Exhibit
4.12


 


EXECUTION COPY


 


SUBSIDIARY
GUARANTY


 


THIS SUBSIDIARY GUARANTY
(this “Guaranty”) is made as of the 28th day of May, 2004, by
timexpress.com, inc., an Ohio corporation (“Subsidiary Guarantor”) in favor of
the Administrative Agent, for the benefit of the Lenders, the Swingline Lender
and the LC Issuer under the Agreement referred to below.


 


BACKGROUND
INFORMATION


 


A.                                   AirNet
Systems, Inc., an Ohio corporation (the “Borrower”), The Huntington National
Bank, a national banking association, as Administrative Agent (the
“Administrative Agent”) and as Swingline Lender and LC Issuer, and certain
other Lenders from time to time party thereto have entered into a certain
Amended and Restated Credit Agreement dated of even date herewith (as the same
may be amended, modified, supplemented, extended, restated or replaced from
time to time, the “Agreement”), providing, subject to the terms and conditions
thereof, for extensions of credit to be made by the Lenders, the LC Issuer, and
the Swingline Lender to and on behalf of the Borrower.


 


B.                                     It is a condition precedent to any
extension of credit under the Agreement that the Subsidiary Guarantor execute
and deliver this Guaranty whereby the Subsidiary Guarantor shall guarantee the
payment when due of all Guaranteed Obligations, as defined in Section 3
below.


 


C.                                     The
execution of this Guaranty is in the interest, and to the direct financial
benefit of, the Subsidiary Guarantor.


 


PROVISIONS


 


NOW, THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


 


Section 1.1.  Terms in Agreement.  Each capitalized term used but not otherwise
defined herein shall have the meaning ascribed thereto in the Agreement.


 


Section 2.1.  Representations and Warranties.  The Subsidiary Guarantor represents and
warrants (which representations and warranties shall be deemed to have been
renewed upon each Borrowing Date under the Agreement and on each date that a
Facility LC is issued under the Agreement) that:


 


(a)                                  It
is a corporation or limited liability company, duly and properly incorporated
or organized, validly existing and (to the extent such concept applies to such
entity) in good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.


 


(b)                                 It
has the power and authority and legal right to execute and deliver this
Guaranty and to perform its obligations hereunder.  The execution and delivery by it of this Guaranty and the
performance of its obligations hereunder have been duly authorized and this


 

















 


Guaranty constitutes a
legal, valid and binding obligation of such Subsidiary Guarantor enforceable
against it in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally and general principles of equity.


 


(c)                                  Neither
the execution and delivery by it of this Guaranty, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof
will violate (i) any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on it or (ii) its articles or certificate of
incorporation or organization, by-laws or code of regulations, or operating
agreement as applicable, or (iii) the provisions of any indenture, instrument
or agreement to which it is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, or
result in, or require, the creation or imposition of any Lien in, of or on the
Property of such Subsidiary Guarantor pursuant to the terms of any such
indenture, instrument or agreement.  No
order, consent, adjudication, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, or other action
in respect of any governmental or public body or authority, or any subdivision
thereof, which has not been obtained by such Subsidiary Guarantor, is required
to be obtained by it in connection with the execution and delivery of this
Guaranty or the performance by it of its obligations hereunder or the legality,
validity, binding effect or enforceability of this Guaranty.


 


Section 2.2.  Covenants. 
Subsidiary Guarantor covenants that, so long as any Commitment
remains outstanding under the Agreement, any Rate Management Transaction
remains in effect or any of the Guaranteed Obligations shall remain unpaid,
that it will, and, if necessary, will enable the Borrower to, fully comply with
the covenants and agreements applicable to it set forth in the Agreement.


