EXHIBIT 10.4
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY, dated as of March 6, 2002, as amended
and restated as of May 27, 2003 (as amended, modified or supplemented from time
to time, this "Guaranty"), made by each of the undersigned guarantors (each a
"Guarantor," and together with any other entity that becomes a guarantor
hereunder pursuant to Section 26 hereof, the "Guarantors"). Except as otherwise
defined herein, capitalized terms used herein and defined in the Credit
Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, infoUSA Inc. (the "Borrower"), the lenders from time
to time party thereto (the "Lenders"), and Bank of America, N.A., as
Administrative Agent (together with any successor administrative agent, the
"Administrative Agent"), have entered into a Credit Agreement, dated as of March
6, 2002, as amended and restated as of May 27, 2003 (as amended, modified, or
supplemented from time to time, the "Credit Agreement"), providing for the
making of Loans to, and the issuance of Letters of Credit for the account of,
the Borrower as contemplated therein (the Lenders, the Collateral Agent, the
Issuing Lender and the Administrative Agent are herein called the "Lender
Creditors");
WHEREAS, the Borrower may at any time and from time to time
enter into one or more Interest Rate Protection Agreements or Other Hedging
Agreements with one or more Lenders or any affiliate thereof (each such Lender
or affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the "Other Creditors,"
and together with the Lender Creditors, the "Secured Creditors");
WHEREAS, each Guarantor is a direct or indirect Subsidiary of
the Borrower;
WHEREAS, it is a condition to the making of Loans to, and the
issuance of Letters of Credit for the account of, the Borrower under the Credit
Agreement that each Guarantor shall have executed and delivered this Guaranty;
and
WHEREAS, each Guarantor will obtain benefits from the
incurrence of Loans to, and the issuance of Letters of Credit for the account
of, the Borrower under the Credit Agreement and the entering into by the
Borrower of Interest Rate Protection Agreements or Other Hedging Agreements and,
accordingly, desires to execute this Guaranty in order to satisfy the conditions
described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Guarantor, the receipt and sufficiency of which are
hereby acknowledged, each
Guarantor hereby makes the following representations and
warranties to the Secured Creditors and hereby covenants and agrees with each
Secured Creditor as follows:
1. Each Guarantor, jointly and severally, irrevocably,
absolutely and unconditionally guarantees: (i) to the Lender Creditors the full
and prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of (x) the principal of, premium, if any, and interest on the Notes
issued by, and the Loans made to, the Borrower under the Credit Agreement, and
all reimbursement obligations and Unpaid Drawings with respect to Letters of
Credit issued under the Credit Agreement and (y) all other obligations
(including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due), liabilities and indebtedness owing by
the Borrower to the Lender Creditors under the Credit Agreement and any other
Credit Document to which the Borrower is a party (including, without limitation,
indemnities, Fees and interest thereon), whether now existing or hereafter
incurred under, arising out of or in connection with the Credit Agreement and
any such other Credit Document and the due performance and compliance by the
Borrower with all of the terms, conditions and agreements contained in all such
Credit Documents (all such principal, premium, interest, liabilities,
indebtedness and obligations being herein collectively called the "Credit
Document Obligations"); and (ii) to each Other Creditor the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of all obligations (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness owing by the Borrower under any Interest Rate Protection Agreement
and Other Hedging Agreement, whether now in existence or hereafter arising, and
the due performance and compliance by the Borrower with all of the terms,
conditions and agreements contained in the Interest Rate Protection Agreements
and Other Hedging Agreements (all such obligations, liabilities and indebtedness
being herein collectively called the "Other Obligations," and together with the
Credit Document Obligations, the "Guaranteed Obligations"). Each Guarantor
understands, agrees and confirms that the Secured Creditors may enforce this
Guaranty up to the full amount of the Guaranteed Obligations against such
Guarantor without proceeding against any other Guarantor, the Borrower, against
any security for the Guaranteed Obligations, or under any other guaranty
covering all or a portion of the Guaranteed Obligations.
