EXHIBIT 10oo.
GUARANTEE
GUARANTEE dated as of October 4, 2001 made by Xxxxxx Xxxxxxxxx, an
individual residing at Xxxxxxx Xxxxxxx Xxxxxxx 0000, 0X, Xxxxxxxxx (the
"Guarantor") in favor of LoJack Corporation, a Massachusetts corporation (the
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"Lender").
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W I T N E S S E T H :
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WHEREAS, Lender has agreed to advance credit to Car Security S.A. (the
"Borrower") in connection with Borrower's purchase of certain inventory from
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Lender (any such advance(s), are collectively referred to herein as the "Interim
Loan");
WHEREAS, the Guarantor, as an officer and shareholder of the Borrower,
will benefit from the Interim Loan by the Lender; and
WHEREAS, it is a condition precedent to such extensions of credit by
the Lender that the Guarantor shall have undertaken the obligations contemplated
by this Guarantee;
NOW, THEREFORE, in consideration of the premises and to induce the
Lender to make such advances to the Borrower, the Guarantor hereby agrees with
the Lender as follows:
1. Guarantee. The Guarantor hereby unconditionally and irrevocably
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guarantees to the Lender the prompt and complete payment and performance when
due (whether at stated maturity, by acceleration or otherwise) of all present
and future obligations, indebtedness and liabilities, and all renewals and
extensions of all or any part thereof, as principal payor and not merely as
surety, of the Borrower to the Lender arising from or by virtue of the Interim
Loan, whether for principal, interest, fees, premium, expenses, indemnification
or otherwise, and including, without limitation, all such amounts that would be
owed by the Borrower to the Lender arising from the Interim Loan but for the
fact that they are not allowable due to the existence of any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding with respect to the Borrower (collectively, the
"Obligations"). The Guarantor further agrees to pay any and all expenses
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(including, without limitation, all fees and disbursements of counsel to the
Lender) which may be paid or incurred by the Lender in enforcing, or obtaining
advice of counsel in respect of, any of its rights under this Guarantee. This
Guarantee shall remain in full force and effect until the Obligations are paid
in full.
2. Right of Set-off. Regardless of the adequacy of any collateral or
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other means of obtaining repayment of the Obligations, any deposits (general or
special, time or demand, provisional or final) and any other indebtedness at any
time held or owing by the Lender to the Guarantor may, at any time and from time
to time after the occurrence of an Event of Default, without notice to the
Guarantor or compliance with any other conditions precedent now or hereafter
imposed by statute, rule of law, or otherwise (all of which are hereby expressly
waived to the extent permitted by law) be set off, appropriated, and applied by
the Lender against any and all obligations of the Guarantor to the Lender
(irrespective of whether such obligations may be contingent or unmatured at such
time) in such manner as the Lender in its sole discretion may determine, and the
Guarantor hereby grants the Lender a continuing security interest in such
deposits and indebtedness for the payment and performance of such obligations.
3. Subrogation and Contribution. The Guarantor irrevocably and
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unconditionally waives any and all rights to which the Guarantor may be
entitled, by operation of law or otherwise, to be subrogated, with respect to
any payment made by the Guarantor hereunder, to the rights of the Lender against
the Borrower, or otherwise to be reimbursed, indemnified or exonerated by the
Borrower in respect thereof or to receive any payment, in the nature of
contribution or for any other reason, from any other guarantor of the
Obligations with respect to any payment made by the Guarantor hereunder.
4. Effect of Bankruptcy Stay. If acceleration of the time for payment
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or performance of any of the Obligations is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower or any other Person or otherwise,
all such amounts otherwise subject to acceleration shall nonetheless be payable
by the Guarantor under this Guarantee forthwith upon demand.
5. Guarantor Representations and Warranties. The Guarantor confirms,
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represents and warrants to the Lender that (A) no representations or agreements
of any kind have been made to the Guarantor which would limit or qualify in any
way the terms of this Guarantee; (B) this Guarantee is executed at the
Borrower's request and not at the request of the Lender; (C) the Lender has made
no representation to the Guarantor as to the creditworthiness of the Borrower;
and (D) the Guarantor has established adequate means of obtaining from the
Borrower on a continuing basis information regarding the Borrower's financial
condition. The Guarantor agrees to keep adequately informed from such means of
any facts, events, or circumstances which might in any way affect the
Guarantor's risks under this Guarantee, and the Guarantor further agrees that
the Lender shall have no obligation to disclose to the Guarantor any information
or documents acquired by the Lender in the course of its relationship with the
Borrower.
6. Amendments, etc. with respect to the Obligations. The obligations of
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the Guarantor under this Guarantee shall remain in full force and effect without
regard to, and shall not be released, altered, exhausted, discharged or in any
way affected by any circumstance or condition (whether or not the Borrower shall
have any knowledge or notice thereof), including without limitation (A) any
assignment or transfer in whole or in part of any of the Obligations, (B) any
furnishing or acceptance of any direct or indirect security or guaranty, or any
release of or non-perfection or invalidity of any direct or indirect security or
guaranty, for any of the Obligations, (C) any waiver, consent, extension,
renewal, indulgence, settlement, compromise or other action or inaction with
respect to the Interim Loan or any Obligation, or any exercise or
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nonexercise of any right, remedy, power or privilege under or in respect of
any instrument relating to the Interim Loan (whether by operation of law or
otherwise), (D) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect to the
Borrower or any other Person or any of their respective properties or creditors
or any resulting release or discharge of any Obligations, (E) the voluntary or
involuntary sale or other disposition of all or substantially all the assets of
the Borrower or any other Person, (F) the voluntary or involuntary liquidation,
dissolution or termination of the Borrower or any other Person, (G) any
invalidity or unenforceability, in whole or in part, of any term hereof or of
any other instrument relating to the Interim Loan, or any obligation, duty or
agreement of the Borrower or any other Person thereunder or in respect thereof,
or any provision of any applicable law or regulation purporting to prohibit the
payment or performance by the Borrower or any other Person of any Obligations,
(H) any failure on the part of the Borrower or any other Person for any reason
to perform or comply with any of the terms relating to the Interim Loan or any
other agreement, or (I) any other act, omission or occurrence whatsoever,
whether similar or dissimilar to the foregoing. The Guarantor authorizes the
Borrower, each other guarantor in respect of Obligations and the Lender at any
time in its discretion, as the case may be, to alter any of the terms of
Obligations.
7. Guarantor as Principal. If for any reason the Borrower or any other
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Person is under no legal obligation to discharge any Obligations, or if any
other moneys included in Obligations have become unrecoverable from the Borrower
or any other Person by operation of law or for any other reason, including,
without limitation, the invalidity or irregularity in whole or in part of any
Obligation, the legal disability of the Borrower or any other obligor in respect
of Obligations, any discharge of or limitation on the liability of the Borrower
or any other person or any limitation on the method or terms of payment under
any Obligation, which may now or hereafter be caused or imposed in any manner
whatsoever (whether consensual or arising by operation of law or otherwise),
this Guarantee shall nevertheless remain in full force and effect and shall be
binding upon the Guarantor to the same extent as if the Guarantor at all times
had been the principal obligor on all Obligations.
