Exhibit 10.5
GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of March 2, 1999 is
executed by each of the undersigned (each such entity and each entity which
hereafter executes and delivers a Subsidiary Joinder in substantially the form
of Attachment 1 hereto to be referred to herein as a "Guarantor"), in favor of
GATX CAPITAL CORPORATION (the "Lender").
RECITALS
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A. Pursuant to a Loan Agreement dated as of March 2, 1999 (as amended
from time to time, the "Loan Agreement"), among Chadmoore Wireless Group, Inc.
("Chadmoore"), the subsidiaries of Chadmoore party thereto (collectively, the
"Subsidiaries," and together with Chadmoore, the "Borrowers," and each, a
"Borrower") and Lender, Lender has agreed to extend Loans to Borrower upon the
terms and subject to the conditions set forth therein.
B. The Lender's obligation to extend Loans to Borrowers under the Loan
Agreement is subject, among other conditions, to receipt by Lender of this
Guaranty duly executed by each of the undersigned Guarantors.
C. Each of the Subsidiaries of Chadmoore expects to derive substantial
direct and indirect benefit from the transactions contemplated by the Loan
Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the above recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, each Guarantor and the Lender hereby agree as follows:
1. Definitions and Interpretation
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(a)Definition. When used in this Guaranty, the following terms shall have
the following respective meanings:
"Adjusted Maximum Guaranty Amount" shall mean, with respect to any
Guarantor, the maximum liability of such Guarantor under this Guaranty, limited
to the extent provided in Section 2(d) hereof (except that, for purposes of
calculating the Adjusted Maximum Guaranty Amount of a Guarantor only, any assets
or liabilities of such Guarantor arising under Section 8 hereof shall be
ignored).
"Aggregate Guaranty Payments" shall mean, with respect to any Guarantor
at any time, the aggregate net amount of all payments made by such Guarantor
under this Guaranty (including, without limitation, under Section 8 hereof) at
or prior to such time.
"Borrower" shall have the meaning given to that term in Recital A hereof.
"Disallowed Post-Commencement Interest and Expenses" shall mean interest
computed at the rate provided in the Loan Agreement and claims for
reimbursement, costs, expenses or indemnities under the terms of any of the
Operative Documents accruing or claimed at any time after the commencement of
any Insolvency
Proceeding, if the claim for such interest, reimbursement, costs, expenses or
indemnities is not allowable, allowed or enforceable against any Borrower in
such Insolvency Proceeding.
"Fair Share" shall mean, with respect to any Guarantor at any time, an
amount equal to (i) a fraction, the numerator of which is the Adjusted Maximum
Guaranty Amount of such Guarantor and the denominator of which is the aggregate
Adjusted Maximum Guaranty Amounts of all Guarantors, multiplied by (ii) the
aggregate amount paid by all Funding Guarantors under this Guaranty at or prior
to such time.
"Fair Share Shortfall" shall mean, with respect to any Guarantor at any
time, the amount, if any, by which the Fair Share of such Guarantor at such time
exceeds the Aggregate Guaranty Payments of such Guarantor at such time.
"Funding Guarantor" shall have the meaning given to that term in
Section 8 hereof.
"Guaranteed Obligations" shall mean the Obligations.
"Guarantor" shall have the meaning given to that term in the introductory
paragraph hereof.
"Insolvency Proceeding" shall mean any case or proceeding under the
United States Bankruptcy Code or any other similar law, rule or regulation of
the United States or any jurisdiction or any other action or proceeding for the
reorganization, liquidation, appointment of a receiver, rearrangement of debts,
marshalling of assets or similar action relating to any Borrower or any
Guarantor, their respective creditors or any substantial part of their
respective assets, whether or not any such case, proceeding or action is
voluntary or involuntary.
"Lender" shall have the meaning given to that term in the introductory
paragraph hereof.
"Loan Agreement" shall have the meaning given to that term in Recital A
hereof
"Subordinated Obligations" shall have the meaning given to that term in
Section 6 hereof.
