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EXHIBIT 10. 4
PERFORMANCE UNDERTAKING
THIS PERFORMANCE UNDERTAKING (this "UNDERTAKING"), dated as of
September
7, 2004, is executed by Equifax Inc., a
Georgia corporation (the "PERFORMANCE
GUARANTOR") in favor of Equifax Receivables
Finance LLC, a Delaware limited
liability company (together with its
successors and assigns, "RECIPIENT").
RECITALS
1. Equifax
Inc. (the "PARENT"), Equifax Information Services LLC, Equifax
Direct Marketing Solutions LLC Equifax Information Services of
Puerto
Rico Inc., Compliance Data Center, Inc. (collectively, the
"ORIGINATORS"), and Equifax Capital Management, Inc. ("ECM")
have
entered in to a Receivables Sale Agreement, dated as of September
7,
2004 (as amended, restated or otherwise modified from time to time,
the
"FIRST STEP SALE AGREEMENT"), pursuant to which Originators,
subject to
the terms and conditions contained therein, are selling their
respective
right, title and interest in their accounts receivable to ECM.
2. ECM and
Recipient have entered into a Receivables Sale Agreement, dated
as of September 7, 2004 (as amended, restated or otherwise modified
from
time to time, the "SECOND STEP SALE AGREEMENT"; the First Step
Sale
Agreement and the Second Step Sale Agreement being herein
collectively
called the "SALE AGREEMENTS"), pursuant to which ECM, subject to
the
terms and conditions contained therein, is selling and/or
contributing
its right, title and interest in such accounts receivable to
Recipient.
3.
Performance Guarantor, directly or indirectly, owns one hundred
percent
(100%) of the capital stock or other equity interest of each of
the
other Originators, ECM and Recipient, and accordingly,
Performance
Guarantor, is expected to receive substantial direct and
indirect
benefits from their sale or contribution of receivables to ECM
and
Recipient pursuant to the Sale Agreements (which benefits are
hereby
acknowledged).
4. As an
inducement for ECM to acquire Originators' accounts receivable
pursuant to the
First Step Sale Agreement and for Recipient to acquire
such accounts receivable pursuant to the Second Step Sales
Agreement,
Performance Guarantor has agreed to guaranty the due and
punctual
performance by the other Originators and ECM of their
respective
obligations under the Sale Agreements.
5.
Performance Guarantor wishes to guaranty the due and punctual
performance by the other Originators of their obligations to ECM
under
or in respect of the First Step Sale Agreement and the due and
punctual
performance by ECM of its obligations to Recipient under or in
respect
of the Second Step Sale Agreement.
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AGREEMENT
NOW, THEREFORE, Performance Guarantor hereby agrees as follows:
Section 1. DEFINITIONS. Capitalized terms used herein and not
defined
herein shall the respective meanings
assigned thereto in the Sale Agreement or
the Credit and Security Agreement (as
hereinafter defined). In addition:
"GUARANTEED OBLIGATIONS" means, collectively: all covenants,
agreements,
terms, conditions and indemnities to be
performed and observed by any Originator
(other than the Parent in its capacity as
an Originator) or ECM under and
pursuant to any of the Sale Agreements and
each other document executed and
delivered by any Originator (other than the
Parent in its capacity as an
Originator) or ECM pursuant to any of the
Sale Agreements, including, without
limitation, the due and punctual payment of
all sums which are or may become due
and owing by any Originator (other than the
Parent in its capacity as an
Originator) or ECM under any of the Sale
Agreements, whether for fees, expenses
(including counsel fees), indemnified
amounts or otherwise, whether upon any
termination or for any other reason.
Section 2. GUARANTY OF PERFORMANCE OF GUARANTEED OBLIGATIONS.
Performance Guarantor hereby guarantees to
Recipient, the full and punctual
payment and performance by each Originator
and ECM of its respective Guaranteed
Obligations. This Undertaking is an
absolute, unconditional and continuing
guaranty of the full and punctual
performance of all Guaranteed Obligations of
each Originator under the Agreements and
each other document executed and
delivered by any Originator pursuant to the
Agreements and is in no way
conditioned upon any requirement that
Recipient first attempt to collect any
amounts owing by any Originator or ECM to
Recipient, the Agent or the Lenders
from any other Person or resort to any
collateral security, any balance of any
deposit account or credit on the books of
Recipient, the Agent or any Lender in
favor of any Originator, ECM or any other
Person or other means of obtaining
payment. Should any Originator or ECM
default in the payment or performance of
any of its Guaranteed Obligations,
Recipient (or its assigns) may cause the
immediate performance by Performance
Guarantor of the Guaranteed Obligations and
cause any payment Guaranteed Obligations to
become forthwith due and payable to
Recipient (or its assigns), without demand
or notice of any nature (other than
as expressly provided herein), all of which
are hereby expressly waived by
Performance Guarantor. Notwithstanding the
foregoing, this Undertaking is not a
guarantee of the collection of any of the
Receivables and Performance Guarantor
shall not be responsible for any Guaranteed
Obligations to the extent the
failure to perform such Guaranteed
Obligations by any Originator or ECM results
from Receivables being uncollectible on
account of the insolvency, bankruptcy or
lack of creditworthiness of the related
Obligor; PROVIDED THAT nothing herein
shall relieve any Originator or ECM from
performing in full its Guaranteed
Obligations under the Agreements or
Performance Guarantor of its undertaking
hereunder with respect to the full
performance of such duties.
