GUARANTY
from
SILICON GRAPHICS, INC.
to
VIRTUAL FUNDING, LIMITED PARTNERSHIP
Dated as of November 18, 1993
GUARANTY
--------
GUARANTY, dated as of November 18, 1993 (the "Guaranty"), from SILICON
GRAPHICS, INC., a Delaware corporation (the "Guarantor") to VIRTUAL FUNDING,
LIMITED PARTNERSHIP, a Delaware limited partnership (the "Lessor").
WHEREAS, the Guarantor wishes to induce the Lessor to enter into a
certain Agreement for Lease (the "Agreement for Lease") and a certain Lease
Agreement (the "Master Lease") both dated as of the date hereof and both entered
into with Silicon Graphics Real Estate, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Guarantor (the "Initial Lessee") (the Agreement
for Lease and the Master Lease, as each of them may be amended, modified,
supplemented, or extended from time to time, are collectively referred to
hereinafter as the "Guaranteed Agreements"); and
WHEREAS, the Initial Lessee and each direct or indirect subsidiary of
the Guarantor which hereinafter becomes a party to the Guaranteed Agreements are
hereinafter referred to as a "Guaranteed Subsidiary"; and
WHEREAS, the Lessor is unwilling to enter into the Guaranteed
Agreements with each Guaranteed Subsidiary unless the Guarantor enters into this
Guaranty.
NOW, THEREFORE, in order to induce the Lessor to enter into the
Guaranteed Agreements and to consummate the transactions contemplated thereby,
the Guarantor hereby agrees as follows:
1. GUARANTY. (a) The Guarantor unconditionally and irrevocably
guarantees to the Lessor the due and punctual performance of and compliance by
each Guaranteed Subsidiary with all obligations, covenants, warranties,
undertakings and conditions contained in or arising under the Guaranteed
Agreements including but not limited to, the full and punctual payment by each
Guaranteed Subsidiary, when due, whether at the stated due date, by acceleration
or otherwise, of any and all rent, obligations, liabilities, indebtedness and
other amounts of every kind arising out of the Guaranteed Agreements, all
amounts in respect to indemnities provided for in the Guaranteed Agreements, and
all damages (whether provided for in the Guaranteed Agreements or otherwise
permitted by law) in respect of a failure or refusal by each Guaranteed
Subsidiary to make any such payment, howsoever created, arising or evidenced,
voluntary or involuntary, whether direct or indirect, absolute or contingent,
now or hereafter existing or owing to the Lessor (all the foregoing obligations
and undertakings are collectively referred to hereinafter as the "Obligations").
(b) This Guaranty is an absolute and unconditional guaranty of
performance and payment when due under the Guaranteed Agreements and not of
collection of any indebtedness contained in or arising under the Guaranteed
Agreements. This Guaranty is in no way conditioned upon any attempt to collect
from each Guaranteed Subsidiary or upon any other event or contingency, and
shall be binding upon and enforceable against the Guarantor without regard to
the validity or enforceability of the Guaranteed Agreements, or of any term
thereof. If for any reason each Guaranteed Subsidiary shall fail or be unable
duly and punctually to pay any such amount when due under the Guaranteed
Agreement, the Guarantor will forthwith pay, if not already paid by such
Guaranteed Subsidiary, the same immediately upon demand.
(c) In case either of the Guaranteed Agreements shall be terminated
as a result of the rejection thereof by any trustee, receiver or liquidating
agent of each Guaranteed Subsidiary or any of its properties in any bankruptcy,
insolvency, reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar proceeding, the Guarantor's obligations hereunder shall
continue to the same extent as if such agreement had not been so rejected. The
Guarantor agrees that this Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment to the Lessor of the
Obligations or any part thereof is rescinded or must otherwise be returned by
the Lessor upon the insolvency, bankruptcy or reorganization of each Guaranteed
Subsidiary, or otherwise, as though such payment to the Lessor had not been
made.
(d) The Guarantor shall pay all reasonable costs, expenses and
damages incurred (including, without limitation, attorneys' fees and
disbursements) in connection with the enforcement of the Obligations of each
Guaranteed Subsidiary pursuant to the respective documents or otherwise and in
connection with the enforcement of the obligations of the Guarantor under this
Guaranty.
