GUARANTY
Exhibit 10.7
This GUARANTY (“Guaranty”) is executed as of May 23, 2007, by INFOUSA INC., a
Delaware corporation (“Guarantor”), for the benefit of SUBURBAN CAPITAL MARKETS, INC., a
Maryland corporation (together with its successors and assigns, “Lender”).
X. Xxxxxxxxx Building LLC, a Delaware limited liability company (“Borrower”), is
indebted to Lender with respect to a loan (“Loan”) pursuant to that certain Fixed Rate Note
dated of even date herewith, payable to the order of Lender in the original principal amount of
$20,331,000.00 (together with all renewals, modifications, increases and extensions thereof, the
“Note”), which is secured by the liens and security interests of a Deed of Trust and
Security Agreement of even date herewith (as the same may be amended, restated, extended, or
otherwise modified from time to time, the “Mortgage”), and further evidenced, secured or
governed by the other Loan Documents (as defined in the Mortgage); and
B. Lender is not willing to make the Loan or otherwise extend credit to Borrower unless
Guarantor unconditionally guarantees payment and performance to Lender of the Guaranteed
Obligations (as herein defined); and
C. Guarantor is the owner of a direct or indirect interest in Borrower, and Guarantor will
directly benefit from Lender’s making the Loan to Borrower.
NOW, THEREFORE, as an inducement to Lender to make the Loan to Borrower thereunder and to
extend such additional credit as Lender may from time to time agree to extend under the Loan
Documents, and for other good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, Guarantor hereby agrees as follows:
ARTICLE I
NATURE AND SCOPE OF GUARANTY
1.1 Guaranty of Obligation. Guarantor hereby irrevocably and unconditionally
guarantees to Lender and its successors and assigns the payment and performance of the Guaranteed
Obligations as and when the same shall be due and payable, whether by lapse of time, by
acceleration of maturity or otherwise. Guarantor hereby irrevocably and unconditionally covenants
and agrees that it is liable for the Guaranteed Obligations as a primary obligor and that each
Guarantor shall fully perform each and every term and provision hereof.
1.2 Definition of Guaranteed Obligations. As used herein, the term “Guaranteed
Obligations” shall mean the Debt (as defined in the Note) in the event of (i) any fraud or
material misrepresentation by Borrower or any Guarantor in connection with the Loan, (ii) any
petition or proceeding for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy
law, or any similar federal or state law, shall be filed by Borrower (or if any such petition or
proceeding was not so filed by Borrower, but Borrower or Guarantor or their respective agents,
affiliates, officers or employees consented to, acquiesced in arranged or otherwise participated in
bringing about the institution of such petition or proceeding), or (iii) any material breach or
default under the provisions of Section 9 of the Mortgage (entitled “Single-Purpose
Entity/Separateness”) or
Section 12 of the Mortgage (entitled “Transfer or Encumbrance of the
Property”). In addition, the Guaranteed Obligations shall also include and Guarantor shall
also be liable for, and shall indemnify, defend and hold Lender, its successors and assigns, and
their respective shareholders, employees, officers, directors, and agents (each an “Indemnified
Party”) harmless from and against, any and all loss, cost, expense, damage, claim or other
obligation (including, without limitation, reasonable attorney’s fees and costs of defense)
incurred or suffered by Lender and arising out of or in connection with the following:
(i) any breach of the Environmental Liabilities Agreement executed by Borrower and
Guarantor for the benefit of Lender, dated on or about the date hereof, including the
indemnification provisions contained therein;
(ii) any failure to comply with the provisions of the Loan Documents prohibiting
subordinate financing or the sale, transfer or encumbrance of the Property or any direct or
indirect ownership interest in Borrower;
(iii) any application in violation of the Loan Documents or other misapplication by
Borrower, its agents, affiliates, officers or employees of any funds derived from the
Property, including security deposits, insurance proceeds and condemnation awards;
(iv) after the occurrence of an Event of Default or otherwise to the extent the Loan
Documents require such application, Borrower’s failure to apply proceeds of rents (including
rents collected in advance) or any other receipts in respect of the leases (lease
termination and modification payments and recoveries upon defaulted leases) and other income
or funds derived from the Property or any other collateral when received to the costs of
maintenance and operation of the Property and to the payment of taxes, lien claims,
