purchase Price Credit in cash
immediately, PROVIDED THAT if the Termination Date has not occurred, such
Originator shall be allowed to deduct the remaining amount of such Purchase
Price Credit from any indebtedness owed to it under its Revolving Note.
Section 1.5 PAYMENTS AND COMPUTATIONS, ETC. All amounts to be paid
or deposited by Buyer hereunder shall be paid or deposited in accordance with
the terms hereof on the day when due in immediately available funds to the
account of the applicable Originator designated from time to time by such
Originator or as otherwise directed by such Originator. In the event that any
payment owed by any Person hereunder becomes due on a day that is not a Business
Day, then such payment shall be made on the next succeeding Business Day. If any
Person fails to pay any amount hereunder when due, such Person agrees to pay, on
demand, the Default Fee in respect thereof until paid in full; PROVIDED,
HOWEVER, that such Default Fee shall not at any time exceed the maximum rate
permitted by applicable law. All computations of interest payable hereunder
shall be made on the basis of a year of 360 days for the actual number of days
(including the first but excluding the last day) elapsed.
Section 1.6 LICENSE OF SOFTWARE.
(a) To the extent that any software used by any Originator
to account for the Receivables originated by it is non-transferable, such
Originator hereby grants to each of Buyer, the Agent and the Servicer an
irrevocable, non-exclusive license to use, without royalty or payment of any
kind, all such software used by such Originator to account for such Receivables,
to the extent necessary to administer such Receivables, whether such software is
owned by such Originator or is owned by others and used by such Originator under
license agreements with respect thereto, PROVIDED THAT should the consent of any
licensor of such software be required for the grant of the license described
herein to be effective: (x) the license granted herein shall not apply to such
software unless and until such consent is obtained, and (y) such Originator
hereby agrees that, upon the request of Buyer (or Buyer's assignee) made at any
time during the continuation of a Termination Event or an Amortization Event,
such Originator will use its reasonable efforts (i) to obtain the consent of
such third-party licensor, and (ii) in advance of obtaining such consent, in
connection with each Review pursuant to SECTION 4.1(D),
5
to make personnel who are covered by such Originator's license of such software
and knowledgeable about its use, available to Buyer (or Buyer's assignee) to
test data or generate such reports relating the Receivables that may be
reasonably requested. The license granted hereby shall be irrevocable until the
later to occur of (i) indefeasible payment in full of the Obligations (as
defined in the Credit and Security Agreement), and (ii) the date each of this
Agreement, the Second Step Receivables Sale Agreement and the Credit and
Security Agreement terminates in accordance with its terms.
(b) Each Originator (i) shall take such action requested by
Buyer and/or the Agent (as Buyer's assignee), from time to time hereafter, that
may be necessary or appropriate to ensure that Buyer and its assigns under the
Credit and Security Agreement have an enforceable ownership or security interest
in the Records relating to the Receivables purchased from such Originator
hereunder, and (ii) shall use its reasonable efforts to ensure that Buyer, the
Agent and the Servicer each has an enforceable right (whether by license or
sublicense or otherwise) in accordance with SECTION 1.6(A) to use all of the
computer software used to account for such Receivables and/or to recreate such
Records.
Section 1.7 CHARACTERIZATION. If, notwithstanding the intention of
the parties expressed in SECTION 1.2(c), any sale or contribution by an
Originator to Buyer of Receivables hereunder shall be characterized as a secured
loan and not a sale or such sale shall for any reason be ineffective or
unenforceable, then this Agreement shall be deemed to constitute a security
agreement under the UCC and other applicable law. For this purpose and without
being in derogation of the parties' intention that the sale of Receivables by
each Originator hereunder shall constitute a true sale thereof, such Originator
hereby grants to Buyer a duly perfected security interest in all of such
Originator's right, title and interest in, to and under all Receivables of such
Originator which are now existing or hereafter arising, all Collections and
Related Security with respect thereto, each Lock-Box and Collection Account, all
other rights and payments relating to such Receivables and all proceeds of the
foregoing to secure the prompt and complete payment of a loan deemed to have
been made in an amount equal to the Purchase Price of the Receivables purchased
from such Originator together with all other obligations of such Originator
hereunder, which security interest shall be prior to all other Adverse Claims
thereto. Buyer and its assigns shall have, in addition to the rights and
remedies which they may have under this Agreement, all other rights and remedies
provided to a secured creditor under the UCC and other applicable law, which
rights and remedies shall be cumulative.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 REPRESENTATIONS AND WARRANTIES OF ORIGINATORS. Each
Originator hereby represents and warrants to Buyer on the date hereof, on the
date of the Purchase from such Originator hereunder and on each date that any
Receivable is originated by such Originator on or after the date of such
Purchase, that:
(a) EXISTENCE AND POWER. Such Originator is a corporation or
limited liability company, as applicable, duly organized under the laws of the
jurisdiction set forth after its name in the preamble to this Agreement (the
"APPLICABLE JURISDICTION"), and no other jurisdiction, and as to which such
Applicable Jurisdiction must maintain a public record showing the corporation
6
or limited liability company, as applicable, to have been organized. Such
Originator is validly existing and in good standing under the laws of its
Applicable Jurisdiction and is duly qualified to do business and is in good
standing as a foreign entity, and has and holds all power and all governmental
licenses, authorizations, consents and approvals required to carry on its
business in each jurisdiction in which its business is conducted except where
the failure to so qualify or so hold could not reasonably be expected to have a
Material Adverse Effect.
(b) POWER AND AUTHORITY; DUE AUTHORIZATION, EXECUTION AND
DELIVERY. The execution and delivery by such Originator of this Agreement and
each other Transaction Document to which it is a party, and the performance of
its obligations hereunder and thereunder, and such Originator's use of the
proceeds of the Purchase made from it hereunder, are within its organizational
powers and authority and have been duly authorized by all necessary
organizational action on its part. This Agreement and each other Transaction
Document to which such Originator is a party has been duly executed and
delivered by such Originator.
(c) NO CONFLICT. The execution and delivery by such
Originator of this Agreement and each other Transaction Document to which it is
a party, and the performance of its obligations hereunder and thereunder do not
contravene or violate (i) its Organizational Documents, (ii) any law, rule or
regulation applicable to it, (iii) any restrictions under any agreement,
contract or instrument to which it is a party or by which it or any of its
property is bound, or (iv) any order, writ, judgment, award, injunction or
decree binding on or affecting it or its property, and do not result in the
creation or imposition of any Adverse Claim on assets of such Originator or its
Subsidiaries (except as created hereunder) except, in any case, where such
contravention or violation could not reasonably be expected to have a Material
Adverse Effect; and no transaction contemplated hereby requires compliance with
any bulk sales act or similar law.
(d) GOVERNMENTAL AUTHORIZATION. Other than the filing of the
financing statements required hereunder, no authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution and delivery by such
Originator of this Agreement and each other Transaction Document to which it is
a party and the performance of its obligations hereunder and thereunder.
(e) ACTIONS, SUITS. There are no actions, suits or
proceedings pending, or to the best of such Originator's knowledge, threatened,
against or affecting such Originator, or any of its properties, in or before any
court, arbitrator or other body, that could reasonably be expected to have a
Material Adverse Effect. Such Originator is not in default with respect to any
order of any court, arbitrator or governmental body.
(f) BINDING EFFECT. This Agreement and each other
Transaction Document to which such Originator is a party constitute the legal,
valid and binding obligations of such Originator enforceable against such
Originator in accordance with their respective terms, except as such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization or other
similar laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
7
(g) ACCURACY OF INFORMATION. All information heretofore
furnished by such Originator or any of its Affiliates to Buyer (or its assigns)
for purposes of or in connection with this Agreement, any of the other
Transaction Documents or any transaction contemplated hereby or thereby is, and
all such information hereafter furnished by such Originator or any of its
Affiliates to Buyer (or its assigns) will be, true and accurate in every
material respect on the date such information is stated or certified and does
not and will not contain any material misstatement of fact or omit to state a
material fact or any fact necessary to make the statements contained therein,
taken as a whole, not misleading; provided that, with respect to any projected
financial information, such Originator represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.
(h) USE OF PROCEEDS. No portion of any Purchase Price
payment hereunder will be used by any Originator (i) for a purpose that
violates, or would be inconsistent with, any law, rule or regulation applicable
to such Originator or (ii) to acquire any margin stock in violation of
Regulation T, U or X of the Board of Governors of the Federal Reserve System.
(i) GOOD TITLE. Immediately prior to the Purchase from such
Originator hereunder and upon the creation of each Receivable originated by such
Originator after the Initial Cut-Off Date, such Originator (i) is the legal and
beneficial owner of such Receivables and (ii) is the legal and beneficial owner
of the Related Security with respect thereto or possesses a valid and perfected
security interest therein, in each case, free and clear of any Adverse Claim,
except Permitted Encumbrances. There have been duly filed all financing
statements or other similar instruments or documents necessary under the UCC (or
any comparable law) of all appropriate jurisdictions to perfect such
Originator's ownership interest in each such Receivable, its Collections and the
Related Security.
(j) PERFECTION. This Agreement, together with the filing of
the financing statements contemplated hereby, is effective to transfer to Buyer
(and Buyer shall acquire from such Originator) (i) legal and equitable title to,
with the right to sell and encumber each Receivable originated by such
Originator, whether now existing and hereafter arising, together with the
Collections with respect thereto, and (ii) all of such Originator's right, title
and interest in the Related Security associated with each such Receivable, in
each case, free and clear of any Adverse Claim, except as created by the
Transactions Documents. There have been duly filed all financing statements or
other similar instruments or documents necessary under the UCC (or any
comparable law) of all appropriate jurisdictions to perfect Buyer's ownership
interest in such Receivables, the Related Security and the Collections.
Originator's jurisdiction of organization is a jurisdiction whose law generally
requires information concerning the existence of a nonpossessory security
interest to be made generally available in a filing, record or registration
system as a condition or result of such a security interest's obtaining priority
over the rights of a lien creditor which respect to collateral.
(k) PLACES OF BUSINESS AND LOCATIONS OF RECORDS. The
principal places of business and chief executive office and jurisdiction of
organization of such Originator and the offices where it keeps all of its
Records are located at the address(es) listed on EXHIBIT II or such other
locations of which Buyer has been notified in accordance with SECTION 4.2(A) in
jurisdictions where all action required by SECTION 4.2(A) has been taken and
completed. Such
8
Originator's Federal Employer Identification Number and organizational
identification number are correctly set forth on EXHIBIT II.
(l) COLLECTIONS. The conditions and requirements set forth
in SECTION 4.1(J) have at all times been satisfied and duly performed. The names
and addresses of all Collection Banks, together with the account numbers of the
Collection Accounts of such Originator at each Collection Bank and the post
office box number of each Lock-Box, are listed on EXHIBIT III. Such Originator
has not granted any Person, other than Buyer (and its assigns) dominion and
control of any Lock-Box or Collection Account, or the right to take dominion and
control of any such Lock-Box or Collection Account at a future time or upon the
occurrence of a future event.
(m) MATERIAL ADVERSE EFFECT. Since March 31, 2004, and
except as disclosed in the reports made by the Parent to the Securities and
Exchange Commission prior to the date of this Agreement, no event has occurred
that could reasonably be expected to have a Material Adverse Effect.
