exv10w3w9







Exhibit 10.3.9




GUARANTY




     GUARANTY
(the “Guaranty”), dated as of January 1, 2006 of Global Monitoring Systems, Inc.
(“GMS”) in favor of American Capital Financial
Services, Ltd., as agent (the “Agent”) for the
benefit of the purchasers (the “Purchasers”) identified on Annex A to the Amended and Restated Note
and Equity Purchase Agreement dated as of October 29, 2004 by
and among IST Acquisitions, Inc., a
Delaware corporation (“Parent”), Imaging and Sensing Technology Corporation, a New York
corporation (“Borrower”), IST Conax Nuclear, INC., a New York corporation, I.S. Technology de
Puerto Rico, Inc., a Delaware corporation, Imaging and Sensing Technology Ineternational Corp., a
New York corporation, IST Instruments, Inc., a New York corporation, Quadtek, Inc., a Washington
corporation (together with Borrower and Parent, the “Loan
Parties”) and Agent, as amended
(collectively, the Purchase Agreement”).



     WHEREAS, pursuant to the terms of the Purchase Agreement, the Purchasers have agreed to lend
the Loan Parties: (i) $15,000,000 in aggregate principal amount as evidenced by the Senior Term A
Notes due May 24, 2009, (ii) $7,500,000 in aggregate principal amount as evidenced by the Senior
Term B Notes due May 24, 2010, (iii) $4,000,000 in aggregate principal amount as evidenced by the
Senior Term C Notes due October 29, 2011; (iv) $7,500,000 in aggregate principal amount as evidenced
by the Senior Subordinated Notes due May 24, 2011; (v) $1,250,000 in aggregate principal amount as
evidenced by the Junior Subordinated Notes due May 24, 2012 and (vi) a Revolving Loan Facility in a
maximum aggregate principal amount of $5,250,000 as evidenced by the Revolving Notes of the Loan
Parties payable to the Purchasers (together, the “Notes”);



     WHEREAS, pursuant to the Master Restructuring Agreement, dated as of December 22, 2005 among
GMS, Parent and the other parties thereto, the stockholders of Parent will contribute their shares
of Parent to GMS in exchange for shares of GMS (the
“Restructuring”).



     WHEREAS, immediately after the effectiveness of the Restructuring, Parent proposes to to
convert into a limited liability company under the laws of Delaware
(the “Conversion”);



     WHEREAS, Parent has requested that the Agent and Purchasers consent to the Conversion and
Restructuring and waive the applicability of any provisions of the Purchase Agreement that may be
breached as a result of the Conversion and Restructuring (the
“Consent”);



     WHEREAS, it is a condition to the Consent by the Agent and Purchaser that GMS enter into this
Guaranty and that GMS enter into a Pledge and Security Agreement in the form attached to the
Consent to secure GMS’s obligations hereunder; and



     WHEREAS, GMS is willing to enter into this Guaranty to provide additional security for the
payment and performance of the obligations under the terms of the Purchase Agreement; and



     WHEREAS, capitalized terms used herein without definition shall have the respective
meanings assigned thereto in the Purchase Agreement.



 









 





     NOW, THEREFORE, GMS hereby agrees:



     Section 1. Guaranty by GMS. From and after the date hereof, GMS hereby
absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as
surety, the full and punctual payment when due, whether at stated maturity or earlier, by reason of
acceleration, mandatory prepayment or otherwise (including, without limitation, upon a demand in
the event of an Event of Default under the Purchase Agreement) in accordance herewith, the Notes
and all other Obligations of the Loan Parties under the Notes and any other Purchase Document (the
“Guaranteed Obligations”), whether or not from time to time reduced or extinguished or hereafter
increased or incurred, whether or not recovery is or hereafter may become barred by any statute of
limitations, whether or not enforceable, whether now or hereafter existing, and whether due or to
become due, including principal, interest (including interest at the contract rate applicable upon
default accrued or accruing after the commencement of any proceeding under the United States
Bankruptcy Code and any amendments thereto (Title 11, United States
Code) (the “Bankruptcy Code”)
whether or not such interest is an allowed claim in such proceeding), fees and costs of collection.
This Guaranty constitutes a guaranty of payment and not of collection. GMS hereby further agrees
that, if any payment made by the Loan Parties or GMS and applied to the Guaranteed Obligations is
at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be refunded or repaid, then, to the extent of such payment or
repayment, GMS’s liability hereunder shall be and remain in full force and effect, as fully as if
such payment had never been made. If, prior to any of the foregoing, this Guaranty shall have been
cancelled or surrendered, this Guaranty shall be reinstated in full force and effect, and such
prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect
the obligations of GMS in respect of the amount of such payment.



