Exhibit
10.1


 


EXECUTION
COPY


 


GUARANTY


 


THIS GUARANTY (“Guaranty”)
is made December 10, 2003, by Quixote Corporation, a Delaware corporation
(“Guarantor”),
to and for the benefit of Peek Traffic Inc., a Delaware corporation, and Peek
Traffic Systems, Inc., a Florida corporation (together, “Seller”).


 


RECITALS


 


A.            Seller and Vision Acquisition Corporation, a
Delaware corporation (“Buyer”),
have entered into that certain Asset Purchase Agreement of even date herewith
(the “Asset Purchase
Agreement”).


 


B.            Pursuant to the Asset Purchase Agreement,
Buyer is purchasing the Business (as that term is defined in the Asset Purchase
Agreement).


 


C.            Pursuant to the Asset Purchase Agreement,
Buyer agrees to certain payment, indemnification and reimbursement obligations
in favor of Seller and Buyer provides to Seller a series of representations and
warranties and made various other agreements and covenants to induce the Seller
to complete the transactions contemplated by the Asset Purchase Agreement.


 


D.            Pursuant to the Asset Purchase Agreement,
Buyer covenants to secure its payment, indemnification and reimbursement
obligations to Seller and third parties pursuant to the Asset Purchase
Agreement by providing this Guaranty of Guarantor, which is the parent
corporation of the affiliated group of which Buyer is a member, with respect to
such obligations.


 


E.             Guarantor
will derive substantial benefit from the transactions contemplated by the Asset
Purchase Agreement and Guarantor is willing to guarantee the obligations of
Buyer pursuant to the Asset Purchase Agreement and those other agreements,
including the Sub-Lease Agreement dated the date hereof (the “Palmetto Lease”),
delivered by Buyer to Seller in accordance with the Asset Purchase
Agreement  (all such agreements, including
the Asset Purchase Agreement, being referred to hereinafter as the “Transaction Agreements”).


 


F.             The
execution and delivery of this Guaranty by Guarantor is a condition to Closing
(as that term is defined in the Asset Purchase Agreement).


 

















 


AGREEMENTS


 


NOW, THEREFORE, Guarantor, in consideration of the matters described in
the foregoing Recitals, which Recitals are incorporated herein and made a part
hereof, and for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby covenants and agrees for the
benefit of Seller and its affiliates, successors and assigns as follows:


 


1.             Guarantor absolutely, unconditionally, and
irrevocably guarantees to Seller:


 


(a)           the prompt payment when due and payable of
each rent installment under the Palmetto Lease;


 


(b)           the prompt and timely performance by Buyer
of each and all of its covenants to Seller arising under or created by the
terms of the Asset Purchase Agreement, including, without limitation, Buyer’s
timely payment and/or discharge of the Assumed Liabilities (as defined in the
Asset Purchase Agreement) and Buyer’s timely performance of its covenants to
Seller under each of the other Transaction Agreements; and


 


(c)           the timely satisfaction of Buyer’s
obligations under the indemnification provisions of the Asset Purchase
Agreement;


 


in all cases subject to the
terms of the Asset Purchase Agreement and the other Transaction Documents  (collectively, the “Obligations”).  This Guaranty, and the covenants and waivers
contained herein, will remain in effect until all Obligations have been
satisfied.


 


2.             In the event of any default by Buyer in
performance of the Obligations, as aforesaid, Guarantor agrees, on demand by
Seller in the manner provided below in Section 3, to perform all the
Obligations as are then or thereafter to be performed under the terms of the
Transaction Agreements.  The parties
agree that (a) Guarantor’s obligations under this Guaranty shall be
subject to the limitations, exclusions and exculpations of liability set forth
in the Transaction Agreements including with respect to the Palmetto Lease, (b)
except as provided Section 6, below, Guarantor may assert any and all
defenses, set-offs, or counterclaims of any kind available to Buyer so as to
deny payment related to this Guaranty including, without limitation, any such
rights acquired by Guarantor through subrogation, assignment, or otherwise and
(c) the obligations of Guarantor hereunder are dependent upon Seller’s
performance of its obligations under the Transaction Agreements.