(n) NAMES. The name in which such Originator has executed
this Agreement is identical to the name of such Originator as indicated on the
public record of its jurisdiction of organization which shows such Originator to
have been organized. In the past five (5) years, such Originator has not used
any corporate or limited liability company names, trade names or assumed names
other than the name in which it has executed this Agreement except as disclosed
on Exhibit II attached hereto.
(o) OWNERSHIP OF BUYER. Parent owns, directly or indirectly,
100% of the issued and outstanding equity interests of EIS. EIS owns directly
100% of the issued and outstanding equity interests of Buyer. Such equity
interests are validly issued, fully paid and nonassessable, and there are no
options, warrants or other rights to acquire securities of Buyer.
(p) NOT A HOLDING COMPANY OR AN INVESTMENT COMPANY. Such
Originator is not a "HOLDING COMPANY" or a "SUBSIDIARY HOLDING COMPANY" of a
"HOLDING COMPANY" within the meaning of the Public Utility Holding Company Act
of 1935, as amended, or any successor statute. Such Originator is not an
"INVESTMENT COMPANY" within the meaning of the Investment Company Act of 1940,
as amended, or any successor statute.
(q) COMPLIANCE WITH LAW. Such Originator has complied in all
respects with all applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject, except where the
failure to so comply could not reasonably be expected to have a Material Adverse
Effect. Each Receivable, together with the Contract related thereto, does not
contravene any laws, rules or regulations applicable thereto (INCLUDING, WITHOUT
LIMITATION, laws, rules and regulations relating to truth in lending, fair
credit billing, fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy), and no part of such Contract is in violation
of any such law, rule or regulation, except where such contravention or
violation could not reasonably be expected to have a Material Adverse Effect.
(r) COMPLIANCE WITH CREDIT AND COLLECTION POLICY. Such
Originator has complied in all material respects with the Credit and Collection
Policy with regard to each Receivable originated by it and the related Contract,
and has not made any material change to
9
such Credit and Collection Policy, except such material change as to which Buyer
(or its assigns) has been notified in accordance with SECTION 4.1(A)(VII).
(s) PAYMENTS TO SUCH ORIGINATOR. With respect to each
Receivable originated by such Originator and sold to Buyer hereunder, the
Purchase Price received by such Originator constitutes reasonably equivalent
value in consideration therefor. No transfer hereunder by such Originator of any
Receivable originated by such Originator is or may be voidable under any section
of the Bankruptcy Reform Act of 1978 (11 U.S.C. ss.ss. 101 ET SEQ.), as amended.
(t) ENFORCEABILITY OF CONTRACTS. Each Contract with respect
to each Receivable is effective to create, and has created, a legal, valid and
binding obligation of the related Obligor to pay the Outstanding Balance of the
Receivable created thereunder and any accrued interest thereon, enforceable
against the Obligor in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(u) ELIGIBLE RECEIVABLES. Each Receivable reflected in any
Purchase Report as an Eligible Receivable was an Eligible Receivable on the date
of its acquisition by Buyer hereunder.
(v) ACCOUNTING. The manner in which such Originator accounts
for the transactions contemplated by this Agreement in its financial statements
does not jeopardize the characterization of the transactions contemplated herein
as being true sales.
ARTICLE III
CONDITIONS OF PURCHASE
Section 3.1 CONDITIONS PRECEDENT TO PURCHASE. The Purchases under
this Agreement are subject to the conditions precedent that (a) Buyer shall have
been capitalized with the Initial Contributed Receivables, (b) Buyer shall have
received on or before the date of such purchase those documents listed on
SCHEDULE A and (c) all of the conditions to the initial loan under the Credit
and Security Agreement shall have been satisfied or waived in accordance with
the terms thereof.
Section 3.2 CONDITIONS PRECEDENT TO SUBSEQUENT PAYMENTS. Buyer's
obligation to pay for Receivables coming into existence after the Initial Cutoff
Date shall be subject to the further conditions precedent that: (a) the Facility
Termination Date shall not have occurred under the Credit and Security
Agreement; (b) Buyer (or its assigns) shall have received such other approvals,
opinions or documents as it may reasonably request and (c) on the date such
Receivable came into existence, the following statements shall be true (and
acceptance of the proceeds of any payment for such Receivable shall be deemed a
representation and warranty by such Originator that such statements are then
true):
(i) the representations and warranties set forth in
ARTICLE II are true and correct in all material respects on and as of
the date such Receivable came into existence as though made on and as of
such date; PROVIDED, HOWEVER, that the preceding
10
standard shall not apply to those representations and warranties which
themselves contain materiality standards; and
(ii) no event has occurred and is continuing that
will constitute a Termination Event or an Unmatured Termination Event.
Notwithstanding the foregoing conditions precedent, upon payment of the Purchase
Price for any Receivable (whether by payment of cash, through an increase in the
amounts outstanding under the Revolving Note, by offset of amounts owed to Buyer
and/or by offset of capital contributions), title to such Receivable and the
Related Security and Collections with respect thereto shall vest in Buyer,
whether or not the conditions precedent to Buyer's obligation to pay for such
Receivable were in fact satisfied. The failure of such Originator to satisfy any
of the foregoing conditions precedent, however, shall give rise to a right of
Buyer to rescind the related purchase and direct such Originator to pay to Buyer
an amount equal to the Purchase Price payment that shall have been made with
respect to any Receivables related thereto.
ARTICLE IV
COVENANTS
Section 4.1 AFFIRMATIVE COVENANTS OF ORIGINATORS. Until the date on
which this Agreement terminates in accordance with its terms, each Originator
hereby covenants as set forth below:
(a) FINANCIAL REPORTING. Such Originator will maintain, for
itself and each of its Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish to Buyer (or its assigns):
(i) ANNUAL REPORTING. As soon as practicable and in
any event within ninety-five (95) days after the end of each Fiscal Year, either
(i) a copy of a report on Form 10-K, or any successor form, and any amendments
thereto, filed by the Parent with the Securities and Exchange Commission with
respect to the immediately preceding Fiscal Year or (ii) an audited consolidated
balance sheet of the Parent and its Subsidiaries as of the close of such Fiscal
Year and audited Consolidated statements of income, stockholders' equity and
cash flows for the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures
for the preceding Fiscal Year and prepared by the Parent and certified by a
nationally recognized independent certified public accounting firm acceptable to
the Agent in accordance with GAAP and, if applicable, containing disclosure of
the effect on the financial position or results of operation of any change in
the application of accounting principles and practices during the year, and
accompanied by a report thereon by such certified public accountants that is not
qualified with respect to scope limitations imposed by the Parent or any of its
Subsidiaries or with respect to accounting principles followed by the Parent or
any of its Subsidiaries not in accordance with GAAP.
(ii) QUARTERLY REPORTING. As soon as practicable and
in any event, within fifty (50) days after the end of each of the first three
(3) fiscal quarters of each Fiscal Year, either (i) a copy of a report on Form
10-Q, or any successor form, and any amendments
11
thereto, filed by the Parent with the Securities and Exchange Commission with
respect to the immediately preceding fiscal quarter or (ii) an unaudited
consolidated balance sheet of the Parent and its Subsidiaries as of the close of
such fiscal quarter and unaudited consolidated statements of income,
stockholders' equity and cash flows for the fiscal quarter then ended and that
portion of the Fiscal Year then ended, including any notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures
for the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the preceding Fiscal Year and prepared by the Parent in
accordance with GAAP and, if applicable, containing disclosure of the effect on
the financial position or results of operations of any change in the application
of accounting principles and practices during the period, and certified by a
Responsible Officer of the Parent to present fairly in all material respects the
financial condition of the Parent and its Subsidiaries as of their respective
dates and the results of operations of the Parent and its Subsidiaries for the
respective periods then ended, subject to normal year-end adjustments and to the
absence of footnotes required by GAAP
(iii) COMPLIANCE CERTIFICATE. Together with the
financial statements required hereunder, a compliance certificate in
substantially the form of EXHIBIT IV signed by Parent's Authorized Officer and
dated the date of such annual financial statement or such quarterly financial
statement, as the case may be.
(iv) SHAREHOLDERS STATEMENTS AND REPORTS. Promptly
upon the furnishing thereof to the shareholders of the Parent, copies of all
financial statements, reports and proxy statements so furnished.
(v) S.E.C. FILINGS. Promptly after the filing
thereof, a copy of (i) each report or other filing made by the Parent or any of
its Subsidiaries with the Securities and Exchange Commission and required by the
Securities and Exchange Commission to be delivered to the shareholders of the
Parent or any Subsidiary thereof, (ii) each report made by the Parent or any
Subsidiary thereof to the Securities and Exchange Commission on Form 8-K and
(iii) each final registration statement of the Parent or any Subsidiary thereof
filed with the Securities and Exchange Commission, except in connection with
pension plans and other employee benefit plans.
(vi) COPIES OF NOTICES. Promptly upon its receipt of
any notice, request for consent, financial statements, certification, report or
other communication under or in connection with any Transaction Document from
any Person other than Buyer, the Agent or Blue Ridge, copies of the same.
(vii) CHANGE IN CREDIT AND COLLECTION POLICY. At least
thirty (30) days prior to the effectiveness of any material change in or
material amendment to the Credit and Collection Policy, a copy of the Credit and
Collection Policy then in effect and a notice (A) indicating such proposed
change or amendment ,and (B) if such proposed change or amendment would be
reasonably likely to adversely affect the collectibility of the Receivables or
decrease the credit quality of any newly created Receivables, requesting Buyer's
(and the Agent's, as Buyer's assignee) consent thereto.
12
(viii) OTHER INFORMATION. Promptly, from time to time,
such other information, documents, records or reports relating to the
Receivables originated by such Originator or the condition or operations,
financial or otherwise, of such Originator as Buyer (or its assigns) may from
time to time reasonably request in order to protect the interests of Buyer (and
its assigns) under or as contemplated by this Agreement.
(b) NOTICES. Such Originator will notify Buyer (or its
assigns) in writing of any of the following promptly upon learning of the
occurrence thereof by any Responsible Officer, describing the same and, if
applicable, the steps being taken with respect thereto:
(i) TERMINATION EVENTS OR UNMATURED TERMINATION
EVENTS. The occurrence of each Termination Event and each Unmatured Termination
Event, by a statement of an Authorized Officer of such Originator.
(ii) JUDGMENT AND PROCEEDINGS. (1) The entry of any
judgment or decree against any Originator or any of its Subsidiaries if the
aggregate amount of all judgments and decrees then outstanding against the
Originators and their Subsidiaries exceeds $10,000,000 after deducting (a) the
amount with respect to which the applicable Originator or Subsidiary is insured
and with respect to which the insurer has assumed responsibility in writing, and
(b) the amount for which the applicable Originator or Subsidiary is otherwise
indemnified if the terms of such indemnification are satisfactory to Buyer (or
its assigns), and (2) the institution of any litigation, arbitration proceeding
or governmental proceeding against any Originator which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(iii) MATERIAL ADVERSE EFFECT. The occurrence of any
event or condition that has had, or could reasonably be expected to have, a
Material Adverse Effect.
(iv) DEFAULTS UNDER PARENT CREDIT AGREEMENT. The
occurrence of any Default or Event of Default under (and as such term is defined
in) the Parent Credit Agreement.
