Exhibit 10ww
SIXTH AMENDMENT TO LOAN AGREEMENT
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THIS AMENDMENT TO LOAN AGREEMENT (the "Amendment") is made as of
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May 26, 1999 by and among LOJACK CORPORATION, a Massachusetts corporation (the
"Parent"), and its wholly-owned subsidiaries, LOJACK INTERNATIONAL CORPORATION,
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a Delaware corporation, formerly known as LoJack Midwest Corporation (and the
successor by merger to CarSearch Corporation), which was formerly a party to the
Loan Agreement referred to below), LOJACK OF NEW JERSEY CORPORATION, a Delaware
corporation, RECOVERY SYSTEMS, INC., a Florida corporation, LOJACK HOLDINGS
CORPORATION, a Massachusetts corporation; LOJACK VENTURE CORPORATION, a
Massachusetts corporation; LOJACK OF PENNSYLVANIA, INC., a Delaware
corporation; and LOJACK FSC, LTD., a corporation organized under the laws of
Barbados (collectively, the "Original Borrowers"); by execution of the Joinder
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attached hereto, LOJACK RECOVERY SYSTEMS BUSINESS TRUST, a Massachusetts
business trust ("LoJack Business Trust"), and LOJACK ARIZONA, LLC, a Delaware
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limited liability company ("LoJack Arizona"; and together with LoJack Business
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Trust, the "New Subsidiaries") (the Original Borrowers and the New Subsidiaries
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are referred to as the "Borrowers"); and BANKBOSTON, N.A. (f/k/a The First
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National Bank of Boston)(the "Lender").
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RECITALS
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A. The Lender and the Original Borrowers are parties to a Loan Agreement
dated as of December 10, 1993, as amended as of October 11, 1994, February 20,
1996, October 31, 1996, February 28, 1997 and February 28, 1998 (as so amended,
the "Loan Agreement"). Capitalized terms used herein without definition have
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the meanings assigned to them in the Loan Agreement;
B. Since the execution of the Loan Agreement, (1) the Parent has organized
the New Subsidiaries and (2) pursuant to (i) a certain Contribution and
Assumption Agreement dated as of March 1, 1999 between the Parent and LoJack
Arizona, the Parent has contributed certain intellectual property assets to
LoJack Arizona and (ii) a certain Assignment and Assumption Agreement dated as
of March 1, 1999 between the Parent and LoJack Business Trust, the Parent has
assigned certain assets to LoJack Business Trust (collectively, the "Technology
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Transfers"), all without obtaining the prior written consent of the Lender, as
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required in the Loan Agreement;
C. The Original Borrowers wish to (i) amend the Loan Agreement to add the
New Subsidiaries as "Borrowers" thereunder, (ii) have the Lender waive the
defaults caused by the organization of the New Subsidiaries and the Technology
Transfers without the prior written consent of the Lender and (iii) amend
certain other provisions of the Loan Agreement, all as hereafter set forth; and
D. Subject to certain terms and conditions, the Lender is willing to agree
to the same hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
I. Amendments to Loan Agreement.
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A. Deleted Definitions. The definitions of "Conversion Date" and "Term
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Loan Principal" in Section 1.1 of the Loan Agreement are hereby deleted in its
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entirety. Any and all references in the Loan Agreement to the "Conversion Date"
shall hereafter mean and be a reference to, the "Maturity Date".
B. New Definition. The definition of the term "Maturity Date" is hereby
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added to Section 1.1 of the Loan Agreement in the proper alphabetical order:
"Maturity Date. June 1, 2002"
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C. Amendment to Definition of "Borrowers". The definition of "Borrowers"
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in Section 1.1 of the Loan Agreement is amended in its entirety to read as
follows:
"Borrowers. LoJack Corporation, LoJack International Corporation,
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LoJack of New Jersey Corporation, Recovery Systems, Inc., LoJack
Holdings Corporation, LoJack Venture Corporation, LoJack of
Pennsylvania, Inc., LoJack FSC, LTD, LoJack Recovery Systems Business
Trust and LoJack of Arizona, LLC."
D. Amendment to Definition of "Interest Period". Clause (iv) of the
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definition of "Interest Period" in Section 1.1. of the Loan Agreement is hereby
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deleted.
E. Section 2.1 Amended. Section 2.1 of the Loan Agreement is hereby
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deleted in its entirety and replaced with the following:
"2.1 The Revolving Credit Loans. (a) Subject to the terms and
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conditions hereof, the Lender will make Revolving Loans to the Borrowers,
from time to time from the date hereof until the Maturity Date, in such
sums as the Borrowers may request, provided that the principal amount of
Revolving Loans outstanding at any one time shall not exceed the
Commitment. Subject to the provisions of this Agreement, from the date
hereof until the Maturity Date and within the limits of the Commitment, the
Borrowers may borrow, repay and reborrow under this Section.
(b) The Revolving Loans shall be evidenced by, and be payable as
provided in, the Borrowers' joint and several Amended and Restated
Revolving Credit Note in the form attached as Exhibit 2.1 hereto (with all
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substitutions therefor, the "Note"), payable to the order of the Lender,
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which note is hereby incorporated herein by reference and made a part
hereof.
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(c) The Lender shall record in the Revolving Loan Account (i) all
Revolving Loans, (ii) all payments made by any of the Borrowers and (c)
other debits and credits, in accordance with customary accounting
practices, including all interest, fees, charges, taxes and expenses
chargeable to the Borrowers under this Agreement (collectively, the "Bank
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Charges"). The debit balance of the Revolving Loan Account shall reflect
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the amount of the Borrowers' Obligations to the Lender from time to time in
respect of Revolving Loans and other Bank Charges hereunder. At least once
each month the Lender may render a statement of account showing as of its
date the debit balance(s) of the Loan Account which, unless within thirty
(30) days of such date notice to the contrary is received by the Lender
from the Borrowers, shall be considered correct and accepted by the
Borrowers and conclusively binding upon them."
F. Section 2.8(b) Amended. Section 2.8(b) of the Loan Agreement is
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hereby deleted in its entirety and replaced with the following:
"(b) [Intentionally Omitted]"
G. Section 4.5 Amended. Section 4.5 of the Loan Agreement is hereby
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amended by deleting the last sentence thereof in its entirety.
H. Section 4.6 Amended. Section 4.6 of the Loan Agreement is hereby
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amended by deleting the last sentence thereof in its entirety.
I. New Exhibits. Exhibit 2.1 to the Loan Agreement is deleted and the
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attached Exhibit 2.1 is substituted therefor. In addition, Exhibits 4.1, 4.8,
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4.14, 4.17 and 4.20 to the Loan Agreement are hereby supplemented by the
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disclosures on the attached Disclosure Rider.
J. Deleted Exhibits. Exhibits 4.5 and 4.6 to the Loan Agreement are
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hereby deleted in their entirety.
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II. Waivers. The Lender hereby agrees to waive the following:
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A. The Events of the Default which have occurred because the Parent
organized the New Subsidiaries and consummated the Technology Transfers without
first obtaining the prior written consent of the Lender in accordance with the
Loan Agreement.
B. The foregoing waiver is limited to its express terms and shall not be
deemed to be a waiver of any other Event of Default which may have existed on or
prior to the date hereof or which may hereafter arise. Further, the granting of
this waiver shall not be construed as a continuing waiver or waiver of any other
Event of Default under the Loan Agreement, or any other documents executed in
connection therewith.
III. Certain Representations.
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As a material inducement to the Lender to enter into this Amendment, each
of the Borrowers hereby represents and warrants to the Lender (which
representations and warranties shall survive the delivery of this Amendment),
after giving effect to this Amendment, as follows:
A. The execution and delivery of this Amendment and performance by each
Borrower of its respective obligations hereunder have been duly authorized by
all requisite corporate action and will not violate any provision of law, any
order, judgment or decree of any court or other agency of government, the
corporate charter and/or by-laws of each Borrower, or any indenture, agreement
or other instrument to which any Borrower is a party, or by which any Borrower
is bound.
B. After giving effect to this Amendment, the representations and
warranties contained in Section 4 of the Loan Agreement are true and correct in
all material respects on and as of the date of this Amendment as though made at
and as of such date (except to the extent that such representations and
warranties expressly relate to an earlier date or except to the extent
variations therefrom have been (i) permitted under the terms of the Loan
Agreement, or (ii) otherwise approved in writing by the Lender or (iii)
reflected in reports filed by the Borrower with the Securities and Exchange
Commission and furnished to the Lender pursuant to Section 6.1(g)). No material
adverse change has occurred in the assets, liabilities, financial condition,
business or prospects of any Borrowers from that disclosed in the financial
statements most recently furnished to the Lender. No Event of Default has
occurred and is continuing.
C. The Borrowers are 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 or entity in
connection with this Amendment.
D. This Amendment and the Note constitutes the legal, valid and binding
obligation of each Borrower, enforceable against each of them in accordance with
their respective terms, subject to 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 at
law or proceeding in equity, and subject to the availability of the remedy of
specific performance or of any other equitable remedy or relief to enforce any
right thereunder.
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IV. Conditions.
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The willingness of the Lender to agree to the foregoing is subject to the
following conditions:
A. Each Borrower shall have executed and delivered to the Lender (or shall
have caused to be executed and delivered to the Lender) the following:
1. This Amendment, including the Joinder of the Loan Agreement;
2. The Note in the form of the new Exhibit 2.1 to the Loan Agreement
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(which shall supersede and replace the Amended and Restated Revolving Credit and
Term Note dated February 28, 1998);
3. The copies of the instruments and agreements (including schedules
and exhibits thereto) effecting the Technology Transfers.
4. True and complete copies of all required directors' or other
governing bodies' consents and/or resolutions, authorizing the execution and
delivery of this Amendment and such other documents as may be necessary,
certified by a duly authorized officer of the appropriate Borrowers; and
5. Such other supporting documents and certificates as the Lender or
its counsel may reasonably request.
B. The Borrowers shall have paid to the Lender all outstanding legal fees
and disbursements of the Lender's counsel;
C. All legal matters relating to this Amendment shall be satisfactory to
the Lender and its counsel.
V. Effect of Amendment.
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This Amendment constitutes an amendment to and modification of the Loan
Agreement and each of the Loan Documents. Each reference in the Loan Agreement
to the "Loan Agreement", "this Agreement", "hereunder", "hereof" or words of
like import referring to the Loan Agreement shall mean and be a reference to the
Loan Agreement, as amended by this Amendment.
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VI. Miscellaneous.
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A. As provided in the Loan Agreement, the Borrowers jointly and severally
agree to reimburse the Lender upon demand for all reasonable out-of-pocket
costs and expenses of the Lender, including all reasonable fees and
disbursements of counsel to the Lender incurred in connection with the
preparation of this Amendment and any other agreements, instruments and
documents executed pursuant hereto.
B. This Amendment shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
C. This Amendment may be executed by the parties hereto in several
counterparts hereof and by the different parties hereto on separate counterparts
hereof, all of which counterparts shall together constitute one and the same
agreement.
D. The obligations of the Borrowers under this Amendment shall be joint and
several in nature.
**The Next Page is the Signature Page**
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IN WITNESS WHEREOF, the Lender and the Borrowers have caused this Amendment
to be duly executed as a sealed instrument by their duly authorized
representatives, all as of the day and year first above written.
LOJACK CORPORATION
By:
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Xxxxxx X. Xxxxx, President
LOJACK INTERNATIONAL CORPORATION
By:
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Xxxxxx X. Xxxxx, President
LOJACK OF NEW JERSEY CORPORATION
By:
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Xxxxxx X. Xxxxx, President
RECOVERY SYSTEMS, INC.
By:
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Xxxxxx X. Xxxxx, President
LOJACK HOLDINGS CORPORATION
By:
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Xxxxxx X. Xxxxx, President
LOJACK VENTURE CORPORATION
By:
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Xxxxxx X. Xxxxx, President
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LOJACK OF PENNSYLVANIA, INC.
By:
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Xxxxxx X. Xxxxx, President
LOJACK FSC, LTD.
By:
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Xxxxxx X. Xxxxx, President
BANKBOSTON, N.A.
By:
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Xxxxxxxx X. Xxxxx, Director
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JOINDER TO LOAN AGREEMENT
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The undersigned, by its execution hereof, hereby becomes a party to, and
agrees to be bound by, the Loan Agreement dated as of December 10, 1993, as
amended October 11, 1994, February 20, 1996, October 31, 1996, February 28,
1997, February 28, 1998 and the date hereof (as amended, the "Loan Agreement"),
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among BankBoston, N.A. (f/k/a The First National Bank of Boston), LoJack
Corporation, LoJack International Corporation, LoJack of New Jersey Corporation,
Recovery System, Inc., LoJack Holdings Corporation, LoJack Venture Corporation,
LoJack of Pennsylvania, Inc. and LoJack FSC, Ltd., and shall have all of the
rights and obligations of a "Borrower" under the Loan Agreement.
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Executed as a sealed instrument as of May 26, 1999
LOJACK OF ARIZONA, LLC
By:
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LOJACK RECOVERY SYSTEMS
BUSINESS TRUST
By:
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EXHIBIT 2.1
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FIFTH AMENDED AND RESTATED
REVOLVING CREDIT NOTE
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$7,500,000 Boston, Massachusetts
December 10, 1993
as Amended and Restated
as of February 20, 1996
as Amended and Restated
as of October 31, 1996
as Amended and Restated
as of February 28, 1997
as Amended and Restated
as of February 28, 1998
as Amended and Restated
as of May 26, 1999
FOR VALUE RECEIVED, LOJACK CORPORATION, LOJACK INTERNATIONAL CORPORATION,
LOJACK OF NEW JERSEY CORPORATION, RECOVERY SYSTEMS, INC., LOJACK HOLDINGS
CORPORATION, LOJACK VENTURE CORPORATION, LOJACK OF PENNSYLVANIA, INC., LOJACK
FSC, LTD., LOJACK RECOVERY SYSTEMS BUSINESS TRUST and LOJACK OF ARIZONA, LLC
(collectively, the "Borrowers"), hereby jointly and severally promise to pay to
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BANKBOSTON, N.A. (the "Lender"), or order, at the head office of the Lender at
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000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, the principal amount of Seven
Million Five Hundred Thousand ($7,500,000) or such lesser amount as shall equal
the aggregate unpaid principal amount of Revolving Loans (as defined in the Loan
Agreement referred to below) made by the Lender to the Borrowers pursuant to the
Loan Agreement dated as of December 10, 1993 by and between the Borrowers and
the Lender, as amended as of October 11, 1994, February 20, 1996, October 31,
1996, February 28, 1997, February 28, 1998 and May 26, 1999 and as hereafter
amended or extended from time to time the "Loan Agreement"), together with
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interest thereon at the rate or rates provided in the Loan Agreement, payable
monthly in arrears, without set-off, deduction or counterclaim, on the first
Business Day of each month, and at the maturity of this Note, whether by payment
or prepayment, acceleration or otherwise.
Prior to the Maturity Date (as defined in the Loan Agreement) the principal
amount hereof may be advanced, repaid and readvanced in accordance with the
terms of the Loan Agreement. The principal amount outstanding hereunder on the
Maturity Date shall be payable as provided in the Loan Agreement.
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Overdue principal (whether at maturity, by reason of acceleration or
otherwise) and, to the extent permitted by applicable law, overdue interest and
fees or any other amounts payable under the Loan Agreement (including without
limitation overadvances) due to the Borrowers' failure to pay the same in full
shall bear interest from and including the due date thereof until paid, at a
rate per annum equal to 4% above the rate which then applies to this Note, which
interest shall be compounded daily and payable on demand.
In addition, if a payment of principal or interest hereunder is not made,
due to the Borrowers' failure to pay the same in full on its due date, the
Borrowers will also pay on demand a late payment charge equal to 5% of the
amount of such payment. The foregoing shall in no way affect the Lender's right
to exercise any of its rights or remedies, including those provided in Section
8.2 of the Loan Agreement.
All payments under this Note shall be made at the head office of the Lender
at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (or at such other place as
the Lender may designate from time to time in writing) in lawful money of the
United States of America in federal or other immediately available funds.
This Note is the "Note" referred to in , and is entitled to the benefits
of, the Loan Agreement (including Exhibits thereto) and all other agreements and
instruments evidencing the indebtedness hereunder (the "Loan Documents") which
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Loan Documents are hereby incorporated herein by reference; but neither this
reference to the Loan Documents nor any provision thereof shall affect or impair
the absolute and unconditional obligation of the Borrowers to pay the principal
of and interest on this Note as herein provided.
This Note supersedes and replaces the Fourth Amended and Restated Revolving
Credit and Term Note in the principal amount of $7,500,000 issued to the Lender
by the Borrowers on February 28, 1998 under the Loan Agreement.
In case an Event of Default (as defined in the Loan Agreement) shall occur,
the aggregate unpaid principal of and accrued interest on this Note shall become
or may be declared to be due and payable in the manner and with the effect
provided in the Loan Agreement.
The Borrowers hereby waive presentment, demand, notice of dishonor, protest
and all other demands and notices in connection with the delivery, acceptance,
performance and enforcement of this Note.
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THIS INSTRUMENT SHALL HAVE THE EFFECT OF AN INSTRUMENT EXECUTED UNDER SEAL
AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS (WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS
PROVISIONS CONTAINED THEREIN).
WITNESS AS TO ALL: LOJACK CORPORATION
By:
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Xxxxxx X. Xxxxx, President
LOJACK INTERNATIONAL CORPORATION
By:
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Xxxxxx X. Xxxxx, Vice President
LOJACK OF NEW JERSEY CORPORATION
By:
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Xxxxxx X. Xxxxx, President
RECOVERY SYSTEMS, INC.
By:
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Xxxxxx X. Xxxxx, President
LOJACK HOLDINGS CORPORATION
By:
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Xxxxxx X. Xxxxx, President
LOJACK VENTURE CORPORATION
By:
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Xxxxxx X. Xxxxx, President
LOJACK OF PENNSYLVANIA, INC.
By:
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Xxxxxx X. Xxxxx, President
LOJACK FSC, LTD.
By:
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Xxxxxx X. Xxxxx, President
LOJACK RECOVERY SYSTEMS BUSINESS
TRUST
By:____________________________________
LOJACK OF ARIZONA, LLC
By:______________________________________
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