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EXHIBIT 10.17
CONTINUING GUARANTY
THIS CONTINUING GUARANTY (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the "Guaranty")
dated as of August 15, 2000, is made by UTI WORLDWIDE, INC., a British Virgin
Islands corporation ("Guarantor"), in favor of GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation, as agent (in such capacity, "Agent") for
the lenders ("Lenders") from time to time party to the Credit Agreement (as
defined below).
RECITALS
A. Pursuant to that certain Credit Agreement of even date
herewith by and among Union-Transport Corporation, a New York corporation
("Borrower"), the other "Credit Parties" a party thereto, Agent and Lenders
(including all annexes, exhibits and schedules thereto, and as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), Lenders have agreed to extend certain financial
accommodations to or for the direct or indirect benefit Borrower and the other
Credit Parties.
B. Guarantor will derive direct and indirect economic benefits
if Lenders and Agent enter into the Credit Agreement and agree to extend the
financial accommodations provided for therein.
C. Lenders are willing to extend the financial accommodations
as provided for in the Credit Agreement, but only upon the condition, among
others, that Guarantor shall have executed and delivered this Guaranty.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Guarantor and Agent
agree as follows:
1. DEFINED TERMS; CERTAIN MATTERS OF CONSTRUCTION.
Unless otherwise defined herein, capitalized terms or matters of
construction defined or established in Annex A to the Credit Agreement shall be
applied herein as defined or established therein.
2. THE GUARANTY.
2.1 Guaranty of Guaranteed Obligations. Guarantor hereby
unconditionally guarantees to Agent, for the benefit of Agent and Lenders, and
any of their respective successors, endorsees, transferees and assigns, the
prompt payment (whether at stated maturity, by acceleration or otherwise) and
performance of the Obligations of Borrower and the other Credit Parties (the
"Guaranteed Obligations"). Guarantor agrees that this Guaranty is a guaranty of
payment and performance and not of collection, and that its Obligations under
this Guaranty shall be primary, absolute and unconditional, irrespective of, and
unaffected by:
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(a) the genuineness, validity, regularity, enforceability or
any future amendment of or change in this Guaranty, any other Loan Document or
any other agreement, document or Instrument to which Guarantor or any other
Credit Party is or may become a party;
(b) the absence of any action to enforce this Guaranty or any
other Loan Document or the waiver or consent by Agent or any Lender with respect
to any of the provisions thereof;
(c) the existence, value or condition of, or the failure to
perfect Agent's Lien (for the benefit of Agent and Lenders) against, any
Collateral for the Obligations or any action, or the absence of any action, by
Agent in respect thereof (including the release of any such Collateral);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being agreed by Guarantor that its obligations under this Guaranty shall not
be discharged until the Termination Date. Guarantor shall be regarded, and shall
be in the same position, as a principal obligor with respect to the Guaranteed
Obligations. Guarantor agrees that any notice or directive given at any time to
Agent that is inconsistent with the waiver in the immediately preceding sentence
shall be null and void and may be ignored by Agent and Lenders, and, in
addition, may not be pleaded or introduced as evidence in any litigation
relating to this Guaranty for the reason that such pleading or introduction
would be at variance with the written terms of this Guaranty, unless Agent and
Lenders have specifically agreed otherwise in writing. Guarantor and Agent
acknowledge and agree that the foregoing waivers are of the essence of the
transactions contemplated by the Loan Documents and that, but for this Guaranty
and such waivers, Agent and Lenders would decline to enter into the Credit
Agreement.
2.2 Demand by Agent. In addition to the terms of the Guaranty set forth
in Section 2.1, and in no manner imposing any limitation on such terms, it is
expressly understood and agreed that if, at any time, any of the Guaranteed
Obligations are declared to be immediately due and payable, then Guarantor
shall, without demand, pay to the holders of the Guaranteed Obligations the
entire outstanding amount of the Guaranteed Obligations to Agent, for the
benefit of Agent and Lenders. Payment by Guarantor shall be made to Agent, for
the benefit of Agent and Lenders, in immediately available funds in Dollars to
an account designated by Agent or at the address set forth herein for the giving
of notice to Agent or at any other address that may be specified in writing from
time to time by Agent, and shall be credited and applied to the Guaranteed
Obligations.
