EXHIBIT D-1
UNLIMITED CORPORATE GUARANTY
THIS GUARANTY is entered into as of September 10, 2002, by EACH OF THE
UNDERSIGNED (each a "Guarantor" and, collectively, the "Guarantors") in favor of
and for the benefit of JPMORGAN CHASE BANK, a New York banking corporation (the
"Lender").
RECITALS
A. Pursuant to an Amended and Restated Credit Agreement dated as of
September 10, 2002, by and between Global Payment Technologies, Inc., (the
"Company"), and the Lender (as the same may be amended, modified or supplemented
from time to time, the "Credit Agreement"), the Company will receive Loans and
other financial accommodations from the Lender and will incur Obligations.
B. The Guarantors, being members of a group of entities affiliated with
the Company and being engaged in related businesses will receive direct and
indirect benefits from such loans and financial accommodations.
C. Each Guarantor wishes to grant the Lender assurance in connection with
the payment and performance by the Company of all of its present and future
Obligations, and, to that effect, to guaranty the Company's Obligations as set
forth herein.
Accordingly, each Guarantor hereby agrees as follows:
1. Guaranty.
(a) Each Guarantor, jointly and severally, unconditionally and
irrevocably guarantees to the Lender the full and punctual payment by the
Company, when due, whether at the stated due date, by acceleration or otherwise,
of all Obligations of the Company, howsoever created, arising or evidenced,
voluntary or involuntary, whether direct or indirect, absolute or contingent now
or hereafter existing or owing to the Lender, (collectively, the "Guaranteed
Obligations"). This Guaranty is an absolute, unconditional, continuing guaranty
of payment and not of collection of the Guaranteed Obligations and includes
Guaranteed Obligations arising from successive transactions which shall either
continue such Guaranteed Obligations or from time to time renew such Guaranteed
Obligations after the same has been satisfied. This Guaranty is in no way
conditioned upon any attempt to collect from the Company or upon any other event
or contingency, and shall be binding upon and enforceable against each Guarantor
without regard to the validity or enforceability of the Credit Agreement, the
Notes or any other Loan Document or of any term of any thereof. If for any
reason the Company shall fail or be unable duly and punctually to pay any of the
Guaranteed Obligations (including, without limitation amounts that would become
due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss. 362(a)), each Guarantor
will forthwith pay the same, in cash, immediately upon demand.
(b) In the event the Credit Agreement, any Note or any other Loan
Document shall be terminated as a result of the rejection thereof by any
trustee, receiver or liquidating agent of the Company or any of its properties
in any bankruptcy, insolvency, reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar proceeding, each Guarantor's
obligations hereunder shall continue to the same extent as if such Credit
Agreement, Notes or such other Loan Document had not been so rejected.
(c) Each Guarantor shall pay all costs, expenses (including, without
limitation, reasonable attorneys' fees and disbursements) and damages incurred
in connection with the enforcement of the Guaranteed Obligations of the Company
under the Credit Agreement or the Note or any other Loan Document to the extent
that such costs, expenses and damages are not paid by the Company pursuant to
the respective documents, and such costs, fees and disbursements incurred in
connection with the enforcement of the obligations of each Guarantor under this
Guaranty.
(d) Each Guarantor further agrees that if any payment made by the
Company or any Guarantor to the Lender on any Obligation is rescinded, recovered
from or repaid by the Lender, in whole or in part, in any bankruptcy, insolvency
or similar proceeding instituted by or against the Company or any Guarantor,
this Guaranty shall continue to be fully applicable to such Guaranteed
Obligation to the same extent as though the payment so recovered or repaid had
never originally been made on such Guaranteed Obligation.
(e) If any Event of Default shall have occurred and be continuing,
the Lender, JPMorgan Securities, Inc. and any other Affiliate of the Lender are
each hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by the Lender, JPMorgan Securities, Inc. or any Affiliate of the
Lender to or for the credit or the account of any Guarantor against any of and
all the obligations of any Guarantor now or hereafter existing under this
Guaranty, irrespective of whether or not the Lender shall have made any demand
hereunder and although such obligations may be unmatured. The rights under this
paragraph 1(e) are in addition to other rights and remedies (including other
rights of set off) which the Lender may have.
2. Guaranty Continuing, Absolute, Unlimited.
The obligations of each Guarantor hereunder shall be continuing, absolute,
unlimited and unconditional, shall not be subject to any counterclaim, set-off,
deduction or defense based upon any claim any Guarantor may have against the
Lender or the Company or any other person, and shall remain in full force and
effect without regard to, and, to the fullest extent permitted by applicable
law, shall not be released, discharged or in any way affected by, any
circumstance or condition (whether or not any Guarantor shall have any knowledge
or notice thereof) whatsoever which might constitute a legal or equitable
discharge or defense including, but not limited to, (a) any express or implied
amendment, modification or supplement to the Credit Agreement, any Note, or any
other Loan Document or any other agreement referred to in any thereof, or any
other instrument applicable to the Company or to the Loans, or any part thereof;
(b) any failure on the part of the Company to perform or comply with the Credit
Agreement, any Note or any other Loan Document or any failure of any other
person to perform or comply with any term of the Credit Agreement, any Note, or
any other Loan Document or any other agreement as aforesaid; (c) any waiver,
consent, change, extension, indulgence or other action or any action or inaction
under or in respect of the Credit Agreement, any Note, or any other Loan
Document or any other agreement as aforesaid, whether or not the Lender, the
Company or any Guarantor has notice or knowledge of any of the foregoing; (d)
any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or similar proceeding with respect to the Company, or
its properties or its creditors, or any action taken by any trustee or receiver
or by any court in any such proceeding; (e) any furnishing or acceptance of
additional security or any release of any security; (f) any limitation on the
liability or obligations of the Company under the Credit Agreement, any Note or
any other Loan Document or any termination, cancellation, frustration,
invalidity or unenforceability, in whole or in part, of the Credit Agreement,
any Note, this Guaranty or any other Loan Document or any term of any thereof;
(g) any lien, charge or encumbrance on or affecting any Guarantor's or any of
the Company's respective assets and properties; (h) any act, omission or breach
on the part of the Lender under the Credit Agreement, any Note or any other Loan
Document or any other agreement at any time existing between the Lender and the
Company or any law, governmental regulation or other agreement applicable to the
Lender or any Loan; (i) any claim as a result of any other dealings among the
Lender, any Guarantor or the Company; (j) the assignment of this Guaranty, the
Credit Agreement, any Note or any other Loan Document by the Lender to any other
Person; or (k) any change in the name of the Lender, the Company or any other
Person referred to herein.
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3. Waiver.
Each Guarantor unconditionally waives, to the fullest extent permitted by
applicable law: (a) notice of any of the matters referred to in Section 2
hereof; (b) all notices which may be required by statute, rule of law or
otherwise to preserve any rights against any Guarantor hereunder, including,
without limitation, notice of the acceptance of this Guaranty, or the creation,
renewal, extension, modification or accrual of the Guaranteed Obligations or
notice of any other matters relating thereto, any presentment, demand, notice of
dishonor, protest, nonpayment of any damages or other amounts payable under the
Credit Agreement, any Note or any other Loan Documents; (c) any requirement for
the enforcement, assertion or exercise of any right, remedy, power or privilege
under or in respect of the Credit Agreement, any Note or any other Loan
Documents, including, without limitation, diligence in collection or protection
of or realization upon the Guaranteed Obligations or any part thereof or any
collateral thereof; (d) any requirement of diligence; (e) any requirement to
mitigate the damages resulting from a default by the Company under the Credit
Agreement, any Note or any other Loan Documents; (f) the occurrence of every
other condition precedent to which any Guarantor or the Company may otherwise be
entitled; (g) the right to require the Lender to proceed against the Company or
any other person liable on the Guaranteed Obligations, to proceed against or
exhaust any security held by the Company or any other person, or to pursue any
other remedy in the Lender power whatsoever, and (h) the right to have the
property of the Company first applied to the discharge of the Guaranteed
Obligations.
The Lender may, at its election, exercise any right or remedy it may have
against the Company without affecting or impairing in any way the liability of
any Guarantor hereunder and each Guarantor waives, to the fullest extent
permitted by applicable law, any defense arising out of the absence, impairment
or loss of any right of reimbursement, contribution or subrogation or any other
right or remedy of any Guarantor against the Company, whether resulting from
such election by the Lender or otherwise. Each Guarantor waives any defense
arising by reason of any disability or other defense of the Company or by reason
of the cessation for any cause whatsoever of the liability, either in whole or
in part, of the Company to the Lender for the Guaranteed Obligations.
Each Guarantor understands that the exercise by the Lender of certain
rights and remedies contained in the Credit Agreement, the Notes or any other
Loan Documents may affect or eliminate each Guarantor's rights of subrogation
against the Company and that each Guarantor may therefore incur partially or
totally nonreimbursable liability hereunder; nevertheless, each Guarantor hereby
authorizes and empowers the Lender, its successors, endorses and/or assignees,
to exercise in their sole discretion, any rights and remedies, or any
combination thereof, which may then be available, it being the purpose and
intent of each Guarantor that its obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances.
Each Guarantor assumes the responsibility for being and keeping informed
of the financial condition of the Company and of all other circumstances bearing
upon the risk of nonpayment of the Guaranteed Obligations and agrees that the
Lender shall not have any duty to advise any Guarantor of information regarding
any condition or circumstance or any change in
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such condition or circumstance. Each Guarantor acknowledges that the Lender has
not made any representations to any Guarantor concerning the financial condition
of the Company.
4. Representations and Covenants of each Guarantor.
(a) Each Guarantor hereby severally represents and warrants that the
representations and warranties contained in Article IV of the Credit Agreement,
to the extent they relate to such Guarantor, are true and correct as of the date
hereof and such Guarantor further agrees that the Lender is entitled to rely on
such representations and warranties to the same extent as though the same were
set forth in full herein.
(b) Each Guarantor hereby severally agrees to perform the covenants
contained in Article VI and Article VII of the Credit Agreement, to the extent
they relate to such Guarantor, and the Lender is entitled to rely on such
agreement to perform such covenants to agrees that the same extent as though the
same were set forth in full herein.
5. Payments.
Each payment by each Guarantor to the Lender under this Guaranty shall be
made in the time, place and manner provided for payments in the Credit Agreement
without set-off or counterclaim to the account at which such payment is required
to be paid by the Company under the Credit Agreement.
6. Parties.
This Guaranty shall inure to the benefit of the Lender and its successors,
assigns or transferees, and shall be binding upon the Guarantors and their
respective successors and assigns. No Guarantor may delegate any of its duties
under this Guaranty without the prior written consent of the Lender.
7. Notices.
All notices, requests and demands to or upon the respective parties hereto
to be effective shall be in writing, and unless otherwise expressly provided
herein, shall be conclusively deemed to have been received by a party hereto and
to be effective on the day on which delivered to such party at the address set
forth below, or, in the case of telecopy notice, when acknowledged as received,
or if sent by registered or certified mail, on the third Business Day after the
day on which mailed in the United States, addressed to such party at said
address:
(a) if to the Lender, at
JPMorgan Chase Bank
000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Relationship Manager
Global Payment Technologies, Inc.
Telecopy: (000) 000-0000
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(b) if to the Guarantor, at
c/o Global Payment Technologies, Inc.
000X Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx XxXxxxx
Vice President & Chief Financial Officer
Telecopy: (000) 000-0000
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(c) as to each such party at such other address as such party
shall have designated to the other in a written notice
complying as to delivery with the provisions of this Section
7.
8. Remedies.
Each Guarantor stipulates that the remedies at law in respect of any
default or threatened default by a Guarantor in the performance of or compliance
with any of the terms of this Guaranty are not and will not be adequate, and
that any of such terms may be specifically enforced by a decree for specific
performance or by an injunction against violation of any such terms or
otherwise.
