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EXHIBIT
10.15
SENIOR SUBORDINATED
GUARANTEE
THIS SENIOR SUBORDINATED
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 20 (the “ Guarantors ” and
individually, a “ Guarantor ”), in favor of
Citibank, N.A. as the Administrative Agent for the benefit of the
Guaranteed Parties.
WITNESSETH
:
WHEREAS, reference is made to
that certain Senior Subordinated Interim Loan 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 “ Loan 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 Citibank, N.A., as
Administrative Agent, pursuant to which, among other things, the
Lenders have severally agreed to make Loans to the Company (the
“ Extensions of Credit ”) upon the terms and
subject to the conditions set forth therein;
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 to make their respective
Extensions of Credit to the Company under the Loan Agreement that
the Guarantors shall have executed and delivered this Guarantee to
the Administrative Agent for the benefit of the Guaranteed
Parties;
NOW, THEREFORE, in
consideration of the premises and to induce the Administrative
Agent, the Administrative Agent and the Lenders to enter into the
Loan Agreement and to induce the respective Lenders to make their
respective Extensions of Credit to the Company under the Loan
Agreement, the Guarantors hereby agree with the Administrative
Agent, for the benefit of the Guaranteed Parties, as
follows:
1. Defined Terms
.
(a) Unless otherwise defined
herein, terms defined in the Loan Agreement and used herein shall
have the meanings given to them in the Loan 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 Administrative Agent, for
the benefit of the Guaranteed 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 Loan Document to the contrary notwithstanding, the maximum
liability of each Guarantor hereunder and under the other Loan
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 any other Guaranteed 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 Administrative Agent or any other Guaranteed 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 Administrative
Agent or any other Guaranteed 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 Loan Documents
are paid in full and the Commitments are terminated.
(f) Each Guarantor agrees
that whenever, at any time, or from time to time, it shall make any
payment to the Administrative Agent or any other Guaranteed Party
on account of its liability hereunder, it will notify the
Administrative 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 Administrative Agent and
the other Guaranteed Parties, and each Guarantor shall remain
liable to the Administrative Agent and the other Guaranteed Parties
up to the maximum liability of such Guarantor hereunder.
4. Right of Set-off .
In addition to any rights and remedies of the Guaranteed Parties
provided by law, each Guarantor hereby irrevocably authorizes each
Guaranteed 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
Guaranteed Party to or for the credit or the account of such
Guarantor (excluding, for the avoidance of doubt, any Settlement
Assets). Each Guaranteed Party shall notify such Guarantor promptly
of any such set-off and the appropriation and application made by
such Guaranteed 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 Administrative
Agent or any other Guaranteed 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 Administrative Agent or
any other Guaranteed Party against the Company or any Guarantor or
any collateral security or guarantee or right of offset held by the
Administrative Agent or any other Guaranteed 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
Administrative Agent and the other Guaranteed Parties on account of
the Obligations under the Loan Documents are paid in full, the
Commitments are terminated. 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 Administrative
Agent and the other Guaranteed Parties, segregated from other funds
of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Administrative Agent in the exact
form received by such Guarantor (duly indorsed by such Guarantor to
the Administrative Agent, if required), to be applied against the
Obligations, whether due or to become due, in such order as the
Administrative 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 Administrative Agent or any
other Guaranteed 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 Administrative Agent or any
other Guaranteed Party, (c) the Loan Agreement, the other Loan
Documents, 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) may deem advisable from
time to time, and (d) any collateral security, guarantee or
right of offset at any time held by the Administrative Agent or any
other Guaranteed Party for the payment of any of the Obligations
may be sold, exchanged, waived, surrendered or released. Neither
the Administrative Agent nor any other Guaranteed 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 Administrative Agent or any
other Guaranteed 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 Administrative Agent or any other
Guaranteed 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 Administrative Agent or any other Guaranteed
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 Administrative Agent or
any other Guaranteed 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 Administrative Agent and the other Guaranteed
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 Loan Agreement, any other Loan Document, 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
Administrative Agent or any other Guaranteed 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 Administrative Agent or any other
Guaranteed 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 Administrative Agent and any other
Guaranteed 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 thereto, and
any failure by the Administrative Agent or any other Guaranteed
Party to pursue such other rights or remedies or to collect any
payments from the Company or any such other Person or to realize
upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of the Company or any such
other Person or any such collateral security, guarantee or right of
offset, shall not relieve such Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the
Administrative Agent and the other Guaranteed Parties against such
Guarantor.
(b) This Guarantee shall
remain in full force and effect and be binding in accordance with
and to the extent of its terms upon each Guarantor and the
successors and assigns thereof and shall inure to the benefit of
the Administrative Agent and the other Guaranteed Parties and their
respective successors, indorsees, transferees and assigns until all
Obligations (other than any contingent indemnity obligations not
then due) shall have been satisfied by payment in full, the
Commitments thereunder shall be terminated, notwithstanding that
from time to time during the term of the Loan Agreement, the Loan
Parties may be free from any Obligations.
(c) A Guarantor shall
automatically be released from its obligations hereunder and the
Guarantee of such Guarantor shall be automatically released under
the circumstances described in Section 13.1 of the Loan
Agreement.
8. Reinstatement .
This Guarantee shall continue to be effective, or be reinstated, as
the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored
or returned by the Administrative Agent or any other Guaranteed
Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company or any Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator
of, or trustee or similar officer for, the Company or any Guarantor
or any substantial part of its property, or otherwise, all as
though such payments had not been made.
9. Payments . Each
Guarantor hereby guarantees that payments hereunder will be paid to
the Administrative Agent without set-off or counterclaim in Dollars
at the Administrative Agent’s Office. Each Guarantor agrees
that the provisions of Sections 5.4 and 13.19 of the Loan Agreement
shall apply to such Guarantor’s obligations under this
Guarantee.
10. Representations and
Warranties; Covenants .
(a) Each Guarantor hereby
represents and warrants that the representations and warranties set
forth in Section 8 of the Loan Agreement as they relate to
such Guarantor and in the other Loan Documents to which such
Guarantor is a party, each of which is hereby incorporated herein
by reference, are true and correct in all material respects as of
the Closing Date (except where such representations and warranties
expressly relate to an earlier date, in which case such
representations and warranties were true and correct in all
material respects as of such earlier date), and the Administrative
Agent and each other Guaranteed Party shall be entitled to rely on
each of them as if they were fully set forth herein.
(b) Each Guarantor hereby
covenants and agrees with the Administrative Agent and each other
Guaranteed Party that, from and after the date of this Guarantee
until the Obligations are paid in full and the Commitments are
terminated, such Guarantor shall take, or shall refrain from
taking, as the case may be, all actions that are necessary to be
taken or not taken so that no violation of any provision, covenant
or agreement contained in Section 9 or Section 10 of the
Loan Agreement and so that no Default or Event of Default, is
caused by any act or failure to act of such Guarantor or any of its
Subsidiaries.
11. Authority of the
Administrative Agent .
(a) The Administrative Agent
enters into this Guarantee in its capacity as agent for the
Guaranteed Parties from time to time. The rights and obligations of
the Administrative Agent under this Guarantee at any time are the
rights and obligations of the Guaranteed Parties at that time. Each
of the Guaranteed Parties has (subject to the terms of the Loan
Documents) a several entitlement to each such right, and a several
liability in respect of each such obligation, in the proportions
described in the Loan Documents. The rights, remedies and
discretions of the Guaranteed Parties, or any of them, under this
Guarantee may be exercised by the Administrative Agent. No party to
this Guarantee is obliged to inquire whether an exercise by the
Administrative Agent of any such right, remedy or discretion is
within the Administrative Agent’s authority as agent for the
Guaranteed Parties.
(b) Each party to this
Guarantee acknowledges and agrees that any changes (in accordance
with the provisions of the Loan Documents) in the identity of the
persons from time to time comprising the Guaranteed Parties gives
rise to an equivalent change in the Guaranteed Parties, without any
further act. Upon such an occurrence, the persons then comprising
the Guaranteed Parties are vested with the rights, remedies and
discretions and assume the obligation
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