EXHIBIT 10.18
SILICON VALLEY BANK
CONTINUING GUARANTY
BORROWER: XXXXXXX INSTRUMENT COMPANY
GUARANTOR(S): QIC HOLDING CORP.
DATE: JUNE 5, 1998
THIS CONTINUING GUARANTY is executed by the above-named guarantor(s)
(jointly and severally, the "Guarantor"), as of the above date, in favor of
SILICON VALLEY BANK ("Silicon"), whose address is 0000 Xxxxxx Xxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx 00000, with respect to the Indebtedness of the above-named
borrower (jointly and severally, the "Borrower").
1. CONTINUING GUARANTY. Guarantor hereby unconditionally guarantees and
promises to pay on demand to Silicon, at the address indicated above, or at such
other address as Silicon may direct, in lawful money of the United States, and
to perform for the benefit of Silicon, all Indebtedness of Borrower now or
hereafter owing to or held by Silicon. As used herein, the term "Indebtedness"
is used in its most comprehensive sense and shall mean and include without
limitation: (a) any and all debts, duties, obligations, liabilities,
representations, warranties and guaranties of Borrower or any one or more of
them, heretofore, now, or hereafter made, incurred, or created, whether directly
to Silicon or acquired by Silicon by assignment or otherwise, or held by Silicon
on behalf of others, however arising, whether voluntary or involuntary, due or
not due, absolute or contingent, liquidated or unliquidated, certain or
uncertain, determined or undetermined, monetary or nonmonetary, written or oral,
and whether Borrower may be liable individually or jointly with others, and
regardless of whether recovery thereon may be or hereafter become barred by any
statute of limitations, discharged or uncollectible in any bankruptcy,
insolvency or other proceeding, or otherwise unenforceable; and (b) any and all
amendments, modifications, renewals and extensions of any or all of the
foregoing, including without limitation amendments, modifications, renewals and
extensions which are evidenced by any new or additional instrument, document or
agreement; and (c) any and all attorneys' fees, court costs, and collection
charges incurred in endeavoring to collect or enforce any of the foregoing
against Borrower, Guarantor, or any other person liable thereon (whether or not
suit be brought) and any other expenses of, for or incidental to collection
thereof. As used herein, the term "Borrower" shall include any successor to the
business and assets of Borrower, and shall also include Borrower in its capacity
as a debtor or debtor in possession under the federal Bankruptcy Code, and any
trustee, custodian or receiver for Borrower or any of its assets, should
Borrower hereafter become the subject of any bankruptcy or insolvency
proceeding, voluntary or involuntary; and all indebtedness, liabilities and
obligations incurred by any such person shall be included in the Indebtedness
guaranteed hereby. This Guaranty is given in consideration for credit and other
financial accommodations which may, from time to time, be given by Silicon to
Borrower in Silicon's sole discretion, but Guarantor acknowledges and agrees
that acceptance by Silicon of this Guaranty shall not constitute a commitment of
any kind by Silicon to extend such credit or other financial accommodation to
Borrower or to permit Borrower to incur Indebtedness to Silicon. All sums due
under this Guaranty shall bear interest from the date due until the date paid at
the highest rate charged with respect to any of the Indebtedness.
2. WAIVERS. Guarantor hereby waives: (a) presentment for payment, notice of
dishonor, demand, protest, and notice thereof as to any instrument, and all
other notices and demands to which Guarantor might be entitled, including
without limitation notice of all of the following: the acceptance hereof; the
creation, existence, or acquisition of any Indebtedness; the amount of the
Indebtedness from time to time outstanding; any foreclosure sale or other
disposition of any property which secures any or all of the Indebtedness or
which secures the obligations of any other guarantor of any or all of the
Indebtedness; any adverse change in Borrower's financial position; any other
fact which might increase Guarantor's risk; any default, partial payment or
non-payment of all or any part of the Indebtedness; the occurrence of any other
Event of Default (as hereinafter defined); any and all agreements and
arrangements between Silicon and Borrower and any changes, modifications, or
extensions thereof, and any revocation, modification or release of any guaranty
of any or all of the Indebtedness by any person (including without limitation
any other person signing this Guaranty); (b) any right to require Silicon to
institute suit against, or to exhaust its rights and remedies against, Borrower
or any other person, or to proceed against any property of any kind which
secures all or any part of the Indebtedness, or to exercise any right of offset
or other right with respect to any reserves, credits or deposit accounts held by
or maintained with Silicon or any indebtedness of Silicon to Borrower, or to
exercise any
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other right or power, or pursue any other remedy Silicon may have; (c) any
defense arising by reason of any disability or other defense of Borrower or any
other guarantor or any endorser, co-maker or other person, or by reason of the
cessation from any cause whatsoever of any liability of Borrower or any other
guarantor or any endorser, co-maker or other person, with respect to all or any
part of the Indebtedness, or by reason of any act or omission of Silicon or
others which directly or indirectly results in the discharge or release of
Borrower or any other guarantor or any other person or any Indebtedness or any
security therefor, whether by operation of law or otherwise; (d) any defense
arising by reason of any failure of Silicon to obtain, perfect, maintain or keep
in force any security interest in, or lien or encumbrance upon, any property of
Borrower or any other person; (e) any defense based upon any failure of Silicon
to give Guarantor notice of any sale or other disposition of any property
securing any or all of the Indebtedness, or any defects in any such notice that
may be given, or any failure of Silicon to comply with any provision of
applicable law in enforcing any security interest in or lien upon any property
securing any or all of the Indebtedness including, but not limited to, any
failure by Silicon to dispose of any property securing any or all of the
Indebtedness in a commercially reasonable manner; (f) any defense based upon or
arising out of any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against Borrower or any other guarantor or any endorser, co-maker or other
person, including without limitation any discharge of, or bar against
collecting, any of the Indebtedness (including without limitation any interest
thereon), in or as a result of any such proceeding; and (g) the benefit of any
and all statutes of limitation with respect to any action based upon, arising
out of or related to this Guaranty. Until all of the Indebtedness has been paid,
performed, and discharged in full, nothing shall discharge or satisfy the
liability of Guarantor hereunder except the full performance and payment of all
of the Indebtedness. If any claim is ever made upon Silicon for repayment or
recovery of any amount or amounts received by Silicon in payment of or on
account of any of the Indebtedness, because of any claim that any such payment
constituted a preferential transfer or fraudulent conveyance, or for any other
reason whatsoever, and Silicon repays all or part of said amount by reason of
any judgment, decree or order of any court or administrative body having
jurisdiction over Silicon or any of its property, or by reason of any settlement
or compromise of any such claim effected by Silicon with any such claimant
(including without limitation the Borrower), then and in any such event,
Guarantor agrees that any such judgment, decree, order, settlement and
compromise shall be binding upon Guarantor, notwithstanding any revocation or
release of this Guaranty or the cancellation of any note or other instrument
evidencing any of the Indebtedness, or any release of any of the Indebtedness,
and the Guarantor shall be and remain liable to Silicon under this Guaranty for
the amount so repaid or recovered, to the same extent as if such amount had
never originally been received by Silicon, and the provisions of this sentence
shall survive, and continue in effect, notwithstanding any revocation or release
of this Guaranty. Until all of the Indebtedness has been irrevocably paid and
performed in full, Guarantor hereby expressly and unconditionally waives all
rights of subrogation, reimbursement and indemnity of every kind against
Borrower, and all rights of recourse to any assets or property of Borrower, and
all rights to any collateral or security held for the payment and performance of
any Indebtedness, including (but not limited to) any of the foregoing rights
which Guarantor may have under any present or future document or agreement with
any Borrower or other person, and including (but not limited to) any of the
foregoing rights which Guarantor may have under any equitable doctrine of
subrogation, implied contract, or unjust enrichment, or any other equitable or
legal doctrine. Neither Silicon, nor any of its directors, officers, employees,
agents, attorneys or any other person affiliated with or representing Silicon
shall be liable for any claims, demands, losses or damages, of any kind
whatsoever, made, claimed, incurred or suffered by Guarantor or any other party
through the ordinary negligence of Silicon, or any of its directors, officers,
employees, agents, attorneys or any other person affiliated with or representing
Silicon.
