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EXHIBIT 10.5
AMENDED AND RESTATED GUARANTY
AGREEMENT
February 27, 2008
Think
Partnership Inc.
15550
Lightwave Drive, 3 rd Floor
Clearwater,
Florida 37760
(“Borrower”, and collectively with each of
the
subsidiaries of Borrower party hereto, the
“Guarantors”)
Wachovia Bank, National Association
301 South Tryon Street
Charlotte, North Carolina 28202
(Hereinafter referred to as
“Bank”)
To induce Bank to make, extend or renew loans,
advances, credit, or other financial accommodations to or for
the benefit of Borrower, and in consideration of loans,
advances, credit, or other financial accommodations made,
extended or renewed to or for the benefit of Borrower, each
Guarantor hereby absolutely, irrevocably and unconditionally
guarantees to Bank and its successors, assigns and affiliates
the timely payment and performance of all liabilities and
obligations of Borrower and each Guarantor to Bank under the
Amended and Restated Revolving Credit Promissory Note in the
amount of $15,000,000.00 dated as of the date hereof (as
amended, restated, supplemented or modified from time to time,
the “Revolving Note”), the Amended and Restated Term
Promissory Note in the amount of $5,000,000.00 dated as of the
date hereof (as amended, restated, supplemented or modified from
time to time, the “Term Note” and, collectively with
the Revolving Note, the “Notes”), the Loan Agreement
dated as of the dater hereof (as amended, restated, supplemented
or modified from time to time, the “Loan
Agreement”), the Loan Documents and all obligations with
respect to any swap agreements (as defined in 11 U.S. Code
§ 101), and all extensions, modifications and renewals
thereof, including without limitation all principal, interest,
charges, and costs and expenses incurred thereunder (including
attorneys’ fees and other costs of collection incurred,
regardless of whether suit is commenced) (collectively, the
“Guaranteed Obligations”).
Each Guarantor further covenants and agrees:
GUARANTOR’S LIABILITY. This
Guaranty Agreement (this “Guaranty”) is a continuing
and unconditional guaranty of payment and performance and not of
collection. The parties to this Guaranty are jointly and
severally obligated hereunder. This Guaranty does not impose any
obligation on Bank to extend or continue to extend credit or
otherwise deal with Borrower at any subsequent time. This
Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of the Guaranteed
Obligations is rescinded, avoided or for any other reason must
be returned by Bank, and the returned payment shall remain
payable as part of the Guaranteed Obligations, all as though
such payment had not been made. Except to the extent the
provisions of this Guaranty give Bank additional rights, this
Guaranty shall not be deemed to supersede or replace any other
guaranties given to Bank by any Guarantor; and the obligations
guaranteed hereby shall be in addition to any other obligations
guaranteed by Guarantor pursuant to any other agreement of
guaranty given to Bank and other guaranties of the
Guaranteed
Obligations. The obligations of each of the
Guarantors hereunder shall be limited to an aggregate amount
equal to the largest amount that would not render 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 provisions
of any similar federal or state law.
TERMINATION OF GUARANTY. This Guaranty is
a continuing and irrevocable guaranty of all Guaranteed
Obligations now or hereafter existing and shall remain in full
force and effect until all Guaranteed Obligations and any other
amounts payable under this Guaranty are indefeasibly paid and
performed in full and any commitments of the Bank or facilities
provided by Bank with respect to the Guaranteed Obligations are
terminated (other than those obligations that expressly are
stated to survive termination under the Loan Documents).
CONSENT TO MODIFICATIONS. Each Guarantor
consents and agrees that Bank may from time to time, in its sole
discretion, without affecting, impairing, lessening or releasing
the obligations of any Guarantor hereunder (a) extend or modify
the time, manner, place or terms of payment or performance
and/or otherwise change or modify the credit terms of the
Guaranteed Obligations; (b) increase, renew, or enter into a
novation of the Guaranteed Obligations; (c) waive or consent to
the departure from terms of the Guaranteed Obligations; (d)
permit any change in the business or other dealings and
relations of Borrower or any other guarantor with Bank; (e)
proceed against, exchange, release, realize upon, or otherwise
deal with in any manner any collateral that is or may be held by
Bank in connection with the Guaranteed Obligations or any
liabilities or obligation of Guarantor; and (f) proceed against,
settle, release, or compromise with Borrower, any insurance
carrier, or any other person or entity liable as to any part of
the Guaranteed Obligations, and/or subordinate the payment of
any part of the Guaranteed Obligations to the payment of any
other obligations, which may at any time be due or owing to
Bank; all in such manner and upon such terms as Bank may deem
appropriate, and without notice to or further consent from
Guarantor. No invalidity, irregularity, discharge or
unenforceability of, or action or omission by Bank relating to
any part of the Guaranteed Obligations or any security therefor
shall affect or impair this Guaranty.
WAIVERS AND ACKNOWLEDGMENTS. Each
Guarantor waives and releases the following rights, demands, and
defenses any Guarantor may have with respect to Bank and
collection of the Guaranteed Obligations: (a) promptness and
diligence in collection of any of the Guaranteed Obligations
from Borrower or any other person liable thereon, and in
foreclosure of any security interest and sale of any property
serving as collateral for the Guaranteed Obligations; (b) any
law or statute that requires that Bank make demand upon, assert
claims against, or collect from Borrower or other persons or
entities, foreclose any security interest, sell collateral,
exhaust any remedies, or take any other action against Borrower
or other persons or entities prior to making demand upon,
collecting from or taking action against Guarantor with respect
to the Guaranteed Obligations, including any such rights
Guarantor might otherwise have had under Va. Code §§
49-25 and 49-26, et seq. , N.C.G.S. §§ 26-7,
et seq. , Tenn. Code Ann § 47-12-101, O.C.GA
§10-7 24 and any successor statute and any other applicable
law; (c) any law or statute that requires that Borrower or any
other person be joined in, notified of or made part of any
action against Guarantor; (d) that Bank preserve, insure or
perfect any security interest in the collateral or sell or
dispose of collateral in a particular manner or at a particular
time; (e) notice of extensions, modifications, renewals, or
novations of the Guaranteed Obligations, of any new transactions
or other relationships between Bank, Borrower and/or any
guarantor, and of changes in the financial condition of,
ownership of, or business structure of Borrower or any other
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guarantor, (f) presentment, protest, notice of
dishonor, notice of default, demand for payment, notice of
intention to accelerate maturity, notice of acceleration of
maturity, notice of sale, and all other notices of any kind
whatsoever; (g) the right to assert against Bank any defense
(legal or equitable), set-off, counterclaim, or claim that
Guarantor may have at any time against Borrower or any other
party liable to Bank other than prior payment; (h) all defenses
relating to invalidity, insufficiency, unenforceability,
enforcement, release or impairment of Bank’s lien on any
collateral, of the Loan Documents, or of any other guaranties
held by Bank; (i) any claim or defense that acceleration of
maturity of the Guaranteed Obligations is stayed against
Guarantor because of the stay of assertion or of acceleration of
claims against any other
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