insurance premiums, monthly payments of principal and interest or escrow payments or other
payments due under the Loan Documents;
(v) Borrower, Guarantor or any Affiliate contests or in any way interferes with,
directly or indirectly, any foreclosure action or sale commenced by Lender or with any other
enforcement of Lender’s rights, powers or remedies under any of the Loan Documents or under
any document evidencing, securing or otherwise relating to the Property or any other
collateral for the Debt (whether by making any motion, bringing any counterclaim, claiming
any defense, seeking any injunction or other restraint, commencing any action seeking to
consolidate any such foreclosure or other enforcement with any other action, or otherwise),
other than contests brought in good faith by Borrower upon which such Borrower ultimately
prevails through a favorable court order in favor of Borrower;
(vi) the seizure or forfeiture of the Property, or any portion thereof, or Lender’s
interest therein, resulting from criminal wrongdoing by Borrower, its agents, affiliates,
officers or employees;
(vii) in the event Lender has waived (or Borrower has failed to pay or the Mortgage
does not require) the monthly collection for real and personal property taxes,
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assessments, insurance premiums, or ground rents, then failure by Borrower to pay any
or all such taxes, assessments, premiums and rents;
(viii) waste of the Property;
(ix) any failure by Borrower to insure the Property in accordance with the Loan
Documents;
(x) the removal or disposal of any portion of the Property after an Event of Default to
the extent such Property is necessary to the operation, preservation or protection of the
Property in Lender’s reasonable discretion and is not replaced by Borrower with like
property of equivalent value, function and design;
(xi) any payments made by Borrower to any affiliated property manager or other
Affiliate of Borrower after the occurrence and during the continuance of an Event of
Default;
(xii) Borrower’s collection of Rents more than one month in advance or entering into or
modifying Leases, or receipt of monies by Borrower or its Affiliates in connection with the
modification of any Leases, in violation of the Mortgage; and
(xiii) any documentary stamp, intangibles tax, mortgage recording tax or other transfer
or mortgage or mortgage debt taxes or fees or other similar taxes or fees charged upon any
transfer of the Property to or by Borrower or upon the making of the loan evidenced by the
Note or upon the Note or Mortgage or the recording or acceptance thereof, and any brokerage
commission or finder’s fees claimed in connection with the transactions contemplated by the
Loan Documents.
The Guaranteed Obligations shall also include, and Guarantor shall be personally liable for
and pay to Lender upon demand all fees, costs and expenses, including without limitation legal fees
and expenses, incurred by Lender and its servicers in connection with the enforcement by Lender of
any obligations of Borrower for which Borrower is personally liable under Section 12 of the
Note and under the Environmental Liabilities Agreement, and any obligations of Guarantor for which
Guarantor is liable hereunder, together with interest accrued on any such unpaid obligations at the
Default Rate (as such term is defined in the Note).
1.3 Nature of Guaranty. This Guaranty is an irrevocable, absolute, continuing
guaranty of payment and performance and is not a guaranty of collection. This Guaranty may not be
revoked by Guarantor and shall continue to be effective with respect to any Guaranteed Obligations
arising or created after any attempted revocation by Guarantor and after (if Guarantor is a natural
person) Guarantor’s death (in which event this Guaranty shall be binding upon Guarantor’s estate
and Guarantor’s legal representatives and heirs). The fact that at any time or from time to time
the Guaranteed Obligations may be increased or reduced shall not release or discharge the
obligation of Guarantor to Lender with respect to the Guaranteed Obligations. This Guaranty may
be enforced by Lender and any subsequent holder of the Note and shall not be discharged by the
assignment or negotiation of all or part of the Note.
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1.4 Guaranteed Obligations Not Reduced by Offset. The Guaranteed Obligations and the
liabilities and obligations of Guarantor to Lender hereunder shall not be reduced, discharged or
released because or by reason of any existing or future offset, claim or defense of Borrower or any
other party against Lender or against payment of the Guaranteed Obligations, whether such offset,
claim or defense arises in connection with the Guaranteed Obligations, the transactions creating
the Guaranteed Obligations or otherwise.
1.5 Payment by Guarantor. If all or any part of the Guaranteed Obligations shall not
be punctually paid when due, whether at maturity or earlier by acceleration or otherwise, Guarantor
shall, immediately upon demand by Lender and without presentment, protest, notice of protest,
notice of non-payment, notice of intention to accelerate the maturity, notice of acceleration of
the maturity or any other notice whatsoever, pay in lawful money of the United States of America,
the amount due on the Guaranteed Obligations to Lender at Lender’s address as set forth herein;
provided, however, Lender shall use commercially reasonable efforts to deliver notices of defaults
to Guarantor. Lender’s failure to deliver such notices to Guarantor shall not affect, reduce or
diminish Lender’s rights and remedies available under this Guaranty or any of the Loan Documents or
diminish Guarantor’s obligation to pay the amount due on the Guaranteed Obligations immediately
upon demand by Lender. Such demand(s) may be made at any time coincident with or after the time
for payment of all or part of the Guaranteed Obligations and may be made from time to time with
respect to the same or different items of Guaranteed Obligations. Such demand shall be deemed
made, given and received in accordance with the notice provisions hereof.
1.6 No Duty to Pursue Others. It shall not be necessary for Lender (and Guarantor
hereby waives any rights which Guarantor may have to require Lender), in order to enforce such
payment by Guarantor, first to (a) institute suit or exhaust its remedies against Borrower or
others liable on the Loan or the Guaranteed Obligations or any other person, (b) enforce Lender’s
rights against any collateral which shall ever have been given to secure the Loan, (c) enforce
Lender’s rights against any other guarantors of the Guaranteed Obligations, (d) join Borrower or
any others liable on the Guaranteed Obligations in any action seeking to enforce this Guaranty, (e)
exhaust any remedies available to Lender against any collateral which shall ever have been given to
secure the Loan or (f) resort to any other means of obtaining payment of the Guaranteed
Obligations. Lender shall not be required to mitigate damages (except in accordance with law) or
take any other action to reduce, collect or enforce the Guaranteed Obligations.
1.7 Waivers. Guarantor agrees to the provisions of the Loan Documents and hereby
waives notice of (a) any loans or advances made by Lender to Borrower, (b) acceptance of this
Guaranty, (c) any amendment or extension of the Note or of any other Loan Documents, (d) the
execution and delivery by Borrower and Lender of any other loan or credit agreement or of
Borrower’s execution and delivery of any promissory notes or other documents arising under the Loan
Documents or in connection with the Property, (e) the occurrence of any breach by Borrower or Event
of Default, (f) Lender’s transfer or disposition of the Guaranteed Obligations or any part thereof,
(g) sale or foreclosure (or posting or advertising for sale or foreclosure) of any collateral for
the Guaranteed Obligations, (h) protest, proof of non-payment or default by Borrower, or (i) any
other action at any time taken or omitted by Lender, and, generally, all demands and notices of
every kind in connection with this Guaranty, the Loan Documents and
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any documents or agreements evidencing, securing or relating to any of the Guaranteed
Obligations and the obligations hereby guaranteed.
1.8 Payment of Expenses. In the event that Guarantor should breach or fail to timely
perform any provisions of this Guaranty, Guarantor shall, immediately upon demand by Lender, pay
Lender all costs and expenses (including court costs and reasonable attorneys’ fees) incurred by
Lender in the enforcement hereof or the preservation of Lender’s rights hereunder. The covenant
contained in this section shall survive the payment and performance of each Guaranteed Obligation.
1.9 Effect of Bankruptcy. In the event that, pursuant to any insolvency, bankruptcy,
reorganization, receivership or other action under any debtor relief law or any judgment, order or
decision thereunder, Lender must rescind or restore any payment, or any part thereof, received by
Lender in satisfaction of the Guaranteed Obligations, as set forth herein, any prior release or
discharge from the terms of this Guaranty given to Guarantor by Lender shall be without effect, and
this Guaranty shall remain in full force and effect. It is the intention of Borrower and Guarantor
that Guarantor’s obligations hereunder shall not be discharged except by Guarantor’s performance of
such obligations and then only to the extent of such performance.
1.10 Deferment of Rights of Subrogation, Reimbursement and Contribution.
(a) Notwithstanding any payment or payments made by Guarantor hereunder, Guarantor will not
assert or exercise any right of Lender or of Guarantor against Borrower to recover the amount of
any payment made by Guarantor to Lender by way of subrogation, reimbursement, contribution,
indemnity, or otherwise arising by contract or operation of law, and Guarantor shall not have any
right of recourse to or any claim against assets or property of Borrower, whether or not the
obligations of Borrower have been satisfied, all of such rights being herein expressly waived by
Guarantor. Each Guarantor agrees not to seek contribution or indemnity or other recourse from any
other Guarantor. If any amount shall nevertheless be paid to a Guarantor by Borrower or another
Guarantor prior to payment in full of the Obligations (hereinafter defined), such amount shall be
held in trust for the benefit of Lender and shall forthwith be paid to Lender to be credited and
applied to the Obligations, whether matured or unmatured. The provisions of this section shall
survive the termination of this Guaranty and any satisfaction and discharge of Borrower by virtue
of any payment, court order or any applicable law.
(b) Notwithstanding the provisions of subsection 1.10(a), each Guarantor shall have and be
entitled to (i) all rights of subrogation otherwise provided by applicable law in respect of any
payment it may make or be obligated to make under this Guaranty and (ii) all claims it would have
against Borrower or any other Guarantor in the absence of subsection 1.10(a) and to assert and
enforce the same, in each case on and after, but at no time prior to, the date (the
“Subrogation Trigger Date”) which is ninety-one (91) days after the date on which all sums
owed to Lender under the Loan Documents (the “Obligations”) have been paid in full, but if
and only if (x) no Event of Default of the type described in subsections 22(g) or 22(h) of the
Mortgage with respect to Borrower or any other Guarantor has existed at any time on and after the
date of this Guaranty to and including the Subrogation Trigger Date, and (y) the existence of each
Guarantor’s rights under this subsection 1.10(b) would not make such Guarantor a creditor
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(as defined in the Bankruptcy Code, as such term is hereinafter defined) of Borrower or any
other Guarantor in any insolvency, bankruptcy, reorganization or similar proceeding commenced on or
prior to the Subrogation Trigger Date.
1.11 Bankruptcy Code Waiver. It is the intention of the parties that no Guarantor
shall be deemed to be a “creditor” or “creditors” (as defined in Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code (the “Bankruptcy Code”)) of Borrower or of any other Guarantor by reason of
the existence of this Guaranty in the event that Borrower or any other Guarantor becomes a debtor
in any proceeding under the Bankruptcy Code, and in connection herewith, Guarantor hereby waives
any such right as a “creditor” under the Bankruptcy Code. This waiver is given to induce Lender to
make the Loan evidenced by the Note to Borrower. After the Loan is paid in full and there shall be
no obligations or liabilities under this Guaranty outstanding, this waiver shall be deemed to be
terminated.
1.12 Borrower. The term “Borrower” as used herein shall include any new or
successor corporation, association, partnership (general or limited), joint venture, trust or other
individual or organization formed as a result of any merger, reorganization, sale, transfer,
devise, gift or bequest of Borrower or any interest in Borrower.
ARTICLE II
EVENTS AND CIRCUMSTANCES NOT REDUCING
OR DISCHARGING GUARANTOR’S OBLIGATIONS
OR DISCHARGING GUARANTOR’S OBLIGATIONS
Guarantor hereby consents and agrees to each of the following and agrees that Guarantor’s
obligations under this Guaranty shall not be released, diminished, impaired, reduced or adversely
affected by any of the following, and Guarantor waives any common law, equitable, statutory or
other rights (including without limitation rights to notice) which Guarantor might otherwise have
as a result of or in connection with any of the following:
2.1 Modifications. Any renewal, extension, increase, modification, alteration or
rearrangement of all or any part of the Guaranteed Obligations, Note, Loan Documents, or other
document, instrument, contract or understanding between Borrower and Lender or any other parties
pertaining to the Guaranteed Obligations or any failure of Lender to notify Guarantor of any such
action.
2.2 Adjustment. Any adjustment, indulgence, forbearance or compromise that might be
granted or given by Lender to Borrower or Guarantor.
2.3 Condition of Borrower or Guarantor. The insolvency, bankruptcy, arrangement,
adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower,
Guarantor or any other party at any time liable for the payment of all or part of the Guaranteed
Obligations or the Debt; or any dissolution of Borrower or Guarantor, or any sale, lease or
transfer of any or all of the assets of Borrower or Guarantor, or any changes in the shareholders,
partners or members of Borrower or Guarantor; or any reorganization of Borrower or Guarantor.