3. CONSENTS. Guarantor hereby consents and agrees that, without notice to
or by Guarantor and without affecting or impairing in any way the obligations or
liability of Guarantor hereunder, Silicon may, from time to time before or after
revocation of this Guaranty, do any one or more of the following in Silicon's
sole and absolute discretion: (a) accelerate, accept partial payments of,
compromise or settle, renew, extend the time for the payment, discharge, or
performance of, refuse to enforce, and release all or any parties to, any or all
of the Indebtedness; (b) grant any other indulgence to Borrower or any other
person in respect of any or all of the Indebtedness or any other matter; (c)
accept, release, waive, surrender, enforce, exchange, modify, impair, or extend
the time for the performance, discharge, or payment of, any and all property of
any kind securing any or all of the Indebtedness or any guaranty of any or all
of the Indebtedness, or on which Silicon at any time may have a lien, or refuse
to enforce its rights or make any compromise or settlement or agreement therefor
in respect of any or all of such property; (d) substitute or add, or take any
action or omit to take any action which results in the release of, any one or
more endorsers or guarantors of all or any part of the Indebtedness, including,
without limitation one or more parties to this Guaranty, regardless of any
destruction or impairment of any right of contribution or other right of
Guarantor; (e) amend, alter or change in any respect whatsoever any term or
provision relating to any or all of the Indebtedness, including the rate of
interest thereon; (f) apply any sums received from Borrower, any other
guarantor, endorser, or co-signer, or from the disposition of any collateral or
security, to any indebtedness whatsoever owing from such person or secured by
such collateral or security, in such manner and order as Silicon determines in
its sole discretion, and regardless of whether such indebtedness is part of the
Indebtedness, is secured, or is due and payable; (g) apply
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any sums received from Guarantor or from the disposition of any collateral or
security securing the obligations of Guarantor, to any of the Indebtedness in
such manner and order as Silicon determines in its sole discretion, regardless
of whether or not such Indebtedness is secured or is due and payable. Guarantor
consents and agrees that Silicon shall be under no obligation to marshal any
assets in favor of Guarantor, or against or in payment of any or all of the
Indebtedness. Guarantor further consents and agrees that Silicon shall have no
duties or responsibilities whatsoever with respect to any property securing any
or all of the Indebtedness. Without limiting the generality of the foregoing,
Silicon shall have no obligation to monitor, verify, audit, examine, or obtain
or maintain any insurance with respect to, any property securing any or all of
the Indebtedness.
4. ACCOUNT STATED. Silicon's books and records showing the account between
it and the Borrower shall be admissible in evidence in any action or proceeding
as prima facie proof of the items therein set forth. Silicon's monthly
statements rendered to the Borrower shall be binding upon the Guarantor (whether
or not the Guarantor receives copies thereof), and shall constitute an account
stated between Silicon and the Borrower, unless Silicon receives a written
statement of the Borrower's exceptions within 30 days after the statement was
mailed to the Borrower. The Guarantor assumes full responsibility for obtaining
copies of such monthly statements from the Borrower, if the Guarantor desires
such copies.
5. EXERCISE OF RIGHTS AND REMEDIES; FORECLOSURE OF TRUST DEEDS. Guarantor
consents and agrees that, without notice to or by Guarantor and without
affecting or impairing in any way the obligations or liability of Guarantor
hereunder, Silicon may, from time to time, before or after revocation of this
Guaranty, exercise any right or remedy it may have with respect to any or all of
the Indebtedness or any property securing any or all of the Indebtedness or any
guaranty thereof, including without limitation judicial foreclosure, nonjudicial
foreclosure, exercise of a power of sale, and taking a deed, assignment or
transfer in lieu of foreclosure as to any such property, and Guarantor expressly
waives any defense based upon the exercise of any such right or remedy,
notwithstanding the effect thereof upon any of Guarantor's rights, including
without limitation, any destruction of Guarantor's right of subrogation against
Borrower and any destruction of Guarantor's right of contribution or other right
against any other guarantor of any or all of the Indebtedness or against any
other person, whether by operation of Sections 580a, 580d or 726 of the
California Code of Civil Procedure, or any comparable provisions of the laws of
any other jurisdiction, or any other statutes or rules of law now or hereafter
in effect, or otherwise. Without limiting the generality of the foregoing, (a)
The guarantor waives all rights and defenses that the Guarantor may have because
the Indebtedness is secured by real property. This means, among other things:
(1) Silicon may collect from the Guarantor without first foreclosing on any real
or personal property collateral pledged by the Borrower. (2) If Silicon
forecloses on any real property collateral pledged by the Borrower: (A) The
amount of the Indebtedness may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral is worth more
than the sale price. (B) Silicon may collect from the Guarantor even if Silicon,
by foreclosing on the real property collateral, has destroyed any right the
Guarantor may have to collect from the Borrower. This is an unconditional and
irrevocable waiver of any rights and defenses the Guarantor may have because the
Indebtedness is secured by real property. These rights and defenses include, but
are not limited to, any rights or defenses based upon Section 580a, 580b, 580d,
or 726 of the Code of Civil Procedure; (b) The guarantor waives all rights and
defenses that the Guarantor may have because the guaranty of another guarantor
is secured by real property. This means, among other things: (1) Silicon may
collect from the Guarantor without first foreclosing on any real or personal
property collateral pledged by the other guarantor. (2) If Silicon forecloses on
any real property collateral pledged by the other guarantor: (A) The amount of
the Indebtedness may be reduced only by the price for which that collateral is
sold at the foreclosure sale, even if the collateral is worth more than the sale
price. (B) Silicon may collect from the Guarantor even if Silicon, by
foreclosing on the real property collateral, has destroyed any right the
Guarantor may have to obtain contribution from the other guarantor. This is an
unconditional and irrevocable waiver of any rights and defenses the Guarantor
may have because the obligations of the other guarantor are secured by real
property. These rights and defenses include, but are not limited to, any rights
or defenses based upon Section 580a, 580b, 580d, or 726 of the Code of Civil
Procedure.
