EXHIBIT 10.63
AMENDED AND RESTATED GUARANTY
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AMENDED AND RESTATED GUARANTY, dated as of June 11, 1998, by PACIFIC DIRECT
MARKETING CORP., a California corporation, (the "Guarantor") in favor of (a)
BANKBOSTON, N.A., a national banking association, as agent (hereinafter, in such
capacity, the "Agent") for itself and the other lending institutions
(hereinafter, collectively, the "Banks") which are or may become parties to an
Amended and Restated Revolving Credit and Term Loan Agreement dated as of June
11, 1998 (as amended and in effect from time to time, the "Credit Agreement")
among SalesLink Corporation, a Delaware corporation ("SalesLink"), InSolutions
Incorporated, a Delaware corporation ("InSolutions" and, collectively with
SalesLink, the "Borrowers"), the Guarantor, the Banks and the Agent and (b) each
of the Banks.
WHEREAS, SalesLink as well as certain other parties entered into a
Revolving Credit and Term Loan Agreement dated as of October 24, 1996 (such
agreement as heretofore amended and in effect from time to time, the "Original
Loan Agreement"); and
WHEREAS, in connection with the Original Loan Agreement, the Guarantor
entered into a Guaranty dated as of October 24, 1996 (such agreement as
heretofore amended and in effect form time to time, the "Original Guaranty") in
favor of BankBoston, N.A. as agent for the lending institutions party to the
Original Loan Agreement and the Banks party thereto; and
WHEREAS, the Borrowers and the Guarantor have entered into the Credit
Agreement with the Agent and the Banks pursuant to which the Banks and the
Agent, subject to the terms and conditions contained therein, is to make loans
or otherwise to extend to the Borrowers;
WHEREAS, the Borrowers 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 Borrowers by the Agent and the
Banks pursuant to the Credit Agreement (which benefits are hereby acknowledged);
WHEREAS, the Original Loan Agreement will be superseded by the Credit
Agreement on the Closing Date (as defined in the Credit Agreement); and
WHEREAS, it is a condition precedent to the Bank's making any loans or
otherwise extending credit to the Borrowers under the Credit Agreement that
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the Guarantor execute and deliver to the Agent and the Banks a guaranty
substantially in the form hereof; and
WHEREAS, the Company desires to amend and restate all of its rights and
obligations under the Original Guaranty;
NOW, THEREFORE, the Guarantor hereby agrees with the Agent and the Banks as
follows:
1. DEFINITIONS. The term "Obligations" and all other capitalized terms
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used herein without definition shall have the respective meanings provided
therefor in the Credit Agreement.
2. GUARANTY OF PAYMENT AND PERFORMANCE. The Guarantor hereby guarantees
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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 Borrower or the Parent or resort to any
collateral security or other means of obtaining payment. Should the Borrower or
the Parent 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 become immediately due and payable to the Agent and the Banks,
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 or
any Bank on any number of occasions.
3. GUARANTOR'S AGREEMENT TO PAY ENFORCEMENT COSTS, ETC. The Guarantor
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further agrees, as the principal obligor and not as a guarantor only, to pay to
the Agent, on demand, all costs and expenses (including court costs and legal
expenses) incurred or expended by the Agent or any Bank in connection with the
Obligations, this Guaranty and the enforcement thereof, together with interest
on amounts recoverable under this (S)3 from the time when such amounts become
due until payment, whether before or after judgment, at the rate of interest for
overdue principal set forth in the Credit Agreement, provided that if such
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interest exceeds the maximum amount permitted to be paid under applicable law,
then such interest shall be reduced to such maximum permitted amount.
4. WAIVERS BY GUARANTOR; BANK'S FREEDOM TO ACT. The Guarantor agrees that
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the Obligations will be paid and performed strictly in accordance with their
respective terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of
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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 either the Borrower or the Parent 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
Borrower, the Parent 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, amendments or
modifications of any of the terms or provisions of the Credit Agreement, the
Notes, 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 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 any Bank's commencement or
completion of any foreclosure action, whether judicially, by exercise of power
of sale or otherwise, or (ii) any other law which in any other way would
otherwise require any election of remedies by the Agent or any Bank.
5. UNENFORCEABILITY OF OBLIGATIONS AGAINST BORROWER OR PARENT. If for any
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reason either the Borrower or the Parent 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 either the Borrower or the Parent by
reason of the Borrower's or the Parent's insolvency, bankruptcy or
reorganization or by other operation of law or for any other reason, this
Guaranty shall nevertheless be binding on the Guarantor to the same extent as
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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 Notes, the other Loan
Documents or any other agreement evidencing, securing or otherwise executed in
connection with any Obligation shall be immediately due and payable by the
Guarantor.
6. SUBROGATION; SUBORDINATION.
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6.1 WAIVER OF RIGHTS AGAINST BORROWER OR PARENT. Until the final
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payment and performance in full of all of the Obligations and any and all
other obligations of the Borrower, the Parent or the Guarantor to the Agent
or any Bank or any affiliate of the Agent or any Bank, the Guarantor shall
not exercise any rights against either the Borrower or the Parent 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 or such affiliate 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 either the Borrower or
the Parent in respect of any liability of the Guarantor to the Borrower or
the Parent; 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 or any such affiliate.
6.2 SUBORDINATION. The payment of any amounts due with respect to
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any indebtedness of the Borrower or the Parent now or hereafter owed to the
Guarantor is hereby subordinated to the prior payment in full of all of the
Obligations and any and all other obligations of the Borrower, the Parent
or the Guarantor to the Agent or any Bank or any affiliate of the Agent or
any Bank. The Guarantor agrees that, after the occurrence of any default in
the payment or performance of any of the Obligations, the Guarantor will
not demand, xxx for or otherwise attempt to collect any such indebtedness
of the Borrower or the Parent 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, such amounts shall be collected, enforced and received
by the Guarantor as trustee for the Agent for the benefito of the Agent and
the Banks and be paid over to the Agent for the benefit of the Agent and
the Banks on account of the Obligations without affecting in any manner the
liability of the Guarantor under the other provisions of this Guaranty.
6.3 PROVISIONS SUPPLEMENTAL. The provisions of this (S)6 shall be
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supplemental to and not in derogation of any rights and remedies of
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the Agent or any Bank or any affiliate of the Agent or any Bank under any
separate subordination agreement which the Agent or such Bank or such
affiliate may at any time and from time to time enter into with the
Guarantor.
7. SECURITY; SETOFF. The Guarantor grants to the Agent for the benefit of
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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 any 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 any 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, the
Agent and any Bank is hereby authorized at any time and from time to time,
without notice to the Guarantor (any such notice being expressly waived by the
Guarantor) and to the fullest extent permitted by law, to set off and apply such
deposits and other sums against the obligations of the Guarantor under this
Guaranty, whether or not the Agent or such Bank shall have made any demand under
this Guaranty and although such obligations may be contingent or unmatured.
8. FURTHER ASSURANCES. The Guarantor agree that it will from time to
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time, at the request of the Agent, provide to the Agent the Guarantor's most
recent audited and unaudited balance sheets and related statements of income and
changes in financial condition (prepared on a consolidated basis with the
Guarantor's subsidiaries, if any) and such other information relating to the
business and affairs of the Guarantor as the Agent or any Bank may reasonably
request. The Guarantor also agrees to 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 Agent
hereunder. The Guarantor acknowledges and confirms that the Guarantor itself has
established its own adequate means of obtaining from the Borrower and the Parent
on a continuing basis all information desired by the Guarantor concerning the
financial condition of the Borrower and the Parent and that the Guarantor will
look to the Borrower and the Parent and not to the Bank in order for the
Guarantor to keep adequately informed of changes in the Company's financial
condition.
9. TERMINATION; REINSTATEMENT. This Guaranty shall remain in full force
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and effect until the Agent is given written notice of the Guarantor's intention
to discontinue this Guaranty, notwithstanding any intermediate or temporary
payment or settlement of the whole or any part of the Obligations. No such
notice shall be effective unless received and acknowledged by an officer of the
Agent at the address of the Agent for notices set forth on the signature page of
the Credit Agreement. No such notice shall affect any rights of the Agent or any
Bank or of any affiliate 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
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Obligations incurred or accrued pursuant to any contract or commitment in
existence prior to such receipt, and all checks, drafts, notes, instruments
(negotiable or otherwise) and writings made by or for the account of the
Borrower or the Parent and drawn on the Agent or any Bank or any of its agents
purporting to be dated on or before the date of receipt of such notice, although
presented to and paid or accepted by the Agent or any Bank after that date,
shall form part of the Obligations. 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 Borrower, the Parent, or otherwise, all as though such
payment had not been made or value received.
10. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon the
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Guarantor, its successors and assigns, and shall inure to the benefit of and be
enforceable by the Agent, each Bank and its successors, transferees and assigns.
Without limiting the generality of the foregoing sentence, the Agent or any Bank
may assign or otherwise transfer the Credit Agreement, the Notes, 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 the Agent or such Bank herein.
11. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
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this Guaranty nor consent to any departure by the Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Agent and each
Bank. No failure on the part of the Agent or any Bank to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right.
12. NOTICES. All notices and other communications called for hereunder
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shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or mailed
first class, postage prepaid, or, in the case of telegraphic or telexed notice,
when transmitted, answer back received, addressed as follows: if to the
Guarantor, at the address set forth beneath its signature hereto, and if to the
Agent or any Bank, at the address for notices to the Agent and such Bank set
forth on the signature page of the Credit Agreement, or at such address as
either party may designate in writing to the other.
13. GOVERNING LAW; CONSENT TO JURISDICTION. THIS GUARANTY IS INTENDED TO
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TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The Guarantor
agrees that any suit for the enforcement of this Guaranty may be
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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.
14. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY
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TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
the Guarantor hereby waives any right which it may have to claim or recover in
any litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Guarantor (a) certifies that neither the Agent, any Bank nor
any representative, agent or attorney of the Agent or any Bank has represented,
expressly or otherwise, that the Agent or such Bank would not, in the event of
litigation, seek to enforce the foregoing waivers and (b) acknowledges that, in
entering into the Credit Agreement and the other Loan Documents to which the
Agent or such Bank is a party, the Agent and each Bank is relying upon, among
other things, the waivers and certifications contained in this (S)14.
15. MISCELLANEOUS. This Guaranty constitutes the entire agreement of the
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Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in addition to any other
guaranty of or collateral security for any of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
PACIFIC DIRECT MARKETING CORP.
By: _________________________________
Title:
Address:
Telex: ______________________________
