Exhibit 10.17
INVESTOR GUARANTY
AGREEMENT
THIS INVESTOR GUARANTY
AGREEMENT (this “ Guaranty ”), is
made and entered into as of April 22, 2005, by TL VENTURES IV L.P., TL VENTURES IV INTERFUND
L.P., PA EARLY STAGE PARTNERS III, L.P., and
SAFEGUARD DELAWARE,
INC. (each a “ Guarantor ” and
collectively, the “ Guarantors ”), in favor of
COLUMBIA PARTNERS, L.L.C.
INVESTMENT MANAGEMENT, in its capacity as agent (the
“ Agent ”) for the Lenders under the Credit
Agreement (as hereinafter defined) and LENDERS (as defined in the Credit
Agreement).
RECITALS:
WHEREAS,
Traffic.com, Inc., a Delaware corporation (f/k/a Mobility
Technologies, Inc.) (the “ Borrower ”),
Agent and Lenders entered into a Credit Agreement, dated as of
March 29, 2002, as amended, including without limitation, by that
certain Waiver and Fifth Amendment to Amended and Restated Credit
Agreement dated of even date herewith (the “ Fifth
Amendment, ” and collectively with all previous
amendments, the “ Credit Agreement ”), pursuant
to which Lenders have provided to Borrower certain extensions of
credit and other financial accommodations; and
WHEREAS, Guarantors
are investors in Borrower and will derive substantial direct and
indirect benefit for the transactions contemplated by the Credit
Agreement; and
WHEREAS, it is a
condition precedent to Agent’s and Lenders’ willingness
to enter into the Fifth Amendment that Guarantors execute and
deliver to Agent this Guaranty;
NOW, THEREFORE, in
consideration of the premises and in order to induce the Agent and
Lenders to enter into the Fifth Amendment and to continue to
provide credit extensions and other financial accommodations to
Borrower, Guarantors hereby agree with Agent, for the benefit of
Agent and Lenders, as follows:
AGREEMENT:
1.
Definitions
. Capitalized terms
used in this Guaranty and not defined in this Guaranty shall have
the respective meanings set forth in the Credit Agreement. All
references herein to any Loan Document or other document or
instrument refer to the same as from time to time amended,
supplemented or restated. As used herein, terms defined above in
the introductory paragraph and in the Recitals shall have the
meanings indicated above, and the following terms shall have the
following meanings:
“ Aggregate Liability ”
shall mean $10,000,000 less the aggregate amount of gross proceeds
received by Borrower from investors other than the Guarantors
pursuant to one or more Qualified Equity Financings.
“ EBITDA ” has the meaning
given such term in the Credit Agreement.
“ EBITDA Milestone ” shall
mean, with respect to Borrower, positive EBITDA for both
(a) three (3) consecutive fiscal quarters and
(b) for the applicable trailing twelve (12) month
period.
“ Equity Commitment ” means
that certain Equity Commitment of even date herewith by and between
the Guarantors and Borrower.
“ Funding Percentage ” shall
mean for each Guarantor, a fraction (a) the numerator of which
is such Guarantor’s Commitment, and (b) the denominator
of which is the Aggregate Liability less the aggregate Qualifying
Credits attributable to all Guarantors.
“ Guaranteed Obligations ”
shall mean collectively all of the Indebtedness, obligations and
undertakings described in subsections (a) and (b) of
Section 2.
“ Guarantor’s Base Liability
” shall mean, for each Guarantor, the Aggregate Liability
multiplied by the percentage set forth next to each such
Guarantor’s name on Exhibit A attached
hereto.
“ Guarantor’s Commitment
” shall mean, for each Guarantor, such Guarantor’s Base
Liability less any Qualifying Credits attributable to such
Guarantor.
“ Obligor ” shall mean any
Person obligated to make payments in respect of any of the
Guaranteed Obligations.
“ Qualifying Credits ” shall
mean sum of (a) all funds provided by such Guarantor pursuant
to Sections 2(a) and 2(b) hereof, and (b) the aggregate amount
of gross proceeds received by Borrower from such Guarantor pursuant
to one or more Qualified Equity Financings not otherwise included
in the amounts referenced in clause (a) above.
2.
Guaranty
.
(a)
Subject to Section 2(d), each Guarantor hereby irrevocably,
absolutely, and unconditionally, and severally and not jointly with
each other Guarantor, guarantees to Agent, for the benefit of Agent
and Lenders, the prompt, complete, and full payment when due, and
no matter how the same shall become due, of all principal and
unpaid interest with respect to the Notes, in the event that
(i) Borrower is then subject to an Insolvency Proceeding or
(ii) such Guarantor has failed to completely and fully perform
the Guaranteed Obligations as set forth in Section 2(b). Subject to
Sections 2(b) and 2(d), if Borrower shall for any reason fail to
pay any Guaranteed Obligation, as and when such Guaranteed
Obligation shall become due and payable (after giving effect to any
applicable grace periods), whether at its stated maturity, as a
result of the exercise of any power to accelerate, or otherwise,
each Guarantor will pay to the Agent for the ratable benefit of
Agent and Lenders, (x) upon not less than thirty (30) days prior
written notice to such Guarantor by Agent under the circumstances
described in clause (i) of the first sentence of this
Section 2(a) such Guarantor’s Funding Percentage of
the Guaranteed Obligations, and (y) upon demand under the
circumstances described in clause (ii) of the first sentence
of this Section 2(a), the unpaid Guaranteed Obligations owing
by such Guarantor. For
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purposes of this Section 2(a), any payment
made to Agent hereunder shall, at the option of each Guarantor, in
its sole discretion, be deemed to constitute consideration paid to
the Borrower pursuant to the Equity Commitment; provided, however,
that the failure of such payment to be determined or construed as
such by and between Borrower and such Guarantor shall have no
effect on and shall in no way diminish or eliminate such
Guarantor’s obligations to Agent and Lender
hereunder.
(b)
Subject to Section 2(d), each Guarantor hereby irrevocably,
absolutely, and unconditionally guarantees to Agent, for the
benefit of Agent and Lenders, the prompt, complete and full
performance by Borrower of the requirement set forth in
Section 6.1.16 of the Credit Agreement. If Borrower shall for
any reason fail to perform promptly the Guaranteed Obligations set
forth in this Section 2(b), each Guarantor will, without
demand by Agent or any Lender, cause such Guaranteed Obligation to
be performed in accordance with the requirements of
Section 6.1.16 of the Credit Agreement or, to the extent of
such Guarantor’s Commitment and upon not less than thirty
(30) days prior written notice to such Guarantor by Agent (such
timeframe to run concurrently with any notice requirements to
Borrower in connection with cure period set forth in
Section 6.1.16 of the Credit Agreement), provide to Borrower,
pursuant to one or more Qualified Equity Financings as is more
fully set forth in the Equity Commitment, its Funding Percentage of
sufficient funds necessary for, Borrower to comply with the terms
of Section 6.1.16 of the Credit Agreement.
(c)
As between Guarantors and Agent, this Guaranty shall be considered
a primary and liquidated, several and not joint liability of
Guarantors. This Guaranty constitutes a guaranty of payment, not of
collection. Without limiting the generality of the foregoing,
each Guarantor’s liability hereunder shall extend to and
include all post-petition interest, expenses, and other duties and
liabilities of Obligors described above in Sections 2(a) and
2(b), which would be owed by an Obligor even if they are
unenforceable or not allowable due to the existence of a
bankruptcy, reorganization, or similar proceeding involving such
Obligor.
(d)
Each Guarantor’s respective maximum aggregate liability
hereunder shall be limited to an amount equal to such
Guarantor’s Base Liability. Each Guarantor’s remaining
liability hereunder at any time shall equal such Guarantor’s
Commitment.
3.
Unconditional
Guaranty .
(a)
No action that Agent or any Lender may take or omit to take in
connection with any of the Loan Documents, any of the Guaranteed
Obligations (or any other indebtedness owing by any Obligor to
Agent or any Lender), or any security therefor, and no course of
dealing of Agent or any Lender with any Guarantor or any other
Person, shall release or diminish any Guarantor’s
obligations, liabilities, agreements or duties hereunder, affect
this Guaranty in any way, or afford any Guarantor any recourse
against Agent or any Lender, regardless of whether
any such action or inaction may increase any risks to or
liabilities of Agent, any Lender or any Obligor or increase any
risk to or diminish any safeguard of any security for the
Guaranteed Obligations. Without limiting the foregoing, each
Guarantor hereby expressly agrees that Agent and Lenders may, from
time to time, without notice to or the consent of such Guarantor,
do any or all of the following, which shall not affect such
Guarantor’s liability hereunder:
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(i)
amend, change or modify, in whole or in part, any one or more of
the Loan Documents (except an amendment to a Loan Document to which
such Guarantor is a party to the extent such amendment requires the
consent of such Guarantor) and give or refuse to give any waivers
or other indulgences with respect thereto;
(ii)
neglect, delay, fail, or refuse to take or prosecute any action for
the collection or enforcement of any of the Guaranteed Obligations,
to foreclose or take or prosecute any action in connection with any
security therefor or any Loan Document, to bring suit against any
Obligor or any other Person, or to take any other action concerning
the Guaranteed Obligations or the Loan Documents;
(iii)
accelerate, change, rearrange, extend, or renew the time, rate,
terms, or manner for payment or performance of any one or more of
the Guaranteed Obligations (whether for principal, interest, fees,
expenses, indemnifications, affirmative or negative covenants, or
otherwise);
(iv)
compromise or settle any unpaid or unperformed Guaranteed
Obligation or any other obligation or amount doe or owing, or
claimed to be due or owing, under any one or more of the Loan
Documents;
(v)
take, exchange, amend, eliminate, surrender, release, or
subordinate any or all security for any or all of the Guaranteed
Obligations, accept additional or substituted security therefor,
and perfect or fail to perfect Agent’s or any Lender’s
rights in any or all Collateral;
(vi)
discharge, release, substitute or add Obligors in respect of any of
the Guaranteed Obligations or fail to enforce any obligation of any
Obligor; or
(vii)
apply all monies received from any Obligor in respect of any of the
Guaranteed Obligations or others, or from any security for any of
the Guaranteed Obligations, as it may determine to be in its best
interest, without in any way being required to marshal security or
assets or to apply all or any part of such monies upon any
particular Guaranteed Obligations.
(b)
No action or inaction of any Obligor or any other Person, and no
change of law or circumstances, shall release or diminish such
Guarantor’s obligations, liabilities, agreements, or duties
hereunder, affect this Guaranty in any way, or afford such
Guarantor any recourse against Agent or any Lender. Without
limiting the foregoing, the obligations, liabilities, agreements,
and duties of such Guarantor under this Guaranty shall not be
released, diminished, impaired, reduced, or affected by the
occurrence of any or all of the following from time to time, even
if occurring without notice to or without the consent of such
Guarantor:
(i)
any voluntary or involuntary liquidation, dissolution, sale of all
or substantially all assets, marshaling of assets or liabilities,
receivership, conservatorship, assignment for the benefit of
creditors, insolvency, bankruptcy, reorganization, arrangement, or
composition of any Obligor or any other proceedings involving any
Obligor or any of the assets
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of
any Obligor under laws for the protection of debtors, or any
discharge, impairment, modification, release, or limitation of the
liability of, or stay of actions or lien enforcement proceedings
against, any Obligor, any properties of any Obligor, or the estate
in bankruptcy of any Obligor in the course of or resulting from any
such proceedings;
(ii)
the failure by Agent or any Lender to file or enforce a claim in
any proceeding described in the immediately preceding
subsection (i) or to take any other action in any
proceeding to which any Obligor is a party;
(iii)
the release by operation of law of any Obligor from any of the
Guaranteed Obligations or any other obligations to Agent or any
Lender;
(iv)
the invalidity, deficiency, illegality, or unenforceability of any
of the Guaranteed Obligations or the Loan Documents, in whole or in
part, any bar by any statute of limitations or other law of
recovery on any of the Guaranteed Obligations, or any defense or
excuse for failure to perform on account of force majeure, act of
God, casualty, impossibility, impracticability, or other defense or
excuse of any Obligor whatsoever, in each case
other than the actual final payment in cash and performance in full
of the Guaranteed Obligations in accordance with the terms of the
Loan Documents;
(v)
the fact that such Guarantor may have incurred directly part of the
Guaranteed Obligations or is otherwise primarily liable therefor;
or
(vi)
wit
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