Contract
This
Subordinated Guaranty Agreement is subject to the terms and provisions of the
Intercreditor and Subordination Agreement by and between GRANITE CREEK PARTNERS
AGENT, LLC,
as Junior Agent on behalf of itself and the Junior Lenders, and TD BANK,
N.A. dated as of July 29, 2010 (as amended, restated, supplemented or
otherwise modified from time to time, the "Subordination Agreement") and each
holder of the Loans, by its acceptance hereof, shall be bound by the provisions
of the Subordination Agreement.
THIS
SUBORDINATED GUARANTY AGREEMENT (this "Agreement") is made as of this
29th day of July, 2010, by CYALUME TECHNOLOGIES HOLDINGS, INC., a Delaware
corporation ("Guarantor"), to GRANITE CREEK
PARTNERS AGENT, LLC, as agent (the "Agent") under the Subordinated
Loan Agreement dated as of the date hereof (as amended, restated, modified,
supplemented and in effect from time to time, the "Loan
Agreement"). Capitalized terms used in this Agreement and not
otherwise defined shall have the same meanings herein as in the Loan
Agreement.
WITNESSETH:
WHEREAS,
Guarantor owns one hundred percent (100%) of the outstanding capital stock of
CYALUME TECHNOLOGIES, INC., a Delaware corporation (the "Borrower");
and
WHEREAS,
Guarantor, the Borrower, the Agent and the other Lenders from time to time party
thereto have entered into the Loan Agreement, pursuant to which the Lenders have
agreed, subject to the terms and conditions set forth therein, to make Loans to
the Borrower (collectively, the "Loans"); and
WHEREAS,
the making of the Loans to the Borrower pursuant to the Loan Agreement will be
beneficial to Guarantor because of its direct ownership interest in the
Borrower; and
WHEREAS,
the obligations of the Agent and the Lenders to enter into the Loan Agreement,
and the obligations of the Lenders to make the Loans, are subject to the
condition, among others, that Guarantor execute and deliver this
Agreement.
NOW,
THEREFORE, in consideration of the willingness of the Agent and Lenders to enter
into the Loan Agreement and of the Lenders to make the Loans to the Borrower
thereunder, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Guarantor, Guarantor hereby
agrees as follows:
1. Guaranteed Obligations;
Limitation.
(a) Guarantor
does hereby irrevocably, unconditionally guarantee, as if a primary obligor and
not merely as surety, the due and punctual payment and performance by the
Borrower of the following obligations to the Lenders (individually, a "Guaranteed Obligation" and
collectively the "Guaranteed
Obligations"):
(i) principal
of and premium, if any, and interest on the Loans (including, without
limitation, the payment of interest, and other amounts that would accrue and
become due but for the filing of a petition in bankruptcy or the operation of
the automatic stay under Section 362(a) of Title 11 of the United States Code,
as amended (the "Bankruptcy
Code")); and
(ii) any
and all other Obligations, and any and all other obligations of the Borrower to
the Agent and the Lenders under the Loan Agreement or the other Loan Documents
including, without limitation, under the Term Loan Notes and the Delayed Draw
Notes, all as amended from time to time and whether executed on or after the
date hereof, whether for principal, interest, fees, premiums, expenses,
indemnification or otherwise.
2. Payment Under
Guaranty. Upon failure by the Borrower punctually to pay or
perform any Guaranteed Obligation when due (whether at maturity, at a date fixed
for any payment or prepayment thereof or upon acceleration or otherwise), after
the expiration of any applicable grace period, the Agent may make written demand
upon Guarantor for the full payment and/or performance of the Guaranteed
Obligations, and Guarantor binds and obliges itself to make such payment or
performance forthwith upon such demand.
GUARANTOR
ACKNOWLEDGES THAT ALL GUARANTEED OBLIGATIONS SHALL, TO THE FULLEST EXTENT
PERMISSIBLE UNDER ANY LAW NOW OR HEREAFTER APPLICABLE HERETO, BE CONCLUSIVELY
PRESUMED TO HAVE BEEN CREATED IN RELIANCE ON THIS AGREEMENT.
3. Waiver of Demands, Notices,
Diligence, etc. Guarantor hereby assents to all of the terms
and conditions of the Guaranteed Obligations and waives, to the extent permitted
by applicable law:
(a) each
of:
(i) demand
for the payment of the principal of any Guaranteed Obligation or of any claim
for interest or any part thereof (other than the demand provided for in Section 2
hereof);
(ii) notice
of (A) the occurrence of a default or an event of default under any Loan
Document, and (B) any forbearance or waiver by the Lenders of any Guaranteed
Obligation;
-2-
(iii) protest
of the nonpayment of the principal of any Guaranteed Obligation or of any claim
for interest or any part thereof;
(iv) notice
of presentment, demand (other than the demand provided for in Section 2 hereof) and
protest;
(v) notice
of any indulgences or extensions granted to the Borrower or any successor to the
Borrower or any person or party which shall have assumed the obligations of the
Borrower;
(vi)
any requirement of diligence or promptness on the part of the
Agent or Lenders in the enforcement of any of its or their rights under the
provisions of any Guaranteed Obligation or any Loan Document or this
Agreement;
(vii) any
enforcement of any Guaranteed Obligation;
(viii) any
right which Guarantor might have to require the Agent or the Lenders to marshal
or proceed against any other guarantor of the Guaranteed Obligations or to
realize on any Collateral therefor; and
(ix) any
and all notices of every kind and description which may be required to be given
by any statute or rule of law in any jurisdiction.
(b) all
rights and benefits under any applicable law purporting to reduce a guarantor's
obligations in proportion to the obligation of the principal or providing that
the obligation of a surety or guarantor must neither be larger nor in any other
respect more burdensome than that of the principal; provided, however,
that nothing contained herein shall operate as a waiver of any defense that the
Borrower may assert on the underlying debt directly;
(c) the
benefit of any statute of limitations affecting the Guaranteed Obligations or
Guarantor's liabilities hereunder or under any other law now or hereafter
applicable hereto;
(d) any
rights, defenses and other benefits that Guarantor may have by reason of (i) any
failure of the Agent to hold a commercially reasonable public or private
foreclosure sale or to otherwise comply with applicable law in connection with a
disposition of any Collateral for the Guaranteed Obligations; (ii) any election
of remedies made by the Agent under the Uniform Commercial Code, as adopted in
the State of Illinois or in another State in which Collateral may be located or
whose laws are otherwise deemed to govern the terms of this Agreement; or (iii)
any protection afforded pursuant to the anti deficiency or similar other laws of
the State of Illinois, any other State in which Collateral may be located or any
other state limiting or discharging the Borrower's indebtedness or purporting to
limit the amount of any deficiency judgment; and
(e) any
rights, defenses, claims or benefits waived in Section 4
hereof. The waivers and other provisions set forth in this Section 3 and in
Section 4 shall
be effective notwithstanding the fact that the Borrower ceases to exist by
reason of its liquidation, merger, consolidation, voluntary or involuntary
dissolution or otherwise.
-3-
4. Obligations of Guarantor
Unconditional; Continuing and Irrevocable Guaranty.
(a) All
payments hereunder shall be made free and clear of any and all deductions,
withholdings or setoffs, including any and all deductions, withholdings or
setoffs on account of taxes. The liability of Guarantor hereunder is
independent of and not in consideration of or contingent upon the liability of
the Borrower to the Lenders and a separate action or actions may be brought and
prosecuted against Guarantor, whether or not any action is brought or prosecuted
against the Borrower and regardless of whether the Borrower is joined in any
such action or actions. This Agreement shall be construed as a
continuing, absolute and unconditional guaranty of payment (and not merely of
collection) without regard, to the extent permitted by applicable law,
to:
(i) the
legality, validity or enforceability of the Loan Agreement or any other Loan
Document or any of the other Guaranteed Obligations, any lien of the Agent on
any item of Collateral or any other guaranty;
(ii) any
defense (other than payment), deduction (including deductions for taxes),
withholding, setoff or counterclaim that may now or at any time hereafter be
available to the Borrower, Guarantor or other obligor against, and any right of
setoff at any time held by, the Agent or the Lenders;
(iii) any
claim arising out of or relating to any amendment (including amendments which
increase the amount of Loans made or available to the Borrower thereunder),
extension or other modification of the Loan Agreement or any other Loan Document
consented to by the Agent or Lenders, and Guarantor acknowledges and agrees that
the Agent and Lenders shall be entitled to amend, extend, forbear under, waive
any Default or Event of Default or take any other action deemed advisable in the
sole discretion of the Agent and Lenders with respect to the Loan Agreement and
the other Loan Documents; or
(iv) any
other circumstance whatsoever, legal or equitable, (with or without notice to or
knowledge of Guarantor), whether or not similar to any of the foregoing, that
constitutes, or might be construed to constitute, an equitable or legal
discharge of or defense to payment available to the Borrower, Guarantor or other
obligor under the Loan Agreement or other Loan Documents or under applicable
law, including the Bankruptcy Code, or in any other instance.
