Looking for an agreement? Search from over 1 million agreements now.

Term Loan Credit Agreement, Dated As of January 14, 2008

This is an actual contract by ChoicePoint.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
Exhibit 10.59


TERM LOAN CREDIT AGREEMENT

dated as of January 14, 2008,

among

CHOICEPOINT SERVICES INC.,

as Borrower,

CHOICEPOINT INC.,

as Parent,

THE LENDERS LISTED HEREIN,

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent,

and

US BANK, N.A.,

as Syndication Agent,

and

BANK OF AMERICA, N.A.

SUNTRUST ROBINSON HUMPHREY

WELLS FARGO, NATIONAL ASSOCIATION

and WACHOVIA CAPITAL MARKETS, LLC,

as Sole Lead Arrangers

WACHOVIA CAPITAL MARKETS, LLC,

as Sole Book Runner


SCHEDULES

Schedule 1.1(a) - Lenders and Term Loan Commitments Schedule 5.13 - Organization and Ownership of Subsidiaries Schedule 5.22 - Outstanding Indebtedness Schedule 7.01 - Existing Liens EXHIBITS Exhibit A - Form of Term Loan Note Exhibit B - Form of Subsidiary Guaranty Agreement Exhibit C - Form of Contribution Agreement Exhibit D - Form of Parent Guaranty Agreement Exhibit E - Form of Closing Certificate Exhibit F-1 - Form of Opinion of Jones Day Exhibit F-2 - Form of Opinion of in-house general counsel Exhibit G - Form of Assignment and Acceptance Agreement Exhibit H - Form of Compliance Certificate Exhibit I - Form of Notice of Borrowing Exhibit J - Form of Notice of Conversion/Continuation Exhibit K - Form of Notice of Account Designation Exhibit L - Form of Notice of Prepayment

TERM LOAN CREDIT AGREEMENT THIS TERM LOAN CREDIT AGREEMENT made and entered into as of January 14, 2008, by and among CHOICEPOINT INC., a Georgia corporation (" Parent" ), CHOICEPOINT SERVICES INC., a Georgia corporation (" Borrower" ), WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (" Wachovia" ), the other banks and lending institutions listed on the signature pages hereof, and any assignees of Wachovia, or such other banks and lending institutions which become " Lenders" as provided herein (Wachovia, and such other banks, lending institutions and assignees are referred to collectively herein as the " Lenders" ), and Wachovia, in its capacity as Administrative Agent for the Lenders and each successor Administrative Agent for such Lenders as may be appointed from time to time pursuant to Article IX hereof (the " Administrative Agent" ).

W I T N E S S E T H: WHEREAS , Borrower has requested and the Lenders have agreed, to extend a term loan credit facility to Borrower on the terms and conditions of this Agreement.

NOW, THEREFORE , in consideration of the premises and the mutual covenants herein contained, Borrower, the Parent, the Lenders and the Administrative Agent agree as follows:

ARTICLE I

DEFINITIONS; CONSTRUCTION

Section 1.01 Definitions . In addition to the other terms defined herein, the following terms used herein shall have the meanings herein specified (to be equally applicable to both the singular and plural forms of the terms defined): " Administrative Agent" shall mean Wachovia in its capacity as Administrative Agent hereunder, and any successor Administrative Agent appointed pursuant to Section 9.09 .

" Affiliate" of any Person means any other Person directly or indirectly controlling, controlled by, or under common control with, such Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, " control" (including with correlative meanings, the terms " controlling" , " controlled by" , and " under common control with" ) as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person.

" Agreement" shall mean this Term Loan Credit Agreement, as amended, modified, restated, or supplemented from time to time.

" Applicable Margin" shall mean the percentage designated on the chart set forth below based on Parent' s ratio of Funded Debt to Consolidated EBITDA:


Level

Funded Debt to Consolidated EBITDA Ratio Applicable Margin
(Eurodollar Loans) I Greater than or equal to 2.25 to 1.00 1.375 % II Greater than or equal to 1.75 to 1.00, but less than 2.25 to 1.00 1.125 % III Less than 1.75 to 1.00 1.000 %

The Applicable Margin shall be determined and adjusted quarterly on the date (each a " Calculation Date" ) ten (10) Business Days after the later of (i) receipt by the Administrative Agent of the Compliance Certificate pursuant to Section 6.07 for the most recently ended fiscal quarter of the Parent or (ii) the date such Compliance Certificate is required to be delivered pursuant to Section 6.07 , provided that, (a) the Applicable Margin on the Closing Date shall be based on Level III until the first Calculation Date following the receipt of the Compliance Certificate for the fiscal quarter ending December 31, 2007 and thereafter the Pricing Level shall be determined by reference to Parent' s ratio of Funded Debt to Consolidated EBITDA as of the last day of the most recently ended fiscal quarter of the Parent preceding the applicable Calculation Date and (b) if Borrower fails to provide the Compliance Certificate and related financial statements required by Section 6.07 for the most recently ended fiscal quarter of the Parent preceding the applicable Calculation Date, the Applicable Margin from such Calculation Date shall be based on Level I until such time as the appropriate Compliance Certificate is provided, at which time the Pricing Level shall be determined by reference to Parent' s ratio of Funded Debt to Consolidated EBITDA as of the last day of the most recently ended fiscal quarter of the Parent preceding such Calculation Date. The Applicable Margin shall be effective from one Calculation Date until the next Calculation Date. Any adjustment in the Applicable Margin shall be applicable to the portion of the Term Loan then outstanding.

Notwithstanding the foregoing, in the event that any financial statement or Compliance Certificate delivered pursuant to Section 6.07 is shown to be inaccurate (regardless of whether (i) this Agreement is in effect, or (ii) any portion of the Term Loan is outstanding when such inaccuracy is discovered or such financial statement or Compliance Certificate was delivered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an " Applicable Period" ) than the Applicable Margin applied for such Applicable Period, then (x) Borrower shall immediately deliver to the Administrative Agent a correct Compliance Certificate for such Applicable Period, (y) the Applicable Margin for such Applicable Period shall be determined as if the ratio of Funded Debt to Consolidated EBITDA in the corrected Compliance Certificate were applicable for such Applicable Period, and (z) Borrower shall immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with Section 3.06 . Nothing in this paragraph shall limit the rights of the Administrative Agent and the Lenders with respect to Section 3.02(b) and Article VIII . " Asset Sale" shall mean any sale or other disposition (or a series of related sales or other dispositions), including without limitation, loss, damage, destruction or taking to the extent not covered by insurance, by any Consolidated Company to any Person other than a Consolidated Company, of any property or asset (including Capital Stock but excluding the issuance and sale by Parent of its own Capital Stock), other than sales or other dispositions made in the ordinary course of business of any Consolidated Company.


2

" Asset Securitization" shall mean the asset securitization program entered into by the Receivables Subsidiaries and Three Pillars Funding Corporation; provided that the outstanding attributed principal amount of such program shall not at any time exceed $175,000,000. " Asset Securitization Agreements" shall mean those documents which govern the Asset Securitization (as the same may be amended, restated, supplemented or otherwise modified from time to time as permitted by this Agreement).

" Assignment and Acceptance" shall mean an assignment and acceptance entered into by a Lender and an Eligible Assignee in accordance with the terms of this Agreement and substantially in the form of Exhibit G . " Bankruptcy Code" shall mean The Bankruptcy Code of 1978, as amended and in effect from time to time (11 U.S.C. a7 101 et seq.).

" Base Rate" shall mean the higher of (with any change in the Base Rate to be effective as of the date of change of either of the following rates):

(a) the rate which the Administrative Agent so denominates and sets from time to time to be its prime lending rate, as in effect from time to time, and

(b) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (0.50%) per annum.

The Administrative Agent' s prime lending rate is a reference rate and does not necessarily represent the lowest or best rate charged to customers; the Administrative Agent may make commercial loans or other loans at rates of interest at, above or below the Administrative Agent' s prime lending rate. " Base Rate Loans" shall mean all or a portion of the Term Loan made or outstanding as (i) a Loan bearing interest based on the Base Rate or (ii) a Loan bearing interest at the rate agreed upon between Borrower and the Lenders pursuant to Section 3.07 , Section 3.08 or Section 3.09 . " Bond Obligations" shall mean all obligations of the Consolidated Companies arising under or pursuant to (a) that certain Lease Agreement dated as of December 1, 2001, by and between Development Authority of Fulton County, as lessor of certain equipment described therein (the " Lessor" ), and Parent, as lessee of such equipment (in such capacity, the " Lessee" ), and all other instruments, documents, and agreements relating to such lease or that certain $30,000,000 Development Authority of Fulton County Taxable Industrial Development Revenue Bond (ChoicePoint Inc. Project), Equipment Series (the " Bond" ), including, without limitation, that certain Bond Guaranty Agreement dated as of December 31, 2001, issued by Parent, in its capacity as guarantor (in such capacity,