2. GUARANTY CONTINUING AND UNLIMITED. The obligations of the
Guarantor hereunder shall be continuing and unlimited, shall not be subject to
any counterclaim, set-off, deduction or defense (other than payment or
performance) based upon any claim the Guarantor may have against the Lessor or
each Guaranteed Subsidiary or any other Person, and shall remain in full force
and effect without regard to, and shall not be released, discharged or in any
way affected by any circumstance or condition (whether or not the Guarantor
shall have any knowledge or notice thereof) whatsoever which might constitute a
legal or equitable discharge or defense including, but not limited to, (a) any
express or implied amendment or modification of or supplement to the Guaranteed
Agreements or any other agreement referred to in either thereof, or any other
instrument applicable to each Guaranteed Subsidiary or to the Obligations, or
any part thereof, or any assignment or transfer of any
thereof; (b) any failure on the part of each Guaranteed Subsidiary to perform or
comply with the Guaranteed Agreements or any failure of any other Person to
perform or comply with any term of the Guaranteed Agreements, or any other
agreement as aforesaid; (c) any waiver, consent, change, extension, indulgence
or other action or any action or inaction under or in respect of the Guaranteed
Agreements, or any other agreement as aforesaid, or this Guaranty, whether or
not the Lessor, each Guaranteed Subsidiary or the Guarantor has notice or
knowledge of any of the foregoing; (d) any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or similar
proceeding with respect to the Guarantor or each Guaranteed Subsidiary , or
their respective properties or their creditors, or any action taken by any
trustee or receiver or by any court in any such proceeding; (e) any furnishing
or acceptance of additional security or any release of any security (and the
Guarantor authorized the Lessor to furnish, accept or release said security);
(f) any limitation on the liability or Obligations of each Guaranteed Subsidiary
under the Guaranteed Agreements (other than any limitation expressly provided
for therein) or any termination, cancellation, frustration, invalidity or
unenforceability, in whole or in part, of the Guaranteed Agreements, or any term
of any thereof; (g) any lien, charge or encumbrance on or affecting the
Guarantor's or any of each Guaranteed Subsidiary's respective assets and
properties; (h) any act, omission or breach on the part of the Lessor under the
Guaranteed Agreements, or any other agreement at any time existing between the
Lessor and each Guaranteed Subsidiary or any other law, governmental regulation
or other agreement applicable to the Lessor or any Obligation; (i) any claim as
a result of any other dealings among the Lessor, the Guarantor or each
Guaranteed Subsidiary or any of them; (j) the assignment of the Guaranteed
Agreements by the Lessor to any other Person, or the assignment of this Guaranty
by the Lessor to any Person permitted under Section 6 of that certain
Guarantor's Consent dated as of the date hereof among the Guarantor, the Lessor
and The Dai-Ichi Kangyo Bank, Lt., New York Branch; or (k) any change in the
name of the Lessor, each Guaranteed Subsidiary or any other person referred to
herein.
The unconditional obligations of the Guarantor set forth herein
constitute the full recourse obligations of the Guarantor enforceable against it
to the full extent of all of its assets and properties.
3. WAIVER. The Guarantor unconditionally waives: (a) notice of any
of the matters referred to in Section 2 hereof; (b) all notices which may be
required by statute, rule of law or otherwise to preserve any rights against the
Guarantor hereunder, including, without limitation, notice of the acceptance of
this Guaranty, or the creation, renewal, extension, modification or accrual of
the Obligations or notice of any other matters relating thereto, any
presentment, demand, notice of dishonor, protest, nonpayment of any damages or
other amounts payable under
the Guaranteed Agreements; (c) any requirement for the enforcement, assertion or
exercise of any right, remedy, power or privilege under or in respect of the
Guaranteed Agreements, including, without limitation, diligence in collection or
protection of or realization upon the Obligation or any part thereof or any
collateral thereof; (d) any requirement of diligence; (e) any requirement to
mitigate the damages resulting from a default by each Guaranteed Subsidiary
under the Guaranteed Agreements; (f) the occurrence of every other condition
precedent to which the Guarantor or each Guaranteed Subsidiary may otherwise be
entitled; and (g) the right to require the Lessor to proceed against each
Guaranteed Subsidiary or any other Person, or to pursue any other remedy in the
Lessor's power whatsoever, and the Guarantor waives the right to have the
property of each Guaranteed Subsidiary first applied to the discharge of the
Obligations.