2. Additionally, each Guarantor, jointly and severally,
unconditionally, absolutely and irrevocably, guarantees the payment of any and
all Guaranteed Obligations whether or not due or payable by the Borrower upon
the occurrence in respect of the Borrower of any of the events specified in
Section 11.05 of the Credit Agreement, and unconditionally and irrevocably,
jointly and severally, promises to pay such Guaranteed Obligations to the
Secured Creditors, or order, on demand, in legal tender of the United States.
This Guaranty shall constitute a guaranty of payment, and not of collection.
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3. The liability of each Guarantor hereunder is primary,
absolute and unconditional and is exclusive and independent of any security for
or other guaranty of the indebtedness of the Borrower whether executed by such
Guarantor, any other Guarantor, any other guarantor or by any other party, and
the liability of each Guarantor hereunder shall not be affected or impaired by
any circumstance or occurrence whatsoever, including, without limitation: (a)
any direction as to application of payment by the Borrower or by any other
party, (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the Guaranteed Obligations,
(c) any payment on or in reduction of any such other guaranty or undertaking,
(d) any dissolution, termination or increase, decrease or change in personnel by
the Borrower, (e) any payment made to any Secured Creditor on the indebtedness
which any Secured Creditor repays the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each Guarantor waives any right to the deferral or modification
of its obligations hereunder by reason of any such proceeding, (f) any action or
inaction by the Secured Creditors as contemplated in Section 6 hereof or (g) any
invalidity, irregularity or unenforceability of all or any part of the
Guaranteed Obligations or of any security therefor.
4. The obligations of each Guarantor hereunder are
independent of the obligations of any other Guarantor, any other guarantor or
the Borrower, and a separate action or actions may be brought and prosecuted
against each Guarantor whether or not action is brought against any other
Guarantor, any other guarantor or the Borrower and whether or not any other
Guarantor, any other guarantor or the Borrower be joined in any such action or
actions. Each Guarantor waives, to the fullest extent permitted by law, the
benefits of any statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by the Borrower or other circumstance which
operates to toll any statute of limitations as to the Borrower shall operate to
toll the statute of limitations as to each Guarantor.
5. Each Guarantor hereby waives notice of acceptance of
this Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice of
dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Administrative Agent or any other Secured Creditor against, and any other
notice to, any party liable thereon (including such Guarantor, any other
Guarantor, any other guarantor or the Borrower)
6. Any Secured Creditor may at any time and from time to
time without the consent of, or notice to, any Guarantor, without incurring
responsibility to such Guarantor, without impairing or releasing the obligations
of such Guarantor hereunder, upon or without any terms or conditions and in
whole or in part:
(a) change the manner, place or terms of payment of,
and/or change, increase or extend the time of payment
of, renew or alter, any of the Guaranteed Obligations
(including any increase or decrease in the rate of
interest thereon), any security therefor, or any
liability incurred directly or indirectly in respect
thereof, and the guaranty herein made
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shall apply to the Guaranteed Obligations as so
changed, extended, renewed or altered;
(b) take and hold security for the payment of the
Guaranteed Obligations and sell, exchange, release,
surrender, impair, realize upon or otherwise deal
with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in
respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights
against the Borrower, any other Credit Party, any
Subsidiary thereof or otherwise act or refrain from
acting;
(d) release or substitute any one or more endorsers,
Guarantors, other guarantors, the Borrower or other
obligors;
(e) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of
the Borrower to creditors of the Borrower other than
the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever
realized to any liability or liabilities of the
Borrower to the Secured Creditors regardless of what
liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act,
omission or default under, any of the Interest Rate
Protection Agreements or Other Hedging Agreements,
the Credit Documents or any of the instruments or
agreements referred to therein, or otherwise amend,
modify or supplement any of the Interest Rate
Protection Agreements or Other Hedging Agreements,
the Credit Documents or any of such other instruments
or agreements;
(h) act or fail to act in any manner referred to in this
Guaranty which may deprive such Guarantor of its
right to subrogation against the Borrower to recover
full indemnity for any payments made pursuant to this
Guaranty; and/or
(i) take any other action which would, under otherwise
applicable principles of common law, give rise to a
legal or equitable discharge of such Guarantor from
its liabilities under this Guaranty.