3

the " Bond Guarantor" ) in favor of Parent, in its capacity as purchaser of the Bond (the " Bond Purchaser" ) pursuant to which the Bond Guarantor unconditionally guaranteed payment and performance of the debt service on the Bond for the benefit of the Bond Purchaser (the Bond Purchaser having financed the acquisition by the Lessor of the equipment which was leased to the Lessee); and (b) that certain Lease Agreement dated as of December 22, 2005, by and between Development Authority of Fulton County, as lessor of certain equipment described therein, and Parent, as lessee of such equipment (in such capacity, the " 2005 Lessee" ), and all other instruments, documents, and agreements relating to such lease or that certain $60,000,000 Development Authority of Fulton County Taxable Industrial Development Revenue Bond (ChoicePoint Inc. Project), Equipment Series (the " 2005 Bond" ); and, since Parent is (i) the Lessee, the Bond Purchaser and the Bond Guarantor with respect to the Bond and (ii) the 2005 Lessee with respect to the 2005 Bond, the Bond Obligations are not required to be classified as a liability of Parent in accordance with GAAP.

" Borrower" shall mean ChoicePoint Services Inc., a Georgia corporation, and its successors.

" Borrowing" shall mean the incurrence by Borrower of Loans of one Type concurrently having the same Interest Period or the continuation or conversion of an existing Borrowing or Borrowings in whole or in part.

" Business Day" shall mean (a) for all purposes other than as set forth in clause (b) below, any day other than a Saturday, Sunday or legal holiday on which banks in Charlotte, North Carolina and New York, New York, are open for the conduct of their commercial banking business, and (b) with respect to all notices and determinations in connection with, and payments of principal and interest on, any Eurodollar Loan, any day that is a Business Day described in clause (a) and that is also a day for trading by and between banks in Dollar deposits in the London interbank market.

" Capital Stock" shall mean (a) in the case of a corporation, all capital stock of such Person, whether voting or nonvoting, including common stock and preferred stock of such Person, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests and (e) 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, the issuing Person.

" Change in Control Provision" shall mean any term or provision contained in any indenture, debenture, note, or other agreement or document evidencing or governing Indebtedness of Parent evidencing debt or a commitment to extend loans in excess of $5,000,000 which requires, or permits the holder(s) of such Indebtedness of Parent to require that such Indebtedness of Parent be redeemed, repurchased, defeased, prepaid or repaid, either in whole or in part, or the maturity of such Indebtedness of Parent to be accelerated in any respect, as a result of a change in ownership of the Capital Stock of Parent or voting rights with respect thereto.


4

" Closing Date" shall mean the date of this Agreement or such later Business Day upon which the conditions set forth in Section 4.01 are satisfied or waived in accordance with Section 10.02 .

" Compliance Certificate" shall have the meaning set forth in Section 6.07(d) .

" Consolidated Companies" shall mean, collectively, Parent and all of its Subsidiaries other than the Receivables Subsidiaries.

" Consolidated EBITDA" shall mean, for any fiscal period of Parent, an amount, determined without duplication, equal to (A) the sum for such fiscal period of Consolidated Net Income (Loss) and, to the extent deducted in determining such Consolidated Net Income (Loss), provisions for (i) taxes based on income, (ii) Consolidated Interest Expense and (iii) depreciation and amortization expense, minus (B) any items of gain (or plus any items of loss) which were included in determining such Consolidated Net Income (Loss) and were (x) not realized in the ordinary course of business (whether or not classified as " ordinary" by GAAP), (y) the result of any sale of assets, or (z) resulting from minority investments, together with in the case of (x), (y) or (z), any related provision for taxes included in Consolidated Net Income (Loss) with respect thereto, plus (C) non-recurring non-cash charges, including without limitation, accruals related to any acquisition and earnouts incurred in connection with any acquisition to the extent not paid in cash. For purposes of this Agreement, Consolidated EBITDA shall be adjusted on a pro forma basis, in a manner reasonably acceptable to the Administrative Agent, to exclude, as of the first day of any applicable period, any Asset Sale closed during such period and to include, as of the first day of any applicable period, any acquisition of any Person which became a Subsidiary and any assets acquired by any Consolidated Company during such period, including, without limitation, adjustments reflecting any non-recurring costs and any extraordinary expenses of any such Asset Sale or acquisition closed during such period calculated on a basis consistent with GAAP and Regulation S-X of the Securities Exchange Act of 1934, as amended, or as approved by the Administrative Agent. " Consolidated Interest Expense" shall mean, for any fiscal period of Parent, total interest expense of the Consolidated Companies and the Receivables Subsidiaries (including, without limitation, interest expense attributable to capitalized leases, all net payment obligations pursuant to swap agreements (as defined in 11 U.S.C. a7 101), all commissions, discounts and other fees and charges owed with respect to bankers acceptance financing, and total interest expense (whether shown as interest expense or as loss and expenses on sale of receivables) under a receivables purchase facility (including, without limitation, the Asset Securitization)) determined on a consolidated basis in accordance with GAAP.

