CONTINUING GUARANTY
TO: XXXXX
FARGO BANK, NATIONAL ASSOCIATION
1. GUARANTY;
DEFINITIONS. In consideration of any credit or other financial
accommodation heretofore, now or hereafter extended or made to Intermec, Inc.
("Borrower") by XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Bank"), pursuant to
that certain Credit Agreement by and between Borrower and Bank, dated as of
the
date hereof (as the same may be amended from time to time, the “Credit
Agreement), and for other valuable consideration, the undersigned INTERMEC
TECHNOLOGIES CORPORATION ("Guarantor"), jointly and severally unconditionally
guarantees and promises to pay to Bank, or order, on demand in lawful money
of
the United States of America and in immediately available funds, any and all
Indebtedness of Borrower to Bank. The term "Indebtedness" is used
herein in its most comprehensive sense and includes any and all advances, debts,
obligations and liabilities of Borrower heretofore, now or hereafter made,
incurred or created, whether voluntary or involuntary and however arising,
whether due or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, or whether recovery upon such Indebtedness may
be or
hereafter becomes unenforceable, in each case pursuant to the Credit Agreement
and the Loan Documents (as defined in the Credit Agreement). This
Guaranty is a guaranty of payment and not collection.
2. MAXIMUM
LIABILITY; SUCCESSIVE TRANSACTIONS; REVOCATION; OBLIGATION UNDER OTHER
GUARANTIES. The liability of Guarantor shall not exceed at any time
the sum of (a) Fifty Million Dollars ($50,000,000), (b) all accrued and unpaid
interest on any Indebtedness, and (c) all costs and expenses pertaining to
the
enforcement of this Guaranty and/or the collection of the
Indebtedness. Notwithstanding the foregoing, Bank may permit the
Indebtedness of Borrower to exceed Guarantor's liability. This is a
continuing guaranty and all rights, powers and remedies hereunder shall apply
to
all past, present and future Indebtedness of Borrower to Bank, including that
arising under successive transactions which shall either continue the
Indebtedness, increase or decrease it, or from time to time create new
Indebtedness after all or any prior Indebtedness has been satisfied, and
notwithstanding the death, incapacity, dissolution, liquidation or bankruptcy
of
Borrower or Guarantor or any other event or proceeding affecting Borrower or
Guarantor. This Guaranty shall not apply to any new Indebtedness
created after actual receipt by Bank of written notice of its revocation as
to
such new Indebtedness; provided however, that loans or advances made by Bank
to
Borrower after revocation under commitments existing prior to receipt by Bank
of
such revocation, and extensions, renewals or modifications, of any kind, of
Indebtedness incurred by Borrower or committed by Bank prior to receipt by
Bank
of such revocation, shall not be considered new Indebtedness. Any
such notice must be sent to Bank by registered U.S. mail, postage prepaid,
addressed to its office at 000 000xx Xxxxxx,
XX, Xxxxx
000 Xxxxxxxx, Xxxxxxxxxx 00000, or at such other address as Bank shall from
time
to time designate. Any payment by Guarantor shall not reduce
Guarantor's maximum obligation hereunder unless written notice to that effect
is
actually received by Bank at or prior to the time of such
payment. The obligations of Guarantor hereunder shall be in addition
to any obligations of Guarantor under any other guaranties of any liabilities
or
obligations of Borrower or any other persons heretofore or hereafter given
to
Bank unless said other guaranties are expressly modified or revoked in writing;
and this Guaranty shall not, unless expressly herein provided, affect or
invalidate any such other guaranties.
3. OBLIGATIONS
JOINT AND SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE OF LIMITATIONS;
REINSTATEMENT OF LIABILITY. The obligations hereunder are joint and
several and independent of the obligations of Borrower, and a separate action
or
actions may be brought and prosecuted against Guarantor whether action is
brought against Borrower or any other person, or whether Borrower or any other
person is joined in any such action or actions. Guarantor
acknowledges that this Guaranty is absolute and unconditional, there are no
conditions precedent to the effectiveness of this Guaranty, and this Guaranty
is
in full force and effect and is binding on Guarantor as of the date written
below, regardless of whether Bank obtains collateral or any guaranties from
others or takes any other action contemplated by Guarantor. Guarantor
waives the benefit of any statute of limitations affecting Guarantor's liability
hereunder or the enforcement thereof, and Guarantor agrees that any payment
of
any Indebtedness or other act which shall toll any statute of limitations
applicable thereto shall similarly operate to toll such statute of limitations
applicable to Guarantor's liability hereunder. The liability of
Guarantor hereunder shall be reinstated and revived and the rights of Bank
shall
continue if and to the extent for any reason any amount at any time paid on
account of any Indebtedness guaranteed hereby is rescinded or must otherwise
be
restored by Bank, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, all as though such amount had not been
paid. The determination as to whether any amount so paid must be
rescinded or restored shall be made by Bank in its sole discretion; provided
however, that if Bank chooses to contest any such matter at the request of
Guarantor, Guarantor agrees to indemnify and hold Bank harmless from and against
all costs and expenses, including reasonable attorneys' fees, expended or
incurred by Bank in connection therewith, including without limitation, in
any
litigation with respect thereto, but excluding all costs and expenses arising
from the gross negligence or willful misconduct of Bank.
4. AUTHORIZATIONS
TO BANK. Guarantor authorizes Bank either before or after revocation
hereof, without notice to or demand on Guarantor, and without affecting
Guarantor's liability hereunder, from time to time to: (a) alter,
compromise, renew, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of the Indebtedness or any portion thereof,
including increase or decrease of the rate of interest thereon; (b) take and
hold security for the payment of this Guaranty or the Indebtedness or any
portion thereof, and exchange, enforce, waive, subordinate or release any such
security, if any; (c) apply such security, if any, and direct the order or
manner of sale thereof, including without limitation, a non-judicial sale
permitted by the terms of the controlling security agreement, mortgage or deed
of trust, as Bank in its discretion may determine; (d) release or substitute
any
one or more of the endorsers or any other guarantors of the Indebtedness, or
any
portion thereof, or any other party thereto; and (e) apply payments received
by
Bank from Borrower to any Indebtedness of Borrower to Bank, in such order as
Bank shall determine in its sole discretion, whether or not such Indebtedness
is
covered by this Guaranty, and Guarantor hereby waives any provision of law
regarding application of payments which specifies otherwise. Bank may
without notice assign this Guaranty in whole or in part in connection with
any
permitted assignment of its rights under the Credit Agreement and the related
promissory note.
5. REPRESENTATIONS
AND WARRANTIES. Guarantor represents and warrants to Bank that: (a)
this Guaranty is executed at Borrower's request; (b) Bank has made no
representation to Guarantor as to the creditworthiness of Borrower; and (c)
Guarantor has established adequate means of obtaining from Borrower on a
continuing basis financial and other information pertaining to Borrower's
financial condition. Guarantor agrees to keep adequately informed
from such means of any facts, events or circumstances which might in any way
affect Guarantor's risks hereunder, and Guarantor further agrees that Bank
shall
have no obligation to disclose to Guarantor any information or material about
Borrower which is acquired by Bank in any manner.
6. GUARANTOR'S
WAIVERS.
(a) Guarantor
waives any right to require Bank to: (i) proceed against Borrower or any
other person; (ii) marshal assets or proceed against or exhaust any
security, if any, held from Borrower or any other person; (iii) give notice
of the terms, time and place of any public or private sale or other disposition
of personal property security, if any, held from Borrower or any other person;
(iv) take any other action or pursue any other remedy in Bank's power; or (v)
make any presentment or demand for performance, or give any notice of
nonperformance, protest, notice of protest or notice of dishonor hereunder
or in
connection with any obligations or evidences of indebtedness held by Bank as
security, if any, for or which constitute in whole or in part the Indebtedness
guaranteed hereunder, or in connection with the creation of new or additional
Indebtedness.
(b) Guarantor
waives any defense to its obligations hereunder based upon or arising by reason
of: (i) any disability or other defense of Borrower or any other person; (ii)
the cessation or limitation from any cause whatsoever, other than, in the case
of clauses (i) and (ii) payment in full, of the Indebtedness of Borrower or
any
other person; (iii) any lack of authority of any officer, director, partner,
agent or any other person acting or purporting to act on behalf of Borrower
which is a corporation, partnership or other type of entity, or any defect
in
the formation of Borrower; (iv) the application by Borrower of the proceeds
of
any Indebtedness for purposes other than the purposes represented by Borrower
to, or intended or understood by, Bank or Guarantor; (v) any act or omission
by
Bank which directly or indirectly results in or aids the discharge of Borrower
or any portion of the Indebtedness by operation of law or otherwise, or which
in
any way impairs or suspends any rights or remedies of Bank
against Borrower; (vi) any impairment of the value of any interest in
any security, if any, for the Indebtedness or any portion thereof, including
without limitation, the failure to obtain or maintain perfection or recordation
of any interest in any such security, the release of any such security without
substitution, and/or the failure to preserve the value of, or to comply with
applicable law in disposing of, any such security; (vii) any modification of
the
Indebtedness, in any form whatsoever, including any modification made after
revocation hereof to any Indebtedness incurred prior to such revocation, and
including without limitation the renewal, extension, acceleration or other
change in time for payment of, or other change in the terms of, the Indebtedness
or any portion thereof, including increase or decrease of the rate of interest
thereon; or (viii) any requirement that Bank give any notice of acceptance
of
this Guaranty. Until all Indebtedness shall have been paid in full,
Guarantor shall have no right of subrogation, and Guarantor waives any right
to
enforce any remedy which Bank now has or may hereafter have against Borrower
or
any other person, and waives any benefit of, or any right to participate in,
any
security, if any, now or hereafter held by Bank. Guarantor further
waives all rights and defenses Guarantor may have arising out of (A) any
election of remedies by Bank, even though that election of remedies, such as
a
non-judicial foreclosure with respect to any security for any portion of the
Indebtedness, destroys Guarantor's rights of subrogation or Guarantor's rights
to proceed against Borrower for reimbursement, or (B) any loss of rights
Guarantor may suffer by reason of any rights, powers or remedies of Borrower
in
connection with any anti-deficiency laws or any other laws limiting, qualifying
or discharging Borrower's Indebtedness, whether by operation of Sections 726,
580a or 580d of the Code of Civil Procedure as from time to time amended, or
otherwise, including any rights Guarantor may have to a Section 580a fair market
value hearing to determine the size of a deficiency following any foreclosure
sale or other disposition of any real property security, if any, for any portion
of the Indebtedness.
7. SUBORDINATION. Any
Indebtedness of Borrower now or hereafter held by Guarantor is hereby
subordinated to the Indebtedness of Borrower to Bank. Any notes or
other instruments now or hereafter evidencing such Indebtedness of Borrower
to
Guarantor shall be marked with a legend that the same are subject to this
Guaranty.
8. REMEDIES;
NO WAIVER. All rights, powers and remedies of Bank hereunder are
cumulative. No delay, failure or discontinuance of Bank in exercising
any right, power or remedy hereunder shall affect or operate as a waiver of
such
right, power or remedy; nor shall any single or partial exercise of any such
right, power or remedy preclude, waive or otherwise affect any other or further
exercise thereof or the exercise of any other right, power or
remedy. Any waiver, permit, consent or approval of any kind by Bank
of any breach of this Guaranty, or any such waiver of any provisions or
conditions hereof, must be in writing and shall be effective only to the extent
set forth in writing.
9. COSTS,
EXPENSES AND ATTORNEYS' FEES. Guarantor shall pay to Bank immediately
upon demand the full amount of all payments, advances, charges, costs and
expenses, including reasonable attorneys' fees (to include outside counsel
fees
and all allocated costs of Bank's in-house counsel), expended or incurred by
Bank in connection with the enforcement of any of Bank's rights, powers or
remedies and/or the collection of any amounts which become due to Bank under
this Guaranty, and the prosecution or defense of any action in any way related
to this Guaranty, whether incurred at the trial or appellate level, in an
arbitration proceeding or otherwise, and including any of the foregoing incurred
in connection with any bankruptcy proceeding (including without limitation,
any
adversary proceeding, contested matter or motion brought by Bank or any other
person) relating to Guarantor or any other person or entity. All of
the foregoing shall be paid by Guarantor with interest from the date of demand
until paid in full at a rate per annum equal to the greater of ten percent
(10%)
or Bank’s Prime Rate in effect from time to time.
10. SUCCESSORS;
ASSIGNMENT. This Guaranty shall be binding upon and inure to the
benefit of the heirs, executors, administrators, legal representatives,
successors and assigns of the parties; provided however, that Guarantor may
not
assign or transfer any of its interests or rights hereunder without Bank's
prior
written consent. Guarantor acknowledges that, subject to the terms of
the Credit Agreement, Bank has the right to sell, assign, transfer, negotiate
or
grant participations in all or any part of, or any interest in, any Indebtedness
of Borrower to Bank and any obligations with respect thereto, including this
Guaranty. In connection therewith, and subject to the terms and
conditions of the Credit Agreement, including Sections 7.4 and 7.5 thereof,
Bank
may disclose all documents and information which Bank now has or hereafter
acquires relating to Guarantor and/or this Guaranty, whether furnished by
Borrower, Guarantor or otherwise. Guarantor further agrees that Bank
may disclose such documents and information to Borrower.
11. AMENDMENT. This
Guaranty may be amended or modified only in writing signed by Bank and
Guarantor.
12. UNDERSTANDING
WITH RESPECT TO WAIVERS; SEVERABILITY OF PROVISIONS. Guarantor
warrants and agrees that each of the waivers set forth herein is made with
Guarantor's full knowledge of its significance and consequences, and that under
the circumstances, the waivers are reasonable and not contrary to public policy
or law. If any waiver or other provision of this Guaranty shall be
held to be prohibited by or invalid under applicable public policy or law,
such
waiver or other provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such waiver
or
other provision or any remaining provisions of this Guaranty.
13. GOVERNING
LAW. This Guaranty shall be governed by and construed in accordance
with the laws of the State of California.
14. ARBITRATION.
(a) Arbitration. Any
claim, dispute or controversy between or among the parties to this Agreement
(including their respective employees, officers, directors, attorneys, and
other
agents), that in any way arises out of or relates to (i) any credit subject
to
this Agreement, (ii) any of the Loan Documents and/or their negotiation,
execution, collateralization, administration, repayment, modification,
extension, substitution, formation, inducement, enforcement, default or
termination; or (iii) any requests for additional credit, shall, upon demand
by
any party to this Agreement, be submitted to final, binding and confidential
arbitration before the American Arbitration Association (“AAA”) or such other
administrator to which the parties may mutually agree. (For ease of
reference only, and without limitation, all further references to the
arbitration administrator shall be to the “AAA.”)
(b) Governing
Rules. Any arbitration proceeding initiated pursuant to this
Agreement shall, unless otherwise agreed by the parties to the arbitration,
(i)
take place in California, in a location selected by the arbitrator; (ii) be
governed by the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the documents
between the parties; and (iii) be conducted by the AAA, in accordance with
its
optional procedures for large, complex commercial disputes. (The
optional procedures for large, complex commercial disputes are referred to
herein, as applicable, as the “Rules”.) In the event of any conflict
between the terms or procedures of this Agreement and the Rules, the terms
and
procedures herein shall control. Any party who fails or refuses to
submit to arbitration following a demand by another party shall bear all costs
and expenses (including attorneys’ fees) incurred by such other party in
compelling arbitration of any dispute. Nothing contained herein shall
be deemed to be a waiver by any party that is a bank of the protections afforded
to it under 12 U.S.C. §91 or any similar applicable state law.
(c) No
Waiver of Provisional Remedies, Self-Help and Foreclosure. This
arbitration provision shall not limit the right of any party to (i) foreclose
against real or personal property collateral if any; (ii) exercise self-help
remedies relating to collateral if any or proceeds of collateral if any such
as
setoff or repossession; or (iii) obtain provisional or ancillary remedies such
as replevin, injunctive relief, attachment or the appointment of a receiver,
before during or after the pendency of any arbitration
proceeding. This exclusion does not constitute a waiver of the right
or obligation of any party to submit any dispute to arbitration hereunder,
including those arising from the exercise of the actions detailed in sections
(i), (ii) and (iii) of this paragraph.
