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