6. ACCELERATION. Notwithstanding the terms of all or any part of the
Indebtedness, the obligations of the Guarantor hereunder to pay and perform all
of the Indebtedness shall, at the option of Silicon, immediately become due and
payable, without notice, and without regard to the expressed maturity of any of
the Indebtedness, in the event: (a) any warranty, representation, statement,
report, or certificate made or delivered to Silicon by Guarantor, or any of
their respective officers, partners, employees, or agents, is incorrect, false,
untrue, or misleading when given in any material respect; or (b) ANY EVENT OF
DEFAULT (AS DEFINED IN THE LOAN AND SECURITY AGREEMENT BETWEEN BORROWER AND
SILICON OF EVEN DATE) SHALL OCCUR AND BE CONTINUING, OR ANY DEFAULT OR EVENT OF
DEFAULT SHALL OCCUR UNDER ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT
BETWEEN GUARANTOR AND SILICON or (c) Guarantor shall fail to pay or perform when
due any indebtedness or obligation of Guarantor to Silicon or to any parent,
subsidiary or corporate affiliate of Silicon, whether under this Guaranty or any
other instrument, document, or agreement heretofore or hereafter entered into;
or
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or (h) there shall occur the dissolution, termination of existence, insolvency,
or business failure of Guarantor, or the appointment of a receiver, trustee or
custodian for Guarantor or all or any part of the property of either of them, or
the assignment for the benefit of creditors by Guarantor, or the commencement of
any proceeding by or against Borrower or Guarantor under any reorganization,
bankruptcy, insolvency, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, now or hereafter in effect; or
(j) Guarantor shall generally not pay ITS debts as they become due or shall
enter into any agreement (whether written or oral), or offer to enter into any
such agreement, with all or a significant number of its creditors regarding any
moratorium or other indulgence with respect to its debts or the participation of
such creditors or their representatives in the supervision, management, or
control of the business of either of them; or (k) Guarantor shall conceal,
remove or permit to be concealed or removed any part of its property, with
intent to hinder, delay or defraud its creditors, or make or suffer any transfer
of any of its property which may be fraudulent under any bankruptcy, fraudulent
conveyance or similar law, or shall make any transfer of its property to or for
the benefit of any creditor at a time when other creditors similarly situated
have not been paid; or (l) the board of directors or shareholders of Guarantor
shall adopt any resolution or plan for its dissolution or the liquidation of all
or substantially all of its assets; or (m) Guarantor shall revoke this Guaranty
or contest or deny liability under this Guaranty. All of the foregoing are
hereinafter referred to as "Events of Default".
7. RIGHT TO ATTACHMENT REMEDY. Guarantor agrees that, notwithstanding the
existence of any property securing any or all of the Indebtedness, Silicon shall
have all of the rights of an unsecured creditor of Guarantor, including without
limitation the right to obtain a temporary protective order and writ of
attachment against Guarantor with respect to any sums due under this Guaranty.
Guarantor further agrees that in the event any property secures the obligations
of Guarantor under this Guaranty, to the extent that Silicon, in its sole and
absolute discretion, determines prior to the disposition of such property that
the amount to be realized by Silicon therefrom may be less than the indebtedness
of the Guarantor under this Guaranty, Silicon shall have all the rights of an
unsecured creditor against Guarantor, including without limitation the right of
Silicon, prior to the disposition of said property, to obtain a temporary
protective order and writ of attachment against Guarantor. Guarantor waives the
benefit of Section 483.010(b) of the California Code of Civil Procedure and of
any and all other statutes and rules of law now or hereafter in effect requiring
Silicon to first resort to or exhaust all such collateral before seeking or
obtaining any attachment remedy against Guarantor. Silicon shall have no
liability to Guarantor as a result thereof, whether or not the actual deficiency
realized by Silicon is less than the anticipated deficiency on the basis of
which Silicon obtains a temporary protective order or writ of attachment.
