EXHIBIT 10.9
TBCC
Cross-Corporate Continuing Guaranty
Guarantors: Odetics, Inc.
Odetics ITS, Inc.
Gyyr Incorporated
Mariner Networks, Inc.
Xxxxx, Mohaddes Associates, Inc.
Borrowers: Odetics, Inc.
Odetics ITS, Inc.
Gyyr Incorporated
Mariner Networks, Inc.
Xxxxx, Mohaddes Associates, Inc.
Date: December 28, 1998
THIS CROSS-CORPORATE CONTINUING GUARANTY dated as of the above date (the
"Guaranty"), is made by the above guarantors (jointly and severally, the
"Guarantor") in favor of TRANSAMERICA BUSINESS CREDIT CORPORATION, a Delaware
corporation, ("TBCC") having its principal office at 0000 Xxxx Xxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 and having an office at 00000 Xxxxxxx Xxxx.,
Xxxxx 0000, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, with respect to the "Indebtedness"
(as defined below) of the above Borrowers (jointly and severally, the
"Borrower").
1. Guaranty. In order to induce TBCC to enter into a Loan and Security
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Agreement with the Borrower or to continue to provide financing thereunder, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Guarantor hereby (a) unconditionally and
irrevocably guarantees the payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of all of the Indebtedness, and (b)
agrees to pay any and all reasonable costs and expenses (including reasonable
attorneys' fees and related expenses) incurred by TBCC in enforcing any rights
under this Guaranty or in enforcing any of the Indebtedness against the
Borrower. As used herein, "Indebtedness" means and includes all present and
future loans (including the Loans), advances, debts, liabilities, obligations,
guarantees, covenants and duties now or hereafter owing by Borrower to TBCC of
any kind or nature, present or future, absolute or contingent, liquidated or
unliquidated, certain or uncertain, determined or undetermined, monetary or
nonmonetary, written or oral, whether Borrower may be liable individually or
jointly with others, whether incurred directly to TBCC or acquired by TBCC by
assignment or otherwise, or held by TBCC on behalf of others, and regardless of
whether recovery thereon may be or hereafter become barred by any statute of
limitations, discharged or uncollectible in any bankruptcy, insolvency or other
proceeding, or otherwise unenforceable, including without limitation all
indebtedness, liabilities and obligations which may arise under, out of, or in
connection with, any present or future Loan and Security Agreement between
Borrower and TBCC (the "Loan Agreement"), any other Loan Document or any other
agreement executed in connection herewith or therewith, whether or not for the
payment of money, whether arising by reason of an extension of credit, opening,
guaranteeing or confirming of a letter of credit, loan, guaranty,
indemnification or in any other manner, whether direct or indirect (including
those acquired by assignment, purchase, discount or otherwise), whether absolute
or contingent, due or to become due, now due or hereafter arising and however
acquired. The term "Indebtedness" includes, without limitation, all interest
(including interest accruing on or after an Insolvency Event, whether or not an
allowed claim), charges, expenses, commitment, facility, closing and collateral
management fees, letter of credit fees, reasonable attorneys' fees, and any
other sum chargeable to Borrower under the Loan Agreement or the other Loan
Documents. (Capitalized terms used in this Guaranty, which are not defined,
shall have the meanings set forth in the Loan Agreement.) As used herein, the
term "Borrower" shall include any successor to the business and assets of
Borrower, and shall also include Borrower in its capacity as a debtor or debtor
in possession under the federal Bankruptcy Code, and any trustee, custodian or
receiver for Borrower or any of its assets, should Borrower hereafter become the
subject of any bankruptcy or insolvency proceeding, voluntary or
TBCC Cross-Corporate Continuing Guaranty
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involuntary; and all indebtedness, liabilities and obligations incurred by any
such person shall be included in the Indebtedness guaranteed hereby. This
Guaranty is given in consideration for credit and other financial accommodations
which may, from time to time, be given by TBCC to Borrower in TBCC's sole
discretion, but Guarantor acknowledges and agrees that acceptance by TBCC of
this Guaranty shall not constitute a commitment of any kind by TBCC to extend
such credit or other financial accommodation to Borrower or to permit Borrower
to incur Indebtedness to TBCC. All sums due under this Guaranty shall bear
interest from the date due until the date paid at the highest rate charged with
respect to any of the Indebtedness
2. Guaranty Absolute. The Guarantor guarantees that the Indebtedness will be
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paid and performed strictly in accordance with its terms regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of the terms or the rights of TBCC with respect thereto. The liability of the
Guarantor under this Guaranty shall be absolute and unconditional irrespective
of:
(a). any lack of validity or enforceability of the Loan Agreement or
any other document agreement or instrument relating to Borrower (whether or not
relating to the Loan Agreement), including, without limitation, this Guaranty
(collectively, the "Loan Documents");
(b). any change in the time, manner or place of payment of, or in any
other term of, all or any of the Indebtedness, or any amendment or waiver of any
term of, or any consent to departure from, the terms of the Loan Agreement or
any other Loan Document or any other document or agreement;
(c). any exchange, release or non-perfection of any collateral, or
any release, amendment or waiver of any term of, or consent to departure from,
any other guaranty for all or any of the Indebtedness;
(d). any failure on the part of TBCC or any other person or entity to
exercise, or any delay in exercising, any right under the Loan Agreement or any
other Loan Document; or
(e). any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower, the Guarantor or any
other guarantor with respect to the Indebtedness (including, without limitation,
all defenses based on suretyship or impairment of collateral, and all defenses
that the Borrower may assert to the repayment of the Indebtedness, including,
without limitation, failure of consideration, breach of warranty, fraud, statute
of frauds, bankruptcy, lack of legal capacity, statute of limitations, lender
liability, accord and satisfaction, and usury) or which might otherwise
constitute a defense to this Guaranty and the obligations of the Guarantor under
this Guaranty.
The Guarantor hereby agrees that if the Borrower or any other guarantor of all
or a portion of the Indebtedness is the subject of a bankruptcy proceeding under
Title 11 of the United States Code, it will not assert the pendency of such
proceeding or any order entered therein as a defense to the timely payment of
the Indebtedness. If any claim is ever made upon TBCC for repayment or recovery
of any amount or amounts received by TBCC in payment of or on account of any of
the Indebtedness, because of any claim that any such payment constituted a
preferential transfer or fraudulent conveyance, or for any other reason
whatsoever, and TBCC repays all or part of said amount by reason of any
judgment, decree or order of any court or administrative body having
jurisdiction over TBCC or any of its property, or by reason of any settlement or
compromise of any such claim effected by TBCC with any such claimant (including
without limitation the Borrower), then and in any such event, Guarantor agrees
that any such judgment, decree, order, settlement and compromise shall be
binding upon Guarantor, notwithstanding any revocation or release of this
Guaranty or the cancellation of any note or other instrument evidencing any of
the Indebtedness, or any release of any of the Indebtedness, and the Guarantor
shall be and remain liable to TBCC under this Guaranty for the amount so repaid
or recovered, to the same extent as if such amount had never originally been
received by TBCC, and the provisions of this sentence shall survive, and
continue in effect, notwithstanding any revocation or release of this Guaranty.
3. Waiver. The Guarantor hereby waives promptness, diligence, notice of
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acceptance protest, notice of protest, and any other notice with respect to any
of the Indebtedness and this Guaranty and any requirement that TBCC protect,
secure, perfect or insure any security interest or lien or any property subject
thereto or exhaust any right to take any action against the Borrower or any
other person or any collateral. Guarantor further waives: (a) all other notices
and demands to which Guarantor might be entitled, including without limitation
notice of all of the following: the creation, existence, or acquisition of any
Indebtedness; the amount of the Indebtedness from time to time outstanding; any
foreclosure sale or other disposition of any property which secures any or all
of the Indebtedness or which secures the obligations of any other guarantor of
any or all of the Indebtedness; any adverse change in Borrower's financial
position; any other fact which might increase Guarantor's risk; any default,
partial payment or non-payment of all or any part of the Indebtedness; the
occurrence of any other Event of Default (as hereinafter defined); any and all
agreements and arrangements between TBCC and Borrower and any changes,
modifications, or extensions thereof, and any revocation, modification or
release of any guaranty of any or all of the Indebtedness by any person
(including without limitation any other person signing this Guaranty); (b) any
right to require TBCC to institute suit against, or to exhaust its rights and
remedies against, Borrower or any other person, or to proceed against any
property of any kind which secures all or any part of the Indebtedness, or to
exercise any right of offset or other right with respect to any reserves,
credits or deposit accounts held by or maintained with TBCC or any indebtedness
of TBCC to Borrower, or to exercise any other right or power, or pursue any
other remedy TBCC may have.
