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Exhibit 10.22
UNLIMITED CONTINUING GUARANTY
THIS UNLIMITED CONTINUING GUARANTY (this "Guaranty Agreement"),
dated as of December 1, 2006, is made by Express Check Advance
of South Carolina, LLC, a Tennessee limited liability company
("Guarantor"), for the benefit of U.S. BANK NATIONAL
ASSOCIATION , a national banking association organized and
existing under the laws of the United States, as agent (in such
capacity, the "Agent") for each of the lenders (the "Banks") now or
hereafter party to the Credit Agreement (as defined below). All
capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to such terms in the Credit Agreement (as
defined below).
W I T N E S S E T H:
WHEREAS , the Banks have previously provided to QC Holdings,
Inc., a Kansas corporation ("Borrower") a revolving credit facility
with a sublimit for the issuance of letters of credit pursuant to
the terms of that certain Credit Agreement dated as of
January 19, 2006, among the Borrower, the Agent and the Banks
(as from time to time amended, modified, supplemented or restated,
the "Credit Agreement"); and
WHEREAS , Guarantor is owned, directly or indirectly, by
Borrower and will materially benefit from the Loans made and the
Letters of Credit issued and to be issued, under the Credit
Agreement to Borrower ; and
WHEREAS, Guarantor is required to enter into this
Guaranty Agreement pursuant to the terms of the Credit Agreement;
and
WHEREAS, a material part of the consideration given in
connection with and as an inducement to the execution and delivery
of the Credit Agreement by the Agent and the Banks was the
obligation of the Borrower to cause Guarantor to enter into this
Guaranty Agreement; and
WHEREAS, the Banks are unwilling to extend and/or
maintain the credit facilities provided under the Loan Documents
unless Guarantor enters into this Guaranty Agreement;
NOW, THEREFORE, in consideration of the premises and
mutual covenants contained herein, the parties hereto agree as
follows:
1. Guaranty. Guarantor hereby unconditionally,
absolutely, continually and irrevocably guarantees, on a joint and
several basis, to the Agent for the benefit of the Banks the
payment and performance in full of the Borrower’s Liabilities
(as defined below). For all purposes of this Guaranty Agreement,
"Borrower’s Liabilities" means: (a) the Borrower’s
prompt payment in full, when due or declared due and at all such
times, of all Obligations and all other amounts pursuant to the
terms of the Credit Agreement, the Notes, and all other Loan
Documents heretofore, now or at any time or times hereafter owing,
arising, due or payable from the Borrower to the Agent or any one
or more of the Banks, including principal, interest, premiums and
fees (including, but not limited to, loan fees and attorneys’
fees and expenses); (b) the Borrower’s prompt, full and
faithful performance, observance and discharge of each and every
agreement, undertaking, covenant and provision to be performed,
observed or discharged by the Borrower under the Credit Agreement
and all other Loan Documents; and (c) the Borrower’s
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prompt payment in full, when due or declared due
and at all such times, of any obligations now or hereafter arising
under any interest rate or currency swap, rate cap or similar
transaction (the "Hedge Agreements"). The Guarantor’s
Obligations to the Agent and the Banks under this Guaranty
Agreement are hereinafter referred to as the "Guarantor’s
Obligations". Notwithstanding the foregoing, the liability of
Guarantor with respect to the Guarantor’s Obligations shall
be limited to an aggregate amount equal to the largest amount that
would not render its obligations hereunder subject to challenge
under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any applicable state law.
Guarantor agrees that it is directly and primarily liable on a
joint and several basis (subject to the limitation in the
immediately preceding sentence) for the Borrower’s
Liabilities.
The Guarantor’s Obligations are secured by various
security instruments referred to in the Credit Agreement, including
without limitation the Subsidiary Security Agreement.
2. Payment. If the Borrower shall default in
payment or performance of the Borrower’s Liabilities, whether
principal, interest, premium, fee (including, but not limited to,
loan fees and attorneys’ fees and expenses), or otherwise,
when and as the same shall become due, and after expiration of any
applicable grace period, whether according to the terms of the
Credit Agreement, by acceleration, or otherwise, or upon the
occurrence and during the continuance of any Event of Default under
the Credit Agreement, then Guarantor will, upon demand thereof by
the Agent, fully pay to the Agent, for the benefit of the Banks,
subject to any restriction on the Guarantor’s Obligations set
forth in Section 1 hereof, an amount equal to all the
Borrower’s Liabilities then due and owing.
3. Absolute Rights and Obligations. This is a
guaranty of payment and not of collection. The Guarantor’s
Obligations under this Guaranty Agreement shall be joint and
several, absolute and unconditional irrespective of, and Guarantor
hereby expressly waives, to the extent permitted by law, any
defense to its obligations under this Guaranty Agreement and all
security instruments to which it is a party by reason of:
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(a) any lack of legality, validity or enforceability of the
Credit Agreement, of any of the Notes, of any other Loan Document,
or of any other agreement or instrument creating, providing
security for, or otherwise relating to any of the Guarantor’s
Obligations, the Borrower’s Liabilities, or any other
guaranty of any of the Borrower’s Liabilities (the Loan
Documents and all such other agreements and instruments being
collectively referred to as the "Related Agreements");
(b) any exercise of any right or power under any of the Related
Agreements, any failure or omission to enforce any right conferred
thereby, or any waiver of any covenant or condition therein
provided;
(c) any permitted acceleration of the maturity of the
Borrower’s Liabilities, of the Guarantor’s Obligations,
or of any other obligations or liabilities of any Person under any
of the Related Agreements;
(d) any release, exchange, non-perfection, lapse in perfection,
disposal, deterioration in value, or impairment of any security for
the Borrower’s
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Liabilities, for any of the Guarantor’s
Obligations, or for any other obligations or liabilities of any
Person under any of the Related Agreements;
(e) any dissolution of any Borrower or any Guarantor or any
other party to a Related Agreement, or the combination or
consolidation of Borrower or any Guarantor or any other party to a
Related Agreement into or with another entity or any transfer or
disposition of any assets of Borrower or any Guarantor or any other
party to a Related Agreement;
(f) any extension (including without limitation extensions of
time for payment), renewal, amendment, restructuring or restatement
of, and any acceptance of late or partial payments under, the
Credit Agreement, any of the Notes or any other Loan Document or
any other Related Agreement, in whole or in part;
(g) the existence, addition, modification, termination,
reduction or impairment of value, or release of any other guaranty
(or security therefor) of the Borrower’s Liabilities;
(h) any waiver of, forbearance or indulgence under, or other
consent to any change in or departure from any term or provision
contained in the Credit Agreement, any other Loan Document or any
other Related Agreement, including without limitation any term
pertaining to the payment or performance of the Borrower’s
Liabilities, any of the Guarantor’s Obligations, or any of
the obligations or liabilities of any party to any other Related
Agreement; and
(i) any other circumstance whatsoever (with or without notice to
or knowledge of Guarantor) which may or might in any manner or to
any extent vary the risks of Guarantor, or might otherwise
constitute a legal or equitable defense available to, or discharge
of, a surety or a guarantor, including without limitation any right
to require or claim that resort be had to the Borrower or any other
Guarantor or to any collateral in respect of the Borrower’s
Liabilities or Guarantors’ Obligations.
It is the express purpose and intent of the parties hereto that
this Guaranty Agreement and the Guarantor’s Obligations
hereunder shall be absolute and unconditional under any and all
circumstances and shall not be discharged except by payment as
herein provided.
4. Currency and Funds of Payment. All
Guarantors’ Obligations will be paid in lawful currency of
the United States of America and in immediately available funds,
regardless of any law, regulation or decree now or hereafter in
effect that might in any manner affect the Borrower’s
Liabilities, or the rights of any Secured Party with respect
thereto as against any Borrower, or cause or permit to be invoked
any alteration in the time, amount or manner of payment by the
Borrower of any or all of the Borrower’s Liabilities.
5. Events of Default. Without limiting the
provisions of Section 2 hereof, in the event that there
shall occur and be continuing an Event of Default, then
notwithstanding any collateral or other security or credit support
for the Borrower’s Liabilities, at the Agent’s
election
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and without notice thereof or demand therefor,
the Guarantor’s Obligations shall immediately be and become
due and payable.
6. Subordination. Until this Guaranty Agreement is
terminated in accordance with Section 23 hereof,
Guarantor hereby unconditionally subordinates all present and
future debts, liabilities or obligations now or hereafter owing to
Guarantor (i) of the Borrower, to the payment in full of the
Borrower’s Liabilities, and (ii) of every other
Guarantor (an "obligated guarantor"), to the payment in full of the
Guarantor’s Obligations of such obligated guarantor. All
amounts due under such subordinated debts, liabilities, or
obligations shall, upon the occurrence and during the continuance
of an Event of Default, be collected and, upon request by the
Agent, paid over forthwith to the Agent for the benefit of the
Banks on account of the Borrower’s Liabilities, the
Guarantor’s Obligations, or such other obligations, as
applicable, and, after such request and pending such payment, shall
be held by Guarantor as agent and bailee of the Agent and the Banks
separate and apart from all other funds, property and accounts, of
Guarantor.
7. Suits. In the event there shall occur and be
continuing an Event of Default, Guarantor from time to time shall
pay to the Agent for the benefit of the Banks, on demand, at the
Agent’s place of business set forth in the Credit Agreement
or such other address as the Agent shall give notice of to
Guarantor, the Guarantor’s Obligations as they become or are
declared due, and in the event such payment is not made forthwith,
the Agent may proceed to suit against Guarantor. At the
Agent’s election, one or more and successive or concurrent
suits may be brought hereon by the Agent against Guarantor, whether
or not suit has been commenced against the Borrower, any other
Guarantor, or any other Person and whether or not the Agent has
taken or failed to take any other action to collect all or any
portion of the Borrower’s Liabilities or have taken or failed
to take any actions against any collateral securing payment or
performance of all or any portion of the Borrower’s
Liabilities, and irrespective of any event, occurrence, or
condition described in Section 3 hereof.
8. Set-Off and Waiver. Guarantor waives any right
to assert against any Secured Party as a defense, counterclaim,
set-off, recoupment or cross claim, any defense (legal or
equitable) or other claim which Guarantor may now or at any time
hereafter have against Borrower or any Secured Party (with respect
to Secured Party, this waiver shall not apply to a defense,
counterclaim set-off, recoupment or cross claim arising solely out
of Secured Party’s gross negligence or willful misconduct)
without waiving any additional defenses, set-offs, counterclaims or
other claims otherwise available to Guarantor. Guarantor agrees
that each Secured Party shall have a lien for all the
Guarantor’s Obligations upon all deposits or deposit
accounts, of any kind, or any interest in any deposits or deposit
accounts, now or hereafter pledged, mortgaged, transferred or
assigned to such Secured Party or otherwise in the possession or
control of such Secured Party for any purpose (other than solely
for safekeeping) for the account or benefit of Guarantor, including
any balance of any deposit account or of any credit of Guarantor
with the Secured Party, whether now existing or hereafter
established, and hereby authorizes each Secured Party from and
after the occurrence of an Event of Default at any time or times
with or without prior notice to apply such balances or any part
thereof to such of the Guarantor’s Obligations to the Agent
and the Banks then due and in such amounts as provided for in the
Credit Agreement. For the purposes of this Section 8 ,
all remittances and property shall be deemed to be in the
possession of the Agent or a Bank as soon as the same may be put in
transit to it by mail or carrier or by other bailee.
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9. Waiver of Notice;
Subrogation.
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