EXHIBIT 10.8
UNLIMITED GUARANTY
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UNLIMITED GUARANTY, dated as of October 30, 1998, by CMG INFORMATION
SERVICES, INC., a Delaware (the "Guarantor") in favor of (a) BANKBOSTON, N.A., a
national banking association, as agent (hereinafter, in such capacity, the
"Agent") for itself and the other banking institutions (hereinafter,
collectively, the "Banks") which are or may become parties to the Amended and
Restated Revolving Credit and Term Loan Agreement dated as of June 11, 1998 (as
amended and in effect from time to time, the "Credit Agreement"), among
SALESLINK CORPORATION, a Massachusetts corporation (the "Company"), InSolutions
Incorporated ("InSolutions", and, collectively with the Company, the
"Borrowers"), Pacific Direct Marketing Corp. ("Pacific Direct"), the Banks and
the Agent and (b) each of the Banks.
WHEREAS, the Borrowers, Pacific Direct and the Guarantor are members of a
group of related corporations, the success of any one of which is dependent in
part on the success of the other members of such group;
WHEREAS, the Guarantor expects to receive substantial direct and indirect
benefits from any extensions of credit to the Borrowers by the Banks pursuant to
the Credit Agreement (which benefits are hereby acknowledged);
WHEREAS, as a result of the occurrence of certain Events of Default (as
such term is defined in the Credit Agreement), the Banks are under no obligation
to make any loans or other extensions of credit to the Borrowers under the
Credit Agreement, and any loans or other extensions of credit so made are done
so in the sole and absolute discretion of the Banks and constitute Obligations
under the Credit Agreement; and
WHEREAS, the Guarantor wishes to guaranty the Borrowers' obligations to the
Banks and the Agent under or in respect of the Credit Agreement and otherwise
all as provided herein;
NOW, THEREFORE, the Guarantor hereby agrees with the Banks and the Agent as
follows:
1. DEFINITIONS. The term "Obligations" shall mean all indebtedness,
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obligations and liabilities of the Borrowers and their Subidiaries to any of the
Banks and the Agent, existing on the date hereof or arising thereafter, direct
or indirect, joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract, operation
of law or otherwise, arising or incurred under the Credit Agreement, any other
Loan Document or any other agreement, document or instrument with the Agent or
any Bank, or in respect of any of the Loans or
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any other advances or extensions or credit made or Reimbursement Obligations
incurred or any of the Notes, Letter of Credit Applications, Letters of Credit,
or arising or incurred in connection with any interst rate protection
arrangements or any documents, agreements or instruments executed in connection
therewith, or other instruments at any time evidencing any thereof. In addition,
all other capitalized terms used herein without definition shall have the
respective meanings provided therefor in the Credit Agreement.
2. GUARANTY OF PAYMENT AND PERFORMANCE. The Guarantor hereby guarantees to
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the Banks and the Agent the full and punctual payment when due (whether at
stated maturity, by required pre-payment, by acceleration or otherwise), as well
as the performance, of all of the Obligations including all such which would
become due but for the operation of the automatic stay pursuant to (S)362(a) of
the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the
Federal Bankruptcy Code. This Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment and performance of all of
the Obligations and not of their collectibility only and is in no way
conditioned upon any requirement that the Agent or any Bank first attempt to
collect any of the Obligations from the Borrowers or resort to any collateral
security or other means of obtaining payment. Should the Borrowers default in
the payment or performance of any of the Obligations, the obligations of the
Guarantor hereunder with respect to such Obligations in default shall, upon
demand by the Agent, become immediately due and payable to the Agent, for the
benefit of the Banks and the Agent, without demand or notice of any nature, all
of which are expressly waived by the Guarantor. Payments by the Guarantor
hereunder may be required by the Agent on any number of occasions. All payments
by the Guarantor hereunder shall be made to the Agent, in the manner and at the
place of payment specified therefor in the Credit Agreement, for the account of
the Banks and the Agent.