4. Subrogation. The Guarantor hereby irrevocably waives, to the fullest extent
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permitted by law, any and all claims, rights or remedies which it may now have
or hereafter acquire against the Borrower that arise hereunder or from the
performance by it hereunder including, without limitation, any claims, rights or
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remedies of subrogation, reimbursement, exoneration, contribution,
indemnification or participation in any claims, rights or remedies of TBCC
against the Borrower or in any security which TBCC now has or hereafter
acquires, whether or not the claims, rights or remedies arise in equity, under
contract, by statute, under common law or otherwise.
5. Representations and Warranties. The Guarantor hereby represents and
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warrants as follows:
(a). Power and Authority. The Guarantor has full power, authority,
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capacity and legal right to execute and deliver and to perform its obligations
under this Guaranty and the other Loan Documents to which the Guarantor is a
party.
(b). Enforceability. This Guaranty and the other Loan Documents to
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which the Guarantor is a party have been duly executed and delivered by the
Guarantor and constitute a legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor, its successors and assigns (and, in the case
of Guarantors who are individuals, their heirs, estate, personal
representatives, executors and administrators) in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
(c). No Conflicts. The execution, delivery and performance of this
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Guaranty and the other Loan Documents to which the Guarantor is a party will not
violate any requirement of law or contractual obligation of the Guarantor or
result in the creation or imposition of any lien on any of the property or
assets of the Guarantor, except for liens (if any) granted in favor of TBCC
pursuant to the Loan Documents.
(d). No Consents. No consent of any other Person and no consent,
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license, permit, approval or authorization, of, exemption by, notice or report
to, or registration, filing or declaration with, and governmental authority is
required in connection with the execution, delivery, performance, validity or
enforceability of this Guaranty and the other Loan Documents to which the
Guarantor is a party.
(e). Solvency. The fair value of the property of the Guarantor
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exceeds the total amount of liabilities (including, without limitation,
contingent liabilities) of the Guarantor; the present fair saleable value of the
assets of the Guarantor exceeds the amount that will be required to pay the
probable liability of the Guarantor on its existing debts as they become
absolute and matured; the Guarantor is able to realize upon its assets and pay
its debts and other liabilities, contingent obligations and other commitments as
they mature and the Guarantor does not intend to, and does not believe that it
will, incur debts or liabilities beyond the Guarantor's ability to pay as the
debts and liabilities mature. In computing the amount of contingent liabilities
at any time, it is intended that the liabilities will be computed at the amount
which, in light of all facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
6. Acceleration. Notwithstanding the terms of all or any part of the
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Indebtedness, the obligations of the Guarantor hereunder to pay and perform all
of the Indebtedness shall, at the option of TBCC, immediately become due and
payable, without notice, and without regard to the expressed maturity of any of
the Indebtedness, in the event any default or Event of Default under, or as
defined in any Loan Document, occurs and is continuing; or (b) Guarantor shall
revoke this Guaranty or contest or deny liability under this Guaranty. All of
the foregoing are hereinafter referred to as "Events of Default".
7. Revocation. This is a Continuing Guaranty relating to all of the
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Indebtedness, including Indebtedness arising under successive transactions which
from time to time continue the Indebtedness or renew it after it has been
satisfied. Guarantor agrees that the obligations of Guarantor hereunder may not
be terminated or revoked in any manner except by giving 90 days' advance written
notice of revocation to TBCC at its address above by registered first-class U.S.
mail, postage prepaid, return receipt requested, and only as to new Loans made
by TBCC to Borrower more than 90 days after actual receipt of such written
notice by TBCC. No termination or revocation of this Guaranty shall be effective
until 90 days following the date of actual receipt of said written notice of
revocation by TBCC. Notwithstanding such written notice of revocation or any
other act of Guarantor or any other event or circumstance, Guarantor agrees that
this Guaranty and all consents, waivers and other provisions hereof shall
continue in full force and effect as to any and all Indebtedness which is
outstanding on or before the 90th day following actual receipt of said written
notice of revocation by TBCC, and all extensions, renewals and modifications of
said Indebtedness (including without limitation amendments, extensions, renewals
and modifications which are evidenced by new or additional instruments,
documents or agreements executed before or after expiration of said 90-day
period), and all interest thereon, accruing before or after expiration of said
90-day period, and all attorneys' fees, court costs and collection charges,
incurred before or after expiration of said 90-day period, in endeavoring to
collect or enforce any of the foregoing against Borrower, Guarantor or any other
person liable thereon (whether or not suit be brought) and any other expenses
of, for or incidental to collection thereof.
8. Financial Condition of Borrower. Guarantor warrants that it is fully aware
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of the financial condition of Borrower and is executing and delivering this
Guaranty at Borrower's request and based solely upon its own independent
investigation of all matters pertinent hereto, and Guarantor is not relying in
any manner upon any representation or statement of TBCC with respect thereto.
Guarantor represents and warrants that it is in a position to obtain, and
Guarantor hereby assumes full responsibility for obtaining, any additional
information concerning Borrower's financial condition and any other matter
pertinent hereto as Guarantor may desire, and Guarantor is not relying upon or
expecting TBCC to furnish to it any information now or hereafter in TBCC's
possession concerning the same or any other matter. By executing this Guaranty,
Guarantor knowingly accepts the full range of risks encompassed within a
contract of continuing guaranty, which risks Guarantor acknowledges
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include without limitation the possibility that Borrower will incur additional
Indebtedness for which Guarantor will be liable hereunder after Borrower's
financial condition or ability to pay such Indebtedness has deteriorated and/or
after bankruptcy or insolvency proceedings have been commenced by or against
Borrower. Guarantor shall have no right to require TBCC to obtain or disclose
any information with respect to the Indebtedness, the financial condition or
character of Borrower, the existence of any collateral or security for any or
all of the Indebtedness, the existence of any other guaranties of all or any
part of the Indebtedness, any action or non-action on the part of TBCC,
Borrower, or any other person, or any other matter, fact, or occurrence.
9. Amendments, Etc. No amendment or waiver of any provision of this Guaranty
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or consent to any departure by the Guarantor therefrom shall in any event be
effective unless the same shall be in writing and signed by TBCC, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
10. Addresses for Notices. All notices and other communications provided for
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hereunder shall be in writing (including by telecopier) and, if to the
Guarantor, mailed or delivered to it at its address specified in the Loan
Agreement between Guarantor and TBCC, if to TBCC, mailed or delivered to it at
the address of TBCC specified on the first page of this Guaranty, or as to each
party at such other address as shall be designated by the party in a written
notice to the other party. All the notices and other communications shall, if
mailed, be effective when deposited in the mail addressed as aforesaid (except
for notice of revocation, which shall be governed by Section 7 of this
Guaranty). TBCC and Guarantor may change their address for purposes of receiving
notices hereunder by giving written notice thereof to the other party in
accordance herewith. Guarantor shall give TBCC immediate written notice of any
change in its address.
11. No Waiver; Remedies. No failure on the part of TBCC to exercise, and no
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delay in exercising, any right hereunder shall operate as a waiver thereof. No
single or partial exercise of any right hereunder shall preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
12. Right of Set-off. TBCC is hereby authorized at any time and from time-to-
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time following 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 TBCC to or for the credit or the account of the Guarantor against any and all
of the obligations of the Guarantor now or hereafter existing under this
Guaranty, irrespective of whether or not TBCC shall have made any demand under
this Guaranty and although such obligations may be contingent and unmatured.
TBCC agrees promptly to notify the Guarantor after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of TBCC under this Section
are in addition to the other rights and remedies (including, without limitation,
other rights of set-off) which TBCC may have.
13. Continuing Guaranty; Assignments. This Guaranty is a continuing guaranty
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and shall (a) remain in full force and effect until the indefeasible payment in
full of the Indebtedness and all other amounts payable under this Guaranty, (b)
be binding upon the Guarantor and its successors, assigns, beneficiaries and
indorsees (including, without limitation, the heirs, administrators, executors
and estate of the Guarantor), except that no Guarantor shall assign or transfer
any of its rights or obligations hereunder without the prior written consent of
TBCC, and (c) inure to the benefit of and be enforceable by TBCC and its
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (c), TBCC may assign or otherwise transfer any of the
Indebtedness to any other person or entity, and such other person or entity
shall thereupon become vested with all the rights in respect thereof granted to
TBCC herein or otherwise. This Guaranty and the obligations of the Guarantor
hereunder shall terminate upon the indefeasible payment in full of all of the
Indebtedness and all other amounts payable under this Guaranty.
