UNCONDITIONAL GUARANTY
In consideration of one or more
extensions of credit by Silicon
Valley Bank ("Bank") to GigOptix, LLC, an Idaho
limited liability company ("Borrower"), GigOptix, Inc., a Delaware
corporation ("Guarantor") unconditionally and irrevocably guarantees (i) payment
and performance of all indebtedness of Borrower to Bank; (ii)
Borrower’s performance of the under the Loan and Security Agreement dated October 5, 2007 (the
"Agreement") and any other Loan Documents (as that term is defined in the
Agreement) between Borrower and Bank, each as amended from time to time
(collectively the "Agreements"); and (iii) performance by Borrower of all of its
other obligations to Bank; in each case, according to their terms.
1. If Borrower does not pay
or perform any of its obligations to Bank under the Agreements or otherwise,
Guarantor will immediately pay all amounts due (including, without limitation,
all principal, interest, and fees) and satisfy all of Borrower's obligations to
Bank.
2. Guarantor’s obligations
are independent of the obligations of Borrower or any other guarantor, and
separate actions may be brought against Guarantor (whether action is brought
against Borrower or any other guarantor, or whether Borrower or any other
guarantor is joined in the action). Guarantor waives the benefit of
any statutes of limitations affecting its liability. Guarantor's
liability is not contingent on the genuineness or enforceability of the
Agreements.
3. Without notice to
Guarantor and without affecting Guarantor’s obligations under this Guaranty,
Bank may (a) renew, extend, or otherwise change the terms of the Agreements; (b)
take security for the payment of this Guaranty or the Agreements or other
obligations; (c) exchange, enforce, waive and release any security; and (d)
apply the security and direct its sale as Bank, in its discretion,
chooses.
4. Guarantor
waives:
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a)
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Any
right to require Bank to (i) proceed against Borrower or any other person;
(ii) proceed against or exhaust any security or (iii) pursue any other
remedy. Bank may exercise or not exercise any right or remedy
it has against Borrower or any security it holds (including the right to
foreclose by judicial or nonjudicial sale) without affecting Guarantor’s
liability.
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b)
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Any
defenses from disability or other defense of Borrower or from the
cessation of Borrowers liabilities.
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c)
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Any
setoff, defense or counterclaim against
Bank.
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d)
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Any
right to enforce any remedy that Bank has against Borrower, any other
guarantor or any other person.
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e)
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Any
rights to participate in any security held by
Bank.
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f)
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Any
demands for performance, notices of nonperformance or of new or additional
indebtedness. Unless Guarantor makes a written request for
particular information, Bank has no duty to provide information to
Guarantor.
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g)
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The
benefits of California Civil Code sections 2809, 2810, 2819, 2845,
2847, 2849, 2850, 2899 and
3433.
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5. Guarantor acknowledges
that, to the extent Guarantor has or may have rights of subrogation or
reimbursement against Xxxxxxxx for claims arising out of this Guaranty, those
rights may be impaired or destroyed if Bank elects to proceed against any real
property security of Borrower by non-judicial foreclosure. That
impairment or destruction could, under certain judicial cases and based on
equitable principles of estoppel, give rise to a defense by Guarantor against
its obligations under this Guaranty. Guarantor waives that defense
and any others arising from Bank’s election to pursue non-judicial
foreclosure. Without limiting the generality of the foregoing,
Guarantor waives all benefits and defenses under California Code of Civil
Procedure Sections 580a, 580b, 580d and 726, to the extent they
apply.
6. Guarantor’s obligations
and liability under this Guaranty will continue and not be affected regardless
of whether (i) Borrower becomes insolvent or becomes a debtor under the United
States Bankruptcy Code, or (ii) any obligation under the Agreements is
terminated or rejected, or (iii) any obligation of Borrower is modified, or (iv)
Borrower's obligations are avoided. If Bank must return any payment
because of the insolvency, bankruptcy or reorganization of Borrower, Guarantor
or any other guarantor, this Guaranty will remain effective or be
reinstated.
7. Guarantor subordinates
(i) any indebtedness or obligations of Borrower to Guarantor, to (ii) the
Agreements and all of borrower’s indebtedness and obligations to
Bank. Guarantor will collect, enforce and receive payments from
Borrower as Bank’s trustee and immediately will remit to Bank those payments
without reducing or affecting its liability under this Guaranty.
8. Guarantor will pay Bank’s
reasonable attorneys' fees and other costs and expenses incurred enforcing this
Guaranty, whether in any civil action, arbitration, bankruptcy case or other
proceeding, or otherwise. This Guaranty may not be waived, revoked or amended
without Xxxxxx's prior written consent. If any provision of this
Guaranty is unenforceable, all other provisions remain
effective. This Guaranty is the entire agreement among the parties
about this guaranty. No prior dealings, no usage of trade, and no
parol or extrinsic evidence may supplement or vary this
Guaranty. Bank may assign this Guaranty. This Guaranty
benefits Bank, its successors and assigns. This Guaranty is in
addition to any other guaranties Bank obtains.
9. Guarantor represents and
warrants that (i) it has taken all action necessary authorize execute, deliver
and perform this Guaranty; (ii) execution, delivery and performance of this
Guaranty do not conflict with any organizational documents or agreements to
which it is party; and (iii) this Guaranty is a valid and binding obligation,
enforceable against Guarantor according to its terms.
10. Guarantor will do all of
the following:
10.1 Maintain
its legal existence, remain in good standing in the state of its formation, and
continue to qualify in each jurisdiction in which the failure to qualify could
have a material adverse effect on the financial condition, operations or
business. Maintain all licenses, approvals and agreements, the loss
of which could have a material adverse effect on its financial condition,
operations or business.
10.2 Comply
with all statutes and regulations if non-compliance could adversely affect its
financial condition, operations or business.
10.3 Execute
such other instruments and take such other action as Bank may reasonably request
to effect the purposes of this Agreement.
10.4 Deliver
to Bank complete and current financial information and other information about
Guarantor as Bank may reasonably request.
10.5 Keep
itself informed of Xxxxxxxx’s business, financial condition and
performance.
11. This Guaranty is
governed by California law, without regard to principles of conflicts of
laws. Guarantor and Bank submit to the exclusive jurisdiction of the
state and federal courts in Santa Xxxxx County, California.
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TO THE
EXTENT PERMITTED BY APPLICABLE LAW, GUARANTOR AND BANK EACH WAIVES ITS RIGHT TO
A JURY TRIAL OF ANY ACTION ARISING OUT OF THIS GUARANTY, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL
INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY
HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
WITHOUT INTENDING IN ANY WAY TO LIMIT
THE PARTIES’ AGREEMENT TO WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY, if
that waiver is not enforceable, the parties agree that any and all disputes or
controversies of any nature between them arising at any time shall be decided by
a reference to a private judge, mutually selected by the parties (or, if they
cannot agree, by the Presiding Judge of the Santa Xxxxx County, California
Superior Court) appointed in accordance with California Code of Civil Procedure
Section 638 (or pursuant to comparable provisions of federal law if the dispute
falls within the exclusive jurisdiction of the federal courts), sitting without
a jury, in Santa Xxxxx County, California; and the parties hereby submit to the
jurisdiction of such court. The reference proceedings shall be
conducted pursuant to and in accordance with the provisions of California Code
of Civil Procedure §§ 638 through 645.1, inclusive. The private judge
shall have the power, among others, to grant provisional relief, including
without limitation, entering temporary restraining orders, issuing preliminary
and permanent injunctions and appointing receivers. All such
proceedings shall be closed to the public and confidential and all records
relating thereto shall be permanently sealed. If during the course of
any dispute, a party desires to seek provisional relief, but a judge has not
been appointed at that point pursuant to the judicial reference procedures, then
such party may apply to the Santa Xxxxx County, California Superior Court for
such relief. The proceeding before the private judge shall be
conducted in the same manner as it would be before a court under the rules of
evidence applicable to judicial proceedings. The parties shall be
entitled to discovery which shall be conducted in the same manner as it would be
before a court under the rules of discovery applicable to judicial
proceedings. The private judge shall oversee discovery and may
enforce all discovery rules and order applicable to judicial proceedings in the
same manner as a trial court judge. The parties agree that the
selected or appointed private judge shall have the power to decide all issues in
the action or proceeding, whether of fact or of law, and shall report a
statement of decision thereon pursuant to the California Code of Civil Procedure
§ 644(a). Nothing in this paragraph shall limit the right of any
party at any time to exercise self-help remedies, foreclose against collateral,
or obtain provisional remedies. The private judge shall also
determine all issues relating to the applicability, interpretation, and
enforceability of this paragraph.
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By:
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/s/ Xxx Xxxx
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Title:
Chief Executive Officer
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