(v) ERISA EVENTS. The occurrence of any ERISA Event
that could reasonably be expected to have a Material Adverse Effect.
(vi) DOWNGRADE OF PARENT. Any downgrade in the rating
of any Indebtedness of Parent by S&P or by Moody's, setting forth the
Indebtedness affected and the nature of such change (but excluding any private
indicative ratings that the Parent may request from time to time from Moody's or
S&P).
(c) COMPLIANCE WITH LAWS AND PRESERVATION OF EXISTENCE. Such
Originator will (i) comply in all respects with all applicable laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect and (ii) will preserve and maintain
its legal existence, rights, franchises and privileges in the jurisdiction of
its organization, and qualify and remain qualified in good standing as a foreign
entity in each jurisdiction where its business is conducted, except where the
failure to so qualify or remain in good standing could not reasonably be
expected to have a Material Adverse Effect; provided, however, that nothing in
the foregoing shall prevent such Originator from discontinuing any line of
business if (x) no Termination Event or Unmatured Termination Event exists or
would result
13
therefrom, and (y) with respect to the discontinuance of a material line of
business, the board of directors (or comparable governing body) of such
Originator determines in good faith that such discontinuance is in the best
interest of the Parent and its Consolidated Subsidiaries, taken as a whole.
(d) AUDITS. Such Originator will furnish to Buyer (or its
assigns) from time to time such information with respect to it and the
Receivables sold by it as Buyer (or its assigns) may reasonably request. Such
Originator will, from time to time during regular business hours as requested by
Buyer (or its assigns), upon reasonable notice and at the sole cost of such
Originator, permit Buyer (or its assigns) or their respective agents or
representatives, (i) to examine and make copies of and abstracts from all
Records in the possession or under the control of such Originator relating to
the Receivables and the Related Security, including, without limitation, the
related Contracts, and (ii) to visit the offices and properties of such
Originator for the purpose of examining such materials described in clause (i)
above, and to discuss matters relating to such Originator's financial condition
or the Receivables and the Related Security or such Originator's performance
under any of the Transaction Documents or such Originator's performance under
the Contracts and, in each case, with any of the officers or employees of such
Originator having knowledge of such matters (each of the foregoing examinations
and visits, a "REVIEW"); PROVIDED, HOWEVER, that, so long as no Amortization
Event (under and as defined in the Credit and Security Agreement) has occurred
and is continuing: (A) the Originators, collectively, shall only be responsible
for the reasonable costs and expenses of one (1) Review in any one calendar
year, and (B) the Agent (as Buyer's assignee) will not request more than four
(4) Reviews in any one calendar year. To the extent that Buyer (or its assigns),
in the course of any Review, obtains any Proprietary Information pertaining to
any Originator or any of its Affiliates, Buyer (or its assign) shall handle such
information in accordance with the requirements of SECTION 7.4 hereof.
(e) KEEPING AND MARKING OF RECORDS AND BOOKS.
(i) Such Originator will maintain and implement
administrative and operating procedures (including, without limitation,
an ability to recreate records evidencing Receivables in the event of
the destruction of the originals thereof), and keep and maintain all
documents, books, records and other information reasonably necessary or
advisable for the collection of all Receivables (including, without
limitation, records adequate to permit the immediate identification of
each new Receivable and all Collections of and adjustments to each
existing Receivable). Such Originator will give Buyer (or its assigns)
notice of any material change in the administrative and operating
procedures referred to in the previous sentence.
(ii) Such Originator will (A) on or prior to the date
hereof, mark its books and records including aged trial balance with
respect to the Receivables with a legend, acceptable to Buyer (or its
assigns), describing Buyer's ownership interests in the Receivables and
further describing the security interest in the Receivable of the Agent
(on behalf of the Lenders) under the Credit and Security Agreement and
(B) upon the request of Buyer (or its assigns) made at any time when a
Termination Event has occurred and is continuing: (x) mark each Contract
with a legend describing Buyer's ownership interests in the Receivables
originated by such Originator and further
14
describing the security interests in the Receivable of the Agent (on
behalf of the Lenders) and (y) deliver to Buyer (or its assigns) all
Contracts (including, without limitation, all multiple originals of any
such Contract) relating to such Receivables.
(f) COMPLIANCE WITH CONTRACTS AND CREDIT AND COLLECTION
POLICY. Such Originator will timely and fully (i) perform and comply in all
material respects with all provisions, covenants and other promises required to
be observed by it under the Contracts related to the Receivables originated by
it, and (ii) comply in all material respects with the Credit and Collection
Policy in regard to each such Receivable and the related Contract.
(g) [Intentionally Omitted]
(h) OWNERSHIP. Such Originator will take all necessary
action to establish and maintain, irrevocably in Buyer, (A) legal and equitable
title to the Receivables originated by such Originator and the Collections and
(B) all of such Originator's right, title and interest in the Related Security
associated with the Receivables originated by such Originator, in each case,
free and clear of any Adverse Claims other than Permitted Encumbrances
(INCLUDING, WITHOUT LIMITATION, the filing of all financing statements or other
similar instruments or documents necessary under the UCC (or any comparable law)
of all appropriate jurisdictions to perfect Buyer's interest in such
Receivables, Related Security and Collections and such other action to perfect,
protect or more fully evidence the interest of Buyer as Buyer (or its assigns)
may reasonably request).
(i) LENDERS' RELIANCE. Such Originator acknowledges that the
Agent and the Lenders are entering into the transactions contemplated by the
Credit and Security Agreement in reliance upon Buyer's identity as a legal
entity that is separate from such Originator and any Affiliates thereof.
Therefore, from and after the date of execution and delivery of this Agreement,
such Originator will take all reasonable steps including, without limitation,
all steps that Buyer or any assignee of Buyer may from time to time reasonably
request to maintain Buyer's identity as a separate legal entity and to make it
manifest to third parties that Buyer is an entity with assets and liabilities
distinct from those of such Originator and any Affiliates thereof and not just a
division of such Originator or any such Affiliate. Without limiting the
generality of the foregoing and in addition to the other covenants set forth
herein, such Originator (i) will not hold itself out to third parties as liable
for the debts of Buyer nor purport to own any of the Receivables and other
assets acquired by Buyer, (ii) will take all other actions necessary on its part
to ensure that Buyer is at all times in compliance with the "separateness
covenants" set forth in SECTION 7.1(I) of the Credit and Security Agreement and
(iii) will cause all tax liabilities arising in connection with the transactions
contemplated herein or otherwise to be allocated between such Originator and
Buyer on an arm's-length basis and in a manner consistent with the procedures
set forth in U.S. Treasury Regulations ss.ss.1.1502-33(d) and 1.1552-1.
(j) COLLECTIONS. Such Originator will cause (1) all proceeds
from all Lock-Boxes to be directly deposited by a Collection Bank into a
Collection Account and (2) each Lock-Box and Collection Account to be subject at
all times to a Collection Account Agreement that is in full force and effect. In
the event any payments relating to Receivables are remitted directly to such
Originator or any Affiliate of such Originator, such Originator will remit (or
will cause all such payments to be remitted) directly to a Collection Bank and
deposited into a
15
Collection Account within two (2) Business Days following receipt thereof and,
at all times prior to such remittance, such Originator will itself hold or, if
applicable, will cause such payments to be held in trust for the exclusive
benefit of Buyer and its assigns. Such Originator will transfer exclusive
ownership, dominion and control of each Lock-Box and Collection Account to Buyer
and, will not grant the right to take dominion and control of any Lock-Box or
Collection Account at a future time or upon the occurrence of a future event to
any Person, except to Buyer (or its assigns) as contemplated by this Agreement
and the Credit and Security Agreement.
(k) TAXES. Unless otherwise filed by the Parent,(i) such
Originator will file all tax returns and reports required by law to be filed by
it and promptly pay all taxes and governmental charges at any time owing, except
(x)such taxes that are being contested in good faith by appropriate proceedings
and for which Performance Guarantor has set aside on its books adequate reserves
or (y) to the extent the failure to do so could not reasonably be expected to
have a Material Adverse Effect and (ii) such Originator will pay when due any
taxes payable in connection with the Receivables originated by it, exclusive of
taxes on or measured by income or gross receipts of Buyer and its assigns.
Section 4.2 NEGATIVE COVENANTS OF ORIGINATORS. Until the date on
which this Agreement terminates in accordance with its terms, each Originator
hereby covenants that:
(a) NAME CHANGE, OFFICES AND RECORDS. Such Originator will
not change its (i) state of organization, (ii) name, (iii) identity or structure
(within the meaning of Article 9 of any applicable enactment of the UCC) or
relocate its chief executive office at any time while the location of its chief
executive office is relevant to perfection of Buyer's interest in the
Receivables or the associated Related Security and Collections or any office
where Records are kept unless it shall have: (i) given Buyer (and the Agent, as
its assignee) at least ten (10) Business Days' prior written notice thereof and
(ii) delivered to the Agent (as Buyer's assignee) all financing statements,
instruments and other documents requested by the Agent in connection with such
change or relocation.
(b) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. Such
Originator will not add or terminate any bank as a Collection Bank, or make any
change in the instructions to Obligors regarding payments to be made to any
Lock-Box or Collection Account, unless Buyer (or its assigns) shall have
received, at least ten (10) days before the proposed effective date therefor,
(i) written notice of such addition, termination or change and (ii) with respect
to the addition of a Collection Bank or a Collection Account or Lock-Box, an
executed Collection Account Agreement with respect to the new Collection Account
or Lock-Box; PROVIDED, HOWEVER, that such Originator may make changes in
instructions to Obligors regarding payments if such new instructions require
such Obligor to make payments to another existing Collection Account.
(c) MODIFICATIONS TO CONTRACTS AND CREDIT AND COLLECTION
POLICY. Such Originator will not make any material change to the Credit and
Collection Policy that could reasonably be expected to adversely affect the
collectibility of the Receivables originated by it or decrease the credit
quality of any of its newly created Receivables. Except as otherwise permitted
in its capacity as Servicer pursuant to the Credit and Security Agreement, such
Originator will not extend, amend or otherwise modify the terms of any
Receivable other than in accordance with the Credit and Collection Policy.
16
(d) SALES, LIENS. Such Originator will not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or grant any option with
respect to, or create or suffer to exist any Adverse Claim (other than Permitted
Encumbrances) upon (including, without limitation, the filing of any financing
statement) or with respect to, any Receivable, Related Security or Collections,
or upon or with respect to any Contract under which any Receivable arises, or
any Lock-Box or Collection Account, or assign any right to receive income with
respect thereto (other than, in each case, the creation of the interests therein
in favor of Buyer provided for herein and any other Permitted Encumbrances), and
such Originator will defend the right, title and interest of Buyer in, to and
under any of the foregoing property, against all claims of third parties
claiming through or under such Originator (other than Permitted Encumbrances).
(e) [Intentionally Omitted]
(f) ACCOUNTING FOR PURCHASE. Such Originator will not, and
will not permit any Affiliate to, financially account (whether in financial
statements or otherwise) for the transactions contemplated hereby in any manner
other than the sale or other outright conveyance by such Originator to Buyer of
the Receivables originated by such Originator and the associated Related
Security or in any other respect account for or treat the transactions
contemplated hereby in any manner other than as a sale of such Receivables and
Related Security by such Originator to Buyer except to the extent that such
transactions are not recognized on account of consolidated financial reporting
in accordance with generally accepted accounting principles.