" Consolidated Net Income (Loss)" shall mean, for any fiscal period of Parent, the net income (or loss) of the Consolidated Companies and the Receivables Subsidiaries for such period (taken as a single accounting period), but excluding therefrom (to the extent otherwise included therein) the income of any Consolidated Company or any Receivables Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Consolidated Company or Receivables Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation.


5

" Consolidated Net Worth" shall mean, without duplication, as of any date of determination, shareholders' equity of the Consolidated Companies, determined on a consolidated basis in conformity with GAAP.

" Contractual Obligation" of any Person shall mean any provision of any security issued by such Person or of any agreement, instrument or undertaking under which such Person is obligated or by which it or any of the property owned by it is bound.

" Credit Documents" shall mean, collectively, this Agreement, the Term Notes, the Guaranty Agreements, and all other documents, instruments, certificates and opinions executed and delivered in connection with the foregoing.

" Credit Parties" shall mean, collectively, each of Borrower, the Guarantors, and every other Person who from time to time executes a supplement to the Guaranty Agreements with respect to all or any portion of the Obligations.

" Default" shall mean any condition or event which, with notice or lapse of time or both, would constitute an Event of Default.

" Defaulting Lender" shall mean any Lender that (a) has failed to fund any portion of the Term Loan, (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless such amount is the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

" Dollar" and " U.S. Dollar" and the sign " $" shall mean lawful money of the United States of America.

" Eligible Assignee" shall mean any of the following (i) a commercial bank organized under the laws of the United States, or any State thereof, and having total assets in excess of $100,000,000; (ii) a savings and loan association or savings bank organized under the laws of the United States, or any State thereof, and having total assets in excess of $100,000,000; (iii) a commercial bank organized under the laws of any other country having total assets in excess of $100,000,000, provided that such bank is acting through a branch or agency located in the United States; (iv) a finance company, insurance company or other financial institution, lender or fund (whether a corporation, partnership or other entity) which is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business, and having total assets in excess of at least $100,000,000; (v) any Lender or any Affiliate of any Lender; or (vi) any other Person consented to by Borrower and the Administrative Agent, such consent not unreasonably to be withheld.

" Environmental Laws" shall mean all federal, state, local and foreign statutes and codes or regulations, rules or ordinances issued, promulgated, or approved thereunder, now or hereafter in effect (including, without limitation, those with respect to


6

asbestos or asbestos containing material or exposure to asbestos or asbestos containing material), relating to pollution or protection of the environment and relating to public health and safety, relating to (i) emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals or industrial toxic or hazardous constituents, substances or wastes, including without limitation, any Hazardous Substance, petroleum including crude oil or any fraction thereof, any petroleum product or other waste, chemicals or substances regulated by any Environmental Law into the environment (including without limitation, ambient air, surface water, ground water, land surface or subsurface strata), or (ii) the manufacture, processing, distribution, use, generation, treatment, storage, disposal, transport or handling of any Hazardous Substance, petroleum including crude oil or any fraction thereof, any petroleum product or other waste, chemicals or substances regulated by any Environmental Law, and (iii) underground storage tanks and related piping, and emissions, discharges and releases or threatened releases therefrom, such Environmental Laws to include, without limitation (i) the Clean Air Act (42 U.S.C. a7 7401 et seq. ), (ii) the Clean Water Act (33 U.S.C. a7 1251 et seq. ), (iii) the Resource Conservation and Recovery Act (42 U.S.C. a7 6901 et seq. ), (iv) the Toxic Substances Control Act (15 U.S.C. a7 2601 et seq. ), (v) the Comprehensive Environmental Response Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act (42 U.S.C. a7 9601 et seq. ), and (vi) all applicable national and local laws or regulations with respect to environmental control (including applicable laws of the Federal Republic of Germany or any applicable international agreements).

" ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended and in effect from time to time.

" ERISA Affiliate" shall mean, with respect to any Person, each trade or business (whether or not incorporated) which is a member of a group of which that Person is a member and which is under common control within the meaning of the regulations promulgated under Section 414 of the Tax Code. " Eurodollar Loan" shall mean all or a portion of the Term Loan made or outstanding as a Loan bearing interest based on LIBOR.

" Eurodollar Reserve Percentage" shall mean, for any Lender that is a member bank of the Federal Reserve System and with respect to any Eurodollar Loan, on any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirement for such Lender in respect of " Eurocurrency liabilities" (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on Eurodollar Loans is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to United States residents).

" Event of Default" shall have the meaning provided in Article VIII .

" Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time, and any successor statute thereto.


7

" Executive Officer" shall mean, with respect to any Person, Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, the General Counsel, the Treasurer, any Assistant Treasurer and any Person holding comparable offices or duties. " Federal Funds Rate" shall mean, the rate per annum (rounded upwards, if necessary, to the next higher 1/100th of 1%) representing the daily effective federal funds rate as quoted by the Administrative Agent and confirmed in Federal Reserve Board Statistical Release H.15 (519) or any successor or substitute publication selected by the Administrative Agent. If, for any reason, such rate is not available, then " Federal Funds Rate" shall mean a daily rate which is determined, in the opinion of the Administrative Agent, to be the rate at which federal funds are being offered for sale in the national federal funds market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be the same as the rate for the most immediately preceding Business Day.

" Foreign Plan" shall mean any pension, profit sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any Foreign Subsidiary which, under applicable local law, is required to be funded through a trust or other funding vehicle, but shall not include any benefit provided by a foreign government or its agencies.

" Foreign Subsidiary" shall mean each Consolidated Company that is organized under the laws of a jurisdiction other than the United States of America or any State thereof. " Funded Debt" shall mean all Indebtedness for money borrowed, Indebtedness evidenced or secured by purchase money Liens, capitalized leases, outstandings under asset securitization vehicles, conditional sales contracts and similar title retention debt instruments, including any current maturities of the foregoing, which by its terms matures more than one year from the date of any calculation thereof or which is renewable or extendable at the option of the obligor to a date beyond one year from such date. The calculation of Funded Debt shall include (i) all Funded Debt of the Consolidated Companies and the Receivables Subsidiaries, plus (ii) all Funded Debt of other Persons to the extent guaranteed by a Consolidated Company or a Receivables Subsidiary, to the extent supported by a letter of credit issued for the account of a Consolidated Company or a Receivables Subsidiary, or as to which and to the extent which a Consolidated Company or a Receivables Subsidiary or their respective assets otherwise have become liable for payment thereof, plus (iii) the redemption amount with respect to the stock of Parent required to be redeemed during the next succeeding twelve months at the option of the holder or its Subsidiaries. Notwithstanding the foregoing, " Funded Debt" shall exclude (x) the Lease Obligations, in an aggregate amount not to exceed $100,000,000 (but Lease Obligations in excess of $100,000,000 shall be included in " Funded Debt" ), and (y) all operating lease obligations. " GAAP" shall mean generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession, which are applicable to the circumstances as of the date of determination.


8

" Guarantors" shall mean, collectively, Parent and all Material Subsidiaries in existence on the Closing Date and listed on Schedule 5.13 , and all other Material Subsidiaries formed, acquired or existing after the Closing Date, but excluding all Foreign Subsidiaries and those Guarantors released from the Guaranty Agreements pursuant to Section 10.13 or otherwise.

" Guaranty" shall mean any contractual obligation, contingent or otherwise, of a Person with respect to any Indebtedness or other obligation or liability of another Person, including without limitation, any such Indebtedness, obligation or liability directly or indirectly guaranteed, endorsed, co-made or discounted or sold with recourse by that Person, or in respect of which that Person is otherwise directly or indirectly liable, including contractual obligations (contingent or otherwise) arising through any agreement to purchase, repurchase, or otherwise acquire such Indebtedness, obligation or liability or any security therefor, or any agreement to provide funds for the payment or discharge thereof (whether in the form of loans, advances, stock or other equity purchases, capital contributions or otherwise), or to maintain solvency, assets, level of income, or other financial condition, or to make any payment other than for value received. The amount of any Guaranty shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which guaranty is made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

" Guaranty Agreements" shall mean, collectively, (i) the Subsidiary Guaranty Agreement, dated as of the Closing Date, execu
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |