GUARANTEE AGREEMENT
TO: THE TORONTO-DOMINION BANK
WHEREAS CERIDIAN CANADA LTD. (hereinafter called the "BORROWER") is a wholly
owned subsidiary of CERIDIAN CORPORATION (hereinafter called the "GUARANTOR");
AND WHEREAS THE TORONTO-DOMINION BANK (hereinafter called the "BANK") has
established and may in the future establish one or more credit facilities in
favour of the Borrower;
AND WHEREAS, as security for the payment of the full amount of all of the
present and future indebtedness and liability of the Borrower to the Bank, the
Guarantor has agreed to guarantee payment of the Borrower's indebtedness and
liability to the Bank on the terms and subject to the conditions hereinafter set
forth;
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the Guarantor hereby covenants to and for the benefit of the Bank
as follows:
GUARANTEE
Guarantee
1.01 The Guarantor hereby unconditionally, absolutely and irrevocably
guarantees the due and punctual and complete payment and satisfaction when due
(whether at stated maturity, by acceleration or otherwise), and at all times
thereafter, of all the Guaranteed Liabilities which are or may become at any
time and from time to time owing or payable by the Borrower to the Bank or which
remain owing and unpaid to the Bank. "Guaranteed Liabilities" means the
indebtedness, liabilities and obligations of the Borrower to the Bank, howsoever
incurred, present and future, direct and indirect, whether as principal or as
surety, absolute and contingent, matured and unmatured, at any time and from
time to time existing or arising under or by virtue of or otherwise in
connection with any credit facility made available by the Bank to the Borrower,
including without limitation, indebtedness and liability for or in connection
with any swap transaction, foreign exchange transaction, bankers acceptance,
direct and indirect loans and advances, and in each case, including all
interest, commissions, costs, charges, legal fees and expenses which may be
incurred in respect of such indebtedness and liability, and in each case,
whether or not any such indebtedness, liabilities or obligations are discharged,
stayed or otherwise affected, except to the extent such indebtedness,
liabilities or obligations are fully discharged by full, irrevocable and final
payment.
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PAYMENT
Payment
2.01 The Guarantor agrees to make immediate payment to the Bank of all
Guaranteed Liabilities then payable to the Bank upon receipt of a demand for
payment therefor by the Bank to the Guarantor in writing.
Taxes and Set Off by Guarantor
2.02. All payments to be made by the Guarantor hereunder shall be made without
set-off or counterclaim. In addition, the Guarantor shall make all payments to
the Bank hereunder, free and clear of, and without deduction, or withholding
for, or on account of, any tax levied by any country or subdivision thereof,
including any taxing authority of Canada or the United States of America
(whether Federal, State, Provincial or municipal; other than on account of any
tax on the Bank's general income, and other than on account of any capital or
franchise taxes, whether imposed under the laws of the jurisdiction of the Bank,
the Guarantor, or otherwise). If the Guarantor is required by any applicable
law, rule or regulation to make any deduction or withholdings for or on account
of any such tax, then the Guarantor will:
(a) promptly notify the Bank of such requirement;
(b) pay to the relevant authorities the full amount required to be deducted
or withheld (including the full amount paid by the Guarantor to the Bank
hereunder), promptly upon the earlier of determining that such deduction
is required or receiving notice that such amount has been assessed
against the Bank;
(c) promptly forward to the Bank an official receipt (or a certified copy),
or other documentation acceptable to the Bank, evidencing such payment
to such authorities; and
(d) pay to the Bank, in addition to the payment to which the Bank is
otherwise entitled, such additional amount as is necessary to ensure
that the net amount actually received and retained by the Bank (free and
clear of such tax, whether assessed against the Guarantor or the Bank)
will equal the full amount the Bank would have received had no such
deduction or withholding been required or taxed and assessed.
The Guarantor will promptly pay to the Bank the amount of any liability
(including, without limitation, any related liability for penalties and
interest) assessed directly against the Bank by reason of the failure or delay
of the Guarantor to deduct or withhold or pay any tax as foresaid.
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OBLIGATIONS ABSOLUTE
Obligations Absolute
3.01 The Guarantor unconditionally and irrevocably waives each and every
defense which, under principles of guarantee or suretyship law, would otherwise
operate to impair or diminish such liability; and nothing whatever except actual
full payment and performance to the Bank of the Guaranteed Liabilities (and all
other debts, obligations and liabilities of Guarantor under this Agreement)
shall operate to discharge the Guarantor's liability hereunder. The obligations
of the Guarantor hereunder are and shall be absolute and unconditional and any
monies or amounts expressed to be owing or payable by the Guarantor hereunder
which may not be recoverable from the Guarantor on the footing of a guarantee
shall be recoverable from the Guarantor as a primary obligor and principal
debtor in respect thereof.
Obligations Continuing
3.02 The obligations of the Guarantor hereunder shall be continuing and shall
remain in full force and effect so long as the Bank continues to deal with the
Borrower or until all the Guaranteed Liabilities have been paid and satisfied in
full. The obligations of the Guarantor hereunder shall not be satisfied,
reduced or discharged by any intermediate payment or satisfaction of the whole
or any part of the principal, interest, fees and other monies or amounts which
may at any time be or become owing or payable to the Bank by the Borrower.
3.03 The obligations of the Guarantor hereunder shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
which would otherwise have reduced the obligations of the Guarantor hereunder
(whether such payment shall have been by or on behalf of the Borrower or by or
on behalf of the Guarantor) is rescinded or reclaimed from the Bank upon the
insolvency, bankruptcy, liquidation or reorganization of the Borrower or the
Guarantor or otherwise, all as though such payment had not been made.
Obligations Not Affected
3.04 The obligations of the Guarantor hereunder shall not be affected or
impaired by any act, omission, matter or thing whatsoever, occurring before,
upon or after any demand for payment hereunder (and whether or not known to the
Guarantor or the Bank) which, but for this provision, might constitute a whole
or partial defense to a claim against the Guarantor hereunder or might operate
to release or otherwise exonerate the Guarantor from any of its obligations
hereunder or otherwise affect such obligations, whether occasioned by default of
the Bank or otherwise, including:
(a) any limitation of status or power, disability, incapacity or other
circumstance relating to the Borrower or any other person, including any
insolvency, bankruptcy, liquidation,
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reorganization, readjustment, composition, dissolution, winding-up or
other proceeding involving or affecting the Borrower or any other
person;
(b) any irregularity, defect, unenforceability or invalidity in respect of
any indebtedness or other obligation of the Borrower or any other person
under any credit agreement or any other document or instrument;
(c) any failure of the Borrower, whether or not without fault on its part,
to perform or comply with any of the provisions of any credit agreement
or to give notice thereof to the Guarantor;
(d) the taking or enforcing or exercising or the refusal or neglect to take
or enforce or exercise any right or remedy from or against the Borrower
or any other person or their respective assets or the release or
discharge of any such right or remedies;
(e) the granting of time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Borrower or
any other person;
(f) any amendment, variation, modification, supplement or replacement of any
credit agreement or any other document or instrument;
(g) any change in the ownership, control, name, objects, businesses, assets,
capital structure or constitution of the Borrower or the Guarantor;
(h) any merger or amalgamation of the Borrower or the Guarantor with any
person or persons;
(i) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction or by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any
of the Guaranteed Liabilities or the obligations of the Guarantor under
this Guarantee; and
(j) any other circumstance that might otherwise constitute a legal or
equitable discharge or defense of the Borrower under any credit
agreement or of the Guarantor in respect of its guarantee hereunder.
Indemnity. As a separate and alternative stipulation, the Guarantor
unconditionally and irrevocably agrees that any sum expressed to be payable by
the Borrower under any credit facility established by the Bank in favour of the
Borrower but which is for any reason not recoverable from the Guarantor on the
basis of a guarantee shall nevertheless be recoverable from it on the basis of
an indemnity and shall be paid by it to the Bank on demand.
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Waiver
3.05 Without in any way limiting the provisions of Section 3.04 hereof, the
Guarantor hereby waives notice of acceptance hereof, notice of any liability of
the Guarantor hereunder, notice or proof of reliance by the Bank upon the
obligations of the Guarantor hereunder, and the diligence, presentment, demand
for payment on the Borrower, protest, notice of dishonour or non-payment of any
of the Guaranteed Liabilities, or other notice or formalities to the Borrower of
any kind whatsoever. The Guarantor further hereby waives any requirement that
the Bank take, protect, secure, perfect or insure any security interest or lien
or any property subject thereto or exhaust any right or take any action against
the Borrower or any other person or entity or any collateral.
No Obligation to Take Action Against Borrower
3.06 This is a guarantee of payment, and not of collection. The Bank shall
not have any obligation to enforce any rights or remedies or to take any other
steps against the Borrower or any other person or any property of the Borrower
or any other person before the Bank is entitled to demand payment and
performance by the Guarantor of its liabilities and obligations under this
Guarantee, and the Guarantor hereby waives all benefit of discussion. The
obligations of the Guarantor hereunder are independent of the Guaranteed
Liabilities and a separate action or actions may be brought and prosecuted
against the Guarantor to enforce this Guarantee, irrespective of whether any
action is brought against the Borrower or whether the Borrower is joined in any
such action or actions.
Dealing with the Borrower and Others
3.07 The Bank, without releasing, discharging, limiting or otherwise
affecting in whole or in part the Guarantor's obligations and liabilities
hereunder and without the consent of or notice to the Guarantor may,
(a) grant time, renewals, extensions, compromises, concessions, waivers,
releases, discharges and other indulgences to the Borrower or any other
person;
(b) take or abstain from taking securities or collateral from the Borrower
or from perfecting securities or collateral of the Borrower;
(c) release, discharge, compromise, realize, enforce or otherwise deal with
or do any act or thing in respect of (with or without consideration) any
and all collateral, mortgages or other security given by the Borrower or
any third party with respect to the obligations or matters contemplated
by any credit agreement;
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(d) accept compromises or arrangements from the Borrower;
(e) apply all monies at any time received from the Borrower or from
securities upon such part of the Guaranteed Liabilities as the Bank may
see fit or change any such application in whole or in part from time to
time as the Bank may see fit; and
(f) otherwise deal with, or waive or modify their right to deal with, the
Borrower and all other persons and securities as the Bank may see fit.
GUARANTOR COVENANTS
4.01 (a) The Guarantor hereby covenants and agrees that all of the Guarantor
Terms and Conditions are hereby incorporated in this Guarantee by reference,
mutatis mutandis, and made an integral part of this Guarantee. The Guarantor
Terms and Conditions shall be construed in such manner so that it is as if they
had originally been made in the Bank's favour and made in connection with, and
to induce the extension of, the credit facilities extended by the Bank to the
Borrower.
4.01 (b) Subject to section 4.01(c) hereof, the Bank agrees that the
Guarantor shall not be in default of its obligations hereunder to comply with
the Guarantor Terms and Conditions, until the occurrence of an Event of Default
(as defined in the Guarantor Credit Agreement); it being agreed that if the
Guarantor Credit Agreement provides that a specified event of default may not
occur until a period of time has elapsed following the giving of notice by the
Agent (under and as defined in the Guarantor Credit Agreement) then such notice
may be provided by the Bank, for the purpose of this Guarantee.
4.01 (c) Notwithstanding section 4.01(b), the Guarantor shall be in default
of its obligations to comply with the Guarantor Terms and Conditions if the
Guarantor shall breach any of the Financial Covenants and such breach shall
continue unremedied for a period of 20 days, whether or not the lenders under
the Guarantor Credit Agreement shall have waived compliance with such Financial
Covenants and whether or not such lenders shall have agreed that such default
shall not be an Event of Default.
"Guarantor Terms and Conditions" means the terms and conditions, (including
without limitation, the representations, warranties, affirmative covenants,
negative covenants, financial covenants and Events of Default) included in the
Guarantor Credit Agreement.
"Guarantor Credit Agreement" means, at any particular time :
(i) initially the Amended and Restated Credit Agreement dated as of December
12, 1995, Amended and Restated as of July 31, 1997, among the Guarantor, Bank of
America National Trust and Savings
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Association, as Agent, and The Financial Institutions parties thereto, as such
Credit Agreement has been amended and compliance with a certain financial
covenant therein has been waived pursuant to a Waiver and First Amendment to
Credit Agreement dated December 2, 1997, among the parties thereto;
(ii) if the Guarantor Credit Agreement as defined in clause (i) above is
amended, restated, supplemented, replaced or reduced when the Bank is a lender
thereunder then, subject to (iv) below in this definition, the "Guarantor Credit
Agreement" shall mean the Guarantor Credit Agreement as defined in clause (i)
hereof, as so amended, restated, supplemented, replaced or reduced;
(iii) if the Bank shall no longer be a lender under the Guarantor Credit
Agreement, or if the Guarantor Credit Agreement shall be cancelled, terminated,
or otherwise extinguished, then the "Guarantor Credit Agreement" shall be the
Guarantor Credit Agreement as defined in clause (i) or (ii) hereof, subject to
(iv) below in this defintion, that existed immediately prior to the time that
the Bank ceased to be a lender thereunder, or that existed immediately prior to
the time that the Guarantor Credit Agreement was cancelled, terminated or
otherwise extinguished, as the case may be; and
(iv) notwithstanding the foregoing, at all times the Financial Covenants shall
be the Financial Covenants which exist at the date of this Agreement, unless the
Bank has specifically consented in writing to a waiver, amendment, modification,
restatement, replacement, or elimination of the Financial Covenants (including
the defined terms as utilized therein).
"Financial Covenants" means the financial covenants (including the defined terms
as utilized therein) contained in sections 7.01, 7.09 and 7.10 of the Guarantor
Credit Agreement, as "Guarantor Credit Agreement" is defined in clause (i) of
the definition of Guarantor Credit Agreement, and subject to modification,
waiver, replacement or elimination solely as provided in clause (iv) of the
definition of Guarantor Credit Agreement.
4.01 (d) For greater certainty, the parties agree that any amendments,
supplements, modifications, restatements, or replacements, or the elimination of
the Financial Covenants (including the defined terms as utilized therein) shall
not be incorporated in this Guarantee by reference unless the Bank has
specifically consented to such amendments, supplements, modifications,
restatements, replacements, or elimination, in writing.
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Reporting
4.02 The Guarantor will provide to the Bank such notices, financial
statements and other information which is required to be provided under the
Guarantor Credit Agreement, in the same manner and within the same time periods,
as set out in the Guarantor Credit Agreement. To the extent that the Guarantor
shall have provided such notices, financial statements and other information to
the Bank in the Bank's capacity as a lender under the Guarantor Credit
Agreement, the Guarantor shall be deemed to have satisfied its obligations to
provide information under this section of the Guarantee. For greater certainty,
it is agreed that the Guarantor's obligation to provide such information shall
continue even if clause (ii) or (iii) of the definition of Guarantor Credit
Agreement is applicable.
Ownership
4.03 The Guarantor will, at all times, continue to own, directely or
indirectly, the majority of the issued and outstanding voting shares in the
capital stock of the Borrower.
Pari Passu
4.04 The Guarantor hereby covenants that:
(i) its obligations under this Guarantee shall, at all times hereafter, rank
pari passu, equally, and ratably with all of the indebtedness and liability of
the Guarantor under the Guarantor Credit Agreement, and
(ii) its obligations under this Guarantee shall, at all times hereafter, rank
pari passu, equally and ratably with all of the other present and future
unsubordinated indebtedness and liability of the Guarantor, except that this
clause 4.04(ii) shall not restrict the creation of Permitted Liens as "Permitted
Liens" is defined in the Guarantor Credit Agreement and as "Guarantor Credit
Agreement" is defined in clause (i) of the definition of Guarantor Credit
Agreement hereunder.
GUARANTOR REPRESENTATIONS
5.01 The Guarantor hereby represents and warrants that:
(a) its obligations under this Guarantee rank pari passu, equally and
ratably with all of its other unsubordinated indebtedness and liability
outstanding at the date hereof;
(b) the execution, delivery and performance of this Guarantee by the
Guarantor are within the corporate powers of the Guarantor, have been duly
authorized by all necessary corporate action and do not and will not (i) require
any consent or approval of the stockholders of the Guarantor which has not
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been obtained, (ii) violate any provision of the articles of incorporation or
by-laws of the Guarantor or of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to the Guarantor or any subsidiary of the Guarantor; (iii)
require the consent or approval of, or filing or registration with, any
governmental body, agency or authority, or (iv) result in a breach of or
constitute a default under, or result in the imposition of any lien, charge or
encumbrance upon any property of the Guarantor or any subsidiary of the
Guarantor pursuant to, any indenture or other agreement or instrument under
which the Guarantor or any subsidiary of the Guarantor is a party or by which it
or any of its properties may be bound or affected, and
(c) this Guarantee, when executed and delivered, will constitute the legal,
valid and binding obligation of the Guarantor enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforceability of creditors' rights generally or by
equitable principles relating to enforceability.
MISCELLANEOUS
Amendment, Etc.
6.01 No amendment, modification or waiver of any provision of this Guarantee
or consent to any departure by the Guarantor or any other person from any
provision of this Guarantee will in any event be effective unless it is signed
by the Guarantor and the Bank.
Assignment, Transfer and Participation
6.02 The Guarantor hereby consents to any assignment or transfer of, or any
grant of the participation in, any rights, benefits or obligations of, the Bank
in respect of this Guarantee.
