GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement" or this
"Guaranty"), dated as of January 30, 1998, is made by EACH OF THE
UNDERSIGNED (each a "Guarantor" and collectively the
"Guarantors") to NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION,
a national banking association organized and existing under the
laws of the United States, as Agent (the "Agent") for each of the
lenders (the "Lenders" and collectively with the Agent the
"Secured Parties") now or hereafter party to the Credit Agreement
(as defined below). All capitalized terms used but not otherwise
defined herein shall have the meaning ascribed to such terms in
the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to
Xxxxxx Industries, Inc., a Tennessee corporation ("Xxxxxx"), and
Xxxxxx Industries Towing Equipment Inc., a Delaware corporation
("Xxxxxx Towing," and together with Xxxxxx, the "Borrowers"),
certain credit facilities, including a revolving credit facility
with a letter of credit sublimit and a swing line sublimit,
pursuant to the Credit Agreement dated as of January 30, 1998
among the Borrowers, the Agent and the Lenders (as from time to
time amended, revised, modified, supplemented or amended and
restated, the "Credit Agreement"); and
WHEREAS, each Guarantor is, directly or indirectly, a wholly
owned Subsidiary of one of the Borrowers; and
WHEREAS, as a condition to entering into the Credit
Agreement and making and continuing to make any loans or advances
and issuing and continuing to issue letters of credit thereunder,
each Guarantor is required to guarantee to the Secured Parties
payment of the Borrower's Obligations in accordance with the
terms of this Agreement; and
WHEREAS, each Guarantor will materially benefit from the
loans and advances to be made, and the letters of credit to be
issued, under the Credit Agreement, and each Guarantor is willing
to enter into this Guaranty to provide an inducement for the
Secured Parties to continue to make loans and advances, and to
issue letters of credit, under the Credit Agreement; and
WHEREAS, the Secured Parties are unwilling to enter into the
Loan Documents unless the Guarantors enter into this Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to
enter into the Loan Documents and to make loans and advances and
issue Letters of Credit, and in consideration of the premises and
mutual covenants contained herein, each Guarantor hereby agrees
as follows:
1. GUARANTY. Each Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably
guarantees to the Secured Parties the payment and performance in
full of the Borrower's Liabilities (as defined below). For all
purposes of this Guaranty Agreement, "Borrower's Liabilities"
means: (a) each Borrower's prompt payment in full, when due or
declared due and at all such times, of all Obligations and all
other amounts pursuant to the terms of the Credit Agreement, the
Notes, and all other Loan Documents executed in connection with
the Credit Agreement and all Rate Hedging Obligations heretofore,
now or at any time or times hereafter owing, arising, due or
payable from the Borrowers to the Lenders, including without
limitation principal, interest, premium or fee (including, but
not limited to, loan fees and attorneys' fees and expenses); and
(b) each Borrower's prompt, full and faithful performance,
observance and discharge of each and every agreement,
undertaking, covenant and provision to be performed, observed or
discharged by either Borrower under the Credit Agreement and all
other Loan Documents executed in connection therewith and all
Swap Agreements. The Guarantors' obligations to the Secured
Parties under this Guaranty Agreement are hereinafter
collectively referred to as the "Guarantors' Obligations";
provided, however, that the liability of each Guarantor
individually with respect to the Guarantor's Obligations shall be
limited to an aggregate amount equal to the largest amount that
would not render its obligations hereunder subject to avoidance
under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any applicable state law.
Each Guarantor agrees that it is jointly and severally,
directly and primarily liable for the Borrower's Liabilities
hereunder.
2. PAYMENT. If either Borrower shall default in payment
or performance of any Borrower's Liabilities, whether principal,
interest, premium, fee (including, but not limited to, loan fees
and attorneys' fees and expenses), or otherwise, when and as the
same shall become due, whether according to the terms of the
Credit Agreement, by acceleration, or otherwise, or upon the
occurrence of any Event of Default under the Credit Agreement
that has not been cured or waived, then any or all of the
Guarantors will, upon demand thereof by the Agent or its
successors or assigns AS OF THE DATE OF SUCH DEMAND, fully pay to
the Agent, for the benefit of the Secured Parties, subject to any
restriction set forth in SECTION 1 hereof, an amount equal to all
Guarantors' Obligations then due and owing.