14. Subordination. Any and all payments on all indebtedness and obligations of
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the Borrower now or hereafter owing to the Guarantor other than in respect of
salaries or wages (the "Junior Debt") is hereby subordinated and junior in right
of payment and exercise of remedies to the prior payment in full in cash of the
Indebtedness. Upon the written request of TBCC, the Junior Debt shall be
collected, enforced and received by the Guarantor as trustee for TBCC and paid
over to TBCC on account of the Indebtedness but without reducing or affecting in
any manner the liability of the Guarantor under the other provisions of this
Guaranty. So long as any of the Indebtedness is outstanding, no payments shall
be made on any of the Junior Debt without the prior written consent of TBCC
15. Telecopier; Counterparts. This Guaranty may be executed and delivered by
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telecopier or other facsimile transmission with the same force and effect as if
the same was a fully executed and delivered original counterpart. This Guaranty
may be executed by the parties in one or more counterparts, each of which shall
be an original and all of this shall constitute one and the same agreement.
16. Security. This Guaranty is secured by all present and future security
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interests granted to TBCC by Guarantor, including without limitation the
security interests granted in the Loan Agreement and the other Loan Documents.
17. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE INTERNAL SUBSTANTIVE LAWS OF THE STATE OF ILLINOIS WITHOUT
GIVEN EFFECT TO CONFLICTS OF LAW PRINCIPLES THEREOF.
18. CONSENT TO JURISDICTION.
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(a). THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY ILLINOIS STATE OR FEDERAL COURT SITTING IN ILLINOIS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO
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THIS GUARANTY OR ANY OTHER LOAN DOCUMENTS, AND THE GUARANTOR HEREBY IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH ILLINOIS STATE OR FEDERAL COURT. THE GUARANTOR HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY
OBJECTION TO THE LAYING OF VENUE OR ANY DEFENSE OF AN INCONVENIENT FORUM WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF SUCH ACTION OR PROCEEDING. THE
GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO THE GUARANTOR
AT ITS ADDRESS SPECIFIED ON THE FIRST PAGE OF THIS GUARANTY. THE GUARANTOR
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
(b). NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF TBCC TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF TBCC
TO BRING ANY ACTION OR PROCEEDING AGAINST THE GUARANTOR OR ITS PROPERTY IN THE
COURTS OF ANY OTHER JURISDICTIONS.
19. MUTUAL WAIVER OF RIGHT TO JURY TRIAL. TBCC AND GUARANTOR HEREBY WAIVE THE
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RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, LAWSUIT OR PROCEEDING BASED UPON,
ARISING OUT OF, OR IN ANY WAY RELATING TO: (i) THIS GUARANTEE OR ANY OTHER LOAN
DOCUMENTS OR ANY SUPPLEMENT OR AMENDMENT THERETO; OR (ii) ANY OTHER PRESENT OR
FUTURE INSTRUMENT OR AGREEMENT BETWEEN TBCC AND GUARANTOR; OR (iii) ANY BREACH,
CONDUCT, ACTS OR OMISSIONS OF TBCC OR GUARANTOR OR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSON AFFILIATED
WITH OR REPRESENTING TBCC OR GUARANTOR; IN EACH OF THE FOREGOING CASES, WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the date
first above written.
Guarantors:
Odetics, Inc.
By /s/ Xxxxxxx X. Xxxxx
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Title COO
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Odetics ITS, Inc.
By /s/ Xxxxxxx X. Xxxxx
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Title CFO
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Gyyr Incorporated
By /s/ Xxxxxxx X. Xxxxx
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Title CFO
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Mariner Networks, Inc.
By /s/ Xxxxxxx X. Xxxxx
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Title CFO
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Xxxxx, Mohaddes Associates, Inc.
By /s/ Xxxxxxx X. Xxxxx
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Title CFO
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