EXHIBIT 10.13
GUARANTEE
THIS GUARANTEE (this "Guarantee") dated as of June 29, 2001 is made by each
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of the direct or indirect subsidiaries of Lionbridge Technologies, Inc. ( the
"Borrower") set forth on Schedule A attached hereto (each a "Guarantor") in
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favor of CAPITAL RESOURCE PARTNERS IV, L.P., a Delaware limited partnership (the
"Purchaser"). Each agreement, covenant, representation or warranty contained
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herein is made by each Guarantor as an individual entity and is not made
jointly.
WITNESSETH:
WHEREAS, pursuant to a Note and Warrant Purchase Agreement dated as of June
29, 2001 (the "Note and Warrant Purchase Agreement") the Purchaser purchased
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from the Borrower the Borrower's 12 % Promissory Notes due October 31, 2001 in
the original aggregate principal amount of Five Million Dollars ($5,000,000)
(the "Note");
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WHEREAS, it is a condition to the Purchaser's entering into the Note and
Warrant Purchase Agreement that the Guarantor enter into this Guarantee;
WHEREAS each Guarantor is a direct or indirect subsidiary of the Borrower
which will benefit from the Borrower entering into the Note and Warrant Purchase
Agreement and issuing the Note to the Purchaser;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, each Guarantor hereby agrees with the Purchaser as
follows:
1. Defined Terms. Unless otherwise defined herein, terms which are
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defined in the Note and Warrant Purchase Agreement and used herein are so used
as so defined. In addition, the following terms shall have the meanings set
forth below:
"Note and Warrant Purchase Documents" shall mean the Note, the
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Note and Warrant Purchase Agreement, and any other instruments,
promissory notes, guarantees and other documents executed in
connection with, or related to, the Note, and/or the Note and Warrant
Purchase Agreement, as such other instruments, promissory notes,
guarantees and other documents may be amended, modified, supplemented
or restated from time to time.
"Obligations" shall mean all obligations of the Borrower to the
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Purchaser, whether such obligations are now existing or hereafter
incurred or created, joint or several, direct or indirect, absolute or
contingent, due or to become due, matured or unmatured, liquidated or
unliquidated, arising by contract, operation of law or otherwise,
including, without limitation, (a) all principal of and interest
(including, without limitation, any interest which accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Borrower) on the Note;
and (b) all other amounts (including, without. limitation, any fees or
expenses) payable by the Borrower under the Note and Warrant Purchase
Agreement, the Note, or any other Note and Warrant Purchase Document.
2. Guarantee. Each Guarantor hereby unconditionally and irrevocably
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guarantees to the Purchaser the prompt and complete payment and performance by
the Borrower when due (whether at stated maturity, by acceleration or otherwise)
of the Obligations. Each Guarantor further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of counsel
to the Purchaser) which may be paid or incurred by the Purchaser in enforcing,
or obtaining advice of counsel in respect of, any of its rights under this
Guarantee. The Guarantee shall remain in full force and effect until the
Obligations are indefeasibly paid in full.
3. Right of Set-off. Regardless of the adequacy of any collateral or
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other means of obtaining repayment of the Obligations, any deposits (general or
special, time or demand, provisional or final, including, but not limited to
indebtedness evidenced by a certificate of deposit, whether matured or
unmatured) and any other
indebtedness at any time held or owing by the Purchaser to any individual
Guarantor may, at any time and from time to time after the occurrence of an
Event of Default, without prior notice to such Guarantor or compliance with any
other condition precedent now or hereafter imposed by statute, rule of law, or
otherwise (all of which are hereby expressly waived to the extent permitted by
law) be set off, appropriated, and applied by the Purchaser against any and all
obligations of the Guarantor to the Purchaser then due and payable in such
manner as the Purchaser in its sole discretion may determine, and each Guarantor
hereby grants the Purchaser a continuing security interest in such deposits and
indebtedness for the payment and performance of such obligations.
