EXECUTION COPY
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY (as amended, supplemented, amended and
restated or otherwise modified from time to time, this "GUARANTY"), dated as of
November 17, 1999, is made by PRIMEDIA REFERENCE INC., a Delaware corporation
("PRI"), AMERICAN GUIDANCE SERVICE INC., a Minnesota corporation ("AGS"),
LIFETIME LEARNING SYSTEMS, INC., a Delaware corporation ("LLS"), AGS
INTERNATIONAL SALES, INC., a Minnesota corporation ("AIS"), FUNK & WAGNALLS
YEARBOOK CORPORATION, a Delaware corporation ("FW"), and XXXXXX XXXXXXX, INC., a
Wisconsin corporation ("GS"), each other Subsidiary (as defined below) of each
of the Borrowers (as defined below) a signatory hereto, and each other Person
which may from time to time hereafter become a party hereto pursuant to SECTION
5.5 (each, individually, an "ADDITIONAL GUARANTOR", and, collectively, the
"ADDITIONAL GUARANTORS", and, together with each of the signatories hereto,
each, individually, a "GUARANTOR", and, collectively, the "GUARANTORS"), in
favor of BANK OF AMERICA, N.A., as administrative agent (together with its
successor(s) thereto, in such capacity the "ADMINISTRATIVE AGENT") for each of
the Secured Parties.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of November 17, 1999
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "CREDIT AGREEMENT"), among Weekly Reader Corporation, a Delaware
corporation ("WRC"), and JLC Learning Corporation, a Delaware corporation ("JLC"
and, together with WRC, the "BORROWERS"), WRC Media Inc. (formerly known as EAC
II Inc.), a Delaware corporation and parent of JLC ("HOLDINGS"), as a guarantor,
the various financial institutions as are or may become parties thereto
(collectively, the "LENDERS"), DLJ Capital Funding, Inc., as the Syndication
Agent (in such capacity, the "SYNDICATION AGENT"), the Lead Arranger and the
Sole Book Running Manager, the Administrative Agent, and General Electric
Capital Corporation, as the documentation agent (in such capacity, the
"DOCUMENTATION AGENT") for the Lenders, the Lenders and the Issuers have
extended Commitments to make Credit Extensions to the Borrowers;
WHEREAS, as a condition precedent to the making of the Credit
Extensions (including the initial Credit Extension) under the Credit Agreement,
each Guarantor is required to execute and deliver this Guaranty;
WHEREAS, each Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
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WHEREAS, it is in the best interests of each Guarantor to execute this
Guaranty inasmuch as each Guarantor will derive substantial direct and indirect
benefits from the Credit Extensions made from time to time to the Borrowers by
the Lenders and the Issuers pursuant to the Credit Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders and the Issuers to
make Credit Extensions (including the initial Credit Extension) to the Borrowers
pursuant to the Credit Agreement, and to induce Secured Parties to enter into
Rate Protection Agreements, each Guarantor agrees, for the benefit of each
Secured Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN TERMS. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"ADDITIONAL GUARANTOR" and "ADDITIONAL GUARANTORS" are defined in the
PREAMBLE.
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE.
"BORROWERS" is defined in the FIRST RECITAL.
"CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"GUARANTOR" and "GUARANTORS" are defined in the PREAMBLE.
"GUARANTY" is defined in the PREAMBLE.
"HOLDINGS" is defined in the FIRST RECITAL.
"LENDERS" is defined in the FIRST RECITAL.
SECTION 1.2. CREDIT AGREEMENT DEFINITIONS. Unless otherwise defined
herein or the context otherwise requires, terms used in this Guaranty, including
its preamble and recitals, have the meanings provided in the Credit Agreement.
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ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. GUARANTY. Each Guarantor hereby absolutely,
unconditionally and irrevocably
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all Obligations of each Borrower and each
other Obligor, now or hereafter existing, whether for principal,
interest, Reimbursement Obligations, fees, expenses or otherwise
(including all such amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C. Section 362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C. Section 502(b) and Section 506(b)), and
(b) indemnifies and holds harmless each Secured Party and each
holder of a Note for any and all costs and expenses (including
reasonable attorneys' fees and expenses) incurred by such Secured
Party or such holder, as the case may be, in enforcing any rights
under this Guaranty;
PROVIDED, HOWEVER, that each Guarantor shall be liable under this Guaranty for
the maximum amount of such liability that can be hereby incurred without
rendering this Guaranty, as it relates to such Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount. This Guaranty constitutes a guaranty of payment when due
and not of collection, and each Guarantor specifically agrees that it shall not
be necessary or required that any Secured Party or any holder of any Note
exercise any right, assert any claim or demand or enforce any remedy whatsoever
against any Borrower or any other Obligor (or any other Person) before or as a
condition to the obligations of such Guarantor hereunder.
SECTION 2.2. ACCELERATION OF GUARANTY. Each Guarantor agrees that, in
the event of any Default described in any of clauses (a) through (d) of Section
8.1.9 of the Credit Agreement, and if such Default shall occur at a time when
any of the Obligations of any Borrower or any other Obligor may not then be due
and payable, such Guarantor will pay to the Lenders forthwith the full amount
which would be payable hereunder by such Guarantor if all such Obligations were
then due and payable.
SECTION 2.3. GUARANTY ABSOLUTE, ETC. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of each
Borrower and each other
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Obligor have been paid in full in cash, all obligations of each Guarantor
hereunder shall have been paid in full in cash, all Letters of Credit have been
terminated or expired, all Rate Protection Agreements have been terminated and
all Commitments shall have terminated. Each Guarantor guarantees that the
Obligations of each Borrower and each other Obligor will be paid strictly in
accordance with the terms of the Credit Agreement and each other Loan Document
under which they arise, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Secured Party or any holder of any Note with respect thereto. The
liability of each Guarantor under this Guaranty shall be absolute, unconditional
and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the
Credit Agreement or any other Loan Document;
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any
right or remedy against any Borrower, any other Obligor or any
other Person (including any other guarantor) under the
provisions of the Credit Agreement, any Note, any other Loan
Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor (including any Guarantor) of, or collateral
securing, any Obligations of any Borrower or any other
Obligor;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of any Borrower or
any other Obligor, or any other extension, compromise or renewal of any
Obligation of any Borrower or any other Obligor;
(d) any reduction, limitation, impairment or termination of
any Obligations of any Borrower or any other Obligor for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and each Guarantor hereby
waives any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Obligations of any
Borrower or any other Obligor or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
the Credit Agreement or any other Loan Document;
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(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Secured Party or any holder of any Note securing
any of the Obligations of any Borrower or any other Obligor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any
Borrower, any other Obligor, any surety or any guarantor.
SECTION 2.4. REINSTATEMENT, ETC. Each Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Obligations is
invalidated, declared to be fraudulent or preferential, set aside, rescinded or
must otherwise be restored by any Secured Party or any holder of any Note, upon
the insolvency, bankruptcy or reorganization of any Borrower or any other
Obligor or otherwise, all as though such payment had not been made.
SECTION 2.5. WAIVER, ETC. Each Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of any Borrower or any other Obligor and of this Guaranty and any
requirement that the Administrative Agent, any other Secured Party or any holder
of any Note protect, secure, perfect or insure any security interest or Lien, or
any property subject thereto, or exhaust any right or take any action against
any Borrower, any other Obligor or any other Person (including any other
guarantor) or entity or any collateral securing the Obligations of such Borrower
or such other Obligor, as the case may be.