3. UNCONDITIONAL OBLIGATIONS. This is a guaranty of
payment and not of collection. The Guarantors' Obligations under
this Guaranty Agreement shall be joint and several, absolute and
unconditional irrespective of the validity, legality or
enforceability of the Credit Agreement, the Notes or any other
Loan Document or any other guaranty of the Borrower's
Liabilities, and shall not be affected by any action taken under
the Credit Agreement, the Notes or any other Loan Document, any
other guaranty of the Borrower's Liabilities, or any other
agreement between the Secured Parties and the Borrowers or any
other Person, in the exercise of any right or power therein
conferred, or by any failure or omission to enforce any right
conferred thereby, or by any waiver of any covenant or condition
therein provided, or by any acceleration of the maturity of any
of the Borrower's Liabilities, or by the release or other
disposal of any security for any of the Borrower's Liabilities,
or by the dissolution of either of the Borrowers or the
combination or consolidation of either of the Borrowers into or
with another entity or any transfer or disposition of any assets
of either of the Borrowers or by any extension or renewal of the
Credit Agreement, any of the Notes or any other Loan Document, in
whole or in part, or by any modification, alteration, amendment
or addition of or to the Credit Agreement, any of the Notes or
any other Loan Document, any other guaranty of the Borrower's
Liabilities, or any other agreement between the Secured Parties
and the Borrowers or any other Person, or by any other cir-
cumstance whatsoever (with or without notice to or knowledge of
any Guarantor) which may or might in any manner or to any extent
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vary the risks of such Guarantor, or might otherwise constitute a
legal or equitable discharge of a surety or a guarantor; it being
the purpose and intent of the parties hereto that this Guaranty
Agreement and the Guarantors' Obligations hereunder shall be
absolute and unconditional under any and all circumstances and
shall not be discharged except by payment as herein provided.
4. CURRENCY AND FUNDS OF PAYMENT. Each Guarantor hereby
guarantees that the Guarantors' Obligations will be paid in
lawful currency of the United States of America and in
immediately available funds, regardless of any law, regulation or
decree now or hereafter in effect that might in any manner affect
the Borrower's Liabilities, or the rights of the Secured Parties
with respect thereto as against the Borrowers or either of them,
or cause or permit to be invoked any alteration in the time,
amount or manner of payment by the Borrowers of any or all of the
Borrower's Liabilities.
5. SUITS. Each Guarantor from time to time shall pay to
the Agent for the benefit of the Secured Parties, on demand, at
the Agent's place of business set forth in the Credit Agreement
or such other address as the Agent shall give notice of to such
Guarantor, the Guarantors' Obligations as they become or are
declared due, and in the event such payment is not made
forthwith, the Agent or the Lenders or any of them may proceed to
suit against any one or more or all of the Guarantors. At the
Agent's election, one or more and successive or concurrent suits
may be brought hereon by the Agent against any one or more or all
of the Guarantors, whether or not suit has been commenced against
the Borrowers, any other guarantor of the Borrower's Liabilities,
or any other Person and whether or not the Secured Parties have
taken or failed to take any other action to collect all or any
portion of the Borrower's Liabilities or have taken or failed to
take any actions against any collateral securing payment or
performance of all or any portion of the Borrower's Liabilities.
6. SET-OFF AND WAIVER; SUBORDINATION. Each Guarantor
waives any right to assert against the Secured Parties as a
defense, counterclaim, set-off or cross claim, any defense (legal
or equitable) or other claim which such Guarantor may now or at
any time hereafter have against the Borrowers or the Secured
Parties without waiving any additional defenses, set-offs,
counterclaims or other claims otherwise available to such
Guarantor. If at any time hereafter the Secured Party employs
counsel for advice or other representation to enforce the
Guarantors' Obligations, then, in any of the foregoing events,
all of the reasonable attorneys' fees arising from such services
and all other reasonable expenses, costs and charges in any way
or respect arising in connection therewith or relating thereto
shall be paid by such Guarantor to the Agent, for the benefit of
the Secured Parties, on demand.