2.3 Enforcement of Guaranty. Agent shall have no obligation to proceed
against Borrower or any other Credit Party or any Collateral pledged to secure
the Guaranteed Obligations (although it may, at its option, so proceed) before
seeking satisfaction from Guarantor, and Agent may proceed, prior or subsequent
to, or simultaneously with, the enforcement of Agent's rights hereunder, to
exercise any right or remedy that it may have (for the benefit of Agent and
Lenders) against any Collateral as a result of any Lien it may have (for the
benefit of Agent Lenders) as security for all or any portion of the Guaranteed
Obligations.
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2.4 Waiver. In addition to the waivers contained in Section 2.1,
Guarantor waives, and agrees that it shall not at any time insist upon, plead or
in any other manner claim or take the benefit or advantage of, any appraisal,
valuation, stay, extension, marshaling of assets or redemption laws, or
exemption, whether now or at any time hereafter in force, that may delay,
prevent or otherwise affect the performance by Guarantor of its obligations
under, or the enforcement by Agent, for the benefit of Agent and Lenders, of,
this Guaranty. Guarantor hereby waives diligence, presentment and demand
(whether for non payment or protest or of acceptance, maturity, extension of
time, change in nature or form of the Obligations, acceptance of further
security, release of further security, composition or agreement arrived at as to
the amount of, or the terms of, the Guaranteed Obligations, notice of adverse
change in Borrower's or any other Credit Party's financial condition or any
other fact that might increase the risk to Guarantor) with respect to any of the
Obligations or all other demands whatsoever and waives the benefit of all
provisions of law that are or might be in conflict with the terms of this
Guaranty. Guarantor represents, warrants and agrees that, as of the date of this
Guaranty, its obligations under this Guaranty are not subject to any setoffs or
defenses against Agent, any Lender, or any other Credit Party of any kind.
Guarantor further agrees that its obligations under this Guaranty shall not be
subject to any counterclaims, setoffs or defenses against Agent, any Lender or
any other Credit Party of any kind that may arise in the future.
2.5 Benefit of Guaranty. The provisions of this Guaranty are for the
benefit of Agent, Lenders and their respective successors, transferees,
endorsees and assigns, and nothing herein contained shall impair, as between any
Credit Party, on the one hand, and Agent and Lenders, on the other hand, the
Obligations of any Credit Party under the Loan Documents. This Guaranty binds
Guarantor and Guarantor may not assign, transfer, or endorse this Guaranty. In
the event all or any part of the Obligations are transferred, indorsed or
assigned by Agent or any Lender to any Person or Persons, any reference to
"Agent" or "Lender" herein shall be deemed to refer equally to such Person or
Persons.
2.6 Modification of Guaranteed Obligations. Guarantor hereby
acknowledges and agrees that Agent, for itself or for the benefit of Lenders,
may at any time or from time to time, with or without the consent of, or notice
to, Guarantor:
(a) change or extend the manner, place or terms of payment of,
or renew or alter all or any portion of, the Guaranteed Obligations;
(b) take any action under or in respect of the Loan Documents
in the exercise of any remedy, power or privilege contained therein or available
to it at law, in equity or otherwise, or waive or refrain from exercising any
such remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, any of the Loan
Documents;
(d) extend or waive the time for any Credit Party's
performance of, or compliance with, any term, covenant or agreement on its part
to be performed or observed under any of the Loan Documents, or waive such
performance or compliance or consent to a failure of, or departure from, such
performance or compliance;
(e) take and hold Collateral for the payment of the Guaranteed
Obligations guaranteed hereby or sell, exchange, release, dispose of, or
otherwise deal with, any property pledged, mortgaged or conveyed, or in which
Agent, for the benefit of Agent and Lenders, has been granted a Lien, to secure
any Obligations, in each case as permitted by the Loan Documents;
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(f) release any Person who may be liable in any manner for the
payment of any amounts owed by Guarantor or any other Credit Party to Agent or
any Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of Guarantor
or any other Credit Party are subordinated to the claims of Agent or any Lender;
or
(h) apply any sums paid by any Person and realized in any
manner to any amounts owing by Guarantor or any other Credit Party to Agent or
any Lender in the manner provided in the Credit Agreement,
and Guarantor acknowledges and agrees that neither Agent nor any Lender shall
incur any liability to Guarantor as a result of any of the foregoing, and no
such action shall impair or release the Obligations of Guarantor.
