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516131 NB Inc | Foothill Capital Corporation | New Brunswick, Canada, 515963 NB Inc | RMH Interactive Technologies, LLC | RMH Teleservices International, Inc | RMH Teleservices, Inc | Teleservices Management Company | Teleservices Technology Company. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10.45
GUARANTY
THIS GUARANTY (as amended,
restated, supplemented or otherwise modified from time to time, this “Guaranty”), dated as of September 4, 2002, is entered into by each of Teleservices Management Company, a Delaware corporation, Teleservices Technology Company, a
Delaware corporation, RMH Interactive Technologies, LLC, a Delaware limited liability company, RMH Teleservices International, Inc., a corporation organized under the laws of New Brunswick, Canada, 515963 N.B. Inc., a corporation organized under the
laws of New Brunswick, Canada, and 516131 N.B. Inc., a corporation organized under the laws of New Brunswick, Canada (each, a “Guarantor” and, collectively, “Guarantors”), in favor of Foothill Capital Corporation, a
California corporation (the “Lender”).
RECITALS
WHEREAS, RMH Teleservices, Inc., a Pennsylvania corporation (“Borrower”), has entered into a Loan and Security Agreement,
dated as of September 4, 2002 (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”), with Lender;
WHEREAS, it is a condition precedent to the extension of credit by Lender under the Loan Agreement that Guarantors shall have executed and delivered this Guaranty; and
WHEREAS, Guarantors will obtain benefits from the extension of credit to Borrower under the Loan Agreement and,
accordingly, desire to execute this Guaranty in order to satisfy the conditions described in the preceding paragraph.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in order to induce Lender to extend credit to, and issue letters of credit for the account of Borrower pursuant to
the Loan Agreement, each of Guarantors hereby agrees, for the benefit of the Guaranteed Party, as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Loan Agreement Definitions.
Unless otherwise defined
herein or the context otherwise requires, terms used in this Guaranty, including its preamble and recitals, have the meanings provided in the Loan Agreement.
Section 1.2 Certain Terms.
The
following terms when used in this Guaranty shall have the following meanings:
“Avoidable Payment” has the meaning assigned to that term in
Section 4.1(c).
“Bankruptcy Code” means (i) the United States Bankruptcy Code, (ii) the
Bankruptcy and Insolvency Act (Canada), or (iii) the Companies’ Creditors Arrangement Act (Canada), as applicable and as in effect from time to time or any similar legislation in a relevant jurisdiction.
“Borrower” has the meaning assigned to such term in the Recitals to this Guaranty.
“Contractual Obligations”, as applied to any Person, means any provision of any security issued by such Person or of any
material indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which such Person is a party or by which it or any of its properties or assets is subject or bound.
“Governmental Authority” means any federal, state, local, provincial, or other governmental or administrative body,
instrumentality, department, or agency or any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving panel or body.
“Guaranteed Obligations” means the Obligations of Borrower under the Loan Documents, including all obligations and liabilities of Borrower in respect of
the unpaid principal of and interest on the Advances and all other obligations and liabilities of Borrower (including, without limitation, interest accruing after the maturity of the Advances and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the Loan Agreement or the other Loan Documents, whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses or otherwise (including, without limitation, all attorneys’ fees and disbursements).
“Guaranteed Party” means the Lender.
“Guarantor” and
“Guarantors” have the meanings ascribed to such terms in the introduction to this Guaranty.
“Guarantor’s Conditional Rights” has the meaning assigned to that term in Section 4.1(a).
“Guaranty” has the meaning assigned to that term in the introduction to this Guaranty.
“Lender” has the meaning assigned to that term in the introduction to this Guaranty.
“Loan Agreement” has the meaning assigned to that term in the Recitals to this Guaranty.