     Section 2.
Authorization; Other Agreements. Agent, for the benefit of
Purchasers is hereby authorized, without notice to, or demand upon, GMS, which notice and demand
requirements each are expressly waived hereby, and without discharging or otherwise affecting the
obligations of GMS hereunder (which obligations shall remain absolute and unconditional
notwithstanding any such action or omission to act), from time to time, to do each of the
following:



     (a) supplement, renew, extend, accelerate or otherwise change the time for payment
of, or other terms relating to, the Guaranteed Obligations, or any part of them, or otherwise
modify, amend or change the terms of any promissory note or other agreement, document or
instrument (including any Transaction Document) now or hereafter executed by the Loan Parties
and delivered to Agent or any Purchaser, including any increase or decrease of principal or the
rate of interest thereon;



     (b) waive or otherwise consent to noncompliance with any provision of any
instrument evidencing the Guaranteed Obligations, or any part thereof, or any other instrument
or agreement in respect of the Guaranteed Obligations (including any Transaction Document)
now or hereafter executed by the Loan Parties and delivered to Agent or any Purchaser;



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     (c) accept partial payments on the Guaranteed Obligations;



     (d) receive, take and hold additional security or collateral for the payment of the
Guaranteed Obligations or any part of them and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, otherwise alter and release any
such additional security or collateral;



     (e) settle, release, compromise, collect or otherwise liquidate the Guaranteed
Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any
security or collateral for the Guaranteed Obligations or any part of them or any other
guaranty therefor, in any manner;



     (f) add, release or substitute any one or more other guarantors, makers or endorsers
of the Guaranteed Obligations or any part of them and otherwise deal with the Loan Parties or
any other guarantor, maker or endorser;



     (g) apply to the Guaranteed Obligations any payment or recovery from the Loan
Parties, from GMS or from any other guarantor, maker or endorser of the Guaranteed
Obligations or any part of them, in each case whether such Guaranteed Obligations are secured
or unsecured or guaranteed or not guaranteed by others;



     (h) apply to the Guaranteed Obligations any payment or recovery from GMS of any sum
realized from security furnished by the Loan Parties upon their indebtedness or obligations to the
Agent or any Purchaser, in each case whether or not such indebtedness or obligations relate to the
Guaranteed Obligations; and



     (i) refund at any time any payment received by Agent or any Purchaser in respect of any
Obligation, and payment to Agent or any Purchaser of the amount so refunded shall be fully
guaranteed hereby even though prior thereto this Guaranty shall have been cancelled or surrendered,
and such prior cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of GMS hereunder in respect of the amount so refunded; even if any
right of reimbursement or subrogation or other right or remedy of GMS is extinguished, affected or
impaired by any of the foregoing (including any election of remedies by reason of any judicial,
non-judicial or other proceeding in respect of the Guaranteed Obligations that impairs any
subrogation, reimbursement or other right of GMS).



     Section
3. Guaranty Absolute and Unconditional. GMS hereby waives any defense of
a surety or guarantor or any other obligor on any obligations arising in connection with or in
respect of any of the following and hereby agrees that its obligations under this Guaranty are
absolute and unconditional and shall not be discharged or otherwise affected as a result of any of
the following:



     (a) the invalidity or unenforceability of any Loan Party’s obligations under the
Purchase Agreement, the Notes or any other Transaction Document, or any security for, or other
guaranty of the Guaranteed Obligations or any part of them or the lack of perfection or continuing
perfection or failure of priority of any security in the Guaranteed Obligations or any part of
them;



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     (b) the absence of any attempt to collect the Guaranteed Obligations or any part of
them from the Loan Parties or other action to enforce the same;



     (c) the Agent’s or any Purchaser’s election, in any proceeding instituted under
chapter 11 of the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy
Code;



     (d) any borrowing or grant of a Lien by the a Loan Party, as debtor-in-possession, or
extension of credit, under Section 364 of the Bankruptcy Code;



     (e) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion
of the Agent’s or any Purchaser’s claim (or claims) for repayment of the Guaranteed
Obligations;



     (f) any use of cash collateral under Section 363 of the Bankruptcy Code;



     (g) any agreement or stipulation as to the provision of adequate protection in any
bankruptcy proceeding;



     (h) the avoidance of any Lien in favor of the Agent or any Purchaser for any reason;



     (i) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
liquidation or dissolution proceeding commenced by or against any Loan Party, or any of the Loan
Parties’ other Subsidiaries, including any discharge of, or bar or stay against collecting, any
Obligation (or any part of them or interest thereon) in or as a result of any such proceeding;



     (j) failure by the Agent or any Purchaser to file or enforce a claim against any Loan
Party or its estate in any bankruptcy or insolvency case or proceeding;



     (k) any action taken by the Agent or any Purchaser if such action is authorized
hereby;



     (l) Loan Parties’ inability to pay the Guaranteed Obligations, whether by contractual
obligation or otherwise;



     (m) any election following the occurrence of an Event of Default by the Agent or any
Purchaser to proceed separately against the personal property Collateral in accordance with the
Agent’s or any Purchaser’s rights under the Uniform Commercial Code or, if the Collateral consists
of both personal and real property, to proceed against such personal and real property in
accordance with the Agent’s or any Purchaser’s rights with respect to such real property; or



     (n) any other circumstance that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor or any other obligor on any obligations, other than
the payment in full of the Guaranteed Obligations.



     Section 4. Waivers. GMS hereby waives diligence, promptness, presentment, demand
for payment or performance and protest and notice of protest, notice of acceptance and any other
notice in respect of the Guaranteed Obligations or any part of them, and any defense




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arising by
reason of any disability or other defense. GMS shall not, until the Guaranteed
Obligations are irrevocably paid in full and have been terminated, assert any claim or counterclaim
it may have against any of the Loan Parties or set off any of its obligations to the Loan Parties
against any obligations of the Loan Parties to it. In connection with
the foregoing, GMS covenants
that its obligations hereunder shall not be discharged, except by complete performance.




     Section 5. Reliance. GMS hereby assumes responsibility for keeping itself
informed of the financial condition of the Loan Parties and any endorser and other guarantor of all
or any part of the Guaranteed Obligations, and of all other circumstances bearing upon the risk of
nonpayment of the Guaranteed Obligations, or any part thereof, that diligent inquiry would reveal,
and GMS hereby agrees that the Agent or any Purchaser shall have no duty to advise GMS of
information known to it regarding such condition or any such circumstances. In the event the Agent
or any Purchaser, in its sole discretion, undertakes at any time or
from time to time to provide
any such information to GMS, the Agent or any Purchaser shall be under no obligation (a) to
undertake any investigation not a part of its regular business routine, (b) to disclose any
information that the Agent or any Purchaser, pursuant to accepted or reasonable commercial finance
or banking practices, wishes to maintain confidential or (c) to make any other or future
disclosures of such information or any other information to GMS.



     Section 6. Waiver of Subrogation and Contribution Rights. Until the Guaranteed
Obligations have been irrevocably paid in full and have been terminated, GMS shall not enforce or
otherwise exercise any right of subrogation to any of the rights of the Agent or any Purchaser or
any part of them against the Loan Parties or any right of reimbursement or contribution or similar
right against the Loan Parties by reason of this Guaranty or by any payment made in respect of the
Guaranteed Obligations.



     Section 7.
Default; Remedies. If any of the Guaranteed Obligations are not paid
when due or upon any default by the Loan Parties as provided in any other instrument or document
evidencing all or any part of the Guaranteed Obligations, the Agent or any Purchaser may, at its
sole election, proceed directly and at once, without notice, against GMS to collect and recover the
full amount or any portion of the Guaranteed Obligations then due, without first proceeding against
the Loan Parties.



     Section 8. Irrevocability. This Guaranty shall be irrevocable as to the
Guaranteed Obligations (or any part thereof) until all monetary Guaranteed Obligations then
outstanding have been irrevocably repaid in cash or otherwise irrevocably discharged, at which time
this Guaranty shall automatically be cancelled. Upon such cancellation and at the written request
of GMS or their successors or assigns, and at the cost and expense of GMS or its successors or
assigns, the Agent or any Purchaser shall execute in a timely manner a satisfaction of this
Guaranty and such instruments, documents or agreements as are necessary or desirable to evidence
the termination of this Guaranty.



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     Section 9. No Marshalling. GMS consents and agrees that neither the Agent nor
any Purchaser nor any Person acting for or on behalf of the Agent or any Purchaser shall be under
any obligation to marshal any assets in favor of GMS or against or in payment of any or all of the
Guaranteed Obligations.