2.7 Reinstatement. This Guaranty shall remain in full force and effect
and continue to be effective should any petition be filed by or against
Guarantor or any other Credit Party for liquidation or reorganization, should
Guarantor or any other Credit Party become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all or
any significant part of Guarantor's or such Credit Party's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by Agent or any Lender, whether as a "voidable preference," "fraudulent
transfer," or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Obligations shall be reinstated and deemed reduced
only by such amount paid and not so rescinded, reduced, restored or returned.
2.8 Deferral of Subrogation, Etc. Notwithstanding anything to the
contrary in this Guaranty, or in any other Loan Document, Guarantor hereby:
(a) expressly and irrevocably waives, on behalf of itself and
its successors and assigns (including any surety) until the Termination Date,
any and all rights at law or in equity to subrogation, to reimbursement, to
exoneration, to contribution, to indemnification, to setoff or to any other
rights that could accrue to a surety against a principal, to a guarantor against
a principal, to a guarantor against a maker or obligor, to an accommodation
party against the party accommodated, to a holder or transferee against a maker,
or to the holder of any claim against any Person and that Guarantor may have or
hereafter acquire against any Credit Party in connection with or as a result of
Guarantor's execution, delivery or performance of this Guaranty, or any other
documents to which Guarantor is a party or otherwise; and
(b) acknowledges and agrees that (i) this waiver is intended
to benefit Agent and Lenders and shall not limit or otherwise affect Guarantor's
liability hereunder or the enforceability of this Guaranty, and (ii) Agent and
Lenders and their respective successors and assigns are intended third party
beneficiaries of the waivers and agreements set forth in this Section 2.8 and
their rights under this Section 2.8 shall survive payment in full of the
Guaranteed Obligations.
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2.9 Election of Remedies. Guarantor expressly acknowledges that:
(a) If any Credit Party defaults in the payment or performance
of the Obligations and Guarantor pays to Agent or Lenders all or part of the
Obligations, then Guarantor would have a right to proceed against such other
Credit Party to the extent of the Obligations so paid by Guarantor and to have
the benefit of any Lien held by Agent, for the benefit of Agent and Lenders, for
the Obligations to the extent of the Obligations so paid by Guarantor. Such
right is commonly known as the "right of subrogation."
(b) If any Credit Party defaults in the payment or performance
of the Obligations, then Agent, for the benefit of Agent and Lenders, among
other things, may enforce any Lien upon any interest in real property of any
Credit Party, to the extent that any such Lien is granted by such Credit Party
to secure the payment and performance of the Obligations (any such Lien, a "Real
Property Lien"), by means of judicial action or by nonjudicial action commonly
known as a "nonjudicial foreclosure," "trustee's sale," or "power of sale
foreclosure."
(c) If any Credit Party so defaults and Agent, for the benefit
of Agent and Lenders, enforces any Real Property Lien by means of a nonjudicial
foreclosure, trustee's sale, or power of sale foreclosure, then Guarantor's
right of subrogation to proceed against the applicable Credit Party would be
extinguished by the operation of Section 580d of the California Code of Civil
Procedure ("CCP") or any other comparable provisions of any other state, and, in
such case, Guarantor might have a defense against payment under this Guaranty.
(d) If any Credit Party so defaults and Agent, for the benefit
of Agent and Lenders, enforces any Real Property Lien by means of judicial
action, Guarantor's right to proceed against any Credit Party might be limited
by the operation of Section 580a of the CCP or any other comparable provisions
of any other state, in which case Guarantor might have a complete or partial
defense against payment under this Guaranty.
Nevertheless, Guarantor expressly, knowingly, and
intentionally waives and relinquishes any and all rights, defenses, or benefits
Guarantor might have under Sections 580a or 580d of the CCP or any other
comparable provisions of any other state. In addition, Guarantor also expressly,
knowingly, and intentionally waives and relinquishes any and all rights,
defenses, or benefits Guarantor may have based upon an election of remedies by
Agent, for the benefit of Agent and Lenders, that in any manner impairs,
affects, reduces, releases, destroys or extinguishes Guarantor's subrogation
rights or Guarantor's rights to proceed against any Credit Party or against any
other Person or any security for the Guaranteed Obligations by way of
subrogation, indemnity, contribution, reimbursement, or otherwise. In
particular, Guarantor agrees that this Guaranty will remain fully effective and
Guarantor will be liable to Agent and Lenders for any Guaranteed Obligations
even if Agent, for the benefit of Agent and Lenders, enforces any Real Property
Lien that secures the Obligations by means of a nonjudicial foreclosure,
trustee's sale, or power of sale foreclosure and the effect of such sale is to
prevent Guarantor from taking any action against any Credit Party to recover any
amounts paid by Guarantor to Agent and Lenders under this Guaranty or otherwise
limits or destroys Guarantor's right of subrogation.
GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN
ELECTION OF REMEDIES BY AGENT, FOR THE BENEFIT OF AGENT AND LENDERS, EVEN THOUGH
THAT ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL
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FORECLOSURE WITH RESPECT TO SECURITY FOR THE OBLIGATIONS, HAS DESTROYED
GUARANTOR'S RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST ANY OTHER CREDIT
PARTY BY THE OPERATION OF SECTION 580D OF THE CCP OR OTHERWISE, OR ANY OTHER
COMPARABLE PROVISIONS OF ANY OTHER STATE. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, GUARANTOR WAIVES ALL RIGHTS AND DEFENSES THAT IT MAY HAVE BECAUSE
BORROWER'S OR ANY OTHER CREDIT PARTY'S DEBT IS NOW, OR MAY HEREAFTER BE, SECURED
BY REAL PROPERTY. THIS MEANS, AMONG OTHER THINGS: (1) AGENT, FOR THE BENEFIT OF
AGENT AND LENDERS, MAY COLLECT FROM GUARANTOR WITHOUT FIRST FORECLOSING ON ANY
REAL OR PERSONAL PROPERTY COLLATERAL PLEDGED BY ANY OTHER CREDIT PARTY; (2) IF
AGENT, FOR THE BENEFIT OF AGENT AND LENDERS, FORECLOSES ON ANY REAL PROPERTY
COLLATERAL PLEDGED BY ANY CREDIT PARTY: (A) THE AMOUNT OF THE DEBT MAY BE
REDUCED ONLY BY THE PRICE FOR WHICH THAT COLLATERAL IS SOLD AT THE FORECLOSURE
SALE, EVEN IF THE COLLATERAL IS WORTH MORE THAN THE SALE PRICE; (B) AGENT, FOR
THE BENEFIT OF AGENT AND LENDERS, MAY COLLECT FROM GUARANTOR EVEN IF AGENT, BY
FORECLOSING ON THE REAL PROPERTY COLLATERAL, HAS DESTROYED ANY RIGHT GUARANTOR
MAY HAVE TO COLLECT FROM ANY OTHER CREDIT PARTY. THIS IS AN UNCONDITIONAL AND
IRREVOCABLE WAIVER OF ANY RIGHTS AND DEFENSES GUARANTOR MAY HAVE BECAUSE
BORROWER'S OR ANY OTHER CREDIT PARTY'S DEBT IS NOW, OR HEREAFTER MAY BE, SECURED
BY REAL PROPERTY. THESE RIGHTS AND DEFENSES INCLUDE, BUT ARE NOT LIMITED TO, ANY
RIGHTS OR DEFENSES BASED UPON SECTIONS 580a, 580b, 580d, OR 726 OF THE CCP.
2.10 Subordination.
(a) Guarantor hereby agrees that, until the Termination Date,
all obligations and all indebtedness of each Credit Party to Guarantor,
including any and all present and future indebtedness regardless of its nature
or manner of origination now or hereafter to become due and owing by any Credit
Party to Guarantor (collectively, the "Subordinated Indebtedness"), are hereby
subordinated and postponed and shall be inferior, in all respects, to the
Obligations.
(b) In no circumstance shall any Subordinated Indebtedness be
entitled to any collateral security; provided, that in the event any such
collateral security exists, Guarantor hereby agrees that any now existing or
hereafter arising Lien upon any of the assets of any Credit Party, in favor of
Guarantor, whether created by contract, assignment, subrogation, reimbursement,
indemnity, operation of law, principles of equity or otherwise, shall be junior
and inferior to, and is hereby subordinated in priority to any now existing or
hereafter arising Liens in favor of Agent, for the benefit of Agent and Lenders,
or in and against the Collateral, regardless of the time, manner or order of
creation, attachment or perfection of the respective Liens.
(c) Except as expressly permitted in the Credit Agreement,
Guarantor hereby agrees that it shall not assert, collect, accept payment on or
enforce any of the Subordinated Indebtedness or take collateral or other
security to secure payment of the Subordinated Indebtedness until the
Termination Date. Guarantor shall demand payment of, accelerate the maturity of,
or declare a default or event of default under the Subordinated Indebtedness
until the Termination Date. Except as expressly permitted in the Credit
Agreement, Guarantor shall not cause or permit any Credit Party to make or give,
and Guarantor shall receive or accept, payment in any form (whether
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direct or indirect, including by transfer to an affiliate or Subsidiary of such
Credit Party or Guarantor) on account of the Subordinated Indebtedness, make any
transfers in respect of the Subordinated Indebtedness without the express prior
written consent of Agent (which consent may be withheld for any reason in
Agent's sole discretion), or give any collateral security for the Subordinated
Indebtedness. Any payment, transfer, or collateral security so made or given by
any Credit Party and received or accepted by Guarantor, without the express
prior written consent of Agent, shall be held in trust by Guarantor for the
account of Agent (for the benefit of Agent and Lenders), and Guarantor shall
immediately turn over, in kind, any such payment to Agent for application in
reduction of, or (in the case of property other than cash) as security for, the
Guaranteed Obligations.
3. DELIVERIES.
Guarantor shall deliver to Agent (with sufficient copies for each
Lender), concurrently with the execution of this Guaranty and the Credit
Agreement and in a form satisfactory to Agent, the Loan Documents and other
Instruments, certificates and documents as are required to be delivered by
Guarantor to Agent under this Guaranty.
4. REPRESENTATIONS AND WARRANTIES.
To induce Agent and Lenders to make the Loans and to incur Letter of
Credit Obligations under the Credit Agreement, Guarantor makes the following
representations and warranties to Agent and Lenders, each and all of which shall
survive the execution and delivery of this Guaranty:
4.1 Corporate Existence; Compliance with Law. Guarantor (i) is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (ii) is duly qualified to do business and
is in good standing under the laws of each jurisdiction where its ownership or
lease of property or the conduct of its business requires such qualification;
(iii) has the requisite corporate power and authority and the legal right to
own, pledge, mortgage and operate its properties, to lease the property it
operates under lease, and to conduct its business as now, heretofore and
proposed to be conducted; (iv) has all material licenses, permits, consents or
approvals from or by, and has made all material filings with, and has given all
notices to, all Governmental Authorities having jurisdiction, to the extent
required for such ownership, operation and conduct; (v) is in compliance with
its charter and by-laws; and (vi) is in compliance with all applicable
provisions of law, except where the failure to comply, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
4.2 Executive Offices. Guarantor's executive office and principal place
of business are as set forth in Schedule 4.2 hereto. 00000 Xxxxxx Xxxx Xx,
Xxxxx 000, Xxxxxx Xxxxxxxxx, XX 00000
4.3 Corporate Power; Authorization; Enforceable Guaranteed Obligations.
The execution, delivery and performance of this Guaranty and all instruments and
documents to be delivered by Guarantor hereunder are within Guarantor's
corporate power, have been duly authorized by all necessary or proper corporate
action, including the consent of stockholders where required, are not in
contravention of any provision of Guarantor's charter or by-laws, do not violate
any law or regulation, or any order or decree of any Governmental Authority, do
not conflict with or result in the breach of, or constitute a default under, or
accelerate or permit the acceleration of any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other
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instrument to which Guarantor is a party or by which Guarantor or any of its
property is bound, do not result in the creation or imposition of any Lien upon
any of the property of Guarantor, and the same do not require the consent or
approval of any Governmental Authority or any other Person, except for such
consents and approvals that have been obtained prior to the date hereof. On or
prior to the Closing Date, this Guaranty shall have been duly executed and
delivered for the benefit of or on behalf of Guarantor, and each shall then
constitute a legal, valid and binding obligation of Guarantor, enforceable
against Guarantor in accordance with its terms.
5. FURTHER ASSURANCES.
Guarantor agrees, upon the written request of Agent, to execute and
deliver to Agent, from time to time, any additional Instruments or documents
reasonably considered necessary by Agent to cause this Guaranty to be, become or
remain valid and effective in accordance with its terms.
6. PAYMENTS FREE AND CLEAR OF TAXES.
All payments required to be made by Guarantor hereunder shall be made
to Agent, for the benefit of Agent and Lenders, free and clear of, and without
deduction for, any and all present and future Taxes. If Guarantor shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder, (a) the sum payable shall be increased as much as shall be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 6) Agent or Lenders, as applicable,
receives an amount equal to the sum it would have received had no such
deductions been made, (b) Guarantor shall make such deductions, and (c)
Guarantor shall pay the full amount deducted to the relevant taxing or other
authority in accordance with applicable law. Within 30 days after the date of
any payment of Taxes by Guarantor, Guarantor shall furnish to Agent the original
or a certified copy of a receipt evidencing payment thereof. Guarantor shall
indemnify and, within ten days of demand therefor, pay Agent, for the benefit of
Agent and Lenders, for the full amount of Taxes (including any Taxes imposed by
any jurisdiction on amounts payable under this Section 6) paid by Agent or
Lenders, as appropriate, with respect to any sum payable by Guarantor to Agent
under this Guaranty or any other Loan Document, and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally asserted.
7. OTHER TERMS.
7.1 Entire Agreement. This Guaranty, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements relating to a
guaranty of the loans and advances under the Loan Documents or the Guaranteed
Obligations.
7.2 Headings. The headings in this Guaranty are for convenience of
reference only and are not part of the substance of this Guaranty.
7.3 Severability. Whenever possible, each provision of this Guaranty
shall be interpreted in such a manner to be effective and valid under applicable
law, but if any provision of this Guaranty shall be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
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7.4 Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other parties, or whenever any of the parties desires to give or
serve upon any other parties any communication with respect to this Guaranty,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered: (a) upon the earlier of actual receipt and three
Business Days after deposit in the United States Mail, registered or certified
mail, return receipt requested, with proper postage prepaid; (b) upon
transmission, when sent by telecopy or other similar facsimile transmission
(with such telecopy or facsimile promptly confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided in this Section
7.4); (c) one Business Day after deposit with a reputable overnight courier with
all charges prepaid; or (d) when delivered, if hand-delivered by messenger, all
of which shall be addressed to the party to be notified and sent to the address
or facsimile number indicated at the signature page hereof or to such other
address (or facsimile number) as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Failure or delay in delivering
copies of any notice, demand, request, consent, approval, declaration or other
communication to any Person (other than Guarantor or Agent) designated at the
signature page hereto, if any, to receive copies shall in no way adversely
affect the effectiveness of such notice, demand, request, consent, approval,
declaration or other communication.