 


3.             Seller shall make its demand for payment
hereunder by delivering to Guarantor a written notice which: (i) states that it
is a demand required under this Guaranty for payment of one or more of the
Obligations, (ii) sets forth the amount and the basis for such demand, and
(iii) is signed by an authorized officer of Seller.  Subject to the assertion of any rights it has as referenced in
Section 2 or under applicable law,


 


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Guarantor shall make payment to Seller of the
amount specified in the written demand referenced in the preceding sentence in
immediately available funds not later than thirty (30) days after the delivery
of that written demand.


 


4.             Subject in all cases to Section 2 of
this Agreement, Guarantor does hereby (a) waive notice of acceptance of
this Guaranty by Seller; (b) waive any notices or demands that are not
required by this Guaranty or the Transaction Agreements; (c) agree not to
assert any defense, right of set off or other claim which Guarantor may have
against Buyer, to the extent such assertion will affect or delay the payment in
full of all amounts due Seller under this Guaranty; and (d) waive
presentment for payment, demand for payment, notice of nonpayment or dishonor,
protest and notice of protest, diligence in collection and any and all
formalities which otherwise might be legally required to charge Guarantor with
liability.  Seller shall have no
obligation to disclose or discuss with Guarantor its assessment of the
financial condition of Buyer.  Guarantor
authorizes Seller, without notice to, demand of, or consent from Guarantor (but
subject in all cases to the consent of Buyer), and without affecting its
liability to Seller hereunder (except to the extent that the underlying
Obligation has changed), from time to time to renew, extend, accelerate or
otherwise change the time or place for payment of, or otherwise change the
terms of all, or any part of, the Obligations. 
No modification or waiver of any of the provisions of this Guaranty
shall be binding upon Seller, except as expressly set forth in a writing duly
signed and delivered by Seller.  No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon Buyer, except as expressly set forth in a writing duly signed and
delivered by Buyer.


 


5.             This Guaranty is a present and continuing
guaranty of performance and payment and not of collection.  This Guaranty is, except as expressly set
forth in Section 2, absolute and unconditional.  Guarantor agrees that this Guaranty may be enforced by Seller
without the necessity at any time of resorting to or exhausting any other
security or collateral given in connection herewith or with the Transaction
Agreements.  Subject to Section 2,
Guarantor hereby waives any right to require Seller to join Buyer in any action
brought hereunder or to commence any action against or obtain any judgment
against Buyer.  Guarantor further agrees
that, subject to Section 2, nothing contained herein or otherwise shall
prevent Seller from pursuing concurrently or successively all rights and
remedies available to it at law and/or in equity or under the Transaction
Agreements, and the exercise of any of its rights or the completion of any of
its remedies shall not constitute a discharge of Guarantor’s obligations as
required pursuant to this Guaranty, except to the extent such remedies
constitute a discharge of Buyer’s obligations under the Transaction Agreements.


 


6.             None of Guarantor’s obligations under this
Guaranty or any remedy for the enforcement thereof shall be impaired, modified,
changed or released in any manner whatsoever by any impairment, modification,
change, release or limitation of the liability of Buyer by reason of the
bankruptcy of Buyer or by reason of any creditor or bankruptcy proceeding instituted
by or against Buyer.


 


7.             In the event Seller shall assign its rights
under the Transaction Agreements (if permitted pursuant to the terms thereof)
or this Guaranty to any third


 


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party, Guarantor will accord full recognition
thereto and agree that all rights and remedies of Seller or such assignee shall
be enforceable against Guarantor by such assignee with the same force and
effect and to the same extent as would have been enforceable by Seller but for
such assignment.


 


8.             If any provision of this Guaranty is
determined to be invalid or not fully enforceable, such invalidity or
unenforceability shall not affect the other provisions of this Guaranty which
shall be enforceable to the maximum extent permitted at law.


 


9.             All notices, requests, payments,
instructions, or other documents to be given hereunder shall be in writing, and
shall be deemed to have been duly given if (i) delivered personally (effective
upon delivery), (ii) mailed by registered or certified mail, return receipt
requested, postage prepaid (effective five business days after dispatch), (iii)
sent by a reputable, established courier service that guarantees next business
day delivery (effective the next business day), or (iv) sent by facsimile,
followed within 24 hours by confirmation by one of the foregoing methods
(effective upon the first business day after receipt of the facsimile in
complete, readable form).  Notices to
each party shall be addressed as set forth below (or to such other address as
the recipient party may have furnished to the sending party for the purpose
pursuant to this Paragraph 10).


 


If to
Guarantor:


 


Quixote
Corporation


One East
Wacker Drive


Chicago,
Illinois  60601


Facsimile
No.: (312) 467-0197


Attention:  Leslie J. Jezuit


 


With a copy
to:


 


Holland
& Knight LLC


131 S.
Dearborn Street, 30th Floor


Chicago,
Illinois 60603


Facsimile
No.: (312) 578-6666


Attention:  Anne Hamblin Schiave


 


If to
Seller:


 


Peek
Corporation


2511
Corporate Way


Palmetto,
FL  34221


Attn: Andy
Roake, CEO


Facsimile:
941-365-0837


 


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  With a copy (which shall not
  constitute notice) to:

  	
   

  	
  Allen & Overy

  1221 Avenue of the Americas

  New York, NY 10020

  Attn:  Hugh McDonald

  Facsimile:  212-610-6399

  



 


or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a
place for the service of notice.


 


10.           In order to induce Seller to execute and
deliver the Transaction Agreements, Guarantor makes the following
representations and warranties:


 


(a)           Guarantor is a corporation duly organized
and validly existing under the laws of the State of Delaware, and has full
power and authority to execute, deliver and perform its covenants, agreements,
and obligations under this Guaranty, and such execution, delivery and
performance has been duly authorized by all requisite action on the part of
Guarantor.


 


(b)           The execution, delivery, and performance by
Guarantor of this Guaranty does not and will not contravene or conflict with
(i) the organizational documents of Guarantor, (ii) any law, order,
rule, regulation, writ, injunction, or decree now in effect of any government,
governmental instrumentality or court having jurisdiction over Guarantor, or
(iii) any material contractual restriction binding on or affecting
Guarantor or Guarantor’s property or assets which may adversely affect
Guarantor’s ability to fulfill its obligations under this Guaranty.


 


(c)           This Guaranty creates a legal, valid, and
binding obligation of Guarantor enforceable in accordance with its terms.


 


11.           This Guaranty shall be binding upon the
successors and assigns of Guarantor and shall not be discharged or affected, in
whole or in part, by the dissolution of Guarantor, provided however, that this
Guaranty imposes no obligation on any person other than the signatory hereto.


 


12.           This Guaranty shall be governed by,
construed and enforced under the internal laws (without regard to principles of
conflicts of laws) of the State of Illinois. 
Any legal action, suit or proceeding arising out of or relating to this
Guaranty or the transactions contemplated hereby shall be instituted
exclusively in the courts of the State of Illinois, located in the City of
Chicago or, provided subject matter jurisdiction exists, in the United States
Federal Court for the Northern District of Illinois, located in Chicago,
Illinois, and each party hereto agrees not to assert as a defense in any such
action, suit or proceeding, any claim that it is not subject personally to the
jurisdiction of


 


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such courts, that its property is exempt or
immune from attachment or execution, that the action, suit or proceeding is
brought in an inconvenient forum, that the venue of the action, suit or
proceeding is improper or that this Agreement or the subject matter hereof may
not be enforced in or by such court. 
Each party further irrevocably submits to the exclusive jurisdiction of
such courts in any such action, suit or proceeding.


 


13.           If Guarantor is determined by a court of
competent jurisdiction to have breached the terms of this Guaranty, then
Guarantor shall pay to Seller upon demand all reasonable attorneys’ fees, costs
and expenses including, without limitation, court costs, filing fees, recording
costs, expenses of collection, and all other costs and expenses reasonably
incurred by Seller in connection with its enforcement of this Guaranty.


 


IN WITNESS WHEREOF, Guarantor has delivered this Guaranty in the State
of Illinois as of the date first written above.


 


	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  QUIXOTE CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ LESLIE JEZUIT

  	
   

  
	
   

  	
  Name:

  	
   LESLIE JEZUIT

  	
   

  
	
   

  	
  Title:

  	
   President

  	
   

  
								



 


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