8. Waiver of Demand, Notice, Etc. The Guarantor hereby waives, to the
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extent not prohibited by applicable law, (A) all presentments, demands for
performance, notice of nonperformance, protests, notices of protests and notices
of dishonor in connection with the Obligations, including but not limited to
notice of additional indebtedness constituting Obligations or the existence,
creation or incurring of any new or additional indebtedness or obligation or of
any action or non-action on the part of the Borrower, the Lender, any endorser
or creditor of the Borrower or any other Person; (B) any notice of any
indulgence, extensions or renewals granted to any obligor with respect to
Obligations; (C) any requirement of diligence or promptness in the enforcement
of rights under any instrument relating to the Interim Loan, or any other
agreement or instrument directly or indirectly relating thereto or to the
Obligations; (D) any enforcement of any present or future agreement or
instrument relating directly or indirectly thereto or to the Obligations; (E)
notice of any of the matters referred to in Paragraph 7 above, (F) any defense
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of any kind which the Guarantor may now have with respect to his liability under
this Guarantee; (G) any right to require the Lender, as a condition of
enforcement of this Guarantee, to proceed against the Borrower or any other
Person or to proceed against or exhaust any security held by the Lender at any
time or to pursue any other right or remedy in the Lender's power before
proceeding against the Guarantor; (H) any defense that may arise by
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reason of the incapacity, lack of authority, death or disability of any other
Person or Persons or the failure of the Lender to file or enforce a claim
against the estate (in administration, bankruptcy, or any other proceeding) of
any other Person or Persons; (I) any defense based upon an election of remedies
by the Lender; (J) any defense arising by reason of any "one action" or
"anti-deficiency" law or any other law which may prevent the Lender from
bringing any action, including a claim for deficiency, against the Guarantor,
before or after the Lender's commencement of completion of any foreclosure
action, either judicially or by exercise of a power of sale; (K) any defense
based upon any lack of diligence by the Lender in the collection of any
Obligation; (L) any duty on the part of the Lender to disclose to the Guarantor
any facts the Lender may now or hereafter know about the Borrower or any other
obligor in respect of Obligations; (M) any defense arising because of an
election made by the Lender under Section 1111(b)(2) of the Federal Bankruptcy
Code; (N) any defense based on any borrowing or grant of a security interest
under Section 364 of the Federal Bankruptcy Code; (O) any defense based upon or
arising out of any defense which the Borrower or any other Person may have to
the payment or performance of Obligations (including but not limited to failure
of consideration, breach of warranty, fraud, payment, accord and satisfaction,
strict foreclosure, statute of frauds, bankruptcy, infancy, statute of
limitations, lender liability and usury); and (P) any right contemplated by
Articles 480 (second paragraph), 481 and 482 of the Argentine Commercial Code as
well as any rights and powers contemplated by Articles 1990, 1994, 2012, 2015,
2017, 2018, 2020, 2021, 2022, 2023, 2024, 2025, 2026, 2028, 2029, 2043, 2044,
2045, 2046, 2047, 2049 and 2050 of the Argentine Civil Code. Guarantor
acknowledges and agrees that each of the waivers set forth herein on the part of
the Guarantor is made with Guarantor's full knowledge of the significance and
consequences thereof and that under the circumstances the waivers are
reasonable. If any such waiver is determined to be contrary to any applicable
law or public policy, such waiver shall be effective only to the extent
permitted by such law or public policy.
9. Reinstatement. This Guarantee shall continue to be effective, or be
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reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any substantial part of its property, or otherwise, all as though
such payments had not been made.
10. Payments. The Guarantor hereby agrees that the Obligations will be
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paid to the Lender without set-off or counterclaim in U.S. Dollars at the office
of the Lender located at Westwood Executive Center, 000 Xxxxxx Xxxxx Xxxx, Xxxxx
0000, Xxxxxxxx, XX 00000, United States of America, or to such other location as
the Lender shall notify the Guarantor.
11. Representations and Warranties. The Guarantor represents and
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warrants that:
(A) Enforceability. This Guarantee constitutes a valid and
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binding obligation of the Guarantor enforceable against the Guarantor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and except as enforceability may be
subject to general principles of equity, whether such principles are applied in
a court of equity or at law.
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(B) No Violation. The execution, delivery and performance of this
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Guarantee will not contravene any provision of law, statute, rule or regulation
to which the Guarantor is subject or any judgment, decree, franchise, order or
permit applicable to the Guarantor, or will conflict or will be inconsistent
with or will result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of the Guarantor pursuant to the terms of any contractual
obligation affecting the Guarantor.