Any
payment or other circumstance that operates to toll any statute of limitations
applicable to any Guaranteed Obligations shall also operate to toll the statute
of limitations applicable to Guarantor. The obligations of Guarantor
under this Agreement shall not be affected by any action taken under any
Guaranteed Obligation in the exercise of any right or remedy therein conferred,
or by any failure or omission on the part of the Agent to enforce any right
given thereunder or hereunder or any remedy conferred thereby or hereby, or by
any release of any security or any other guaranty at any time existing for the
benefit of any Guaranteed Obligation, or by the merger or consolidation of the
Borrower, or by the sale, lease or transfer by the Borrower to any Person of any
or all of its respective properties.
-4-
(b) This
is a continuing guaranty of the Guaranteed Obligations and may not be revoked
and shall not otherwise terminate until the date on which the Guaranteed
Obligations have been paid and performed in full in cash, and the obligations of
the Lenders to make Loans under the Loan Agreement shall have
terminated.
5. Subordination of Claims of
Guarantor; Waiver of Subrogation and Certain Other Rights. Any
claims against the Borrower or any other guarantor under the Loan Agreement or
any other Person from time to time party to the Loan Agreement as "Borrower" or "Guarantor"
(collectively, the "Loan
Parties" and each a "Loan Party") to which
Guarantor may be or become entitled (including, without limitation, claims by
subrogation or otherwise by reason of any payment or performance by Guarantor in
satisfaction and discharge, in whole or in part, of its obligations under this
Agreement) shall be and hereby are made subject and subordinate to the prior
payment in full in cash and performance in full of the Guaranteed Obligations.
WITHOUT LIMITING THE FOREGOING, GUARANTOR WAIVES ANY AND ALL RIGHTS OF
SUBROGATION, INDEMNITY, CONTRIBUTION OR REIMBURSEMENT, AND ANY AND ALL BENEFITS
OF AND RIGHT TO ENFORCE ANY POWER, RIGHT OR REMEDY THAT THE LENDER MAY NOW OR
HEREAFTER HAVE IN RESPECT OF THE GUARANTEED OBLIGATIONS AGAINST THE BORROWER,
GUARANTOR OR ANY OTHER OBLIGOR, ANY AND ALL BENEFITS OF AND RIGHTS TO
PARTICIPATE IN ANY COLLATERAL, NOW OR HEREAFTER HELD BY THE AGENT OR THE
LENDERS, AND ANY AND ALL OTHER RIGHTS AND CLAIMS (AS DEFINED IN THE BANKRUPTCY
CODE) GUARANTOR MAY HAVE AGAINST THE AGENT, THE LENDERS, THE BORROWER, ANY OTHER
LOAN PARTY OR ANY OTHER OBLIGOR, UNDER APPLICABLE LAW OR OTHERWISE, AT LAW OR IN
EQUITY, BY REASON OF ANY PAYMENT HEREUNDER OR OTHERWISE, UNLESS AND UNTIL THE
GUARANTEED OBLIGATIONS SHALL HAVE BEEN INDEFEASIBLY PAID IN FULL IN
CASH. If, notwithstanding the foregoing, any amount shall be paid to
Guarantor on account of any such rights at any time, such amount shall be held
in trust for the benefit of the Agent and Lenders and shall forthwith be paid to
the Agent to be credited and applied in reduction of the Guaranteed Obligations
in accordance with the terms of the Loan Agreement.