     Section 10. Authority of Agent. GMS acknowledges that the rights and
responsibilities of the Agent under this Guaranty with respect to any action taken by the Agent or
the exercise or non-exercise by the Agent of any option, right, request, judgment or other right or
remedy provided for in this Guaranty or resulting or arising out of this Guaranty shall, as between
the Agent and the Purchasers, be governed by the Purchase Agreement and by such other agreements
with respect thereto as may exist from time to time among them, but, as between the Agent and GMS,
the Agent shall be conclusively presumed to be acting as agent for the Purchasers with full and
valid authority so to act or refrain from acting.



     Section 11. Notices. All notices, requests and demands to or upon the Agent, any
Purchaser or GMS to be effective shall be in writing (including by telecopy) and, unless otherwise
expressly provided in this Guaranty, shall be deemed to have been duly given or made when delivered
by hand, or five (5) Business Days after being deposited in the mail, postage prepaid, or in the
case of telecopy notice, when received, addressed as follows:



     (a) if to the Agent, at the address provided in Section 15.6 of the Purchase
Agreement; and



     (b) if
to GMS, at the following address:


Global
Monitoring Systems, Inc.

c/o American Capital Strategies, Ltd.

461 Fifth Avenue, 26th Floor

New York, NY 10017

Attention:            Robert Klein

                            Dustin Smith

Fax: (212) 213-2060




     Section 12.
Governing Law. This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of Maryland, without regard to conflict of law
principles.



     Section 13. Severability. Any provision of this Guaranty that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions of this
Guaranty, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.



     Section 14. Integration. This Guaranty, the Purchase Agreement and the Note
represents the entire agreement of GMS, the Agent and the Purchasers with respect to the subject
matter expressed in this Guaranty, and there are no promises, undertakings, representations or
warranties by GMS, the Agent or any Purchaser relative to the subject matter of this Guaranty




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that is not expressly set forth or referred to in this Guaranty, the Purchase Agreement or the
Note. Any previous agreement between GMS, the Agent or the Purchasers with respect to the subject
matter of this Guaranty is superseded by this Guaranty, the Purchase Agreement and the Note.




     Section 15.
Amendments in Writing; No Waiver; Cumulative Remedies.



          (a) None of the terms or provisions of this Guaranty may be waived,
amended, supplemented or otherwise modified except pursuant to a written instrument executed by the
parties hereto.




          (b) No failure to exercise, nor any delay in exercising, on the part of the Agent
or any Purchaser, any right, power or privilege under this Guaranty shall operate as a waiver
of this Guaranty. No single or partial exercise of any right, power or privilege under this
Guaranty shall preclude any other or further exercise of this Guaranty or the exercise of any other
right, power or privilege. A waiver by the Agent or any Purchaser of any right or remedy under this
Guaranty on any one occasion shall not be construed as a bar to any right or remedy that the
Agent or such Purchaser would otherwise have on any future occasion.




          (c) The rights and remedies provided in this Guaranty are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or remedies
provided
by law.




     Section 16. Interpretation. The headings of the sections of this Guaranty are
inserted for convenience only and shall not be deemed to constitute a part hereof for any other
purpose.



     Section 17. Attorney’s Cost. GMS agrees to pay all attorney’s fees and
disbursements and all other actual costs and expenses which may be incurred by the Purchasers or
the Agent in enforcing or obtaining advice of counsel in respect of any rights with respect to this
Guaranty, or collecting any or all of the amounts due under the Note or enforcing any rights with
respect to, or collecting against, GMS under this Guaranty.



     Section 18. Currency of Payment. Any payment to be made by GMS pursuant to this
Guaranty shall be made in the same currency as designated for payment in the Note and such
designation of the currency of payment is of the essence.




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     IN WITNESS
WHEREOF, the undersigned has caused this Guaranty to be duly executed and delivered as of the date first above written.




	 	 	 	 	 	 	 
	 	 	GLOBAL MONITORING SYSTEMS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Thomas Logan	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Thomas Logan	 	 
	 

	 	Title:
	 	President	 	 
	 
	 	 	 	 	 	 
	 	 	AMERICAN CAPITAL FINANCIAL SERVICES, INC., as Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert J. Klein	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert J. Klein	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 






 signature page to the gms/ist nepa cross guaranty