3. GUARANTOR'S AGREEMENT TO PAY ENFORCEMENT COSTS, ETC. The Guarantor
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further agrees, as the principal obligor and not as a guarantor only, to pay to
the Agent, on demand, all costs and expenses (including court costs and legal
expenses) incurred or expended by the Agent or any Bank in connection with the
Obligations, this Guaranty and the enforcement thereof, together with interest
on amounts recoverable under this (S)3 from the time when such amounts become
due until payment, whether before or after judgment, at the rate of interest for
overdue principal set forth in the Credit Agreement, provided that if such
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interest exceeds the maximum amount permitted to be paid under applicable law,
then such interest shall be reduced to such maximum permitted amount.
4. WAIVERS BY GUARANTOR; BANK'S FREEDOM TO ACT. The Guarantor agrees that
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the Obligations will be paid and performed strictly in accordance with their
respective terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Bank with respect thereto. The
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Guarantor waives promptness, diligences, presentment, demand, protest, notice of
acceptance, notice of any Obligations incurred and all other notices of any
kind, all defenses which may be available by virtue of any valuation, stay,
moratorium law or other similar law now or hereafter in effect, any right to
require the marshalling of assets of the Borrowers or any other entity or other
person primarily or secondarily liable with respect to any of the Obligations,
and all suretyship defenses generally. Without limiting the generality of the
foregoing, the Guarantor agrees to the provisions of any instrument evidencing,
securing or otherwise executed in connection with any Obligation and agrees that
the obligations of the Guarantor hereunder shall not be released or discharged,
in whole or in part, or otherwise affected by (a) the failure of the Agent or
any Bank to assert any claim or demand or to enforce any right or remedy against
any Borrower or any other entity or other person primarily or secondarily liable
with respect to any of the Obligations; (b) any extensions, compromise,
refinancing, consolidation or renewals of any Obligation; (c) any change in the
time, place or manner of payment of any of the Obligations or any rescissions,
waivers, compromise, refinancing, consolidation or other amendments or
modifications of any of the terms or provisions of the Credit Agreement, the
Note, the other Loan Documents or any other agreement evidencing, securing or
otherwise executed in connection with any of the Obligations, (d) the addition,
substitution or release of any entity or other person primarily or secondarily
liable for any Obligation; (e) the adequacy of any rights which the Agent or any
Bank may have against any collateral security or other means of obtaining
repayment of any of the Obligations; (f) the impairment of any collateral
securing any of the Obligations, including without limitation the failure to
perfect or preserve any rights which the Agent or any Bank might have in such
collateral security or the substitution, exchange, surrender, release, loss or
destruction of any such collateral security; or (g) any other act or omission
which might in any manner or to any extent vary the risk of the Guarantor or
otherwise operate as a release or discharge of the Guarantor, all of which may
be done without notice to the Guarantor. To the fullest extent permitted by law,
the Guarantor hereby expressly waives any and all rights or defenses arising by
reason of (i) any "one action" or "anti-deficiency" law which would otherwise
prevent the Agent or any Bank from bringing any action, including any claim for
a deficiency, or exercising any other right or remedy (including any right of
set-off), against the Guarantor before or after the Agent's or such Bank's
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or (ii) any other law which in any other
way would otherwise require any election of remedies by the Agent or any Bank.
5. UNENFORCEABILITY OF OBLIGATIONS AGAINST BORROWERS. If for any reason
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either of the Borrowers has no legal existence or is under no legal obligation
to discharge any of the Obligations, or if any of the Obligations have become
irrecoverable from such Borrower by reason of such Borrower's insolvency,
bankruptcy or reorganization or by other operation of law or for any other
reason, this Guaranty shall nevertheless be binding on
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the Guarantor to the same extent as if the Guarantor at all times had been the
principal obligor on all such Obligations. In the event that acceleration of the
time for payment of any of the Obligations is stayed upon the insolvency,
bankruptcy or reorganization of any Borrower, or for any other reason, all such
amounts otherwise subject to acceleration under the terms of the Credit
Agreement, the Note, the other Loan Documents or any other agreement evidencing,
securing or otherwise executed in connection with any Obligation shall be
immediately due and payable by the Guarantor.
