Exhibit 10.6


 


EXECUTION
COPY


 


GUARANTY AGREEMENT


 


January 19, 2006


 


CGI
Holding Corporation


5
Revere Drive


Suite 510


Northbrook,
Illinois 60062


(“Borrower”,
and collectively with 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 to Bank under the revolving credit promissory note in the original
amount of $15,000,000.00 dated as of the date hereof (the “Revolving Note”) and
the term promissory note in the original amount of $2,500,000.00 dated as of
the date hereof (the “Term Note” and, collectively with the Revolving Note, the
“Notes”), 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Guaranteed Obligations is rescinded, avoided or for any other reason must be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.


 

















 


TERMINATION OF GUARANTY.  Each Guarantor may terminate this
Guaranty only by written notice, delivered personally to or received by
certified or registered United States Mail by an authorized officer of Bank at
the address for notices provided herein. 
Such termination shall be effective with respect to Guaranteed
Obligations arising more than 15 days after the date such written notice is
received by said Bank officer. No Guarantor may terminate this Guaranty as to
Guaranteed Obligations (including any subsequent extensions, modifications or
compromises of the Guaranteed Obligations) then existing, or to Guaranteed
Obligations arising subsequent to receipt by Bank of said notice if such
Guaranteed Obligations are a result of Bank’s obligation to make advances
pursuant to a commitment entered into prior to expiration of the 15 day notice
period, or are a result of advances which are necessary for Bank to protect its
collateral or otherwise preserve its interests. 
Termination of this Guaranty by any single Guarantor will not affect the
existing and continuing obligations of any other Guarantor hereunder.


 


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


 


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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 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 person or
entity for any reason including the bankruptcy or insolvency of that person or
entity; and (j) the benefit of any exemption claimed by Guarantor.  Guarantor acknowledges and represents that
Guarantor has relied upon Guarantor’s own due diligence in making an
independent appraisal of Borrower, Borrower’s business affairs and financial
condition, and any collateral; Guarantor will continue to be responsible for
making an independent appraisal of such matters; and Guarantor has not relied
upon and will not hereafter rely upon Bank for information regarding Borrower
or any collateral.


 


INTEREST AND APPLICATION OF PAYMENTS. 
Regardless of any other provision of this Guaranty or other Loan
Documents, if for any reason the effective interest on any of the Guaranteed
Obligations should exceed the maximum lawful interest, the effective interest
shall be deemed reduced to and shall be such maximum lawful interest, and any
sums of interest which have been collected in excess of such maximum lawful
interest shall be applied as a credit against the unpaid principal balance of
the Guaranteed Obligations.  Monies
received from any source by Bank for application toward payment of the
Guaranteed Obligations may be applied to such Guaranteed Obligations in any
manner or order deemed appropriate by Bank.


 


DEFAULT.  If any of the following events occur, a
default (“Default”) under this Guaranty shall exist: (a) failure of timely
payment or performance of the Guaranteed Obligations or a default under any
Loan Document (after expiration of any applicable grace periods); (b) a
breach of any agreement or representation contained or referred to in the
Guaranty where such representation proves materially false, or any of the Loan
Documents, or contained in any other contract or agreement of any Guarantor
with Bank or its affiliates, whether now existing or hereafter arising; (c) the
dissolution of, termination of existence of, loss of good standing status by
(unless such loss could not have a material adverse effect), appointment of a
receiver for, assignment for the benefit of creditors of, or the commencement
of any insolvency or bankruptcy proceeding by or against any Guarantor or any
general partner of or the holder(s) of the majority ownership interests of any
Guarantor, where, if such proceeding is involuntary, is not dismissed within 30
days of its commencement; and (d) other than as permitted under the definition of “Permitted
Liens” set forth in the Loan Agreement, permit the entry of any monetary
judgment or the assessment against, the filing of any tax lien against, or the
issuance of any writ of garnishment or attachment against any property of or
debts due Borrower and its subsidiaries


 


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If
a Default occurs, after expiration of any applicable grace periods, the
Guaranteed Obligations shall be due immediately and payable without notice,
and, Bank may exercise any rights and remedies as provided in this Guaranty and
other Loan Documents, or as provided at law or equity.  Guarantors shall pay interest on the
Guaranteed Obligations from such Default at the highest rate of interest
charged on any of the Guaranteed Obligations.


 


ATTORNEYS’ FEES AND OTHER COSTS OF COLLECTION. 
Guarantors shall pay all of Bank’s reasonable expenses incurred to
enforce or collect any of the Guaranteed Obligations, including, without
limitation, reasonable arbitration, paralegals’, attorneys’ and experts’ fees
and expenses, whether incurred without the commencement of a suit, in any suit,
arbitration, or administrative proceeding, or in any appellate or bankruptcy
proceeding.


 


SUBORDINATION OF OTHER DEBTS.  Each Guarantor agrees:  (a) to subordinate the obligations now
or hereafter owed by Borrower to such Guarantor and
Subsidiaries (“Subordinated Debt”) to any and all obligations of Borrower to
Bank now or hereafter existing while this Guaranty is in effect, provided however
that such Guarantor may receive regularly scheduled principal and interest
payments on the Subordinated Debt as permitted by the Loan Documents and so
long as (i) all sums due and payable by Borrower to Bank have been paid in
full on or prior to such date, and (ii) no event or condition which
constitutes or which with notice or the lapse or time would constitute an event
of default with respect to the Guaranteed Obligations shall be continuing on or
as of the payment date; (b) such Guarantor will either place a legend
indicating such subordination on every note, ledger page or other document
evidencing any part of the Subordinated Debt or deliver such documents to Bank;
and (c) except as permitted by this paragraph and the Loan Documents, such
Guarantor will not request or accept payment of or any security for any part of
the Subordinated Debt, and any proceeds of the Subordinated Debt paid to such
Guarantor, through error or otherwise, shall immediately be forwarded to Bank
by such Guarantor, properly endorsed to the order of Bank, to apply to the
Guaranteed Obligations.


 


MISCELLANEOUS.  Assignment.  This
Guaranty and other Loan Documents shall inure to the benefit of and be binding
upon the parties and their respective heirs, legal representatives, successors
and assigns.  Bank’s interests in and
rights under this Guaranty and other Loan Documents are freely assignable, in
whole or in part, by Bank.  Any
assignment shall not release any Guarantor from the Guaranteed Obligations.  Applicable Law; Conflict
Between Documents.  This
Guaranty and other Loan Documents shall be governed by and construed under the
laws of the state named in Bank’s address shown above without regard to that
state’s conflict of laws principles.  If
the terms of this Guaranty should conflict with the terms of any commitment
letter that survives closing, the terms of this Guaranty shall control.  Guarantors Accounts.  Except as prohibited by law, each Guarantor
grants Bank a security interest in all of Guarantor’s accounts with Bank and
its affiliates.  Jurisdiction.  Each Guarantor irrevocably agrees to
non-exclusive personal jurisdiction in the state named in Bank’s address shown
above.  Severability.  If any provision of this Guaranty or of the
other Loan Documents shall be prohibited or invalid under applicable law, such
provision shall be ineffective but only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty or other Loan Documents.  Notices.  Any notices to


 


4

















 


Guarantors
shall be sufficiently given if in writing and mailed or delivered to Guarantors’ addresses shown above or such other address as
provided hereunder, and to Bank, if in writing and mailed or delivered to Bank’s
office address shown above or such other address as Bank may specify in writing
from time to time.  In the event that any
Guarantor changes such Guarantor’s address at any time prior to the date the
Guaranteed Obligations are paid in full, such Guarantor agrees to promptly give
written notice of said change of address to Bank by registered or certified
mail, return receipt requested, all charges prepaid.  Plural; Captions.  All references in the Loan Documents to borrower,
guarantor, person, document or other nouns of reference mean both the singular
and plural form, as the case may be, and the term “person” shall mean any
individual person or entity.  The
captions contained in the Loan Documents are inserted for convenience only and
shall not affect the meaning or interpretation of the Loan Documents.  Binding Contract.  Each Guarantor, by execution of, and Bank, by
acceptance of, this Guaranty agrees that each party is bound to all terms and
provisions of this Guaranty.  Amendments, Waivers and Remedies. 
No waivers, amendments or modifications of this Guaranty and
other Loan Documents shall be valid unless in writing and signed by an officer
of Bank.  No waiver by Bank of any
Default shall operate as a waiver of any other Default or the same Default on a
future occasion.  Neither the failure nor
any delay on the part of Bank in exercising any right, power, or privilege
granted pursuant to this Guaranty and other Loan Documents shall operate as a
waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise or the exercise of any other right, power or
privilege.  All remedies available to
Bank with respect to this Guaranty and other Loan Documents and remedies
available at law or in equity shall be cumulative and may be pursued
concurrently or successively.  Loan Documents.  The term “Loan
Documents” refers to all documents executed in connection with the Guaranteed
Obligations and may include, without lien, commitment letters that survive
closing, loan agreements, other guaranty agreements, security agreements,
instruments, financing statements, mortgages, deeds of trust, deeds to secure
debt, letters of credit and any amendments or supplements (excluding swap
agreements as defined in 11 U.S. Code § 101).


 


Waiver of Exemplary Damages.  The parties agree that they shall
not have a remedy of punitive or exemplary damages against other parties in any
dispute and hereby waive any right or claim to punitive or exemplary damages
they have now or which may arise in the future in connection with any dispute
whether the dispute is resolved by arbitration or judicially.  Waiver of Jury Trial.  THE PARTIES ACKNOWLEDGE THAT, TO THE EXTENT
PERMITTED BY LAW. THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO
JURY TRIAL WITH REGARD TO A DISPUTE.


 


 


[Signature Pages Follow]


 


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IN WITNESS WHEREOF, the Guarantors, on the day and year first written above, have caused
this Unconditional Guaranty to be executed under seal.


 


	
  [CORPORATE SEAL]

  	
  CGI HOLDING CORPORATION, a Nevada corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard M. Jacobs

  
	
   

  	
   

  	
  Name:

  	
  Gerard M. Jacobs

  
	
   

  	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
  [CORPORATE SEAL]

  	
  MARKETSMART INTERACTIVE, INC., a North Carolina corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard M. Jacobs

  
	
   

  	
   

  	
  Name:

  	
  Gerard M. Jacobs

  
	
   

  	
   

  	
  Title:

  	
  Director and Authorized Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
  [CORPORATE SEAL]

  	
  CHERISH, INC. (F/K/A WEBCAPADES, INC.), a Florida corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard M. Jacobs

  
	
   

  	
   

  	
  Name:

  	
  Gerard M. Jacobs

  
	
   

  	
   

  	
  Title:

  	
  Director and Authorized Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
  [CORPORATE SEAL]

  	
  CHECKUP MARKETING, INC., a North Carolina corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard M. Jacobs

  
	
   

  	
   

  	
  Name:

  	
  Gerard M. Jacobs

  
	
   

  	
   

  	
  Title:

  	
  Director and Authorized Representative

  



 


[Guaranty Agreement – CGI Holding Corporation]


 

















 


	
  [CORPORATE SEAL]

  	
  RIGHTSTUFF, INC., a North Carolina corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard M. Jacobs

  
	
   

  	
   

  	
  Name:

  	
  Gerard M. Jacobs

  
	
   

  	
   

  	
  Title:

  	
  Director and Authorized Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
  [CORPORATE SEAL]

  	
  MARKETSMART ADVERTISING, INC., a North Carolina corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard M. Jacobs

  
	
   

  	
   

  	
  Name:

  	
  Gerard M. Jacobs

  
	
   

  	
   

  	
  Title:

  	
  Director and Authorized Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
  [CORPORATE SEAL]

  	
  OZONA ONLINE NETWORK, INC., a Florida corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard M. Jacobs

  
	
   

  	
   

  	
  Name:

  	
  Gerard M. Jacobs

  
	
   

  	
   

  	
  Title:

  	
  Director and Authorized Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
  [CORPORATE SEAL]

  	
  PERSONALS PLUS, INC., a Florida corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard M. Jacobs

  
	
   

  	
   

  	
  Name:

  	
  Gerard M. Jacobs

  
	
   

  	
   

  	
  Title:

  	
  Director and Authorized Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
  [CORPORATE SEAL]

  	
  KOWABUNGA! MARKETING, INC., a Michigan corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard M. Jacobs

  
	
   

  	
   

  	
  Name:

  	
  Gerard M. Jacobs

  
	
   

  	
   

  	
  Title:

  	
  Director and Authorized Representative

  



 

















 


	
  [CORPORATE SEAL]

  	
  PRIMARYADS, INC., a New Jersey corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard M. Jacobs

  
	
   

  	
   

  	
  Name:

  	
  Gerard M. Jacobs

  
	
   

  	
   

  	
  Title:

  	
  Director and Authorized Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
  [CORPORATE SEAL]

  	
  REAL ESTATE SCHOOL ONLINE, INC., a Florida corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard M. Jacobs

  
	
   

  	
   

  	
  Name:

  	
  Gerard M. Jacobs

  
	
   

  	
   

  	
  Title:

  	
  Director and Authorized Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
  [CORPORATE SEAL]

  	
  VINTACOM FLORIDA, INC., a Florida corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard M. Jacobs

  
	
   

  	
   

  	
  Name:

  	
  Gerard M. Jacobs

  
	
   

  	
   

  	
  Title:

  	
  President