GUARANTY
THIS GUARANTY is entered into as of the 17th day of November 2003, by EACH
OF THE UNDERSIGNED (each a "Guarantor" and, collectively, the "Guarantors") in
favor of and for the benefit of the Administrative Agent and the Lenders parties
to the Credit Agreement referred to below, as such terms are defined in such
Credit Agreement.
RECITALS
A. Pursuant to a Credit Agreement dated as of November 17, 2003, by and
among Symbol Technologies, Inc. (the "Company"), Fleet National Bank, as
Administrative Agent and the various Lenders as are or may from time to time
become parties thereto (as the same may be amended, restated, modified or
supplemented from time to time, the "Credit Agreement"), the Company will
receive loans and other financial accommodations from the Administrative Agent
and Lenders and will incur Obligations (as defined in the Credit Agreement).
B. The Guarantors, being members of a group of entities affiliated with the
Company and being engaged in related businesses will receive direct and indirect
benefits from such loans and financial accommodations.
C. Each Guarantor wishes to grant the Administrative Agent and Lenders
security and assurance in order to secure the payment and performance by the
Company of all of its present and future Obligations, and, to that effect, to
guaranty the Obligations as set forth herein.
Accordingly, each Guarantor hereby agrees as follows:
1. GUARANTY.
(a) Each Guarantor, jointly and severally, hereby unconditionally and
irrevocably guarantees to the Administrative Agent and the Lenders the full and
punctual payment by the Company, when due, whether at the stated due date, by
acceleration or otherwise, of all Obligations of the Company, howsoever created,
arising or evidenced, voluntary or involuntary, whether direct or indirect,
absolute or contingent now or hereafter existing or owing to the Administrative
Agent or the Lenders (collectively, the "Guaranteed Obligations"). This Guaranty
is an absolute, unconditional, irrevocable and continuing guaranty of payment
and not of collection of the Guaranteed Obligations and includes Guaranteed
Obligations arising from successive transactions which shall either continue
such Guaranteed Obligations or from time to time renew such Guaranteed
Obligations after the same have been satisfied. This Guaranty is in no way
conditioned upon any attempt to collect from the Company or any other Person or
upon any other event or contingency, and shall be binding upon and enforceable
against each Guarantor without regard to the validity or enforceability of the
Credit Agreement, the Revolving Credit Notes or any other Loan Document or of
any term of any thereof. If for any reason the Company shall fail or be unable
duly and punctually to pay any of the Guaranteed Obligations (including, without
limitation amounts that would become due but for the operation
of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
(Section) 362(a)), each Guarantor will forthwith pay the same, in cash,
immediately upon demand.
(b) In the event the Credit Agreement, any Revolving Credit Note or any
other Loan Document shall be terminated as a result of the rejection thereof by
any trustee, receiver or liquidating agent of the Company or any of its
properties in any bankruptcy, insolvency, reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar proceeding, each
Guarantor's obligations hereunder shall continue to the same extent as if the
Credit Agreement, such Revolving Credit Note or such other Loan Document had not
been so rejected.
(c) Each Guarantor shall pay all costs, expenses (including, without
limitation, reasonable attorneys' fees and disbursements) and damages incurred
in connection with the enforcement of the Guaranteed Obligations of the Company
under the Credit Agreement, any Revolving Credit Note or any other Loan Document
to the extent that such costs, expenses and damages are not paid by the Company
pursuant to the respective documents, and such costs, fees and disbursements are
incurred in connection with the enforcement of the obligations of each Guarantor
under this Guaranty.
(d) Each Guarantor further agrees that if any payment made by the Company
or any Guarantor to the Administrative Agent or the Lenders on any Obligation or
Guaranteed Obligation, as applicable, is rescinded, recovered from or repaid by
the Administrative Agent or the Lenders, in whole or in part, in any bankruptcy,
insolvency or similar proceeding instituted by or against the Company or any
Guarantor, this Guaranty shall continue to be fully applicable to such
Guaranteed Obligation to the same extent as though the payment so recovered or
repaid had never originally been made on such Guaranteed Obligation.
(e) The Administrative Agent and the Lenders are hereby authorized at any
time and from time to time following the occurrence and during the continuance
of an Event of Default, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the
Administrative Agent or the Lenders to or for the credit or the account of any
Guarantor against any of and all the obligations of any Guarantor now or
hereafter existing under this Guaranty, irrespective of whether or not the
Administrative Agent or any Lender shall have made any demand hereunder and
although such obligations may be unmatured. The rights under this paragraph 1(e)
are in addition to other rights and remedies (including other rights of set off)
which the Administrative Agent and the Lenders may have.
(f) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors.
(g) Each Guarantor hereby agrees that to the extent that a Guarantor shall
have paid more than its proportionate share of any payment made hereunder, such
Guarantor shall be entitled to seek and receive contribution from and against
any other Guarantor hereunder
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which has not paid its proportionate share of such payment. The provisions of
this Section 1(g) shall in no respect limit the obligations and liabilities of
any Guarantor to the Administrative Agent and the Lenders, and each Guarantor
shall remain liable to the Administrative Agent and the Lenders for the full
amount guaranteed by such Guarantor hereunder.
2. GUARANTY CONTINUING, ABSOLUTE, UNLIMITED.
The obligations of each Guarantor hereunder shall be continuing,
absolute, irrevocable, unlimited and unconditional, shall not be subject to any
counterclaim, set-off, deduction or defense (other than a defense of payment or
performance hereunder) based upon any claim any Guarantor or the Company may
have against the Administrative Agent, any Lender or the Company or any other
person, and shall remain in full force and effect without regard to, and, to the
fullest extent permitted by applicable law, shall not be released, discharged or
in any way affected by, any circumstance or condition (whether or not any
Guarantor shall have any knowledge or notice thereof) whatsoever which might
constitute a legal or equitable discharge or defense including, but not limited
to, (a) any express or implied amendment, modification or supplement to the
Credit Agreement, any Revolving Credit Note, or any other Loan Document or any
other agreement referred to in any thereof, or any other instrument applicable
to the Company or to the Revolving Credit Loans, or the Letters of Credit or any
part thereof; (b) any failure on the part of the Company to perform or comply
with the Credit Agreement, any Revolving Credit Note or any other Loan Document
or any failure of any other Person to perform or comply with any term of the
Credit Agreement, any Revolving Credit Note, or any other Loan Document or any
other agreement as aforesaid; (c) any waiver, consent, change, extension,
indulgence or other action or any action or inaction under or in respect of the
Credit Agreement, any Revolving Credit Note, or any other Loan Document or any
other agreement as aforesaid, whether or not the Administrative Agent, any
Lender, the Company or any Guarantor has notice or knowledge of any of the
foregoing; (d) any bankruptcy, insolvency, reorganization, liquidation or
similar proceeding with respect to the Company, or its properties or its
creditors, or any action taken by any trustee or receiver or by any court in any
such proceeding; (e) any furnishing or acceptance of additional security or any
release of any security; (f) any limitation on the liability or obligations of
the Company under the Credit Agreement, any Revolving Credit Note or any other
Loan Document or any termination, cancellation, invalidity or unenforceability,
in whole or in part, of the Credit Agreement, any Revolving Credit Note, this
Guaranty or any other Loan Document or any term of any thereof; (g) any lien,
charge or encumbrance on or affecting any Guarantor's or any of the Company's
respective assets and properties; (h) any act, omission or breach on the part of
the Administrative Agent or any Lender under the Credit Agreement, any Revolving
Credit Note or any other Loan Document or any other agreement at any time
existing between the Administrative Agent, any Lender and the Company or any
law, governmental regulation or other agreement applicable to the Administrative
Agent, any Lender or any Revolving Credit Loan; (i) any claim as a result of any
other dealings among the Administrative Agent, any Lender, any Guarantor or the
Company; (j) the assignment of this Guaranty, the Credit Agreement, any
Revolving Credit Note or any other Loan Document by the Administrative Agent or
any Lender to any other Person; or (k) any change in the name of the
Administrative Agent, any Lender, the Company or any other Person referred to
herein.
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3. WAIVER.
To the fullest extent permitted by applicable law, each Guarantor
unconditionally waives: (a) notice of any of the matters referred to in Section
2 hereof; (b) all notices which may be required by statute, rule of law or
otherwise to preserve any rights against any Guarantor hereunder, including,
without limitation, notice of the acceptance of this Guaranty, or the creation,
renewal, extension, modification or accrual of the Guaranteed Obligations or
notice of any other matters relating thereto, any presentment, demand, notice of
dishonor, protest, nonpayment of any damages or other amounts payable under the
Credit Agreement, any Revolving Credit Note or any other Loan Documents; (c) any
requirement for the enforcement, assertion or exercise of any right, remedy,
power or privilege under or in respect of the Credit Agreement, any Revolving
Credit Note or any other Loan Documents, including, without limitation,
diligence in collection or protection of or realization upon the Guaranteed
Obligations or any part thereof or any collateral thereof; (d) any requirement
to mitigate the damages resulting from a default by the Company under the Credit
Agreement, any Revolving Credit Note or any other Loan Documents; (e) the right
to require the Administrative Agent or the Lenders to proceed against the
Company or any other person liable on the Guaranteed Obligations, to proceed
against or exhaust any security held by the Company or any other person, or to
pursue any other remedy in the Administrative Agent's or any Lender's power
whatsoever, and (f) the right to have the property of the Company first applied
to the discharge of the Guaranteed Obligations.