Until the Borrower's Liabilities are paid in full and the
Agent and the Secured Parties are under no further obligation to
lend or extend funds or credit which would constitute Borrower's
Liabilities, each Guarantor hereby unconditionally subordinates
all present and future debts, liabilities or obligations of the
Borrowers or either of them or any other Guarantor, as the case
may be, to such Guarantor to the Borrower's Liabilities, and all
amounts due under such debts, liabilities, or obligations shall,
upon the occurrence and during the continuance of an Event of
Default, be collected and paid over forthwith to the Agent, for
the benefit of the Secured Parties, on account of the Borrower's
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Liabilities and, pending such payment, shall be held by each
Guarantor as agent and bailee of the Agent and the Secured
Parties separate and apart from all other funds, property and
accounts of such Guarantor. Each Guarantor shall execute such
further documents in favor of the Agent, for the benefit of the
Secured Parties to further evidence and support the purpose of
this subordination.
7. WAIVER; SUBROGATION.
(a) Each Guarantor hereby waives notice of the
following events or occurrences: (i) the Agent's acceptance of this
Guaranty Agreement; (ii) the Lenders' heretofore, now or from time to
time hereafter making Loans and issuing Letters of Credit and otherwise
loaning monies or giving or extending credit to or for the benefit of
the Borrowers or either of them, whether pursuant to the Credit Agreement
or the Notes or any other Loan Document or any amendments, modifications,
or supplements thereto, or replacements or extensions thereof; (iii) the
Secured Parties or either of the Borrowers heretofore, now or at any time
hereafter, obtaining, amending, substituting for, releasing, waiving or
modifying the Credit Agreement, the Notes or any other Loan Documents;
(iv) presentment, demand, default, non-payment, partial payment and
protest; (v) any Secured Party heretofore, now or at any time hereafter
granting to the Borrowers or either of them (or any other party liable to
the Lenders on account of the Borrower's Liabilities) or to any certain
Guarantor any indulgence or extensions of time of payment of the Borrower's
Liabilities or Guarantors' Obligations, respectively; and (vi) any
Secured Party heretofore, now or at any time hereafter accepting from
either Borrower, any other Guarantor, any other guarantor of the Borrower's
Liabilities or any other Person, any partial payment or payments on account
of the Borrower's Liabilities or any collateral securing the payment
thereof or the Agent settling, subordinating, compromising, discharging
or releasing the same. Each Guarantor agrees that each Secured Party
may heretofore, now or at any time hereafter do any or all of the
foregoing in such manner, upon such terms and at such times as each
Secured Party, in its sole and absolute discretion, deems advisable,
without in any way or respect impairing, affecting, reducing or
releasing such Guarantor from the Guarantors' Obligations, and each
Guarantor hereby consents to each and all of the foregoing events or
occurrences.
(b) Each Guarantor hereby agrees that payment or
performance by such Guarantor of the Guarantors' Obligations
under this Guaranty Agreement may be enforced by the Agent on
behalf of the Lenders upon demand by the Agent to such Guarantor
without the Agent being required, such Guarantor expressly
waiving any right it may have to require the Agent, to
(i) prosecute collection or seek to enforce or resort to any
remedies against the Borrowers or either of them or any other
Guarantor or any other guarantor of the Borrower's Liabilities,
or (ii) seek to enforce or resort to any remedies with respect to
any security interests, Liens or encumbrances granted to the
Agent by either Borrower, any other Guarantor or any other Person
on account of the Borrower's Liabilities or any guaranty thereof,
IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH
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GUARANTOR THAT DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE
BY THE AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE AGENT,
EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS
CONTINUING UNDER THE CREDIT AGREEMENT. Neither the Agent nor any
Lender shall have any obligation to protect, secure or insure any
of the foregoing security interests, Liens or encumbrances on the
properties or interests in properties subject thereto. The
Guarantors' Obligations shall in no way be impaired, affected,
reduced, or released by reason of any Secured Party's failure or
delay to do or take any of the acts, actions or things described
in this Guaranty including, without limiting the generality of
the foregoing, those acts, actions and things described in this
SECTION 7.