8. INDEMNITY. Guarantor hereby agrees to indemnify Silicon and hold Silicon
harmless from and against any and all claims, debts, liabilities, demands,
obligations, actions, causes of action, penalties, costs and expenses (including
without limitation attorneys' fees), of every nature, character and description,
which Silicon may sustain or incur based upon or arising out of any of the
Indebtedness, any actual or alleged failure to collect and pay over any
withholding or other tax relating to Borrower or its employees, any relationship
or agreement between Silicon and Borrower, any actual or alleged failure of
Silicon to comply with any writ of attachment or other legal process relating to
Borrower or any of its property, or any other matter, cause or thing whatsoever
occurred, done, omitted or suffered to be done by Silicon relating in any way to
Borrower or the Indebtedness (except any such amounts sustained or incurred as
the result of the gross negligence or willful misconduct of Silicon or any of
its directors, officers, employees, agents, attorneys, or any other person
affiliated with or representing Silicon). Notwithstanding any provision in this
Guaranty to the contrary, the indemnity agreement set forth in this Section
shall survive any termination or revocation of this Guaranty and shall for all
purposes continue in full force and effect.
9. SUBORDINATION. Any and all rights of Guarantor under any and all debts,
liabilities and obligations owing from Borrower to Guarantor, including any
security for and guaranties of any such obligations, whether now existing or
hereafter arising, are hereby subordinated in right of payment to the prior
payment in full of all of the Indebtedness. No payment in respect of any such
subordinated obligations shall at any time be made to or accepted by Guarantor
if at the time of such payment any Indebtedness is outstanding. If any Event of
Default has occurred, Borrower and any assignee, trustee in bankruptcy,
receiver, or any other person having custody or control over any or all of
Borrower's property are hereby authorized and directed to pay to Silicon the
entire unpaid balance of the Indebtedness before making any payments whatsoever
to Guarantor, whether as a creditor, shareholder or otherwise; and insofar as
may be necessary for that purpose, Guarantor hereby assigns and transfers to
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Silicon all rights to any and all debts, liabilities and obligations owing from
Borrower to Guarantor, including any security for and guaranties of any such
obligations, whether now existing or hereafter arising, including without
limitation any payments, dividends or distributions out of the business or
assets of Borrower. Any amounts received by Guarantor in violation of the
foregoing provisions shall be received and held as trustee for the benefit of
Silicon and shall forthwith be paid over to Silicon to be applied to the
Indebtedness in such order and sequence as Silicon shall in its sole discretion
determine, without limiting or affecting any other right or remedy which Silicon
may have hereunder or otherwise and without otherwise affecting the liability of
Guarantor hereunder. Guarantor hereby expressly waives any right to set-off or
assert any counterclaim against Borrower.
10. REVOCATION. This is a Continuing Guaranty relating to all of the
Indebtedness, including Indebtedness arising under successive transactions which
from time to time continue the Indebtedness or renew it after it has been
satisfied. Guarantor waives all benefits of California Civil Code Section 2815,
and agrees that the obligations of Guarantor hereunder may not be terminated or
revoked in any manner except by giving 90 days' advance written notice of
revocation to Silicon at its address above by registered first-class U.S. mail,
postage prepaid, return receipt requested, and only as to new loans made by
Silicon to Borrower more than 90 days after actual receipt of such written
notice by Silicon. No termination or revocation of this Guaranty shall be
effective until 90 days following the date of actual receipt of said written
notice of revocation by Silicon. Notwithstanding such written notice of
revocation or any other act of Guarantor or any other event or circumstance,
Guarantor agrees that this Guaranty and all consents, waivers and other
provisions hereof shall continue in full force and effect as to any and all
Indebtedness which is outstanding on or before the 90th day following actual
receipt of said written notice of revocation by Silicon, and all extensions,
renewals and modifications of said Indebtedness (including without limitation
amendments, extensions, renewals and modifications which are evidenced by new or
additional instruments, documents or agreements executed before or after
expiration of said 90-day period), and all interest thereon, accruing before or
after expiration of said 90-day period, and all attorneys' fees, court costs and
collection charges, incurred before or after expiration of said 90-day period,
in endeavoring to collect or enforce any of the foregoing against Borrower,
Guarantor or any other person liable thereon (whether or not suit be brought)
and any other expenses of, for or incidental to collection thereof.
11. INDEPENDENT LIABILITY. Guarantor hereby agrees that one or more
successive or concurrent actions may be brought hereon against Guarantor, in the
same action in which Borrower may be sued or in separate actions, as often as
deemed advisable by Silicon. The liability of Guarantor hereunder is exclusive
and independent of any other guaranty of any or all of the Indebtedness whether
executed by Guarantor or by any other guarantor (including without limitation
any other persons signing this Guaranty). The liability of Guarantor hereunder
shall not be affected, revoked, impaired, or reduced by any one or more of the
following: (a) the fact that the Indebtedness exceeds the maximum amount of
Guarantor's liability, if any, specified herein or elsewhere (and no agreement
specifying a maximum amount of Guarantor's liability shall be enforceable unless
set forth in a writing signed by Silicon or set forth in this Guaranty); or (b)
any direction as to the application of payment by Borrower or by any other
party; or (c) any other continuing or restrictive guaranty or undertaking or any
limitation on the liability of any other guarantor (whether under this Guaranty
or under any other agreement); or (d) any payment on or reduction of any such
other guaranty or undertaking; or (e) any revocation, amendment, modification or
release of any such other guaranty or undertaking; or (f) any dissolution or
termination of, or increase, decrease, or change in membership of any Guarantor
which is a partnership. Guarantor hereby expressly represents that he was not
induced to give this Guaranty by the fact that there are or may be other
guarantors either under this Guaranty or otherwise, and Guarantor agrees that
any release of any one or more of such other guarantors shall not release
Guarantor from his obligations hereunder either in full or to any lesser extent.
If Guarantor is a married person, Guarantor hereby expressly agrees that
recourse may be had against his or her separate property for all of his or her
obligations hereunder.
12. FINANCIAL CONDITION OF BORROWER. Guarantor is fully aware of the
financial condition of Borrower and is executing and delivering this Guaranty at
Borrower's request and based solely upon his own independent investigation of
all matters pertinent hereto, and Guarantor is not relying in any manner upon
any representation or statement of Silicon with respect thereto. Guarantor
represents and warrants that he is in a position to obtain, and Guarantor hereby
assumes full responsibility for obtaining, any additional information concerning
Borrower's financial condition and any other matter pertinent hereto as
Guarantor may desire, and Guarantor is not relying upon or expecting Silicon to
furnish to him any information now or hereafter in Silicon's possession
concerning the same or any other matter. By executing this Guaranty, Guarantor
knowingly accepts the full range of risks encompassed within a contract of
continuing guaranty, which risks Guarantor acknowledges include without
limitation the possibility that Borrower will incur additional Indebtedness for
which Guarantor will be liable hereunder after Borrower's financial condition or
ability to pay such Indebtedness has deteriorated and/or after bankruptcy or
insolvency proceedings have been commenced by or against Borrower. Guarantor
shall have no right to require Silicon to obtain or disclose any information
with respect to the Indebtedness, the financial condition or character of
Borrower, the existence of any collateral or security for any or all of the
Indebtedness, the filing by or against Borrower of any bankruptcy or insolvency
proceeding, the existence of any other guaranties of all or any part of the
Indebtedness, any action or non-action on the part of Silicon, Borrower, or any
other person, or any other matter, fact, or occurrence.
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13. REPORTS AND FINANCIAL STATEMENTS OF GUARANTOR. Guarantor shall, at its
sole cost and expense, at any time and from time to time, prepare or cause to be
prepared, and provide to Silicon upon Silicon's request (i) such financial
statements and reports concerning Guarantor for such periods of time as Silicon
may designate, (ii) any other information concerning Guarantor's business,
financial condition or affairs as Silicon may request, and (iii) copies of any
and all foreign, federal, state and local tax returns and reports of or relating
to Guarantor as Silicon may from time to time request. Guarantor hereby
intentionally and knowingly waives any and all rights and privileges it may have
not to divulge or deliver said tax returns, reports and other information which
are requested by Silicon hereunder or in any litigation in which Silicon may be
involved relating directly or indirectly to Borrower or to Guarantor. Guarantor
further agrees immediately to give written notice to Silicon of any adverse
change in Guarantor's financial condition and of any condition or event which
constitutes an Event of Default under this Guaranty. All reports and information
furnished to Silicon hereunder shall be complete, accurate and correct in all
respects. Whenever requested, Guarantor shall further deliver to Silicon a
certificate signed by Guarantor (and, if Guarantor is a partnership, by all
general partners of Guarantor, in their individual capacities, and, if Guarantor
is a corporation, by A RESPONSIBLE FINANCIAL OFFICER of Guarantor warranting and
representing that all reports, financial statements and other documents and
information delivered or caused to be delivered to Silicon under this Guaranty,
are complete, correct and thoroughly and accurately present the financial
condition of Guarantor, and that there exists on the date of delivery of said
certificate to Silicon no condition or event which constitutes an Event of
Default under this Guaranty.
14. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and
warrants that (i) it is in Guarantor's direct interest to assist Borrower in
procuring credit, because Borrower is A WHOLLY-OWNED SUBSIDIARY of Guarantor
(ii) this Guaranty has been duly and validly authorized, executed and delivered
and constitutes the valid and binding obligation of Guarantor, enforceable in
accordance with its terms, and (iii) the execution and delivery of this Guaranty
does not violate or constitute a default under (with or without the giving of
notice, the passage of time, or both) any order, judgment, decree, instrument or
agreement to which Guarantor is a party or by which it or its assets are
affected or bound.
15. COSTS. Whether or not suit be instituted, Guarantor agrees to reimburse
Silicon on demand for all reasonable attorneys' fees and all other reasonable
costs and expenses incurred by Silicon in enforcing this Guaranty, or arising
out of or relating in any way to this Guaranty, or in enforcing any of the
Indebtedness against Borrower, Guarantor, or any other person, or in connection
with any property of any kind securing all or any part of the Indebtedness.
Without limiting the generality of the foregoing, and in addition thereto,
Guarantor shall reimburse Silicon on demand for all reasonable attorneys' fees
and costs Silicon incurs in any way relating to Guarantor, Borrower or the
Indebtedness, in order to: obtain legal advice; enforce or seek to enforce any
of its rights; commence, intervene in, respond to, or defend any action or
proceeding; file, prosecute or defend any claim or cause of action in any action
or proceeding (including without limitation any probate claim, bankruptcy claim,
third-party claim, secured creditor claim, reclamation complaint, and complaint
for relief from any stay under the Bankruptcy Code or otherwise); protect,
obtain possession of, sell, lease, dispose of or otherwise enforce any security
interest in or lien on any property of any kind securing any or all of the
Indebtedness; or represent Silicon in any litigation with respect to Borrower's
or Guarantor's affairs. In the event either Silicon or Guarantor files any
lawsuit against the other predicated on a breach of this Guaranty, the
prevailing party in such action shall be entitled to recover its attorneys' fees
and costs of suit from the non-prevailing party.
16. NOTICES. Any notice which a party shall be required or shall desire to
give to the other hereunder (except for notice of revocation, which shall be
governed by Section 10 of this Guaranty) shall be given by personal delivery or
by telecopier or by depositing the same in the United States mail, first class
postage pre-paid, addressed to Silicon at its address set forth in the heading
of this Guaranty and to Guarantor at his address set forth under his signature
hereon, and such notices shall be deemed duly given on the date of personal
delivery or one day after the date telecopied or 3 business days after the date
of mailing as aforesaid. Silicon and Guarantor may change their address for
purposes of receiving notices hereunder by giving written notice thereof to the
other party in accordance herewith. Guarantor shall give Silicon immediate
written notice of any change in his address.
17. CLAIMS. Guarantor agrees that any claim or cause of action by Guarantor
against Silicon, or any of Silicon's directors, officers, employees, agents,
accountants or attorneys, based upon, arising from, or relating to this
Guaranty, or any other present or future agreement between Silicon and Guarantor
or between Silicon and Borrower, or any other transaction contemplated hereby or
thereby or relating hereto or thereto, or any other matter, cause or thing
whatsoever, whether or not relating hereto or thereto, occurred, done, omitted
or suffered to be done by Silicon, or by Silicon's directors, officers,
employees, agents, accountants or attorneys, whether sounding in contract or in
tort or otherwise, shall be barred unless asserted by Guarantor by the
commencement of an action or proceeding in a court of competent jurisdiction
within Santa Xxxxx County, California, by the filing of a complaint within one
year after the first act, occurrence or omission upon which such claim or cause
of action, or any part thereof, is based and service of a summons and complaint
on an officer of Silicon or any other person authorized to
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accept service of process on behalf of Silicon, within 30 days thereafter.
Guarantor agrees that such one year period is a reasonable and sufficient time
for Guarantor to investigate and act upon any such claim or cause of action. The
one year period provided herein shall not be waived, tolled, or extended except
by a specific written agreement of Silicon. This provision shall survive any
termination of this Guaranty or any other agreement.
18. CONSTRUCTION; SEVERABILITY. If more than one person has executed this
Guaranty, the term "Guarantor" as used herein shall be deemed to refer to all
and any one or more such persons and their obligations hereunder shall be joint
and several. Without limiting the generality of the foregoing, if more than one
person has executed this Guaranty, this Guaranty shall in all respects be
interpreted as though each person signing this Guaranty had signed a separate
Guaranty, and references herein to "other guarantors" or words of similar effect
shall include without limitation other persons signing this Guaranty. As used in
this Guaranty, the term "property" is used in its most comprehensive sense and
shall mean all property of every kind and nature whatsoever, including without
limitation real property, personal property, mixed property, tangible property
and intangible property. Words used herein in the masculine gender shall include
the neuter and feminine gender, words used herein in the neuter gender shall
include the masculine and feminine, words used herein in the singular shall
include the plural and words used in the plural shall include the singular,
wherever the context so reasonably requires. If any provision of this Guaranty
or the application thereof to any party or circumstance is held invalid, void,
inoperative or unenforceable, the remainder of this Guaranty and the application
of such provision to other parties or circumstances shall not be affected
thereby, the provisions of this Guaranty being severable in any such instance.