ARTICLE V
TERMINATION EVENTS
Section 5.1 TERMINATION EVENTS. The occurrence of any one or more of
the following events shall constitute a Termination Event:
(a) Such Originator shall fail to make any payment or
deposit required hereunder when due and, for any such payment or deposit which
is not in respect of principal, such failure shall continue unremedied for five
(5) Business Days after the earlier of a Responsible Officer becoming aware of
such default or written notice thereof has been given to such Originator by
Buyer.
(b) Such Originator shall fail to perform or observe (i) any
covenant contained in Section 4.1(b)(i), 4,1(c)(ii) or 4.2 of this Agreement
when due, (ii) any other covenant or agreement contained in Section 4.1(a) or
4.1(b) of this Agreement and such failure shall continue unremedied for fifteen
(15) days after the earliest of a Responsible Officer becoming aware of such
default or written notice thereof has been given to such Originator by Buyer, or
(iii) any other covenant or agreement not mentioned in this Section 5.1 under
any Transaction Documents and such failure shall continue unremedied for thirty
(30) days after the earlier of a Responsible Officer becoming aware of such
default or written notice thereof has been given to such Originator by Buyer.
(c) Any representation, warranty, certification or statement
made by such Originator in this Agreement, any other Transaction Document or in
any other document delivered pursuant hereto or thereto shall prove to have been
incorrect in any material respect
17
when made or deemed made; PROVIDED THAT the materiality threshold in the
preceding clause shall not be applicable with respect to any representation or
warranty which itself contains a materiality threshold and PROVIDED FURTHER,
that any misrepresentation or certification for which Buyer has actually
received a Purchase Price Credit shall not constitute a Termination Event
hereunder.
(d) Failure of any Originator to pay any Indebtedness when
due in excess of $20,000,000 or the default by any Originator in the performance
of any term, provision or condition contained in any agreement under which any
such Indebtedness was created or is governed, the effect of which is to cause,
or to permit the holder or holders of such Indebtedness to cause, such
Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of any Originator shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior to
the date of maturity thereof.
(e) (i) Parent or any of its Material Subsidiaries shall
generally not pay its debts as such debts become due or shall admit in writing
its inability to pay its debts generally or shall make a general assignment for
the benefit of creditors; or (ii) any proceeding shall be instituted by or
against Parent or any of its Material Subsidiaries seeking to adjudicate it
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or any substantial part of
its property or (iii) Parent or any of its Material Subsidiaries shall take any
corporate or limited liability company action to authorize any of the actions
set forth in the foregoing clauses (i) or (ii) of this subsection (e).
(f) A Change of Control shall occur.
(g) One or more final judgments for the payment of money in
an amount in excess of $10,000,000 individually or in the aggregate, shall be
entered against any Originator on claims not covered by insurance or as to which
the insurance carrier has denied its responsibility, and such judgment shall
continue unsatisfied and in effect for thirty (30) consecutive days without a
stay of execution.
(h) An ERISA Event shall occur with respect to a Pension
Plan or Multiemployer Plan when: (i) there shall be an Unfunded-Pension
Liability among the Pension Plans; or (ii) any Originator or any ERISA Affiliate
shall fail to pay when due, after the expiration of any applicable grace period,
any installment payment with respect to its withdrawal liability under Section
4201 of ERISA under a Multiemployer Plan, and there shall result from any such
event, Unfunded-Pension Liability, or (iii) a liability of the Parent or any of
its Subsidiaries to the PBGC or a Plan, in each case (under clauses (i), (ii)
and (iii) above)) that could reasonably be expected to have a Material Adverse
Effect.
Section 5.2 REMEDIES. Upon the occurrence and during the
continuation of a Termination Event, Buyer may take any of the following actions
upon notice to the Originators: (i) declare the Termination Date to have
occurred, whereupon the Termination Date shall forthwith occur, without demand,
protest or further notice of any kind, all of which are hereby
18
expressly waived by each Originator; PROVIDED, HOWEVER, that upon the occurrence
of a Termination Event described in SECTION 5.1(E)(II), or of an actual or
deemed entry of an order for relief with respect to such Originator under the
Federal Bankruptcy Code, the Termination Date shall automatically occur, without
demand, protest or any notice of any kind, all of which are hereby expressly
waived by each Originator and (ii) to the fullest extent permitted by applicable
law, declare that the Default Fee shall accrue with respect to any amounts then
due and owing by such Originator to Buyer. The aforementioned rights and
remedies shall be without limitation and shall be in addition to all other
rights and remedies of Buyer and its assigns otherwise available under any other
provision of this Agreement, by operation of law, at equity or otherwise, all of
which are hereby expressly preserved, including, without limitation, all rights
and remedies provided under the UCC, all of which rights shall be cumulative.
ARTICLE VI
INDEMNIFICATION
Section 6.1 INDEMNITIES BY ORIGINATORS. Without limiting any other
rights that Buyer may have hereunder or under applicable law, each Originator
hereby agrees to indemnify (and pay upon demand to) Buyer and its assigns,
officers, directors, agents and employees (each an "INDEMNIFIED PARTY") from and
against any and all damages, losses, claims, taxes, liabilities, costs, expenses
and for all other amounts payable, including reasonable and actual attorneys'
fees (which attorneys may be employees of Buyer or any such assign) and
disbursements (all of the foregoing being collectively referred to as
"INDEMNIFIED AMOUNTS") awarded against or incurred by any of them arising out of
or as a result of this Agreement or the acquisition, either directly or
indirectly, by Buyer of an interest in the Receivables originated by such
Originator, EXCLUDING, HOWEVER:
(a) Indemnified Amounts to the extent a final judgment of a
court of competent jurisdiction holds that such Indemnified Amounts
resulted from gross negligence or willful misconduct on the part of the
Indemnified Party seeking indemnification provided that such Originator
shall not be obligated to indemnify any Indemnified Party under this
Section 6.1 in connection with any claim under any cause of action by or
against such Indemnified Person with respect to which such Originator is
an adverse party and such Originator is the prevailing party with
respect to such claim under such cause of action;
(b) Indemnified Amounts to the extent the same includes
losses in respect of Receivables originated by such Originator that are
uncollectible on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Obligor; or
(c) taxes imposed by the jurisdiction in which such
Indemnified Party's principal executive office is located, on or
measured by the overall net income of such Indemnified Party;
PROVIDED, HOWEVER, that nothing contained in this sentence shall limit the
liability of such Originator or limit the recourse of Buyer to such Originator
for amounts otherwise specifically provided to be paid by such Originator under
the terms of this Agreement. Without limiting the
19
generality of the foregoing indemnification, but subject in each case to clauses
(a), (b) and (c) above, each Originator shall indemnify Buyer for Indemnified
Amounts relating to or resulting from:
(i) any representation or warranty made by such
Originator (or any officers of such Originator) under or in connection
with any Purchase Report, this Agreement, any other Transaction Document
or any other information or report delivered by such Originator pursuant
hereto or thereto for which Buyer has not received a Purchase Price
Credit that shall have been false or incorrect when made or deemed made;
(ii) the failure by such Originator, to comply with
any applicable law, rule or regulation with respect to any Receivable or
Contract related thereto, or the nonconformity of any Receivable or
Contract included therein with any such applicable law, rule or
regulation or any failure of such Originator to keep or perform any of
its obligations, express or implied, with respect to any Contract;
(iii) any failure of such Originator to perform its
duties, covenants or other obligations in accordance with the provisions
of this Agreement or any other Transaction Document;
(iv) any products liability, personal injury or
damage, suit or other similar claim arising out of or in connection with
merchandise, insurance or services that are the subject of any Contract
or any Receivable;
(v) any dispute, claim, offset or defense (other
than discharge in bankruptcy of the Obligor) of the Obligor to the
payment of any Receivable (including, without limitation, a defense
based on such Receivable or the related Contract not being a legal,
valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from the sale
of the merchandise or service related to such Receivable or the
furnishing or failure to furnish such merchandise or services; (vi) the
commingling of Collections of Receivables at any time with other funds;
(vii) any investigation, litigation or proceeding
related to or arising from this Agreement or any other Transaction
Document, the transactions contemplated hereby, such Originator's use of
the proceeds of the Purchase from it hereunder, the ownership of the
Receivables originated by such Originator or any other investigation,
litigation or proceeding relating to such Originator in which any
Indemnified Party becomes involved as a result of any of the
transactions contemplated hereby;
(viii) any inability to litigate any claim against any
Obligor in respect of any Receivable as a result of such Obligor being
immune from civil and commercial law and suit on the grounds of
sovereignty or otherwise from any legal action, suit or proceeding;
(ix) any Termination Event described in SECTION
5.1(E)(II);
20
(x) any failure to vest and maintain vested in
Buyer, or to transfer to Buyer, legal and equitable title to, and
ownership of, the Receivables originated by such Originator and the
associated Collections, and all of such Originator's right, title and
interest in the Related Security associated with such Receivables, in
each case, free and clear of any Adverse Claim;
(xi) the failure to have filed, or any delay in
filing, financing statements or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable laws
with respect to any Receivable originated by such Originator, the
Related Security and Collections with respect thereto, and the proceeds
of any thereof, whether at the time of the Purchase from such Originator
hereunder or at any subsequent time;
(xii) any action or omission by such Originator which
reduces or impairs the rights of Buyer with respect to any Receivable or
the value of any such Receivable (for any reason other than the
application of Collections thereto or charge-off of any Receivable as
uncollectible);
(xiii) any attempt by any Person to void the Purchase
from such Originator hereunder under statutory provisions or common law
or equitable action; and
(xiv) the failure of any Receivable reflected as an
Eligible Receivable on any Purchase Report prepared by such Originator
to be an Eligible Receivable at the time acquired by Buyer.
Section 6.2 OTHER COSTS AND EXPENSES. Each Originator shall pay to
Buyer on demand all reasonable costs and out-of-pocket expenses in connection
with the preparation, execution, delivery and administration of this Agreement,
the transactions contemplated hereby and the other documents to be delivered
hereunder. Each Originator shall pay to Buyer on demand any and all costs and
expenses of Buyer, if any, including reasonable counsel fees and expenses in
connection with the enforcement of this Agreement and the other documents
delivered hereunder and in connection with any restructuring or workout of this
Agreement or such documents, or the administration of this Agreement following a
Termination Event.
ARTICLE VII
MISCELLANEOUS
Section 7.1 WAIVERS AND AMENDMENTS.
(a) No failure or delay on the part of Buyer (or its
assigns) in exercising any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other further exercise thereof or the
exercise of any other power, right or remedy. The rights and remedies herein
provided shall be cumulative and nonexclusive of any rights or remedies provided
by law. Any waiver of this Agreement shall be effective only in the specific
instance and for the specific purpose for which given.
21
(b) No provision of this Agreement may be amended,
supplemented, modified or waived except in writing signed by each Originator and
Buyer and, to the extent required under the Credit and Security Agreement, the
Agent and the Liquidity Banks or the Lenders. Any material amendment,
supplement, modification of waiver will required satisfaction of the Rating
Agency Condition.
