Exhibit 10.12
UNLIMITED GUARANTY
THIS UNLIMITED GUARANTY is made as of September 18, 1997 by TELETRAC
HOLDINGS, INC., a Delaware corporation (the "GUARANTOR"), having its chief
executive office at 0000 Xxxxx - Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000-0000,
to and with FLEET NATIONAL BANK, as agent (in such capacity, together with their
successors and assigns in such capacity, the "AGENT") on behalf of the financial
institutions and other Persons which are or which become Lenders under, and as
defined in, the Credit Agreement referred to below and any Affiliates of such
Lenders with which the Borrower (as defined below) shall maintain any Rate
Hedging Obligations (collectively, the "LENDERS" and each individually, a
"LENDER").
RECITALS
A. The Guarantor is the owner of 100% of the issued and outstanding shares
of capital stock of Teletrac, Inc. a Delaware corporation (the "Borrower").
B. The Borrower, the Lenders, the Agent, as Documentation Agent for the
Lenders, and Banque Paribas, as Administrative Agent for the Lenders (in such
capacity, the "ADMINISTRATIVE AGENT"), are entering into a Credit Agreement of
even date herewith (as the same may be amended, restated, renewed, replaced,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT")
pursuant to which the Lenders are extending credit to the Borrower. In
addition, the Borrower, from time to time, may be obligated to one or more of
the Lenders or any Affiliates of such Lenders in respect of Rate Hedging
Obligations. Capitalized terms used herein without definition have the meanings
assigned to them in the Credit Agreement.
C. It is a condition to such Lenders' willingness to enter into the Credit
Agreement and provide to the Borrower the financing contemplated thereby and to
extend credit to the Borrower that would constitute Rate Hedging Obligations
that the Guarantor shall have guaranteed, subject to the terms hereof, the
obligations of the Borrower under the Notes and certain other agreements as
hereinafter provided, including, without limitation, the punctual payment under
the Notes of both principal and interest.
D. The Guarantor wil benefit materially from the extension of credit to
the Borrower contemplated by the Credit Agreement and wishes, and has
voluntarily and freely agreed, to guaranty the payment of the aforesaid
obligations as hereinafter provided.
NOW, THEREFORE, in order to induce the Lenders and the Agents to enter into
the aforesaid loan transactions and to make said loans and extend such other
credit to the Borrower, and in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby covenants and agrees as follows:
1. GUARANTY. (a) The Guarantor, as primary obligor and not merely as
surety, hereby absolutely, unconditionally and irrevocably guarantees: (i) the
due and punctual payment
in full (and not merely the collectibility) of the principal of the Notes, and
the interest thereon, in each case when due and payable, according to the terms
of the Notes, whether at stated maturity, by reason of acceleration or
otherwise; (ii) the due and punctual payment in full (and not merely the
collectibility) of all other sums and charges which may at any time be due and
payable in accordance with, or under the terms of, the Notes, whether at stated
maturity, by reason of acceleration or otherwise; (iii) the due and punctual
payment (and not merely the collectibility), performance and observance of all
of the other obligations, terms, covenants and conditions contained in the
Notes, the Credit Agreement, all agreements and instruments at any time executed
in connection with the Notes, the Credit Agreement and any other security
instruments and agreements relating to the Notes or the Credit Agreement,
whether now or hereafter existing, on the part of the Borrower to be performed
or observed (collectively, the Notes, the Credit Agreement, the Security
Documents, all other related security instruments and agreements, whether now
existing or arising hereafter, are referred to herein as the "LOAN DOCUMENTS");
(iv) the accuracy of the representations and warranties made by the Borrower in
the Loan Documents; and (v) the due and punctual payment and performance in full
(and not merely the collectibility) of any and all other indebtedness,
obligations and liabilities of the Borrower to the Lenders, the Agent and the
Administrative Agent of every kind and description, whether now existing or
hereafter arising, whether direct, indirect or contingent, whether secured or
unsecured, and howsoever evidenced, incurred or arising (all of the foregoing
are collectively hereinafter called the "OBLIGATIONS"). All Obligations paid by
the Guarantor hereunder shall be paid in U.S. Dollars at the place of payment
designated therefor by the Agent in immediately available funds.