"Subsidiary Joinder" shall mean an agreement substantially in the form of
Attachment 1 hereto. Unless otherwise defined herein, all other capitalized
terms used herein and defined in the Loan Agreement shall have the respective
meanings given to those terms in the Loan Agreement.
(b) Other Interpretive Provisions. The rules of construction set forth
in Section 1.02-1.06 of the Loan Agreement shall, to the extent not inconsistent
with the terms of this Guaranty, apply to this Guaranty and are hereby
incorporated by reference. Each Guarantor acknowledges receipt of copies of the
Loan Agreement and the other Operative Documents.
2. Guaranty
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(a)Payment Guaranty Each Guarantor unconditionally guarantees and
promises to pay and perform as and when due, whether at stated maturity, upon
acceleration or otherwise, any and all of the Guaranteed Obligations. If any
Insolvency Proceeding relating to any Borrower is commenced, each Guarantor
further unconditionally guarantees and promises to pay and perform, upon the
demand of Lender, any and all of the Guaranteed Obligations (including any and
all Disallowed Post-Commencement Interest and Expenses) in accordance with the
terms of the Operative Documents, whether or not such obligations are then due
and payable by any Borrower and whether or not such obligations are modified,
reduced or discharged in such Insolvency Proceeding. This Guaranty is a guaranty
of payment and not of collection.
(b) Continuing Guaranty. This Guaranty is an irrevocable continuing
guaranty of the Guaranteed Obligations which shall continue in effect until all
obligations of the Lender to extend credit to any Borrower have terminated and
all of the Guaranteed Obligations have been fully, finally and indefensibly
paid. If any payment on any Guaranteed Obligation is set aside, avoided or
rescinded or otherwise recovered from Lender, such recovered payment shall
constitute a Guaranteed Obligation hereunder and, if this Guaranty was
previously released or terminated, it automatically shall be fully reinstated,
as if such payment was never made.
(c) Independent Obligation. The liability of each Guarantor hereunder is
independent of the Guaranteed Obligations and of the obligations of each other
Guarantor hereunder, and a separate action or actions may be brought and
prosecuted against each Guarantor irrespective of whether action is brought
against any Borrower, any other Guarantor or any other guarantor of the
Guaranteed Obligations or whether any Borrower, any other Guarantor or any other
guarantor of the Guaranteed Obligations is joined in any such action or actions.
(d) Fraudulent Transfer Limitation. If, in any action to enforce this
Guaranty, any court of competent jurisdiction determines that enforcement
against any Guarantor for the full amount of the Guaranteed Obligations is not
lawful under or would be subject to avoidance under Section 548 of the United
States Bankruptcy Code or any applicable provision of any comparable law of any
state or other jurisdiction, the liability of such Guarantor under this Guaranty
shall be limited to the maximum amount lawful and not subject to such avoidance.
(e) Termination. Notwithstanding any termination of this Guaranty in
accordance with Section 6 hereof, this Guaranty shall continue to be in full
force and effect and applicable to any Guaranteed Obligations arising thereafter
which arise because prior payments of Guaranteed Obligations are rescinded or
otherwise required to be surrendered by Lender after receipt.
3. [Intentionally Deleted]
4. Covenants.
---------
Until all obligations of Lender to extend credit to Borrowers have
terminated and all of the Guaranteed Obligations have been fully, finally and
indefensibly paid, each Guarantor shall comply with the following covenants:
(a) Financial Statements, Reports, Etc. Such Guarantor shall furnish to
Lender such Financial Statements, certificates, opinions, statements, documents
and information relating to the operations or condition (financial or otherwise)
of such Guarantor or its Subsidiaries, and compliance by each Borrower and such
Guarantor with the terms of the Operative Documents as Lender may from time to
time reasonably request.
(b) Inspections. Such Guarantor and its Subsidiaries shall permit any
Person designated by Lender, upon reasonable notice and during normal business
hours, to visit and inspect any of the properties and offices of such Guarantor
and its Subsidiaries, to examine the books and records of such Guarantor and its
Subsidiaries and make copies thereof and to discuss the affairs, finances and
accounts of such Guarantor and its Subsidiaries with, and to be advised as to
the same by, their officers, auditors and accountants, all at such times and
intervals as Lender may reasonably request.
(c) Insurance. Such Guarantor and its Subsidiaries shall maintain the
insurance required to be maintained under the Loan Agreement.
(d) Governmental Charges and Other Indebtedness. To the extent failure to
do so could have a Material Adverse Effect, such Guarantor and its Subsidiaries
shall promptly pay and discharge all taxes and other charges imposed by any
Government Authority upon such Guarantor or its Subsidiaries or their property
as and when they become due.
(e) General Business Operations. To the extent failure to do so could
have a Material Adverse Effect, such Guarantor and its Subsidiaries shall (i)
maintain its corporate existence and all rights, privileges and franchises
necessary for the conduct of its business and (ii) comply with any material
judgment, order, writ, decree, statute, rule or regulation applicable to such
Person and any material mortgage, indenture, agreement, instrument or contract
to which such Person is a party or by which it is bound.
5. Authorizations, Waivers, Etc.
----------------------------
(a) Authorizations. Each Guarantor authorizes Lender, in their
discretion, without notice to such Guarantor, irrespective of any change in the
financial condition of any Borrower, such Guarantor, any other Guarantor or any
other guarantor of the Guaranteed Obligations since the date hereof, and without
affecting or impairing in any way the liability of such Guarantor hereunder,
from time to time to:
(i) Create new Guaranteed Obligations and renew, compromise,
extend, accelerate or otherwise change the time for payment or performance of,
or otherwise amend or modify the Operative Documents or change the terms of the
Guaranteed Obligations or any part thereof, including increase or decrease of
the rate of interest thereon;
(ii) Take and hold security for the payment or performance of
the Guaranteed Obligations and exchange, enforce, waive or release any such
security; apply such security and direct the order or manner of sale thereof;
and purchase such security at public or private sale;
(iii) Otherwise exercise any right or remedy they may have
against any Borrower, such Guarantor, any other Guarantor, any other guarantor
of the Guaranteed Obligations or any security, including, without limitation,
the right to foreclose upon any such security by judicial or nonjudicial sale;
(iv) Settle, compromise with, release or substitute any one or
more makers, endorsers or guarantors of the Guaranteed Obligations; and
(v) Assign the Guaranteed Obligations, this Guaranty or the
other Operative Documents in whole or in part to the extent provided in the Loan
Agreement and the other Operative Documents.
(b) Waivers. Each Guarantor hereby waives:
(i)Any right to require Lender to (A) proceed against any
Borrower, any other Guarantor or any other guarantor of the Guaranteed
Obligations, (B) proceed against or exhaust any security received from any
Borrower, such Guarantor, any other Guarantor or any other guarantor of the
Guaranteed Obligations or otherwise marshal the assets of any Borrower, such
Guarantor, any other Guarantor or any other guarantor of the Guaranteed
Obligations or (C) pursue any other remedy in Lender's power whatsoever;
(ii)Any defense arising by reason of the application by any
Borrower of the proceeds of any borrowing;
(iii) Any defense resulting from the absence, impairment or loss
of any right of reimbursement, subrogation, contribution or other right or
remedy of Guarantor against any Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any security, whether resulting from
an election by Lender to foreclose upon security by nonjudicial sale, or
otherwise;
(iv) Any setoff or
counterclaim of any Borrower or any defense which results from any disability or
other defense of any Borrower or the cessation or stay of enforcement from any
cause whatsoever of the liability of any Borrower (including, without
limitation, the lack of validity or enforceability of any of the Operative
Documents);
(v) Any defense based upon any law, rule or regulation which
provides that the obligation of a surety must not be greater or more burdensome
than the obligation of the principal;
(vi) Until all obligations of Lender to extend credit to any
Borrower have terminated and all of the Guaranteed Obligations have been fully,
finally and indefensibly paid, any right of subrogation, reimbursement,
indemnification or contribution and other similar right to enforce any remedy
which Lender or any other Person now has or may hereafter have against any
Borrower on account of the Guaranteed Obligations, and any benefit of, and any
right to participate in, any security now or hereafter received by Lender or any
other Person on account of the Guaranteed Obligations;
(vii) All presentments, demands for performance, notices of
nonperformance, notices delivered under the Operative Documents, protests,
notice of dishonor, and notices of acceptance of this Guaranty and of the
existence, creation or incurring of new or additional Guaranteed Obligations and
notices of any public or private foreclosure sale;
(viii) The benefit of any statute of limitations to the extent
permitted by law;
(ix) Any appraisement, valuation, stay, extension, moratorium
redemption or similar law or similar rights for marshalling;
(x) Any right to be informed by Lender of the financial
condition of any Borrower, any other Guarantor or any other circumstances
bearing upon the risk of nonpayment or nonperformance of the Guaranteed
Obligations;
(xi) Until all obligations of Lender to extend credit to any
Borrower have terminated and all of the Guaranteed Obligations have been fully,
finally and indefensibly paid, any right to revoke this Guaranty;
(xii) Any defense arising from an election for the application
of Section 1111(b)(2) of the United States Bankruptcy Code which applies to the
Guaranteed Obligations;
(xiii) Any defense based upon any borrowing or grant of a
security interest under Section 364 of the United States Bankruptcy Code; and
(xiv) Any right it may have to a fair value hearing to determine
the size of a deficiency judgment following any foreclosure on any security for
the Guaranteed Obligations.
Without limiting the scope of any of the foregoing provisions of this Section 5,
each Guarantor hereby further waives (A) all rights and defenses arising out of
an election of remedies by Lender, even though that election of remedies, such
as a nonjudicial foreclosure with respect to security for a Guaranteed
Obligation, has destroyed
such Guarantor's rights of subrogation and reimbursement against any Borrower by
the operation of Section 580d of the Code of Civil Procedure or otherwise, (B)
all rights and defenses such Guarantor may have by reason of protection afforded
to any Borrower with respect to the Guaranteed Obligations pursuant to the
antideficiency or other laws of California limiting or discharging the
Guaranteed Obligations, including, without limitation, Section 580a, 580b, 580d,
or 726 of the California Code of Civil Procedure, and (C) all other rights and
defenses available to such Guarantor by reason of Sections 2787 to 2855,
inclusive, Section 2899 or Section 3433 of the California Civil Code or Section
3605 of the California Commercial Code.
(c) Financial Condition of Borrower, Etc. Each Guarantor is fully aware
of the financial condition and affairs of each Borrower. Each Guarantor has
executed this Guaranty without reliance upon any representation, warranty,
statement or information concerning each Borrower furnished to such Guarantor by
Lender and has, independently and without reliance on Lender and based on such
documents and information as it has deemed appropriate, made its own appraisal
of the financial condition and affairs of each Borrower and of other
circumstances affecting the risk of nonpayment or nonperformance of the
Guaranteed Obligations. Each Guarantor is in a position to obtain, and assumes
full responsibility for obtaining, any additional information about the
financial condition and affairs of each Borrower and of other circumstances
affecting the risk of nonpayment or nonperformance of the Guaranteed Obligations
and will, independently and without reliance upon Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own appraisals and decisions in taking or not taking action in
connection with this Guaranty.
6. Subordination.
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Each Guarantor hereby subordinates any and all debts, liabilities and
obligations owed to such Guarantor by each Borrower or any Subsidiary of such
Borrower (the "Subordinated Obligations") to the Guaranteed Obligations as
provided in this Section 6.
(a) Prohibited Payments, Etc. Until the occurrence of a Default or an
Event of Default or any default by any Guarantor hereunder, each Guarantor and
its Subsidiaries may receive regularly scheduled payments from Borrowers on
account of Subordinated Obligations. After the occurrence and during the
continuance of any Default or Event of Default or any default by any Guarantor
hereunder (including the commencement and continuation of any Insolvency
Proceeding relating to any Borrower, however, unless Lender otherwise requests,
no Guarantor shall, nor shall it permit any of its Subsidiaries to, demand,
accept or take any action to collect any payment on account of the Subordinated
Obligations.
(b) Prior Payment of Guaranteed Obligation. In any Insolvency Proceeding
relating to any Borrower, each Guarantor agrees that Lender shall be entitled to
receive payment of all Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses) before such Guarantor or any of its
Subsidiaries receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Default or Event of Default (including the commencement and continuation of any
Insolvency Proceeding relating to any Borrower, each Guarantor and its
Subsidiaries shall, if Lender so requests, collect, enforce and receive payments
on account of the Subordinated Obligations as trustee for Lender and deliver
such payments to Lender on account of the Guaranteed Obligations (including any
and all Disallowed Post-Commencement Interest and Expenses), together with any
necessary endorsements or other instruments of transfer, but without reducing or
affecting in any manner the liability of such Guarantor under the other
provisions of this Guaranty.
(d) Lender Authorization. After the occurrence and during the continuance
of any Default or Event of Default or any default by a Guarantor hereunder
(including the commencement and continuation of any Insolvency Proceeding
relating to any Borrower, Lender is authorized and empowered (but without any
obligation to so do), in its discretion, (i) in the name of each Guarantor and
its Subsidiaries, to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and to apply any amounts received thereon to the
Guaranteed Obligations (including any and all Disallowed Post-Commencement
Interest and Expenses), and (ii) to require each Guarantor (A) to collect and
enforce, and to submit claims in respect of, Subordinated Obligations and (B) to
pay any amounts received on such obligations to Lender for application to the
Guaranteed Obligations (including any and all Disallowed Post-Commencement
Interest and Expenses).
7. General Pledge; Setoff.
----------------------
(a) Pledge. In addition to all liens upon and rights of setoff against
the property of any Guarantor given to Lender by law or separate agreement to
secure the liabilities of any Guarantor hereunder, to the extent permitted by
law, each Guarantor hereby grants to Lender, as security for such Guarantor's
obligations hereunder, a security interest in all monies, securities and other
property of such Guarantor now or hereafter in the possession of Lender; and
Lender shall have all rights and remedies of a secured party with respect to
such property.
(b) Setoff. In addition to any rights and remedies of Lender provided by
law, Lender shall have the right, without prior notice to any Guarantor, any
such notice being expressly waived by each Guarantor to the extent permitted by
applicable law, upon the occurrence and during the continuance of a Default or
an Event of Default, to set-off and apply against the Guaranteed Obligations any
amount owing from Lender to such Guarantor.
(c) Nonwaiver. No security interest or right of setoff shall be deemed to
have been waived by any act or conduct on the part of Lender or by any failure
to exercise such right of setoff or to enforce such security interest, or by any
delay in so doing; and every right of setoff and security interest shall
continue in full force and effect until such right of setoff or security
interest is specifically waived or released by an instrument in writing executed
by Lender.
8. Contribution among Guarantors.
-----------------------------
The Guarantors desire to allocate among themselves, in a fair and
equitable manner, their rights of contribution from each other when any payment
is made by any Guarantor under this Guaranty. Accordingly, if any payment is
made by any Guarantor under this Guaranty (a "Funding Guarantor"') that exceeds
its Fair Share, the Funding Guarantor shall be entitled to a contribution from
each other Guarantor in the amount of such other Guarantor's Fair Share
Shortfall, so that all such contributions shall cause each Guarantor's Aggregate
Guaranty Payments to equal its Fair Share. The amounts payable as contributions
hereunder shall be determined by the Funding Guarantor as of the date on which
the related payment or distribution is made by the Funding Guarantor, and such
determination shall be binding on the other Guarantors absent manifest error.
The allocation and right of contribution among the Guarantors set forth in this
Section 8 shall not be construed to limit in any way the liability of any
Guarantor under this Guaranty or the amount of the Guaranteed Obligations.
9. Miscellaneous.
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(a) Notices. Except as otherwise provided herein, all notices, requests,
demands, consents, instructions or other communications to or upon any Guarantor
or Lender under this Guaranty or the other Operative Documents to which a
Guarantor is a party shall be in writing and fixed, mailed or delivered, if to a
Guarantor c/o Chadmoore or Lender, at its respective facsimile number or address
set forth below or in the respective Subsidiary Joinder for such Guarantor (or
to such other facsimile number or address for any party as indicated in any
notice given by that party to the other parties). All such notices and
communications shall be effective (i) when sent by overnight service of
recognized standing, on the second Business Day following the
deposit with such service; (ii) when mailed, first class postage prepaid and
addressed as aforesaid through the United States Postal Service, upon receipt;
(iii) when delivered by hand, upon delivery; and (iv)when faxed, upon
confirmation of receipt.
Guarantor: [Guarantor]
c/o Chadmoore Wireless Group, Inc.
2875 East Patrick Lane
Las Vegas, Nevada 89120
Attention:
Facsimile:
Telephone:
Lender GATX CAPITAL CORPORATION
Four Embarcadero Center
Suite 2200
San Francisco, CA 94111
Attention: Contract Administration
Telephone: (415) 955-3200
Facsimile: (415) 955-3493
(b) Payments. Each Guarantor shall make all payments required hereunder
to Lender, or its order, at Lender's office located at the address set forth in
Section 9(a) hereof, or at such other office as Lender may designate, on demand,
in U.S. dollars. If any amounts required to be paid by a Guarantor under this
Guaranty are not paid when due, such Guarantor shall pay interest on the
aggregate, outstanding balance of such amounts from the date due until those
amounts are paid in full at a per annum rate equal to the Default Rate.
(c) Expenses. Each Guarantor shall pay on demand (i) all reasonable fees
and expenses, including reasonable attorneys' fees and expenses, incurred by
Lender in connection with the preparation, execution and delivery of, and the
exercise of its duties under, this Guaranty and the preparation, execution and
delivery of amendments and waivers hereunder and (ii) all reasonable fees and
expenses, including reasonable attorneys' fees and expenses, incurred by Lender
in connection with the enforcement or attempted enforcement of this Guaranty or
any of the Guaranteed Obligations or in preserving any of Lender's rights and
remedies (including, without limitation, all such fees and expenses incurred in
connection with any "workout" or restructuring affecting the Operative Documents
or the Guaranteed Obligations or any bankruptcy or similar proceeding involving
Guarantor, any other Guarantor, Borrower or any of their Affiliates).
Notwithstanding anything contained in this Section 9(c), the Guarantors
obligation to reimburse Lender for fees and expenses incurred by Lender in
connection with the preparation, execution and delivery of this Guaranty shall
be limited by any cap or limitation set forth in Section 10.03 of the Loan
Agreement.
(d) Waivers, Amendments. This Guaranty may not be amended or modified,
nor may any of its terms be waived, except by written instruments signed by each
Guarantor and Lender to the extent permitted pursuant to Section 10.01 of the
Loan Agreement. Each waiver or consent under any provision hereof shall be
effective only in the specific instances for the purpose for which given. No
failure or delay on Lender's part in exercising any right hereunder shall
operate as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other further exercise thereof
or of any other right.
(e) Assignment. This Guaranty shall be binding upon and inure to the
benefit of Lender, the Guarantors and their respective successors and assigns;
provided, however, that no Guarantor may assign or transfer any of its rights
and obligations under this Guaranty without the prior written consent of Lender,
and,
provided, further, that Lender may sell, assign and delegate their respective
rights and obligations hereunder only as permitted by the Loan Agreement. All
references in this Guaranty to any Person shall be deemed to include all
permitted successors and assigns of such Person.
(f) Cumulative Rights, etc. The rights, powers and remedies of Lender
under this Guaranty shall be in addition to all rights, powers and remedies
given to Lender by virtue of any applicable law, rule or regulation of any
Governmental Authority, the Loan Agreement, any other Operative Document or any
other agreement, all of which rights, powers, and remedies shall be cumulative
and may be exercised successively or concurrently without impairing Lender's
rights hereunder. Each Guarantor waives any right to require Lender to proceed
against any Person or to exhaust any Collateral or to pursue any remedy in
Lender's power.
(e) Payments Free of Taxes, Etc. All payments made by each Guarantor
under this Guaranty shall be made by each Guarantor free and clear of and
without deduction for any and all present and future taxes, levies, charges,
deductions and withholdings. In addition, each Guarantor shall pay upon demand
any stamp or other taxes, levies or charges of any jurisdiction with respect to
the execution, delivery, registration, performance and enforcement of this
Guaranty. If any taxes, levies, charges or other amounts are required to be
withheld from any amounts payable to Lender, hereunder, the amounts so payable
to Lender shall be increased to the extent necessary to yield to Lender (after
payment of all such amounts) any such amounts payable hereunder in the amounts,
specified in this Guaranty. Upon request by Lender, each Guarantor shall furnish
evidence satisfactory to Lender that all requisite authorizations and approvals
by, and notices to and filings with, governmental authorities and regulatory
bodies have been obtained and made and that all requisite taxes, levies and
charges have been paid.
(h) Partial Invalidity. If at any time any provision of this Guaranty is
or becomes illegal, invalid or unenforceable in any respect under the law or any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions of this Guaranty nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction shall in any way be affected
or impaired thereby.
(i) Joint and Several Obligation. The obligations of the Guarantors under
this Guaranty are joint and several obligations of each Guarantor and may be
freely enforced against each Guarantor, for the full amount of the Guaranteed
Obligations, without regard to whether enforcement is sought or available
against any other Guarantor.
(j) Governing Law. This Guaranty and the rights and obligations of the
parties hereto shall be governed by and construed and enforced in accordance
with the laws of the State of California (without reference to its choice of
laws provisions).
(k) Jury Trial. EACH GUARANTOR AND LENDER, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS GUARANTY.
(l) Limitation of Liability. NO CLAIM MAY BE MADE BY ANY GUARANTOR
AGAINST LENDER OR THE MEMBERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES,
ATTORNEYS OF LENDER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES
IN RESPECT OF ANY CLAIM (WHETHER BASED UPON ANY BREACH OF CONTRACT, TORT, BREACH
OF STATUTORY DUTY OR ANY OTHER THEORY OF LIABILITY) ARISING OUT OF OR RELATED TO
THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTY, OR ANY ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION THEREWITH AND EACH GUARANTOR
HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR ANY SUCH
DAMAGES, WHETHER OR NOT NOW ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO
EXIST IN ITS FAVOR.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed as of the day and year first above written.
CHADMOORE WIRELESS GROUP, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: CEO
------------------------
CHADMOORE COMMUNICATIONS, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
PTT TANNER, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
PTT BEACON HILL, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
PTT OF NEVADA, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
CMRS SYSTEMS, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
CHADMOORE CONSTRUCTION SERVICES, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
CHADMOORE COMMUNICATIONS OF TENNESSEE, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
PTT COMMUNICATIONS OF RICHMOND, LLC
By: /s/Jan Zwaik
---------------------------
Name: Jan Zwaik
-------------------------
Title: Manager
------------------------
PTT MAPLE, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
PTT COMMUNICATIONS OF HUNTSVILLE, LLC
By: /s/Jan Zwaik
---------------------------
Name: Jan Zwaik
-------------------------
Title: Manager
------------------------
PTT BURTON, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
PTT COMMUNICATIONS OF FORT WAYNE, LLC
By: /s/Jan Zwaik
---------------------------
Name: Jan Zwaik
-------------------------
Title: Manager
------------------------
PTT COMMUNICATIONS OF ROANOKE, LLC
By: /s/Jan Zwaik
---------------------------
Name: Jan Zwaik
-------------------------
Title: Manager
------------------------
PTT TRISTAN, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
PTT COMMUNICATIONS OF AUSTIN, LLC
By: /s/Jan Zwaik
---------------------------
Name: Jan Zwaik
-------------------------
Title: Manager
------------------------
PTT COMMUNICATIONS OF JACKSONVILLE, LLC
By: /s/Jan Zwaik
---------------------------
Name: Jan Zwaik
-------------------------
Title: Manager
------------------------
PTT COMMUNICATIONS OF VIRGINIA BEACH, LLC
By: /s/Jan Zwaik
---------------------------
Name: Jan Zwaik
-------------------------
Title: Manager
------------------------
PTT ROSELAND, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
PTT ARTINA, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
PTT FRANKLIN, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
PTT CHACO, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
800 SMR NETWORK, INC.
By: /s/Robert W. Moore
---------------------------
Name: Robert W. Moore
-------------------------
Title: President
------------------------
PTT COMMUNICATIONS OF BATON ROUGE LIMITED
By: /s/Jan Zwaik
---------------------------
Name: Jan Zwaik
-------------------------
Title: Manager
------------------------
PTT COMMUNICATIONS OF LAKE CHARLES, LLC
By: /s/Jan Zwaik
---------------------------
Name: Jan Zwaik
-------------------------
Title: Manager
------------------------
PTT COMMUNICATIONS OF BAY CITY, LLC
By: /s/Jan Zwaik
---------------------------
Name: Jan Zwaik
-------------------------
Title: Manager
------------------------
PTT COMMUNICATIONS OF ROCKFORD, LLC
By: /s/Jan Zwaik
---------------------------
Name: Jan Zwaik
-------------------------
Title: Manager
------------------------
-6-
ATTACHMENT 1
------------
SUBSIDIARY JOINDER
------------------
THIS SUBSIDIARY JOINDER (this "Agreement"), dated as of , ,
is executed by [NEW SUBSIDIARY], a [corporation] [partnership]
[etc.] ("New Subsidiary"), in favor of GATX CAPITAL CORPORATION (the "Lender").
RECITALS
--------
A. Pursuant to a Loan Agreement dated as of March 2, 1999 (as amended
from time to time, the "Loan Agreement"), among Chadmoore Wireless Group, Inc.
("Chadmoore"), the subsidiaries of Chadmoore party thereto (collectively, the
"Subsidiaries," and together with Chadmoore, the "Borrowers," and each a
"Borrower") and Lender, Lender has agreed to extend Loans to Borrower upon the
terms and subject to the conditions set forth therein.
B. The Lender's obligation to extend the loans to Borrowers under the
Loan Agreement is subject, among other conditions, to receipt by Lender of a
Guaranty, dated as of March 2, 1999 (the "Guaranty"), duly executed by each
Subsidiary of Borrower and a Security Agreement, dated as of March 2, 1999 (the
"Security Agreement") duly executed by each Subsidiary of Borrower.
C. New Subsidiary is a new Subsidiary of Borrower and expects to derive
substantial direct and indirect benefit from the transactions contemplated by
the Loan Agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, New Subsidiary hereby agrees with Lender, as follows:
1. Definitions and Interpretation. Unless otherwise defined herein, all
capitalized terms used herein and defined in the Guaranty shall have the
respective meanings given to those terms in the Guaranty. New Subsidiary
acknowledges receipt of copies of the Guaranty, the Security Agreement, the Loan
Agreement and the other Operative Documents.
2. Representations and Warranties. On and as of the date of this
Agreement (the "Effective Date") and for the benefit of the Lender, New
Subsidiary hereby makes each of the representations and warranties made by each
Guarantor in the Guaranty.
3. Agreement to be Bound. New Subsidiary agrees that, on and as of the
Effective Date, it shall become a Guarantor under the Guaranty and a Grantor
under the Security Agreement and shall be bound by all the provisions of the
Guaranty and the Security Agreement to the same extent as if New Subsidiary had
executed the Guaranty on the Closing Date.
4. Waiver. Without limiting the generality of the waivers in the
Guaranty, New Subsidiary specifically agrees to be bound by the Guaranty and the
Security Agreement and waives any right to notice of acceptance of its execution
of this Agreement and of its agreement to be bound by the Guaranty and the
Security Agreement.
5. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California.
IN WITNESS WHEREOF, New Subsidiary has caused this Agreement to be
executed by its duly authorized officer.
[NEW SUBSIDIARY]
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Address:
[---------------------------------]
[---------------------------------]
[---------------------------------]
Attn:
-----------------------------
Telephone:
------------------------
Facsimile:
------------------------
-2-