 


Section 3.  Guaranty.  Subject to Section 9 hereof, the Subsidiary Guarantor hereby,
jointly and severally together with all other Guarantors, absolutely and
unconditionally guarantees, as primary obligor and not as surety, the full and
punctual payment (whether at stated maturity, upon acceleration or early
termination or otherwise, and at all times thereafter) and performance of any
and all obligations and liabilities of Borrower to the Lenders, the Swingline
Lender, the LC Issuer and the Administrative Agent under the Agreement, any
other Loan Document or otherwise with respect to or in connection with the
Loans, including, without limitation, the Obligations and the Rate Management
Obligations, including, without limitation, any of the same which are incurred
or accrued during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, whether or not allowed or allowable in such
proceeding (collectively the “Guaranteed Obligations”).  Upon failure by the Borrower to punctually
pay any such amount, the Subsidiary Guarantor agrees that it shall forthwith on
demand pay to the Administrative Agent for the benefit of the Lenders, the
Swingline Lender and the LC Issuer, and, if applicable, their Affiliates, any
such amount at the place and in the manner specified in the Agreement, any
Note, any Rate Management Transaction or the relevant Loan Document, as the
case may be. This Guaranty is a guaranty of payment and not of collection.  Subsidiary Guarantor waives any right to
require the Administrative Agent, Swingline Lender, LC Issuer or any Lender to
sue the Borrower, any other Guarantor, or any other person obligated for all or
any part of the Guaranteed Obligations, or otherwise to enforce its payment
against any collateral securing all or any part of the Guaranteed Obligations.


 


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Section 4.  Guaranty Unconditional.  Subject to Section 9 hereof, the
obligations of Subsidiary Guarantor hereunder shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by:


 


(i)                                     any
extension, renewal, settlement, compromise, waiver or release in respect of any
of the Guaranteed Obligations, by operation of law or otherwise, or of any
obligation of any other Guarantor, or any default, failure or delay, willful or
otherwise, in the payment or performance of the Guaranteed Obligations;


 


(ii)                                  any
modification or amendment of or supplement to the Agreement, any Note, any Rate
Management Transaction or any other Loan Document;


 


(iii)                               any
release, nonperfection or invalidity of any direct or indirect security for any
obligation of the Borrower under the Agreement, any Note, any Rate Management
Transaction, any other Loan Document, or any obligations of any other
Guarantor, or any action or failure to act by the Administrative Agent,
Swingline Lender, LC Issuer or any Lender or any Affiliate of any of them with
respect to any collateral securing all or any part of the Guaranteed
Obligations;


 


(iv)                              any
change in the corporate existence, structure or ownership of the Borrower or
any other Guarantor, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Borrower, or any Guarantor, or its assets or
any resulting release or discharge of any obligation of the Borrower, or any
other Guarantor;


 


(v)                                 the
existence of any claim, setoff or other rights which any of the Guarantors may
have at any time against the Borrower, any other Guarantor, the Administrative
Agent, Swingline Lender, LC Issuer or any Lender, any Affiliate of any of them,
or any other Person, whether in connection herewith or any unrelated
transactions;


 


(vi)                              any
invalidity or unenforceability relating to or against the Borrower, or any
other Guarantor of any of the Guaranteed Obligations, for any reason related to
the Agreement, any Rate Management Transaction, any other Loan Document, or any
provision of applicable law or regulation purporting to prohibit the payment by
the Borrower, or any other Guarantor, of the principal of or interest on any
Note or any other amount payable by the Borrower under the Agreement, any Note,
any Rate Management Transaction or any other Loan Document; or


 


(vii)                           any
other act or omission to act or delay of any kind by the Borrower, any other
Guarantor, the Administrative Agent, Swingline Lender, LC Issuer, any Lender,
any Affiliate of any of them, or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph, constitute a
legal or equitable discharge of any Subsidiary Guarantor’s obligations
hereunder.


 


Section 5.  Discharge Only Upon Payment In Full: Reinstatement In
Certain Circumstances. 
Subsidiary Guarantor’s obligations hereunder shall remain in full force
and effect until all Guaranteed Obligations shall have been indefeasibly paid
in full, the Commitments under the Agreement shall have terminated or expired
and all Rate Management Transactions have terminated or expired.  If at any time any payment of the principal
of or interest on any Note or any other amount payable by the Borrower or any
other party under the


 


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Agreement, any Rate
Management Transaction or any other Loan Document is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, the Subsidiary Guarantor’s obligations hereunder
with respect to such payment shall be reinstated as though such payment had
been due but not made at such time.


 


Section 6.  Waivers.  Subsidiary Guarantor irrevocably waives acceptance hereof,
presentment, demand, protest and, to the fullest extent permitted by law, any
notice to which it is otherwise entitled not provided for herein or in the
Agreement, as well as any requirement that at any time any action be taken by any
Person against the Borrower, any other Guarantor, or any other Person.


 


Section 7.  Subrogation.  Subsidiary Guarantor hereby agrees not to assert any right, claim
or cause of action, including, without limitation, a claim for subrogation,
reimbursement, indemnification or otherwise, against the Borrower or any other
Guarantor arising out of or by reason of this Guaranty or the obligations
hereunder, including, without limitation, the payment or securing or purchasing
of any of the Guaranteed Obligations by any of the Guarantors unless and until
the Guaranteed Obligations are indefeasibly paid in full, any commitment to
lend under the Agreement and any other Loan Documents is terminated and all
Rate Management Transactions have terminated or expired.


 


Section 8.  Stay of Acceleration.  If acceleration of the
time for payment of any of the Guaranteed Obligations is stayed upon the
insolvency, bankruptcy or reorganization of the Borrower, all such amounts
otherwise subject to acceleration under the terms of the Agreement, any Note,
any Rate Management Transaction or any other Loan Document shall nonetheless be
payable by each of the Guarantors hereunder or under any other Subsidiary
Guaranty forthwith on demand by the Administrative Agent.


 


Section 9.  Limitation on Obligations.


 


(a) The provisions of
this Guaranty are severable, and in any action or proceeding involving any
state corporate law, or any state, federal or foreign bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors generally, if the
obligations of Subsidiary Guarantor under this Guaranty would otherwise be held
or determined to be avoidable, invalid or unenforceable on account of the
amount of Subsidiary Guarantor’s liability under this Guaranty, then,
notwithstanding any other provision of this Guaranty to the contrary, the
amount of such liability shall, without any further action by the Subsidiary
Guarantor, the Administrative Agent, Swingline Lender, LC Issuer or any Lender
or Affiliate of any of them, be automatically limited and reduced to the
highest amount that is valid and enforceable as determined in such action or
proceeding (such highest amount determined hereunder being the relevant
Subsidiary Guarantor’s “Maximum Liability”). This Section 9(a) with respect
to the Maximum Liability of the Subsidiary Guarantor is intended solely to
preserve the rights of the Administrative Agent, Swingline Lender, LC Issuer
and the Lenders hereunder to the maximum extent not subject to avoidance under
applicable law, and neither the Subsidiary Guarantor nor any other person or
entity shall have any right or claim under this Section 9(a) with respect
to the Maximum Liability, except to the extent necessary so that the
obligations of Subsidiary Guarantor hereunder shall not be rendered voidable
under applicable law.


 


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(b)                                 Subsidiary
Guarantor agrees that the Guaranteed Obligations may at any time and from time
to time exceed the Maximum Liability of Subsidiary Guarantor, and may exceed
the aggregate Maximum Liability of all Guarantors as defined in any other
contract of guaranty which constitutes a Loan Document, without impairing this
Guaranty or affecting the rights and remedies of the Administrative Agent,
Swingline Lender, LC Issuer, the Lenders, or any Affiliate of any of them
hereunder. Nothing in this Section 9(b) shall be construed to increase
Subsidiary Guarantor’s obligations hereunder beyond its Maximum Liability.


 


(c)                                  Nothing
in this Section 9 shall affect Subsidiary Guarantor’s or any other
Guarantor’s joint and several liability for the entire amount of the Guaranteed
Obligations (up to such Guarantor’s Maximum Liability).


 


Section 10.  Application of Payments.  All payments received by the Administrative
Agent hereunder shall be applied by the Administrative Agent to payment of the
Guaranteed Obligations in accordance with the Agreement and in the following,
order unless a court of competent jurisdiction shall otherwise direct:


 


(a)                                  FIRST,
to payment of all reasonable costs and expenses of the Administrative Agent,
Swingline Lender, LC Issuer and the Lenders incurred in connection with the
collection and enforcement of the Guaranteed Obligations or of any security
interest granted to the Administrative Agent or any of them in connection with
any collateral securing the Guaranteed Obligations;


 


(b)                                 SECOND,
to payment of that portion of the Guaranteed Obligations constituting accrued
and unpaid interest and fees, pro rata among the Lenders, Swingline Lender, LC
Issuer and their respective Affiliates in accordance with the amount of such
accrued and unpaid interest and fees owing to each of them;


 


(c)                                  THIRD,
to payment of the principal of the Guaranteed Obligations and the net early
termination payments and any other Rate Management Obligations then due and
unpaid from the Borrower to any of the Lenders, the Swingline Lender, LC Issuer
or their respective Affiliates, pro rata among them in accordance with the
amount of such principal and such net early termination payments and other Rate
Management Obligations then due and unpaid owing to each of them;


 


(d)                                 FOURTH,
to payment of any Guaranteed Obligations (other than those listed above) pro
rata among those parties to whom such Guaranteed Obligations are due in
accordance with the amounts owing to each of them; and


 


(e)                                  FIFTH,
the balance, if any, after all of the Guaranteed Obligations have been
indefeasibly satisfied, shall be paid to the Borrower, as agent for the
Subsidiary Guarantor.


 


Section 11.  Notices.  All notices, requests and other
communications to any party hereunder shall be given, and deemed given, when
made in accordance with the provisions of Section 12.14 of the
Agreement.  The address or telecopier
number to which any such communication is to be given to each Subsidiary
Guarantor is set forth on the signature pages hereof.


 


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Section 12.  No Waivers.  No failure or delay by the Administrative
Agent, Swingline Lender, LC Issuer or any Lender or any Affiliate of any of
them in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.  The rights and remedies
provided in this Guaranty, the Agreement, any Note, any Rate Management
Transaction and the other Loan Documents shall be cumulative and not exclusive
of any rights or remedies provided by law.


 


Section 13.  No Duty to Advise.  Subsidiary Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower’s
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent
of the risks that the Subsidiary Guarantor assumes and incurs under this
Guaranty, and agrees that neither the Administrative Agent, Swingline Lender,
LC Issuer, any Lender, nor any Affiliate of any of them, has any duty to advise
the Subsidiary Guarantor of information known to it regarding those
circumstances or risks.


 


Section 14.  Successors and Assigns.  This Guaranty is for the benefit of the
Administrative Agent, Swingline Lender, LC Issuer and the Lenders and their
respective Affiliates, successors and permitted assigns and in the event of an
assignment of any amounts payable under the Agreement, any Note, any Rate
Management Transaction, or the other Loan Documents, the rights hereunder, to
the extent applicable to the indebtedness so assigned, shall be transferred
with such indebtedness. This Guaranty shall be binding upon the Subsidiary
Guarantor and its respective successors and permitted assigns.


 


Section 15.  Changes in Writing.  Neither this Guaranty nor any provision
hereof may be changed, waived, discharged or terminated orally, but only in
writing signed by the Subsidiary Guarantor and the Administrative Agent with
the consent of the Lenders or the Required Lenders, to the extent the consent
of the Lenders or the Required Lenders is required under the Agreement.


 


Section 16.  Costs of Enforcement.  Subsidiary Guarantor agrees to pay all
reasonable costs and expenses including, without limitation, all court costs
and reasonable attorneys’ fees and expenses paid or incurred by the Administrative
Agent, Swingline Lender, LC Issuer or any Lender or any Affiliate of any of
them in its endeavor to collect all or any part of the Guaranteed Obligations
from, or in prosecuting any action against, the Borrower, the Subsidiary
Guarantor or any other Guarantor of all or any part of the Guaranteed
Obligations.