(c) Each Guarantor further agrees with respect to this
Guaranty that such Guarantor shall have no right of subrogation,
reimbursement or indemnity, nor any right of recourse to security
for the Borrower's Liabilities until the irrevocable payment in
full of the Borrower's Liabilities.
8. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement
shall be effective as of the date hereof and shall continue in
full force and effect until all Borrower's Liabilities have been
irrevocably paid in full and the Agent and Secured Parties shall
be under no further obligation to extend credit to the Borrowers
or either of them which would constitute Borrower's Liabilities.
This Guaranty Agreement shall be binding upon and inure to the
benefit of each Guarantor, the Agent and the Lenders and their
respective successors and assigns. Notwithstanding the
foregoing, no Guarantor may, without the prior written consent of
the Agent, assign any rights, powers, duties or obligations
hereunder. Any claim or claims that the Secured Parties may at
any time hereafter have against a Guarantor under this Guaranty
Agreement may be asserted by any Secured Party by written notice
directed to such Guarantor.
9. REPRESENTATIONS AND WARRANTIES. Each Guarantor
warrants and represents to the Agent for the benefit of the
Lenders that it is duly authorized to execute, deliver and
perform this Guaranty Agreement, that this Guaranty Agreement is
legal, valid, binding and enforceable against such Guarantor in
accordance with its terms except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and
by general equitable principles; and that such Guarantor's
execution, delivery and performance of this Guaranty Agreement do
not violate or constitute a breach of its certificate of
incorporation or other documents of corporate governance or any
agreement to which such Guarantor is a party, or any applicable
laws, orders, regulations, decrees or awards of any applicable
governmental authority or arbitral body. Each Guarantor is
solvent after giving effect to the transactions contemplated by
this Guaranty and the other Loan Documents to which it is a
party.
10. EXPENSES. Each Guarantor agrees to be liable for the
payment of all reasonable fees and expenses, including attorney's
fees, incurred by the Agent in connection with the enforcement of
this Guaranty Agreement.
11. REINSTATEMENT. Each Guarantor agrees that this
Guaranty Agreement shall continue to be effective or be
reinstated, as the case may be, at any time payment received by
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the Agent under the Credit Agreement or this Guaranty Agreement
is rescinded or must be restored for any reason.
12. ATTORNEY-IN-FACT. Each Guarantor hereby appoints the
Agent as such Guarantor's attorney-in-fact for the purposes of
carrying out the provisions of this Agreement and taking any
action and executing any instrument which the Agent may deem
necessary or advisable to accomplish the purposes hereof, which
appointment is coupled with an interest and is irrevocable;
provided, that the Agent shall have and may exercise rights under
this power of attorney only upon the occurrence and during the
continuance of an Event of Default.
13. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the
Secured Parties, and all obligations of each Guarantor hereunder,
shall be absolute and unconditional irrespective of:
(1) any lack of validity or enforceability of the
Credit Agreement, any other Loan Document or any other
agreement or instrument relating to any of the Guarantor's
Obligations;
(2) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Guarantor's
Obligations, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument
relating to any of the Guarantor's Obligations;
(3) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for all or any of
the Guarantor's Obligations; or
(4) any other circumstances which might otherwise
constitute a defense available to, or a discharge of, each
Guarantor in respect of the Guarantor's Obligations or of
this Agreement.
14. RELIANCE. Each Guarantor represents and warrants to
the Agent, for the benefit of the Secured Parties, that: (a)
such Guarantor has adequate means to obtain from Borrowers, on a
continuing basis, information concerning the Borrowers and the
Borrowers' financial condition and affairs and has full and
complete access to Borrowers' books and records; (b) such
Guarantor is not relying on any Secured Party, its or their
employees, agents or other representatives, to provide such
information, now or in the future; (c) such Guarantor is
executing this Guaranty Agreement freely and deliberately, and
understands the obligations and financial risk undertaken by
providing this Guaranty; (d) such Guarantor has relied solely on
the Guarantor's own independent investigation, appraisal and
analysis of the Borrowers and the Borrowers' financial condition
and affairs in deciding to provide this Guaranty and is fully
aware of the same; and (e) such Guarantor has not depended or
relied on any Secured Party, its or their employees, agents or
representatives, for any information whatsoever concerning the
Borrowers or the Borrowers' financial condition and affairs or
other matters material to such Guarantor's decision to provide
this Guaranty or for any counseling, guidance, or special
consideration or any promise therefor with respect to such
decision. Each Guarantor agrees that neither the Agent nor any
Lender has any duty or responsibility whatsoever, now or in the
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future, to provide to such Guarantor any information concerning
the Borrowers or the Borrowers' financial condition and affairs,
other than as expressly provided herein, and that, if such
Guarantor receives any such information from the Agent or any
Lender, its or their employees, agents or other representatives,
such Guarantor will independently verify the information and will
not rely on the Agent or any Lender, its or their employees,
agents or other representatives, with respect to such
information.
15. DEFINITIONS. All terms used herein shall be defined in
accordance with the appropriate definitions appearing in the
Uniform Commercial Code as in effect in Georgia, and such
definitions are hereby incorporated herein by reference and made
a part hereof.
16. ENTIRE AGREEMENT. This Guaranty Agreement, together
with the Credit Agreement and other Loan Documents, constitutes
and expresses the entire understanding between the parties hereto
with respect to the subject matter hereof, and supersedes all
prior agreements and understandings, inducements, commitments or
conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any
of the terms hereof. Neither this Guaranty Agreement nor any
portion or provision hereof may be changed, altered, modified,
supplemented, discharged, canceled, terminated, or amended orally
or in any manner other than by an agreement, in writing signed by
the parties hereto.
17. BINDING AGREEMENT; ASSIGNMENT. This Guaranty
Agreement, and the terms, covenants and conditions hereof, shall
be binding upon and inure to the benefit of the parties hereto,
and to their respective successors and assigns, except that no
Guarantor shall be permitted to assign this Agreement or any
interest herein. All references herein to the Agent shall
include any successor thereof, each Lender and any other obligees
from time to time of the Guarantor's Obligations.
18. SWAP AGREEMENTS. All obligations of the Borrowers
under Swap Agreements shall be deemed to be Borrower's
Liabilities secured hereby, and each Lender or affiliate of a
Lender party to any such Swap Agreement shall be deemed to be a
Secured Party hereunder.
19. REPAYMENT OR RECOVERY. If claim is ever made upon the
Agent or the Secured Parties for repayment or recovery of any
amount or amounts received from Persons other than a Guarantor in
payment or on account of any of the Borrower's Liabilities and
the Agent or the Secured Parties repay all or part of said amount
by reason of (a) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of
its property, or (b) any settlement or compromise of any such
claim effected by the Agent or the Secured Parties with any such
claimant (including the original obligor), then and in such event
each Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon it,
notwithstanding any revocation hereof or the cancellation of any
Note or other instrument evidencing any Borrower's Liabilities or
any security therefor, and each Guarantor shall be and remain
liable to the Agent and the Secured Parties for the amount so
repaid or recovered to the same extent as if such amount had
never originally been received by the Agent or the Secured
Parties.
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20. SET-OFF. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an
Event of Default, each Guarantor agrees that the Agent for the
benefit of the Secured Parties shall be authorized, to the
fullest extent permitted by applicable law, to set off and apply
all deposits or deposit accounts, of any kind (other than
deposits identified as being held for third parties), now or
hereafter pledged, mortgaged, transferred or assigned to the
Agent or otherwise in the possession or control of the Agent
(other than for safekeeping) for any purpose for the account or
benefit of such Guarantor and including any balance of any
deposit account or of any credit of such Guarantor with the Agent
or the Secured Parties, whether now existing or hereafter
established, with or without prior notice (but with notice with
reasonable promptness after such set-off) to such of the
liabilities of such Guarantor to the Agent and the Secured
Parties under the Credit Agreement and the other Loan Documents
then past due and in such amounts as they may elect, and whether
or not the collateral or the responsibility of other Persons
primarily, secondarily or otherwise liable may be deemed
adequate. For the purposes of this SECTION 20, all remittances
and property shall be deemed to be in the possession of the Agent
as soon as the same may be put in transit to it by mail or
carrier or by other bailee.