6. Representations and
Warranties of Guarantor. In order to induce the Agent and
Lenders to enter into the Loan Agreement and to induce the Lenders to make the
Loans to the Borrower thereunder, Guarantor represents and warrants
that:
(a) This
Agreement constitutes the legal, valid and binding obligation of Guarantor,
enforceable against Guarantor in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforceability of creditors' rights
generally.
-5-
(b) Guarantor
hereby acknowledges that it has reviewed and caused its counsel to review copies
of, and is fully familiar with, this Agreement, the Loan Agreement, the other
Security Documents and each of the other Loan Documents executed and delivered
by the Borrower and the other Loan Parties. Guarantor warrants and
agrees that each representation, warranty and waiver set forth in this Agreement
is made with Guarantor having full knowledge of its significance and
consequences and after having consulted with counsel of its own choosing and
that, under the circumstances, each such waiver is in the best interest of
Guarantor in furtherance of its business plan, is reasonable and should not be
found contrary to public policy or law.
Guarantor
acknowledges and agrees that any breach of any representation, warranty or
covenant of Guarantor in this Agreement may constitute an Event of Default under
the Loan Agreement and under each of the other Loan Documents.
7. Set-off. In
addition to any rights now or hereafter granted under applicable law and not by
way of limitation of any such rights, upon the occurrence and during the
continuance of an Event of Default, the Agent is hereby authorized, to the
extent not prohibited by applicable law, without prior notice to Guarantor or to
any other Person, any such notice being expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by the Lender to or for the credit or the
account of Guarantor, against and on account of the obligations and liabilities
of Guarantor to the Agent under this Agreement then due and payable,
irrespective of whether the Lender shall have made any demand
hereunder. The Agent agrees to promptly notify Guarantor after any
such set off and application, provided, however, that the failure to give such
notice shall not affect the validity of such set off and
application.
8. Reinstatement. This
Agreement shall continue to be effective, or be reinstated, as the case may be,
if at any time any amount received by the Lenders in respect of the Guaranteed
Obligations is rescinded or must otherwise be restored or returned by the
Lenders upon the insolvency, bankruptcy, dissolution (voluntary or involuntary),
liquidation or reorganization of the Borrower, Guarantor or any other Loan
Party, or upon the appointment of an intervenor or conservator of, or trustee or
similar official for, the Borrower, Guarantor or any other Loan Party or any
substantial part of any of their respective properties, or otherwise, all as
though said payments had not been made.
9. Notices. All
notices and other communications to Guarantor or the Agent hereunder shall be in
writing and shall be personally delivered or mailed by telegraphic, telex or
facsimile transmission, reputable overnight courier or first class mail, postage
prepaid, as follows:
|
If
to the Agent:
|
Granite
Creek Partners Agent, LLC
000
X. Xxxxx Xx., Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxx
Xxxxxxxxx
|
-6-
|
with
a copy to:
|
Xxxxxxxx
Xxxx Ltd.
00
Xxxx Xxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxx
Xxxxxx
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
|
|
If
to Guarantor:
|
00
Xxxxxxxxxx Xxxx
Xxxxxxxxxx
Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxx
Xxxxx
|
|
with
a copy to:
|
Loeb
& Loeb LLP
000
Xxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxx
Xxxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
|
or to
such other address or addresses as the party to whom such notice is directed may
have designated in writing to the other parties hereto. A notice
shall be deemed to have been duly given and made and to have become effective
(i) if delivered by hand, overnight courier or facsimile to a responsible
officer of the party to which it is directed, at the time of the receipt thereof
by such officer or the sending of such facsimile and (ii) if sent by registered
or certified first-class mail, postage prepaid, on the third Business Day
following the mailing thereof.
10. Miscellaneous; Successors;
Counterparts; Severability.
(a) This
Agreement shall inure to the benefit of and be binding upon the Agent, the
Lenders and Guarantor and their respective successors and assigns, and the term
"Lender" shall be deemed
to include any other holder or holders of any of the Guaranteed
Obligations. In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired
thereby. This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
shall be an original, but all of which together shall constitute one
instrument. References herein to this "Agreement" shall be deemed
references to this Agreement as amended, modified and/or supplemented from time
to time.