SECTION 2.6. POSTPONEMENT OF SUBROGATION, ETC. Each Guarantor hereby
agrees that it will not exercise any rights which it may acquire by way of
rights of subrogation under this Guaranty, by any payment made hereunder or
otherwise, until the prior payment in full in cash of all Obligations of each
Borrower and each other Obligor, the termination or expiration of all Letters of
Credit, the termination of all Rate Protection Agreements and the termination of
all Commitments. Any amount paid to any Guarantor on account of any such
subrogation rights prior to the payment in full in cash of all Obligations of
each Borrower and each other Obligor shall be held in trust for the benefit of
the Secured Parties and each holder of a Note and shall immediately be paid to
the Administrative Agent for the benefit of the Secured Parties and each holder
of a Note and credited and applied against the Obligations of each Borrower and
each other Obligor, whether matured or unmatured, in accordance with the terms
of the Credit Agreement; PROVIDED, HOWEVER, that if
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(a) such Guarantor has made payment to the Secured Parties and
each holder of a Note of all or any part of the Obligations of any
Borrower or any other Obligor, and
(b) all Obligations have been paid in full in cash, all
Letters of Credit have been terminated or expired, all Rate Protection
Agreements have been terminated and all Commitments have been
permanently terminated,
each Secured Party and each holder of a Note agrees that, at such Guarantor's
request, the Administrative Agent, on behalf of the Secured Parties and the
holders of the Notes, will execute and deliver to such Guarantor appropriate
documents (without recourse and without representation or warranty) necessary to
evidence the transfer by subrogation to such Guarantor of an interest in the
Obligations of such applicable Borrower or such applicable Obligor resulting
from such payment by such Guarantor. In furtherance of the foregoing, for so
long as any Obligations, Letters of Credit, Rate Protection Agreements or
Commitments remain outstanding, each Guarantor shall refrain from taking any
action or commencing any proceeding against any Borrower or any other Obligor
(or any of their respective successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amount in respect of any
payment made under this Guaranty to any Secured Party or any holder of a Note.
SECTION 2.7. RIGHT OF CONTRIBUTION. Each Guarantor hereby agrees that
to the extent that a Guarantor shall have paid more than its proportionate share
of any payment made hereunder, such Guarantor shall be entitled to seek and
receive contribution from and against any other Guarantor hereunder who 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 2.6. The
provisions of this SECTION 2.7 shall in no respect limit the obligations and
liabilities of any Guarantor to the Administrative Agent and each other Secured
Party, and each Guarantor shall remain liable to the Administrative Agent and
each other Secured Party for the full amount by such Guarantor hereunder.
SECTION 2.8. SUCCESSORS, TRANSFEREES AND ASSIGNS; TRANSFERS OF NOTES,
ETC. This Guaranty shall:
(a) be binding upon each Guarantor, and its successors,
transferees and assigns; and
(b) inure to the benefit of and be enforceable by the
Administrative Agent and each other Secured Party.
Without limiting the generality of CLAUSE (b), any Lender may assign or
otherwise transfer (in whole or in part) any Note or Credit Extension held by it
to any other Person
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or entity, and such other Person or entity shall thereupon become vested with
all rights and benefits in respect thereof granted to such Lender under any Loan
Document (including this Guaranty) or otherwise, subject, however, to any
contrary provisions in such assignment or transfer, and to the provisions of
Section 11.11 and Article IX of the Credit Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby
represents and warrants for itself unto each Secured Party as to all matters
contained in Article VI of the Credit Agreement and this ARTICLE III, in each
case insofar as applicable to such Guarantor or such Guarantor's properties,
together with all related definitions and ancillary provisions, all of which are
hereby incorporated into this ARTICLE III as though specifically set forth
herein.
SECTION 3.2. ORGANIZATION, ETC. Each Guarantor and each of its
Subsidiaries is validly organized and existing and in good standing under the
laws of the state or jurisdiction of its incorporation or organization, is duly
qualified to do business and is in good standing as a foreign entity in each
jurisdiction where the nature of its business requires such qualification
(except where the failure to be so qualified or in good standing as a foreign
entity could not reasonably be expected to have a Material Adverse Effect), and
has full power and authority and holds all requisite governmental licenses,
permits and other approvals to enter into and perform its Obligations under this
Guaranty and each Loan Document to which it is a party and to own and hold under
lease its property and to conduct its business substantially as currently
conducted by it (except where the failure to hold any such license, permit or
other approval could not reasonably be expected to have a Material Adverse
Effect).
SECTION 3.3. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by each Guarantor of this Guaranty and each other Loan
Document executed or to be executed by it, such Guarantor's participation in the
consummation of all aspects of the Transaction, and the execution, delivery and
performance by such Guarantor (if applicable) of the agreements executed and
delivered in connection with the Transaction are in each case within such
Guarantor's powers, have been duly authorized by all necessary action, and do
not
(a) contravene any (i) Organic Documents of such Guarantor,
(ii) contractual restriction binding on or affecting such Guarantor,
(iii) court
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decree or order binding on or affecting such Guarantor or (iv) law or
governmental regulation binding on or affecting such Guarantor; or
(b) result in, or require the creation or imposition of, any
Lien on any such Guarantor's properties (except as permitted by this
Agreement).
SECTION 3.4. GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person (other than those that have been,
or on the Closing Date will be, duly obtained or made and which are, or on the
Closing Date will be, in full force and effect) is required for the consummation
of the Transaction or the due execution, delivery or performance by any
Guarantor of this Guaranty or any other Loan Document to which it is a party, or
for the due execution, delivery and/or performance of Transaction Documents by
such Guarantor (if applicable), or the consummation of the Transaction by such
Guarantor (if applicable). None of the Guarantors or any of its respective
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 3.5. VALIDITY, ETC. This Guaranty and the Transaction Documents
to which it is a party constitute, and each other Loan Document executed by each
Guarantor will, on the due execution and delivery thereof, constitute, the
Guarantor in accordance with their respective terms (except, in any case, as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and by
principles of equity).
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. AFFIRMATIVE COVENANTS. Each Guarantor covenants and agrees
that, until all Letters of Credit have terminated or expired, all Rate
Protection Agreements have terminated, all Commitments have terminated, all
Obligations have been paid in full in cash and all obligations of such Guarantor
hereunder shall have been paid in full in cash, such Guarantor will, and will
cause each of its Subsidiaries to, perform, comply with and be bound by all the
agreements, covenants and obligations contained in the Credit Agreement
applicable to such Guarantor, such Subsidiary or their respective properties.
Each such agreement, covenant and obligation contained in the
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Credit Agreement and all related definitions and ancillary provisions are hereby
incorporated into this Guaranty as though specifically set forth herein.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. LOAN DOCUMENT. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof.
SECTION 5.2. BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS;
ASSIGNMENT. In addition to, and not in limitation of, SECTION 2.8, this Guaranty
shall be binding upon each Guarantor and its successors, transferees and assigns
and shall inure to the benefit of and be enforceable by each Secured Party and
each holder of a Note and their respective successors, transferees and assigns
(to the fullest extent provided pursuant to SECTION 2.8); PROVIDED, HOWEVER,
that no Guarantor may assign any of its obligations hereunder without the prior
written consent of all Lenders.
SECTION 5.3. AMENDMENTS, ETC. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by any Guarantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent (on behalf of the Lenders or the Required
Lenders, as the case may be) and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
SECTION 5.4. NOTICES. All notices and other communications provided for
hereunder shall be in writing and mailed or telecopied or delivered, if to a
Guarantor, to such Guarantor in care of Holdings at the address of Holdings
specified in the Credit Agreement, and, if to the Administrative Agent, to the
Administrative Agent at the address of the Administrative Agent specified in the
Credit Agreement, or as to any party, at such other address as shall be
designated by such party in a written notice to the Agent or the Guarantors (in
care of Holdings), as the case may be, complying as to delivery with the terms
of this Section. All such notices and other communications, if mailed and
properly addressed with postage prepaid or if properly addressed and sent by
pre-paid courier service, shall be deemed given when received; any such notice
or communication, if transmitted by facsimile, shall be deemed given when the
confirmation thereof is received by the transmitter.
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SECTION 5.5. ADDITIONAL GUARANTORS. Upon the execution and delivery by
any other Person of an instrument in the form of ANNEX I hereto, such Person
shall become a "Guarantor" hereunder with the same force and effect as if
originally named as a Guarantor herein. The execution and delivery of any such
instrument shall not require the consent of any other Guarantor hereunder. The
rights and obligations of each Guarantor hereunder shall remain in full force
and effect notwithstanding the addition of any new Guarantor as a party to this
Guaranty.