7. This Guaranty is a continuing one and all liabilities
to which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created
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in reliance hereon. No failure or delay on the part of any Secured Creditor in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or remedies
which any Secured Creditor would otherwise have. No notice to or demand on any
Guarantor in any case shall entitle such Guarantor to any other further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of any Secured Creditor to any other or further action in any circumstances
without notice or demand. It is not necessary for any Secured Creditor to
inquire into the capacity or powers of the Borrower or the officers, directors,
partners or agents acting or purporting to act on its behalf, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
8. Any indebtedness of the Borrower now or hereafter
held by any Guarantor is hereby subordinated to the indebtedness of the Borrower
to the Secured Creditors, and such indebtedness of the Borrower to any
Guarantor, if the Administrative Agent or the Collateral Agent, after the
occurrence and during the continuance of an Event of Default, so requests, shall
be collected, enforced and received by such Guarantor as trustee for the Secured
Creditors and be paid over to the Secured Creditors on account of the
indebtedness of the Borrower to the Secured Creditors, but without affecting or
impairing in any manner the liability of such Guarantor under the other
provisions of this Guaranty. Without limiting the generality of the foregoing,
each Guarantor hereby agrees with the Secured Creditors that it will not
exercise any right of subrogation which it may at any time otherwise have as a
result of this Guaranty (whether contractual, under Section 509 of the
Bankruptcy Code or otherwise) until all Guaranteed Obligations have been
irrevocably paid in full in cash.
9. (a) Each Guarantor waives any right (except as shall
be required by applicable law and cannot be waived) to require the Secured
Creditors to: (i) proceed against the Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party; (ii) proceed against
or exhaust any security held from the Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party; or (iii) pursue any
other remedy in the Secured Creditors' power whatsoever. Each Guarantor waives
any defense based on or arising out of any defense of the Borrower, any other
Guarantor, any other guarantor of the Guaranteed Obligations or any other party
other than payment in full of the Guaranteed Obligations, including, without
limitation, any defense based on or arising out of the disability of the
Borrower, any other Guarantor, any other guarantor of the Guaranteed Obligations
or any other party, or the unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of
the Borrower other than payment in full of the Guaranteed Obligations. The
Secured Creditors may, at their election, foreclose on any security held by the
Administrative Agent, the Collateral Agent or the other Secured Creditors by one
or more judicial or nonjudicial sales, whether or not every aspect of any such
sale is commercially reasonable, or exercise any other right or remedy the
Secured Creditors may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the
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extent the Guaranteed Obligations have been paid in full in cash. Each Guarantor
waives any defense arising out of any such election by the Secured Creditors,
even though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of such Guarantor against
the Borrower or any other party or any security.
(b) Each Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional indebtedness. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower's financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that the Secured Creditors shall have
no duty to advise any Guarantor of information known to them regarding such
circumstances or risks.
10. The Secured Creditors agree that this Guaranty may be
enforced only by the action of the Administrative Agent or the Collateral Agent,
in each case acting upon the instructions of the Required Lenders (or, after the
date on which all Credit Document Obligations have been paid in full, the
holders of at least the majority of the outstanding Other Obligations) and that
no other Secured Creditors shall have any right individually to seek to enforce
or to enforce this Guaranty or to realize upon the security to be granted by the
Security Documents, it being understood and agreed that such rights and remedies
may be exercised by the Administrative Agent or the Collateral Agent or, after
all the Credit Document Obligations have been paid in full, by the holders of at
least a majority of the outstanding Other Obligations, as the case may be, for
the benefit of the Secured Creditors upon the terms of this Guaranty and the
Security Documents. The Secured Creditors further agree that this Guaranty may
not be enforced against any director, officer, employee, partner, member or
stockholder of any Guarantor (except to the extent such partner, member or
stockholder is also a Guarantor hereunder).
11. In order to induce the Lenders to make Loans to, and
issue Letters of Credit for the account of, the Borrower pursuant to the Credit
Agreement, and in order to induce the Other Creditors to execute, deliver and
perform the Interest Rate Protection Agreements and Other Hedging Agreements,
each Guarantor represents, warrants and covenants that:
(a) Such Guarantor (i) is a duly organized and validly
existing corporation, partnership or limited
liability company, as the case may be, in good
standing under the laws of the jurisdiction of its
organization, (ii) has the corporate, partnership or
limited liability company, power and authority, as
the case may be, to own its property and assets and
to transact the business in which it is engaged and
presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in
good standing in each jurisdiction where the conduct
of its business requires such qualification except
for
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failures to be so qualified which, individually or in
the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(b) Such Guarantor has the corporate, partnership or
limited liability company, power and authority, as
the case may be, to execute, deliver and perform the
terms and provisions of this Guaranty and each other
Credit Document to which it is a party and has taken
all necessary corporate, partnership or limited
liability company, action, as the case may be, to
authorize the execution, delivery and performance by
it of this Guaranty and each such other Credit
Document. Such Guarantor has duly executed and
delivered this Guaranty and each other Credit
Document to which it is a party, and this Guaranty
and each such other Credit Document constitutes the
legal, valid and binding obligation of such Guarantor
enforceable in accordance with its terms, except to
the extent that the enforceability hereof or thereof
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws
generally affecting creditors' rights and by
equitable principles (regardless of whether
enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by
such Guarantor of this Guaranty or any other Credit
Document to which it is a party, nor compliance by it
with the terms and provisions hereof and thereof,
will (i) contravene any provision of any applicable
law, statute, rule or regulation or any applicable
order, writ, injunction or decree of any court or
governmental instrumentality, (ii) conflict with or
result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or
the obligation to create or impose) any Lien (except
pursuant to the Security Documents) upon any of the
property or assets of such Guarantor or any of its
Subsidiaries pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement, credit
agreement, or any other material agreement, contract
or instrument to which such Guarantor or any of its
Subsidiaries is a party or by which it or any of its
property or assets is bound or to which it may be
subject or (iii) violate any provision of the
certificate of incorporation or by-laws (or
equivalent organizational documents) of such
Guarantor or any of its Subsidiaries.
(d) No order, consent, approval, license, authorization
or validation of, or filing, recording or
registration with (except as have been obtained or
made) or exemption by, any governmental or public
body or authority, or any subdivision thereof, is
required to authorize, or is required for, (i) the
execution, delivery and performance of this Guaranty
by such Guarantor or any other Credit Document to
which such Guarantor is a party or (ii) the legality,
validity, binding effect or enforceability of this
Guaranty or any other Credit Document to which such
Guarantor
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is a party.
(e) There are no actions, suits or proceedings pending
or, to such Guarantor's knowledge, threatened (i)
with respect to this Guaranty or any other Credit
Document to which such Guarantor is a party or (ii)
with respect to such Guarantor or any of its
Subsidiaries that, either individually or in the
aggregate, could reasonably be expected to have a
Material Adverse Effect.
12. Each Guarantor covenants and agrees that on and after
the Effective Date and until the termination of the Total Commitment and all
Interest Rate Protection Agreements and Other Hedging Agreements and until such
time as no Note or Letter of Credit remains outstanding and all Guaranteed
Obligations have been paid in full, such Guarantor will comply, and will cause
each of its Subsidiaries to comply, with all of the applicable provisions,
covenants and agreements contained in Sections 9 and 10 of the Credit Agreement,
and will take, or will refrain from taking, as the case may be, all actions that
are necessary to be taken or not taken so that it is not in violation of any
provision, covenant or agreement contained in Section 9 or 10 of the Credit
Agreement, and so that no Default or Event of Default, is caused by the actions
of such Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to
pay all reasonable out-of-pocket costs and expenses of each Secured Creditor in
connection with the enforcement of this Guaranty and of the Administrative Agent
in connection with any amendment, waiver or consent relating hereto (including
in each case, without limitation, the reasonable fees and disbursements of
counsel employed by each Secured Creditor).
