Exhibit 10.5
GUARANTY AGREEMENT
from
CONCORD EFS, INC.
Dated as of July 12, 2002

 

 

TABLE OF CONTENTS               Page       SECTION 1. Guaranty  1 SECTION 2. Bankruptcy  2 SECTION 3. Continuing Guaranty  2 SECTION 4. Reinstatement  3 SECTION 5. Certain Actions  3 SECTION 6. Application; Set-Off  3 SECTION 7. Waiver  4 SECTION 8. Assignment  4 SECTION 9. Miscellaneous  4 
 

 

GUARANTY AGREEMENT
         THIS GUARANTY AGREEMENT, dated as of July 12, 2002 (as amended orotherwise modified from time to time, this “Guaranty”), is made by CONCORD EFS,INC., a Delaware corporation (“Guarantor”).
WITNESSETH:
         WHEREAS, Concord EFS, Inc., as Guarantor, Guarantor and certainSubsidiaries of Guarantor that are or may become party thereto, as Lessees,Electronic Payment Services, Inc., [Bank] and certain other SignificantSubsidiaries that may become party thereto, as Subsidiary Guarantors, AtlanticFinancial Group, Ltd., as Lessor, the financial institutions party thereto, asLenders, and SunTrust Bank, as Agent, have entered into that certain MasterAgreement, dated as of July 12, 2002 (as it may be modified, amended orrestated from time to time as and to the extent permitted thereby, the “MasterAgreement”; and, unless otherwise defined herein, terms which are defined ordefined 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 consummatingthe transactions to be consummated on the Initial Closing Date that theGuarantor execute and deliver this Guaranty; and
         WHEREAS, it is in the best interests of the Guarantor that thetransactions contemplated by the Master Agreement be consummated on the InitialClosing Date; and
         WHEREAS, this Guaranty, and the execution, delivery and performancehereof, have been duly authorized by all necessary corporate action of theGuarantor; and
         WHEREAS, this Guaranty is offered by the Guarantor as an inducement to theFunding Parties to consummate the transactions contemplated in the MasterAgreement, which transactions, if consummated, will be of benefit to theGuarantor;
         NOW, THEREFORE, in consideration of the foregoing and for other good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged by the Guarantor, the Guarantor hereby agrees as follows:
         SECTION 1. Guaranty. The Guarantor hereby unconditionally guarantees tothe Agent and the Funding Parties the full and prompt payment when due, whetherby acceleration or otherwise, and at all times thereafter, and the full andprompt performance, of all of the Liabilities (as hereinafter defined),including rent, interest and earnings on any such Liabilities whether accruingbefore or after any bankruptcy or insolvency case or proceeding involving the
 

 