SECTION 5.6. NO WAIVER; REMEDIES. In addition to, and not in limitation
of, SECTION 2.3 and SECTION 2.5, no failure on the part of any Secured Party or
any holder of a Note 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. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 5.7. CAPTIONS. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this
Guaranty.
SECTION 5.8. SETOFF. In addition to, and not in limitation of, any
rights of any Secured Party or any holder of a Note under applicable law, each
Secured Party and each such holder shall, upon the occurrence of any Default
described in any of clauses (a) through (d) of Section 8.1.9 of the Credit
Agreement or, with the consent of the Required Lenders, upon the occurrence of
any Event of Default, have the right to appropriate and apply to the payment of
the obligations of any Guarantor owing to it hereunder, whether or not then due,
and such Guarantor hereby grants to each Secured Party and each such holder a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of such Guarantor then or thereafter maintained with such
Secured Party, or such holder or any agent or bailee for such Secured Party or
such holder; PROVIDED, HOWEVER, that any such appropriation and application
shall be subject to the provisions of Section 4.8 of the Credit Agreement.
SECTION 5.9. SEVERABILITY. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 5.10. GOVERNING LAW, ENTIRE AGREEMENT, ETC. THIS GUARANTY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS
OF THE STATE OF NEW YORK. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE
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ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
SECTION 5.11. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY SECURED PARTY
OR ANY GUARANTOR RELATING THERETO SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY
(TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE STATE OF NEW
YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, IN EACH CASE LOCATED IN XXX XXXX XXXXXX XX XXX XXXXX XX XXX XXXX;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE
COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK, AND OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE LOCATED IN NEW YORK COUNTY OF
THE STATE OF NEW YORK, FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. EACH GUARANTOR IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
ANY OF THEM MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
ANY GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, EACH GUARANTOR HEREBY IRREVOCABLY WAIVES (TO THE EXTENT
PERMITTED UNDER
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APPLICABLE LAW) SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY
AND THE OTHER LOAN DOCUMENTS.
SECTION 5.12. WAIVER OF JURY TRIAL. THE SECURED PARTIES AND THE
GUARANTORS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES OR THE GUARANTORS RELATING
THERETO. THE GUARANTORS ACKNOWLEDGE AND AGREE THAT EACH SUCH PERSON HAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION
OF EACH OTHER LOAN DOCUMENT TO WHICH SUCH PERSON IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTIES ENTERING INTO THE
CREDIT AGREEMENT, THIS GUARANTY AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 5.13. COUNTERPARTS. This Guaranty may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
RIMEDIA REFERENCE INC.
By /s/Xxxxxxx Xxxxxx
--------------------
Name:Xxxxxxx Xxxxxx
Title:
AMERICAN GUIDANCE
SERVICE INC.
By /s/Xxxxxxx Xxxxxx
--------------------
Name:Xxxxxxx Xxxxxx
Title:
LIFETIME LEARNING
SYSTEMS, INC.
By /s/Xxxxxxx Xxxxxx
--------------------
Name:Xxxxxxx Xxxxxx
Title:
AGS INTERNATIONAL SALES,
INC.
By /s/Xxxxxxx Xxxxxx
--------------------
Name:Xxxxxxx Xxxxxx
Title:
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FUNK & WAGNALLS
YEARBOOK
CORPORATION
By /s/Xxxxxxx Xxxxxx
--------------------
Name:Xxxxxxx Xxxxxx
Title:
XXXXXX XXXXXXX, INC.