“Material Adverse Change” means (a) a material adverse change in the business, operations, results of operations, assets, liabilities or condition (financial or otherwise) of Guarantors and Borrower, taken as a
whole, (b) a material impairment of the ability of any Guarantor to perform its obligations hereunder or under any of the Loan Documents to which it is a party or of Lender Group’s ability to enforce the Guaranteed Obligations or realize upon
the
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Collateral, or (c) a material impairment of the enforceability or priority of the Agent’s Liens
with respect to the Collateral as a result of an action or failure to act on the part of any Guarantor.
“Requirements of Law” shall mean, as to any Person, any law, treaty, statute, rule or regulation, or a final and binding determination of an arbitrator or a determination of a court or other Governmental Authority,
in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject or bound.
Section 1.3 Other Interpretive Provisions.
Except as otherwise expressly provided herein, the rules of interpretation set forth in Section 1.4 of the Loan Agreement shall apply mutatis mutandis to this Guaranty.
ARTICLE II
GUARANTY PROVISIONS
Section 2.1 Guaranty.
(a) Each Guarantor, jointly and severally, hereby unconditionally, absolutely and irrevocably guarantees the full and punctual payment and
performance when due, whether at stated maturity, by declaration, acceleration, demand, required prepayment, or otherwise, of all the Guaranteed Obligations.
(b) Each Guarantor, jointly and severally, agrees to pay to the Guaranteed Party, with or without notice or demand, and to indemnify and hold harmless the Guaranteed Party from
and against, any and all costs and expenses (including, without limitation, reasonable fees and disbursements of counsel and reasonable allocated costs of internal counsel) incurred or expended by the Guaranteed Party in connection with any of the
Guaranteed Obligations of Borrower or the collection thereof, and in connection with the enforcement or preservation of any rights under, or provisions of, this Guaranty.
(c) Each Guarantor shall be jointly and severally liable under this Guaranty for the maximum amount of such liability that can be hereby incurred
without rendering this Guaranty voidable under applicable law relating to fraudulent obligations, fraudulent conveyance, or fraudulent transfer under applicable law (including, without limitation, under Section 548 of the United States Bankruptcy
Code or any similar provision under applicable law), and not for any greater amount.
(d) Each Guarantor shall be liable for the payment and performance of the Guaranteed Obligations as a primary obligor and not merely as a surety.
(e) This Guaranty constitutes a guaranty of payment and performance, and not merely of collection.
(f) Each Guarantor guarantees that the Guaranteed Obligations will be paid and performed strictly in accordance
with the terms of the Loan Documents under which they arise, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction
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affecting any of the terms of the Loan Documents or the rights of the Guaranteed Party with respect
thereto.
(g) This Guaranty is a continuing guaranty and shall apply to all Guaranteed
Obligations whether existing now or in the future and shall remain in full force and effect until the indefeasible payment and performance in full of the Guaranteed Obligations and all other amounts payable under this Guaranty.
Section 2.2 Acceleration of Guaranty
Subject to Section 2.1(c), each Guarantor agrees that, if an Event of Default of the nature set forth in Section 8.4 or 8.5 of the Loan Agreement
occurs, all of the Guaranteed Obligations shall, as set forth in Section 9.1(a) of the Loan Agreement, be immediately due and payable, and, accordingly such Guarantor shall pay to the Guaranteed Party forthwith the amount of the Guaranteed
Obligations.
Section 2.3 Guaranty Absolute.