The Lessor may, at its election, exercise any right or remedy it may
have against each Guaranteed Subsidiary or any security held by the Lessor,
including, without limitation, the right to foreclose upon any such security by
judicial or nonjudicial sale, without affecting or impairing in any way the
liability of the Guarantor hereunder, except to the extent the Obligations have
been paid, and the Guarantor waives any defense arising out of the absence,
impairment or loss of any right of reimbursement, contribution or subrogation or
any other right or remedy of the Guarantor against each Guaranteed Subsidiary or
any such security, whether resulting from such election by the Lessor or
otherwise. The Guarantor waives any defense arising by reason of any disability
or other defense of each Guaranteed Subsidiary or by reason of the cessation
from any cause whatsoever of the liability, either in whole or in part, of each
Guaranteed Subsidiary to the Lessor for the Obligations. The Guarantor
understands that the liability of each Guaranteed Subsidiary to the Lessor for
the Obligations may be secured by real property and that the Guarantor shall be
liable for the full amount of its liability hereunder notwithstanding
foreclosure on such real property by trustee sale or any other reason impairing
the Guarantor's right to proceed against each Guaranteed Subsidiary. The
Guarantor hereby waives, to the fullest extent permitted by law, all rights and
benefits under section 2809 of the California Civil code purporting to reduce a
guarantor's obligation in proportion to the principal obligation, all rights and
benefits under section 580a of the California Code of Civil Procedure governing
determination of fair market value following the exercise of power of sale, all
rights and benefits under section 580b of the California Code of Civil Procedure
stating that no deficiency may be recovered on a real property purchase money
obligation and all rights and benefits under section 580d of the California Code
of Civil Procedure stating that no deficiency may be recovered on a note secured
by a deed of trust on real property in case such real property is sold under the
power of sale contained in such deed of trust, and all rights and benefits under
section 726 of the California Code of Civil Procedure and
any and all similar laws now in effect or hereafter enacted in the State of
California regarding the procedures to be followed by a creditor with real
property security and/or limiting the right of such a creditor to a deficiency
judgment, including, without limitation, the California law now in effect
stating that the Lessor must first proceed against any real property collateral
before commencing an action to collect the Obligations, if such sections, or any
of them, have any application hereto or any application to the Guarantor. The
Guarantor expressly waives any and all benefits under the California Civil Code
section 2808, 2810, 2819, 2821, 2825, 2839, 2845 through 2850, 2854 and 2855.
The Guarantor understands that the Lessor's exercise of certain rights
and remedies contained in the Guaranteed Agreements may affect or eliminate the
Guarantor's rights of subrogation against each Guaranteed Subsidiary and that
the Guarantor may therefore incur partially or totally nonreimbursable liability
hereunder; nevertheless, the Guarantor hereby authorizes and empowers the
Lessor, its successors, endorsees and/or assignees, to exercise in its or their
sole discretion, any rights and remedies, or any combination thereof, which may
then be available, it being the purpose and intent of the Guarantor that its
obligations hereunder shall be absolute, independent and unconditional under any
and all circumstances.
The Guarantor assumes the responsibility for being and keeping
informed of the financial condition of each Guaranteed Subsidiary and of all
other circumstances bearing upon the risk of nonpayment of the Obligations and
agrees that the Lessor shall not have any duty to advise the Guarantor of
information regarding any condition or circumstance or any change in such
condition or circumstance. The Guarantor acknowledges that the Lessor has not
made any representation to the Guarantor concerning the financial condition of
each Guaranteed Subsidiary.
4. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR. The Guarantor
represents and warrants to the Lessor that:
(a) CORPORATE EXISTENCE; COMPLIANCE WITH LAW. The Guarantor (i) is
duly organized, validly existing and in good standing under the laws of the
State of Delaware, (ii) has the corporate power, authority and legal right to
own or operate its properties or to lease the properties it operates and to
conduct the business in which it is currently engaged and (iii) is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except where such failure
to qualify would not have a material adverse effect of the financial condition
or business of Guarantor and its subsidiaries, taken as a whole.
(b) CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The
Guarantor has the corporate power, authority
and legal right to make, deliver and perform this Guaranty and has taken all
necessary corporate action to authorize the execution, delivery and performance
of this Guaranty. No consent of any other Person (including, without
limitation, stockholders and creditors of the Guarantor), and no authorization
of, notice to, or other act by or in respect of the Guarantor by or with any
governmental authority, agency or instrumentality is required in connection with
the execution, delivery, performance, validity or enforceability of this
Guaranty. This Guaranty has been duly executed and delivered on behalf of the
Guarantor and constitutes a legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms.
(c) NO LEGAL BAR. The execution, delivery and performance by the
Guarantor of this Guaranty will not violate any provision of any existing law or
regulation applicable to the Guarantor or of any award, order or degree
applicable to the Guarantor of any court, arbitrator or governmental authority,
or of the Certificate of Incorporation or By-Laws of the Guarantor, or of any
security issued by the Guarantor or of any material mortgage, indenture, lease,
contract or other agreement or undertaking to which the Guarantor is a party or
by which the Guarantor or any of its properties or assets may be bound.
(d) NO MATERIAL LITIGATION. There is no action, suit, proceeding or
investigation at law or in equity by or before any court, governmental body,
agency, commission or other tribunal now pending or, to the best knowledge of
Guarantor threatened, against or affecting the Guarantor or any of its property
or rights which questions the enforceability of this Guaranty or which, if
adversely determined, would have a material adverse impact on the financial
condition or business of the Guarantor and its subsidiaries, taken as a whole
or, which if adversely determined, would materially impair the ability of the
Guarantor to perform its obligations hereunder.
(e) ERISA. The Guarantor has not established and does not maintain
or contribute to any employee benefit plan that is covered by Title IV of the
Employee Retirement Income Security Act of 1974, as amended.
(f) GUARANTEED SUBSIDIARY. The Guarantor owns and will continue to
own directly or indirectly, not less than 90% of the issued and outstanding
shares of capital stock of each Guaranteed Subsidiary. All such shares have
been validly issued, are fully paid and non-assessable and are free and clear of
any liens or encumbrances.
5. PAYMENTS. Each payment by the Guarantor to the Lessor under
this Guaranty shall be made by transferring the amount thereof in immediately
available funds without set-off or counterclaim; provided that, no such payment
shall be deemed a waiver of any rights the Guarantor may have.
6. PARTIES. This Guaranty shall inure to the benefit of the Lessor
and its successors, assigns or transferees, and shall be binding upon the
Guarantor and its successors and assigns. The Guarantor may not delegate any of
its duties under this Guaranty without the prior written consent of the Lessor
or any Person to whom the Lessor has assigned this Guaranty. Upon notice to the
Guarantor, the Lessor and its successors, assigns and transferees may assign its
or their rights and benefits under this Guaranty to any financial institution
providing financing to the Lessor in connection with the Guaranteed Agreements.
7. NOTICES. All notices, demands and other communications between
the Lessor and the Guarantor under this Guaranty shall be in writing and shall
be delivered or sent to the address or telecopier number shown below, or to such
other address or telecopier number as either of us may be written notice to the
other have designated for such purpose. Any such notice, demand or other
communication shall not be effective until actually received.
If to the Lessor:
c/o ML Leasing Equipment Corp. -
Project and Lease Finance Group
World Financial Center
North Tower - 27th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With a copy of each such notice to be simultaneously given,
delivered or served to Xxxx Xxxxxx at the following address:
ML Leasing Equipment Corp.
Controllers Office
World Financial Center
South Tower - 8th Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx XxXxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
If to the Guarantor:
Silicon Graphics, Inc.
0000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Treasury, Mail Stop 6U-645
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Overnight Courier Address:
0000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
with a copy to:
Silicon Graphics, Inc.
0000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Legal Services, Mail Stop 6U-710
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Overnight Courier Address:
0000 X. Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000-0000
8. REMEDIES. The Guarantor stipulates that the remedies at law in
respect of any default or threatened default by the Guarantor in the performance
of or compliance with any of the terms of this Guaranty are not and will not be
adequate, and that any of such terms may be specifically enforced by a decree
for specific performance or by an injunction against violation of any such terms
or otherwise.
9. RIGHTS TO DEAL WITH EACH GUARANTEED SUBSIDIARY. At any time and
from time to time, without terminating, affecting or impairing the validity of
this Guaranty or the obligations of the Guarantor hereunder, the Lessor may deal
with each Guaranteed Subsidiary in the same manner and as fully and as if this
Guaranty did not exist and shall be entitled, among other things, to grant each
Guaranteed Subsidiary, without notice or demand and without affecting the
Guarantor's liability hereunder, such extension or extensions of time to
perform, renew, compromise, accelerate of otherwise change the time for payment
of or otherwise change the terms of payment or any part thereof contained in or
arising under the Guaranteed Agreements, or to waive any Obligation of each
Guaranteed Subsidiary to perform, any act or acts as the Lessor may deem
advisable.
10. SUBROGATION. The Guarantor irrevocably waives any and all rights
to which it may be entitled, by operation of law or otherwise, upon making any
payment hereunder to be subrogated to the rights of the payee against each
Guaranteed Subsidiary with respect to such payment or otherwise to be
reimbursed, indemnified or exonerated by each Guaranteed Subsidiary in respect
thereof.
11. GUARANTOR'S COVENANTS. The Guarantor hereby covenants and agrees
that until the Obligations and all obligations of the Guarantor under this
Guaranty have been paid or discharges in full:
(a) COMPLIANCE WITH LAW. The Guarantor shall comply, and shall cause
each of its subsidiaries to comply, in all material respects with all applicable
laws, rules, regulations and orders of any governmental authority having
jurisdiction over its or such subsidiary's business, as the case may be, except
(i) such noncompliance as would not materially adversely affect the financial
condition or business of the Guarantor and its subsidiaries, taken as a whole,
or (ii) such noncompliance as is being contested in good faith or as to which a
bona fide dispute may exist.
(b) PAYMENT OF TAXES. The Guarantor shall, and shall cause each of
its subsidiaries to, pay and discharge all taxes, assessments and governmental
charges or levies imposed upon it or such subsidiary or upon its or such
subsidiary's income or properties, as the case may be, prior to the date on
which penalties attached thereto, except to the extent that (i) any such tax,
assessment, charge or levy is being contested in good faith by appropriate
proceedings and adequate reserves therefor have been established by the
Guarantor or such subsidiary, as the case may be, or (ii) the failure so to pay
or discharge any such tax, assessment, charge or levy would not materially
adversely affect the financial condition or business of the Guarantor and its
subsidiaries, taken as a whole.
(c) MAINTENANCE OF INSURANCE. The Guarantor shall maintain, and
shall cause each of its subsidiaries to maintain, with financially sound and
reputable independent insurers, insurance with respect to its or such
subsidiary's properties and business, as the case may be, against loss or damage
of the kinds customarily insured against by entities engaged in the same or
similarly situated business, of such types and in such amounts as are
customarily carried under similar circumstances by such other entities;
provided, however, that this subsection shall not be construed as requiring the
Guarantor to maintain or cause to be maintained earthquake, errors and
omissions, directors' and officers' or professional liability insurance.
12. SURVIVAL OF REPRESENTATIONS, WARRANTIES, ETC. All
representations, warranties, covenants and agreements made herein and in
statements or certificates delivered pursuant hereto shall survive any
investigation or inspection made by or on behalf of the Lessor and shall
continue in full force and effect until all of the obligations of the Guarantor
under this Guaranty shall be fully performed in accordance with the terms
hereof, and until the payment in full of all sums payable by each Guaranteed
Subsidiary under the Guaranteed Agreements, and until performance
in full of all obligations of each Guaranteed Subsidiary in accordance with the
terms and provisions of such agreements.
13. GOVERNING LAW AND CONSENT OT JURISDICTION; WAIVER OF JURY TRIAL.
(A) THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK. THE GUARANTOR HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND ANY COURT IN THE STATE OF NEW YORK LOCATED IN THE CITY
AND COUNTY OF NEW YORK IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
RELATED TO OR IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
THEREBY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE GUARANTOR HEREBY
WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN
ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT
OT THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS
BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR
PROCEEDING IS IMPROPER, OR THAT THIS GUARANTY OR ANY DOCUMENT OR ANY INSTRUMENT
REFERRED TO HEREIN OR THE SUBJECT MATTER HEREOF MAY NOT BE LITIGATED IN OR BY
SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE GUARANTOR AGREES
NOT TO SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF THE JUDGMENT OF ANY
SUCH COURT BY ANY COURT OF ANY OTHER NATION OR JURISDICTION WHICH MAY BE CALLED
UPON TO GRANT AN ENFORCEMENT OF SUCH JUDGMENT. THE GUARANTOR AGREES THAT
SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE
ADDRESS FOR NOTICE SET FORTH IN THIS GUARANTY OR ANY METHOD AUTHORIZED BY THE
LAWS OF NEW YORK.
(b) The parties hereto knowingly, voluntarily and expressly waive all
right to trial by jury in any action, proceeding or counterclaim enforcing or
defending any rights arising out of or relating to this Guaranty or the
transactions contemplated hereby. The Guarantor acknowledges that the
provisions of this Section 13(b) have been bargained for and that it has been
represented by counsel in connection therewith.
14. MISCELLANEOUS. If any term of this Guaranty or any application
thereof shall be invalid or unenforceable, the remainder of this Guaranty and
any other application of such term shall not be affected thereby. Any term of
this Guaranty may be amended, waived, discharged or terminated only by an
instrument in writing signed by the Guarantor and the Lessor. The headings in
this Guaranty are for purposes of reference only and shall not limit or define
the meaning hereof. This Guaranty may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned have caused this Guaranty to be
executed and delivered as of the date first above written.
SILICON GRAPHICS, INC.
as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President,
Finance and Chief Financial
Officer
By: /s/ Xxx Xxxxxx
------------------
Name: Xxx Xxxxxx
Title: Vice President, Finance
Acknowledged and Agreed:
VIRTUAL FUNDING, LIMITED PARTNERSHIP
By: Virtual Capital, Inc.
General Partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and
Assistant Secretary
