EXHIBIT 10.3
GUARANTY
THIS GUARANTY is entered into as of the 26th day of June, 2008, by EACH
OF THE UNDERSIGNED (each a "Guarantor" and, collectively, the "Guarantors") in
favor of and for the benefit of SOVEREIGN BANK, a federal savings bank (the
"Lender").
RECITALS
A. Pursuant to a Credit Agreement, dated as of June 26, 2008, by
and between CoActive Marketing Group, Inc., a Delaware corporation (the
"Company") and the Lender (as the same may be amended, restated, modified or
supplemented from time to time, the "Credit Agreement"), the Company will
receive loans and other financial accommodations from the Lender and will incur
Obligations.
B. The Guarantors, being members of a group of entities
affiliated with the Company and being engaged in related businesses will receive
direct and indirect benefits from such loans and financial accommodations.
C. Each Guarantor wishes to grant the Lender security and
assurance in order to secure the payment and performance by the Company of all
of its present and future Obligations, and, to that effect, to guaranty the
Obligations as set forth herein.
Accordingly, each Guarantor hereby agrees as follows:
1. Guaranty.
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(a) Each Guarantor, jointly and severally, hereby
unconditionally and irrevocably guarantees to the Lender the full and punctual
payment by the Company, when due, whether at the stated due date, by
acceleration or otherwise, of all Obligations of the Company, howsoever created,
arising or evidenced, voluntary or involuntary, whether direct or indirect,
absolute or contingent now or hereafter existing or owing to the Lender
(collectively, the "Guaranteed Obligations"). This Guaranty is an absolute,
unconditional, irrevocable and continuing guaranty of payment and not of
collection of the Guaranteed Obligations and includes Guaranteed Obligations
arising from successive transactions which shall either continue such Guaranteed
Obligations or from time to time renew such Guaranteed Obligations after the
same have been satisfied. This Guaranty is in no way conditioned upon any
attempt to collect from the Company or any other Person or upon any other event
or contingency, and shall be binding upon and enforceable against each Guarantor
without regard to the validity or enforceability of the Credit Agreement, the
Notes or any other Loan Document or of any term of any thereof. If for any
reason the Company shall fail or be unable duly and punctually to pay any of the
Obligations after all applicable grace and/or notice and cure periods, if any,
have expired (including, without limitation amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. ss. 362(a)), each Guarantor will forthwith pay the same, in
cash, immediately upon demand.
(b) In the event the Credit Agreement, any Note or any
other Loan Document shall be terminated as a result of the rejection thereof by
any trustee, receiver or liquidating agent of the Company or any of its
properties in any bankruptcy, insolvency, reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar proceeding, each
Guarantor's obligations hereunder shall continue to the same extent as if the
Credit Agreement, such Notes or such other Loan Document had not been so
rejected.
(c) Each Guarantor shall pay all costs, expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
and damages incurred in connection with the enforcement of the Guaranteed
Obligations of the Company under the Credit Agreement, the Notes or any other
Loan Document to the extent that such costs, expenses and damages are not paid
by the Company pursuant to the respective documents, and such costs, fees and
disbursements are incurred in connection with the enforcement of the obligations
of each Guarantor under this Guaranty.
(d) Each Guarantor further agrees that if any payment
made by the Company or any Guarantor to the Lender on any Obligation or
Guaranteed Obligation, as applicable, is rescinded, recovered from or repaid by
the Lender, in whole or in part, in any bankruptcy, insolvency or similar
proceeding instituted by or against the Company or any Guarantor, this Guaranty
shall continue to be fully applicable to such Guaranteed Obligation to the same
extent as though the payment so recovered or repaid had never originally been
made on such Guaranteed Obligation.
(e) The Lender, and any Affiliate of the Lender, are
hereby authorized at any time and from time to time following the occurrence of
an Event of Default, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the Lender,
or any Affiliate of a Lender, to or for the credit or the account of any
Guarantor against any of and all the obligations of any Guarantor now or
hereafter existing under this Guaranty, irrespective of whether or not the
Lender shall have made any demand hereunder and although such obligations may be
unmatured. The rights under this paragraph 1(e) are in addition to other rights
and remedies (including other rights of set off) which the Lender may have.
2. Guaranty Continuing, Absolute, Unlimited.
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The obligations of each Guarantor hereunder shall be
continuing, absolute, irrevocable, unlimited and unconditional, shall not be
subject to any counterclaim, set-off, deduction or defense based upon any claim
any Guarantor or the Company may have against the Lender, the Company or any
other Person, and shall remain in full force and effect without regard to, and,
to the fullest extent permitted by applicable law, shall not be released,
discharged or in any way affected by, any circumstance or condition (whether or
not any Guarantor shall have any knowledge or notice thereof) whatsoever which
might constitute a legal or equitable discharge or defense including, but not
limited to, (a) any express or implied amendment, modification or supplement to
the Credit Agreement, any Note, or any other Loan Document or any other
agreement referred to in any thereof, or any other instrument applicable to the
Company or to the Loans or any part thereof; (b) any failure on the part of the
Company to perform or comply with the Credit Agreement, the Notes or any other
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Loan Document or any failure of any other Person to perform or comply with any
term of the Credit Agreement, the Notes, or any other Loan Document or any other
agreement as aforesaid; (c) any waiver, consent, change, extension, indulgence
or other action or any action or inaction under or in respect of the Credit
Agreement, any Note, or any other Loan Document or any other agreement as
aforesaid, whether or not the Lender, the Company or any Guarantor has notice or
knowledge of any of the foregoing; (d) any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or similar
proceeding with respect to the Company, or its properties or its creditors, or
any action taken by any trustee or receiver or by any court in any such
proceeding; (e) any furnishing or acceptance of additional security or any
release of any security; (f) any limitation on the liability or obligations of
the Company under the Credit Agreement, the Notes or any other Loan Document or
any termination, cancellation, frustration, invalidity or unenforceability, in
whole or in part, of the Credit Agreement, any Note, this Guaranty or any other
Loan Document or any term of any thereof; (g) any lien, charge or encumbrance on
or affecting any Guarantor's or any of the Company's respective assets and
properties; (h) any act, omission or breach on the part of the Lender under the
Credit Agreement, the Notes or any other Loan Document or any other agreement at
any time existing between the Lender and the Company or any law, governmental
regulation or other agreement applicable to the Lender or any Loan; (i) any
claim as a result of any other dealings among the Lender, any Guarantor or the
Company; (j) the assignment of this Guaranty, the Credit Agreement, any Note or
any other Loan Document by the Lender to any other Person; or (k) any change in
the name of the Lender, the Company or any other Person referred to herein.
3. Waiver.
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To the fullest extent permitted by applicable law, each
Guarantor unconditionally waives: (a) notice of any of the matters referred to
in Section 2 hereof; (b) all notices which may be required by statute, rule of
law or otherwise to preserve any rights against any Guarantor hereunder,
including, without limitation, notice of the acceptance of this Guaranty, or the
creation, renewal, extension, modification or accrual of the Guaranteed
Obligations or notice of any other matters relating thereto, any presentment,
demand, notice of dishonor, protest, nonpayment of any damages or other amounts
payable under the Credit Agreement, the Notes or any other Loan Documents; (c)
any requirement for the enforcement, assertion or exercise of any right, remedy,
power or privilege under or in respect of the Credit Agreement, the Notes or any
other Loan Documents, including, without limitation, diligence in collection or
protection of or realization upon the Guaranteed Obligations or any part thereof
or any collateral thereof; (d) any requirement of diligence; (e) any requirement
to mitigate the damages resulting from a default by the Company under the Credit
Agreement, any Note or any other Loan Documents; (f) the occurrence of every
other condition precedent to which any Guarantor or the Company may otherwise be
entitled; (g) the right to require the Lender to proceed against the Company or
any other person liable on the Guaranteed Obligations, to proceed against or
exhaust any security held by the Company or any other Person, or to pursue any
other remedy in the Lender's power whatsoever, and (h) the right to have the
property of the Company first applied to the discharge of the Guaranteed
Obligations.