6. SUBROGATION; SUBORDINATION.
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6.1. WAIVER OF RIGHTS AGAINST BORROWERS. Until the final payment and
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performance in full of all of the Obligations, the Guarantor shall not
exercise and hereby waives any rights against any Borrower arising as a
result of payment by the Guarantor hereunder, by way of subrogation,
reimbursement, restitution, contribution or otherwise, and will not prove
any claim in competition with the Agent or any Bank in respect of any
payment hereunder in any bankruptcy, insolvency or reorganization case or
proceedings of any nature; the Guarantor will not claim any setoff,
recoupment or counterclaim against any Borrower in respect of any liability
of the Guarantor to any Borrower; and the Guarantor waives any benefit of
and any right to participate in any collateral security which may be held
by the Agent or any Bank.
6.2. SUBORDINATION. The payment of any amounts due with respect to
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any indebtedness of the Borrowers for money borrowed or credit received now
or hereafter owed to the Guarantor is hereby subordinated to the prior
payment in full of all of the Obligations. The Guarantor agrees that, after
the occurrence of any default in the payment or performance of any of the
Obligations, the Guarantor will not demand, xxx for or otherwise attempt to
collect any such indebtedness of the Borrowers to the Guarantor until all
of the Obligations shall have been paid in full. If, notwithstanding the
foregoing sentence, the Guarantor shall collect, enforce or receive any
amounts in respect of such indebtedness while any Obligations are still
outstanding, such amounts shall be collected, enforced and received by the
Guarantor as trustee for the Banks and the Agent and be paid over to the
Agent, for the benefit of the Banks and the Agent, on account of the
Obligations without affecting in any manner the liability of the Guarantor
under the other provisions of this Guaranty.
6.3. PROVISIONS SUPPLEMENTAL. The provisions of this (S) 6 shall be
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supplemental to and not in derogation of any rights and remedies of the
Banks and the Agent under any separate subordination agreement which the
Agent may at any time and from time to time enter into with the Guarantor
for the benefit of the Banks and the Agent.
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7. SECURITY; SETOFF. The Guarantor grants to each of the Agent and the
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Banks, as security for the full and punctual payment and performance of all of
the Guarantor's obligations hereunder, a continuing lien on and security
interest in all securities or other property belonging to the Guarantor now or
hereafter held by the Agent or such Bank and in all deposits (general or
special, time or demand, provisional or final) and other sums credited by or due
from the Agent or such Bank to the Guarantor or subject to withdrawal by the
Guarantor. Regardless of the adequacy of any collateral security or other means
of obtaining payment of any of the Obligations, each of the Agent and the Banks
is hereby authorized at any time and from time to time, without notice to the
Guarantor (any such notice being expressly waived by the Guarantor) and to the
fullest extent permitted by law, to set off and apply such deposits and other
sums against the obligations of the Guarantor under this Guaranty, whether or
not the Agent or such Bank shall have made any demand under this Guaranty and
although such obligations may be contingent or unmatured.
8. FURTHER ASSURANCES. The Guarantor agrees that it shall furnish to the
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Agent and the Banks as soon as available but in any event within ninety days
after the close of each fiscal year the Guarantor's audited consolidated and
consolidating balance sheet and related statement of income and cash flow (the
"Financials") for such fiscal year, certified by the Guarantor's accountants,
and the Guarantor's consolidating Financials for such fiscal period, and as soon
as available but in any event within forty-five (45) days after the end of each
fiscal quarter of the Guarantor, the Guarantor's unaudited consolidated and
consolidating Financials for such quarter, certified by its chief financial
officer, and the Guarantor further agrees that it will from time to time, at the
request of the Agent, do all such things and execute all such documents as the
Agent may consider necessary or desirable to give full effect to this Guaranty
and to perfect and preserve the rights and powers of the Banks and the Agent
hereunder. The Guarantor acknowledges and confirms that the Guarantor itself has
established its own adequate means of obtaining from the Borrowers on a
continuing basis all information desired by the Guarantor concerning the
financial condition of the Borrowers and that the Guarantor will look to the
Borrowers and not to the Agent or any Bank in order for the Guarantor to keep
adequately informed of changes in the Borrowers' financial condition.