21. EXPENSES; INDEMNIFICATION. Each Guarantor will upon
demand pay to the Agent or any Secured Party, as applicable the
amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts
and agents, which the Agent or such Secured Party may reasonably
incur in connection with enforcement of this Guaranty or the
failure by a Guarantor to perform or observe any of the
provisions hereof. Without limitation of SECTION 12.9 of the
Credit Agreement or any other indemnification provision in any
Loan Document, each Guarantor hereby covenants and agrees to pay,
indemnify, and hold the Secured Parties harmless from and against
any and all liabilities, costs, expenses or disbursements of any
kind or nature whatsoever arising in connection with any claim or
litigation by any Person resulting from the execution, delivery,
enforcement, performance and administration of this Guaranty
Agreement or the Loan Documents, or the transactions contemplated
hereby or thereby, or in any respect relating to the Collateral
or any transaction pursuant to which such Guarantor has incurred
any Guarantor's Obligations (all the foregoing, collectively, the
"indemnified liabilities"); provided, however, that such
Guarantor shall have no obligation hereunder with respect to
indemnified liabilities resulting from the willful misconduct or
gross negligence of the Agent or any Lender. If and to the
extent that the obligations of the Guarantors under this SECTION
21 are unenforceable for any reason, each Guarantor hereby agrees
to make the maximum contribution to the payment and satisfaction
of such obligations which is permissible under applicable law.
The agreements in this subsection shall survive repayment of all
Secured Obligations and termination or expiration of this
Guaranty Agreement.
22. REMEDIES CUMULATIVE. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies
of the Agent provided by law or under the Credit Agreement, the
other Loan Documents, or other applicable agreements or
instruments. The making of the Loans to the Borrowers pursuant
to the Credit Agreement and the extension of credit to the
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Borrowers pursuant to the Credit Agreement shall be conclusively
presumed to have been made or extended, respectively, in reliance
upon the Guarantor's guaranty of the Borrower's Liabilities
pursuant to the terms hereof.
23. NOTICES. Any notice required or permitted hereunder
shall be given, (a) with respect to each Guarantor, at the
address of the Borrowers indicated in SECTION 12.2 of the Credit
Agreement and (b) with respect to the Agent or a Lender, at the
Agent's address indicated in SECTION 12.2 of the Credit
Agreement. All such notices shall be given and shall be
effective as provided in SECTION 12.2 of the Credit Agreement.
24. GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
(b) EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE COUNTY OF XXXXXXXX,
STATE OF TENNESSEE, UNITED STATES OF AMERICA OR THE COUNTY
OF MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY HAVE
NOW OR HEREAFTER TO THE LAYING OF THE VENUE OR TO THE
JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
(c) EACH GUARANTOR AGREES THAT SERVICE OF PROCESS MAY
BE MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE
PREPAID) AND IN ACCORDANCE WITH SECTION 12.2 OF THE CREDIT
AGREEMENT, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR
UNDER THE APPLICABLE LAWS IN EFFECT.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) OR (b) HEREOF
SHALL PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE COURTS OF
ANY JURISDICTION WHERE THE GUARANTOR OR ANY OF THE
GUARANTOR'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH
THE FOREGOING, EACH GUARANTOR HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY AND EACH GUARANTOR HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO
TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
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25. Severability. In case any Lien, security interest or
other right of any Secured Party or any provision hereof shall be
held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien,
security interest or other right granted hereby or provision
hereof.
26. Counterparts. This Guaranty Agreement may be executed
in any number of counterparts and all the counterparts taken
together shall be deemed to constitute one and the same
instrument.
[Signature Page Follows.]
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IN WITNESS WHEREOF, the parties have duly executed this
Guaranty Agreement on the day and year first written above.
GUARANTORS:
A-2 WRECKER SERVICE, INC.
A-EXCELLENCE TOWING CO.
ALL AMERICAN TOWING SERVICES, INC.
ALLIED TOWING AND RECOVERY, INC.
APACO, INC.
APPLE TOWING CO., INC.
A TO Z ENTERPRISES, INC.
B&B ASSOCIATED INDUSTRIES, INC.
BEAR TRANSPORTATION, INC.
BERT'S TOWING RECOVERY CORPORATION
XXX XXXXX SERVICES, INC.
BOULEVARD & TRUMBULL TOWING, INC.