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The Lender may, at its election, exercise any right or remedy
they may have against the Company without affecting or impairing in any way the
liability of any Guarantor hereunder and each Guarantor waives, to the fullest
extent permitted by applicable law, any defense arising out of the absence,
impairment or loss of any right of reimbursement, contribution or subrogation or
any other right or remedy of any Guarantor against the Company, whether
resulting from such election by the Lender or otherwise. Each Guarantor waives
any defense arising by reason of any disability or other defense of the Company
or by reason of the cessation for any cause whatsoever of the liability, either
in whole or in part, of the Company to the Lender for the Guaranteed
Obligations.
Each Guarantor assumes the responsibility for being and
keeping informed of the financial condition of the Company and all other
circumstances bearing upon the risk of non-payment of the Guaranteed Obligations
and agrees that the Lender shall have no duty to advise any Guarantor of
information regarding any condition or circumstance or any change in such
condition or circumstance. Each Guarantor acknowledges that the Lender has not
made any representations to any Guarantor concerning the financial condition of
the Company.
4. Representations and Covenants of each Guarantor.
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(a) The representations and warranties contained in
Article IV of the Credit Agreement, to the extent they relate to a Guarantor,
are true and correct in all material respects as of the date hereof and the
Lender is entitled to rely on such representations and warranties to the same
extent as though the same were set forth in full herein.
(b) Each Guarantor hereby agrees to perform the covenants
contained in Article VI and Article VII of the Credit Agreement, to the extent
they relate to such Guarantor, and the Lender is entitled to rely on such
agreement to perform such covenants to the same extent as though the same were
set forth in full herein.
5. Payments.
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Each payment by each Guarantor to the Lender under this
Guaranty shall be made in the time, place and manner provided for payments in
the Credit Agreement without set-off or counterclaim to the account at which
such payment is required to be paid by the Company under the Credit Agreement.
6. Parties.
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This Guaranty shall inure to the benefit of the Lender and its
successors, assigns or transferees, and shall be binding upon the Guarantors and
their respective successors and assigns. No Guarantor may delegate or assign any
of its duties or obligations under this Guaranty without the prior written
consent of the Lender.
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7. Notices.
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Any notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing and, unless otherwise
expressly provided herein, shall be conclusively deemed to have been received by
a party hereto and to be effective on the day on which delivered to such party
at the address set forth below, or, in the case of telecopy notice, when
acknowledged as received, or if sent by registered or certified mail, on the
third Business Day after the day on which mailed in the United States, addressed
to such party at said address:
(a) if to the Lender,
Sovereign Bank
000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx XX 00000
Attn: Xx. Xxxxxxx Xxxxxx
Vice President
Telecopy: (000) 000-0000
(b) if to any Guarantor,
c/o CoActive Marketing Group, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx Xxxxxx, Chief Financial Officer
Telecopy: (000) 000-0000
(c) as to each such party at such other address as such
party shall have designated to the other in a written
notice complying as to delivery with the provisions
of this Section 7.
8. Remedies.
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Each Guarantor stipulates that the remedies at law in respect
of any default or threatened default by a Guarantor in the performance of or
compliance with any of the terms of this Guaranty are not and will not be
adequate, and that any of such terms may be specifically enforced by a decree
for specific performance or by an injunction against violation of any such terms
or otherwise.
9. Rights to Deal with the Company.
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At any time and from time to time, without terminating,
affecting or impairing the validity of this Guaranty or the obligations of any
Guarantor hereunder, the Lender may deal with the Company in the same manner and
as fully as if this Guaranty did not exist and shall be entitled, among other
things, to grant the Company, without notice or demand and without affecting any
Guarantor's liability hereunder, such extension or extensions of time to
perform, renew, compromise, accelerate or otherwise change the time for payment
of or otherwise change the terms of indebtedness or any part thereof contained
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in or arising under the Credit Agreement, the Notes or any other Loan Documents,
or to waive any obligation of the Company to perform any act or acts as the
Lender may deem advisable.