2.4 Invalidity of Guaranteed Obligations. The invalidity, illegality or
unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement
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executed in connection with the Guaranteed Obligations, for any reason whatsoever, including
without limitation the fact that (a) the Guaranteed Obligations, or any part thereof, exceed the
amount permitted by law, (b) the act of creating the Guaranteed Obligations or any part thereof is
ultra xxxxx, (c) the officers or representatives executing the Note or the other Loan Documents or
otherwise creating the Guaranteed Obligations acted in excess of their authority, (d) the
Guaranteed Obligations violate applicable usury laws, (e) Borrower has valid defenses, claims or
offsets (whether at law, in equity or by agreement) which render the Guaranteed Obligations wholly
or partially uncollectible from Borrower, (f) the creation, performance or repayment of the
Guaranteed Obligations (or the execution, delivery and performance of any document or instrument
representing part of the Guaranteed Obligations or executed in connection with the Guaranteed
Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal,
uncollectible or unenforceable or (g) the Note or any of the other Loan Documents have been forged
or otherwise are irregular or not genuine or authentic, it being agreed that Guarantor shall remain
liable hereon regardless of whether Borrower or any other person be found not liable on the
Guaranteed Obligations or any part thereof for any reason.
2.5 Release of Obligors. Any full or partial release of the liability of Borrower on
the Guaranteed Obligations, or any part thereof, or of any co-guarantors, or any other person or
entity now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and
severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations, or any
part thereof, it being recognized, acknowledged and agreed by Guarantor that Guarantor may be
required to pay the Guaranteed Obligations in full without assistance or support of any other
party, and Guarantor has not been induced to enter into this Guaranty on the basis of a
contemplation, belief, understanding or agreement that other parties will be liable to pay or
perform the Guaranteed Obligations or that Lender will look to other parties to pay or perform the
Guaranteed Obligations.
2.6 Other Collateral. The taking or accepting of any other security, collateral or
guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations.
2.7 Release of Collateral. Any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including without limitation negligent, willful,
unreasonable or unjustifiable impairment) of any collateral, property or security, at any time
existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed
Obligations. Lender shall use commercially reasonable efforts to deliver notices of such releases
to Guarantor. Lender’s failure to deliver such notices to Guarantor shall not affect, reduce or
diminish Lender’s rights and remedies available under this Guaranty or any of the Loan Documents or
diminish Guarantor’s obligation to pay the amount due on the Guaranteed Obligations immediately
upon demand by Lender.
2.8 Care and Diligence. The failure of Lender or any other party to exercise
diligence or reasonable care in the preservation, protection, enforcement, sale or other handling
or treatment of all or any part of such collateral, property or security, including but not limited
to any neglect, delay, omission, failure or refusal of Lender (a) to take or prosecute any action
for the collection of any of the Guaranteed Obligations, (b) to foreclose, or initiate any action
to foreclose, or, once commenced, prosecute to completion any action to foreclose upon any
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security therefor or (c) to take or prosecute any action in connection with any instrument or
agreement evidencing or securing all or any part of the Guaranteed Obligations.
2.9 Unenforceability. The fact that any collateral, security, security interest or
lien contemplated or intended to be given, created or granted as security for the repayment of the
Guaranteed Obligations, or any part thereof, shall not be properly perfected or created, or shall
prove to be unenforceable or subordinate to any other security interest or lien, it being
recognized and agreed by Guarantor that Guarantor is not entering into this Guaranty in reliance
on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value
of any of the collateral for the Guaranteed Obligations.
2.10 Offset. The Note, the Guaranteed Obligations and the liabilities and obligations
of Guarantor to Lender hereunder shall not be reduced, discharged or released because of or by
reason of any existing or future right of offset, claim or defense of Borrower against Lender or
any other party or against payment of the Guaranteed Obligations, whether such right of offset,
claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating
the Guaranteed Obligations) or otherwise.
2.11 Merger. The reorganization, merger or consolidation of Borrower into or with any
other corporation or entity.
2.12 Preference. Any payment by Borrower to Lender is held to constitute a preference
under bankruptcy laws, or for any reason Lender is required to refund such payment or pay such
amount to Borrower or someone else.
