Exhibit 10.46


 


GUARANTY


 


This GUARANTY (“Guaranty”)
is entered into as of January 12, 2005, by NV Partners III-BT LP, a Cayman
Islands Limited Partnership having its principal place of business at 98 Floral
Avenue, Suite 201, Murray Hill, New Jersey 07974 (the “Guarantor”), in favor of
@Road, Inc., a Delaware corporation (“Lender”).


 


RECITALS


 


A.                                    Vidus Limited, a
company registered in England and Wales under registered number 4069823 having
its registered office at North Felaw Maltings, 48 Felaw Street, Ipswich,
Suffolk IP2 8HE (“Company”) has requested that Lender loan up to $2,000,000
(the “Loan”) to Company.  Concurrently
herewith, in consideration of the Loan, Company has executed that certain Loan
and Security Agreement dated as of the date hereof (together with all exhibits
thereto and all Secured Promissory Notes (as defined in the Loan and Security
Agreement) executed thereunder, the “Loan Agreement”).


 


B.                                    Lender has agreed
to make the Loan to Company in consideration for the execution of the Loan Agreement,
but only on the condition that all obligations of Company to Lender in respect
of the Loan Agreement be fully and unconditionally guaranteed by Guarantor
pursuant to the terms set forth herein.


 


C.                                    Guarantor will
obtain substantial direct and indirect benefit from the making of the Loan.


 


NOW, THEREFORE, in order to
induce Lender to make the Loan to Company, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and
intending to be legally bound, Guarantor hereby represents, warrants, covenants
and agrees as follows:


 


SECTION 1. 
DEFINITIONS. 
Capitalized terms used in this Guaranty shall have the meanings either
given to them below or defined elsewhere in this Guaranty.


 


“Bankruptcy Law” shall mean any
bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment
of debt, dissolution or liquidation or similar law, whether now or hereafter in
effect, of any jurisdiction.


 


“Lien” shall mean any mortgage,
lien, deed of trust, charge, pledge, security interest or other encumbrance.


 


“Person” shall mean any (a)
individual, (b) corporation, (c) limited liability company, partnership or
other entity, or (d) governmental authority.


 





















 


SECTION 2. 
GUARANTY.


 


2.1                                 Unconditional
Guaranty.  In consideration of the
foregoing, Guarantor hereby irrevocably, absolutely and unconditionally
guarantees to Lender the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of the Guaranty
Obligations (as defined below). 
Guarantor agrees that this Guaranty is a guaranty of payment and
performance of the Guaranteed Obligations and not one of collection.  The term “Guaranty Obligations” means, all
obligations for monetary amounts from time to time owing from Company to Lender
under the Loan Agreement, whether due or to become due, and any and all
covenants and duties in connection with such amounts.  The term “Guaranty Obligations” includes the
principal amount of the Loan owing from Company to Lender under the Loan
Agreement, any interest thereon (including interest that accrues after the
commencement by or against Company of any action under Bankruptcy Law),
together with all expenses (including, without limitation, reasonable attorneys’
fees), costs or disbursements in connection with the collection or attempted
collection of the foregoing amounts.


 


2.2                                 Expenses.  Guarantor agrees to pay, promptly upon
demand, all expenses, including, without limitation, reasonable attorneys’ fees
and costs, incurred by Lender in connection with the enforcement of Lender’s
rights under this Guaranty.


 


2.3                                 Separate
Obligations; No Offset.  The Guaranty
Obligations of Guarantor arising hereunder are independent of and separate from
any and all other obligations of Guarantor to Lender.  Guarantor shall not be entitled to set off
its obligations hereunder against any obligations now or hereafter owing from
Lender to Guarantor.


 


SECTION 3.  REPRESENTATIONS AND
WARRANTIES.


 


Guarantor hereby represents and warrants to Lender that:


 


(a)                                  Guarantor:  (i) is a Cayman Islands Limited Partnership duly organized, validly existing and in good standing under
the laws of the Cayman Islands; and (ii) has all requisite power and authority
to execute and deliver this Guaranty and to perform its obligations hereunder.


 


(b)                                 The
execution, delivery and performance by Guarantor of this Guaranty:  (i) are within Guarantor’s powers and
have been duly authorized by all necessary action; (ii) do not contravene
Guarantor’s organizational documents or any law or any contractual restriction
binding on or affecting Guarantor or by which Guarantor’s property may be
affected; and (iii) do not require any authorization or approval or other
action by, or any notice to or filing with, any governmental authority or any
other Person under any indenture, mortgage, deed of trust, lease, agreement or
other instrument to which Guarantor is a party or by which Guarantor or any of
its property is bound except such as have been obtained or made.


 


(c)                                  This
Guaranty is a valid and binding obligation of Guarantor, enforceable against
Guarantor in accordance with its terms, except as the enforceability thereof
may be subject to or limited by bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar laws relating to or affecting the
rights of creditors generally.


 


2





















 


(d)                                 No
order, consent, approval, license, authorization or validation of, or filing,
recording or registration with, or exemption by, any governmental or public
body or authority, or any subdivision thereof, is required to authorize, or is
required in connection with, (i) the execution, delivery and performance of
this Guaranty, or (ii) the legality, validity, binding effect or enforceability
of this Guaranty.


 


(e)                                  There
are no actions, suits or proceedings pending or, to the knowledge of the
Guarantor, threatened that could reasonably be expected to have a material
adverse effect on the ability of the Guarantor to perform its obligations to the
Lender hereunder or on the rights or remedies of the Lender.


 


SECTION 4. 
ABSOLUTE GUARANTY. 
Guarantor agrees that the liability hereunder shall be the immediate,
direct, and primary obligation of Guarantor and shall not be contingent upon
Lender’s exercise or enforcement of any right, power or remedy it may have
against Company or any other Person. 
Without limiting the generality of the foregoing, the Guaranty
Obligations shall remain in full force and effect without regard to and shall
not be impaired or affected by, nor shall Guarantor be exonerated or discharged
from its obligations hereunder by, any of the following events:


 


(a)                                  Insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition, assignment
for the benefit of creditors, liquidation, winding up or dissolution of Company
or Guarantor;


 


(b)                                 Any
limitation, discharge, or cessation of the liability of Company or Guarantor
due to any statute, regulation or rule of law, or any invalidity or
unenforceability in whole or in part of the documents evidencing the Guaranty
Obligations;


 


(c)                                  Any
merger, acquisition, consolidation or change in structure of Company (other
than upon the Closing, as such term is defined in the Acquisition Agreement
dated December 15, 2004 among Lender, Company and Guarantor (the “Acquisition
Agreement”)) or Guarantor or any sale, lease, transfer or other disposition of
any or all of the assets or equity interests of Company or Guarantor;


 


(d)                                 Any
assignment or other transfer, in whole or in part, of Lender’s interests in and
rights under this Guaranty, including, without limitation, Lender’s right to
receive payment of any portion of the Guaranty Obligations;


 


(e)                                  Any
claim, counterclaim or setoff, or any defense (other than that of prior
complete performance hereunder), that Company or Guarantor may have or assert,
including, but not limited to, any defense of incapacity or lack of corporate
or other authority to execute any documents relating to the Guaranty
Obligations;


 


(g)                                 Lender’s
exercise or nonexercise of any power, right or remedy with respect to the
Guaranty Obligations, including, but not limited to, Lender’s compromise,
release, settlement or waiver with or of Company or any other Person (other
than the Guarantor); or


 


3





















 


(h)                                 Any
other invalidity, irregularity or unenforceability of all or any part of the
Guaranty Obligations or any other security therefor.


 


SECTION 5. 
WAIVERS.  To the
extent that it may do so under applicable law, Guarantor hereby expressly
waives:  (a) diligence, presentment,
demand for payment, protest, benefit of any statute of limitations affecting
Company’s liabilities in favor of Lender or the enforcement of this Guaranty;
(b) discharge due to any disability of Company; (c) all notices whatsoever,
including, without limitation, notice of acceptance of this Guaranty and the
incurring of the Guaranty Obligations; and (d) any requirement that Lender
exhaust any right, power or remedy or proceed against Company or any other
party liable for, any portion of the Guaranty Obligations.  To the extent it may do so under applicable
law, Guarantor specifically agrees that it shall not be necessary or required,
and Guarantor shall not be entitled to require, that Lender:  (i) file suit or proceed to assert or
obtain a claim for personal judgment against Company, for all or any part of
the Guaranty Obligations; (ii) make any effort at collection or enforcement of
all or any part of the Guaranty Obligations from the Company; (iii) file suit
or proceed to obtain or assert a claim for personal judgment against Guarantor
or other party liable for all or any part of the Guaranty Obligations;
(iv) exercise or assert any other right or remedy to which Lender is or
may be entitled in connection with the Guaranty Obligations to assert; or (v)
file any claim against assets of Company before or as a condition of enforcing
the liability of Guarantor under this Guaranty. 
Without limiting the generality of the foregoing, to the extent that it
may do so under applicable law, Guarantor expressly waives the benefit of
California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2848, 2849, 2850,
2899 and 1432 until the Guaranty Obligations have been indefeasibly paid in
full.


 


SECTION 6. 
CONTINUING GUARANTY. 
This Guaranty shall be a continuing guaranty and shall remain in effect
until the earlier to occur of (i) the Guaranty Obligations have been paid in
full or (ii) the Closing (as such term is defined in the Acquisition
Agreement).  For avoidance of doubt, from
and after the Closing Date (as such term is defined in the Acquisition
Agreement), the guaranty provided herein shall be of no further force or
effect.


 


SECTION 7. 
REINSTATEMENT. 
Notwithstanding anything to the contrary contained herein, unless the
Closing occurs, the liability of Guarantor hereunder shall be reinstated and
revived and the rights of Lender shall continue if and to the extent that for
any reason any payment by or on behalf of Company is rescinded or must be
otherwise restored by Lender, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, all as though such amount had not
been paid.  The determination as to
whether any such payment must be rescinded or restored shall be made by Lender
in its sole discretion.


 


SECTION 8. 
INTEREST.  All
Guaranty Obligations shall bear interest, from and after two business days
following the date Lender has demanded payment and performance by Guarantor of
this Guaranty, until paid in full, at a rate equal to five percent (5.0%) per
annum or the maximum rate permissible by law (which under the laws of the State
of California shall be deemed to be the laws relating to permissible rates of
interest on commercial loans), whichever is less.


 


SECTION 9. 
NO WAIVER; AMENDMENTS. 
No failure on the part of Lender to exercise, no delay in exercising and
no course of dealing with respect to, any right hereunder shall operate


 


4





















 


as a waiver thereof; nor shall any single or partial exercise of any
right hereunder 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.  This Guaranty may not be amended or modified
except by written agreement between Guarantor and Lender, and no consent or
waiver hereunder shall be valid unless in writing and signed by Lender.


 


SECTION 10. 
COMPROMISE AND SETTLEMENT.  No compromise, settlement, release, renewal,
extension, indulgence, change in, waiver or modification of any of the Guaranty
Obligations or discharge of Company (other than by Lender) from the performance
of any of the Guaranty Obligations shall release or discharge Guarantor from
this Guaranty.


 


SECTION 11. 
ENTIRE AGREEMENT. 
This Guaranty and Section 4.15 of the Acquisition Agreement
constitute and contain the entire agreement of the parties and supersedes any
and all prior or contemporaneous agreements, negotiations, correspondence,
understandings and communications between Guarantor and Lender, whether written
or oral, respecting the subject matter hereof.


 


SECTION 12. 
SEVERABILITY. 
If any provision of this Guaranty is held to be unenforceable under
applicable law for any reason, it shall be adjusted, if possible, rather than voided
in order to achieve the intent of Guarantor and Lender to the extent
possible.  In any event, all other
provisions of this Guaranty shall be deemed valid and enforceable to the full
extent possible under applicable law.


 


SECTION 13. 
SUCCESSORS AND ASSIGNS; GOVERNING LAW.  This Guaranty shall be binding upon and inure
to the benefit of Guarantor and Lender and their respective successors and
assigns, except that Guarantor shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of
Lender.  This Guaranty shall be governed
by, and construed in accordance with, the laws of the State of California.


 


SECTION 14. 
CONSENT TO JURISDICTION.  Guarantor hereby irrevocably agrees that any
legal action or proceeding with respect to this Guaranty may be brought in any
court of the State of California or federal court of the United States of
America as Lender may elect, which jurisdiction shall be exclusive, unless
waived by Lender in writing, with respect to any action or proceeding brought
by Guarantor against Lender.  Guarantor
hereby waives, to the full extent permitted by law, any right to stay or to
dismiss any action or proceeding brought before said courts on the basis of forum non conveniens.


 


IN WITNESS WHEREOF, Guarantor
has executed and delivered this Guaranty as of the date first written above.


 


	
  GUARANTOR:

  	
  NV PARTNERS III-BT LP

  
	
   

  	
  By:

  	
  /s/ Andrew Garman

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Andrew Garman

  	
   

  
	
   

  	
  Title:

  	
  Managing Partner

  	
   

  
							



 


5





















 


	
  Accepted and Agreed:

  	
   

  
	
   

  	
   

  
	
  @ROAD, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Krish Panu

  	
   

  
	
  Name:

  	
  Krish Panu

  	
   

  
	
  Title:

  	
  Chief Executive Officer

  	
   

  
					



 


 


6