(b) Notwithstanding any provision contained in this Unlimited Guaranty
or any security agreement or other agreement now or hereafter securing this
Unlimited Guaranty including, without limitation, the Securities Pledge
Agreement of even date herewith between the Guarantor and the Agent (as the same
may be amended, restated, renewed, replaced, supplemented or otherwise modified
from time to time, the "PLEDGE AGREEMENT"; the foregoing, together with this
Unlimited Guaranty and any and all other agreements now or hereafter securing
this Unlimited Guaranty being collectively referred to herein as the "GUARANTY
DOCUMENTS") to the contrary, it is the intention and agreement of the Guarantor,
the Agent and the Lenders that the Obligations of the Guarantor under this
Unlimited Guaranty shall be valid and enforceable against the Guarantor to the
maximum extent permitted by applicable law. Accordingly, if any provision of
this Unlimited Guaranty creating any obligation of the Guarantor in favor of the
Agent and the Lenders shall be declared to be invalid or unenforceable in any
respect or to any extent, it is the stated intention and agreement of the
Guarantor, the Agent and the Lenders that any balance of the obligation created
by such provision and all other obligations of the Guarantor to the Agent and
the Lenders created by other provisions of this Unlimited Guaranty shall remain
valid and enforceable. Likewise, if any sums which the Agent and the Lenders
may be otherwise entitled to collect from the Guarantor under this Unlimited
Guaranty shall be declared to be in excess of those permitted under any law
(including any federal or state fraudulent conveyance or like statute or rule of
law) applicable to the Guarantor's Obligations under this Unlimited Guaranty, it
is the stated intention and agreement of the Guarantor, the Agent and the
Lenders that all sums not in excess of those permitted under such applicable law
shall remain fully collectible by the Agent and the Lenders from the Guarantor
and such excess sums shall nevertheless survive as a subordinate obligation of
the Guarantor, junior in right to the claims of general unsecured creditors, but
prior
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to the claims of equityholders in the Guarantor. This provision shall control
every other provision of the Guaranty Documents.
2. SECURITY. This Unlimited Guaranty (as the same may be amended,
modified, supplemented, replaced or extended from time to time) and all
obligations, indebtedness or liabilities of the Guarantor arising hereunder
shall be secured by the Pledge Agreement and the Pledged Securities (as defined
therein).
3. SUBSEQUENT CHANGES. The Guarantor expressly agrees that the Agent
and each Lender may, in its sole and absolute discretion, without notice to or
further assent of the Guarantor and without in any way releasing, affecting or
impairing the Obligations and liabilities of the Guarantor hereunder: (a) waive
compliance with, or any default under, or grant any other indulgences with
respect to, the Obligations; (b) modify, amend or change any provisions of the
Obligations; (c) grant extensions or renewals of or with respect to the
Obligations, and/or effect any release, compromise or settlement in connection
therewith; (d) agree to the substitution, exchange, release or other disposition
of the Borrower or of all or any part of the collateral securing the
Obligations; (e) make advances for the purpose of performing any term or
covenant contained in the documents evidencing the Obligations, with respect to
which the Borrower shall be in default; (f) subject to the provisions of the
Credit Agreement, assign or otherwise transfer the Obligations, including
without limitation the assignment and transfer of the Agent's rights and
remedies under this Unlimited Guaranty, or any interest therein; (g) deal in all
respects with the Borrower, the Obligations or any collateral securing the
Obligations as if this Unlimited Guaranty were not in effect; (h) extend credit
to the Borrower whether or not (A) notice of election to terminate any of the
Loan Documents or any other agreement among the Agent, the Lenders and the
Borrower has been given by the Agent, on behalf of the Lenders, or by the
Borrower, (B) the limit of borrowings under the Loan Documents has been or will
be exceeded or (C) any Event of Default, or any event which with notice or lapse
of time, or both, would constitute an Event of Default, has occurred under the
Loan Documents or any other agreement among the Agent, the Lenders and the
Borrower; (i) replace any existing obligations and the documentation therefor
with an amended and restated obligation and the documentation therefor; and (j)
settle or compromise any or all of the Obligations with the Borrower, and/or any
other person or persons liable therein, and/or subordinate the payment of same
or any part hereof to the payment of any other debts or claims which may at any
time be due or owing to the Agent, any Lender and/or other person.
4. DIRECT AND ABSOLUTE OBLIGATION. The liability of the Guarantor
under this Unlimited Guaranty shall be primary, direct and immediate and not
conditional or contingent upon pursuit by the Agent or any Lender of any
remedies it may have against the Borrower or any other party with respect to the
Obligations, whether pursuant to the terms of the Loan Documents or otherwise.
The obligations of the Guarantor under this Unlimited Guaranty shall be absolute
and unconditional, irrespective of the genuineness, validity, regularity,
enforceability or priority of the Loan Documents, the Obligations or any other
circumstances which might otherwise constitute a legal or equitable discharge of
a surety or guarantor and without regard to any counterclaim, setoff,
declaration or defense of any kind which any party obligated under the Loan
Documents or any other document evidencing or securing any of the Obligations
may have or assert. No
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exercise or nonexercise by the Agent or any Lender of any right given to it
hereunder or under the Loan Documents, and no change, impairment or suspension
of any right or remedy of the Agent or any Lender, shall in any way affect any
of the Guarantor's obligations hereunder or give the Guarantor any recourse
against the Agent or any Lender. Without limiting the generality of the
foregoing, neither the Agent nor any Lender shall be required to make any demand
on the Borrower and/or any other party, or otherwise pursue or exhaust its
remedies against the Borrower or any other party, before, simultaneously with or
after, enforcing its rights and remedies hereunder against the Guarantor. Any
one or more successive and/or concurrent actions may be brought hereon against
the Guarantor, either in the same action, if any, brought against the Borrower
and/or any other party, or in separate actions, as often as the Agent, in its
sole discretion, may deem advisable.
5. WAIVERS. (a) The Guarantor hereby expressly waives: (i)
diligence, presentment and demand for payment and protest of nonpayment; (ii)
notice of acceptance of this Unlimited Guaranty and of presentment, demand,
dishonor and protest; (iii) notice of any default hereunder or under the Loan
Documents or any other Obligations and of all indulgences; (iv) demand for
observance or performance of, or enforcement of, any terms or provisions of this
Unlimited Guaranty or the Loan Documents; (v) notice of extensions of credit by
the Agent or the Lenders to the Borrower and of any change in the rate at which
interest accrues under the Loan Documents or the other Obligations; (vi) all
other notices and demands otherwise required by law which the Guarantor may
lawfully waive; (vii) the right to assert in any action or proceeding hereupon
any setoff, counterclaim or other claim which it may have against the Agent or
any Lender; and (viii) the benefit of all other principles or provisions of law,
statutory or otherwise, which are or might be in conflict with the terms hereof.
As further consideration for the loan or loans by the Agent and the Lenders to
the Borrower and as a material inducement to the Agent and the Lenders to make
the loan or loans and accept this Unlimited Guaranty, the Guarantor hereby
irrevocably waives, disclaims and relinquishes all claims, whether based in
equity or law, whether by contract, statute or otherwise, that the Guarantor
might now or hereafter have against the Borrower or any other person that is
primarily or contingently liable on the Obligations guarantied hereby or that
arise from the existence or performance of the Guarantor's obligations under
this Unlimited Guaranty, including, but not limited to, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, or
participation in any claim or remedy of the Borrower against the Agent or any
Lender or any collateral security that the Agent or any Lender now has or
hereafter acquires.
(b) The Guarantor is presently informed of the financial
condition of the Borrower and of all of the circumstances which a diligent
inquiry would reveal and which bear upon the risk of nonpayment of the
Obligations. The Guarantor hereby covenants and agrees that the Guarantor will
continue to keep itself informed of the Borrower's financial condition, the
status of other guarantors, sureties, or other parties liable with respect to
the Obligations, if any, and of all of the circumstances which bear upon the
risk of nonpayment. Absent a written request for such information by the
Guarantor to the Agent, the Guarantor hereby waives its right if any, to require
the Agent to disclose to the Guarantor any information which the Agent may now
or hereafter acquire concerning such condition or circumstances, including,
without limitation, the
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release of or revocation by any other guarantor or other party liable with
respect to the Obligations.
6. UNENFORCEABILITY OF OBLIGATIONS AGAINST BORROWER. If for any
reason the Borrower has no legal existence or is under no legal obligation to
discharge any of the Obligations, or if any of the Obligations have become
irrecoverable from the Borrower by reason of the Borrower's insolvency,
bankruptcy or reorganization or by other operation of law or for any other
reason, this Unlimited Guaranty shall nevertheless be binding on the Guarantor
to the same extent as if the Guarantor at all times had been the principal
obligor on all such Obligations. In the event that acceleration of the time for
payment of any of the Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower or for any other reason, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreement, the
Notes, the other Loan Documents or any other agreement evidencing, securing or
otherwise executed in connection with any Obligation shall be immediately due
and payable by the Guarantor.
7. INSTRUMENT FOR THE PAYMENT OF MONEY. The Guarantor hereby
acknowledges that this Unlimited Guaranty constitutes an instrument for the
payment of money, and consents and agrees that the Agent, at its sole option on
behalf of Lenders, in the event of a dispute by the Guarantor in the payment of
monies due hereunder, shall have the right to bring motion-action under New York
CPLR Section 3213.
8. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents
and warrants to the Agent and the Lenders (which representations and warranties
shall survive the delivery of this Unlimited Guaranty) that:
(a) The Guarantor (i) is a corporation duly organized and
validly existing and in good standing under the laws of the State of
Delaware and is duly qualified to transact business in each jurisdiction
where because of the nature of its business or property such qualification
is required except for jurisdictions where failure to qualify would not in
the aggregate have a Material Adverse Effect, (ii) has full power and
authority to own its properties and assets and to carry on its business as
now being conducted and as presently contemplated, and (iii) has full power
and authority to execute and deliver, and perform its obligations under,
the Guaranty Documents to which it is a party or signatory.
(b) The execution and delivery of, and performance by the
Guarantor of its obligations under, the Guaranty Documents are within its
corporate power, have been duly authorized by all requisite action and do
not and will not violate any provision of law, any order, judgment or
decree of any court or other agency of government, the corporate charter or
by-laws, of the Guarantor or any indenture, agreement or other instrument
to which the Guarantor is a party, or by which the Guarantor is bound, or
be in conflict with, result in a breach of, or constitute (with due notice
or lapse of time or both) a default under, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon
any of the property or assets of the Guarantor pursuant to, any such
indenture, agreement or instrument except where such violation, conflict or
default would not have a material adverse effect on the properties, assets
or condition (financial or otherwise) of the Guarantor or any
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rights of the Agent or the Lenders under any of the Guaranty Documents to
which it is a party. Each of the Guaranty Documents to which it is a
party, including without limitation the Pledge Agreement, constitutes the
valid and binding obligation of the Guarantor enforceable against it in
accordance with its terms except (x) as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting the rights and remedies of creditors generally or the application
of principles of equity, whether in any action in law or proceeding in
equity, and (y) that the availability of the remedy of specific performance
or of any other equitable remedy or relief to enforce any right under any
such agreement is subject to the discretion of the Court before which
proceedings therefore may be brought.