Guarantor or any other Person and, if rent, interest or earnings on anyportion of such obligations ceases to accrue by operation of law by reason ofthe commencement of such case or proceeding, including such rent, interest andearnings as would have accrued on any such portion of such obligations if suchcase or proceeding had not commenced, and further agrees to pay all reasonableexpenses (including reasonable attorneys’ fees and legal expenses) actuallypaid or incurred by each of the Funding Parties in endeavoring to collect theLiabilities, or any part thereof, and in enforcing this Guaranty. The term“Liabilities”, as used herein, shall mean all of the following, in each casehowsoever created, arising or evidenced, whether direct or indirect, joint orseveral, absolute or contingent, or now or hereafter existing, or due or tobecome due: (i) all amounts payable by the Lessees or the Construction Agentto the Agent and the Funding Parties under the Lease (including, withoutlimitation, Basic Rent, Supplemental Rent and the Recourse Deficiency Amount),the Master Agreement, the Construction Agency Agreement or any other OperativeDocument, (ii) all principal of the Notes and interest accrued thereon, and alladditional amounts and other sums at any time due and owing, and required to bepaid, to the Funding Parties under the terms of the Master Agreement, the LoanAgreement, the Construction Agency Agreement, the Assignments of Lease andRents, the Mortgages, the Notes or any other Operative Document and (iii) allobligations of EPS under the Swap Documents; provided, however, that theGuarantor will not be obligated to pay to the Agent and Funding Parties underthis Guaranty any amounts greater than the Lessees and the Construction Agentwould have had to pay to the Agent and the Funding Parties under the Lease, theMaster Agreement, the Construction Agency Agreement and the other OperativeDocuments, plus the amounts EPS would have had to pay under the Swap Documents,assuming that such documents were enforced in accordance with their terms (andwithout giving effect to any discharge or limitation thereon resulting orarising by reason of the bankruptcy or insolvency of a Lessee or theConstruction Agent), plus all actual and reasonable costs of enforcing thisGuaranty.
         By way of extension but not in limitation of any of its other obligationshereunder, the Guarantor stipulates and agrees that in the event anyforeclosure proceedings are commenced with respect to any Leased Property andresult in the entering of a foreclosure judgment, any such foreclosurejudgment, to the extent related to the Liabilities and payable to any of theFunding Parties, shall be treated as part of the Liabilities, and the Guarantorunconditionally guarantees the full and prompt payment of such judgment.
         SECTION 2. Bankruptcy. The Guarantor agrees that, in the event anybankruptcy, reorganization or insolvency proceeding shall be instituted by oragainst the Guarantor and, if instituted against the Guarantor, shall not bedismissed or stayed for a period of sixty days, and if such event shall occurat a time when any of the Liabilities may not then be due and payable, theGuarantors will pay to the Funding Parties forthwith the full amount whichwould be payable hereunder by the Guarantor if all Liabilities were then dueand payable.
         SECTION 3. Continuing Guaranty. THIS GUARANTY SHALL IN ALL RESPECTS BE ACONTINUING, ABSOLUTE AND UNCONDITIONAL GUARANTY OF PROMPT
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AND COMPLETE PAYMENT AND PERFORMANCE (AND NOT MERELY OF COLLECTION), ANDSHALL REMAIN IN FULL FORCE AND EFFECT (NOTWITHSTANDING, WITHOUT LIMITATION, THEDISSOLUTION OF GUARANTOR) UNTIL THE TERMINATION OF THE COMMITMENTS AND THE FULLAND FINAL PAYMENT OF ALL OF THE LIABILITIES.
         SECTION 4. Reinstatement. The Guarantor further agrees that, if at anytime all or any part of any payment theretofore applied to any of theLiabilities is or must be rescinded or returned for any reason whatsoever(including, without limitation, the insolvency, bankruptcy or reorganization ofthe Guarantor or any Lessee), such Liabilities shall, for the purposes of thisGuaranty, to the extent that such payment is or must be rescinded or returned,be deemed to have continued in existence, notwithstanding such application, andthis Guaranty shall continue to be effective or be reinstated, as the case maybe, 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 attheir discretion and without notice to the Guarantor, take any or all of thefollowing actions: (a) retain or obtain (i) a security interest in anyLessee’s interests in the Lease or the Leased Property and (ii) a lien or asecurity interest hereafter granted by any Person upon or in any property, ineach case to secure any of the Liabilities or any obligation hereunder; (b)retain or obtain the primary or secondary obligation of any obligor orobligors, in addition to the Guarantor, with respect to any of the Liabilities;(c) extend or renew for one or more periods (regardless of whether longer thanthe original period), or release or compromise any obligation of the Guarantorhereunder or any obligation of any nature of any other obligor (including,without limitation, the Lessor and the Lessees) with respect to any of theLiabilities; (d) release or fail to perfect its Lien upon or security interestin, or impair, surrender, release or permit any substitution or exchange for,all or any part of any property securing any of the Liabilities or anyobligation hereunder, or extend or renew for one or more periods (regardless ofwhether longer than the original period) or release or compromise anyobligations of any nature of any obligor with respect to any such property; and(e) resort to the Guarantor for payment of any of the Liabilities, regardlessof whether the Agent or any other Person shall have resorted to any propertysecuring any of the Liabilities or any obligation hereunder or shall haveproceeded against any Lessee or any other obligor primarily or secondarilyobligated with respect to any of the Liabilities (all of the actions referredto in this clause (e) being hereby expressly waived by the Guarantor).
         SECTION 6. Application; Set-Off. Any amounts received by any FundingParty from whatever source on account of the Liabilities shall be applied by ittoward the payment of such of the Liabilities, and in such order ofapplication, as is set forth in the Operative Documents.
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         To secure all obligations of the Guarantor hereunder, each Funding Partyand the Agent shall have a right to set-off, without demand or notice of anykind, at any time and from time to time when any amount shall be due andpayable by the Guarantor hereunder against any and all balances, credits,deposits, accounts or moneys of or in the Guarantor’s name now or hereafter,for any reason or purpose whatsoever, in the possession or control of, or intransit to, any Funding Party, the Agent or any agent or bailee for any FundingParty, and apply any such amounts toward the payment of the Liabilities thendue in such order as in accordance with the Operative Documents.
         SECTION 7. Waiver. The Guarantor hereby expressly waives: (a) notice ofthe acceptance of this Guaranty; (b) notice of the existence or creation ornon-payment of all or any of the Liabilities; (c) presentment, demand, noticeof dishonor, protest, and all other notices whatsoever; and (d) all diligencein collection or protection of or realization upon the Liabilities or anythereof, any obligation hereunder, or any security for or guaranty of any ofthe foregoing.
         SECTION 8. Assignment. Subject to Article VI of the Master Agreement,each Funding Party may, from time to time, whether before or after anydiscontinuance of this Guaranty, at its sole discretion and without notice tothe Guarantor, assign or transfer any or all of its portion of the Liabilitiesor any interest therein; and, notwithstanding any such assignment or transferor any subsequent assignment or transfer thereof, such Liabilities shall be andremain Liabilities for the purposes of this Guaranty, and each and every suchimmediate and successive assignee or transferee of any of the Liabilities or ofany interest therein shall, to the extent of such assignee’s or transferee’sinterest in the Liabilities, be entitled to the benefits of this Guaranty tothe same extent as if such assignee or transferee were such Funding Party.
         SECTION 9. Miscellaneous. No delay in the exercise of any right or remedyshall operate as a waiver thereof, and no single or partial exercise of anyright or remedy shall preclude other or further exercise thereof or theexercise of any other right or remedy; nor shall any modification or waiver ofany of the provisions of this Guaranty be binding upon any Funding Party exceptas expressly set forth in a writing duly signed and delivered on its behalf.No action permitted hereunder shall in any way affect or impair any FundingParty’s rights or the Guarantor’s obligations under this Guaranty. For thepurposes of this Guaranty, Liabilities shall include all of the obligationsdescribed in the definition thereof, notwithstanding any right or power of anyLessee, the Construction Agent or the Lessor or anyone else to assert any claimor defense (other than final payment or full performance) as to the invalidityor unenforceability of any such obligation, and no such claim or defense shallaffect or impair the obligations of the Guarantor hereunder. The Guarantorhereby acknowledges that there are no conditions to the effectiveness of thisGuaranty.
         This Guaranty shall be binding upon the Guarantor and upon the Guarantor’ssuccessors and permitted assigns; and all references herein to the Guarantorshall be deemed to include any successor or successors thereof, whetherimmediate or remote, to such Person; provided that the
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Guarantor shall not assign its obligations hereunder without the priorwritten consent of the Funding Parties.
         Wherever possible each provision of this Guaranty shall be interpreted insuch manner as to be effective and valid under Applicable Law, but if anyprovision of this Guaranty shall be prohibited by or invalid thereunder, suchprovision shall be ineffective only to the extent of such prohibition orinvalidity, without invalidating the remainder of such provision or theremaining provisions of this Guaranty.
         **The Guarantor: (a) submits for itself and its property in any legalaction or proceeding relating to this Guaranty, or for recognition andenforcement of any judgment in respect thereof, to the non-exclusive generaljurisdiction of the Courts of the State of Georgia, the courts of the UnitedStates of America for the Northern District of Georgia, and appellate courtsfrom any thereof; (b) consents that any such action or proceedings may bebrought to such courts, and waives any objection that it may now or hereafterhave to the venue of any such action or proceeding in any such court or thatsuch action or proceeding was brought in an inconvenient court and agrees notto plead or claim the same; and (c) agrees that nothing herein shall affect theright to effect service of process in any manner permitted by law or shalllimit the right of the Funding Parties to sue in any other jurisdiction.**
         All notices, demands, declarations, consents, directions, approvals,instructions, requests and other communications required or permitted by thisGuaranty shall be in writing and shall be deemed to have been duly given whenaddressed to the appropriate Person and delivered in the manner specified inSection 8.2 of the Master Agreement.
         **THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THELAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.**
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         IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executedand delivered as of the date first above written.    CONCORD EFS, INC.    By: /s/ E. T. Haslam                                          Name Printed: Edward T. Haslam            Title: Chief Financial Officer                  
GUARANTY
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