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Exhibit
10.3
GUARANTY OF
PAYMENT
This GUARANTY OF PAYMENT (as
the same may from time to time be amended, restated or otherwise
modified, this “Agreement”) is made as of the 12
th day of July, 2007, by I-VENTURE MANAGEMENT LLC,
a Delaware limited liability company (“Guarantor”), in
favor of KEYBANK NATIONAL ASSOCIATION, as the administrative agent
under the Credit Agreement, as hereinafter defined
(“Agent”), for the benefit of the Lenders, as
hereinafter defined.
1. Recitals
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JUPITERMEDIA CORPORATION, a
Delaware corporation (together with its successors and assigns,
“Borrower”), is entering into that certain Credit and
Security Agreement, dated as of July 12, 2007, with the
lenders from time to time listed on Schedule 1 thereto
(together with their respective successors and assigns and any
other additional lenders that become party to the Credit Agreement,
collectively, the “Lenders” and, individually, each a
“Lender”), Agent, and Citizens Bank, N.A., as the
syndication agent (as the same may from time to time be amended,
restated or otherwise modified, the “Credit
Agreement”). Guarantor desires that the Lenders grant the
financial accommodations to Borrower as described in the Credit
Agreement. Except as specifically defined herein, capitalized terms
used herein that are defined in the Credit Agreement shall have
their respective meanings ascribed to them in the Credit
Agreement.
Guarantor, a subsidiary of
Borrower whose financing is provided by the Loans and Letters of
Credit, deems it to be in the direct pecuniary and business
interests of Guarantor that Borrower obtain from the Lenders the
Commitment and the Loans and Letters of Credit provided for in the
Credit Agreement.
Guarantor understands that
the Lenders are willing to enter into the Credit Agreement only
upon certain terms and conditions, one of which is that Guarantor
guarantee the payment of the Obligations, as hereinafter defined,
and this Agreement is being executed and delivered in consideration
of the Lenders entering into the Credit Agreement and for other
valuable consideration.
2. Definitions . As
used in this Agreement, the following terms shall have the
following meanings:
“Collateral”
means, collectively, all property, if any, securing the Obligations
or any part thereof at the time in question.
“Obligations”
means, collectively, (a) all Indebtedness and other
obligations incurred by Borrower to Agent, the Fronting Lender, the
Swing Line Lender or any Lender pursuant to the Credit Agreement,
and includes the principal of and interest on all Loans and all
obligations pursuant to Letters of Credit; (b) each extension,
renewal or refinancing of any of the foregoing, in whole or in
part; (c) the commitment fees, any prepayment fees and any
other fees payable
pursuant to the Credit Agreement, and
all fees and charges in connection with the Letters of Credit; and
(d) every other liability, now or hereafter owing to Agent or
any Lender by any Obligor pursuant to the Credit Agreement or any
other Loan Document; and (e) all Related Expenses.
“Obligor” means
Borrower or any other Credit Party.
3. Guaranty of the
Obligations . Guarantor hereby absolutely and unconditionally
guarantees (as a guaranty of payment and not merely a guaranty of
collection) the prompt payment in full of all of the Obligations as
and when the respective parts thereof become due and payable. If
the Obligations, or any part thereof, shall not be paid in full
when due and payable, Agent, on behalf of the Lenders, in each
case, shall have the right to proceed directly against Guarantor
under this Agreement to collect the payment in full of the
Obligations, regardless of whether or not Agent, on behalf of the
Lenders, shall have theretofore proceeded or shall then be
proceeding against Borrower or any other Obligor or Collateral, if
any, or any of the foregoing, it being understood that Agent, on
behalf of the Lenders, in its sole discretion, may proceed against
any Obligor and any Collateral, and may exercise each right, power
or privilege that Agent or the Lenders may then have, either
simultaneously or separately, and, in any event, at such time or
times and as often and in such order as Agent, on behalf of the
Lenders, in its sole discretion, may from time to time deem
expedient to collect the payment in full of the Obligations.
Guarantor agrees that all payments made by Guarantor under this
Agreement shall be made free and clear of, and without deduction or
withholding for or on account of any Taxes or Other Taxes, in
accordance with Section 3.2 of the Credit
Agreement.
4. Payments
Conditional . Whenever Agent or any Lender shall credit any
payment to the Obligations or any part thereof, whatever the source
or form of payment, the credit shall be conditional as to Guarantor
unless and until the payment shall be final and valid as to all the
world. Without limiting the generality of the foregoing, Guarantor
agrees that if any check or other instrument so applied shall be
dishonored by the drawer or any party thereto, or if any proceeds
of Collateral or payment so applied shall thereafter be recovered
by any trustee in bankruptcy or any other Person, each Lender, in
each case, may reverse any entry relating thereto on its books and
Guarantor shall remain liable therefor, even if such Lender may no
longer have in its possession any instrument evidencing the
Obligations to which the payment in question was
applied.
5. Guarantor’s
Obligations Absolute and Unconditional . Regardless of the
duration of time, regardless of whether Borrower may from time to
time cease to be indebted to the Lenders and irrespective of any
act, omission or course of dealing whatever on the part of Agent or
any Lender, Guarantor’s liabilities and other obligations
under this Agreement shall remain in full effect until the payment
in full of the Obligations. Without limiting the generality of the
foregoing:
5.1. Lenders Have No Duty
to Make Advances . Without limiting the obligations of Agent
and the Lenders under the Credit Agreement, no Lender shall at any
time be under any duty to Guarantor to grant any financial
accommodation to Borrower, irrespective of any duty or
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commitment of any of the Lenders to
Borrower, or to follow or direct the application of the proceeds of
any such financial accommodation;
5.2. Guarantor’s
Waiver of Notice, Presentment . Guarantor waives
(a) notice of the granting of any Loan to Borrower, the
issuance of any Letter of Credit or the incurring of any other
Indebtedness by Borrower or the terms and conditions thereof,
(b) presentment, demand for payment and notice of dishonor of
the Obligations or any part thereof, or any other Indebtedness
incurred by Borrower to any of the Lenders, (c) notice of any
indulgence granted to any Obligor, and (d) any other notice to
which Guarantor might, but for this waiver, be entitled;
5.3. Lenders’ Rights
Not Prejudiced by Action or Omission . Agent and the Lenders,
in their sole discretion, may, pursuant to the Credit Agreement,
without any prejudice to their rights under this Agreement, at any
time or times, without notice to or the consent of Guarantor,
(a) grant Borrower whatever financial accommodations that
Agent and the Lenders may from time to time deem advisable, even if
Borrower might be in default in any respect and even if those
financial accommodations might not constitute Indebtedness the
payment of which is guaranteed hereunder, (b) assent to any
renewal, extension, consolidation or refinancing of the
Obligations, or any part thereof, (c) forbear from demanding
security, if Agent and the Lenders shall have the right to do so,
(d) release any Obligor or Collateral or assent to any
exchange of Collateral, if any, irrespective of the consideration,
if any, received therefor, (e) grant any wa
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