9. TERMINATION; REINSTATEMENT. This Guaranty shall remain in full force
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and effect until the Agent is given written notice of the Guarantor's intention
to discontinue this Guaranty, notwithstanding any intermediate or temporary
payment or settlement of the whole or any part of the Obligations. No such
notice shall be effective unless received and acknowledged by an officer of the
Agent at the address of the Agent for notices set forth on the signature page of
the Credit Agreement. No such notice shall affect any rights of the Agent or any
Bank hereunder, including without limitation the rights set forth in (S)(S)4 and
6, with respect to any Obligations incurred or accrued prior to the receipt of
such notice or any Obligations incurred or accrued pursuant to any contract or
commitment in
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existence prior to such receipt. This Guaranty shall continue to be effective or
be reinstated, notwithstanding any such notice, if at any time any payment made
or value received with respect to any Obligation is rescinded or must otherwise
be returned by the Agent or any Bank upon the insolvency, bankruptcy or
reorganization of any Borrower, or otherwise, all as though such payment had not
been made or value received.
10. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon the
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Guarantor, its successors and assigns, and shall inure to the benefit of the
Agent and the Banks and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing sentence, each Bank may assign
or otherwise transfer the Credit Agreement, the Note, the other Loan Documents
or any other agreement or note held by it evidencing, securing or otherwise
executed in connection with the Obligations, or sell participations in any
interest therein, to any other entity or other person, and such other entity or
other person shall thereupon become vested, to the extent set forth in the
agreement evidencing such assignment, transfer or participation, with all the
rights in respect thereof granted to such Bank herein, all in accordance with
(S)13 of the Credit Agreement. The Guarantor may not assign any of its
obligations hereunder.
11. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
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this Guaranty nor consent to any departure by the Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Agent with the
consent of the Majority Banks. No failure on the part of the Agent or any Bank
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
12. NOTICES. All notices and other communications called for hereunder
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shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or mailed
first class, postage prepaid, or, in the case of telegraphic or telexed notice,
when transmitted, answer back received, addressed as follows: if to the
Guarantor, at the address set forth beneath its signature hereto, and if to the
Agent, at the address for notices to the Agent set forth on the signature page
of the Credit Agreement, or at such address as either party may designate in
writing to the other.
13. GOVERNING LAW; CONSENT TO JURISDICTION. THIS GUARANTY IS INTENDED TO
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TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The Guarantor
agrees that any suit for the enforcement of this Guaranty may be brought in the
courts of the Commonwealth of Massachusetts or any federal court sitting therein
and consents to the nonexclusive jurisdiction of such court and to service of
process in any such suit being made upon the Guarantor by mail at the address
specified by reference in (S) 12. The Guarantor hereby
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waives any objection that it may now or hereafter have to the venue of any such
suit or any such court or that such suit was brought in an inconvenient court.
14. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY
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TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
the Guarantor hereby waives any right which it may have to claim or recover in
any litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Guarantor (a) certifies that neither the Agent or any Bank
nor any representative, agent or attorney of the Agent or any Bank has
represented, expressly or otherwise, that the Agent or any Bank would not, in
the event of litigation, seek to enforce the foregoing waivers and (b)
acknowledges that, in entering into the Credit Agreement and the other Loan
Documents to which the Agent or any Bank is a party, the Agent and the Banks are
relying upon, among other things, the waivers and certifications contained in
this (S) 14.
15. MISCELLANEOUS. This Guaranty constitutes the entire agreement of the
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Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in addition to any other
guaranty of or collateral security for any of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
CMG INFORMATION SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Title:
Address:
Telex:__________________________