6.03 Notwithstanding the provisions of Section 6.02, the Guarantor, shall
upon request made by an assignee of the Bank, execute and deliver such
assurances as may be reasonably requested by such assignee to confirm its
entitlement to the rights and benefits hereunder so assigned and transferred to
it and the liability of the Guarantor to the assignee hereunder.
Foreign Currency Obligations
6.04 The Guarantor shall make payment of all amounts guaranteed hereunder in
the currency (the "Original Currency") in which the Borrower is required to pay
such obligation. If the Guarantor makes payment relative to any obligation to
the Bank in a currency (the "Other Currency") other than the Original Currency
(whether voluntarily or pursuant to an order or judgment of a court or tribunal
of
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any jurisdiction) such payment shall only constitute a discharge of the
Guarantor's liability hereunder in respect of such obligation only to the extent
of the amount of the Original Currency which the Bank is able to purchase at its
main branch in the jurisdiction where the loans to the Borrower are recorded,
with the amount it receives on the date of receipt in accordance with its normal
practice. If the amount of the Original Currency which the Bank is able to
purchase is less than the amount of such currency originally due to the Bank in
respect to the relevant obligation, the Guarantor shall indemnify and save the
Bank harmless from and against any loss or damage arising as a result of such
deficiency. This indemnity shall constitute an obligation contained in this
Guarantee, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by the Bank and shall continue in
full force and effect notwithstanding any judgment or order in respect of any
amount due hereunder or under any judgment or order.
Applicable Law
6.05 This Guarantee shall be conclusively deemed to be a contract made under,
and shall for all purposes be governed by, and construed and interpreted in
accordance with, the laws of Ontario, in effect from time to time, excluding any
choice of law rules that may direct the application of the laws of another
jurisdiction, without prejudice to or limitation of any other rights or remedies
available under the laws of any jurisdiction, where property or assets of the
Guarantor may be found.
Jurisdiction
6.06 The Guarantor and the Bank hereby irrevocably agree that any suits,
actions or proceedings arising out of or in connection with this Guarantee
(collectively "Proceedings") may be brought in any court in the Province of
Ontario and each submits and attorns to the non-exclusive jurisdiction of each
such court.
6.07 The Guarantor and the Bank hereby irrevocably waive any objections which
they may have now or hereafter to the laying of the venue of any Proceedings in
any court referred to in paragraph (a) and any claim that any such Proceedings
have been brought in any inconvenient forum and further irrevocably agree that a
judgment in any Proceedings brought in any such court shall be conclusive and
binding upon the Guarantor or the Bank, as the case may be, and may be enforced
in any courts to the jurisdiction of which such parties may be subject by
Proceedings upon such judgment.
6.08 Nothing contained in this Section 6 shall limit the right of the Bank to
take Proceedings against the Guarantor in any other court of competent
jurisdiction nor shall the taking of Proceedings in one or more jurisdictions
preclude the taking of Proceedings in any other jurisdiction, whether
concurrently or not.
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6.09 The Guarantor hereby irrevocably:
(i) appoints the Borrower as its agent for service of process in the
Province of Ontario in connection with any Proceedings in the
Province of Ontario and consents to process being served in any
Proceedings in the Province of Ontario by delivering or
transmitting a true copy thereof to the Borrower at its address;
(ii) agrees that service in accordance with the provisions of clause
6.09 (i) shall be deemed in every respect effective service of
process upon the Guarantor in any such Proceedings and shall, to
the fullest extent permitted by law, be taken and be held to be
valid personal service upon the personal delivery to the
Guarantor; and
(iii) consents generally to the fullest extent permitted by law in
respect of any Proceedings to the giving of any relief and the
issue of any process in connection with such Proceedings
including the making, enforcement or execution against any
property whatsoever (irrespective of its use or intended use) of
any order or judgment which may be made or given in such
Proceedings.
6.10 THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTEE, THE TRANSACTIONS
CONTEMPLATED HEREBY OR THE ACTIONS OF THE GUARANTOR OR THE BANK IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.
Costs and Expenses
6.11 The Guarantor shall pay on demand by the Bank any and all costs, fees
and expenses, including outside legal costs and expenses, incurred by the Bank:
(i) in having its outside counsel review and provide legal opinions in
connection with the Guarantee, (but in no event shall such costs, fees and
expenses to be paid by Guarantor pursuant to this section and the costs, fees
and expenses to be paid by the Borrower pursuant to section 7.01 (e) of the
credit agreement entered into by the Bank and the Borrower on the date hereof
exceed $20,000 Cdn.), and
(ii) in connection with enforcing any of its rights and remedies under this
Guarantee.
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No Waiver, Cumulative Remedies
6.12 No failure to exercise and no delay in exercising, on the part of the
Bank, any right, remedy, power or privilege hereunder or under any credit
agreement, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder or under any credit
agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein and under any credit agreement are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
Waiver of Rights of Subrogation, Reimbursement, Etc.
6.13 Until full, final, and irrevocable payment in full of the Guaranteed
Liabilities and until any commitment of the Bank to extend financial
accommodation to the Borrower is permenently cancelled, the Guarantor hereby
irrevocably waives any claim or other rights that it may now or hereafter
acquire against the Borrower that arise from the existence, payment, performance
or enforcement of the Guaranteed Liabilities under this Guarantee or any credit
agreement, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Bank against the Borrower or any
collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including the right to take or receive from the
Borrower, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim, remedy or right.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence at any time prior to the later of the payment in full of the Guaranteed
Liabilities and all other amounts payable under this Guarantee and the
termination of any commitment, such amount shall be held in trust for the
benefit of the Bank and shall forthwith be paid to the Bank to be credited and
applied to the Guaranteed Liabilities and all other amounts payable under this
Guarantee, whether matured or unmatured, in accordance with the terms of any
credit agreement, or to be held as collateral for any Guaranteed Liabilities or
other amounts payable under this Guarantee thereafter arising. The Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements provided by the Bank to the Borrower, and that the
waiver, set forth in this Section 6.13, is knowingly made in contemplation of
such benefits.
Guarantee in Addition to Other Obligations
6.14 The obligations of the Guarantor under this Agreement are in addition to
and not in substitution for any other obligations of the Guarantor to the Bank
in relation to any credit agreement and any guarantees or security at any time
held by or for the benefit of the Bank.
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Stay of Acceleration
6.15 If acceleration of the time for payment of any amount payable by the
Borrower in respect of the obligations guaranteed is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower or any moratorium affecting the
payment of the obligations of the Borrower guaranteed hereby, all such amounts
otherwise subject to acceleration shall nonetheless be payable by the Guarantor
hereunder automatically and without any requirement for any demand by the Bank.
Entire Agreement
6.16 This Guarantee, including all documents contemplated hereby, constitutes
the entire agreement between the parties with respect to the subject matter and
supersedes all prior negotiations, undertakings, representations and
understandings.
Severability
6.17 Any provision of this Guarantee which is prohibited or unenforceable in
any jurisdiction shall not invalidate the remaining provisions and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Successors and Assignees
6.18 This Agreement shall be binding upon and enure to the benefit of the
Guarantor and the Bank and its respective successor and permitted assignees,
except that the Guarantor may not assign any of its obligations hereunder
without the express prior written consent of the Bank.
Notice
6.19 Any notice or demand to or upon the Guarantor and any notice to be
provided to the Bank, to be effective, shall be in writing or by telecopy,
telegraph or telex, and shall not be effective until received and shall be
addressed as follows:
CERIDIAN CORPORATION
Attention: Xxxx X. Xxxxxxxx
Vice President & Treasurer
0000 - 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxx. 00000-0000
X.X.X.
Telephone: (000) 000-0000
Fax: (000) 000-0000
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THE TORONTO-DOMINION BANK
Attention: Corporate and Investment Banking Group
Vice President
X.X. Xxx 0
Xxxxxxx-Xxxxxxxx Xxxxxx
X0X 0X0
Telephone: (416) 944-
Fax: (000) 000-0000
Counterparts
6.20 This Guarantee and the acceptance thereof may be executed in any number
of separate counterparts and all said counterparts taken together shall be
deemed to constitute one and the same instrument.
Consequential Damages
6.21 THE GUARANTOR HEREBY WAIVES ANY RIGHT IT MAY NOW OR HEREAFTER HAVE TO
CLAIM OR RECOVER FROM THE BANK ANY CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed
and delivered by its proper and duly authorized officers as of January 30, 1998.
CERIDIAN CORPORATION
By: /s/Xxxx X. Xxxxxxxx
Title: Vice President & Treasurer
By: /s/Xxxx X. Xxxxxxx
Title: Vice President & Secretary
THE TORONTO-DOMINION BANK
By:
Title:
