GUARANTEE AGREEMENT made by CERTAIN SUBSIDIARIES OF NEUSTAR, INC. in favor of JPMORGAN CHASE BANK, N.A., as Administrative Agent Dated as of February 6, 2007
Exhibit 10.2
made by
CERTAIN SUBSIDIARIES OF NEUSTAR, INC.
in favor of
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Dated as of February 6, 2007
GUARANTEE AGREEMENT, dated as of February 6, 2007 (as the same may be amended, supplemented or
otherwise modified from time to time, this “Agreement”), made by each of the signatories
hereto (together with any other entity that may become a party hereto as provided herein, the
“Guarantors”), in favor of JPMorgan Chase Bank, N.A., as administrative agent (in such
capacity, the “Administrative Agent”) for the banks and other financial institutions or
entities (the “Lenders”) from time to time parties to the Credit Agreement, dated as of
February 6, 2007 (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Neustar, Inc. (the “Borrower”), the Lenders and the Administrative
Agent for the ratable benefit of the Lenders and their respective successors, indorsees,
transferees and assigns.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make
extensions of credit to the Borrower upon the terms and subject to the conditions set forth
therein;
WHEREAS, the Borrower is a member of an affiliated group of companies that includes each
Guarantor;
WHEREAS, the proceeds of the extensions of credit under the Credit Agreement have been and
will be used in part to enable the Borrower to make valuable transfers to one or more of the
Guarantors in connection with the operation of their respective businesses;
WHEREAS, the Borrower and the Guarantors are engaged in related businesses, and each Guarantor
will derive substantial direct and indirect benefit from the making of the extensions of credit
under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective
extensions of credit to the Borrower under the Credit Agreement that the Guarantors shall have
executed and delivered this Agreement to the Administrative Agent for the ratable benefit of the
Lenders;
NOW, THEREFORE, in consideration of the premises and the Administrative Agent and the Lenders
having entered into the Credit Agreement and to induce the Lenders to make their respective further
extensions of credit to the Borrower thereunder, each Guarantor hereby agrees with the
Administrative Agent, for the ratable benefit of the Lenders, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
1.2 Other Definitional Provisions. (a) The words “hereof,” “herein”, “hereto” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Section and Schedule
references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
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SECTION 2. GUARANTEE
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of
the Lenders and their respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations. The guarantee provided under this Agreement is a
guarantee of payment and not of collection.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum
liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed
the amount which can be guaranteed by such Guarantor under applicable federal and state laws
relating to the insolvency of debtors without rendering its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code (Title
11, United States Code) or any comparable provision of any Federal or state law (in each case,
after giving effect to the right of contribution established in Section 2.2).
(c) Each Guarantor agrees that the Obligations may at any time and from time to time exceed
the amount of the liability of such Guarantor hereunder without impairing the guarantee contained
in this Section 2 or affecting the rights and remedies of the Administrative Agent or any Lender
hereunder.
(d) The guarantee contained in this Section 2 shall remain in full force and effect in
accordance with Section 5.15 until all the Obligations and the obligations of each Guarantor under
the guarantee contained in this Section 2 shall have been satisfied by payment in full and the
Commitments shall be terminated, notwithstanding that from time to time during the term of the
Credit Agreement there may be no outstanding and unpaid Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any other guarantor or any other
Person or received or collected by the Administrative Agent or any Lender from the Borrower, any of
the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or
any set-off or appropriation or application at any time or from time to time in reduction of or in
payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the
liability of any Guarantor hereunder which shall, notwithstanding any such payment (other than any
payment made by such Guarantor in respect of the Obligations or any payment received or collected
from such Guarantor in respect of the Obligations), remain liable for the Obligations up to the
maximum liability of such Guarantor hereunder until the Obligations are paid in full and the
Commitments are terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the extent that a
Guarantor shall have paid more than its proportionate share (as may be determined by the Borrower
in its sole discretion) of any payment made hereunder, such Guarantor shall be entitled to seek and
receive contribution from and against any other Guarantor hereunder which has not paid its
proportionate share of such payment. Each Guarantor’s right of contribution shall be subject to
the terms and conditions of Section 2.3. The provisions of this Section 2.2 shall in no respect
limit the obligations and liabilities of any Guarantor to the Administrative Agent and the Lenders,
and each Guarantor shall remain liable to the Administrative Agent and the Lenders for the full
amount guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any Guarantor hereunder or
any set-off or application of funds of any Guarantor by the Administrative Agent or any Lender, no
Guarantor shall be entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against the Borrower or any other Guarantor or any collateral security or guarantee or
right of offset held by the Administrative Agent or any Lender for the payment of the Obligations,
nor shall any Guarantor seek or
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be entitled to seek any contribution or reimbursement from the Borrower or any other Guarantor
in respect of payments made by such Guarantor hereunder, until all amounts owing to the
Administrative Agent and the Lenders by the Borrower on account of the Obligations are paid in full
and the Commitments are terminated. If any amount shall be paid to any Guarantor on account of
such subrogation rights at any time when all of the Obligations shall not have been paid in full,
such amount shall be held by such Guarantor for the benefit of the Administrative Agent and the
Lenders, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Administrative Agent in the exact form received by such Guarantor
(duly indorsed by such Guarantor to the Administrative Agent, if required), to be applied against
the Obligations, whether matured or unmatured, in such order as the Administrative Agent may
determine.
2.4 Amendments, etc. with respect to the Obligations. Each Guarantor shall remain
obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor
and without notice to or further assent by any Guarantor, any demand for payment of any of the
Obligations made by the Administrative Agent or any Lender may be rescinded by the Administrative
Agent or such Lender and any of the Obligations continued, and the Obligations, or the liability of
any other Person upon or for any part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or released, and the
Credit Agreement and the other Loan Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in whole or in part, for
any reason whatsoever, and any collateral security, guarantee or right of offset at any time held
by the Administrative Agent or any Lender for the payment of the Obligations may be sold,
exchanged, waived, surrendered or released.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice of
the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of
reliance by the Administrative Agent or any Lender upon the guarantee contained in this Section 2
or acceptance of the guarantee contained in this Section 2; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended
or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between the
Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Lenders,
on the other hand, likewise shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. Each Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to or upon the
Borrower or any of the Guarantors with respect to the Obligations. Each Guarantor understands and
agrees that the guarantee contained in this Section 2 shall be construed as a continuing, absolute
and unconditional guarantee of payment without regard to (a) the validity or enforceability of the
Credit Agreement or any other Loan Document, any of the Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be available to or be
asserted by the Borrower or any other Person against the Administrative Agent or any Lender, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of the Borrower or such
Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge
of the Borrower for the Obligations, or of such Guarantor under the guarantee contained in this
Section 2, in bankruptcy or in any other instance. When making any demand hereunder or otherwise
pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent or any
Lender may, but shall be under no obligation to, make a similar demand on or otherwise pursue such
rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or
against any collateral security or guarantee for the Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent or any Lender to make any such demand,
to pursue such other rights or remedies or to collect any payments from the Borrower, any other
Guarantor or any other Person or to realize upon
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any such collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrower, any other Guarantor or any other Person or any such collateral security,
guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent or any Lender against any Guarantor. For
the purposes hereof “demand” shall include the commencement and continuance of any legal
proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by the Administrative
Agent or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments hereunder will be paid
to the Administrative Agent without set-off or counterclaim in Dollars at the Administrative
Agent’s Office.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In consideration of the Administrative Agent and the Lenders having entered into the Credit
Agreement and to induce the Lenders to make their respective extensions of credit to the Borrower
thereunder, each Guarantor hereby represents and warrants to the Administrative Agent and each
Lender that:
3.1 Enforceable Obligation. This Agreement constitutes a legal, valid and binding
obligation of each Guarantor, enforceable against such Guarantor in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally, by general
equitable principles (whether enforcement is sought by proceedings in equity or at law) and by
public policies limiting exculpation, indemnification or contribution.
3.2 No Conflicts of Consents. The execution, delivery and performance of this
Agreement (i) does not require any consent or approval of, or registration or filing with, or any
other action by, any Governmental Authority, (ii) does not violate any applicable law or regulation
or any order of any Governmental Authority and (iii) does not violate or result in a default under
any agreement binding on any Guarantor, except where such violation or default would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 4. THE ADMINISTRATIVE AGENT
4.1 Authority of Administrative Agent. Each Guarantor acknowledges that the rights
and responsibilities of the Administrative Agent under this Agreement with respect to any action
taken by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of
any option, voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Administrative Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with respect thereto as
may exist from time to time among them, but, as between the Administrative Agent and the
Guarantors, the Administrative Agent shall be conclusively presumed to be acting as agent for the
Lenders with full and valid authority so to act or
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refrain from acting, and no Guarantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
SECTION 5. MISCELLANEOUS
5.1 Amendments in Writing. None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except in accordance with Section 10.1 of the
Credit Agreement.
5.2 Notices. All notices, requests and demands to or upon the Administrative Agent or
any Guarantor hereunder shall be effected in the manner provided for in Section 10.2 of the Credit
Agreement; provided that any such notice, request or demand to or upon any Guarantor shall
be addressed to such Guarantor at its notice address set forth on Schedule 1.
5.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the Administrative
Agent nor any Lender shall by any act (except by a written instrument pursuant to Section 5.1),
delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. A waiver by the Administrative Agent or any Lender of any right
or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy
which the Administrative Agent or such Lender would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
5.4 Enforcement Expenses; Indemnification. (a) Each Guarantor agrees to pay or
reimburse each Lender and the Administrative Agent for all its out-of-pocket expenses incurred in
collecting against such Guarantor under the guarantee contained in Section 2 or otherwise enforcing
or protecting any rights under this Agreement and the other Loan Documents to which such Guarantor
is a party, including, without limitation, any such expenses consisting of the fees and
disbursements of outside counsel to any Lender or the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative Agent and the Lenders
harmless from, any and all losses, claims, damages, liabilities and related expenses with respect
to the execution, delivery, enforcement, performance and, in the case of the Administrative Agent
(and any sub-agent thereof) and its Related Parties, the administration of this Agreement to the
extent the Borrower would be required to do so pursuant to Section 10.4(b) of the Credit Agreement.
(c) The agreements in this Section 5.4 shall survive repayment of the Obligations and all
other amounts payable under the Credit Agreement and the other Loan Documents.
5.5 Successors and Assigns. This Agreement shall be binding upon the successors and
assigns of each Guarantor and shall inure to the benefit of the Administrative Agent and the
Lenders and their successors and assigns; provided that no Guarantor may assign, transfer
or delegate any of its rights or obligations under this Agreement without the prior written consent
of the Administrative Agent; and provided, further, neither the Administrative
Agent nor any Lender may assign, transfer or delegate any of its rights or obligations under this
Agreement except to the extent it would be permitted to do so under Section 10.6 of the Credit
Agreement (or, in the case of the Administrative Agent, Article IX of the Credit Agreement).
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5.6 Set-Off. Each Guarantor hereby irrevocably authorizes the Administrative Agent
and each Lender at any time and from time to time while an Event of Default shall have occurred and
be continuing, without notice to such Guarantor or any other Guarantor, any such notice being
expressly waived by each Guarantor, to set-off and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Administrative Agent or such
Lender to or for the credit or the account of such Guarantor, or any part thereof in such amounts
as the Administrative Agent or such Lender may elect, against and on account of the obligations and
liabilities of such Guarantor due and owing to the Administrative Agent or such Lender hereunder
and claims of every nature and description of the Administrative Agent or such Lender against such
Guarantor, in any currency, whether arising hereunder, under the Credit Agreement or any other Loan
Document, as the Administrative Agent or such Lender may elect. The Administrative Agent and each
Lender shall notify such Guarantor promptly of any such set-off and the application made by the
Administrative Agent or such Lender of the proceeds thereof, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights of the
Administrative Agent and each Lender under this Section 5.6 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the Administrative Agent or
such Lender may have and are subject to the adjustment provisions of Section 2.13 of the Credit
Agreement.
5.7 Counterparts. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument.
5.8 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
5.9 Section Headings. The Section headings used in this Agreement are for convenience
of reference only and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.
5.10 Integration. This Agreement and the other Loan Documents represent the agreement
of the Guarantors, the Administrative Agent and the Lenders with respect to the subject matter
hereof and thereof, and there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to subject matter hereof and thereof not expressly set
forth or referred to herein or in the other Loan Documents.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.12 Submission To Jurisdiction; Waivers. Each Guarantor hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New
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York, the courts of the United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Guarantor at its address referred to in Section 5.2 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.
5.13 Acknowledgements. Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents to which it is a party;
(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to any Guarantor arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between the Guarantor, on the one hand, and the Administrative
Agent and Lenders, on the other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among the Guarantors and the
Lenders.
5.14 Additional Guarantors. Each Subsidiary of the Borrower that is required to
become a party to this Agreement pursuant to Section 6.12 of the Credit Agreement shall become a
Guarantor for all purposes of this Agreement upon execution and delivery by such Subsidiary of an
Assumption Agreement in the form of Annex 1 hereto.
5.15 Releases.
(a) At such time as the Revolving Loans and the other Obligations (other than indemnification
and expense reimbursement Obligations surviving the termination of the Commitments) shall have been
paid in full, no Letters of Credit shall remain outstanding and the Commitments have been
terminated, this Agreement and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Guarantor hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party. At the request and sole expense
of any Guarantor following any such termination, the Administrative Agent shall execute and deliver
to such Guarantor such documents as such Guarantor shall reasonably request to evidence such
termination.
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(b) For the avoidance of doubt, each beneficiary of this Agreement, by accepting the benefits
hereof, consents and agrees to the terms and conditions of Article IX of the Credit Agreement and
irrevocably authorizes the Administrative Agent, at its option and in its sole discretion, to
release any Guarantor from its obligations under this Agreement if such Person ceases to be a
Subsidiary, becomes an Immaterial Subsidiary or is dissolved, liquidated or merged out of
existence, in each case as a result of a transaction permitted under the Credit Agreement.
5.16 WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
5.17 Confidentiality. The Administrative Agent and each Lender agrees to be bound by
the confidentiality provisions set out in Section 10.7 of the Credit Agreement with respect to this
Agreement
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IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee Agreement to be duly
executed and delivered as of the date first above written.
| NEULEVEL, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Title: Chief Executive Officer | ||||
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee Agreement to be duly
executed and delivered as of the date first above written.
| ULTRADNS CORPORATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Title: Chief Executive Officer | ||||
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IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee Agreement to be duly
executed and delivered as of the date first above written.
| FOLLOWAP INC. |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Title: Chief Executive Officer and General Manager | ||||