2.13 Other Actions Taken or Omitted. Any other action taken or omitted to be taken
with respect to the Loan Documents, the Guaranteed Obligations or the security and collateral
therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood
that Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof. It
is the unambiguous and unequivocal intention of Guarantor that Guarantor shall be obligated to pay
the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, event, action,
or omission whatsoever, whether or not contemplated, and whether or not otherwise or particularly
described herein, which obligation shall be deemed satisfied only upon the full and final payment
and satisfaction of the Guaranteed Obligations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into the Loan Documents and extend credit to Borrower, Guarantor
represents and warrants to Lender as follows:
3.1 Benefit. Guarantor is an affiliate of Borrower, is the owner of a direct or
indirect interest in Borrower, and has received, or will receive, direct or indirect benefit from
the making of this Guaranty with respect to the Guaranteed Obligations.
3.2 Familiarity and Reliance. Guarantor is familiar with, and has independently
reviewed books and records regarding, the financial condition of Borrower and is familiar with
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the value of any and all collateral intended to be created as security for the payment of the
Note or Guaranteed Obligations; however, Guarantor is not relying on such financial condition or
the collateral as an inducement to enter into this Guaranty.
3.3 No Representation by Lender. Neither Lender nor any other party has made any
representation, warranty or statement to Guarantor in order to induce Guarantor to execute this
Guaranty.
3.4 Guarantor’s Financial Condition. As of the date hereof, and after giving effect
to this Guaranty and the contingent obligation evidenced hereby, Guarantor is and will be solvent,
has and will have assets which, fairly valued, exceed its obligations, liabilities (including
contingent liabilities) and debts and has and will have property and assets sufficient to satisfy
and repay its obligations and liabilities.
3.5 Legality. The execution, delivery and performance by Guarantor of this Guaranty
and the consummation of the transactions contemplated hereunder do not and will not contravene or
conflict with any law, statute or regulation whatsoever to which Guarantor is subject or constitute
a default (or an event which with notice or lapse of time or both would constitute a default)
under, or result in the breach of, any indenture, mortgage, deed of trust, charge, lien, or any
contract, agreement or other instrument to which Guarantor is a party or which may be applicable to
Guarantor. This Guaranty is a legal and binding obligation of Guarantor and is enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general
application relating to the enforcement of creditors’ rights.
3.6 Survival. All representations and warranties made by Guarantor herein shall
survive the execution hereof.
3.7 Review of Documents. Guarantor has examined the Note and all of the Loan
Documents.
3.8 Litigation. There are no proceedings pending or, so far as Guarantor knows,
threatened before any court or administrative agency which, if decided adversely to Guarantor,
would materially adversely affect the financial condition of Guarantor or the authority of
Guarantor to enter into, or the validity or enforceability of, this Guaranty.
3.9 Tax Returns. Guarantor has filed all required federal, state and local tax
returns and has paid all taxes as shown on such returns as they have become due. No claims have
been assessed and are unpaid with respect to such taxes.
ARTICLE IV
SUBORDINATION OF CERTAIN INDEBTEDNESS
4.1 Subordination of All Guarantor Claims. As used herein, the term “Guarantor
Claims” shall mean all debts and liabilities of Borrower to Guarantor, whether such debts and
liabilities now exist or are hereafter incurred or arise, or whether the obligations of Borrower
thereon be direct, contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note, contract, open account, or
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otherwise, and irrespective of the person or persons in whose favor such debts or liabilities
may, at their inception, have been, or may hereafter be created, or the manner in which they have
been or may hereafter be acquired by Guarantor. The Guarantor Claims shall include without
limitation all rights and claims of Guarantor against Borrower (arising as a result of subrogation
or otherwise) as a result of Guarantor’s payment of all or a portion of the Guaranteed Obligations
to the extent the provisions of Section 1.10 hereof are unenforceable. Upon the occurrence
of an Event of Default or the occurrence of an event which would, with the giving of notice or the
passage of time, or both, constitute an Event of Default, Guarantor shall not receive or collect,
directly or indirectly, from Borrower or any other party any amount upon the Guarantor Claims.
4.2 Claims in Bankruptcy. In the event of receivership, bankruptcy, reorganization,
arrangement, debtor’s relief or other insolvency proceedings involving Borrower as debtor, Lender
shall have the right to prove its claim in any such proceeding so as to establish its rights
hereunder and receive directly from the receiver, trustee or other court custodian dividends and
payments which would otherwise be payable upon the Guarantor Claims. Guarantor hereby assigns such
dividends and payments to Lender. Should Lender receive, for application upon the Guaranteed
Obligations, any such dividend or payment which is otherwise payable to Guarantor, and which, as
between Borrower and Guarantor, shall constitute a credit upon the Guarantor Claims, then upon
payment to Lender in full of the Guaranteed Obligations, Guarantor shall become subrogated to the
rights of Lender to the extent that such payments to Lender on the Guarantor Claims have
contributed toward the liquidation of the Guaranteed Obligations, and such subrogation shall be
with respect to that portion of the Guaranteed Obligations which would have been unpaid if Lender
had not received dividends or payments upon the Guarantor Claims.
4.3 Payments Held in Trust. In the event that, notwithstanding anything to the
contrary in this Guaranty, Guarantor should receive any funds, payment, claim or distribution which
is prohibited by this Guaranty, Guarantor agrees to hold in trust for Lender an amount equal to the
amount of all funds, payments, claims or distributions so received and agrees that it shall have
absolutely no dominion over the amount of such funds, payments, claims or distributions so received
except to pay them promptly to Lender, and Guarantor covenants promptly to pay the same to Lender.
4.4 Liens Subordinate. Guarantor agrees that any liens, security interests, judgment
liens, charges or other encumbrances upon Borrower’s assets securing payment of Guarantor Claims
shall be and remain inferior and subordinate to any liens, security interests, judgment liens,
charges or other encumbrances upon Borrower’s assets securing payment of the Guaranteed
Obligations, regardless of whether such encumbrances in favor of Guarantor or Lender presently
exist or are hereafter created or attach. Without the prior written consent of Lender, Guarantor
shall not (a) exercise or enforce any creditor’s right it may have against Borrower, or (b)
foreclose, repossess, sequester or otherwise take steps or institute any action or proceedings
(judicial or otherwise, including without limitation the commencement of, or joinder in, any
liquidation, bankruptcy, rearrangement, debtor’s relief or insolvency proceeding) to enforce any
liens, mortgages, deeds of trust, security interests, collateral rights, judgments or other
encumbrances on assets of Borrower held by Guarantor.
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ARTICLE V
MISCELLANEOUS
5.1 Waiver. No failure to exercise, and no delay in exercising, on the part of
Lender, any right hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise of any other right.
The rights of Lender hereunder shall be in addition to all other rights provided by law. No
modification or waiver of any provision of this Guaranty nor consent to departure therefrom shall
be effective unless in writing, and no such consent or waiver shall extend beyond the particular
case and purpose involved. No notice or demand given in any case shall constitute a waiver of the
right to take other action in the same, similar or other instances without such notice or demand.
5.2 Joint and Several Liability. If Guarantor consists of more than one person or
entity, the obligations and liabilities of each such person or entity hereunder shall be joint and
several.
5.3 Notices. All notices, consents, approvals and requests required or permitted
hereunder or under any other Loan Document shall be given in writing and shall be effective for all
purposes if delivered or sent by: (a) hand delivery, (b) certified or registered United States
mail, postage prepaid, (c) nationally recognized overnight delivery service or (d) by facsimile
transmission, addressed if to Lender or to Guarantor at its applicable address set forth below, or
at such other address and person as shall be designated from time to time by any party hereto, as
the case may be, in a written notice to the other parties hereto in the manner provided for herein.
A notice shall be deemed to have been given: in the case of hand delivery, at the time of
delivery; in the case of registered or certified mail, when delivered or three Business Days (as
such term is defined in the Mortgage) after mailing and in the case of overnight delivery and
facsimile transmission, on the Business Day after the same was sent. A party receiving a notice
which does not comply with the technical requirements for notice hereunder may elect to waive any
deficiencies and treat the notice as having been properly given. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this Guaranty to be executed
and delivered hereunder shall be effective as delivery of an original executed counterpart thereof.
