Exhibit 10.8
GUARANTY OF
PAYMENT
THIS GUARANTY is made as of March
28, 2005, by AMERICAN DRIVING RECORDS, INC., a California
corporation, BACKTRACK REPORTS, INC., a New York corporation, CIC
ENTERPRISES, LLC, an Delaware limited liability company, COMPUNET
CREDIT SERVICES, INC., an Arizona corporation, COREFACTS, LLC, a
Virginia limited liability company, FIRST ADVANTAGE BACKGROUND
SERVICES CORP., a Florida corporation, f/k/a Employee Health
Programs, Inc., FIRST ADVANTAGE OCCUPATIONAL HEALTH SERVICES CORP.,
a Florida corporation, formerly know as HireCheck, Inc., FIRST
ADVANTAGE CANADA, INC., a Canadian corporation, FIRST ADVANTAGE
ENTERPRISE SCREENING CORPORATION, a Delaware corporation, FIRST
ADVANTAGE PUBLIC RECORDS, LLC, a Delaware limited liability
company, MULTIFAMILY COMMUNITY INSURANCE AGENCY, INC., a Maryland
corporation, NATIONAL BACKGROUND DATA, LLC, a Delaware limited
liability company, NATIONAL DATA REGISTRY, LLC, a Delaware limited
liability company, OMEGA INSURANCE SERVICES, a Florida corporation,
PROUDFOOT REPORTS, INC., a New York corporation, QUANTITATIVE RISK
SOLUTIONS LLC, an Arizona limited liability company, REALUM, INC.,
a Delaware corporation, SAFERENT, INC., a Delaware corporation,
SECONDA LLC, a California limited liability company, and US
SEARCH.COM, INC., a Delaware corporation, (collectively, the
“Guarantors”) in favor of BANK OF AMERICA, N.A. (the
“Bank”).
Recitals
First Advantage Corporation, doing
business in Florida as First Advantage Holding, Inc. (the
“Borrower”) and the Bank are parties to a Loan
Agreement (as amended or restated from time to time, the
“Loan Agreement”), dated July 31, 2003. The Borrower,
pursuant to the Loan Agreement, has executed and delivered a
Renewal Promissory Note (as amended, extended or renewed from time
to time, the “Note”) of even date herewith in the
original principal amount of $45,000,000.00 in favor of the
Bank.
The Borrower has also incurred, or
may incur, obligations under a Hedge Agreement. For purposes
hereof, the term “Hedge Agreement” shall mean each
agreement between the Borrower and the Bank, or any affiliate of
the Bank, whether now existing or hereafter entered into, that
provides for an interest rate or commodity swap, cap, floor,
collar, forward foreign exchange transaction, currency swap,
cross-currency rate swap, currency option, or any combination of,
or option with respect to, these or similar transactions, for the
purpose of hedging the Borrower’s exposure to fluctuations in
interest rates, currency valuations or commodity prices.
As an inducement to the Bank to
extend, renew, or continue credit to the Borrower, the Guarantors
have agreed to guarantee certain Obligations (as defined below) of
the Borrower and to execute and deliver this Guaranty.
NOW, THEREFORE, in consideration of
loans, advances or other credit now or hereafter made or extended
by the Bank to the Borrower, and to enable such loans, advances or
other credit to be maintained or obtained by the Borrower, and for
other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by
the Guarantors, the Guarantors hereby agree with the Bank as
follows:
1. The Guarantors do hereby
irrevocably guarantee the payment to the Bank when due, whether by
acceleration or otherwise, of all Obligations of the Borrower to
the Bank. As used in this Guaranty, the term
“Obligations” means: (a) all principal, interest,
costs, expenses and other amounts now or hereafter due under the
Note (including, without limitation, all principal amounts advanced
thereunder before, on or after the date hereof); (b) all amounts
payable by the Borrower under any Term Loan (as defined in the Loan
Agreement; (c) all amounts now or hereafter due under any Hedge
Agreement now or hereafter in effect; and (d) all other amounts now
or hereafter payable by the Borrower under any of the Loan
Documents (as such term is defined in the Loan
Agreement).
2. If any of the Obligations are not
paid when due, after the expiration of any applicable cure period,
the Guarantors will forthwith pay all such Obligations of the
Borrower to the Bank. The Guarantors further agree to pay the Bank,
upon demand, all reasonable costs and expenses, including
attorneys’ and legal assistants’ fees incurred in
connection with any trial or appellate proceedings or otherwise,
that may be incurred by the Bank in exercising its rights and
remedies with respect to payment of the Obligations or its rights
and remedies against the Guarantors under this Guaranty.
