Guaranty Agreement - ChoicePoint Inc. and Atlantic Financial Group Ltd.
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GUARANTY AGREEMENT
from
CHOICEPOINT INC.
Dated as of August 29, 2001
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TABLE OF CONTENTS
Page
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SECTION 1. Guaranty........................................1
SECTION 2. Bankruptcy......................................2
SECTION 3. Continuing Guaranty.............................3
SECTION 4. Reinstatement...................................3
SECTION 5. Certain Actions.................................3
SECTION 6. Application.....................................3
SECTION 7. Waiver..........................................4
SECTION 8. Assignment......................................4
SECTION 9. Miscellaneous...................................4
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GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of August 29, 2001 (as amended or
otherwise modified from time to time, this "Guaranty"), is made by CHOICEPOINT
INC., a Georgia corporation ("Guarantor").
WITNESSETH:
WHEREAS, ChoicePoint Inc., as Guarantor, certain Subsidiaries of
ChoicePoint Inc., that are or may become party thereto, as Lessees, Atlantic
Financial Group, Ltd., as Lessor, the financial institutions party thereto, as
Lenders, and SunTrust Bank, as Agent, have entered into that certain Master
Agreement, dated as of August 29, 2001 (as it may be modified, amended or
restated from time to time as and to the extent permitted thereby, the "Master
Agreement"; and, unless otherwise defined herein, terms which are defined or
defined by reference in the Master Agreement (including Appendix A thereto)
shall have the same meanings when used herein as such terms have therein); and
WHEREAS, it is a condition precedent to the Funding Parties
consummating the transactions to be consummated on the Initial Closing Date that
the Guarantor execute and deliver this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor that the
transactions contemplated by the Master Agreement be consummated on the Initial
Closing Date; and
WHEREAS, this Guaranty, and the execution, delivery and performance
hereof, have been duly authorized by all necessary corporate action of
Guarantor; and
WHEREAS, this Guaranty is offered by the Guarantor as an inducement to
the Funding Parties to consummate the transactions contemplated in the Master
Agreement, which transactions, if consummated, will be of benefit to Guarantor;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Guarantor, the Guarantor hereby agrees as follows:
SECTION 1. Guaranty. Guarantor hereby unconditionally guarantees to the
Agent and the Funding Parties the full and prompt payment when due, whether by
acceleration or otherwise, and at all times thereafter, and the full and prompt
performance, of all of the Liabilities (as hereinafter defined), including rent,
interest and Yield on any such Liabilities, whether accruing before or after any
bankruptcy or insolvency case or proceeding involving
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Guarantor, any Lessee or any other Person and, if rent, interest or Yield on any
portion of such obligations ceases to accrue by operation of law by reason of
the commencement of such case or proceeding, including such rent, interest and
earnings as would have accrued on any such portion of such obligations if such
case or proceeding had not commenced, and further agrees to pay all reasonable
expenses (including reasonable attorneys' fees and legal expenses) actually paid
or incurred by each of the Funding Parties in endeavoring to collect the
Liabilities, or any part thereof, and in enforcing this Guaranty.
Notwithstanding the foregoing, during the Construction Term for any Leased
Property, only the Lessor shall be entitled to make a claim under this Guaranty
for Liabilities related to such Leased Property. The term "Liabilities", as used
herein, shall mean all of the following, in each case howsoever created, arising
or evidenced, whether direct or indirect, joint or several, absolute or
contingent, or now or hereafter existing, or due or to become due: (i) all
amounts payable by the Lessees or the Construction Agent to the Agent and the
Funding Parties under the Lease (including, without limitation, Basic Rent,
Supplemental Rent and the Recourse Deficiency Amount), the Master Agreement, the
Construction Agency Agreement or any other Operative Document, and (ii) all
principal of the Note and interest accrued thereon, and all additional amounts
and other sums at any time due and owing, and required to be paid, to the
Funding Parties under the terms of the Master Agreement, the Loan Agreement, the
Construction Agency Agreement, the Assignments of Lease and Rents, the
Mortgages, the Note or any other Operative Document; provided, however, that the
Guarantor will not be obligated to pay to the Agent and Funding Parties under
this Guaranty any amounts greater than the Lessees and the Construction Agent
would have had to pay to the Agent and the Funding Parties under the Lease, the
Master Agreement, the Construction Agency Agreement and the other Operative
Documents assuming that such documents were enforced in accordance with their
terms (and without giving effect to any discharge or limitation thereon
resulting or arising by reason of the bankruptcy or insolvency of a Lessee),
plus all actual and reasonable costs of enforcing this Guaranty.
By way of extension but not in limitation of any of its other
obligations hereunder, Guarantor stipulates and agrees that if any foreclosure
proceedings are commenced with respect to any Leased Property and result in the
entering of a foreclosure judgment, any such foreclosure judgment, to the extent
related to the Liabilities and payable to any of the Funding Parties, shall be
treated as part of the Liabilities, and Guarantor unconditionally guarantees the
full and prompt payment of such judgment.