If to Guarantor:
|
InfoUSA | |
| 0000 Xxxxx 00xx Xxxxxx | ||
| Xxxxx, XX 00000 | ||
| Attn: CFO | ||
| Facsimile: 000-000-0000 | ||
With a copy to:
|
Xxxxx Xxxxxx P.C. | |
| One Pacific Place, Suite 8C | ||
| 0000 Xxxxx 000 Xxxxxx | ||
| Xxxxx, XX 00000 | ||
| Attn: Xxxxx X. Xxxx | ||
| Facsimile: 000-000-0000 | ||
If to Lender:
|
Suburban Capital Markets, Inc. |
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| 00 X. Xxxxxxxxxx Xxxxxx | ||
| Xxxxx 000 | ||
| Xxxxxxxxx, XX 00000 | ||
| Attn: Xxxxxx Xxxxxxxx | ||
| Facsimile: 000-000-0000 |
5.4 Governing Law; Jurisdiction. This Guaranty shall be governed by and construed in
accordance with the laws of the State in which the real property encumbered by the Mortgage is
located and the applicable laws of the United States of America. Guarantor hereby irrevocably
submits to the jurisdiction of any court of competent jurisdiction located in the state in which
the Property is located in connection with any proceeding arising out of or relating to this
Guaranty.
5.5 Invalid Provisions. If any provision of this Guaranty is held to be illegal,
invalid, or unenforceable under present or future laws effective during the term of this Guaranty,
such provision shall be fully severable and this Guaranty shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of this Guaranty, and
the remaining provisions of this Guaranty shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance from this Guaranty
unless such continued effectiveness of this Guaranty, as modified, would be contrary to the basic
understandings and intentions of the parties as expressed herein.
5.6 Amendments. This Guaranty may be amended only by an instrument in writing
executed by the party whom such amendment is sought to be enforced.
5.7 Parties Bound; Assignment. This Guaranty shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and legal representatives,
provided, however, that Guarantor may not, without the prior written consent of Lender, assign any
of its rights, powers, duties or obligations hereunder.
5.8 Headings. Section headings are for convenience of reference only and shall in no
way affect the interpretation of this Guaranty.
5.9 Recitals. The recitals and introductory paragraphs hereof are a part hereof, form
a basis for this Guaranty and shall be considered prima facie evidence of the facts and documents
referred to therein.
5.10 Defined Terms. Terms used herein but not defined herein shall have the meanings
ascribed to them in the Mortgage.
5.11 Counterparts. To facilitate execution, this Guaranty may be executed in as many
counterparts as may be convenient or required. It shall not be necessary that the signature of or
on behalf of each party, or that the signature of all persons required to bind any party, appear on
each counterpart. All counterparts shall collectively constitute a single instrument. It shall
not be necessary in making proof of this Guaranty to produce or account for more than a single
counterpart containing the respective signatures of, or on behalf of, each of the parties hereto.
Any signature page to any counterpart may be detached from such counterpart without impairing
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the legal effect of the signatures thereon and thereafter attached to another counterpart
identical thereto except having attached to it additional signature pages.
5.12 Financial Statements. Guarantor shall furnish or cause to be furnished to Lender
any statements or reports filed on XXXXX regarding Guarantor within five (5) days of such statement
or report being filed on XXXXX
5.13 Rights and Remedies. If Guarantor becomes liable for any indebtedness owing by
Borrower to Lender, by endorsement or otherwise, other than under this Guaranty, such liability
shall not be in any manner impaired or affected hereby, and the rights of Lender hereunder shall be
cumulative of any and all other rights that Lender may ever have against Guarantor. The exercise
by Lender of any right or remedy hereunder or under any other instrument, or at law or in equity,
shall not preclude the concurrent or subsequent exercise of any other right or remedy.
5.14 Entirety. THIS GUARANTY EMBODIES THE FINAL, ENTIRE AGREEMENT OF GUARANTOR AND
LENDER WITH RESPECT TO GUARANTOR’S GUARANTY OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES ANY AND
ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY GUARANTOR AND LENDER AS A
FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE GUARANTY, AND NO COURSE OF DEALING BETWEEN
GUARANTOR AND LENDER, NO COURSE OF PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY
NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY AGREEMENT.
THERE ARE NO ORAL AGREEMENTS BETWEEN GUARANTOR AND LENDER.
5.15 Waiver of Right to Trial by Jury. GUARANTOR HEREBY AGREES NOT TO ELECT A TRIAL
BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE MORTGAGE,
OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR
AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION
IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY GUARANTOR.
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EXECUTED as of the day and year first above written.
| GUARANTOR: | ||||||
| INFOUSA, a Delaware corporation | ||||||
| By: | /s/ Xxxxxx X. Xxxx | |||||
| Name: | Xxxxxx X. Xxxx | |||||
| Title: | Chief Financial Officer | |||||