(d) Arbitrator
Qualifications and Powers. Any claim, dispute or controversy subject
to arbitration hereunder in which the amount in controversy is $5,000,000.00
or
less will be decided by a single arbitrator who shall be selected according
to
the Rules, and who shall not render an award of more than $5,000,000.00
(exclusive of fees and costs). Any claim, dispute or controversy
subject to arbitration hereunder in which the amount in controversy exceeds
$5,000,000.00 shall be decided by a panel of three arbitrators (and by at least
a majority of the three-member panel). In cases in which a
three-member panel is required, all three arbitrators must participate in all
hearings and deliberations. Any arbitrator selected pursuant to this
Agreement must be an attorney licensed to practice in the State of California,
or a retired judge of the state or federal courts within the State of
California, in the case of an attorney, with no less than ten years experience
in the substantive law applicable to the subject matter of the dispute to be
arbitrated. If arbitrability is disputed, then the arbitrator(s)
shall determine whether an issue is arbitrable and in all cases shall give
effect to the statutes of limitation in adjudicating any claim. The
arbitrator(s) shall, with or without oral argument (at his, her or their
discretion), rule upon any motions to dismiss (or demurrers) or motions for
summary adjudication or summary judgment. The arbitrator(s) shall
resolve all disputes in accordance with the substantive law of California,
and
may grant any remedy or relief that a state or federal court within California
could grant within the scope hereof, and such ancillary relief as is necessary
to make effective any award. The arbitrator(s) may impose sanctions,
award fees and costs to any prevailing party, and take such other action as
may
be necessary in the interest of justice to the extent that a court may do so
pursuant to the Federal Rules of Civil Procedure, the California Code of Civil
Procedure or other applicable law. Judgment upon the award rendered
by the arbitrator(s) may be entered in any court having
jurisdiction. The institution and maintenance of an action for
judicial relief or pursuit of a provisional or ancillary remedy shall not
constitute a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitration if any other party contests
such
action for judicial relief.
(e) Discovery. Discovery
shall be permitted in accordance with the Rules. All discovery shall
be limited to matters directly relevant to the dispute being arbitrated and
must, absent an agreement by the parties or by order of the arbitrator(s) for
good cause shown, be completed no later than 20 days before the
hearing. All discovery disputes shall be subject to final resolution
by the arbitrator(s). The procedure for submitting discovery disputes
to the arbitrator(s) for resolution shall be determined by the
arbitrator(s).
(f) Class
Proceedings and Consolidations. No party hereto may join or
consolidate disputes by or against any other person or entity in any arbitration
proceeding initiated under this Agreement, except for Subsidiary Guarantors,
or
to include in any arbitration hereunder any dispute as a representative or
member of a class, or to act in any arbitration hereunder in the interest of
the
general public or in a private attorney general capacity.
(i) Miscellaneous. To
the maximum extent practicable, the AAA, the arbitrator(s) and the parties
shall
take all steps necessary to conclude any arbitration proceeding initiated under
this Agreement within 180 days of the filing of the arbitration
demand. No arbitrator or other party to the arbitration proceeding
may disclose the fact or subject matter of the arbitration proceeding, or the
content or results thereof, except for disclosures of information by a party
required in the course of the arbitration, or in the ordinary course of its
business, or by any applicable law or regulation. This arbitration
provision shall survive termination, amendment or expiration of any of the
Loan
Documents or any relationship between the parties.
(i) Small
Claims Court. Notwithstanding anything herein to the contrary, each
party retains the right to pursue in Small Claims Court any dispute within
that
court’s jurisdiction. Further, this arbitration provision shall apply
only to disputes in which either party seeks to recover an amount of money
(excluding attorneys’ fees and costs) that exceeds the jurisdictional limit of
the Small Claims Court.
IN
WITNESS WHEREOF, the undersigned
Guarantor has executed this Guaranty as of September 27, 2007.
INTERMEC
TECHNOLOGIES CORPORATION
By:
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx, Vice President/Treasurer
By:
/s/ Xxxxx X. Xxxxxxx
Xxxxx
X.
Xxxxxxx, Vice President