Section 7.2 NOTICES. All communications and notices provided for
hereunder shall be in writing (including bank wire, telecopy or electronic
facsimile transmission or similar writing) and shall be given to the other
parties hereto at their respective addresses or telecopy numbers set forth on
the signature pages hereof or at such other address or telecopy number as such
Person may hereafter specify for the purpose of notice to each of the other
parties hereto. Each such notice or other communication shall be effective (a)
if given by telecopy, upon the receipt thereof, (b) if given by mail, five (5)
Business Days after the time such communication is deposited in the mail with
first class postage prepaid or (c) if given by any other means, when received at
the address specified in this SECTION 7.2.
Section 7.3 PROTECTION OF OWNERSHIP INTERESTS OF BUYER.
(a) Each Originator agrees that from time to time, at its
expense, it will promptly execute and deliver all instruments and documents, and
take all actions, that may be necessary or desirable, or that Buyer (or its
assigns) may request, to perfect, protect or more fully evidence the interest of
Buyer hereunder and the Receivable, or to enable Buyer (or its assigns) to
exercise and enforce their rights and remedies hereunder. At any time when a
Termination Event has occurred and is continuing, Buyer (or its assigns) may, at
such Originator's sole cost and expense, direct such Originator to notify the
Obligors of Receivables of the ownership interests of Buyer under this Agreement
and may also direct that payments of all amounts due or that become due under
any or all Receivables be made directly to Buyer or its designee.
(b) If any Originator fails to perform any of its
obligations hereunder, Buyer (or its assigns) may (but shall not be required to)
perform, or cause performance of, such obligations, and Buyer's (or such
assigns') reasonable costs and expenses incurred in connection therewith shall
be payable by such Originator as provided in SECTION 6.2. Each Originator
irrevocably authorizes Buyer (and its assigns) at any time and from time to time
when a Termination Event has occurred and is continuing in the sole discretion
of Buyer (or its assigns), and appoints Buyer (and its assigns) as its
attorney(ies)-in-fact, to act on behalf of such Originator (i) to execute on
behalf of such Originator as debtor and to file financing statements necessary
or desirable in Buyer's (or its assigns') reasonable judgment to perfect and to
maintain the perfection and priority of the interest of Buyer in the Receivables
originated by such Originator and the associated Related Security and
Collections and (ii) to file a carbon, photographic or other reproduction of
this Agreement or any financing statement with respect to the Receivables as a
financing statement in such offices as Buyer (or its assigns) in their
reasonable judgment deem necessary or desirable to perfect and to maintain the
perfection and priority of Buyer's interests in such Receivables. This
appointment is coupled with an interest and is irrevocable. If any Originator
fails to perform any of its obligations hereunder: (A) such Originator hereby
authorizes Buyer (or its assigns) to file financing statements and other filing
or recording documents with respect to the Receivables and Related Security
(including any amendments thereto, or continuation or termination statements
thereof), without the signature or
22
other authorization of such Originator, in such form and in such offices as
Buyer (or any of its assigns) reasonably determines appropriate to perfect or
maintain the perfection of the ownership or security interests of Buyer (or its
assigns) hereunder, (B) such Originator acknowledges and agrees that it is not
authorized to, and will not, file financing statements or other filing or
recording documents with respect to the Receivables or Related Security
(including any amendments thereto, or continuation or termination statements
thereof), without the express prior written approval by the Agent (as Buyer's
assignee), consenting to the form and substance of such filing or recording
document, and (C) such Originator approves, authorizes and ratifies any filings
or recordings made by or on behalf of the Agent (as Buyer's assign) in
connection with the perfection of the ownership or security interests in favor
of Buyer or the Agent (as Buyer's assign).
Section 7.4 CONFIDENTIALITY; TAX TREATMENT.
(a) Each Originator and Buyer shall maintain and shall cause
each of its employees, officers and advisers to maintain the confidentiality of
the Fee Letters and the other confidential or proprietary information with
respect to the Agent and Blue Ridge and their respective businesses obtained by
it or them in connection with the structuring, negotiating and execution of the
transactions contemplated herein, except that such Originator and its officers,
employees, auditors, accountants, attorneys, consultants, and other advisers may
disclose such information to such Originator's external accountants, attorneys
and other advisors and as required by any applicable law, rule, regulation,
direction, request or order of any judicial, administrative or regulatory
authority or proceedings (whether or not having the force or effect of law).
(b) Each Originator hereby consents to the disclosure of any
nonpublic information with respect to it (i) to Buyer, the Agent, the Liquidity
Banks or Blue Ridge by each other, (ii) to any prospective or actual assignee or
participant of any of the Persons described in clause (i), and (iii) to any
rating agency, Commercial Paper dealer or provider of a surety, guaranty or
credit or liquidity enhancement to Blue Ridge or any entity organized for the
purpose of purchasing, or making loans secured by, financial assets for which
Wachovia acts as the administrative agent and to any officers, directors,
employees, outside accountants and attorneys of any of the foregoing, PROVIDED
each such Person described in the foregoing clauses (ii) and (iii) is informed
of the confidential nature of such information. In addition, the Lenders and the
Agent may disclose any such nonpublic information pursuant to any applicable
law, rule, regulation, direction, request or order of any judicial,
administrative or regulatory authority or proceedings (whether or not having the
force or effect of law).
(c) Notwithstanding any other express or implied agreement
to the contrary, the parties hereto agree that they have sought their own tax
advice in structuring the transactions evidenced by the Transaction Documents,
and they shall have no claim against Equifax Receivables Finance LLC, a Delaware
limited liability company, the Agent or any Lender in the event their intended
tax treatment is disallowed.
(d) Unless otherwise agreed to in writing by the
Originators, Buyer hereby agrees to keep all Proprietary Information
confidential and not to disclose or reveal any Proprietary Information to any
Person other than its (or its Affiliates) directors, officers,
23
employees, agents or representatives who reasonably require such information in
connection with their activities concerning this Agreement or the transactions
contemplated hereby and to actual or potential Participants or Purchasing
Liquidity Banks (as defined in the Credit and Security Agreement), and then only
upon a confidential basis in any such case; provided, however, that the Buyer
may disclose Proprietary Information: (i) to the Agent or any Liquidity Bank,
(ii) to the extent reasonably required in connection with any litigation to
which the Buyer, the Agent, any Liquidity Bank or their respective Affiliates
may be a party, (iii) to the extent reasonably required in connection with the
exercise of any remedy hereunder, (iv) as required by law, rule, regulation,
direction, request or order of any judicial, administrative or regulatory
authority or proceedings (whether or not having the force or effect of law); (v)
to its attorneys, accountants or other consultants (but only on a confidential
basis), (vi) to bank regulatory authorities or other governmental authorities
and (vii) by Blue Ridge to any rating agency, commercial paper dealer, or
provider of a surety, guaranty or credit or liquidity enhancement to Blue Ridge
which has agreed in writing to be bound by the provisions of this Section 7.4.
Section 7.5 BANKRUPTCY PETITION.
(a) Each Originator and Buyer each hereby covenants and
agrees that, prior to the date that is one year and one day after the payment in
full of all outstanding senior indebtedness of Blue Ridge, it will not institute
against, or join any other Person in instituting against, Blue Ridge any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any state of
the United States.
(b) Each Originator covenants and agrees that, prior to the
date that is one year and one day after the payment in full of all outstanding
obligations of Buyer under the Credit and Security Agreement, it will not
institute against, or join any other Person in instituting against, Buyer any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any state of
the United States.
Section 7.6 LIMITATION OF LIABILITY. Except with respect to any
claim arising out of the willful misconduct or gross negligence of any
Originator, Buyer, Blue Ridge, the Agent or any Lender, no claim may be made by
any such Person (or its Affiliates, directors, officers, employees, attorneys or
agents) against any such other Person (or its Affiliates, directors, officers,
employees, attorneys or agents) for any special, indirect, consequential or
punitive damages in respect of any claim for breach of contract or any other
theory of liability arising out of or related to the transactions contemplated
by this Agreement, or any act, omission or event occurring in connection
therewith; and each of the parties hereto, on behalf of itself and its
Affiliates, directors, officers, employees, attorneys, agents, successors and
assigns, hereby waives, releases, and agrees not to sue upon any claim for any
such damages, whether or not accrued and whether or not known or suspected to
exist in its favor.
Section 7.7 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF
THE STATE OF NEW YORK.
24
Section 7.8 CONSENT TO JURISDICTION. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, EACH ORIGINATOR HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT
SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH ORIGINATOR PURSUANT
TO THIS AGREEMENT AND EACH ORIGINATOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF
BUYER (OR ITS ASSIGNS) TO BRING PROCEEDINGS AGAINST ANY ORIGINATOR IN THE COURTS
OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY ORIGINATOR AGAINST
BUYER (OR ITS ASSIGNS) OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY ANY ORIGINATOR PURSUANT TO THIS
AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK.
Section 7.9 WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY ORIGINATOR PURSUANT TO THIS
AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 7.10 INTEGRATION; BINDING EFFECT; SURVIVAL OF TERMS.
(a) This Agreement and each other Transaction Document
contain the final and complete integration of all prior expressions by the
parties hereto with respect to the subject matter hereof and shall constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof superseding all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to the
benefit of the Originators, Buyer and their respective successors and permitted
assigns (including any trustee in bankruptcy). No Originator may assign any of
its rights and obligations hereunder or any interest herein without the prior
written consent of Buyer. Buyer may assign at any time its rights and
obligations hereunder and interests herein to any other Person without the
consent of any Originator. Without limiting the foregoing, each Originator
acknowledges that Buyer, pursuant to the Credit and Security Agreement, may
assign to the Agent, for the benefit of the Lender, its rights, remedies, powers
and privileges hereunder and that the Agent may further assign such rights,
remedies, powers and privileges to the extent permitted in the Credit and
Security Agreement. Each Originator agrees that the Agent, as the assignee of
Buyer, shall,
25
subject to the terms of the Credit and Security Agreement, have the right to
enforce this Agreement and to exercise directly all of Buyer's rights and
remedies under this Agreement (including, without limitation, the right to give
or withhold any consents or approvals of Buyer to be given or withheld
hereunder) and each Originator agrees to cooperate fully with the Agent in the
exercise of such rights and remedies. This Agreement shall create and constitute
the continuing obligations of the parties hereto in accordance with its terms
and shall remain in full force and effect until terminated in accordance with
its terms; PROVIDED, HOWEVER, that the rights and remedies with respect to (i)
any breach of any representation and warranty made by any Originator pursuant to
ARTICLE II; (ii) the indemnification and payment provisions of ARTICLE VI; and
(iii) SECTION 7.5 shall be continuing and shall survive any termination of this
Agreement.
Section 7.11 COUNTERPARTS; SEVERABILITY; SECTION REFERENCES. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same Agreement. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Unless otherwise expressly indicated, all references herein
to "Article," "Section," "Schedule" or "Exhibit" shall mean articles and
sections of, and schedules and exhibits to, this Agreement.
Section 7.12 TERMINATION. This Agreement shall terminate on the Final
Payout Date; provided that the provisions of Sections 1.7, 6.1, 6.2, 7.4 and 7.5
of this Agreement shall survive such termination.
[Signature Pages Follow]
26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
EQUIFAX INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
ADDRESS: 1550 Peachtree Street, N.W.
Atlanta, Georgia 30309
Attention: Treasurer
Fax: 404-885-8121
EQUIFAX INFORMATION SERVICES LLC
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
ADDRESS: 1550 Peachtree Street, N.W.
Atlanta, Georgia 30309
Attention: Treasurer
Fax: 404-885-8121
EQUIFAX DIRECT MARKETING SOLUTIONS LLC
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
ADDRESS: 1550 Peachtree Street, N.W.
Atlanta, Georgia 30309
Attention: Treasurer
Fax: 404-885-8121
27
EQUIFAX INFORMATION SERVICES OF PUERTO RICO
INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
ADDRESS: 1550 Peachtree Street, N.W.
Atlanta, Georgia 30309
Attention: Treasurer
Fax: 404-885-8121
COMPLIANCE DATA CENTER, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
ADDRESS: 1550 Peachtree Street, N.W.
Atlanta, Georgia 30309
Attention: Treasurer
Fax: 404-885-8121
EQUIFAX CAPITAL MANAGEMENT, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
ADDRESS: 1550 Peachtree Street, N.W.
Atlanta, Georgia 30309
Attention: Treasurer
Fax: 404-885-8121
28
EXHIBIT I
DEFINITIONS
This is Exhibit I to the First Step Receivables Sale Agreement (as
hereinafter defined). As used in the First Step Receivables Sale Agreement and
the Exhibits and Schedules thereto, capitalized terms have the meanings set
forth in this Exhibit I (such meanings to be equally applicable to the singular
and plural forms thereof). IF A CAPITALIZED TERM IS USED IN THE FIRST STEP
RECEIVABLES SALE AGREEMENT, OR ANY EXHIBIT OR SCHEDULE THERETO, AND IS NOT
OTHERWISE DEFINED THEREIN OR IN THIS EXHIBIT I, SUCH TERM SHALL HAVE THE MEANING
ASSIGNED THERETO IN EXHIBIT I TO THE SECOND STEP RECEIVABLES SALE AGREEMENT OR
THE CREDIT AND SECURITY AGREEMENT (HEREINAFTER DEFINED), AS APPLICABLE.
"AGENT" means Wachovia Bank, National Association, in its capacity as
agent under the Credit and Security Agreement.
"AGREEMENT" is defined in the preamble hereto.
"BLUE RIDGE" means Blue Ridge Asset Funding Corporation, a Delaware
corporation, and its successors.
"BUYER" has the meaning set forth in the preamble to this Agreement.
"CALCULATION PERIOD" means each calendar month or portion thereof which
elapses during the term of this Agreement. The first Calculation Period shall
commence on the date of the Purchases hereunder and the final Calculation Period
shall terminate on the Termination Date.
"CHANGE OF CONTROL" means (a) the acquisition after the date of this
Agreement by any Person, or two or more Persons acting in concert, of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 25% or more of the
outstanding voting Equity Interests of Parent, (b) Parent ceases to own,
directly or indirectly, 100% of the outstanding voting Equity Interests of any
Originator, or (c) Parent ceases to own, directly or indirectly, 100% of the
outstanding voting Equity Interests of Buyer.
"CREDIT AND COLLECTION POLICY" means the applicable Originator's credit
and collection policies and practices relating to Contracts and Receivables
existing on the date hereof and summarized in EXHIBIT V, as modified from time
to time in accordance with the Second Step Receivables Sale Agreement and the
Credit and Security Agreement.
"CREDIT AND SECURITY AGREEMENT" means that certain Credit and Security
Agreement dated as of September 7, 2004, by and among Equifax Receivables
Finance LLC, as Borrower, Buyer, as Servicer, Blue Ridge, and Wachovia Bank,
National Association, individually and as Agent, as the same may be amended,
restated and/or otherwise from time to time.
29
"DEFAULT FEE" means a PER ANNUM rate of interest equal to the sum of (i)
the Alternate Base Rate, PLUS (ii) 2% per annum.
"DISCOUNT FACTOR" means a percentage calculated to provide Buyer with a
reasonable return on its investment in the Receivables originated by each
Originator after taking account of (i) the time value of money based upon the
anticipated dates of collection of such Receivables and the cost to Buyer of
financing its investment in such Receivables during such period and (ii) the
risk of nonpayment by the Obligors. Each Originator and Buyer may agree from
time to time to change the Discount Factor based on changes in one or more of
the items affecting the calculation thereof, PROVIDED THAT any change to the
Discount Factor shall take effect as of the commencement of a Calculation
Period, shall apply only prospectively and shall not affect the Purchase Price
payment made prior to the Calculation Period during which such Originator and
Buyer agree to make such change. As of the date hereof, the Discount Factor in
respect of Eligible Receivables is 4.098% and the Discount Factor in respect of
all other Receivables is 4.098%.
"EIS" has the meaning set forth in the preamble to this Agreement.
"EQUITY INTERESTS" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting), of capital of such
Person, including, if such Person is a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership, whether outstanding on the date
hereof or issued after the date of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with any Originator within the meaning of
Section 414(b) or (c) of the Tax Code (and Sections 414(m) and (o) of the Tax
Code for purposes of provisions relating to Section 412 of the Tax Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by any Originator or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001 (a) (2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by any Originator or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
Plan is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or 4041A
of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Tide IV of
ERISA, other than PBGC premiums
30
due but not delinquent under Section 4007 of ERISA, upon any Originator or any
ERISA Affiliate.
"EXECUTIVE OFFICER" means any of the chief executive officer, president,
executive vice president or senior vice president of the Parent.
"FINAL PAYOUT DATE" has the meaning given such term in the Credit and
Security Agreement.
"FISCAL YEAR" means the fiscal year of the Parent and its Subsidiaries
ending on or about December 31.
"INDEMNIFIED PARTY" has the meaning set forth in SECTION 6.1.
"INITIAL CONTRIBUTED RECEIVABLES" has the meaning set forth in Section
1.1.
"INITIAL CUTOFF DATE" has the meaning set forth in SECTION 1.1.
"LIEN" means an Adverse Claim, or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
financial condition or operations of the Parent and its Subsidiaries, considered
as a whole, (ii) the ability of any Originator to perform its obligations under
this Agreement or any other Transaction Document to which it is a party, (iii)
the legality, validity or enforceability of this Agreement or any other
Transaction Document, (iv) any Originator's, Buyer's, any Agent's or any
Lender's interest in the Receivables generally or in any substantial portion of
the Receivables, the Related Security or Collections with respect thereto, or
(v) the collectibility of the Receivables generally or of any substantial
portion of the Receivables.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", within the meaning of
Section 4001 (a) (3) of ERISA, to which any Originator or any ERISA Affiliate
makes, is making, or is obligated to make contributions or, during the preceding
three calendar years, has made, or been obligated to make, contributions.
"ORGANIZATIONAL DOCUMENTS" means, for any Person, the documents for its
formation and organization, which, for example, (a) for a corporation are its
corporate charter and bylaws, (b) for a partnership are its certificate of
partnership (if applicable) and partnership agreement, (c) for a limited
liability company are its certificate of formation or organization and its
operating agreement, regulations or the like and (d) for a trust is the trust
agreement, declaration of trust, indenture or bylaws under which it is created.
"ORIGINAL BALANCE" means, with respect to each Receivable coming into
existence after the Initial Cutoff Date, the Outstanding Balance of such
Receivable on the date it was created.
31
"ORIGINATOR" has the meaning set forth in the preamble to this
Agreement.
"PARENT" has the meaning set forth in the preamble to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PENSION PLAN" means a pension plan (as defined in Section 3(2) of
ERISA) subject to Title IV of ERISA which any Originator sponsors or maintains,
or to which it makes, is making, or is obligated to make contributions, or in
the case of a multiple employer plan (as described in Section 4064(a) of ERISA)
has made contributions at any time during the immediately preceding five plan
years.
"PERMITTED ENCUMBRANCES" shall mean the following: (a) Liens for taxes
or assessments or other governmental charges not yet due and payable; and (b)
Liens created by the Transaction Documents.
"PLAN" means an employee benefit plan (as defined in Section 3(3) of
ERISA) which any Originator or any of its ERISA Affiliates sponsors or maintains
or to which any Originator or any of its ERISA Affiliates makes, is making, or
is obligated to make contributions and includes any Pension Plan, other than a
Plan maintained outside the United States primarily for the benefit of Persons
who are not U.S. residents.
"PROPRIETARY INFORMATION" means all information about the Parent or any
of its Subsidiaries which has been furnished to the Agent or any Lender by or on
behalf of the Parent or any of its Subsidiaries before or after the date hereof
or which is obtained by Buyer (or its assigns) in the course of any Review made
pursuant to SECTION 4.1(D) of this Agreement: PROVIDED, HOWEVER, that the term
"PROPRIETARY INFORMATION" does not include information which (x) is or becomes
publicly available (other than as a result of a breach of Section 7.4 of this
Agreement), (y) is possessed by or available to the Buyer (or its assigns) on a
non-confidential basis prior to its disclosure to the Buyer (or its assigns) by
Parent or a Subsidiary thereof or (z) becomes available to the Buyer (or its
assigns) on a non-confidential basis from a Person which, to the knowledge of
the Buyer (or its assigns) is not bound by a confidentiality agreement with the
Parent or any of its Subsidiaries and is not otherwise prohibited from
transmitting such information to the Buyer (or its assigns). In the event the
Buyer (or its assigns) is required to disclose any Proprietary Information by
virtue of clause (ii) (but only if and to the extent such disclosure has not
been sought by the Buyer (or its assigns), and if neither the Parent nor any
Originator is a party to such litigation), (iv) or (v) above, to the extent
Buyer (or its assigns) determines in good faith that it is permissible by law to
so to do, it shall promptly notify the Originator of same so as to allow the
Parent or its Subsidiaries to seek a protective order or to take other
appropriate action; PROVIDED, HOWEVER, neither Buyer (and its assigns) shall be
required to delay compliance with any directive to disclose any such information
so as to allow the Performance Guarantor or any of its Subsidiaries to effect
any such action.
"PURCHASE" means the purchase by Buyer from an Originator pursuant to
SECTION 1.2(A) of this Agreement of the Receivables originated by such
Originator and the Related Security and Collections related thereto, together
with all related rights in connection therewith.
32
"PURCHASE PRICE" means, with respect to the Purchase from each
Originator, the aggregate price to be paid by Buyer to such Originator for such
Purchase in accordance with SECTION 1.3 of this Agreement for the Receivables
originated by such Originator and the associated Collections and Related
Security being sold to Buyer, which price shall equal on any date (i) the
product of (x) the Outstanding Balance of such Receivables on such date,
MULTIPLIED BY (y) one minus the Discount Factor in effect on such date, minus
(ii) any Purchase Price Credits to be credited against the Purchase Price
otherwise payable in accordance with SECTION 1.4 of this Agreement.
"PURCHASE PRICE CREDIT" has the meaning set forth in SECTION 1.4 of this
Agreement.
"PURCHASE REPORT" has the meaning set forth in SECTION 1.2(B) of this
Agreement.