14. This Guaranty shall be binding upon each Guarantor
and its successors and assigns and shall inure to the benefit of the Secured
Creditors and their successors and assigns.
15. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated except with the written consent of
each Guarantor directly affected thereby and with the written consent of either
(x) the Required Lenders (or to the extent required by Section 13.12 of the
Credit Agreement, with the written consent of each Lender) at all times prior to
the time on which all Credit Document Obligations have been paid in full or (y)
the holders of at least a majority of the outstanding Other Obligations at all
times after the time on which all Credit Document Obligations have been paid in
full; provided, that any change, waiver, modification or variance affecting the
rights and benefits of a single Class (as defined below) of Secured Creditors
(and not all Secured Creditors in a like or similar manner) shall also require
the written consent of the Requisite Creditors (as defined below) of such Class
of Secured Creditors (it being understood that the addition or release of any
Guarantor hereunder shall not constitute a change, waiver, discharge or
termination affecting any Guarantor other than the Guarantor so added or
released). For the purpose of this Guaranty, the term "Class" shall mean each
class of Secured Creditors, i.e., whether (x) the Lender Creditors as holders of
the Credit Document Obligations or (y) the Other Creditors as the holders of
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the Other Obligations. For the purpose of this Guaranty, the term "Requisite
Creditors" of any Class shall mean (x) with respect to the Credit Document
Obligations, the Required Lender (or to the extent required by Section 13.12 of
the Credit Agreement, each Lender) and (y) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Interest Rate Protection or Other Hedging
Agreements.
16. Each Guarantor acknowledges that an executed (or
conformed) copy of each of the Credit Documents and Interest Rate Protection
Agreements or Other Hedging Agreements has been made available to a senior
officer of such Guarantor and such officer is familiar with the contents
thereof.
17. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, upon the
occurrence and during the continuance of an Event of Default (such term to mean
and include any "Event of Default" as defined in the Credit Agreement or any
payment default under any Interest Rate Protection Agreement or Other Hedging
Agreement continuing after any applicable grace period), each Secured Creditor
is hereby authorized, at any time or from time to time, without notice to any
Guarantor or to any other Person, any such notice being expressly waived, to set
off and to appropriate and apply any and all deposits (general or special) and
any other indebtedness at any time held or owing by such Secured Creditor to or
for the credit or the account of such Guarantor, against and on account of the
obligations and liabilities of such Guarantor to such Secured Creditor under
this Guaranty, irrespective of whether or not such Secured Creditor shall have
made any demand hereunder and although said obligations, liabilities, deposits
or claims, or any of them, shall be contingent or un-matured.
18. All notices, requests, demands or other
communications pursuant hereto shall be sent or delivered by mail, telegraph,
telex, telecopy, cable or overnight courier service and all such notices and
communications shall, when mailed, telegraphed, telexed, telecopied, or cabled
or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier and when mailed shall be effective
three Business Days following deposit in the mail with proper postage, except
that notices and communications to the Administrative Agent or any Guarantor
shall not be effective until received by the Administrative Agent or such
Guarantor, as the case may be. All notices and other communications shall be in
writing and addressed to such party at (i) in the case of any Lender Creditor,
as provided in the Credit Agreement, (ii) in the case of any Guarantor, as
provided in the Security Agreement and (iii) in the case of any Other Creditor,
at such address as such Other Creditor shall have specified in writing to the
Guarantors; or in any case at such other address as any of the Persons listed
above may hereafter notify the others in writing.
19. If claim is ever made upon any Secured Creditor for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the aforesaid payees repays all
or part of said amount by reason of (i) any judgment, decree or order of any
court or administrative body having
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jurisdiction over such payee or any of its property or (ii) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including the Borrower) then and in such event each Guarantor agrees that any
such judgment, decree, order, settlement or compromise shall be binding upon
such Guarantor, notwithstanding any revocation hereof or other instrument
evidencing any liability of the Borrower, and such Guarantor shall be and remain
liable to the aforesaid payees hereunder for the amount so repaid or recovered
to the same extent as if such amount had never originally been received by any
such payee.