By /s/Xxxxxxx Xxxxxx
--------------------
Name:Xxxxxxx Xxxxxx
Title:
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ACCEPTED BY:
BANK OF AMERICA, N.A.
as Administrative Agent
By /s/Xxxxx Xxxx
--------------
Name:Xxxxx Xxxx
Title:
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ANNEX I to
Subsidiary Guaranty
SUPPLEMENT NO. ___ dated as of ________ __, ____ (this "SUPPLEMENT"),
to the Subsidiary Guaranty, dated as of November 17, 1999 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
"GUARANTY"), among the initial signatories thereto and each other Person which
from time to time thereafter became a party thereto pursuant to Section 5.5
thereof (each, individually, a "GUARANTOR", and, collectively, the
"GUARANTORS"), in favor of the Secured Parties (as defined in the Guaranty).
W I T N E S S E T H:
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Guaranty; and
WHEREAS, the Guaranty provides that additional parties may become
Guarantors under the Guaranty by execution and delivery of an instrument in the
form of this Supplement; and
WHEREAS, pursuant to the provisions of Section 5.5 of the Guaranty, the
undersigned is becoming an Additional Guarantor under the Guaranty; and
WHEREAS, the undersigned desires to become a Guarantor under the
Guaranty in order to induce the Secured Parties to continue to make Credit
Extensions under the Credit Agreement as consideration therefor;
NOW, THEREFORE, the undersigned agrees, for the benefit of each Secured
Party, as follows:
SECTION 1. In accordance with the Guaranty, the undersigned by its
signature below becomes a Guarantor under the Guaranty with the same force and
effect as if it were an original signatory thereto as a Guarantor and the
undersigned hereby (a) agrees to all the terms and provisions of the Guaranty
applicable to it as a Guarantor thereunder and (b) represents and warrants that
the representations and warranties made by it as a Guarantor thereunder are true
and correct on and as of the date hereof. In furtherance of the foregoing, each
reference to a "Guarantor" or an "Additional Guarantor" in the Guaranty shall be
deemed to include the undersigned.
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SECTION 2. The undersigned hereby represents and warrants that this
Supplement has been duly authorized, executed and delivered by the undersigned
and constitutes a legal, valid and binding obligation of the undersigned,
enforceable against it in accordance with its terms.
SECTION 3. Except as expressly supplemented hereby, the Guaranty shall
remain in full force and effect in accordance with its terms.
SECTION 4. In the event any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty shall not in any way be affected or impaired.
SECTION 5. Without limiting the provisions of the Credit Agreement (or
any other Loan Document, including the Guaranty), the undersigned agrees to
reimburse the Administrative Agent for its reasonable out-of-pocket expenses in
connection with this Supplement, including reasonable attorneys' fees and
expenses of the Administrative Agent.
SECTION 6. THIS SUPPLEMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 7. WITHOUT LIMITING THE EFFECT OF SECTION 5.11 OF THE
GUARANTY, THE SECURED PARTIES AND THE UNDERSIGNED HEREBY EXPRESSLY AND
IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, IN EACH CASE LOCATED IN NEW YORK COUNTY OF THE STATE OF NEW YORK,
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. THE UNDERSIGNED IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF NEW YORK. THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY
HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
UNDERSIGNED HAS OR HEREAFTER MAY
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ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE
UNDERSIGNED HEREBY IRREVOCABLY WAIVES (TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW) SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS SUPPLEMENT, THE
GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION 8. WITHOUT LIMITING THE EFFECT OF SECTION 5.12 OF THE GUARANTY,
THE SECURED PARTIES AND THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS SUPPLEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES
OR THE UNDERSIGNED RELATING THERETO. THE UNDERSIGNED ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTIES ENTERING
INTO THE CREDIT AGREEMENT, THIS SUPPLEMENT, THE GUARANTY AND EACH SUCH OTHER
LOAN DOCUMENT.
SECTION 9. This Supplement hereby incorporates by reference the
provisions of the Guaranty, which provisions are deemed to be a part hereof, and
this Supplement shall be deemed to be a part of the Guaranty.
SECTION 10. This Supplement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
the Guaranty to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
[ADDITIONAL GUARANTOR], a
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By
----------------------
Name:
Title:
ACCEPTED BY:
BANK OF AMERICA, N.A.
as Administrative Agent
By
---------------------------
Name:
Title:
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