Exhibit 10.5
CONTINUING GUARANTY AGREEMENT
THIS CONTINUING GUARANTY AGREEMENT (the "Guaranty") made as of the 17th
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day of September, 2001, by and between DIRECT III MARKETING, INC., a Delaware
corporation ("Guarantor") and FIFTH THIRD BANK, an Ohio banking corporation, for
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itself and as agent for any affiliate of Fifth Third Bancorp ("Beneficiary").
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W I T N E S S E T H:
WHEREAS, Beneficiary has agreed to extend credit and financial
accommodations to GRAD PARTNERS, INC., a Delaware corporation ("Borrower"),
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pursuant to the Credit Agreement, dated of even date herewith, by and between
Borrower and Beneficiary, together with the $5,000,000 Revolving Note, dated of
even date herewith, executed by Borrower and made payable to the order of
Beneficiary (the "Note"), and all agreements, instruments and documents executed
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or delivered in connection with any of the foregoing or otherwise related
thereto (together with any amendments, modifications, or restatements thereof,
the "Loan Documents"); and
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WHEREAS, Guarantor is affiliated with Borrower and, as such, shall be
benefited directly by the transaction contemplated by the Loan Documents, and
shall execute this Guaranty in order to induce Beneficiary to enter into such
transaction.
NOW, THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, Guarantor hereby guarantees, promises and undertakes as
follows:
1. GUARANTY.
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(a) Guarantor hereby unconditionally, absolutely and irrevocably
guarantees to Beneficiary the full and prompt payment and performance when due
(whether at maturity by acceleration or otherwise) of any and all loans,
advances, indebtedness and each and every other obligation or liability of
Borrower owed to Beneficiary and any affiliate of Fifth Third Bancorp, however
created, of every kind and description, whether now existing or hereafter
arising and whether direct or indirect, primary or as guarantor or surety,
absolute or contingent, due or to become due, liquidated or unliquidated,
matured or unmatured, participated in whole or in part, created by trust
agreement, lease, overdraft, agreement, or otherwise, whether or not secured by
additional collateral, whether originated with Beneficiary or owed to others and
acquired by Beneficiary by purchase, assignment or otherwise, and including,
without limitation, all loans, advances, indebtedness and each and every other
obligation or liability arising under the Loan Documents, letters of credit now
or hereafter issued by Beneficiary or any affiliate of Fifth Third Bancorp for
the benefit of or at the request of Borrower, all obligations to perform or
forbear from performing acts, and all agreements, instruments and documents
evidencing, guarantying, securing or otherwise executed in connection with any
of the foregoing, together with any amendments, modifications, and restatements
thereof, and all expenses and attorneys' fees incurred or other sums disbursed
by Beneficiary or any affiliate of Fifth Third Bancorp under
this Guaranty or any other document, instrument or agreement related to any of
the foregoing (collectively, the "Obligations").
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(b) This Guaranty is a continuing guaranty of payment, and not merely
of collection, that shall remain in full force and effect until expressly
terminated in writing by Beneficiary, notwithstanding the fact that no
Obligations may be outstanding from time to time. Such termination by
Beneficiary shall be applicable only to transactions having their inception
after the effective date thereof, and shall not affect the enforceability of
this Guaranty with regard to any Obligations arising out of transactions having
their inception prior to such effective date, even if such Obligations shall
have been modified, renewed, compromised, extended, otherwise amended or
performed by Beneficiary subsequent to such termination. In the absence of any
termination of this Guaranty as provided above, Guarantor agrees that
Guarantor's obligations hereunder shall not be deemed discharged or satisfied
until the Obligations are fully paid and performed, and no such payments or
performance with regard to the Obligations is subject to any right on the part
of any person whomsoever, including but not limited to any trustee in
bankruptcy, to recover any of such payments. If any such payments are so set
aside or settled without litigation, all of which is within Beneficiary's
discretion, Guarantor shall be liable for the full amount Beneficiary is
required to repay, plus costs, interest, reasonable attorneys' fees and any and
all expenses that Beneficiary paid or incurred in connection therewith. A
successor of Borrower, including Borrower in its capacity as debtor in a
bankruptcy reorganization case, shall not be considered to be a different person
than Borrower; and this Guaranty shall apply to all Obligations incurred by such
successor.