SECTION 2. Bankruptcy. Guarantor agrees that, in the event any
bankruptcy, reorganization or insolvency proceeding shall be instituted by or
against Guarantor and, if instituted against Guarantor, shall not be dismissed
or stayed for a period of sixty (60) days, and if such event shall occur at a
time when any of the Liabilities may not then be due and payable, Guarantor will
pay to the Funding Parties forthwith the full amount which would be payable
hereunder by Guarantor if all Liabilities were then due and payable.
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SECTION 3. Continuing Guaranty. THIS GUARANTY SHALL IN ALL RESPECTS BE
A CONTINUING, ABSOLUTE AND UNCONDITIONAL GUARANTY OF PROMPT AND COMPLETE PAYMENT
AND PERFORMANCE (AND NOT MERELY OF COLLECTION), AND SHALL REMAIN IN FULL FORCE
AND EFFECT (NOTWITHSTANDING, WITHOUT LIMITATION, THE DISSOLUTION OF GUARANTOR)
UNTIL THE TERMINATION OF THE COMMITMENTS AND THE FULL AND FINAL PAYMENT OF ALL
OF THE LIABILITIES.
SECTION 4. Reinstatement. Guarantor further agrees that, if at any time
all or any part of any payment theretofore applied to any of the Liabilities is
or must be rescinded or returned for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of Guarantor or any
Lessee), such Liabilities shall, for the purposes of this Guaranty, to the
extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence, notwithstanding such application, and this Guaranty
shall continue to be effective or be reinstated, as the case may be, as to such
Liabilities, all as though such application had not been made.
SECTION 5. Certain Actions. The Funding Parties may, from time to time
at their discretion and without notice to Guarantor (but subject to the terms of
the other Operative Documents), take any or all of the following actions without
impairing Guarantor's obligations hereunder: (a) retain or obtain (i) a security
interest in any Lessee's interests in the Lease or the Leased Property and (ii)
a lien or a security interest hereafter granted by any Person upon or in any
property, in each case to secure any of the Liabilities or any obligation
hereunder; (b) retain or obtain the primary or secondary obligation of any
obligor or obligors, in addition to the Guarantors, with respect to any of the
Liabilities; (c) extend or renew for one or more periods (regardless of whether
longer than the original period), or release or compromise any obligation of
Guarantor hereunder or any obligation of any nature of any other obligor
(including, without limitation, the Lessor and the Lessees) with respect to any
of the Liabilities; (d) release or fail to perfect its Lien upon or security
interest in, or impair, surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the Liabilities or
any obligation hereunder, or extend or renew for one or more periods (regardless
of whether longer than the original period) or release or compromise any
obligations of any nature of any obligor with respect to any such property; and
(e) resort to Guarantor for payment of any of the Liabilities, regardless of
whether the Agent or any other Person shall have resorted to any property
securing any of the Liabilities or any obligation hereunder or shall have
proceeded against any Lessee or any other obligor primarily or secondarily
obligated with respect to any of the Liabilities (all of the actions referred to
in this clause (e) being hereby expressly waived by Guarantor).
SECTION 6. Application. Any amounts received by any Funding Party from
whatever source on account of the Liabilities shall be applied by it toward the
payment of such of the Liabilities, and in such order of application, as is set
forth in the Operative Documents.
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SECTION 7. Waiver. Guarantor hereby expressly waives: (a) notice of the
acceptance of this Guaranty; (b) notice of the existence or creation or
non-payment of all or any of the Liabilities; (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever; and (d) all diligence in
collection of or realization upon the Liabilities or any thereof, any obligation
hereunder, or any security for or guaranty of any of the foregoing.
SECTION 8. Assignment. Subject to Section 6 of the Master Agreement,
each Funding Party may, from time to time, whether before or after any
discontinuance of this Guaranty, at its sole discretion and without notice to
Guarantor, assign or transfer any or all of its portion of the Liabilities or
any interest therein; and, notwithstanding any such assignment or transfer or
any subsequent assignment or transfer thereof, such Liabilities shall be and
remain Liabilities for the purposes of this Guaranty, and each and every such
immediate and successive assignee or transferee of any of the Liabilities or of
any interest therein shall, to the extent of such assignee's or transferee's
interest in the Liabilities, be entitled to the benefits of this Guaranty to the
same extent as if such assignee or transferee were such Funding Party.
SECTION 9. Miscellaneous. No delay in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise of
any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy. No action permitted hereunder shall in
any way affect or impair any Funding Party's rights or Guarantor's obligations
under this Guaranty. For the purposes of this Guaranty, Liabilities shall
include all of the obligations described in the definition thereof,
notwithstanding any right or power of any Lessee or the Lessor or anyone else to
assert any claim or defense (other than final payment or full performance) as to
the invalidity or unenforceability of any such obligation, and no such claim or
defense shall affect or impair the obligations of Guarantor hereunder. Guarantor
hereby acknowledges that there are no conditions to the effectiveness of this
Guaranty.
This Guaranty shall be binding upon Guarantor and upon Guarantor's
successors and permitted assigns; and all references herein to Guarantor shall
be deemed to include any successor or successors thereof, whether immediate or
remote, to such Person; provided that Guarantor shall not assign its obligations
hereunder without the prior written consent of the Funding Parties.
The Documentary Conventions shall apply to this Guaranty.
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
CHOICEPOINT INC.
By: /s/ David E. Trine
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Name Printed: David E. Trine
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Title: Treasurer
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