(c) Except as set forth in SECTION 4.04 of the Credit Agreement,
the Guarantor is not required to obtain any consent, approval or
authorization from, or to file any declaration or statement with, any
governmental instrumentality or other agency, or any other person, in
connection with or as a condition to the execution, delivery or performance
of any of the Guaranty Documents to which it is a party.
(d) There is no action, suit or proceeding at law or in equity
or by or before any governmental instrumentality or other agency, including
any arbitration board or tribunal, now pending or, to the knowledge of the
Guarantor, threatened (nor is any basis therefor known to the Guarantor),
(i) which questions the validity of any of the Guaranty Documents, or any
action taken or to be taken pursuant hereto or thereto, or (ii) against or
affecting the Guarantor which, if adversely determined, either in any case
or in the aggregate, would have a material adverse effect on the business
prospects, operations, properties, assets or condition, financial or
otherwise of the Guarantor.
(e) The Guarantor is not (i) a party to any agreement or
instrument or subject to any restriction materially and adversely affecting
its properties, assets or condition, financial or otherwise, or (ii) in
violation of any indenture, agreement or instrument to which it is a party
or by which it is bound or any provision of law or any order, judgment or
decree of any court or other agency of government.
(f) The Guarantor is solvent as set forth in SECTION 4.11 of the
Credit Agreement. The Guarantor's obligations under this Unlimited
Guaranty do not render the Guarantor insolvent; the Guarantor is not
contemplating either the filing of a petition by the Guarantor under any
state or federal bankruptcy or insolvency laws or the liquidating of all or
a major portion of the Guarantor's property; and the Guarantor has no
knowledge of any person contemplating the filing of any such petition
against the Guarantor.
9. AFFIRMATIVE AND NEGATIVE COVENANTS. The Guarantor hereby covenants
and agrees that, until payment in full of the Obligations, the Guarantor will
(a) furnish to the Agent, within ten (10) days after any such request, such
information regarding the business affairs and financial condition of the
Guarantor, as the Agent may reasonably request and (b) without limiting the
generality of the foregoing, comply with all of the provisions of the Credit
Agreement, including negative and affirmative covenants, which apply or relate,
directly or indirectly, to it.
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10. EVENTS OF DEFAULT. In each case of happening of an "EVENT OF
DEFAULT" as defined in the Credit Agreement (each of which is herein sometimes
called an "Event of Default"), then and upon any such Event of Default and at
any time thereafter during the continuance of such Event of Default, at the
election of the Agent on behalf of the Lenders (or automatically in the case of
certain Events of Default as specified in the Credit Agreement), the Notes and
the Obligations and any and all other obligations of the Borrower and the
Guarantor and either of them to the Agent, the Administrative Agent and any of
the Lenders shall for the purposes of this Unlimited Guaranty immediately become
due and payable, both as to principal and interest, without presentment, demand,
or protest, all of which are hereby expressly waived, anything contained herein
or in the Notes or other evidence of such Obligations to the contrary
notwithstanding.
11. NOTICES. All notices, requests, demands and other communications
provided for hereunder shall be in writing (including telecopied communication)
and mailed or telecopied or delivered to the applicable party at the address
indicated below.
If to the Agent to:
Fleet National Bank
One Federal Street
Mail Stop: MAOFD03D
Attention: Xxxxxxxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000/6
with a copy (which shall not constitute notice) to:
Xxxxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
If to the Guarantor addressed to it, at:
Teletrac Holdings, Inc.
0000 Xxxxx - Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: ____________________
Telecopy No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx X. Xxxxxxxxx, Esq.