(b) All
covenants under this Agreement shall be given independent effect so that if a
particular action or condition is not permitted by any such covenant, the fact
that it would be permitted by another covenant, by any exception thereto, or
otherwise within the limitations thereof, shall not avoid the occurrence of a
Default or Event of Default if such action is taken or such condition
exists.
-7-
(c) None
of the parties to this Agreement shall be deemed to be the drafter of this
Agreement, and this Agreement shall not be interpreted in favor of or against
any party hereto on such basis.
(d) No
claim shall be made by Guarantor against the Agent, any Lender or their
respective Affiliates, directors, officers, employees or agents for any special,
indirect, consequential or punitive damages in respect of any claim for breach
of contract or under any other theory of liability arising out of or related to
the transactions contemplated by this Agreement, or any act, omission or event
occurring in connection therewith; and Guarantor waives, releases and agrees not
to xxx upon any claim for any such damages.
11. Governing Law; Jurisdiction;
Waiver of Jury Trial. THIS AGREEMENT, INCLUDING THE VALIDITY HEREOF AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS. GUARANTOR, TO
THE EXTENT THAT IT MAY LAWFULLY DO SO, HEREBY CONSENTS TO THE JURISDICTION OF
THE COURTS OF THE STATE OF ILLINOIS AND THE UNITED STATES DISTRICT COURT FOR THE
STATE OF ILLINOIS, AS WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN
APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR
OTHER PROCEEDING ARISING OUT OF ANY OF ITS OBLIGATIONS HEREUNDER OR WITH RESPECT
TO THE TRANSACTIONS CONTEMPLATED HEREBY, AND EXPRESSLY WAIVES ANY AND ALL
OBJECTIONS IT MAY HAVE AS TO VENUE IN ANY SUCH COURTS. GUARANTOR FURTHER AGREES
THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN ANY OF SUCH
COURTS SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED
PERSONALLY OR BY CERTIFIED MAIL TO IT AT ITS ADDRESS AS PROVIDED IN SECTION 9
HEREOF OR AS OTHERWISE PROVIDED UNDER THE LAWS OF THE STATE OF ILLINOIS.
GUARANTOR IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION OR
OTHER PROCEEDING INSTITUTED BY OR AGAINST IT IN RESPECT OF ITS OBLIGATIONS
HEREUNDER OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12. Subordination
Agreement. Notwithstanding any provision to the contrary in
this Agreement, this Agreement, the Liens and security interests granted to the
Agent and Lenders, at law or equity, pursuant to this Agreement and the other
Loan Documents, and the exercise of any right or remedy by the Agent or any
Lender hereunder are subject to the provisions of the Subordination
Agreement. Agent and Lenders acknowledge and agree to be bound by the
Subordination Agreement. In the event of any conflict between the
terms of the Subordination Agreement and this Agreement or the other Loan
Documents, the terms of the Subordination Agreement shall govern.
-8-
Guarantor
acknowledges that the Subordination Agreement and the rights and benefits
thereof (as specific references thereto herein) inure only to the benefit of the
holders of the Senior Debt and that no other Person, including the Borrower and
Guarantor, shall have or be entitled to assert any rights or benefits hereunder
arising under the Subordination Agreement or by virtue of the existence of the
specific references thereto herein.
[remainder
of page left intentionally blank]
-9-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
|
By:
|
/s/ Xxxxx Xxxxxxx
|
|
|
Name:
|
Xxxxx Xxxxxxx
|
|
|
Title
|
Chief Executive Officer
|
|
Signature
Page to Subordinated Guaranty Agreement
|
The
foregoing Agreement is hereby accepted:
|
||
|
GRANITE CREEK PARTNERS AGENT,
LLC, as Agent
|
||
|
By:
|
/s/ Xxxxx X. Xxxxxxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxxxxxx
|
|
|
Title:
|
Managing
Member
|
|
Signature
Page to Subordinated Guaranty Agreement