XXXXXX'X, INC.
C&L TOWING SERVICES, INC.
XXXXXX INVESTMENT CORPORATION
CEDAR BLUFF 24 HOUR TOWING, INC.
CENTURY HOLDINGS, INC.
CHAMPION CARRIER CORPORATION
CHEVRON, INC.
CHEVRON SOUTH/SOUTHERN WRECKER
LEASING, INC.
CHICAGO METRO SERVICES, INC.
CLEVELAND VEHICLE DETENTION CENTER,
INC.
COMPETITION WHEELIFT, INC.
X.X. XXXXXXXX, INC.
DICK'S TOWING & ROAD SERVICE, INC.
DOLLAR ENTERPRISES, INC.
E.B.T., INC.
EXPORT ENTERPRISES, INC.
GEORGIA EXPORT ENTERPRISES, INC.
GOLDEN WEST TOWING EQUIPMENT INC.
GOOD MECHANIC AUTO CO. OF
RICHFIELD, INC.
GREG'S TOWING, INC.
H&H TOWING ENTERPRISES, INC.
HALL'S TOWING SERVICE, INC.
XXXXXXXXXXX TOWING, INC.
H.M.R. ENTERPRISES, INC.
INTERSTATE TOWING & RECOVERY, INC.
XXXXXXX WRECKER SERVICE, INC.
XXXXXXXX ENTERPRISES, INC.
XXXXX'X, INC.
KING AUTOMOTIVE & INDUSTRIAL
EQUIPMENT, INC.
LAZER TOW SERVICES, INC.
XXXXX WRECKER SERVICE, INC.
LINCOLN TOWING ENTERPRISES, INC.
MERL'S TOWING SERVICE, INC.
MID-AMERICA WRECKER & EQUIPMENT
SALES, INC. OF COLORADO
MIKE'S WRECKER SERVICE, INC.
XXXXXX FINANCIAL SERVICES GROUP,
INC.
GUARANTY AGREEMENT
SIGNATURE PAGE 1 OF 4
XXXXXX/GREENEVILLE, INC.
XXXXXX INDUSTRIES DISTRIBUTING, INC.
XXXXXX INDUSTRIES INTERNATIONAL, INC.
XXXXX'X SERVICE & TOWING, INC.
XXXXX'X TOWING SERVICE, INC.
XXXXXX'X TOWING, INC.
OFFICIAL TOWING, INC.
X'XXXX TRUCK SERVICE, INC.
PETE'S A TOWING, INC.
PIPES ENTERPRISES, INC.
PURPOSE, INC.
RAR ENTERPRISES, INC.
RANDY'S HIGH COUNTRY TOWING, INC.
XXX XXXXXX, INC.
ROAD XXXXXX, INC.
ROAD ONE, INC.
ROAD ONE INSURANCE SERVICES, INC.
ROAD ONE SERVICE, INC.
XXXXX XXXXXX WRECKER SERVICE INC.
SANDY'S AUTO & TRUCK SERVICE, INC.
SOUTHERN WRECKER CENTER, INC.
SOUTHERN WRECKER SALES, INC.
SPEED'S AUTOMOTIVE, INC.
SPEED'S RENTALS, INC.
XXXXX'X AUTOMOTIVE SERVICES, INC.
SUBURBAN WRECKER SERVICE, INC.
TEAM TOWING AND RECOVERY, INC.
TED'S OF FAYVILLE, INC.
TEXAS TOWING CORPORATION
XXXXXXXX'X WRECKER SERVICE, INC.
TREASURE COAST TOWING, INC.
TRUCK SALES & SALVAGE CO., INC.
XXXXXXX CORPORATION
VULCAN EQUIPMENT COMPANY, INC.
VULCAN INTERNATIONAL (DELAWARE), INC.
XXXXXX TOWING, INC.
WES'S SERVICE INCORPORATED
ZEBRA TOWING, INC.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney-in-Fact
GUARANTY AGREEMENT
SIGNATURE PAGE 2 OF 4
AGENT:
NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, as Agent for the
Lenders
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Commercial Banking Officer
GUARANTY AGREEMENT
SIGNATURE PAGE 3 OF 4