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
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00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
or, as to each party, at such other address as shall be designated by such
parties in a written notice to the other party complying as to delivery with the
terms of this Section. All such notices, requests, demands and other
communication shall be deemed given upon receipt by the party to whom such
notice is directed.
12. PLACE OF PAYMENT. Any payments made by the Guarantor under the
provisions of this Unlimited Guaranty shall be made to the Agent at its office
at the address set forth above unless some other address is hereafter designated
by the Agent.
13. SETOFF. The Guarantor hereby agrees that the Agent and the Lenders
shall have a lien and a right to setoff for all liabilities whether or not
matured arising out of this Unlimited Guaranty upon and against all deposits,
credits, and property of the Guarantor now or hereafter in the possession or
control of the Agent or any Lender or in transit to it, whether or not Agent and
Lenders are otherwise fully secured.
14. SUBORDINATION, ASSIGNMENT & TRANSFER. Until the payment and
performance in full of all Obligations, the Guarantor shall not accept or retain
any distribution or other payment from the Borrower unless the same is permitted
under the terms of the Credit Agreement. The Guarantor further agrees with the
Agent and the Lenders that (a) all of the present and future indebtedness of the
Borrower to the Guarantor shall be and hereby is subordinated to, assigned and
transferred to the Agent on behalf of the Lenders and pledged and made security
for the payment of all Obligations; and (b) the Guarantor contemporaneously
herewith and from time to time hereafter shall on request execute such further
endorsements, assignments or other proper transfers as the Agent may request
further to evidence the assignment hereby agreed to and made. The Guarantor
hereby appoints irrevocably the Agent as the Guarantor's attorney-in-fact,
effect upon the occurrence of an Event of Default that is continuing, in its
name to demand and enforce payment of said indebtedness, to prove and vote all
claims, receive all dividends and take all other action on said indebtedness in
any liquidation or any proceedings whatsoever affecting the Borrower or its
property under any bankruptcy or other laws now or hereafter in effect for the
relief of debtors and in general to do any act or take any action in regard to
said indebtedness which the Guarantor might otherwise do.
15. TERMINATION OF GUARANTY. This Unlimited Guaranty is a continuing
Guaranty and shall remain in full force and effect until the indefeasible
payment in full in cash (or other property acceptable to the Lenders, in their
sole discretion) of the Obligations or the termination by the Agent, the
Administrative Agent, the Lenders and the Borrower of the Credit Agreement and
all Rate Hedging Obligations.
16. BORROWER'S INSOLVENCY. The obligations of the Guarantor to make
payment in accordance with the terms of this Unlimited Guaranty shall not be
impaired, modified, changed, released or limited in any manner whatsoever by any
impairment, modification, change, release or
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limitation of the liability of the Borrower or its estate, in bankruptcy or
reorganization resulting from the operation of any present or future provision
of the United States Bankruptcy Code or other statute or from the decision of
any court. The Guarantor agrees that in the event any amounts referred to
herein are paid in whole or in part by the Borrower or by the Guarantor, the
Guarantor's liability hereunder shall continue and remain in full force and
effect in the event that all or any part of any such payment is recovered from
the Agent or any Lender as a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law. The Guarantor further agrees
that this Unlimited Guaranty includes the costs incurred by the Agent and any
Lender in defending any claim or suit seeking such recovery.
17. NONWAIVER OF RIGHTS. All rights and remedies afforded to
the Agent and the Lenders by reason of this Unlimited Guaranty and the Loan
Documents or by law are separate and cumulative and the exercise of one shall
not in any way limit or prejudice the exercise of any other such rights or
remedies. No delay or omission by the Agent or any Lender in exercising any
such right or remedy shall operate as a waiver thereof. No waiver of any rights
and remedies hereunder, and no modification or amendment hereof, shall be deemed
made by the Agent and the Lenders unless in writing and duly executed. Any such
written waiver shall apply only to the particular instance specified therein and
shall not impair the further exercise of such right or remedy or of any other
right or remedy of the Agent and the Lenders, and no single or partial exercise
of any right or remedy hereunder shall preclude further exercise of any other
right or remedy.