3. The Guarantors hereby:
(a) Assent to all terms and
agreements heretofore or hereafter made by the Borrower with the
Bank;
(b) Agree to make all payments
hereunder in lawful money of the United States of America in
immediately available funds without set-off or
counterclaim;
(c) Consent that the Bank may,
without further consent from or notice to the Guarantors, and
without in any way diminishing the obligation of the Guarantors
under this Guaranty:
(i) Exchange, release or surrender
to the Borrower or to any guarantor, pledgor, or grantor any
collateral, or waive, release or subordinate any security interest,
in whole or in part, now or hereafter held as security for any of
the Obligations;
(ii) Accept any new collateral for
the Obligations;
(iii) Waive or delay the exercise of
any of its rights or remedies against the Borrower or any other
person or entity, including, without limitation, any other
guarantor;
(iv) Release the Borrower or any
other person or entity, including, without limitation, any other
guarantor or endorser from any liability;
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(v) Renew, extend, or modify the
terms of any of the Obligations or any instrument or agreement
evidencing the same;
(vi) Apply payments by the Borrower,
the Guarantors, or any other person or entity, to the Obligations
or to other indebtedness of any such person or entity in such order
as the Bank, in its discretion, deems appropriate;
(vii) Abstain from taking advantage
of or realizing upon any security interest or other guarantee;
and
(d) Waive all notice of:
(i) The Bank’s acceptance
hereof or its intention to act, or its action, in reliance
hereon;
(ii) The present existence or future
incurring of any of the Obligations or any terms or amounts thereof
or any change therein;
(iii) Any default by the Borrower,
any endorser, surety, pledgor, grantor of security, or guarantor;
and
(iv) The obtaining or release of any
guaranty or surety agreement (in addition to this Guaranty),
pledge, assignment, or other security for any of the Obligations;
and
(e) Waive notice of presentment,
demand, notice of demand, presentment for payment, protest, notice
of non-payment or dishonor, notice of protest and any other demands
and notices required by law in connection with this Guaranty or any
instrument evidencing any Obligations, except as such waiver may be
expressly prohibited by law, and waive any requirement that suit
against them under this Guaranty be brought within any period of
time shorter than the general statute of limitations applicable to
contracts under seal.
4. The Guarantors hereby waive and
agree not to assert or take advantage of:
(a) any defense arising by virtue
of:
(i) the lack of authority, death or
disability of any other party, or revocation hereof by any other
party;
(ii) the failure of the Bank to file
or enforce a claim of any kind; or
(iii) the failure of the Bank to
record any document or perfect any lien;
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(b) notice of the existence,
creation or incurring of any new or additional indebtedness, or
obligation or any action or non-action on the part of the Borrower,
the Bank, any endorser, any guarantor under this or any other
instrument, any creditor of the Borrower, or any other person
whomsoever, in connection with any obligation or evidence of
indebtedness held by the Bank as collateral or in connection with
any indebtedness or any obligation hereby guaranteed;
(c) any defense based upon an
election of remedies by the Bank, including without limitation, an
election to proceed by non-judicial rather than judicial
foreclosure (if the right to proceed by non-judicial foreclosure is
available to the Bank); and
(d) any duty on the part of the Bank
to disclose to the Guarantors any facts which the Bank may now or
hereafter know about the Borrower or any security for the
Obligations, regardless of whether the Bank has reason to believe
that any such facts materially increase the risk beyond that which
the Guarantors intend to assume or has reason to believe that such
facts are unknown to the Guarantors or has a reasonable opportunity
to communicate such facts to the Guarantors, it being understood
and agreed that the Guarantors are fully responsible for being and
keeping informed of the financial condition of the Borrower and the
status of any security for the Obligations and of all circumstances
bearing on the risk of non-payment of all Obligations hereby
guaranteed.
5. The Guarantors hereby waive any
right or claim of right to cause a marshaling of any of the
Borrower’s assets or the assets of any other party now or
hereinafter held as security for any Obligations.
6. The Bank’s rights hereunder
shall not be impaired or stayed as a result of any dissolution of
the Borrower or any bankruptcy or insolvency proceedings involving
the Borrower (including, without limitation, any discharge of the
Borrower or its debts in any such proceedings). The Obligations
shall include, without limitation, any amounts advanced to or for
the benefit of the Borrower or any successor thereto from and after
the occurrence or commencement of any such dissolution or
proceedings. If any such bankruptcy or insolvency proceedings are
commenced by or against the Borrower, the full amount of all
Obligations then outstanding shall become immediately due and
payable by the Guarantors (whether or not the Borrower then owes
the Obligations on an accelerated basis).
7. The liability of the Guarantors
under this Guaranty is absolute, irrevocable, unconditional,
unlimited and continuing, without regard to the liability of any
other person, and shall not in any manner be affected by reason of
any action taken or not taken by the Bank, nor by the partial or
complete unenforceability or invalidity of any other guaranty or
surety agreement, pledge, assignment or other security for any of
the Obligations. Failure to sign this or any other guarantee by any
other person shall not discharge the liability of any signer. No
delay in making demand on the Guarantors for satisfaction of their
liability hereunder shall prejudice the Bank’s right to
enforce such satisfaction. All of the Bank’s rights and
remedies shall be cumulative and any failure of the
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Bank to exercise any right hereunder shall not
be construed as a waiver of the right to exercise the same or any
other right at any time, and from time to time,
thereafter.
8. This Guaranty shall be a
continuing one. This Guaranty shall continue in effect until the
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