10. Subrogation.
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(a) Upon any payment made or action taken by a Guarantor
pursuant to this Guaranty, such Guarantor shall, subject to the provisions of
Sections 10(b) and (c) hereof, be fully subrogated to all of the rights of the
Lender against the Company arising out of the action or inaction of the Company
for which such payment was made or action taken by such Guarantor.
(b) Any claims of such Guarantor against the Company
arising from payments made or actions taken by such Guarantor pursuant to the
provisions of this Guaranty shall be in all respects subordinate to the full and
complete indefeasible payment or performance and discharge, as the case may be,
of all amounts, obligations and liabilities, the payments or performance and
discharge of which are guaranteed by this Guaranty, and no payment hereunder by
a Guarantor shall give rise to any claim of such Guarantor against the Lender.
(c) Notwithstanding anything to the contrary contained in
this Section 10, no Guarantor shall be subrogated to the rights of the Lender
against the Company until all of the Obligations of the Company have been
satisfied in full with the proceeds of a refinancing or otherwise indefeasibly
paid in full, and that subrogation shall be suspended upon the occurrence of the
events described in Section 1(d) until the Lender is indefeasibly paid in full.
11. Survival of Representations, Warranties, etc.
---------------------------------------------
All representations, warranties, covenants and agreements made
herein, including representations and warranties deemed made herein, shall
survive any investigation or inspection made by or on behalf of the Lender and
shall continue in full force and effect until all of the obligations of the
Guarantors under this Guaranty shall be fully performed in accordance with the
terms hereof, and until the payment in full of the Guaranteed Obligations.
12. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OR CHOICE
OF LAW. EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
FEDERAL OR STATE COURT IN THE XXXXX XX XXX XXXX, XXXXXX XX XXX XXXX, XXXXXX OF
NASSAU OR COUNTY OF SUFFOLK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT
AND RELATED TO OR IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
GUARANTOR HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE
OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH FEDERAL OR STATE COURTS, THAT THE
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SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE
OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS GUARANTY OR ANY
DOCUMENT OR ANY INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER THEREOF MAY
NOT BE LITIGATED IN OR BY SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH GUARANTOR AGREES (I) NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY
REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR
JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT
AND (II) NOT TO ASSERT ANY COUNTERCLAIM, IN ANY SUCH SUIT, ACTION OR PROCEEDING.
EACH GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED
OR REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN THIS GUARANTY OR ANY
METHOD AUTHORIZED BY THE LAWS OF NEW YORK. THE LENDER AND EACH GUARANTOR
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS GUARANTY, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY. EXCEPT AS PROHIBITED BY LAW, THE GUARANTORS HEREBY WAIVE ANY RIGHT
THEY MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES.
13. Miscellaneous.
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(a) All capitalized terms used herein and not defined
herein shall have the meanings specified in the Credit Agreement.
(b) This Guaranty is the joint and several obligation of
each Guarantor, and may be enforced against each Guarantor separately, whether
or not enforcement of any right or remedy hereunder has been sought against any
other Guarantor. Each Guarantor acknowledges that its obligations hereunder will
not be released or affected by the failure of the other Guarantors to execute
this Guaranty or by a determination that all or a part of this Guaranty with
respect to any other Guarantor is invalid or unenforceable.
(c) If any term of this Guaranty or any application
thereof shall be invalid or unenforceable, the remainder of this Guaranty and
any other application of such term shall not be affected thereby.
(d) Any term of this Guaranty may be amended, waived,
discharged or terminated only by a written agreement executed by each Guarantor
and by the Lender.
(e) The headings in this Guaranty are for purposes of
reference only and shall not limit or define the meaning hereof.
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(f) No delay or omission by the Lender in the exercise of
any right under this Guaranty shall impair any such right, nor shall it be
construed to be waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise of any other right.
(g) This Guaranty may be executed in two or more
counterparts, each of which shall constitute an original but all of which taken
together shall constitute one and the same agreement.
[the next page is the signature page]
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IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be
executed and delivered as of the day and year first above written.
INMARK SERVICES LLC
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
OPTIMUM GROUP LLC
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
U.S. CONCEPTS LLC
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
DIGITAL INTELLIGENCE GROUP LLC
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
XXXX.XXX LLC
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
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