18. CONSENT TO JURISDICTION. THE GUARANTOR, TO THE EXTENT THAT THE
GUARANTOR MAY LAWFULLY DO SO, HEREBY CONSENTS TO THE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AS WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN
APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR
OTHER PROCEEDING ARISING OUT OF THE GUARANTOR'S OBLIGATIONS UNDER OR WITH
RESPECT TO THIS UNLIMITED GUARANTY AND THE GUARANTY DOCUMENTS, AND EXPRESSLY
WAIVES ANY AND ALL OBJECTIONS THE GUARANTOR MAY HAVE AS TO VENUE INCLUDING,
WITHOUT LIMITATION, THE INCONVENIENCE OF SUCH FORUM, IN ANY OF SUCH COURTS. IN
ADDITION, TO THE EXTENT THAT IT MAY LAWFULLY DO SO, THE GUARANTOR CONSENTS TO
THE SERVICE OF PROCESS BY PERSONAL SERVICE OR U.S. CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED, ADDRESSED TO THE GUARANTOR AT THE ADDRESS PROVIDED
HEREIN. TO THE EXTENT THE GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION
OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
UNLIMITED GUARANTY.
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19. WAIVER OF TRIAL BY JURY. THE GUARANTOR HEREBY VOLUNTARILY AND
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT IN OR WITH RESPECT TO
THIS UNLIMITED GUARANTY, THE GUARANTY DOCUMENTS OR ANY OTHER AGREEMENTS EXECUTED
IN CONNECTION HEREWITH.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED EXECUTED AS A SEALED
INSTRUMENT AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK AS A CONTRACT TO BE EXECUTED AND PERFORMED WITHIN THE
STATE OF NEW YORK.
21. SUCCESSORS. This Unlimited Guaranty shall inure to the benefit of,
and be enforceable by, the Agent and its successors and assigns on behalf of the
Lenders, and shall be binding upon, and enforceable against, the Guarantor and
its successors and assigns.
22. SEVERABILITY. In case this Unlimited Guaranty or any one or more of
the provisions contained herein shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, and this Unlimited
Guaranty shall be construed as if such invalid, illegal or unenforceable
provision had never been included.
23. SECTION HEADINGS. The section headings in this Unlimited Guaranty are
inserted for convenience of reference only and shall not in any way affect the
meaning or construction of any provision of this Unlimited Guaranty.
24. AGENCY. The parties hereto, and any person not a party hereto for
whose benefit the Agent acts hereunder, acknowledge that the Agent has been
requested to act as agent for the Lenders hereunder pursuant to the terms of the
Credit Agreement, and that the Agent, to the extent it may so act hereunder,
shall exercise all of the rights and remedies hereunder on behalf of, and as
agent for the benefit of, the Lenders and each of them. Without limiting the
generality of the foregoing, the Agent is authorized to execute and deliver,
from time to time, on behalf of the Lenders, any and all amendments and
modifications to this Unlimited Guaranty and any and all waivers to any
conditions herein or any Event of Default hereunder.
25. INCONSISTENCIES. Any inconsistencies between the provisions of this
Agreement and the Credit Agreement shall be governed by a reference to the
provisions of the Credit Agreement.
*THE NEXT PAGE IS THE SIGNATURE PAGE*
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IN WITNESS WHEREOF, the Agent and the Guarantor have caused this Unlimited
Guaranty to be duly executed under seal as of the day and year first above
written.
GUARANTOR:
TELETRAC HOLDINGS, INC.
By:_______________________________
Xxxx Xxxx, Vice President of
Finance and Corporate
Development
AGENT:
FLEET NATIONAL BANK
By:_______________________________
Xxxxxxxxxxx X. Xxxxxxxx, Vice
President, Media &
Communications Group