"RECEIVABLE" means all indebtedness and other obligations owed to an
Originator (at the times it arises, and before giving effect to any transfer or
conveyance under this Agreement) or to Buyer (after giving effect to the
transfers under this Agreement) (including, without limitation, any
indebtedness, obligation or interest constituting an account, chattel paper,
instrument or general intangible) arising in connection with the sale of goods
or the rendering of services by such Originator and further includes, without
limitation, the obligation to pay any Finance Charges with respect thereto.
Indebtedness and other rights and obligations arising from any one transaction,
including, without limitation, indebtedness and other rights and obligations
represented by an individual invoice, shall constitute a Receivable separate
from a Receivable consisting of the indebtedness and other rights and
obligations arising from any other transaction; PROVIDED, FURTHER, that any
indebtedness, rights or obligations referred to in the immediately preceding
sentence shall be a Receivable regardless or whether the account debtor or such
Originator treats such indebtedness, rights or obligations as a separate payment
obligation.
"RELATED SECURITY" means, with respect to any Receivable:
(i) all other security interests or liens and property
subject thereto from time to time, if any, purporting to secure payment
of such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all financing statements and
security agreements describing any collateral securing such Receivable,
(ii) all guaranties, letters of credit, insurance and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of such Receivable whether pursuant to
the Contract related to such Receivable or otherwise,
(iii) all service contracts and other contracts and agreements
associated with such Receivable,
(iv) all Records related to such Receivable,
33
(v) all of the applicable Originator's right, title and
interest in each Lock-Box and each Collection Account, and
(vi) all proceeds of any of the foregoing.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c)
of ERISA or the regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived in regulations issued by
the PBGC.
"RESPONSIBLE OFFICER" means any Executive Officer as well as any other
officer of the Parent who is primarily responsible for the administration of the
transactions contemplated by the Transaction Documents.
"REVIEW" has the meaning set forth in SECTION 4.1(D) of this Agreement.
"REVOLVING LOAN" has the meaning set forth in SECTION 1.3(A) of this
Agreement.
"REVOLVING NOTE" means a promissory note in substantially the form of
EXHIBIT VI hereto as more fully described in SECTION 1.3 of this Agreement, as
the same may be amended, restated, supplemented or otherwise modified from time
to time.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"TAX CODE" means the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"TERMINATION DATE" means the earliest to occur of (i) the Facility
Termination Date (as defined in the Credit and Security Agreement), (ii) the
Business Day immediately prior to the occurrence of a Termination Event set
forth in SECTION 5.1(E) (II), (iii) the Business Day specified in a written
notice from Buyer to the Originators given following the occurrence and during
the continuation of any other Termination Event, and (iv) the date which is 10
Business Days after Buyer's receipt of written notice from any Originator that
it wishes to terminate the facility evidenced by this Agreement.
"TERMINATION EVENT" has the meaning set forth in SECTION 5.1 of this
Agreement.
"TRANSACTION DOCUMENTS" means, collectively, this Agreement, each
Collection Account Agreement, the Revolving Notes, and all other instruments,
documents and agreements executed and delivered in connection herewith.
"UNMATURED TERMINATION EVENT" means an event which, with the passage of
time or the giving of notice, or both, would constitute a Termination Event.
34
ALL ACCOUNTING TERMS NOT SPECIFICALLY DEFINED HEREIN SHALL BE CONSTRUED
IN ACCORDANCE WITH GAAP. ALL TERMS USED IN ARTICLE 9 OF THE UCC IN THE STATE OF
NEW YORK, AND NOT SPECIFICALLY DEFINED HEREIN, ARE USED HEREIN AS DEFINED IN
SUCH ARTICLE 9.
35
EXHIBIT II
PLACES OF BUSINESS; LOCATIONS OF RECORDS; STATE OF ORGANIZATION;
FEDERAL EMPLOYER IDENTIFICATION NUMBER(S);
ORGANIZATIONAL IDENTIFICATION NUMBER; OTHER NAMES
- ---------------------- ----------------- ----------------- ----------------- ------------------ ----------------------
Equifax Inc. Equifax Equifax Direct Equifax Compliance Data
Information Marketing Information Center, Inc.
Services LLC Solutions LLC Services of
Puerto Rico Inc.
- ---------------------- ----------------- ----------------- ----------------- ------------------ ----------------------
Principal Places of 1550 Peachtree 1550 Peachtree 1550 Peachtree 1550 Peachtree 1550 Peachtree St.,
Business and St. N.W. St. N.W. St. N.W. St. N.W. N.W.
Chief Executive Atlanta, GA Atlanta, GA Atlanta, GA Atlanta, GA 30309 Atlanta, GA 30309
Offices 30309 30309 30309
- ---------------------- ----------------- ----------------- ----------------- ------------------ ----------------------
Locations of Records 1550 Peachtree 1550 Peachtree 1550 Peachtree 1550 Peachtree 1550 Peachtree St.
St. N.W. St. N.W. St. N.W. St. N.W. N.W.
Atlanta, GA Atlanta, GA Atlanta, GA Atlanta, GA 30309 Atlanta, GA 30309
30309 30309 30309
- ---------------------- ----------------- ----------------- ----------------- ------------------ ----------------------
State of Organization Georgia Georgia Georgia Georgia Georgia
- ---------------------- ----------------- ----------------- ----------------- ------------------ ----------------------
Federal Employee 58-0401110 58-2631096 58-2533301 90-0048110 58-2563646
Identification Number
- ---------------------- ----------------- ----------------- ----------------- ------------------ ----------------------
Organizational J306699 0125237 0337947 0129346 0032444
Identification Number
- ---------------------- ----------------- ----------------- ----------------- ------------------ ----------------------
36
- ---------------------- ----------------- ----------------- ----------------- ------------------ ----------------------
Legal, Trade and LEGAL NAME: LEGAL NAME: LEGAL NAME: LEGAL NAME: LEGAL NAME:
Assumed Names
Equifax Inc. Equifax Equifax Direct Equifax Compliance Data
Information Marketing Information Center, Inc.
TRADE AND OTHER Services LLC Solutions LLC Services of
PRIOR NAMES: Puerto Rico Inc. TRADE NAMES AND
TRADE AND OTHER TRADE AND OTHER OTHER PRIOR:
Equifax PRIOR NAMES: PRIOR NAMES: TRADE AND OTHER
Marketing PRIOR NAMES: Equifax Acquisition,
Services Equifax Credit Equifax Direct, Inc.
Information Inc. None
Equifax Services, Inc.
Information Equifax
Service Center Equifax Credit Consumer
Information Information
Services, LLC Services, Inc.
Equifax Equifax Direct
Information Marketing
Services LLC Solutions, Inc.
Equifax Equifax Direct
Information Marketing
Service Center Solutions LLC
Equifax
Marketing
Services
- ---------------------- ----------------- ----------------- ----------------- ------------------ ----------------------
37
EXHIBIT III
LOCK-BOXES; COLLECTION ACCOUNTS; COLLECTION BANKS
Sellers do not have any Collection Accounts. All Collection Accounts
have been transferred to Buyer. Buyer's Collection Accounts are set forth below:
- ---------------------------- -------------------------- ------------------------- -------------------------------
NAME OF ACCOUNT NAME OF COLLECTION LOCK-BOX NUMBER RELATED COLLECTION ACCOUNT
ACCOUNT BANK
- ---------------------------- -------------------------- ------------------------- -------------------------------
Equifax Receivables Wachovia Bank, National 105835 2000015153186
Finance LLC - Co. 04 Association
- ---------------------------- -------------------------- ------------------------- -------------------------------
Equifax Receivables Wachovia Bank, National N/A 2000153353466
Finance LLC- Co. 04 EFT Association
- ---------------------------- -------------------------- ------------------------- -------------------------------
Equifax Receivables Wachovia Bank, National N/A 2000186448173
Finance LLC- Co. 04 VISA Association
- ---------------------------- -------------------------- ------------------------- -------------------------------
Equifax Receivables Wachovia Bank, National 945510 2000123146917
Finance LLC- Co. 30 Association
- ---------------------------- -------------------------- ------------------------- -------------------------------
Equifax Receivables Wachovia Bank, National N/A 2000134515634
Finance LLC- Co. 89 Association
- ---------------------------- -------------------------- ------------------------- -------------------------------
Equifax Receivables Bank of America 403495 12335101519
Finance LLC- Co. 89
- ---------------------------- -------------------------- ------------------------- -------------------------------
Equifax Receivables Wachovia Bank, National N/A 2000016951442
Finance LLC Association
- ---------------------------- -------------------------- ------------------------- -------------------------------
38
EXHIBIT IV
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished pursuant to that certain
Receivables Sale Agreement dated as of September 7, 2004, among Equifax Inc.,
Equifax Information Services LLC and Equifax Marketing Solutions LLC, Equifax
Information Services of Puerto Rico Inc., Compliance Data Center, Inc. and
Equifax Capital Markets, Inc. (the "AGREEMENT"). Capitalized terms used and not
otherwise defined herein are used with the meanings attributed thereto in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES IN HIS OR HER REPRESENTATIVE CAPACITY
ON BEHALF OF THE PARENT AND OTHER ORIGINATORS THAT:
1. I am the duly elected ______________ of Equifax Inc. ("PARENT").
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of Parent and its Subsidiaries during the accounting
period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and
I have no knowledge of, the existence of any condition or event which
constitutes a Termination Event or an Unmatured Termination Event, as each such
term is defined under the Agreement, during or at the end of the accounting
period covered by the attached financial statements or as of the date of this
Certificate[, except as set forth below].
[4. Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the applicable Originator has taken,
is taking, or proposes to take with respect to each such condition or event:
__________________________].
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered by the undersigned in his
or her representative capacity on behalf of the Parent and the other
Originators, this ____ day of ______________, 200_.
EQUIFAX INC.
By:_________________________
Title:______________________
Name:_______________________
39
EXHIBIT V
CREDIT AND COLLECTION POLICY
[attach copy of each]
40
EXHIBIT VI
FORM OF REVOLVING NOTE
REVOLVING NOTE
September 7, 2004
1. NOTE. FOR VALUE RECEIVED, the undersigned, EQUIFAX CAPITAL
MANAGEMENT, INC., a Georgia corporation ("PAYOR"), hereby unconditionally
promises to pay to the order of [ORIGINATOR NAME], a(n) __________
***[corporation] [limited liability company] *** ("ORIGINATOR"), in lawful money
of the United States of America and in immediately available funds, on or before
the date following the Termination Date which is one year and one day after the
date on which (i) the Outstanding Balance of all Receivables sold by Originator
under the "Sale Agreement" referred to below has been reduced to zero and (ii)
Originator has paid to Buyer all indemnities, adjustments and other amounts
which may be owed thereunder in connection with the Purchase thereunder (the
"COLLECTION DATE"), the aggregate unpaid principal sum outstanding of all
"Revolving Loans" made from time to time by Originator to Payor pursuant to and
in accordance with the terms of that certain Receivables Sale Agreement dated as
of September 7, 2004 among Originator and certain of its affiliates, as sellers,
and Payor, as buyer (as amended, restated, supplemented or otherwise modified
from time to time, the "SALE Agreement"). Reference to SECTION 1.3 of the Sale
Agreement is hereby made for a statement of the terms and conditions under which
the loans evidenced hereby have been and will be made. All terms which are
capitalized and used herein and which are not otherwise specifically defined
herein shall have the meanings ascribed to such terms in the Sale Agreement.