4. Subrogation and Contribution. Until payment and performance in
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full of all the Obligations, each Guarantor irrevocably and unconditionally
waives any and all rights to which it may be entitled, by operation of law or
otherwise, (a) to be subrogated, with respect to any payment made by such
Guarantor hereunder, to the rights of the Purchaser against the Borrower, or
otherwise to be reimbursed, indemnified or exonerated by the Borrower in respect
thereof or (b) to receive any payment, in the nature of contribution or for any
other reason, from any other guarantor of the Obligations with respect to any
payment made by the Guarantor hereunder.
5. Effect of Bankruptcy Stay. If acceleration of the time for
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payment or performance of any of the Obligations is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, all such amounts
otherwise subject to acceleration shall nonetheless be payable by each Guarantor
under this Guarantee forthwith upon demand.
6. Receipt of Note and Warrant Documents, Etc. Each Guarantor
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confirms, represents and warrants to the Purchaser that (i) it has received true
and complete copies of the Note and Warrant Purchase Documents entered into as
of the date hereof by the Borrower and other parties thereto, has read the
contents thereof and reviewed the same with legal counsel of its choice; (ii) no
representations or agreements of any kind have been made to each Guarantor which
would limit or qualify in any way the terms of this Guarantee; (iii) the
Purchaser has made no representation to any Guarantor as to the creditworthiness
of the Borrower; and (iv) each Guarantor has established adequate means of
obtaining from the Borrower on a continuing basis information regarding the
Borrower's financial condition. Each Guarantor agrees to keep adequately
informed from such means of any facts, events, or circumstances which might in
any way affect such Guarantor's risks under this Guarantee, and each Guarantor
further agrees that the Purchaser shall have no obligation to disclose to the
Guarantor any information or documents acquired by the Purchaser in the course
of its relationship with the Borrower.
7. Amendments, etc. with Respect to the Obligations. The obligations
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of each Guarantor under this Guarantee shall remain in full force and effect
without regard to, and shall not be released, altered, exhausted, discharged or
in any way affected by any circumstance or condition (whether or not the
Borrower shall have any knowledge or notice thereof), including without
limitation (i) any amendment or modification of or supplement to the Note and
Warrant Purchase Agreement, the Note, or any other Note and Warrant Purchase
Document, or any obligation, duty or agreement of the Borrower or any other
obligor thereunder or in respect thereof, (ii) any assignment or transfer in
whole or in part of any of the Obligations, (iii) any furnishing or acceptance
of any direct or indirect security or guaranty, or any release of or non-
perfection or invalidity of any direct or indirect security or guaranty, for any
of the Obligations, (iv) any waiver, consent, extension, renewal, indulgence,
settlement, compromise or other action or inaction under or in respect of the
Note and Warrant Purchase Agreement, the Note, or any other Note and Warrant
Purchase Document, or any exercise or non-exercise of any right, remedy, power
or privilege under or in respect of any such document (whether by operation of
law or otherwise), (v) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect to the
Borrower or any other obligor (other than the Guarantor) or any of their
respective properties or creditors or any resulting release or discharge of any
Obligations, (vi) the voluntary or involuntary sale or other disposition of all
or substantially all the assets of the Borrower or any other obligor, (vii) the
voluntary or involuntary liquidation, dissolution or termination of the Borrower
or any other obligor, (viii) any invalidity or unenforceability, in whole or in
part, of any term hereof or of the Note and Warrant Purchase Agreement, the
Note, or any other Note and Warrant Purchase Document, or any obligation, duty
or agreement of the Borrower or any other obligor (other than the Guarantor)
thereunder or in respect thereof, or any provision of any applicable law or
regulation purporting to prohibit the payment or performance by the Borrower or
any other obligor (other than the Guarantor) of any Obligations, (ix) any
failure on the part of the Borrower or any other obligor for any reason to
perform or comply with any term of the Note and Warrant Purchase Agreement, the
Note,
or any other Note and Warrant Purchase Document or any other agreement, or (x)
any other act, omission or occurrence whatsoever, whether similar or dissimilar
to the foregoing. Each Guarantor authorizes the Borrower, each other obligor in
respect of the Obligations and the Purchaser at any time in its discretion, as
the case may be, to alter any of the terms of Obligations.