(C) Litigation. There are no actions, suits or proceedings pending
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or threatened against or affecting the Guarantor before any governmental
authority, which in any one case or in the aggregate, if determined adversely to
the interests of the Guarantor, would have a material adverse effect on the
assets or properties of the Guarantor.
12. Subordination of Claims against Borrower. Without limiting the
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provisions of Paragraph 4 hereof, the Guarantor hereby irrevocably agrees that
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any and all claims which the Guarantor may now or hereafter have against the
Borrower or any other guarantor of the Obligations, including, without
limitation, the benefit of any setoff or counterclaim or proof against dividend,
composition or payment by the Borrower or such other guarantor, shall be subject
and subordinate to the prior payment in full of all of the Obligations to the
Lender. After the occurrence of a Default, the Guarantor shall not claim from
the Borrower or such other guarantor, or with respect to any of their respective
properties, any sums which may be owing to the Guarantor, or have the benefit of
any setoff or counterclaim or proof against dividend, composition or payment by
the Borrower or such other guarantor, until the Obligations shall have been paid
in full. Should any payment or distribution or security or the benefit of
proceeds thereof be received by the Guarantor upon or with respect to amounts
due to him from the Borrower or any other guarantor of the Obligations after a
Default has occurred and prior to the payment in full of all Obligations, the
Guarantor will forthwith deliver the same to the Lender in precisely the form
received (except for endorsement or assignment where necessary), for application
in or towards repayment of the Obligations and, until so delivered, the same
shall be held in trust as property of the Lender. In the event of the failure of
the Guarantor to make any such endorsement or assignment, the Lender is hereby
irrevocably authorized to make the same on behalf of the Guarantor.
13. Severability. Any provision of this Guarantee which is prohibited or
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unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
14. Paragraph Headings. The paragraph headings used in this Guarantee
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are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
15. No Waiver, Cumulative Remedies. The Lender shall not by any act
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(except by a written instrument pursuant to Paragraph 16 hereof), delay,
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indulgence, omission or otherwise, be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to
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exercise, nor any delay in exercising, on the part of the Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Lender
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
16. Waivers and Amendments; Successors and Assigns. None of the terms or
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provisions of this Guarantee may be waived, amended, supplemented or otherwise
modified except by a written instrument executed by the Guarantor and the
Lender, provided that any provision of this Guarantee may be waived by the
Lender in a letter or agreement executed by the Lender or by telecopy from the
Lender. This Guarantee shall be binding upon the successors and permitted
assigns of the Guarantor and shall inure to the benefit of the Lender and its
successors and assigns. The Guarantor shall not assign its rights or obligations
under this Guarantee without the prior written consent of the Lender or its
successors and assigns.
17. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION; GOVERNING LAW. THE
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GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT THE GUARANTOR MAY NOW OR HEREAFTER
HAVE TO A JURY TRIAL IN ANY SUIT, ACTION OR PROCEEDING WHICH ARISES OUT OF OR BY
REASON OF THIS GUARANTEE, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
BY THE GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTEE, THE
GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH THE GUARANTOR'S PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS IN
ANY ACTION, SUIT OR PROCEEDING OF ANY KIND AGAINST THE GUARANTOR WHICH ARISES
OUT OF OR BY REASON OF THIS GUARANTEE OR THE TRANSACTIONS CONTEMPLATED HEREBY,
IN ADDITION TO ANY OTHER COURT IN WHICH SUCH ACTION, SUIT OR PROCEEDING MAY BE
BROUGHT, IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED BY ANY SUCH
COURT IN ANY SUCH ACTION, SUIT OR PROCEEDING IN WHICH THE GUARANTOR SHALL HAVE
BEEN SERVED WITH PROCESS IN THE MANNER HEREINAFTER PROVIDED, AND TO THE EXTENT
THAT THE GUARANTOR MAY LAWFULLY DO SO, WAIVES AND AGREES NOT TO ASSERT, BY WAY
OF MOTION, AS A DEFENSE OR OTHERWISE, IN SUCH ACTION, SUIT OR PROCEEDING ANY
CLAIMS THAT THE GUARANTOR IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH
COURT, THAT THE GUARANTOR'S PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR
EXECUTION, THAT THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM OR THAT THE VENUE THEREOF IS IMPROPER, AND AGREES THAT PROCESS MAY BE
SERVED UPON THE GUARANTOR IN ANY SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER
PROVIDED BY CHAPTER 223A OF THE GENERAL LAWS OF MASSACHUSETTS, RULE 4 OF THE
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MASSACHUSETTS RULES OF CIVIL PROCEDURE OR RULE 4 OF THE FEDERAL RULES OF CIVIL
PROCEDURE.