 


Section 17.  Consent To Jurisdiction.  Subsidiary Guarantor hereby irrevocably
submits to the non-exclusive jurisdiction of any United States federal or Ohio
state court sitting in Columbus, Ohio in any action or proceeding arising out
of or relating to any Loan Documents and the Subsidiary Guarantor hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in any such court and irrevocably waives any objection
it may now or hereafter have as to the venue of any such suit, action or
proceeding brought in such a court or that such court is an inconvenient
forum.  Nothing herein shall limit the
right of the Administrative Agent, Swingline Lender, LC Issuer or any Lender to
bring proceedings against Subsidiary Guarantor in the courts of any other
jurisdiction.  Any judicial


 


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proceeding by Subsidiary
Guarantor against the Administrative Agent, Swingline Lender, LC Issuer or any
Lender or any Affiliate of any of them involving, directly or indirectly, any
matter in any way arising out of, related to, or connected with any Loan
Document shall be brought only in a court in Columbus, Ohio.


 


Section 18.  WAIVER OF JURY TRIAL. SUBSIDIARY
GUARANTOR, THE ADMINISTRATIVE AGENT, SWINGLINE LENDER, LC ISSUER AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE)
IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR
THE RELATIONSHIP ESTABLISHED THEREUNDER.


 


Section 19.  Taxes. etc.  All payments required to be made by
Subsidiary Guarantor hereunder shall be made without setoff or counterclaim and
free and clear of and without deduction or withholding for or on account of,
any present or future taxes, levies, imposts, duties or other charges of
whatsoever nature imposed by any government or any political or taxing
authority thereof (but excluding Excluded Taxes), provided, however, that if
the Subsidiary Guarantor is required by law to make such deduction or
withholding, Subsidiary Guarantor shall forthwith (i) pay to the Administrative
Agent, Swingline Lender, LC Issuer or any Lender, as applicable, such
additional amount as results in the net amount received by the Administrative
Agent, Swingline Lender, LC Issuer or any Lender, as applicable, which equals
the full amount which would have been received by the Administrative Agent, Swingline
Lender, LC Issuer or any Lender, as applicable, had no such deduction or
withholding been made, (ii) pay the full amount deducted to the relevant
authority in accordance with applicable law, and (iii) furnish to the
Administrative Agent, Swingline Lender, LC Issuer or any Lender, as applicable,
certified copies of official receipts evidencing payment of such withholding
taxes within 30 days after such payment is made.


 


Section 20.  Warrant of Attorney.  Subsidiary Guarantor hereby irrevocably
authorizes any attorney-at-law, including any attorney-at-law employed or
retained by the Administrative Agent, Swingline Lender, LC Issuer or any
Lender, or any Affiliate of any of them, to appear for it in any action on this
Guaranty at any time after the amounts payable hereunder become due as herein
provided in any court of record situated in the county where this warrant was
signed (being Franklin County, Ohio), or in the county where the Subsidiary
Guarantor then resides or can be found, to waive the issuing and service of
process, and confess a judgment in favor of the holder of this Guaranty against
the Subsidiary Guarantor, for the amount that may then be due, with interest
thereon, together with the costs of suit, and to waive and release all errors
in said proceedings and the right to appeal from the judgment rendered.  Subsidiary Guarantor consents to the
jurisdiction and venue of such court. 
Subsidiary Guarantor waives any conflict of interest that any
attorney-at-law employed or retained by the Administrative Agent, Swingline
Lender, LC Issuer, any Lender or any Affiliate of any of them may have in
confessing judgment hereunder and consents to the payment of a legal fee to any
attorney-at-law confessing judgment hereunder.


 


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IN WITNESS WHEREOF, the
Subsidiary Guarantor has caused this Guaranty to be duly executed, by its duly
authorized officer as of the day and year first above written.


 


	
   

  	
  timexpress.com,
  inc.,

  an Ohio corporation

  
	
  Address:

  	
   

  
	
  3939 International
  Gateway

  	
   

  	
   

  
	
  Columbus, Ohio 43219

  	
   

  	
  By:

  	
   

  	
  /s/ Gary W. Qualmann

  
	
   

  	
   

  	
  Gary W. Qualmann

  
	
   

  	
  Title:

  	
  Secretary

  
	
  Telephone:

  	
  614-237-2057

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
  614-237-7876

  	
   

  	
   

  	
   

  
							



 


 


WARNING
— BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.  IF YOU DO NOT PAY ON TIME A COURT JUDGMENT
MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT
CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST
THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.


 


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