2. INTEREST. Payor further promises to pay interest on the
outstanding unpaid principal amount hereof from the date hereof until payment in
full hereof at a rate equal to the 1-month LIBOR rate published in THE WALL
STREET JOURNAL on the first Business Day of each month (or portion thereof)
during the term of this Revolving Note, computed for actual days elapsed on the
basis of a year consisting of 360 days and changing on the first business day of
each month hereafter ("LIBOR"); PROVIDED, HOWEVER, that if Payor shall default
in the payment of any principal hereof, Payor promises to pay, on demand,
interest at the rate equal to LIBOR plus 2.00% PER ANNUM on any such unpaid
amounts, from the date such payment is due to the date of actual payment.
Interest shall be payable on the first Business Day of each month in arrears;
PROVIDED, HOWEVER, that Payor may elect on the date any interest payment is due
hereunder to defer such payment and upon such election the amount of interest
due but unpaid on such date shall constitute principal under this Revolving
Note. The outstanding principal of any loan made under this Revolving Note shall
be due and payable on the Collection Date and may be repaid or prepaid at any
time without premium or penalty.
3. PRINCIPAL PAYMENTS. Originator is authorized and directed by
Payor to enter on the grid attached hereto, or, at its option, in its books and
records, the date and amount of each loan made by it which is evidenced by this
Revolving Note and the amount of each payment of principal made by Payor, and
absent manifest error, such entries shall constitute prima facie evidence of the
accuracy of the information so entered; PROVIDED THAT neither the
41
failure of Originator to make any such entry or any error therein shall expand,
limit or affect the obligations of Payor hereunder.
4. AMENDMENTS. This Revolving Note shall not be amended or modified
except in accordance with SECTION 7.1 of the Sale Agreement. The terms of this
Revolving Note may not be amended or otherwise modified without the prior
written consent of the Agent for the benefit of the Lenders.
5. GOVERNING LAW. THIS REVOLVING NOTE HAS BEEN MADE AND DELIVERED
AT NEW YORK, NEW YORK, AND SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES
OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS AND DECISIONS OF
THE STATE OF NEW YORK. WHEREVER POSSIBLE EACH PROVISION OF THIS REVOLVING NOTE
SHALL BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER
APPLICABLE LAW, BUT IF ANY PROVISION OF THIS REVOLVING NOTE SHALL BE PROHIBITED
BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE INEFFECTIVE TO THE
EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF
SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS REVOLVING NOTE.
6. WAIVERS. All parties hereto, whether as makers, endorsers, or
otherwise, severally waive presentment for payment, demand, protest and notice
of dishonor.
EQUIFAX CAPITAL MANAGEMENT, INC.
By:_____________________________
Title:
42
SCHEDULE
TO
SUBORDINATED NOTE
SUBORDINATED LOANS AND PAYMENTS OF PRINCIPAL
- -----------------------------------------------------------------------------------------------------------
AMOUNT OF AMOUNT OF PRINCIPAL UNPAID
SUBORDINATED PAID PRINCIPAL NOTATION MADE BY
DATE LOAN BALANCE (INITIALS)
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
43
EXHIBIT VII
[FORM OF] PURCHASE REPORT
For the Calculation Period beginning [date] and ending [date]
-------
TO: BUYER AND THE AGENT (AS BUYER'S ASSIGNEE)
- --------------------------------------------------------- ---------------- --------------- ---------
- --------------------------------------------------------- ---------------- --------------- ---------
Aggregate Outstanding Balance of all Receivables sold
during the period: $_____________ A
- --------------------------------------------------------- ---------------- --------------- ---------
LESS: Aggregate Outstanding Balance of all Receivables
sold during such period which were not Eligible
Receivables on the date when sold:
($____________) (B)
- --------------------------------------------------------- ---------------- --------------- ---------
EQUALS: Aggregate Outstanding Balance of all Eligible
Receivables sold during the period (A - B):
$___________ =C
- --------------------------------------------------------- ---------------- --------------- ---------
LESS: Purchase Price discount during the Period:
($____________) (D)
- --------------------------------------------------------- ---------------- --------------- ---------
EQUALS: Gross Purchase Price Payable during the period
(C - D) $____________ =E
- --------------------------------------------------------- ---------------- --------------- ---------
LESS: Total Purchase Price Credits arising during the (F)
Period: ($____________)
- --------------------------------------------------------- ---------------- --------------- ---------
EQUALS: Net Purchase Price payable during the Period
(E - F): $____________ =G
- --------------------------------------------------------- ---------------- --------------- ---------
- --------------------------------------------------------- ---------------- --------------- ---------
Cash Purchase Price Paid to Originator during the H
Period: $_____________
- --------------------------------------------------------- ---------------- --------------- ---------
Revolving Loans made during the Period: I
$_____________
- --------------------------------------------------------- ---------------- --------------- ---------
LESS: Repayments of Revolving Loans received during (J)
the Period: ($____________)
- --------------------------------------------------------- ---------------- --------------- ---------
EQUALS: Purchase Price paid in Cash or Revolving Loans
during the period
(H + I - J): $_____________ =K
- --------------------------------------------------------- ---------------- --------------- ---------
Aggregate Outstanding Balance of Receivables
contributed during the Period: $_____________ L
- --------------------------------------------------------- ---------------- --------------- ---------
44
SCHEDULE A
DOCUMENTS TO BE DELIVERED TO BUYER
ON OR PRIOR TO THE PURCHASE
1. Executed copies of the First Step Receivables Sale Agreement (the
"RECEIVABLES SALE AGREEMENT"), duly executed by the parties thereto.
2. Copy of the Credit and Collection Policy to attach to the Receivables
Sale Agreement as an Exhibit.
3. A certificate of each Originator's [Assistant] Secretary certifying:
(a) A copy of the Resolutions of the Board of Directors or
Managers of such Originator, authorizing Originator's execution,
delivery and performance of the Receivables Sale Agreement and the other
documents to be delivered by it thereunder;
(b) A copy of the Organizational Documents of such
Originator (also certified, to the extent that such documents are filed
with any governmental authority, by the Secretary of State of the
jurisdiction of organization of such Originator on or within a recent
date prior to closing);
(c) Good Standing Certificates for such Originator issued by
the Secretaries of State of its state of organization and each
jurisdiction where it has material operations; and
(d) The names and signatures of the officers authorized on
its behalf to execute the Receivables Sale Agreement and any other
documents to be delivered by it thereunder.
4. Pre-filing state and federal tax lien, judgment lien and UCC lien
searches against each Originator from the following jurisdictions:
a. Georgia Secretary of State; and
b. Fulton County, Georgia
5. Time stamped receipt copies of proper financing statements, duly filed
under the UCC on or before the date of the initial Purchase (as defined
in the Receivables Sale Agreement) in all jurisdictions as may be
necessary or, in the opinion of Buyer (or its assigns), desirable, under
the UCC of all appropriate jurisdictions or any comparable law in order
to perfect the ownership interests contemplated by the Receivables Sale
Agreement.
6. Time stamped receipt copies of proper UCC termination statements, if
any, necessary to release all security interests and other rights of any
Person in the Receivables, Contracts or Related Security previously
granted by each Originator.
45
7. Executed Collection Account Agreements for each Lock-Box and Collection
Account.
8. Favorable opinions of special legal counsel and General Counsel (as to
items (a), (b), and (c) below) for each Originator reasonably acceptable
to Buyer (and the Agent, as Buyer's assignee) as to the following:
(a) Such Originator is a ______________ duly organized,
validly existing, and in good standing under the laws of its jurisdiction of
organization.
(b) Such Originator has all requisite authority to conduct
its business in each jurisdiction where failure to be so qualified would have a
material adverse effect on such Originator's business.
(c) The execution and delivery by such Originator of the
Receivables Sale Agreement and each other Transaction Document to which it is a
party and its performance of its obligations thereunder have been duly
authorized by all necessary organizational action and proceedings on the part of
such Originator and will not:
(i) require any action by or in respect of, or filing with,
any governmental body, agency or official (other than the filing of UCC
financing statements);
(ii) contravene, or constitute a default under, any provision
of applicable law or regulation or of its Organizational Documents or of
any agreement, judgment, injunction, order, decree or other instrument
binding upon such Originator; or
(iii) result in the creation or imposition of any Adverse
Claim on assets of such Originator or any of its Subsidiaries (except as
contemplated by the Second Step Receivables Sale Agreement and the
Credit and Security Agreement).
(d) The Receivables Sale Agreement and each other
Transaction Document to which it is a party has been duly executed and delivered
by such Originator and constitutes the legally valid, and binding obligation of
such Originator enforceable in accordance with its terms, except to the extent
the enforcement thereof may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and subject also to the
availability of equitable remedies if equitable remedies are sought.
(e) In the event that the Receivables Sale Agreement is held
to create a transfer for security purposes rather than a true sale or other
outright assignment, the provisions of the Receivables Sale Agreement are
effective to create valid security interests in favor of Buyer in all of such
Originator's right, title and interest in and to the Receivables and Related
Security described therein which constitute "accounts," "chattel paper" or
"general intangibles" (each as defined in the UCC) (collectively, the "OPINION
COLLATERAL"), as security for the payment of a loan deemed to have been made by
Buyer to such Originator in an amount equal to the Purchase Price (as defined
therein) of the Receivables (as defined therein) acquired from such Originator,
together with all other obligations of such Originator thereunder.
46
(f) Each of the UCC-1 Financing Statements naming such
Originator as debtor, Buyer, as secured party, and Agent, as assignee of secured
party to be filed in the [describe filing offices], is in appropriate form for
filing therein. Upon filing of such UCC-1 Financing Statements in such filing
offices and payment of the required filing fees, the security interest in favor
of Buyer in the Opinion Collateral will be perfected and assigned of record to
the Agent.
(g) Based solely on our review of the [describe UCC Search
Reports], and assuming (i) the filing of the Financing Statements and payment of
the required filing fees in accordance with paragraph (f) and (ii) the absence
of any intervening filings between the date and time of the Search Reports and
the date and time of the filing of the Financing Statements, the security
interest of Buyer in the Opinion Collateral is prior to any security interest
granted in the Opinion Collateral by such Originator, the priority of which is
determined solely by the filing of a financing statement in the [describe filing
offices].
(h) To the best of the opinion giver's knowledge, there is
no action, suit or other proceeding against such Originator or any Affiliate of
such Originator, which would materially adversely affect the business or
financial condition of such Originator and its Affiliates taken as a whole or
which would materially adversely affect the ability of such Originator to
perform its obligations under the Receivables Sale Agreement.
(i) Such Originator is not an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
9. A "TRUE SALE" opinion and "SUBSTANTIVE CONSOLIDATION" opinion of counsel
for Originator with respect to the transactions contemplated by the
Receivables Sale Agreement.
10. A Certificate of each Originator's [chief financial officer] certifying
that, as of the closing date, no Termination Event or Unmatured
Termination Event exists and is continuing.
11. Executed copies of (i) all consents from and authorizations by any
Persons and (ii) all waivers and amendments to existing credit
facilities, that are necessary in connection with the Receivables Sale
Agreement.
12. Executed Revolving Note by Buyer in favor of each Originator.
47