TO THE EXTENT THAT THE GUARANTOR MAY BE ENTITLED TO THE BENEFIT OF ANY
PROVISION OF LAW REQUIRING ANY LENDER PARTY IN ANY SUIT, ACTION OR PROCEEDING
BROUGHT IN A COURT OF ARGENTINA OR OTHER JURISDICTION ARISING OUT OF OR IN
CONNECTION WITH THIS GUARANTY OR THE TRANSACTION DOCUMENTS AND THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY, TO POST SECURITY FOR LITIGATION COSTS OR
OTHERWISE POST A PERFORMANCE BOND OR GUARANTY ("CAUTIO JUDICATUM SOLVI" OR
"EXCEPCION DE ARRAIGO"), OR TO TAKE ANY SIMILAR ACTION, THE GUARANTOR HEREBY
IRREVOCABLY WAIVES SUCH BENEFIT, IN EACH CASE TO THE FULLEST EXTENT NOW OR
HEREAFTER PERMITTED UNDER THE LAWS OF ARGENTINA OR, AS THE CASE MAY BE, SUCH
OTHER JURISDICTION
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
18. Notices. All notices under this Guarantee shall be in writing, and
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shall be delivered by hand, by a nationally recognized commercial overnight
delivery service, by first class mail or by telecopy, delivered, addressed or
transmitted, if to the Lender, at Westwood Executive Center, 000 Xxxxxx Xxxxx
Xxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxxxxxxx 00000, Xxxxxx Xxxxxx of America,
telephone: 000 000-0000; telecopy: 000 000-0000, and if to the Guarantor, at the
Guarantor's address or telecopy number set out below the Guarantor's signature
in this Guarantee. Such notices shall be effective (A) in the case of hand
deliveries, when received, (B) in the case of an overnight delivery service, on
the next Business Day after being placed in the possession of such delivery
service, with delivery charges prepaid, (C) in the case of mail, three days
after deposit in the postal system, first class postage prepaid and (D) in the
case of telecopy notices, when electronic indication of receipt is received.
Either party may change its address and telecopy number by written notice to the
other.
19. Currency. All payments by the Guarantor hereunder shall be made in
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United States Dollars ("Dollars") and payment in such currency shall be of the
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essence of this Guaranty. If due to exchange controls in Argentina or
restrictions in the transfer of foreign currency outside of Argentina, the
Guarantor shall be prevented from making any payment due hereunder in Dollars,
it may (i) deliver to the Lender Global External Bonds of the Republic of
Argentina of any issue chosen by the Lender or any other public bond issued by
the Federal Government of Argentina denominated in Dollars and freely exportable
in a quantity sufficient to acquire in New York the amount of Dollars owed
hereunder, exclusive of any taxes, commissions, fees or other costs, or (ii) pay
all amounts due hereunder in Dollars through any other legal mechanism for the
acquisition of Dollars in any exchange market. Any such payment will only be
considered to be
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effected upon the receipt by the Lender Parties of the Dollars due hereunder.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Guarantee as of the date first above written.
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
Address:
Xx. Xxxxxxxx Xxxxxxx 0000 0X
(0000) Xxxxxx Xxxxx
Xxxxxxxxx
Telecopy No.: _________________________
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