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EXHIBIT 10.7
GUARANTY
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GUARANTY, dated as of October 24, 1996, by CMG INFORMATION SERVICES, INC., a
Delaware (the "Guarantor") in favor of (a) THE FIRST NATIONAL BANK OF BOSTON, 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 a Revolving Credit
and Term Loan Agreement dated as of October 24, 1996 (as amended and in effect
from time to time, the "Credit Agreement"), among SALESLINK CORPORATION, a
Massachusetts corporation (the "Company"), the Guarantor, Pacific Direct
Marketing Corp., the Banks and the Agent and (b) each of the Banks.
WHEREAS, the Company and the Guarantor are members of a group of related
corporations, the success of either 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 the extensions of credit to the Company by the Banks pursuant to
the Credit Agreement (which benefits are hereby acknowledged);
WHEREAS, it is a condition precedent to the Banks' making any loans or otherwise
extending credit to the Company under the Credit Agreement that the Guarantor
execute and deliver to the Agent, for the benefit of the Banks and the Agent, a
guaranty substantially in the form hereof; and
WHEREAS, the Guarantor wishes to guaranty the Company's obligations to the Banks
and the Agent under or in respect of the Credit Agreement as provided herein;
NOW, THEREFORE, the Guarantor hereby agrees with the Banks and the Agent as
follows:
I. DEFINITIONS.
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The term "Obligations" and all other capitalized terms used herein without
definition shall have the respective meanings provided therefor in the Credit
Agreement.
II. GUARANTY OF PAYMENT AND PERFORMANCE.
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The Guarantor hereby guarantees to 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
Company or resort to any collateral security or other means of obtaining
payment. Should the Company 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.
III. GUARANTOR'S AGREEMENT TO PAY ENFORCEMENT COSTS, ETC.
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The Guarantor 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 interest exceeds the maximum amount permitted to be paid
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under applicable law, then such interest shall be reduced to such maximum
permitted amount.
IV. WAIVERS BY GUARANTOR; BANK'S FREEDOM TO ACT.
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The Guarantor agrees that 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
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effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Bank with respect thereto. The 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 Company 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 the Company
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.
V. UNENFORCEABILITY OF OBLIGATIONS AGAINST COMPANY.
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If for any reason the Company 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 the Company by reason of the Company'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 the Company, 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.
VI. SUBROGATION; SUBORDINATION.
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A. WAIVER OF RIGHTS AGAINST COMPANY.
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Until the final payment and performance in full of all of the Obligations, the
Guarantor shall not exercise and hereby waives any rights against the Company
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 the Company in respect of any liability of the Guarantor
to the Company; 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.
B. SUBORDINATION.
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The payment of any amounts due with respect to any indebtedness of the Company
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, ▇▇▇ for or
otherwise attempt to collect any such indebtedness of the Company 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
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liability of the Guarantor under the other provisions of this Guaranty.
C. PROVISIONS SUPPLEMENTAL.
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The provisions of this (S)6 shall be 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.
VII. SECURITY; SETOFF.
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The Guarantor grants to each of the Agent and the 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.
VIII. FURTHER ASSURANCES.
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The Guarantor 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 Company on a continuing
basis all information desired by the Guarantor concerning the financial
condition of the Company and that the Guarantor will look to the Company and not
to the Agent or any Bank in order for the Guarantor to keep adequately informed
of changes in the Company's financial
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condition.
IX. TERMINATION; REINSTATEMENT.
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This Guaranty shall remain in full force 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
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 the Company, or otherwise, all as though such payment had
not been made or value received.
X. SUCCESSORS AND ASSIGNS.
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This Guaranty shall be binding upon the 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)* of the Credit Agreement. The
Guarantor may not assign any of its obligations hereunder.
XI. AMENDMENTS AND WAIVERS.
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No amendment or waiver of any provision of 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
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further exercise thereof or the exercise of any other right.
XII. NOTICES.
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All notices and other communications called for hereunder 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.
XIII. GOVERNING LAW; CONSENT TO JURISDICTION.
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THIS GUARANTY IS INTENDED TO 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 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.
XIV. WAIVER OF JURY TRIAL.
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THE GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY 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
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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.
XV. MISCELLANEOUS.
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This Guaranty constitutes the entire agreement of the 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/ Its Duly Authorized Officer
Title:
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telex: