Exhibit 3
[LOGO] NEWSTAR BUSINESS CREDIT
GUARANTY AGREEMENT
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This Guaranty Agreement (as may be amended, restated, or otherwise
modified from time to time, "Guaranty Agreement"), is executed and delivered
by the undersigned Guarantor, effective as of May 25, 2011, as provided
hereinbelow:
Definitions:
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The following terms shall have the following meanings wherever used in
this Guaranty Agreement:
"Administrative Agent" means NewStar Business Credit, LLC, a Delaware
limited liability company, in its capacity as the administrative agent for
the Lenders, and its successors and assigns.
"Company" means Huntleigh USA Corporation, a Missouri corporation and
its successors and assigns, including without limitation as debtor or
debtor-in-possession in any bankruptcy proceedings.
"Guaranteed Obligations" means all obligations and indebtedness now or
hereafter owing by the Company under or otherwise arising in connection with
the Loan and Security Agreement or any of the other Loan Documents,
including, without limitation, all loan repayment obligations, accrued
interest obligations, indemnity obligations and all obligations for payment
or reimbursement for fees, costs, Lender Expenses and other expenses as
provided by the Loan and Security Agreement or any of the other Loan
Documents, whether direct or indirect, primary or secondary, joint, several,
or joint and several, fixed or contingent, including any such obligations and
indebtedness, if any, which may be assigned to or acquired by Administrative
Agent or any Lender, and any and all renewals and extensions of the foregoing
or of any part thereof. Without limiting the foregoing, "Guaranteed
Obligations" includes all "Obligations" as defined by the Loan and Security
Agreement and also includes any of the foregoing arising during any
bankruptcy proceedings of Company and any interest or costs, fees expenses
that, but for the existence of any such bankruptcy proceedings, would arise
or accrue under the Loan Documents.
"Guarantor" means ICTS USA, Inc., a New York corporation, and its
successors and assigns.
"Lenders" means the lenders party to the Loan and Security Agreement,
together with their respective successors and permitted assigns, and "Lender"
means any of such Lenders.
"Loan and Security Agreement" means the certain Loan and Security
Agreement dated as of May 25, 2011, among Company, Administrative Agent and
the Lenders, as such agreement has been and hereafter may be renewed,
amended, restated, or otherwise modified from time to time.
Terms defined in the Loan and Security Agreement, wherever used herein,
unless otherwise defined herein, shall have the same meanings in this
Guaranty Agreement as are set forth in the Loan and Security Agreement, and
each of such definitions is incorporated herein by reference. Guarantor
expressly acknowledges that it has read and is familiar with all such
incorporated definitions and agrees that they
GUARANTY AGREEMENT (ICTS USA, Inc.) - Page 1
shall have the same effect and enforceability in this Guaranty Agreement as
though set forth herein at length.
Recitals:
Concurrently herewith, Company, Administrative Agent and the Lenders
have executed and entered into the Loan and Security Agreement, which
provides for Loans and extensions of credit by the Lenders to Company. This
Guaranty Agreement is required by the Loan and Security Agreement, and
Guarantor's execution and delivery hereof is a condition (among other
conditions) to Administrative Agent's and the Lenders' obligation to make
Loans and extensions of credit under the Loan and Security Agreement.
Guarantor has determined that (a) it will directly and indirectly benefit
from the availability of extensions of credit to Company under the Loan and
Security Agreement and from the other transactions evidenced by and
contemplated in the Loan Documents, (b) it will benefit, directly and
indirectly, from executing and delivering this Guaranty Agreement, (c) it is
in Guarantor's best interest, and within its organizational purpose, to
execute and deliver and, if called upon to do so, to perform its obligations
under this Guaranty Agreement, and (d) execution and delivery of this
Guaranty Agreement and the other Loan Documents to which Guarantor is a party
is necessary or convenient to the conduct, promotion, and attainment of the
business of Guarantor.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Guarantor hereby agrees as follows:
1. Guaranty of Guaranteed Obligations. As an inducement to
Administrative Agent and the Lenders to make the Loans or otherwise extend
credit and other financial accommodations to Company under the Loan and
Security Agreement, Guarantor, for value received, does hereby
unconditionally, irrevocably, and absolutely guarantee the prompt and full
payment and performance of the Guaranteed Obligations when due and at all
times thereafter. This Guaranty Agreement is and shall be an absolute,
unconditional, irrevocable, and continuing unlimited guaranty of payment, and
not solely of collection.
2. Representations and Warranties. Guarantor hereby represents and
warrants to Administrative Agent and the Lenders that Guarantor has received
and will receive a direct and indirect material benefit from the transactions
evidenced by and contemplated in the Loan and Security Agreement and the other
Loan Documents. This Guaranty Agreement is given by Guarantor in furtherance
of the direct and indirect business interests, and is necessary to the
conduct, promotion, and attainment of the businesses of Company. The value of
the consideration received and to be received by Guarantor is reasonably worth
at least as much as the liability and obligation of Guarantor hereunder.
Guarantor is currently informed of the financial condition of Company and of
all other circumstances which a diligent inquiry would reveal and which bear
upon the risk of nonpayment of the Guaranteed Obligations. Guarantor has read
and understands the terms and conditions of the Loan Documents. Guarantor is
familiar with, and has had an opportunity to review the books and records
regarding, the financial condition of Company and is familiar with the value
of any and all property intended to be security for the payment of all or any
part of the Guaranteed Obligations; provided, that Guarantor is not relying on
such financial condition or the existence or value of any such security as an
inducement to enter into this Guaranty Agreement. Guarantor has adequate means
to obtain, on a continuing basis, information concerning the financial
condition of Company. Guarantor has not been induced to enter into this
Guaranty Agreement on the basis of a contemplation, belief, understanding, or
agreement that any Person other than Company or Guarantor will be liable to
pay the Guaranteed Obligations. Neither Administrative Agent nor any Lender
has made any representation, warranty, or statement to Guarantor in order to
induce Guarantor to execute this Guaranty Agreement.
GUARANTY AGREEMENT (ICTS USA, Inc.) - Page 2
3. Covenants.
Guarantor shall (a) promptly notify Administrative Agent of any
legal action against Guarantor or its property, (b) preserve and maintain its
existence, good standing and authority to transact business in the state of
its organization, and also in all other jurisdictions where necessary for the
proper conduct of its business except where the failure to qualify could not
reasonably be expected to materially and adversely affect Guarantor or its
business, and maintain all of its properties, rights, privileges and
franchises necessary or desirable in the normal conduct of its business, (c)
keep and maintain adequate insurance by insurers acceptable to Administrative
Agent with respect to its business and properties, (d) file all tax reports
and returns required to be filed by it in the manner and at the times
required by applicable law, and shall pay all federal, state and local taxes
and charges imposed upon Guarantor when due, other than taxes, fees or
charges the amount or validity of which are currently being contested by
Guarantor in good faith by appropriate proceedings and with respect to which
reserves in accordance with GAAP have been provided on the books of
Guarantor, (e) conduct its business in material compliance with Applicable
Laws, and (f) furnish promptly to Administrative Agent, upon request, such
information and statements as Administrative Agent shall request from time to
time regarding Guarantor's business affairs, financial condition and results
of its operations. Guarantor shall not (g) grant, create or allow to exist
any security interest, lien or other encumbrance on any of its assets other
than in favor of Administrative Agent, (h) change its mailing address, chief
executive office, principal place of business or place where such records are
maintained, or state of organization, or change the location of any of its
Collateral without providing Administrative Agent at least 30 days prior,
written notice thereof, (i) directly or indirectly incur, or become liable in
connection with, or suffer to exist, any Debt for borrowed money or otherwise
under any promissory note, bond, indenture or similar instrument, whether by
guaranty, suretyship, endorsement (other than endorsement of negotiable
instruments for collection in the ordinary course of business), purchase or
repurchase agreement, agreement to provide funds or maintain working capital,
agreement to assure a creditor against loss or agreement to make investments
or otherwise), other than in favor of Administrative Agent, Subordinated
Debt, or trade payables in the normal and ordinary course of Guarantor's
business, (j) discontinue, or make any material change in, its business as
currently established, or enter any new or different line of business not
directly related to Guarantor's existing line of business, (k) sell or
dispose of any of its assets other than the sale of inventory in the ordinary
course of business or (l) dissolve or liquidate or become a party to any
merger or consolidation with any Person.
4. Obligations Not Impaired. Guarantor agrees that its obligations
under this Guaranty Agreement shall not be released, diminished, impaired,
reduced, or affected by the occurrence of any one or more of the following
events: (a) lack of organizational authority of Company; (b) any receivership,
insolvency, bankruptcy, or other proceedings affecting Company or its
property; (c) partial or total release or discharge of Company or any other
Person from the performance of any obligation contained in any instrument or
agreement evidencing, governing, or securing all or any part of the Guaranteed
Obligations, whether occurring pursuant to any Applicable Law or otherwise;
(d) any change in the time, manner, or place of payment of, or in any other
term of, or any increase or decrease in the amount of, all the Guaranteed
Obligations, or any portion thereof, or any other amendment or waiver of any
term of, or any consent to departure from any requirement of, any of the Loan
Documents; (e) the taking or accepting of any collateral security for all or
any part of the Guaranteed Obligations, this Guaranty Agreement, or any other
Guaranty; (f) the taking or accepting of any other Guaranty for all or any
part of the Guaranteed Obligations; (g) any failure to acquire, perfect, or
continue any security interest or lien on Collateral securing all or any part
of the Guaranteed Obligations or on any property securing this Guaranty
Agreement; (h) any exchange, release, or subordination of any security
interest or lien on any Collateral, or any release, amendment, waiver, or
subordination of any term of any guaranty of the Guaranteed Obligations or any
other impairment of any collateral security or guaranty now or hereafter
securing all or any part of the Guaranteed Obligations; (i) any failure to
dispose of any collateral security at any time
GUARANTY AGREEMENT (ICTS USA, Inc.) - Page 3
securing all or any part of the Guaranteed Obligations or this Guaranty
Agreement in a commercially reasonable manner or as otherwise may be required
by any Applicable Law; (j) any merger, reorganization, consolidation, or
dissolution of Company, Guarantor, or any other Person at any time liable for
any of the Obligations, any sale, lease, or transfer of any or all of the
assets of Company, Guarantor, or any other Person at any time liable for any
of the Obligations, or any change in name, business, organization, location,
composition, structure, or organization of Company, Guarantor or any other
Person at any time liable for any of the Obligations; (k) any change of
control or any other change in the capitalization or Equity Interest ownership
of Company, Guarantor or any other Person at any time liable for any of the
Obligations; (l) any invalidity or unenforceability of or defect or deficiency
in any of the Loan Documents; (m) avoidance or subordination of the Guaranteed
Obligations, or any portion thereof, (n) the unenforceability of all or any
part of the Guaranteed Obligations against Company because any interest
contracted for, charged, or received in respect of the Guaranteed Obligations
exceeds the amount permitted by any Applicable Law; (o) any waiver, consent,
extension, forbearance, or granting of any indulgence by Administrative Agent
or any Lender with respect to the Guaranteed Obligations or any provision of
any of the Loan Documents; (p) any delay in or lack of enforcement of any
remedies under the Loan Documents; (q) the act of creating all or any part of
the Guaranteed Obligations is ultra vires, or the officers or other
representatives creating all or any part of the Guaranteed Obligations acted
in excess of their authority; (r) any election of remedies by Administrative
Agent or any Lender; (s) any of the Loan Documents were forged; (t) the
election by Administrative Agent or any Lender in any proceeding under the
Bankruptcy Code of the application of Section 1111(b)(2) thereof; (u) any
borrowing or grant of a security interest by Company as debtor-in-possession,
under Section 364 of the Bankruptcy Code; (v) any use by Company (whether with
the consent of Administrative Agent or otherwise) of cash collateral during
the pendency of any bankruptcy proceeding; (w) the making of post-petition
loans or any other provision for the extension of post-petition credit to
Company as debtor-in-possession in any bankruptcy proceedings; (x) the
disallowance in bankruptcy of all or any portion of the claims of
Administrative Agent for payment of any of the Guaranteed Obligations; or (y)
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense available to Company or Guarantor (other than that the
Guaranteed Obligations shall have been indefeasibly paid and performed in
full).
5. Consent and Waiver.
(a) Guarantor hereby waives: (i) notice of acceptance of this
Guaranty Agreement; (ii) notice of any Loans or other financial
accommodations or the creation or existence of any Guaranteed
Obligations; (iii) notice of the amount of the Guaranteed Obligations;
(iv) notice of any adverse change in the financial condition of Company
or any other Person or of any other fact that might increase or
otherwise change Guarantor's risk with respect to the Guaranteed
Obligations, Company or any other Person under or in connection with
this Guaranty Agreement; (v) notice of presentment for payment, demand,
protest and notice thereof, notice of intent to accelerate, notice of
acceleration, notice of dishonor, diligence or promptness in
enforcement, and indulgences of every kind as to any promissory notes
or other instruments; (vi) notice of any of the events or circumstances
enumerated in Section 4, and all other notices and demands to which
Guarantor might otherwise be entitled (except if such notice is
specifically required to be given to Guarantor hereunder or under any
other Loan Documents); (vii) any requirement that Administrative Agent
or any Lender protect, secure, perfect, or insure its security interest
and liens on any Collateral or other property as security for the
Guaranteed Obligations or exhaust any right or take any action against
Company or any other Person or any Collateral or any other property
subject to a security interest or lien; (viii) the benefit of any
statute of limitation applicable to enforcement of the Guaranteed
Obligations, or any portion thereof, or any security interests or liens
in the Collateral or other property as security for the Guaranteed
Obligations or this Guaranty Agreement; (ix) all rights by which
Guarantor might be entitled to require suit on
GUARANTY AGREEMENT (ICTS USA, Inc.) - Page 4
an accrued right of action in respect of any of the Guaranteed
Obligations or require suit against Company or any other Person, whether
arising pursuant to Section 34.02 of the Texas Business and Commerce
Code, as amended, Section 17.001 of the Texas Civil Practice and
Remedies Code, as amended, Rule 31 of the Texas Rules of Civil
Procedure, as amended, or otherwise; or (x) any other defense of Company
or any other Person (other than that the Guaranteed Obligations shall
have been indefeasibly paid and performed in full, or in part, to the
extent of any such partial payment or performance).
(b) Guarantor hereby waives and agrees not to assert against
Administrative Agent or any Lender, to the extent allowed by any
Applicable Law: (i) any defense, setoff, counterclaim, or claim of any
kind or nature available to Company or any other Person against
Administrative Agent or any Lender arising directly or indirectly from
the present or future lack of perfection, sufficiency, validity, or
enforceability of the Guaranteed Obligations or any security interest
or lien in the Collateral or any other property as security for the
Guaranteed Obligations; or (ii) any right or defense arising by reason
of any claim or defense based upon an election of remedies by
Administrative Agent under any Applicable Law.
(c) Administrative Agent shall have the right to seek recourse
against Guarantor to the fullest extent provided for herein, and no
election by Administrative Agent to proceed in one form of action or
proceeding, or against any party, or on any obligation, shall
constitute a waiver of Administrative Agent's right to proceed in any
other form of action or proceeding or against other parties unless
Administrative Agent has expressly waived such right in writing.
Without limiting the foregoing, no action or proceeding by
Administrative Agent or any Lender under any document or instrument
evidencing the Guaranteed Obligations shall serve to diminish the
liability of Guarantor under this Guaranty Agreement except to the
extent that Administrative Agent finally and unconditionally shall have
realized indefeasible payment in full of the Guaranteed Obligations.
(d) Guarantor waives, and agrees that its liability hereunder
shall not be affected by, any neglect, delay, omission, failure, or
refusal of Administrative Agent or any Lender to (i) exercise or
properly or diligently exercise any right or remedy with respect to any
or all of the Guaranteed Obligations or the collection thereof or any
security interests or liens or other security for or Guaranty of the
Guaranteed Obligations, or any portion thereof, (ii) take or prosecute,
or properly or diligently take or prosecute, any action for the
collection of any or all of the Guaranteed Obligations against Company,
Guarantor or any other Person in respect of any or all of the
Guaranteed Obligations, (iii) foreclose or prosecute, or properly or
diligently foreclose or prosecute, any action in connection with any
agreement, document or instrument or arrangement evidencing, securing,
or otherwise affecting all or any part of the Guaranteed Obligations,
or (iv) mitigate damages or take any other action to reduce, collect,
or enforce the Guaranteed Obligations;
(e) Administrative Agent may at any time, without the consent
of or notice to Guarantor, without incurring responsibility to
Guarantor and without impairing, releasing, reducing, or affecting the
obligations of Guarantor hereunder: (i) change the manner, place, or
terms of payment of all or any part of the Guaranteed Obligations, or
renew, extend, modify, rearrange, refinance, refund, increase or alter
all or any part of the Guaranteed Obligations; (ii) sell, exchange,
release, surrender, subordinate, realize upon, or otherwise deal with
in any manner and in any order any Collateral and any security interest
or lien securing all or any part of the Guaranteed Obligations or this
Guaranty Agreement or setoff against all or any part of the Guaranteed
Obligations; (iii) neglect, delay, omit, fail, or refuse to take or
prosecute any action for the collection of all or any part of the
Guaranteed Obligations or this Guaranty Agreement or
GUARANTY AGREEMENT (ICTS USA, Inc.) - Page 5
to take or prosecute any action in connection with any of the Loan
Documents; (iv) exercise or refrain from exercising any rights against
Company or other Person, or otherwise act or refrain from acting; (v)
settle or compromise all or any part of the Guaranteed Obligations and
subordinate the payment of all or any part of the Guaranteed Obligations
to the payment of any indebtedness, liabilities, or obligations which
may be due or become due to Administrative Agent and/or any Lender; (vi)
release all or any one or more parties to any one or more of the Loan
Documents or grant forbearance or other indulgences to Company or any
other Person in respect thereof; (vii) amend or modify in any manner and
at any time (or from time to time) any of the Loan Documents; (viii)
partially or fully release or substitute any Guarantor, or enforce,
exchange, release, or waive any security for the Guaranteed Obligations,
or any portion thereof; (ix) bring suit against any and all Persons
liable or obligated in respect of the Guaranteed Obligations,
collectively together, jointly and severally or separately, and apply
any amounts obtained by Administrative Agent in such manner as
Administrative Agent may elect, subject to the Loan Documents; and (x)
apply to the Guaranteed Obligations any sums paid to Administrative
Agent or any Lender by Company, Guarantor or any other Person as
provided by the Loan Documents.
(f) Should Administrative Agent or any Lender seek to enforce
this Guaranty Agreement by action in any court or otherwise, Guarantor
waives any requirement, substantive or procedural, that (i) rights or
remedies be enforced first against Company or any other Person liable
for all or any part of the Guaranteed Obligations, including, without
limitation, that a judgment first be rendered against Company or any
such Person, or that Company or any such Person should be joined in
such cause or (ii) enforcement shall first be made against any
Collateral or other property which shall ever have been given to secure
all or any part of the Guaranteed Obligations or this Guaranty
Agreement.
(g) Guarantor's obligations under this Guaranty Agreement shall
not be impaired by any action, if any, which results in the denial or
impairment of any right to seek a deficiency against Company.
(h) Guarantor agrees that it has the sole responsibility for
keeping itself informed of the financial condition of Company and of
all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations or any part thereof, and that neither
Administrative Agent nor any Lender shall have any obligation or duty
to advise Guarantor of information known to any of them regarding such
condition or any such circumstance.
(i) Guarantor consents and agrees that neither Administrative
Agent nor any Lender shall not have any obligation to marshal assets
securing the Guaranteed Obligations in favor of Guarantor.
(j) Administrative Agent may, at any time and from time to time
in its discretion and with or without valuable consideration, allow
substitution or withdrawal of Collateral or other security and release
Collateral or other security without impairing or diminishing the
indebtedness, liabilities, or obligations of Guarantor under this
Guaranty Agreement.
(k) Any determination by a court of competent jurisdiction of
the amount of any principal and/or interest or other amount
constituting any of the Guaranteed Obligations shall be conclusive and
binding on Guarantor irrespective of whether Guarantor was a party to
the suit or action in which such determination was made.
GUARANTY AGREEMENT (ICTS USA, Inc.) - Page 6
6. Default. Upon the occurrence and during the continuation of an
Event of Default, Guarantor agrees to pay to Administrative Agent, for the
benefit of the Lenders, at its office located in Dallas County, Texas, or at
such other place as Administrative Agent may specify to Guarantor in writing,
on demand by Administrative Agent and without further notice of dishonor and
without notice of any kind to Company, Guarantor, or any other Person, the
full unpaid amount of the Guaranteed Obligations, in immediately available
funds, or such lesser amount, if any, as may then be due and payable to, and
demanded by, Administrative Agent from time to time. If acceleration of the
time for payment of any amount payable by Company under or with respect to any
of the Guaranteed Obligations is stayed or otherwise delayed upon the
insolvency, bankruptcy, or reorganization of Company, all such amounts
otherwise subject to acceleration under the terms of the Guaranteed
Obligations shall nonetheless be payable by Guarantor hereunder promptly on
demand by Administrative Agent, and Guarantor, jointly and severally,
expressly and unconditionally agrees to make such payment to Administrative
Agent in full.
7. No Waiver. No failure on the part of Administrative Agent to
exercise, and no forbearance, delay or omission by Administrative Agent in
exercising, any right or remedy hereunder shall impair such right or remedy or
operate or be construed as a waiver thereof or any acquiescence therein, nor
shall any single or partial exercise of any right or remedy hereunder preclude
any other or further exercise thereof or the exercise of any other right or
remedy hereunder.
8. Payment by Guarantor. Whenever Guarantor pays any sum which is or
may become due under this Guaranty Agreement, written notice must be delivered
to Administrative Agent contemporaneously with such payment. For purposes of
this Guaranty Agreement, in the absence of such notice, any sum received by
Administrative Agent or any Lender on account of the Guaranteed Obligations
shall be conclusively deemed paid by Company.
9. Binding Effect. This Guaranty Agreement is for the benefit of
Administrative Agent and the Lenders and their successors and assigns, and in
the event of an assignment by Administrative Agent or any Lender, or their
successors or assigns, of the Guaranteed Obligations, or any part thereof, the
rights and benefits hereunder, to the extent applicable to the indebtedness,
liabilities, and obligations so assigned, shall be deemed transferred with
such indebtedness, liabilities, and obligations without necessity of further
express action. This Guaranty Agreement is binding upon Guarantor, and its
successors and assigns.
10. Subordination of Indebtedness and Liens. The payment of any and
all principal of and interest on all indebtedness of Company, whether direct,
indirect, fixed, contingent, liquidated, unliquidated, joint, several, or
joint and several, now or hereafter existing, due or to become due to
Guarantor under any and all circumstances, including, without limitation, any
rights of subrogation of Guarantor in respect of any payment by Guarantor
under this Guaranty Agreement (herein called the "Subordinated Debt"), shall
in all respects be subordinate and junior in right of payment and enforcement
to the prior payment and enforcement in full of the Guaranteed Obligations as
provided in this Section. Except to the extent, if any, as may be expressly
permitted by the Loan and Security Agreement, no payment shall be made on or
with respect to the Subordinated Debt unless and until the Guaranteed
Obligations shall have been paid and performed in full. In the event that
Guarantor shall receive any payment on account of the Subordinated Debt in
violation of this Section, Guarantor will hold, or cause to be held (as the
case may be), any amount so received in trust for the benefit of
Administrative Agent and will forthwith deliver, or cause to be delivered (as
the case may be), such payment to Administrative Agent, in the form received,
to be applied to the Guaranteed Obligations. All security interests and liens,
if any, at any time securing payment of all or any part of the Subordinated
Debt (herein called the "Subordinated Liens") shall be and remain inferior and
subordinate to the security interests and liens securing payment of all or any
part of the Guaranteed Obligations, regardless of whether such
GUARANTY AGREEMENT (ICTS USA, Inc.) - Page 7
Subordinated Liens presently exist or are hereafter created or when such
Subordinated Liens were created, perfected, filed, or recorded (provided that
the foregoing shall not be interpreted or deemed to allow the existence of any
security interests or liens that are prohibited by the Loan Documents).
Guarantor shall not exercise or enforce any creditors' rights or remedies that
it may have against Company, or foreclose, repossess, sequester, or otherwise
institute any action or proceeding (whether judicial or otherwise, including,
without limitation, the commencement of, or joinder in, any bankruptcy,
insolvency, reorganization, liquidation, receivership, or other debtor relief
law) to enforce the Subordinated Debt or any Subordinated Lien on any assets
of Company unless and until the Guaranteed Obligations shall have been paid
and performed in full. The terms and provisions of this Section are given by
Guarantor as additional rights and benefits to any and all other subordination
agreements heretofore, concurrently herewith, or hereafter executed by
Guarantor to or in favor of Administrative Agent, and nothing in this Guaranty
Agreement shall be deemed to in any way negate or replace any other such
previous, concurrent, or subsequent subordination agreements.
11. Right of Setoff. Guarantor irrevocably authorizes Administrative
Agent to charge any account of Guarantor maintained with Administrative Agent
or any Lender with such amount as may be necessary from time to time to pay
any Guaranteed Obligations when due. Guarantor agrees that Administrative
Agent and the Lenders shall have a contractual right to setoff any and all
deposits or other sums at any time credited by or due by Guarantor against any
part of the Guaranteed Obligations during the existence of an Event of
Default.
12. Invalid Provisions. If any provision of this Guaranty Agreement is
held to be illegal, invalid, or unenforceable under present or future laws
effective during the term hereof, such provision shall be fully severable,
this Guaranty Agreement shall be construed and enforced as if such illegal,
invalid, or unenforceable provision was not a part hereof, and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its
severance herefrom. Notwithstanding any language to the contrary contained
herein, no provision herein or in any other Loan Document evidencing the
Guaranteed Obligations shall require the payment or permit the collection of
interest in excess of the maximum permitted by any Applicable Law.
13. Modification in Writing. No modification, consent, amendment, or
waiver of any provision of this Guaranty Agreement, and no consent to any
departure by Guarantor herefrom, shall be effective unless the same shall be
in writing and signed by a duly authorized officer of Administrative Agent
and, as to any modification or amendment, Guarantor, and then shall be
effective only in the specific instance and for the specific purpose for which
given.
14. Limited Effect of Notices; Consents. No notice to or demand on, or
consent by, Guarantor in any case shall, of itself, entitle Guarantor to any
other or further notice or demand, or right to grant or refuse consent, in
similar or other circumstances.
15. Cumulative Rights. All rights and remedies of Administrative Agent
under this Guaranty Agreement are cumulative of each other and of every other
right or remedy which Administrative Agent or any other Lender may otherwise
have under any applicable law or under any other agreement.
16. Expenses. Guarantor agrees to pay on demand all costs and expenses
incurred by Administrative Agent in connection with the negotiation,
preparation, execution, and performance of this Guaranty Agreement and any and
all amendments, modifications, renewals, restatements, and/or supplements
hereto from time to time, including, without limitation, reasonable attorneys
fees. If Guarantor should breach or fail to perform any provision of this
Guaranty Agreement, Guarantor agrees to pay to Administrative Agent all costs
and expenses incurred by Administrative Agent in the enforcement of this
Guaranty Agreement from time to time, including, without limitation,
reasonable attorneys fees.
GUARANTY AGREEMENT (ICTS USA, Inc.) - Page 8
17. Limitations. Notwithstanding anything in this Agreement to the
contrary, the amount of Guaranteed Obligations secured by this Guaranty shall
be limited to a maximum aggregate amount equal to the largest amount that
would not render this Guaranty subject to avoidance as a fraudulent transfer
or conveyance under any Applicable Laws, after giving effect to all other
liabilities of Guarantor, contingent or otherwise, that are relevant under
such laws, and after giving effect to the value, as assets (as determined
under the applicable provisions of such laws) of any rights of Guarantor to
contribution, indemnity, and/or subrogation from Company or any other Person.
18. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS GUARANTY AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REFERENCE
TO THE RULES THEREOF RELATING TO CONFLICTS OF LAW. GUARANTOR HEREBY
IRREVOCABLY SUBMITS ITSELF TO THE JURISDICTION OF THE STATE AND FEDERAL
COURTS LOCATED IN DALLAS COUNTY, TEXAS AND AGREES AND CONSENTS THAT SERVICE
OF PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER RELATIONSHIP AMONG ADMINISTRATIVE AGENT, LENDERS AND
GUARANTOR BY ANY MEANS ALLOWED UNDER STATE OR FEDERAL LAW. ANY LEGAL
PROCEEDING ARISING OUT OF OR IN ANY WAY RELATED TO THIS GUARANTY AGREEMENT OR
ANY OTHER RELATIONSHIP AMONG ADMINISTRATIVE AGENT, LENDERS AND GUARANTOR MAY
BE BROUGHT AND LITIGATED IN ANY ONE OF THE STATE OR FEDERAL COURTS LOCATED IN
DALLAS COUNTY, TEXAS HAVING JURISDICTION. THE PARTIES HERETO HEREBY WAIVE
AND AGREE NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, THAT
ANY SUCH PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
THEREOF IS IMPROPER.
(b) EACH OF GUARANTOR, ADMINISTRATIVE AGENT AND LENDER HEREBY
(i) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
GUARANTY AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR ASSOCIATED
HEREWITH; (ii) IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY
LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES; (iii) CERTIFIES THAT NO PARTY HERETO NOR
ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS; AND (D) ACKNOWLEDGES THAT
IT HAS BEEN INDUCED TO ENTER INTO THIS GUARANTY AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION.
19. NO ORAL AGREEMENTS. THIS GUARANTY AGREEMENT REPRESENTS THE FINAL
AGREEMENT AMONG GUARANTOR, ADMINISTRATIVE AGENT AND LENDERS RELATING TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG GUARANTOR, ADMINISTRATIVE AGENT AND LENDERS.
THIS
GUARANTY AGREEMENT (ICTS USA, Inc.) - Page 9
GUARANTY AGREEMENT SUPERSEDES ALL PRIOR (IF ANY) ORAL AGREEMENTS,
ARRANGEMENTS, OR UNDERSTANDINGS RELATING TO THE SUBJECT MATTER HEREOF.
20. Notices. All notices or demands by any party relating to this
Guaranty Agreement shall be in writing and (except for financial statements
and other informational documents which may be sent by first-class mail,
postage prepaid) shall be (a) personally delivered, (b) sent by registered or
certified mail, postage prepaid, return receipt requested, or (c) sent by
receipted overnight delivery service or (d) sent by telecopy, to Guarantor or
to Administrative Agent, as the case may be, at their addresses and fax
numbers set forth below:
If to Guarantor: Huntleigh USA Corporation
10332 Old Olive Street Road
St. Louis, Missouri 63141
Fax No.: (314) 447-5150
Attention: Richard Sporn, President
With a copy to:
McLaughlin & Stern, LLP
260 Madison Avenue, 18th Floor
New York, New York 10016
Attn: David W. Sass, Esq.
Fax No.: (212) 448-6277
If to
Administrative Agent: NewStar Business Credit, LLC
8080 North Central Expressway, Suite 800
Dallas, Texas 75206
Attention: Portfolio Manager, URGENT
Fax No.: (214) 242-5810
With a copy to:
Hunton & Williams LLP
1455 Ross Avenue, Suite 3700
Dallas, Texas 75202
Attn: Daniel C. Garner
Fax No.: 214-740-7122
Any such address or fax number may be changed by notice in writing in the
foregoing manner given to the other. All notices or demands sent in
accordance with this Section 20 shall be deemed received on the earlier of
(x) the date of actual receipt, (y) three (3) business days after the deposit
thereof in the mail or one (1) business day after deposit thereof with an
overnight delivery service, or (z) when properly transmitted by telecopy.
21. Survival. All representations, warranties, covenants, and
agreements of Guarantor in this Guaranty Agreement shall survive the execution
of this Guaranty Agreement.
22. Counterparts. This Guaranty Agreement may be executed in any
number of counterparts and a telecopy of any such executed counterpart shall
be deemed valid as an original.
GUARANTY AGREEMENT (ICTS USA, Inc.) - Page 10
IN WITNESS WHEREOF, the undersigned have executed this Guaranty
Agreement as of the effective date specified in the introductory paragraph
hereinabove.
GUARANTOR:
----------
ICTS USA, INC.
By: /s/ Avraham Dan
--------------------------------------
Avraham Dan, President
GUARANTY AGREEMENT (ICTS USA, Inc.) - Page 11