Section 3. PERFORMANCE GUARANTOR'S FURTHER AGREEMENTS TO PAY.
Performance Guarantor further agrees, as
the principal obligor and not as a
guarantor only, to pay to Recipient (and
its assigns), forthwith upon demand in
funds immediately available to Recipient,
all reasonable costs and expenses
(including court costs and reasonable legal
expenses) actually incurred or
expended by Recipient in connection with
the Guaranteed Obligations, this
Undertaking and the enforcement thereof,
together with interest on amounts
recoverable under this Undertaking from the
time when such amounts become due
until payment, at a rate of
2
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interest (computed for the actual number of
days elapsed based on a 360 day
year) equal to the Prime Rate plus 2% PER
ANNUM, such rate of interest changing
when and as the Prime Rate changes.
Section 4. WAIVERS BY PERFORMANCE GUARANTOR. Performance
Guarantor
waives notice of acceptance of this
Undertaking, notice of any action taken or
omitted by Recipient (or its assigns) in
reliance on this Undertaking, and any
requirement that Recipient (or its assigns)
be diligent or prompt in making
demands under this Undertaking, giving
notice of any Termination Event,
Amortization Event, other default or
omission by any Originator or ECM or
asserting any other rights of Recipient
under this Undertaking. Performance
Guarantor warrants that it has adequate
means to obtain from each Originator or
ECM, on a continuing basis, information
concerning the financial condition of
such Person and that it is not relying on
Recipient to provide such information,
now or in the future. Performance Guarantor
also irrevocably waives all defenses
(i) that at any time may be available in
respect of the Guaranteed Obligations
by virtue of any statute of limitations,
valuation, stay, moratorium law or
other similar law now or hereafter in
effect or (ii) that arise under the law of
suretyship, including impairment of
collateral. Recipient (and its assigns)
shall be at liberty, without giving notice
to or obtaining the assent of
Performance Guarantor and without relieving
Performance Guarantor of any
liability under this Undertaking, to deal
with each Originator or ECM and with
each other party who now is or after the
date hereof becomes liable in any
manner for any of the Guaranteed
Obligations, in such manner as Recipient in its
sole discretion deems fit, and to this end
Performance Guarantor agrees that the
validity and enforceability of this
Undertaking, including without limitation,
the provisions of Section 7 hereof, shall
not be impaired or affected by any of
the following: (a) any extension,
modification or renewal of, or indulgence with
respect to, or substitutions for, the
Guaranteed Obligations or any part thereof
or any agreement relating thereto at any
time; (b) any failure or omission to
enforce any right, power or remedy with
respect to the Guaranteed Obligations or
any part thereof or any agreement relating
thereto, or any collateral securing
the Guaranteed Obligations or any part
thereof; (c) any waiver of any right,
power or remedy or of any Termination
Event, Amortization Event, or default with
respect to the Guaranteed Obligations or
any part thereof or any agreement
relating thereto; (d) any release,
surrender, compromise, settlement, waiver,
subordination or modification, with or
without consideration, of any other
obligation of any person or entity with
respect to the Guaranteed Obligations or
any part thereof; (e) the enforceability or
validity of the Guaranteed
Obligations or any part thereof or the
genuineness, enforceability or validity
of any agreement relating thereto or with
respect to the Guaranteed Obligations
or any part thereof; (f) the application of
payments received from any source to
the payment of any payment Obligations of
any Originator or ECM or any part
thereof or amounts which are not covered by
this Undertaking even though
Recipient (or its assigns) might lawfully
have elected to apply such payments to
any part or all of the payment Obligations
of such Originator or ECM or to
amounts which are not covered by this
Undertaking; (g) the existence of any
claim, setoff or other rights which
Performance Guarantor may have at any time
against any Originator or ECM in connection
herewith or any unrelated
transaction; (h) any assignment or transfer
of the Guaranteed Obligations or any
part thereof; or (i) any failure on the
part of any Originator or ECM to perform
or comply with any term of the Agreements
or any other document executed in
connection therewith or delivered
thereunder, all whether or not Performance
Guarantor shall have had notice or
knowledge of any act or omission referred to
in the foregoing clauses (a) through (i) of
this Section 4.
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Section 5. UNENFORCEABILITY OF GUARANTEED OBLIGATIONS AGAINST
ORIGINATORS. Notwithstanding (a) any change
of ownership of any Originator or
ECM or the insolvency, bankruptcy or any
other change in the legal status of any
Originator or ECM; (b) the change in or the
imposition of any law, decree,
regulation or other governmental act which
does or might impair, delay or in any
way affect the validity, enforceability or
the payment when due of the
Guaranteed Obligations; (c) the failure of
any Originator, ECM or Performance
Guarantor to maintain in full force,
validity or effect or to obtain or renew
when required all governmental and other
approvals, licenses or consents
required in connection with the Guaranteed
Obligations or this Undertaking, or
to take any other action required in
connection with the performance of all
obligations pursuant to the Guaranteed
Obligations or this Undertaking; or (d)
if any of the moneys included in the
Guaranteed Obligations have become
irrecoverable from any Originator or ECM
for any other reason other than final
payment in full of the payment Obligations
in accordance with their terms, this
Undertaking shall nevertheless be binding
on Performance Guarantor. This
Undertaking shall be in addition to any
other guaranty or other security for the
Guaranteed Obligations, and it shall not be
rendered unenforc