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF
THE SECURED CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS. Any legal action
or proceeding with respect to this Guaranty or any other Credit Document to
which any Guarantor is a party may be brought in the courts of the State of
Illinois or of the United States of America for the Northern District of
Illinois in each case located in the City of Chicago, and, by execution and
delivery of this Guaranty, each Guarantor hereby irrevocably accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. Each Guarantor hereby further irrevocably waives any
claim that any such court lacks personal jurisdiction over such Guarantor, and
agrees not to plead or claim in any legal action or proceeding with respect to
this Guaranty or any other Credit Document to which such Guarantor is a party
brought in any of the aforesaid courts that any such court lacks personal
jurisdiction over such Guarantor. Each Guarantor further irrevocably consents to
the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to such Guarantor at its address set forth opposite its
signature below, such service to become effective 30 days after such mailing.
Each Guarantor hereby irrevocably waives any objection to such service of
process and further irrevocably waives and agrees not to plead or claim in any
action or proceeding commenced hereunder or under any other Credit Document to
which such Guarantor is a party that such service of process was in any way
invalid or ineffective. Nothing herein shall affect the right of any of the
Secured Creditors to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against each Guarantor in any
other jurisdiction.
(b) Each Guarantor hereby irrevocably waives (to the
fullest extent permitted by applicable law) any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty or any other
Credit Document to which such Guarantor is a party brought in the courts
referred to in clause (a) above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that such action or proceeding brought
in any such court has been brought in an inconvenient forum.
(c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS
ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS
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GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH GUARANTOR IS A PARTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. In the event that all of the capital stock of one or
more Guarantors is sold or otherwise disposed of or liquidated in compliance
with the requirements of Section 10.02 of the Credit Agreement (or such sale or
other disposition has been approved in writing by the Required Lenders (or all
Lenders if required by Section 13.12 of the Credit Agreement)) and the proceeds
of such sale, disposition or liquidation are applied in accordance with the
provisions of the Credit Agreement, to the extent applicable, such Guarantor
shall upon consummation of such sale or other disposition (except to the extent
that such sale or disposition is to the Borrower or another Subsidiary thereof)
be released from this Guaranty automatically and without further action and this
Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have no
further force or effect (it being understood and agreed that the sale of one or
more Persons that own, directly or indirectly, all of the capital stock of any
Guarantor shall be deemed to be a sale of such Guarantor for the purposes of
this Section 21).
22. At any time a payment in respect of the Guaranteed
Obligations is made under this Guaranty, the right of contribution of each
Guarantor against each other Guarantor shall be determined as provided in the
immediately following sentence, with the right of contribution of each Guarantor
to be revised and restated as of each date on which a payment (a "Relevant
Payment") is made on the Guaranteed Obligations under this Guaranty. At any time
that a Relevant Payment is made by a Guarantor that results in the aggregate
payments made by such Guarantor in respect of the Guaranteed Obligations to, and
including the date of the Relevant Payment exceeding such Guarantor's
Contribution Percentage (as defined below) of the aggregate payments made by all
Guarantors in respect of the Guaranteed Obligations to and including the date of
the Relevant Payment (such excess, the "Aggregate Excess Amount"), each such
Guarantor shall have a right of contribution against each other Guarantor who
has made payments in respect of the Guaranteed Obligations to and including the
date of the Relevant Payment in an aggregate amount less than such other
Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of the
Guaranteed Obligations (the aggregate amount of such deficit, the "Aggregate
Deficit Amount") in an amount equal to (x) a fraction the numerator of which is
the Aggregate Excess Amount of such Guarantor and the denominator of which is
the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate
Deficit Amount of such other Guarantor. A Guarantor's right of contribution
pursuant to the preceding sentences shall arise at the time of each computation,
subject to adjustment to the time of each computation; provided, that no
Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been irrevocably paid in full in cash, it being expressly
recognized and agreed by all parties hereto that any Guarantor's right of
contribution arising pursuant to this Section 22 against any other Guarantor
shall be expressly junior and subordinate to such other Guarantor's obligations
and liabilities in respect of the Guaranteed Obligations and any other
obligations owing under this Guaranty. As used in this Section 22: (i) each
Guarantor's "Contribution Percentage" shall mean the percentage obtained by
dividing
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(x) the Adjusted Net Worth (as defined below) of such Guarantor by (y) the
aggregate Adjusted Net Worth of all Guarantors; (ii) the "Adjusted Net Worth" of
each Guarantor shall mean the greater of (x) the Net Worth (as defined below) of
such Guarantor and (y) zero; and (iii) the "Net Worth" of each Guarantor shall
mean the amount by which the fair salable value of such Guarantor's assets on
the date of any Relevant Payment exceeds its existing debts and other
liabilities (including contingent liabilities, but without giving effect to any
Guaranteed Obligations arising under this Guaranty) on such date. All parties
hereto recognize and agree that, except for any right of contribution arising
pursuant to this Section 22, each Guarantor who makes any payment in respect of
the Guaranteed Obligations shall have no right of contribution or subrogation
against any other Guarantor in respect of such payment until all of the
Guaranteed Obligations have been irrevocably paid in full in cash. Each of the
Guarantors recognizes and acknowledges that the rights to contribution arising
hereunder shall constitute an asset in favor of the party entitled to such
contribution. In this connection, each Guarantor has the right to waive its
contribution right against any Guarantor to the extent that after giving effect
to such waiver such Guarantor would remain solvent, in the determination of the
Required Lenders.
23. Each Guarantor and each Secured Creditor (by its
acceptance of the benefits of this Guaranty) hereby confirms that it is its
intention that this Guaranty not constitute a fraudulent transfer or conveyance
for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act of
any similar Federal or state law. To effectuate the foregoing intention, each
Guarantor and each Secured Creditor (by its acceptance of the benefits of this
Guaranty) hereby irrevocably agrees that the Guaranteed Obligations guaranteed
by such Guarantor shall be limited to such amount as will, after giving effect
to such maximum amount and all other (contingent or otherwise) liabilities of
such Guarantor that are relevant under such laws, and after giving effect to any
rights to contribution pursuant to any agreement providing for an equitable
contribution among such Guarantor and other Guarantors, result in the Guaranteed
Obligations of such Guarantor in respect of such maximum amount not constituting
a fraudulent transfer or conveyance.
24. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Guarantors and the
Administrative Agent.
25. All payments made by any Guarantor hereunder will be
made without setoff, counterclaim or other defense and on the same basis as
payments are made by the Borrower under Sections 5.03 and 5.04 of the Credit
Agreement.
26. It is understood and agreed that any Subsidiary of
the Borrower that is required to execute a counterpart of this Guaranty after
the date hereof pursuant to the Credit Agreement shall become a Guarantor
hereunder by executing a counterpart hereof and delivering the same to the
Administrative Agent.
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27. Each Guarantor has independently, and without
reliance on any information supplied by any Secured Creditor, taken, and will
continue to take, whatever steps it deems necessary to evaluate the financial
condition and affairs of the Borrower or any Collateral, and the Secured
Creditors shall have no duty to advise any Guarantor of information at any time
known to them regarding such financial condition or affairs or any Collateral.
[Signatures Follow]
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be executed and delivered as of the date first above written.
AMERICAN CHURCH LISTS, INC.,
BJ HUNTER INFORMATION, INC.,
CD-ROM TECHNOLOGIES, INC.,
CITY DIRECTORIES, INC.,
CLICKACTION INC.,
DONNELLEY MARKETING, INC.,
HILL-DONNELLY CORPORATION
IDEXEC, INC.,
INFOUSA MARKETING, INC.,
LIST BAZAAR.COM, INC.,
STRATEGIC INFORMATION MANAGEMENT, INC.,
TGMVC CORPORATION
WALTER KARL, INC.,
YESMAIL, INC.
each as a Guarantor
By ______________________________________
Title: Chief Financial Officer of each
Signature Page
to
Subsidiaries Guaranty
Accepted and Agreed to:
BANK OF AMERICA, N.A.,
as Collateral Agent
By _________________________
Title: Vice President
Signature Page
to
Subsidiaries Guaranty