9. Rights to Deal with the Company.
At any time and from time to time, without terminating, affecting or
impairing the validity of this Guaranty or the obligations of any Guarantor
hereunder, the Lender may deal with the Company in the same manner and as fully
as if this Guaranty did not exist and shall be entitled, among other things, to
grant the Company, without notice or demand and without affecting the
Guarantor's liability hereunder, such extension or extensions of time to
perform, renew, compromise, accelerate or otherwise change the time for payment
of or otherwise change the terms of indebtedness or any part thereof contained
in or arising under the Credit Agreement, any Note or any other Loan Documents,
or to waive any obligation of the Company to perform, any act or acts as the
Lender may deem advisable.
10. Subrogation.
(a) Upon any payment made or action taken by a Guarantor pursuant to this
Guaranty, such Guarantor shall, subject to the provisions of Sections 10(b) and
(c) hereof, be fully subrogated to all of the rights of the Lender against the
Company arising out of the action
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or inaction of the Company for which such payment was made or action taken by
such Guarantor.
(b) Any claims of such Guarantor against the Company arising from payments
made or actions taken by such Guarantor pursuant to the provisions of this
Guaranty shall be in all respects subordinate to the full and complete
indefeasible payment or performance and discharge, as the case may be, of all
amounts, obligations and liabilities, the payment or performance and discharge
of which are guaranteed by this Guaranty, and no payment hereunder by a
Guarantor shall give rise to any claim of such Guarantor against the Lender.
(c) Notwithstanding anything to the contrary contained in this Section 10,
no Guarantor shall be subrogated to the rights of the Lender against the Company
until all of the Obligations of the Company have been paid indefeasibly in full,
and that subrogation shall be suspended upon the occurrence of the events
described in Section 1(d) until the Obligations are indefeasibly paid in full.
11. Survival of Representations, Warranties, etc.
All representations, warranties, covenants and agreements made herein,
including representations and warranties deemed made herein, shall survive any
investigation or inspection made by or on behalf of the Lender and shall
continue in full force and effect until all of the obligations of the Guarantors
under this Guaranty shall be fully performed in accordance with the terms
hereof, and until the payment in full of the Guaranteed Obligations.
12. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. THIS
GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OR CHOICE OF
LAWS. EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
FEDERAL OR STATE COURT IN THE XXXXX XX XXX XXXX, XXXXXX XX XXX XXXX, XXXXXX OF
NASSAU OR COUNTY OF SUFFOLK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT
AND RELATED TO OR IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
GUARANTOR HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE
OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS GUARANTY OR ANY DOCUMENT OR ANY
INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER THEREOF MAY NOT BE LITIGATED
IN OR BY SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR
AGREES (i) NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF THE JUDGMENT
OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR
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JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT
AND (ii) NOT TO ASSERT ANY COUNTERCLAIM IN ANY SUCH SUIT, ACTION OR PROCEEDING
UNLESS SUCH COUNTERCLAIM CONSTITUTES A COMPULSORY COUNTERCLAIM UNDER APPLICABLE
RULES OF CIVIL PROCEDURE. EACH GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE
MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET
FORTH IN THIS GUARANTY OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW YORK. EACH
GUARANTOR AND THE LENDER EACH IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
GUARANTY, THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13. Miscellaneous.
(a) All capitalized terms used herein and not defined herein shall have
the meanings specified in the Credit Agreement.
(b) This Guaranty is the joint and several obligation of each Guarantor,
and may be enforced against each Guarantor separately, whether or not
enforcement of any right or remedy hereunder has been sought against any other
Guarantor. Each Guarantor acknowledges that its obligations hereunder will not
be released or affected by the failure of the other Guarantors to execute the
Guaranty or by a determination that all or a part of this Guaranty with respect
to any other Guarantor is invalid or unenforceable.
(c) If any term of this Guaranty or any application thereof shall be
invalid or unenforceable, the remainder of this Guaranty and any other
application of such term shall not be affected thereby.
(d) Any term of this Guaranty may be amended, waived, discharged or
terminated only by an instrument in writing signed by each Guarantor and the
Lender.
(e) The headings in this Guaranty are for purposes of reference only and
shall not limit or define the meaning hereof.
(f) No delay or omission by the Lender in the exercise of any right under
this Guaranty shall impair any such right, nor shall it be construed to be
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise of any other right.
IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be
executed and delivered as of the day and year first above written.
_______________________________________
By: ___________________________________
Title:
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