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EXHIBIT 10.34
OPERATIVE GUARANTY
from
CHOICEPOINT INC.
Dated as of July 31, 1997
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TABLE OF CONTENTS
Page
SECTION 1. Operative
Guaranty................................................1
SECTION 2.
Bankruptcy........................................................2
SECTION 3. Right of
Set-Off..................................................3
SECTION 4. Continuing Operative
Guaranty.....................................3
SECTION 5.
Reinstatement.....................................................3
SECTION 6. Certain
Actions...................................................3
SECTION 7.
Application.......................................................4
SECTION 8.
Waiver............................................................4
SECTION 9.
Assignment........................................................4
SECTION 10.
Miscellaneous.....................................................4
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OPERATIVE GUARANTY
THIS OPERATIVE GUARANTY, dated as of July 31, 1997, is made by
ChoicePoint Inc., a Georgia corporation
(the "Guarantor").
W I T N E S S E T H:
WHEREAS, the Guarantor as Lessee and Guarantor, SunTrust Banks,
Inc. as
Lessor, and SunTrust Bank, Atlanta, as
Agent, have entered into that certain
Master Agreement, dated as of July 31, 1997
(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 each Closing Date that the
Guarantor execute and deliver this
Operative Guaranty; and
WHEREAS, it is in the best interests of the Guarantor that the
transactions contemplated by the Master
Agreement be consummated on each Closing
Date; and
WHEREAS, this Operative Guaranty, and the execution, delivery
and
performance hereof, have been duly
authorized by all necessary corporate action
of the Guarantor; and
WHEREAS, this Operative 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
the 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. Operative Guaranty. The Guarantor hereby
unconditionally
guarantees 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 interest and earnings
on any such Liabilities whether accruing
before or after any bankruptcy or
insolvency case or proceeding involving
the
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Guarantor or any other Person and, if
interest or earnings 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 interest and yield 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 incurred)
actually paid or incurred by each of the
Funding Parties in endeavoring to
collect the Liabilities, or any part
thereof, and in enforcing this Operative
Guaranty. 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 Lessee under
the Lease (including, without limitation,
Basic Rent, Supplemental Rent and
Recourse Deficiency Amounts), the Master
Agreement or any other Operative
Document, and (ii) all principal of the
Notes and interest accrued thereon,
Lease Participant Amounts, accrued Yield
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 Lease Participation Agreement, the
Loan Agreement, the Assignment of Lease and
Rent, the Mortgages, the Notes or
any other Operative Document; provided,
however, that the Guarantor will not be
obligated to pay under this Operative
Guaranty any amounts greater than the
Lessee would have had to pay, under the
Lease, the Master 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 the Lessee), plus all actual
and reasonable costs of enforcing
this Operative Guaranty.
By way of extension but not in limitation of any of its other
obligations hereunder, the Guarantor
stipulates and agrees that in the event any
foreclosure proceedings are commenced and
result in the entering of a
foreclosure judgment, any such foreclosure
judgment, to the extent related to
the Liabilities, shall be treated as part
of the Liabilities, and the Guarantor
unconditionally guarantees the full and
prompt payment of such judgment.
SECTION 2. Bankruptcy. The Guarantor agrees that, in the event of
the
dissolution, bankruptcy or insolvency of
the Guarantor, or the inability or
failure of the Guarantor generally to pay
debts as they become due, or an
assignment by the Guarantor for the benefit
of creditors, or the commencement of
any case or proceeding in respect of the
Guarantor under any bankruptcy,
insolvency or similar laws, and if such
event shall occur at a time when any of
the Liabilities may not then be due and
payable, the Guarantor will pay to the
Funding Parties
2
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forthwith the full amount which would be
payable hereunder by the Guarantor if
all Liabilities were then due and
payable.
SECTION 3. Right of Set-Off. To secure all obligation
