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EXECUTION COPY
Exhibit 10.9
AMENDED AND RESTATED GUARANTY
AMENDED AND RESTATED GUARANTY, dated as of July 28, 2008
(amended,
restated, supplemented or otherwise modified, this "GUARANTY"),
made by each of
the undersigned (together with any other Subsidiary (as defined
below) of the
Company referred to below that may from time to time become a
Guarantor
hereunder, each a "GUARANTOR", and collectively, the "GUARANTORS"),
in favor of
Castlerigg Master Investment Ltd., a company organized under the
laws of the
British Virgin Islands, in its capacity as collateral agent (in
such capacity,
the "COLLATERAL AGENT") for the "Buyers" (as defined below) party
to the
Securities Purchase Agreements referred to below.
W I T N E S S E T H :
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WHEREAS, Raptor Networks Technology, Inc., a Colorado corporation
(the
"COMPANY") and each party listed as a "Buyer" on the Schedule of
Buyers attached
to the 2006 SPA referred to below (collectively, the "2006 BUYERS")
are parties
to a Securities Purchase Agreement, dated as of July 30, 2006 (as
amended,
restated, supplemented or otherwise modified from time to time, the
"2006 SPA")
pursuant to which the Company has sold, and the 2006 Buyers have
purchased, the
notes issued pursuant thereto (as such notes may be amended,
restated, replaced
or otherwise modified from time to time in accordance with the
terms thereof,
collectively, the "2006 NOTES");
WHEREAS, the Company and each party listed as a "Buyer" on the
Schedule
of Buyers attached to the 2007 SPA referred to below (collectively,
the "2007
BUYERS") are parties to a Securities Purchase Agreement, dated as
of July 31,
2007 (as amended, restated, supplemented or otherwise modified from
time to
time, the "2007 SPA") pursuant to which the Company has sold, and
the 2007
Buyers have purchased, the notes issued pursuant thereto (as such
notes may be
amended, restated, replaced or otherwise modified from time to time
in
accordance with the terms thereof, collectively, the "2007
NOTES");
WHEREAS, the Company and each party listed as a "Buyer" on the
Schedule
of Buyers attached to the March 2008 SPA referred to below
(collectively, the
"MARCH 2008 BUYERS") are parties to the Securities Purchase
Agreement, dated as
of March 31, 2008 (as amended, restated, supplemented or otherwise
modified from
time to time, the "MARCH 2008 SPA"), pursuant to which the Company
has sold, and
the March 2008 Buyers have purchased, the notes issued pursuant
thereto (as such
notes may be amended, restated, replaced or otherwise modified from
time to time
in accordance with the terms thereof, collectively, the "MARCH 2008
NOTES");
WHEREAS, in connection with the March 2008 SPA and the 2007 SPA and
to
secure the 2007 Notes and the March 2008 Notes issued thereunder,
(a) each
Guarantor has executed and delivered the Guaranty, dated as of
March 31, 2008
(the "ORIGINAL GUARANTY"), pursuant to which such Guarantor has
guaranteed all
of the obligations (collectively, the "ORIGINAL SECURED
OBLIGATIONS") of the
Company under the 2007 SPA and the March 2008 SPA and the other
"Transaction
Documents" (as such term is defined in each of the 2007 SPA and the
March 2008
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SPA; such Transaction Documents as amended, restated, supplemented
or otherwise
modified, are hereinafter referred to as the "ORIGINAL SECURED
TRANSACTION
DOCUMENTS"), (b) the Guarantors and the Company have executed and
delivered the
Pledge Agreement, dated as of March 31, 2008 (the "ORIGINAL PLEDGE
AGREEMENT"),
pursuant to which the Guarantors and the Company have granted to
the Collateral
Agent, for the benefit of the 2007 Buyers and the March 2008
Buyers, a perfected
first priority security interest in and a lien on the Collateral
described in
the Original Pledge Agreement and (c) the Guarantors and the
Company have
executed and delivered the Security Agreement, dated as of March
31, 2008 (the
"ORIGINAL SECURITY AGREEMENT" and, together with the Original
Guaranty and the
Original Pledge Agreement, collectively, the "ORIGINAL SECURITY
DOCUMENTS"),
pursuant to which the Guarantor and the Company have granted to the
Collateral
Agent, for the benefit of the 2007 Buyers and the March 2008
Buyers, a perfected
first priority security interest in and a lien on the Collateral
described in
the Original Security Agreement;
WHEREAS, the Company and each party listed as a "Buyer" on the
Schedule
of Buyers attached to the July 2008 SPA referred to below
(collectively, the
"JULY 2008 BUYERS" and, together with the 2006 Buyers, the 2007
Buyers and the
March 2008 Buyers, each a "BUYER" and collectively, the "BUYERS")
intend to
enter into that certain Securities Purchase Agreement, dated as of
July __, 2008
(as amended, restated, supplemented or otherwise modified from time
to time, the
"JULY 2008 SPA" and, together with the 2006 SPA, the 2007 SPA and
the March 2008
SPA, each a "PURCHASE AGREEMENT", and collectively the "PURCHASE
AGREEMENTS"),
pursuant to which the Company will sell, and the 2008 Buyers will
purchase, the
notes issued pursuant thereto (as such notes may be amended,
restated, replaced
or otherwise modified from time to time in accordance with the
terms thereof,
collectively, the "JULY 2008 NOTES" and, together with the 2006
Notes, the 2007
Notes and the March 2008 Notes, each a "NOTE" and collectively, the
"NOTES");
WHEREAS, it is a condition precedent to the July 2008 Buyers
purchasing
the July 2008 Notes that (a) each Original Security Document shall
have been
amended and restated in its entirety to secure the Original Secured
Obligations
as well as all of the Company's obligations under the 2006 SPA, the
2006 Notes,
the July 2008 SPA, the July 2008 Notes and the other "Transaction
Documents" (as
defined in the 2006 SPA and the July 2008 SPA; such Transaction
Documents, as
amended, restated, supplemented or otherwise modified, together
with the
Original Secured Transaction Documents, collectively the
"TRANSACTION
DOCUMENTS") and (b) each of the Guarantors and, with respect to the
Security
Agreement and the Pledge Agreement referred to below, the Company
shall have
executed and delivered to the Collateral Agent for the benefit of
itself and the
Buyers (i) this Guaranty, amending and restating the Original
Guaranty and
guaranteeing all Obligations (as defined in the Security
Agreement), (ii) the
Amended and Restated Security Agreement, dated as of the date
hereof (the
"SECURITY Agreement"), amending and restating the Original Security
Agreement
and granting the Collateral Agent a perfected, first priority
continuing
security interest in, and a lien on, such Guarantor's and the
Company's interest
in the Collateral (as defined below), and (iii) the Amended and
Restated Pledge
Agreement, dated as of the date hereof (as amended, restated,
supplemented or
otherwise modified, the "PLEDGE AGREEMENT"), amending and restating
the Original
Pledge Agreement and granting the Collateral Agent a perfected,
first priority
continuing security interest in, and a lien on, such Guarantor's
and the
Company's personal property described in the Pledge Agreement;
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WHEREAS, the Guarantors and the Company are mutually dependent on
each
other in the conduct of their respective businesses as an
integrated operation,
with the credit needed from time to time by each Guarantor and the
Company often
being provided through financing obtained by the Company and the
Guarantors and
the ability to obtain such financing being dependent on the
successful
operations of all of the Company and the Guarantors as a whole;
and
WHEREAS, each Guarantor has determined that the execution, delivery
and
performance of this Guaranty directly benefits, and is in the best
interest of,
such Guarantor.
NOW, THEREFORE, in consideration of the premises and the
agreements
herein and in order to induce the Buyers to perform under the
Purchase
Agreements, each Guarantor hereby agrees with Collateral Agent as
follows:
SECTION 1. DEFINITIONS. Reference is hereby made to the
Purchase
Agreements and the Notes for a statement of the terms thereof. All
capitalized
terms used in this Guaranty, which are defined in the Purchase
Agreements or the
Notes and not otherwise defined herein, shall have the same
meanings herein as
set forth therein.
SECTION 2. GUARANTY. The Guarantors, jointly and severally,
hereby
unconditionally and irrevocably, guaranty the punctual payment, as
and when due
and payable, by stated maturity or otherwise, of all Obligations
(as defined in
the Security Agreement) of the Company from time to time owing by
it in respect
of the Purchase Agreements, the Notes and the other Transaction
Documents,
including, without limitation, all interest that accrues after the
commencement
of any Insolvency Proceeding (as defined in the Security Agreement)
of the
Company or any Guarantor, whether or not the payment of such
interest is
unenforceable or is not allowable due to the existence of such
Insolvency
Proceeding, and all fees, commissions, expense reimbursements,
indemnifications
and all other amounts due or to become due under any of the
Transaction
Documents (such obligations, to the extent not paid by the Company,
being the
"GUARANTEED OBLIGATIONS"), and agrees to pay any and all expenses
(including
reasonable counsel fees and expenses) reasonably incurred by the
Collateral
Agent in enforcing any rights under this Guaranty. Without limiting
the
generality of the foregoing, each Guarantor's liability hereunder
shall extend
to all amounts that constitute part of the Guaranteed Obligations
and would be
owed by the Company to the Collateral Agent under the Purchase
Agreements and
the Notes but for the fact that they are unenforceable or not
allowable due to
the existence of an Insolvency Proceeding involving any Guarantor
or the Company
(each, a "TRANSACTION PARTY").
SECTION 3. GUARANTY ABSOLUTE; CONTINUING GUARANTY; ASSIGNMENTS.
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(a) The Guarantors, jointly and severally, guaranty that the
Guaranteed
Obligations will be paid strictly in accordance with the terms of
the
Transaction Documents, regardless of any law, regulation or order
now or
hereafter in effect in any jurisdiction affecting any of such terms
or the
rights of the Collateral Agent with respect thereto. The
obligations of each
Guarantor under this Guaranty are independent of the Guaranteed
Obligations, and
a separate action or actions may be brought and prosecuted against
any Guarantor
to enforce such obligations, irrespective of whether any action is
brought
against any other Transaction Party or whether any other
Transaction Party is
joined in any such action or actions. The liability of any
Guarantor under this
Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and
each Guarantor hereby irrevocably waives, to the extent permitted
by law, any
defenses it may now or hereafter have in any way relating to, any
or all of the
following:
(i) any lack of validity or enforceability of any Transaction
Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or
in
any other term of, all or any of the Guaranteed Obligations, or any
other
amendment or waiver of or any consent to departure from any
Transaction
Document, including, without limitation, any increase in the
Guaranteed
Obligations resulting from the extension of additional credit to
any Transaction
Party or otherwise;
(iii) any taking, exchange, release or non-perfection of any
Collateral (as defined in the Security Agreement), or any taking,
release or
amendment or waiver of or consent to departure from any other
guaranty, for all
or any of the Guaranteed Obligations;
(iv) any change, restructuring or termination of the corporate,
limited liability company or partnership structure or existence of
any
Transaction Party; or
(v) any other circumstance (including any statute of
limitations)
or any existence of or reliance on any representation by the
Collateral Agent
that might otherwise constitute a defense available to, or a
discharge of, any
Transaction Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as
the case may
be, if at any time any payment of any of the Guaranteed Obligations
is rescinded
or must otherwise be returned by the Collateral Agent or any other
Person upon
the insolvency, bankruptcy or reorganization of any Transaction
Party or
otherwise, all as though such payment had not been made.
(b) This Guaranty is a continuing guaranty and shall (i) remain in
full
force and effect until Satisfaction in Full of the Obligations (as
defined in
the Security Agreement, "SATISFACTION IN FULL") and shall not
terminate for any
reason prior to the Satisfaction in Full of the Obligations and
(ii) be binding
upon each Guarantor and its respective successors and assigns. This
Guaranty
shall inure to the benefit of and be enforceable by the Collateral
Agent and its
successors, and permitted pledgees, transferees and assigns.
Without limiting
the generality of the foregoing sentence, the Collateral Agent or
any Buyer may
pledge, assign or otherwise transfer all or any portion of its
rights and
obligations under and subject to the terms of any Transaction
Document to any
other Person, and such other Person shall thereupon become vested
with all the
benefits in respect thereof granted to such Collateral Agent or
Buyer herein or
otherwise, in each case as such pledge, assignment or transfer is
permitted
pursuant to the applicable Transaction Document. Notwithstanding
the foregoing
and for the avoidance of doubt, this Guaranty will expire and each
Guarantor
will be released from its obligation hereunder upon the
Satisfaction in Full of
the Obligations.
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SECTION 4. WAIVERS. To the extent permitted by applicable law,
each
Guarantor hereby waives promptness, diligence, notice of acceptance
and any
other notice with respect to any of the Guaranteed Obligations and
this Guaranty
and any requirement that the Collateral Agent exhaust any right or
take any
action against any other Transaction Party or any other Person or
any
Collateral. Each Guarantor acknowledges that it will receive direct
and indirect
benefits from the f