The Administrative Agent and the Lenders may, at their election, exercise
any right or remedy they may have against the Company without affecting or
impairing in any way the liability of any Guarantor hereunder and each Guarantor
waives, to the fullest extent permitted by applicable law, any defense arising
out of the absence, impairment or loss of any right of reimbursement,
contribution or subrogation or any other right or remedy of any Guarantor
against the Company, whether resulting from such election by the Administrative
Agent or the Lenders or otherwise. Each Guarantor waives any defense arising by
reason of any disability or other defense of the Company or by reason of the
cessation for any cause whatsoever of the liability, either in whole or in part,
of the Company to the Administrative Agent and the Lenders for the Guaranteed
Obligations.
Each Guarantor agrees that neither the Administrative Agent nor the Lenders
shall have any duty to advise any Guarantor of information regarding any
condition or circumstance of the Company or any change in such condition or
circumstance. Each Guarantor acknowledges that neither the Administrative Agent
nor the Lenders have made any representations to any Guarantor concerning the
financial condition of the Company.
4. REPRESENTATIONS AND COVENANTS OF EACH GUARANTOR.
(a) The representations and warranties contained in Article IV of the
Credit Agreement, to the extent they relate to a Guarantor, are true and correct
in all material respects as of the date hereof and the Administrative Agent and
the Lenders are entitled to rely on such representations and warranties to the
same extent as though the same were set forth in full herein.
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(b) Each Encumbered Guarantor hereby agrees to perform the covenants
contained in Article VI and Article VII of the Credit Agreement, to the extent
they relate to such Encumbered Guarantor, and the Administrative Agent and the
Lenders are entitled to rely on such agreement to perform such covenants to the
same extent as though the same were set forth in full herein.
5. PAYMENTS.
Each payment by each Guarantor to the Administrative Agent and the
Lenders under this Guaranty shall be made in the time, place and manner provided
for payments in the Credit Agreement without set-off or counterclaim to the
account at which such payment is required to be paid by the Company under the
Credit Agreement.
6. PARTIES.
This Guaranty shall inure to the benefit of the Administrative Agent,
the Lenders and their respective successors, assigns or transferees, and shall
be binding upon the Guarantors and their respective successors and assigns. No
Guarantor may assign its obligations under this Guaranty except in accordance
with the terms of the Credit Agreement.
7. NOTICES.
Any notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing and, unless otherwise expressly
provided herein, shall be conclusively deemed to have been received by a party
hereto and to be effective on the day on which delivered to such party at the
address set forth below, or, in the case of telecopy notice, when acknowledged
as received, or if sent by registered or certified mail, on the third Business
Day after the day on which mailed in the United States, addressed to such party
at said address:
(a) if to the Administrative Agent and/or the Lenders,
Fleet National Bank, as Administrative Agent
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Relationship Manager - Symbol Technologies, Inc.
Telecopy: (000) 000-0000
(b) if to any Guarantor,
c/o Symbol Technologies, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxx 00000-0000
Attention: Treasurer
Telecopy: (000) 000-0000
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(c) as to each such party at such other address as such party shall
have designated to the other in a written notice complying as to delivery with
the provisions of this Section 7.
8. REMEDIES.
Each Guarantor stipulates that the remedies at law in respect of any
default or threatened default by a Guarantor in the performance of or compliance
with any of the terms of this Guaranty are not and will not be adequate, and
that any of such terms may be specifically enforced by a decree for specific
performance or by an injunction against violation of any such terms or
otherwise.
9. RIGHTS TO DEAL WITH THE COMPANY.
At any time and from time to time, without terminating, affecting or
impairing the validity of this Guaranty or the obligations of any Guarantor
hereunder, the Lenders may deal with the Company in the same manner and as fully
as if this Guaranty did not exist and shall be entitled, among other things, to
grant the Company, without notice or demand and without affecting any
Guarantor's liability hereunder, such extension or extensions of time to
perform, renew, compromise, accelerate or otherwise change the time for payment
of or otherwise change the terms of indebtedness or any part thereof contained
in or arising under the Credit Agreement, any Revolving Credit Note or any other
Loan Documents, or to waive any obligation of the Company to perform, any act or
acts as the Lenders may deem advisable.
10. SUBROGATION.
(a) Upon any payment made or action taken by a Guarantor pursuant to
this Guaranty, such Guarantor shall, subject to the provisions of Sections 10(b)
and (c) hereof, be fully subrogated to all of the rights of the Administrative
Agent and the Lenders against the Company arising out of the action or inaction
of the Company for which such payment was made or action taken by such
Guarantor.
(b) Any claims of such Guarantor against the Company arising from
payments made or actions taken by such Guarantor pursuant to the provisions of
this Guaranty shall be in all respects subordinate to the full and complete and
indefeasible payment or performance and discharge, as the case may be, of all
amounts, obligations and liabilities, the payments or performance and discharge
of which are guaranteed by this Guaranty, and no payment hereunder by a
Guarantor shall give rise to any claim of such Guarantor against the
Administrative Agent and the Lenders.
(c) Notwithstanding anything to the contrary contained in this Section
10, no Guarantor shall be subrogated to the rights of the Administrative Agent
and the Lenders against the Company until all of the Obligations of the Company
have been paid indefeasibly in full, and that subrogation shall be suspended
upon the occurrence of the events described in Section 1(d) until the
Administrative Agent and the Lenders are indefeasibly paid in full.
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11. SURVIVAL OF REPRESENTATIONS, WARRANTIES, ETC.
All representations, warranties, covenants and agreements made herein,
including representations and warranties deemed made herein, shall continue in
full force and effect until all of the obligations of the Guarantors under this
Guaranty shall be fully performed in accordance with the terms hereof, and until
the payment in full of the Guaranteed Obligations.
12. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. THIS
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OR CHOICE OF
LAW. EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
FEDERAL OR STATE COURT IN THE XXXXX XX XXX XXXX, XXXXXX XX XXX XXXX, XXXXXX OF
NASSAU OR COUNTY OF SUFFOLK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT
AND RELATED TO OR IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
GUARANTOR HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE
OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT
PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH FEDERAL OR STATE COURTS, THAT THE
SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE
OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT THIS GUARANTY OR ANY
DOCUMENT OR ANY INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER THEREOF MAY
NOT BE LITIGATED IN OR BY SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH GUARANTOR AGREES (I) NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY
REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY OTHER NATION OR
JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT
AND (II) NOT TO ASSERT ANY COUNTERCLAIM, IN ANY SUCH SUIT, ACTION OR PROCEEDING.
EACH GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED
OR REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN THIS GUARANTY OR ANY
METHOD AUTHORIZED BY THE LAWS OF NEW YORK. THE ADMINISTRATIVE AGENT, THE LENDERS
AND EACH GUARANTOR KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS GUARANTY, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. EXCEPT AS PROHIBITED BY LAW, THE GUARANTORS
HEREBY WAIVE ANY RIGHT THEY MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES.
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13. MISCELLANEOUS.
(a) All capitalized terms used herein and not defined herein shall have
the meanings specified in the Credit Agreement.
(b) This Guaranty is the joint and several obligation of each
Guarantor, and may be enforced against each Guarantor separately, whether or not
enforcement of any right or remedy hereunder has been sought against any other
Guarantor. Each Guarantor acknowledges that its obligations hereunder will not
be released or affected by the failure of the other Guarantors to execute this
Guaranty or by a determination that all or a part of this Guaranty with respect
to any other Guarantor is invalid or unenforceable.
(c) If any term of this Guaranty or any application thereof shall be
invalid or unenforceable, the remainder of this Guaranty and any other
application of such term shall not be affected thereby.
(d) Any term of this Guaranty may be amended, waived, discharged or
terminated only by a written agreement executed by each Guarantor and by the
Administrative Agent (acting with the consent of the Required Lenders or all
Lenders, as applicable under the Credit Agreement).
(e) The headings in this Guaranty are for purposes of reference only
and shall not limit or define the meaning hereof.
(f) No delay or omission by the Administrative Agent or a Lender in the
exercise of any right under this Guaranty shall impair any such right, nor shall
it be construed to be waiver thereof; nor shall any single or partial exercise
of any right hereunder preclude any other or further exercise of any other
right.
(g) This Guaranty shall remain in full force and effect until all the
Obligations and the Guaranteed Obligations of each Guarantor hereunder shall
have been satisfied by payment in full, no Letter of Credit shall be outstanding
and the Revolving Credit Commitments shall be terminated.
(h) Each Subsidiary of the Company that is required to become a party
to this Guaranty pursuant to Section 6.12 of the Credit Agreement shall become a
Guarantor for all purposes of this Guaranty upon execution and delivery by such
Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.
(i) This Guaranty may be executed in two or more counterparts, each of
which shall constitute an original but all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be
executed and delivered as of the day and year first above written.
TELXON CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
@XXX.XXX, INC.
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
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