(c) Guarantor agrees that Guarantor is directly and primarily liable
to Beneficiary and that the Obligations hereunder are independent of the
Obligations of Borrower, or of any other guarantor. The liability of Guarantor
hereunder shall survive discharge or compromise of any Obligation of Borrower in
bankruptcy or otherwise. Beneficiary shall not be required to prosecute or seek
to enforce any remedies against Borrower or any other party liable to
Beneficiary on account of the Obligations, or to seek to enforce or resort to
any remedies with respect to any collateral granted to Beneficiary by Borrower
or any other party on account of the Obligations, as a condition to payment or
performance by Guarantor under this Guaranty.
(d) Beneficiary may, without notice or demand and without affecting
its rights hereunder, from time to time: (i) renew, extend, accelerate or
otherwise change the amount of, the time for payment of, or other terms relating
to, any or all of the Obligations, or otherwise modify, amend or change the
terms of the Loan Documents or any other document or instrument evidencing,
securing or otherwise relating to the Obligations,(ii) take and hold collateral
for the payment of the Obligations guaranteed hereby, and exchange, enforce,
waive, and release any such collateral, and apply such collateral and direct the
order or manner of sale thereof as Beneficiary in its discretion may determine.
Accordingly, Guarantor hereby waives notice of any and all of the foregoing.
(e) Guarantor hereby waives all defenses, counterclaims and off-sets
of any kind or nature, whether legal or equitable, that may arise: (i) directly
or indirectly from the present or future lack of validity, binding effect or
enforceability of the Loan Documents or any other document or instrument
evidencing, securing or otherwise relating to the Obligations, (ii)
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from Beneficiary's impairment of any collateral, including the failure to record
or perfect the Beneficiary's interest in the collateral, or (iii) by reason of
any claim or defense based upon an election of remedies by Beneficiary in the
event such election may, in any manner, impair, affect, reduce, release, destroy
or extinguish any right of contribution or reimbursement of Guarantor, or any
other rights of the Guarantor to proceed against any other guarantor, or against
any other person or any collateral.
(f) Guarantor hereby waives all presentments, demands for performance
or payment, notices of nonperformance, protests, notices of protest, notices of
dishonor, notices of default or nonpayment, notice of acceptance of this
Guaranty, and notices of the existence, creation, or incurring of new or
additional Obligations, and all other notices or formalities to which Guarantor
may be entitled, and Guarantor hereby waives all suretyship defenses, including
but not limited to all defenses set forth in the Uniform Commercial Code as in
effect as of the date hereof in the State of Ohio, (the "Ohio Uniform Commercial
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Code") to the full extent such a waiver is permitted thereby.
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(g) Guarantor hereby irrevocably waives all legal and equitable
rights to recover from Borrower any sums paid by the Guarantor under the terms
of this Guaranty, including without limitation all rights of subrogation and all
other rights that would result in Guarantor being deemed a creditor of Borrower
under the federal Bankruptcy Code or any other law, and Guarantor hereby waives
any right to assert in any manner against Beneficiary any claim, defense,
counterclaim and off-set of any kind or nature, whether legal or equitable, that
Guarantor may now or at any time hereafter have against Borrower or any other
party liable to Beneficiary.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Guarantor hereby
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represents, warrants and covenants as follows:
(a) Guarantor is duly organized, validly existing and in good
standing under the laws of the state of its organization, has the power and
authority to carry on its business and to enter into and perform this Guaranty,
and is qualified and licensed to do business in each jurisdiction in which such
qualification or licensing is required.
(b) The execution, delivery and performance by Guarantor of this
Guaranty have been duly authorized by all necessary company action, and shall
not violate any provision of law or regulation applicable to Guarantor, or the
articles of organization or operating agreement of Guarantor, or any writ or
decree of any court or governmental instrumentality, or any instrument or
agreement to which Guarantor is a party or by which Guarantor may be bound; this
Guaranty is a legal, valid and binding obligation of said Guarantor, enforceable
in accordance with its terms; and there is no action or proceeding before any
court or governmental body or agency now pending that may materially adversely
affect the condition (financial or otherwise) of Guarantor.
3. EVENTS OF DEFAULT. Any of the following occurrences shall constitute
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an "Event of Default" under this Guaranty:
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(a) An Event of Default occurs under the terms of the Loan Documents or
any other document or instrument evidencing, securing or otherwise
relating to the Obligations, as "Event of Default" shall be defined
therein.