7.5 Successors and Assigns. This Guaranty and all obligations of
Guarantor hereunder shall be binding upon the successors and assigns of
Guarantor (including a trustee or debtor-in-possession on behalf of Guarantor)
and shall, together with the rights and remedies of Agent, for the benefit of
Agent and Lenders, hereunder, inure to the benefit of Agent and Lenders, all
future holders of any Instrument evidencing any of the Obligations and their
respective successors and assigns. No sales of participations, other sales,
assignments, transfers or other dispositions of any agreement governing or
Instrument evidencing the Obligations or any portion thereof or interest therein
shall in any manner affect the rights of Agent and Lenders hereunder. Guarantor
may not assign, sell, hypothecate or otherwise transfer any interest in or
obligation under this Guaranty.
7.6 No Waiver; Cumulative Remedies; Amendments. Neither Agent nor any
Lender shall by any act, delay, omission or otherwise be deemed to have waived
any of its rights or remedies hereunder, and no waiver shall be valid unless in
a writing signed by Agent and then only to the extent therein set forth. A
waiver by Agent, for the benefit of Agent and Lenders, of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy that Agent would otherwise have had on any future occasion. No failure to
exercise nor any delay in exercising on the part of Agent or any Lender any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or future exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies hereunder provided are
cumulative and may be exercised singly or concurrently and are not exclusive of
any rights and remedies provided by law. None of the terms or provisions of this
Guaranty may be waived, altered, modified, supplemented or amended except by an
instrument in writing duly executed by Agent and Guarantor.
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7.7 Termination. This Guaranty is a continuing guaranty and shall
remain in full force and effect until the Termination Date. Upon payment and
performance in full of the Obligations, Agent shall deliver to Guarantor such
documents as Guarantor may reasonably request to evidence such termination.
7.8 Counterparts. This Guaranty may be executed in any number of
counterparts, each of which shall collectively and separately constitute one and
the same agreement.
7.9 GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE. EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN DOCUMENTS, IN ALL RESPECTS,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS GUARANTY
AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE, AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. GUARANTOR HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN NEW YORK COUNT, CITY OF NEW YORK, NEW YORK, SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR
AMONG GUARANTOR, AGENT OR LENDERS PERTAINING TO THIS GUARANTY OR TO ANY MATTER
ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS;
PROVIDED, THAT AGENT AND GUARANTOR ACKNOWLEDGES THAT ANY APPEALS FROM THOSE
COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK COUNT, CITY
OF NEW YORK, NEW YORK; AND FURTHER PROVIDED, THAT NOTHING IN THIS GUARANTY SHALL
BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL
ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER
SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF AGENT, FOR THE BENEFIT OF AGENT AND LENDERS. GUARANTOR EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT
MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF
AS IS DEEMED APPROPRIATE BY SUCH COURT. GUARANTOR HEREBY WAIVES PERSONAL SERVICE
OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT
AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE
BY REGISTERED OR CERTIFIED MAIL, ADDRESSED TO GUARANTOR AT THE ADDRESS SET FORTH
ON THE SIGNATURE PAGE HEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED
UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE
UNITED STATES MAIL, PROPER POSTAGE PREPAID.
7.10 WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES HERETO DESIRE THAT
DISPUTES ARISING HEREUNDER OR RELATING HERETO BE RESOLVED BY A JUDGE APPLYING
SUCH
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APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OR ARBITRATION, EACH THE PARTIES HERETO WAIVE ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY
DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED IN
CONNECTION WITH THIS GUARANTY AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
RELATED HERETO OR THERETO.
[REMAINDER OF PAGE LEFT BLANK]
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IN WITNESS WHEREOF, Guarantor has executed and delivered this
Continuing Guaranty as of the date first above written.
"Guarantor"
UTI WORLDWIDE, INC.
By: /s/ Xxxxx Xxxxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxxxx
---------------------------------------
Title: Chief Operating Officer
--------------------------------------
Address: 00000 Xxxxxx Xxxx Xx., #000
------------------------------------
Xxxxxx Xxxxxxxxx, XX 00000
------------------------------------
Attention:
-------------------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Acknowledged by:
"Agent"
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s Xxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxx
Duly Authorized Signatory
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