(a) The liability of each Guarantor under this Guaranty is irrevocable, absolute, independent and unconditional
and is exclusive and independent of any security for or other guaranty of the Guaranteed Obligations, whether executed by such Guarantor or by any other Person, and the liability of each Guarantor hereunder shall not be affected or impaired by any
circumstances or occurrence whatsoever, including, without limitation: (i) any other guaranty or undertaking or maximum liability of a guarantor or of any other Person as to the Guaranteed Obligations, (ii) any payment on or in reduction of any such
other guaranty or undertaking, (iii) any revocation or release of any obligations of any other guarantor of any of the Guaranteed Obligations, (iv) any payment made to the Guaranteed Party on the Guaranteed Obligations which the Guaranteed Party
repays to Borrower pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each Guarantor hereby waives any right to the deferral or modification of such Guarantor’s obligations
hereunder by reason of any such proceeding, (v) any action or inaction by the Guaranteed Party as contemplated in Section 2.3(c) hereof, (vi) any invalidity, irregularity or unenforceability of all or any part of the Guaranteed Obligations,
any security therefor (including the lack of attachment or perfection of a security interest in any collateral which secures any of the Guaranteed Obligations, or any other impairment of collateral), or any of the Loan Documents, or (vii) any other
circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, Borrower, any Guarantor, any other guarantor or any surety.
(b) The obligations of each Guarantor under this Guaranty are independent of the Guaranteed Obligations of Borrower and any other guarantor of any
of the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against such Guarantor to enforce this Guaranty, irrespective of whether any action is brought against Borrower or such other guarantor or whether
Borrower, Guarantor or such other guarantor is joined in any such action or actions. Any payment by Borrower or other circumstances which operates to toll any statute of limitations as to Borrower shall operate to toll the statute of limitations as
to Guarantors.
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(c) Each Guarantor authorizes the Guaranteed Party,
without notice to or further assent by such Guarantor, and without affecting such Guarantor’s liability hereunder (regardless of whether any subrogation or similar right that such Guarantor may have or any other right or remedy of such
Guarantor is extinguished or impaired), from time to time to do any or all of the following:
(i) renew, alter, extend, accelerate, or otherwise change the time, place, manner or terms of payment or performance of, or any other term of, any of the Guaranteed Obligations
(including increase or decrease of the rate of interest thereon), any security therefor, or any liability incurred directly or indirectly in respect thereof;
(ii) take and hold security for the payment of the Guaranteed Obligations and sell, exchange, release, surrender, impair, realize upon or otherwise deal with in
any manner and in any order any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing the Guaranteed Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and/or any offset thereagainst;
(iii) exercise in such
manner and order as they elect in their sole discretion or refrain from exercising any rights or remedies against Borrower, such Guarantor, any other guarantor of any of the Guaranteed Obligations, or any Subsidiary thereof, or otherwise act or
refrain from acting;
(iv) release, add or substitute any one or more
endorsers, such Guarantor, any other guarantor of any of the Guaranteed Obligations, Borrower or other obligor;
(v) settle, compromise, release or discharge, or accept or refuse any offer of payment or performance with respect to, or substitutions for, any of the Guaranteed Obligations, any
security therefor, or any agreement relating thereto and/or subordinate the payment of all or any part thereof to the payment of any other obligations (whether due or not) of Borrower to creditors of Borrower;
(vi) except as otherwise required by the Loan Agreement, apply any sums by whomsoever paid or
howsoever realized to any of the Guaranteed Obligations as the Guaranteed Party may elect in its sole discretion, regardless of what Guaranteed Obligations remain unpaid or of whether or not such Guaranteed Obligations are secured or guaranteed;
(vii) consent to or waive any breach of, or any act, omission or default under, any
of the Loan Documents or any of the instruments or agreements referred to therein, or otherwise amend, modify or supplement any of the Loan Documents or any of such other instruments or agreements;
(viii) act or fail to act in any manner referred to in this Guaranty which may deprive such Guarantor of its right
to subrogation against Borrower to recover any payments made pursuant to this Guaranty; and/or
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(ix) otherwise deal with Borrower, such Guarantor, any
other guarantor of any of the Guaranteed Obligations, and/or any security as the Guaranteed Party may elect in its sole discretion.
Section 2.4 Certain Waivers.
Each Guarantor irrevocably
and unconditionally hereby waives:
(a) any right to require the Guaranteed
Party, to: (i) proceed against Borrower, any other guarantor of any of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any Collateral or any other security held from Borrower, any such other guarantor or any other
Person, or (iii) pursue any other remedy in the power of the Guaranteed Party whatsoever;
(b) the right to have the property of Borrower, such Guarantor or any other guarantor of any of the Guaranteed Obligations first applied to the discharge of the Guaranteed Obligations or any part
thereof;
(c) any notices, demands, promptness, diligence, presentments,
protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance of this Guaranty, notices of default under any of the Loan Documents, notices of any renewal, extension or modification of the Guaranteed
Obligations or any agreement related thereto, notices of any extension of credit to Borrower, and any other notice with respect to any of the Guaranteed Obligations, this Guaranty or any other Loan Document;
(d) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or
the enforcement thereof;
(e) any requirement of marshaling or any other
principle of election of remedies;
(f) any right to assert against the
Guaranteed Party any defense (legal or equitable), setoff, counterclaim and other right that such Guarantor may now or any time hereafter have against Borrower or any other guarantor of any of the Guaranteed Obligations;
(g) any rights to setoffs, recoupments and counterclaims;
(h) any right to revoke or terminate this Guaranty;
(i) any defenses based on or arising out of any change, reorganization, restructuring or termination
of the corporate or organizational structure or existence of Borrower, any Guarantor, any of their Subsidiaries or any other guarantor of any of the Guaranteed Obligations and to any corresponding restructuring of the Guaranteed Obligations;
(j) any defense arising by reason of or based on the incapacity, lack of
authority or any disability of Borrower or any other guarantor of any of the Guaranteed Obligations;
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(k) any defense arising by reason of or based
on the lack of validity or the unenforceability or the illegality of all or any of the Guaranteed Obligations, any Loan Documents or any other agreement or instrument relating thereto;
(l) any defense that at any time may be available to such Guarantor by virtue of any valuation, stay, moratorium or other law now
or hereafter in effect;
(m) any and all suretyship defenses, including, but not
limited to, (1) surrender, release, exchange, substitution, dealing with or taking any additional collateral, (2) abstaining from taking advantage of or realizing upon any security interest or other guaranty, and (3) any impairment of collateral,
including, but not limited to, failure to perfect a security interest in the collateral; and
(n) any defense based on or arising out of any defense of Borrower, any other guarantor of any of the Guaranteed Obligations or any other party other than the indefeasible payment and performance in
full of the Guaranteed Obligations.
Section 2.5 Bankruptcy; No Discharge.
(a) Without limiting this Guaranty, this Guaranty shall not be discharged or
otherwise affected by any bankruptcy, reorganization or similar proceeding commenced by or against Borrower or any other guarantor of any of the Guaranteed Obligations, including (i) any discharge of, or bar or stay against collecting, all or any
part of the Guaranteed Obligations in or as a result of any such proceeding, whether or not assented to by the Guaranteed Party, (ii) any disallowance of all or any portion of any claim for repayment of the Guaranteed Obligations, (iii) any use of
cash or other collateral in any such proceeding, (iv) any agreement or stipulation as to adequate protection in any such proceeding, (v) any failure by the Guaranteed Party to file or enforce a claim against Borrower or any other guarantor of any of
the Guaranteed Obligations or its estate in any bankruptcy or reorganization case, (vi) any amendment, modification, stay or cure of the Guaranteed Party’s rights that may occur in any such proceeding, (vii) any election by the Guaranteed Party
under Section 1112(b)(2) of the United States Bankruptcy Code (or any similar provision under applicable law), or (viii) any borrowing or grant of a Lien under Section 364 of the United States Bankruptcy Code (or any similar provision under
applicable law). Each Guarantor understands and acknowledges that by virtue of this Guaranty, it has specifically assumed any and all risks of any such proceeding with respect to Borrower and any other guarantor of any of the Guaranteed Obligations.
(b) Notwithstanding anything to the contrary herein contained, this Guaranty
(and any Lien on the collateral securing this Guaranty o
