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EXHIBIT
10.11
GUARANTEE
THIS GUARANTEE dated as of
September 24, 2007, by each of the signatories listed on the
signature pages hereto and each of the other entities that becomes
a party hereto pursuant to Section 19 (the “
Guarantors ” and individually, a “
Guarantor ”), in favor of the Collateral Agent for the
benefit of the Secured Parties.
WITNESSETH
:
WHEREAS, reference is made to
that certain Credit Agreement, dated as of September 24, 2007
(as the same may be amended, restated, supplemented or otherwise
modified, refinanced or replaced from time to time, the “
Credit Agreement ”) among First Data Corporation, a
Delaware corporation (the “ Company ”), the
lenders or other financial institutions or entities from time to
time party thereto (the “ Lenders ”) and Credit
Suisse, Cayman Islands Branch, as Administrative Agent and as
Collateral Agent, pursuant to which, among other things, the
Lenders have severally agreed to make Loans to the Company and the
Letter of Credit Issuer has agreed to issue Letters of Credit for
the account of the Company and the Restricted Subsidiaries
(collectively, the “ Extensions of Credit ”)
upon the terms and subject to the conditions set forth therein, one
or more Cash Management Banks or Hedge Banks may from time to time
enter into Secured Cash Management Agreements and Secured Hedge
Agreements with the Company and/or its Subsidiaries and the
Existing Secured Letter of Credit Issuers have issued Existing
Secured Letters of Credit;
WHEREAS, each Guarantor is a
direct or indirect wholly-owned Subsidiary of the
Company;
WHEREAS, the proceeds of the
Extensions of Credit will be used in part to enable valuable
transfers to the Guarantors in connection with the operation of
their respective businesses;
WHEREAS, each Guarantor
acknowledges that it will derive substantial direct and indirect
benefit from the making of the Extensions of Credit; and
WHEREAS, it is a condition
precedent to the obligation of the Lenders and the Letter of Credit
Issuer to make their respective Extensions of Credit to the Company
under the Credit Agreement that the Guarantors shall have executed
and delivered this Guarantee to the Collateral Agent for the
benefit of the Secured Parties;
NOW, THEREFORE, in
consideration of the premises and to induce the Administrative
Agent, the Collateral Agent, the Lenders and Letter of Credit
Issuer to enter into the Credit Agreement and to induce the
respective Lenders and the Letter of Credit Issuer to make their
respective Extensions of Credit to the Company under the Credit
Agreement, to induce one or more Cash Management Banks or Hedge
Banks to enter into Secured Cash Management Agreements and Secured
Hedge Agreements with the Company and/or its Subsidiaries and
to
induce the Existing Secured Letter of
Credit Issuers to continue the Existing Secured Letters of Credit,
the Guarantors hereby agree with the Collateral Agent, for the
ratable benefit of the Secured Parties, as follows:
1. Defined Terms
.
(a) Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
(b) The words
“hereof”, “herein” and
“hereunder” and words of similar import when used in
this Guarantee shall refer to this Guarantee as a whole and not to
any particular provision of this Guarantee, and Section references
are to Sections of this Guarantee unless otherwise specified. The
words “include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation”.
(c) The meanings given to
terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
2. Guarantee
.
(a) Subject to the provisions
of Section 2(b), each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees, as primary
obligor and not merely as surety, to the Collateral Agent, for the
benefit of the Secured Parties, the prompt and complete payment and
performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations of anyone other than
such Guarantor (including amounts that would become due for
operation of the automatic stay under 362(a) of the Bankruptcy
Code, 11 U.S.C. § 362(a)).
(b) Anything herein or in any
other Credit Document to the contrary notwithstanding, the maximum
liability of each Guarantor hereunder and under the other Credit
Documents shall in no event exceed the amount that can be
guaranteed by such Guarantor under the Bankruptcy Code or any
applicable laws relating to fraudulent conveyances, fraudulent
transfers or the insolvency of debtors.
(c) Each Guarantor further
agrees to pay any and all expenses (including all reasonable fees
and disbursements of counsel) that may be paid or incurred by the
Administrative Agent or the Collateral Agent or any other Secured
Party in enforcing, or obtaining advice of counsel in respect of,
any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or
collecting against, such Guarantor under this Guarantee.
(d) Each Guarantor agrees
that the Obligations may at any time and from time to time exceed
the amount of the liability of such Guarantor hereunder without
impairing this Guarantee or affecting the rights and remedies of
the Collateral Agent or any other Secured Party
hereunder.
(e) No payment or payments
made by the Company, any of the Guarantors, any other guarantor or
any other Person or received or collected by the Collateral Agent,
the Administrative Agent or any other Secured Party from the
Company, any of the Guarantors, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder, which shall, notwithstanding any such payment
or payments, other than payments made by such Guarantor in respect
of the Obligations or payments received or collected from such
Guarantor in respect of the Obligations, remain liable for the
Obligations up to the maximum liability of such Guarantor hereunder
until the Obligations under the Credit Documents are paid in full,
the Commitments are terminated and no Letters of Credit shall be
outstanding or the Letters of Credit Outstanding have been Cash
Collateralized.
(f) Each Guarantor agrees
that whenever, at any time, or from time to time, it shall make any
payment to the Collateral Agent or any other Secured Party on
account of its liability hereunder, it will notify the Collateral
Agent in writing that such payment is made under this Guarantee for
such purpose.
3. Right of
Contribution . Each Guarantor hereby agrees that to the extent
that a Guarantor shall have paid more than its proportionate share
of any payment made hereunder (including by way of set-off rights
being exercised against it), such Guarantor shall be entitled to
seek and receive contribution from and against any other Guarantor
hereunder who has not paid its proportionate share of such payment.
Each Guarantor ‘s right of contribution shall be subject to
the terms and conditions of Section 5 hereof. The provisions
of this Section 3 shall in no respect limit the obligations
and liabilities of any Guarantor to the Collateral Agent and the
other Secured Parties, and each Guarantor shall remain liable to
the Collateral Agent and the other Secured Parties up to the
maximum liability of such Guarantor hereunder.
4. Right of Set-off .
In addition to any rights and remedies of the Secured Parties
provided by law, each Guarantor hereby irrevocably authorizes each
Secured Party at any time and from time to time following the
occurrence and during the continuance of an Event of Default,
without notice to such Guarantor or any other Guarantor, any such
notice being expressly waived by each Guarantor, upon any amount
becoming due and payable by such Guarantor hereunder (whether at
stated maturity, by acceleration or otherwise), to set-off and
appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such
Secured Party to or for the credit or the account of such Guarantor
(excluding, for the avoidance of doubt, any Settlement Assets
except to effect Settlement Payments such Lender is obligated to
make to a third party in respect of such Settlement Assets or as
otherwise agreed in writing between the Borrower and such Lender).
Each Secured Party shall notify such Guarantor promptly of any such
set-off and the appropriation and application made by such Secured
Party, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
5. No Subrogation .
Notwithstanding any payment or payments made by any of the
Guarantors hereunder or any set-off or appropriation and
application of funds of any of the Guarantors by the Collateral
Agent or any other Secured Party, no Guarantor shall be entitled to
be subrogated to any of the rights (or if subrogated by operation
of law, such Guarantor hereby waives such rights to the extent
permitted by applicable law) of the Collateral Agent or any other
Secured Party against the Company or any Guarantor or any
collateral security or guarantee or right of offset held by the
Collateral Agent or any other Secured Party for the payment of any
of the Obligations, nor shall any Guarantor seek or be entitled to
seek any contribution or reimbursement from the Company or any
Guarantor or other guarantor in respect of payments made by such
Guarantor hereunder, in each case, until all amounts owing to the
Collateral Agent and the other Secured Parties on account of the
Obligations under the Credit Documents are paid in full, the
Commitments are terminated and no Letters of Credit shall be
outstanding or the Letters of Credit Outstanding have been Cash
Collateralized. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all the
Obligations shall not have been paid in full, such amount shall be
held by such Guarantor in trust for the Collateral Agent and the
other Secured Parties, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be
turned over to the Collateral Agent in the exact form received by
such Guarantor (duly indorsed by such Guarantor to the Collateral
Agent, if required), to be applied against the Obligations, whether
due or to become due, in such order as the Collateral Agent may
determine.
6. Amendments, etc. with
Respect to the Obligations; Waiver of Rights . Each Guarantor
shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to
or further assent by any Guarantor, (a) any demand for payment
of any of the Obligations made by the Collateral Agent or any other
Secured Party may be rescinded by such party and any of the
Obligations continued, (b) the Obligations, or the liability
of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Collateral Agent or any other
Secured Party, (c) the Credit Agreement, the other Credit
Documents, the Letters of Credit, the Existing Secured Letters of
Credit and any other documents executed and delivered in connection
therewith and the Secured Cash Management Agreements and Secured
Hedge Agreements and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or
the Required Lenders, as the case may be, or, in the case of any
Existing Secured Letter of Credit, Secured Cash Management
Agreement or Secured Hedge Agreement, the Existing Secured Letter
of Credit Issuer, Cash Management Bank or Hedge Bank party thereto)
may deem advisable from time to time, and (d) any collateral
security, guarantee or right of offset at any time held by the
Collateral Agent or any other Secured Party for the payment of any
of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Collateral Agent nor any other Secured Party
shall have any obligation to protect, secure, perfect or insure any
Lien at any time held by it as security for the Obligations or for
this Guarantee or any property subject thereto. When making any
demand hereunder against any Guarantor, the Collateral Agent or any
other Secured Party may, but shall be under no obligation to, make
a similar demand on the Company or any Guarantor or any other
person, and any failure by the Collateral Agent or any other
Secured Party to make any such demand or to collect
any payments from the Company or any
Guarantor or any other person or any release of the Company or any
Guarantor or any other person shall not relieve any Guarantor in
respect of which a demand or collection is not made or any
Guarantor not so released of its several obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Collateral Agent
or any other Secured Party against any Guarantor. For the purposes
hereof “demand” shall include the commencement and
continuance of any legal proceedings.
7. Guarantee Absolute and
Unconditional .
(a) Each Guarantor waives any
and all notice of the creation, contraction, incurrence, renewal,
extension, amendment, waiver or accrual of any of the Obligations,
and notice of or proof of reliance by the Collateral Agent or any
other Secured Party upon this Guarantee or acceptance of this
Guarantee. All Obligations shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended,
amended, waived or accrued, in reliance upon this Guarantee, and
all dealings between the Company and any of the Guarantors, on the
one hand, and the Collateral Agent and the other Secured Parties,
on the other hand, likewise shall be conclusively presumed to have
been had or consummated in reliance upon this Guarantee. To the
fullest extent permitted by applicable law, each Guarantor waives
diligence, promptness, presentment, protest and notice of protest,
demand for payment or performance, notice of default or nonpayment,
notice of acceptance and any other notice in respect of the
Obligations or any part of them, and any defense arising by reason
of any disability or other defense of the Company or any of the
Guarantors with respect to the Obligations. Each Guarantor
understands and agrees that this Guarantee shall be construed as a
continuing, absolute and unconditional guarantee of payment without
regard to (a) the validity, regularity or enforceability of
the Credit Agreement, any other Credit Document, any Letter of
Credit, any Existing Secured Letter of Credit, any Secured Cash
Management Agreement or Secured Hedge Agreement, any of the
Obligations or any collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to
time held by the Collateral Agent or any other Secured Party,
(b) any defense, set-off or counterclaim (other than a defense
of payment or performance) that may at any time be available to or
be asserted by the Company against the Collateral Agent or any
other Secured Party or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Company or such
Guarantor) that constitutes, or might be construed to constitute,
an equitable or legal discharge of the Company for the Obligations,
or of such Guarantor under this Guarantee, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder
against any Guarantor, the Collateral Agent and any other Secured
Party may, but shall be under no obligation to, pursue such rights
and remedies as it may have against the Company or any other Person
or against any collateral security or guarantee for the Obligations
or any right of offset with respect th
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