8. Guarantor as Principal. If for any reason the Borrower or any
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other obligor is under no legal obligation to discharge any Obligations, or if
any other moneys included in Obligations have become unrecoverable from the
Borrower or any other obligor operation of law or for any other reason,
including, without limitation, the invalidity or irregularity in whole or in
part of any Obligation or of the Note and Warrant Purchase Agreement, the Note,
or any other Note and Warrant Purchase Document, the legal disability of the
Borrower or any other obligor, any discharge of or limitation on the liability
of the Borrower or any other obligor or any limitation on the method or terms of
payment under any Obligation, or of the Note and Warrant Purchase Agreement, the
Note, or any other Note and Warrant Purchase Document, which may now or
hereafter be caused or imposed in any manner whatsoever (whether consensual or
arising by operation of law or otherwise), this Guarantee shall nevertheless
remain in full force and effect and shall be binding upon each Guarantor to the
same extent as if each Guarantor at all times had been the principal obligor on
all Obligations.
9. Waiver of Demand, Notice, Etc. Each Guarantor hereby waives to
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the extent not prohibited by applicable law, (i) all presentments, demands for
performance, notice of nonperformance, protests, notices of protests and notices
of dishonor in connection with the Obligations or the Note and Warrant Purchase
Agreement, the Note, or any other Note and Warrant Purchase Document, including
but not limited to notice of additional indebtedness constituting Obligations or
the existence, creation or incurring of any new or additional indebtedness or
obligation or of any action or non-action on the part of the Borrower, the
Purchaser, any endorser or creditor of the Borrower or any other obligor; (ii)
any notice of any indulgence, extensions or renewals granted to any obligor with
respect to Obligations; (iii) any requirement of diligence or promptness in the
enforcement of rights under the Note and Warrant Purchase Agreement, the Note,
or any other Note and Warrant Purchase Document, or any other agreement or
instrument directly or indirectly relating thereto or to the Obligations; (iv)
any enforcement of any present or future agreement or instrument relating
directly or indirectly thereto or to the Obligations; (v) notice of any of the
matters referred to in Paragraph 7 above, (vi) any defense of any kind which the
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Guarantor may now have with respect to its liability under this Guarantee; (vii)
any right to require the Purchaser, as a condition of enforcement of this
Guarantee, to proceed against the Borrower or any other obligor or to proceed
against or exhaust any security held by the Purchaser at any time or to pursue
any other right or remedy in the Purchaser's power before proceeding against the
Guarantor; (viii) any defense that may arise by reason of the incapacity, lack
of authority, death or disability of any other obligor or the failure of the
Purchaser to file or enforce a claim against the estate (in administration,
bankruptcy, or any other proceeding) of any other obligor; (ix) any defense
based upon an election of remedies by the Purchaser; (x) any defense arising by
reason of any "one action" or "anti-deficiency" law or any other law which may
prevent the Purchaser from bringing any action, including a claim for
deficiency, against the Guarantor, before or after the Purchaser's commencement
of completion of any foreclosure action, either judicially or by exercise of a
power of sale; (xi) any defense based upon any lack of diligence by the
Purchaser in the collection of any Obligation; (xii) any duty on the part of the
Purchaser to disclose to the Guarantor any facts the Purchaser may now or
hereafter know about the Borrower or any other obligor in respect of
Obligations; (xiii) any defense arising because of an election made by the
Purchaser under Section 1111(b)(2) of the Federal Bankruptcy Code; (xiv) any
defense based on any borrowing or grant of a security interest under Section 364
of the Federal Bankruptcy Code; and (xv) any defense based upon or arising out
of any defense which the Borrower or any other obligor may have to the payment
or performance of Obligations (including but not limited to failure of
consideration, breach of warranty, fraud, payment, accord and satisfaction,
strict foreclosure, statute of frauds, bankruptcy, infancy, statute of
limitations, lender liability and usury). Each Guarantor acknowledges and agrees
that each of the waivers set forth herein on the part of each Guarantor is made
with such Guarantor's full knowledge of the significance and consequences
thereof and that under the circumstances the waivers are reasonable. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by such law or public
policy.
10. Reinstatement. This Guarantee shall continue to be effective, or
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be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by the Purchaser upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or
similar officer for, the Borrower or any substantial part of its property or
otherwise, all as though such payments had not been made.
11. Payments. Each Guarantor hereby agrees that the Obligations will
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be paid to the Purchaser without setoff or counterclaim in U.S. Dollars at the
office of the Purchaser located at 00 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxxxxx 00000, or to such other location as the Purchaser shall notify the
Guarantor.
12. Representations and Warranties. Each Guarantor represents and
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warrants that as of the date hereof the representations and warranties set forth
in the Note and Warrant Purchase Agreement are true and accurate in all respects
as they pertain to such Guarantor as a Subsidiary.
13. Covenants. Each Guarantor hereby covenants and agrees with the
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Purchaser from and after the date of this Guarantee until the Obligations are
indefeasibly paid in full to maintain its legal existence and not to take any
action or refrain from taking any action which would cause the Borrower to be in
default of any of its covenants or agreements contained in the Note and Warrant
Purchase Agreement, the Note, or any other Note and Warrant Purchase Document.
14. Subordination of Claims against Borrower. Without limiting the
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provisions of Paragraph 4 hereof, each Guarantor hereby irrevocably agrees that
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any and all claims which the Guarantor may now or hereafter have against the
Borrower or any other guarantor of the Obligations, including, without
limitation, the benefit of any setoff or counterclaim or proof against dividend,
composition or payment by the Borrower or such other guarantor, shall be subject
and subordinate to the prior payment in full of all of the Obligations to the
Purchaser. After the occurrence and during the continuation of an Event of
Default, the Guarantor shall not claim from the Borrower or such other
guarantor, or with respect to any of their respective properties, any sums which
may be owing to the Guarantor, or have the benefit of any setoff or counterclaim
or proof against dividend, composition or payment by the Borrower or such other
guarantor, until all the Obligations shall have been paid in full. Should any
payment or distribution or security or the benefit of proceeds thereof be
received by the Guarantor upon or with respect to amounts due to it from the
Borrower or any other guarantor of the Obligations after an Event of Default has
occurred and is continuing and prior to the payment in full of all Obligations,
the Guarantor will forthwith deliver the same to the Purchaser in precisely the
form received (except for endorsement or assignment where necessary), for
application in or towards repayment of the Obligations and, until so delivered,
the same shall be held in trust as property of the Purchaser. In the event of
the failure of the Guarantor to make any such endorsement or assignment, the
Purchaser is hereby irrevocably authorized to make the same on behalf of the
Guarantor.
15. Severability. Any provision of this Guarantee which is prohibited
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or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Paragraph Headings. The paragraph headings used in this Guarantee
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are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
17. No Waiver. Cumulative Remedies. The Purchaser shall not by any
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act (except by a written instrument pursuant to Paragraph 18 hereof), delay,
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indulgence, omission or otherwise, be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Event of Default or in any breach of any
of the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Purchaser, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Purchaser of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Purchaser would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any rights or remedies provided by law.
18. Miscellaneous. This Guarantee constitutes the entire agreement of
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each Guarantor with respect to the matters set forth herein. None of the terms
or provisions of this Guarantee may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by each Guarantor and
the Purchaser, provided that any provision of this Guarantee may be waived by
the Purchaser in a letter or agreement executed by the Purchaser or by telecopy
from the Purchaser. This Guarantee shall be binding upon the successors and
assigns of each Guarantor and shall inure to the benefit of the Purchaser and
its successors and assigns.
19. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION; GOVERNING LAW.
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EACH GUARANTOR AND THE PURCHASER BY ITS ACCEPTANCE HEREOF EACH HEREBY EXPRESSLY
WAIVES ANY RIGHT IT MAY NOW OR HEREAFTER HAVE TO A JURY TRIAL IN ANY SUIT,
ACTION, PROCEEDING OR COUNTERCLAIM WHICH ARISES OUT OF, BASED UPON OR BY REASON
OF THIS GUARANTEE, ANY NOTE AND WARRANT PURCHASE DOCUMENT, OR THE TRANSACTIONS
CONTEMPLATED HEREBY. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED
BY THE PURCHASER AND THE GUARANTOR, AND SHALL BE SUBJECT TO NO EXCEPTIONS.
BY ITS EXECUTION AND DELIVERY OF THIS GUARANTEE, THE GUARANTOR ACCEPTS FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS IN ANY ACTION, SUIT OR
PROCEEDING OF ANY KIND AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS
GUARANTEE, ANY NOTE AND WARRANT PURCHASE DOCUMENT, OR THE TRANSACTIONS
CONTEMPLATED HEREBY, IN ADDITION TO ANY OTHER COURT IN WHICH SUCH ACTION, SUIT
OR PROCEEDING MAY BE BROUGHT, IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED BY ANY SUCH COURT IN ANY SUCH ACTION, SUIT OR PROCEEDING IN WHICH IT
SHALL HAVE BEEN SERVED WITH PROCESS IN THE MANNER HEREINAFTER PROVIDED, AND TO
THE EXTENT THAT IT MAY LAWFULLY DO SO, WAIVES AND AGREES NOT TO ASSERT, BY WAY
OF MOTION, AS A DEFENSE OR OTHERWISE, IN SUCH ACTION, SUIT OR PROCEEDING ANY
CLAIMS THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT
ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE ACTION,
SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE THEREOF
IS IMPROPER.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE COMMONWEALTH OF MASSACHUSETTS.
20. Notices. All notices under this Guarantee shall be in writing,
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and shall be delivered by hand, by an internationally recognized commercial
overnight delivery service, by U. S. first class mail or by telecopy, delivered,
addressed or transmitted, if to the Purchaser, at its address or telecopy number
set forth in the Note and Warrant Purchase Agreement, and if to the Guarantor,
at its address or telecopy number set out below its signature in this Guarantee.
Such notices shall be effective (a) in the case of hand deliveries, when
received, (b) in the case of an overnight delivery service, on the next Business
Day after being placed in the possession of such delivery service, with delivery
charges prepaid, (c) in the case of mail, three days after deposit in the U.S.
postal system, first class postage prepaid and (d) in the case of telecopy
notices, when electronic indication of receipt is received. Any party may change
its address and telecopy number by written notice to the other.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly
executed and delivered as of the date first above written.
INT'X.XXX, INC.
By: /s/ Xxxx X. Xxxxx
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Name:
Title:
INTERNATIONAL LANGUAGE ENGINEERING CORPORATION
By: /s/ Xxxx X. Xxxxx
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Name:
Title:
HARVARD TRANSLATIONS, INC.
By: /s/ Xxxx X. Xxxxx
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Name:
Title:
Lionbridge Technologies California, Inc.
By: /s/ Xxxx X. Xxxxx
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Name:
Title:
LIONBRIDGE TECHNOLOGIES HOLDINGS B.V.
By: /s/ Xxxx X. Xxxxx
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Name:
Title:
LIONBRIDGE TECHNOLOGIES B.V.
By: /s/ Xxxx X. Xxxxx
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Name:
Title:
LIONBRIDGE TECHNOLOGIES IRELAND
By: /s/ Xxxx X. Xxxxx
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Name:
Title:
Address for Notices:
INT'X.xxx, Inc.
International Language Engineering Corporation
Harvard Translations, Inc.
Lionbridge Technologies California, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Telecopy No.:000-000-0000
Lionbridge Technologies Holdings B.V.
Lionbridge Technologies B.V.
The Sinus Building
Xxxxxxxxxxxxxxx 00
0000XX, Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telecopy No.: 00-00-000-0000
Lionbridge Technologies Ireland
Xxxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxxx
Xxxxxx xx Xxxxxx, Xxxxxxx
Telecopy No.: 011 353-1288-6220
Accepted and agreed to:
CAPITAL RESOURCE PARTNERS IV, L.P.
By: CRP PARTNERS IV, L.L.C., its General
Partner
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Managing Member
Schedule A
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Subsidiaries of Lionbridge Technologies, Inc.
INT'X.xxx, Inc.
International Language Engineering Corporation
Harvard Translations, Inc.
Lionbridge Technologies California, Inc.
Lionbridge Technologies Holdings B.V.
Lionbridge Technologies B.V.
Lionbridge Technologies Ireland