(b) Guarantor shall fail to observe or perform any covenant, condition, or
agreement under this Guaranty for a period of thirty (30) days after
date of such breach, or any representation or warranty of Guarantor
set forth in this Guaranty shall be materially inaccurate or
misleading when made or delivered.
(c) The death, legal incompetence or dissolution of Guarantor, of the
general partner thereof, or of any endorser or other guarantor of the
Obligations, or the merger or consolidation of any of the foregoing
with a third party, or the lease, sale or other conveyance of a
material part of the assets or business of any of the foregoing to a
third party outside the ordinary course of its business, or the lease,
purchase or other acquisition of a material part of the assets or
business of a third party by any of the foregoing.
(d) The default by Guarantor under the terms of any indebtedness of
Guarantor now or hereafter existing, which default has not been cured
within any time period permitted pursuant to the terms and conditions
of such indebtedness or the occurrence of an event which gives any
creditor the right to accelerate the maturity of any such
indebtedness.
(e) The commencement by Guarantor of a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect; or the entry of a decree or order for relief in respect of
Guarantor in a case under any such law or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other
similar official) of Guarantor or for any substantial part of
Guarantor's property, or ordering the wind-up or liquidation of
Guarantor's affairs; or the filing and pendency for 30 days without
dismissal of a petition initiating an involuntary case under any such
bankruptcy, insolvency or similar law; or the making by Guarantor of
any general assignment for the benefit of creditors; or the failure of
Guarantor generally to pay Guarantor's debts as such debts become due;
or the taking of action by Guarantor in furtherance of any of the
foregoing.
(f) The revocation or attempted revocation of this Guaranty by Guarantor
before the termination of this Guaranty in accordance with its terms,
or the assignment or attempted assignment of this Guaranty by
Guarantor.
4. REMEDIES.
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(a) Whenever any Event of Default as defined herein shall have happened,
Beneficiary, in its sole discretion, may take any remedial action permitted by
law or in
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equity or by the Loan Documents or any other document or instrument
evidencing, securing or otherwise relating to the Obligations, including
demanding payment in full of all sums guaranteed hereby, plus any accrued
interest or other expenses.
(b) If Beneficiary should employ attorneys or incur other expenses
for the enforcement of this Guaranty, Guarantor, on demand therefor, shall
reimburse the reasonable fees of such attorneys and such other expenses to
the extent permitted by law.
(c) No remedy set forth herein is exclusive of any other
available remedy or remedies, but each is cumulative and in addition to
every other remedy given under this Guaranty or now or hereafter existing
at law or in equity or by statute. No delay or omission on the part of
Beneficiary to exercise any right or remedy shall be construed to be a
waiver thereof, but any such right or remedy may be exercised from time to
time and as often as may be deemed expedient thereby, and a waiver on any
one occasion shall be limited to that particular occasion.
5. FINANCIAL CONDITION OF BORROWER. Guarantor is presently informed of
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the financial condition of Borrower and of all other circumstances that a
diligent inquiry would reveal and which would bear upon the risk of nonpayment
of any of the Obligations. Guarantor hereby covenants that Guarantor shall
continue to keep informed of such matters, and hereby waives Guarantor's right,
if any, to require Beneficiary to disclose any present or future information
concerning such matters including, but not limited to, the release of or
revocation by any other guarantor.
6. SUBORDINATION. All indebtedness and liability now or hereafter owing
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by Borrower to Guarantor is hereby postponed and subordinated to the Obligations
owing to Beneficiary; and such indebtedness and liability to Guarantor, if
Beneficiary so requests, shall be collected, enforced and received by Guarantor
as trustee for Beneficiary and be paid over to Beneficiary on account of the
Obligations.
7. NOTICES. Any notices under or pursuant to this Guaranty shall be
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deemed duly sent when delivered in hand or when mailed by registered or
certified mail, return receipt requested, addressed as follows:
To Guarantor: DIRECT III MARKETING, INC.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
To Beneficiary: FIFTH THIRD BANK
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Either party may change such address by sending notice of the change
to the other party.
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8. MISCELLANEOUS.
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(a) This Guaranty may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and
the same instrument.
(b) This Guaranty is the complete agreement of the parties hereto and
supersedes all previous understandings and agreements relating to the
subject matter hereof. Neither this Guaranty nor any of the terms hereof
may be terminated, amended, supplemented, waived or modified orally, but
only by an instrument in writing signed by the party against whom
enforcement of the termination, amendment, supplement, waiver or
modification is sought.