19. GENERAL PROVISIONS. Silicon shall have the right to seek recourse
against Guarantor to the full extent provided for herein and in any other
instrument or agreement evidencing obligations of Guarantor to Silicon, and
against Borrower to the full extent of the Indebtedness. No election in one form
of action or proceeding, or against any party, or on any obligation, shall
constitute a waiver of Silicon's right to proceed in any other form of action or
proceeding or against any other party. The failure of Silicon to enforce any of
the provisions of this Guaranty at any time or for any period of time shall not
be construed to be a waiver of any such provision or the right thereafter to
enforce the same. All remedies hereunder shall be cumulative and shall be in
addition to all rights, powers and remedies given to Silicon by law or under any
other instrument or agreement. Time is of the essence in the performance by
Guarantor of each and every obligation under this Guaranty. If Borrower is a
corporation, partnership or other entity, Guarantor hereby agrees that Silicon
shall have no obligation to inquire into the power or authority of Borrower or
any of its officers, directors, partners, or agents acting or purporting to act
on its behalf, and any Indebtedness made or created in reliance upon the
professed exercise of any such power or authority shall be included in the
Indebtedness guaranteed hereby. This Guaranty is the entire and only agreement
between Guarantor and Silicon with respect to the guaranty of the Indebtedness
of Borrower by Guarantor, and all representations, warranties, agreements, or
undertakings heretofore or contemporaneously made, which are not set forth
herein, are superseded hereby. No course of dealings between the parties, no
usage of the trade, and no parol or extrinsic evidence of any nature shall be
used or be relevant to supplement or explain or modify any term or provision of
this Guaranty. There are no conditions to the full effectiveness of this
Guaranty. The terms and provisions hereof may not be waived, altered, modified,
or amended except in a writing executed by Guarantor and a duly authorized
officer of Silicon. All rights, benefits and privileges hereunder shall inure to
the benefit of and be enforceable by Silicon and its successors and assigns and
shall be binding upon Guarantor and his heirs, executors, administrators,
personal representatives, successors and assigns. Section headings are used
herein for convenience only. Guarantor acknowledges that the same may not
describe completely the subject matter of the applicable Section, and the same
shall not be used in any manner to construe, limit, define or interpret any term
or provision hereof.
20. GOVERNING LAW; VENUE AND JURISDICTION. This instrument and all acts and
transactions pursuant or relating hereto and all rights and obligations of the
parties hereto shall be governed, construed, and interpreted in accordance with
the internal laws of the State of California. In order to induce Silicon to
accept this Guaranty, and as a material part of the consideration therefor,
Guarantor (i) agrees that all actions or proceedings relating directly or
indirectly hereto shall, at the option of Silicon, be litigated in courts
located within Santa Xxxxx County, California, (ii) consents to the jurisdiction
of any such court and consents to the service of process in any such action or
proceeding by personal delivery or any other method permitted by law; and (iii)
waives any and all rights Guarantor may have to transfer or change the venue of
any such action or proceeding.
21. MUTUAL WAIVER OF RIGHT TO JURY TRIAL. SILICON AND GUARANTOR HEREBY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, LAWSUIT OR PROCEEDING
BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO: (I) THIS GUARANTEE OR ANY
SUPPLEMENT OR AMENDMENT THERETO; OR (II) ANY OTHER PRESENT OR FUTURE INSTRUMENT
OR AGREEMENT BETWEEN SILICON AND GUARANTOR; OR (III) ANY BREACH, CONDUCT, ACTS
OR OMISSIONS OF SILICON OR GUARANTOR OR ANY OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS,
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ATTORNEYS OR ANY OTHER PERSON AFFILIATED WITH OR REPRESENTING SILICON OR
GUARANTOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT
OR OTHERWISE.
22. RECEIPT OF COPY. Guarantor acknowledges receipt of a copy of this
Guaranty.
GUARANTOR SIGNATURE:
QIC HOLDING CORP.
BY /s/ X.X. XXXXXXXXX
------------------------------------
X.X. XXXXXXXXX, PRESIDENT
ADDRESS:
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