Exhibit 10.11
AMENDED AND RESTATED CONTINUING GUARANTY AGREEMENT
THIS AMENDED AND RESTATED CONTINUING GUARANTY AGREEMENT (the "Guaranty")
made as of the 26/th/ day of March, 2002, by and between DIRECT III MARKETING,
INC., a Delaware corporation doing business as Education Lending Group, Inc.
("Guarantor"), and FIFTH THIRD BANK, an Ohio banking corporation, for itself and
as agent for any affiliate of Fifth Third Bancorp ("Beneficiary").
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 ("Grad Partners"),
and to STUDENT LOAN XPRESS, INC., a Delaware corporation ("Xpress") (each of
Grad Partners and Xpress hereinafter, from time to time, a "Borrower", and
collectively, from time to time, the "Borrowers") pursuant to that certain
Second Amended and Restated Credit Agreement, dated of even date herewith, by
and among Grad Partners, Xpress, and Beneficiary, together with the Revolving
Notes, dated of even date herewith, executed by Grad Partners and Xpress, each
for a maximum principal amount of $15,000,000, less the amount borrowed by the
other Borrower, and each made payable to the order of Beneficiary (the "Notes"),
and all agreements, instruments and documents executed or delivered in
connection with any of the foregoing or otherwise related thereto (together with
any amendments, modifications, or restatements thereof, the "Loan Documents");
WHEREAS, Guarantor is affiliated with each 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;
WHEREAS, Guarantor has executed that certain Continuing Guaranty Agreement,
dated September 17, 2001, by and between Guarantor and Beneficiary, guaranteeing
the full and prompt payment and performance when due of the Obligations of Grad
Partners; and
WHEREAS, Guarantor now desires to guarantee the Obligations of Xpress, in
addition to the Obligations of Grad Partners.
NOW, THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, Guarantor hereby guarantees, promises and undertakes as
follows:
1. GUARANTY.
(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 each 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 either 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").
(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 either Borrower, including either Borrower in its capacity as
debtor in a bankruptcy reorganization case, shall not be considered to be a
different person than such 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 either
Borrower in bankruptcy or otherwise. Beneficiary shall not be required to
prosecute or seek to enforce any remedies against either 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 either Borrower or any other party on account of the Obligations, as a
condition to payment or performance by Guarantor under this Guaranty.
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(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) 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
Code") to the full extent such a waiver is permitted thereby.
(g) Guarantor hereby irrevocably waives all legal and equitable
rights to recover from either Borrower or both Borrowers 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 either Borrower or both Borrowers 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 either Borrower or both Borrowers or
against any other party liable to Beneficiary.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Guarantor hereby
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
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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
an "Event of Default" under this Guaranty:
(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
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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.
(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 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
the financial condition of each 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
by either Borrower or both Borrowers 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
deemed duly sent when delivered in hand or when mailed by registered or
certified mail, return receipt requested, addressed as follows:
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To Guarantor: DIRECT III MARKETING, INC.
dba Education Lending Group, Inc.
00000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx xxXxxx
To Beneficiary: FIFTH THIRD BANK
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxx
Either party may change such address by sending notice of the change to the
other party.
8. MISCELLANEOUS.
(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.
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(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 Xxxxxxxx County, Ohio or any other court in which
Beneficiary initiates proceedings have exclusive jurisdiction over all matters
arising out of this Guaranty. 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.
dba Education Lending Group, Inc.
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Title: Senior VP/Finance
-----------------------------
Accepted this 26th day of March, 2002.
BENEFICIARY:
FIFTH THIRD BANK
By: /s/ Xxxxxx Xxxxx
--------------------------------
Title: Senior Vice President
-----------------------------
[Signature page to Guaranty]
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