(c) As the context herein requires, the singular shall include the plural and
one gender shall include one or both other genders.
(d) This Guaranty shall inure to the benefit of Beneficiary's successors and
assigns and shall be binding upon the heirs, executors, administrators and
successors of Guarantor. This Guaranty is not assignable by Guarantor.
(e) If any provision of this Guaranty or the application thereof to any person
or circumstance is held invalid, the remainder of this Guaranty and the
application thereof to other persons or circumstances shall not be affected
thereby.
(f) This Guaranty shall be governed by and construed in accordance with the law
of the State of Ohio. Guarantor agrees that the state and federal courts
for the County in which the Beneficiary is located or any other court in
which Beneficiary initiates proceedings have exclusive jurisdiction over
all matters arising out of this Guaranty.
(g) GUARANTOR AND BENEFICIARY HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY
MATTERS ARISING IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS
RELATED THERETO.
(h) This Guaranty may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and
the same instrument. This Guaranty is the complete agreement of the parties
hereto and supersedes all previous understandings and agreements relating
to the subject matter hereof; neither this Guaranty nor any of the terms
hereof may be terminated, amended, supplemented, waived or modified orally,
but only by an instrument in writing signed by the party against whom
enforcement of the termination, amendment, supplement, waiver or
modification is sought. As the context requires, the singular shall include
the plural and one gender shall include one or both other genders. This
Guaranty shall inure to the benefit of the Beneficiary's successors and
assigns and shall be binding upon the heirs, executors, administrators and
successors of the Guarantor. This Guaranty is nonassignable by the
Guarantor. If any provision of this Guaranty or the application thereof to
any person or circumstance is held invalid, the remainder of this Guaranty
and the application thereof to other persons or circumstances shall not be
affected thereby. This Guaranty shall be governed by and construed in
accordance with the law of the State of Ohio. Guarantor agrees that the
state and federal courts in ▇▇▇▇▇▇▇▇ County, Ohio or any other court in
which Beneficiary initiates proceedings have exclusive jurisdiction over
all matters arising out of this Guaranty.
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GUARANTOR AND BENEFICIARY HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY
MATTERS ARISING IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS
RELATED THERETO.
(i) Guarantor authorizes any attorney of record to appear for it in any court
of record in the State of Ohio, after an Obligation becomes due and payable
whether by its terms or upon default, waive the issuance and service of
process, and release all errors, and confess a judgment against it in favor
of the holder of such Obligation, for the principal amount of such
Obligation plus interest thereon, together with court costs and attorneys'
fees. Stay of execution and all exemptions are hereby waived. If an
Obligation is referred to an attorney for collection, and the payment is
obtained without the entry of a judgment, the obligors shall pay to the
holder of such obligation its attorneys' fees. GUARANTOR AGREES THAT AN
ATTORNEY WHO IS COUNSEL TO BENEFICIARY OR ANY OTHER HOLDER OF SUCH
OBLIGATION MAY ALSO ACT AS ATTORNEY OF RECORD FOR GUARANTOR WHEN TAKING THE
ACTIONS DESCRIBED ABOVE IN THIS PARAGRAPH. GUARANTOR AGREES THAT ANY
ATTORNEY TAKING SUCH ACTIONS MAY BE PAID FOR THOSE SERVICES BY BENEFICIARY
OR THE HOLDER OF SUCH OBLIGATION. GUARANTOR WAIVES ANY CONFLICT OF INTEREST
THAT MAY BE CREATED BECAUSE THE ATTORNEY WHO ACTS FOR GUARANTOR PURSUANT TO
THIS PARAGRAPH IS ALSO REPRESENTING BENEFICIARY OR THE HOLDER OF SUCH
OBLIGATION, OR BECAUSE SUCH ATTORNEY IS BEING PAID BY BENEFICIARY OR THE
HOLDER OF SUCH OBLIGATION.
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WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND
COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed
as of the date first above written.
GUARANTOR:
DIRECT III MARKETING, INC.
By: ________________________________
Title: ________________________________
Accepted this _____ day of September, 2001.
BENEFICIARY:
FIFTH THIRD BANK
By: ________________________________
Title: ________________________________
[Signature page to Guaranty]
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