GUARANTY
THIS GUARANTY (the "Guaranty") is made and delivered by SIMPLE
TECHNOLOGY, INC., a CALIFORNIA corporation (the "Guarantor") for the benefit
of Lyon Credit Corporation (the "Guaranteed Party") to induce Guaranteed
Party to enter into that certain Security Agreement No. 30-00016 with MDC
LAND CORPORATION (the "Obligor") dated as of even date herewith (the
"Security Agreement").
WITNESSETH
1. GUARANTY. (a) Guarantor (and each of them if there are more than one)
for valuable consideration, the receipt whereof is hereby acknowledged,
jointly and severally irrevocable guarantees due and punctual payment and
performance to Guaranteed Party at its office at 0000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, or at such other place as Guaranteed Party shall
from time to time advise in writing, on demand, in lawful money of the United
States, of any and all Indebtedness (as defined below) of Obligor no matter
how acquired by Guaranteed Party.
(b) For the purposes of this Guaranty, "Indebtedness" shall
include, but is not limited to, Indebtedness of Obligor as defined in the
Security Agreement, any and all advances, loans, debts, lease obligations,
performance obligations, notes, security agreements and liabilities of
Obligor, heretofore, now, or hereafter made, entered into, incurred, created
or owing, whether voluntary or involuntary and however arising, whether due
or not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, and whether Obligor may be liable individually or jointly with
others, or whether recovery upon such Indebtedness may be or hereafter become
barred by any statute of limitations, or whether such Indebtedness may be or
hereafter become otherwise unenforceable. This Guaranty is a guaranty of
payment and performance and not of collection.
(c) This Guaranty is a continuing guaranty relating to any
Indebtedness, including Indebtedness arising under
successive transactions which shall either continue the Indebtedness, renew
it from time to time after it has been satisfied or create new Indebtedness.
(d) The obligations hereunder are joint and several,
independent of the obligations of Obligor or the obligations of any other
persons or guarantors who may be liable to Guaranteed Party in whole or in
part for the Indebtedness, and a separate action or actions may be brought
and prosecuted against Guarantor or any of them (if there are more than one)
whether action is brought against Obligor alone or whether Obligor be joined
in any such action or actions, and Guarantor waives the benefit of any
statute of limitations affecting its liability hereunder or the enforcement
thereof.
2. OBLIGATIONS UNCONDITIONAL. Guarantor's obligations hereunder shall be
unconditional (and shall not be subject to any defense, setoff, counterclaim
or recoupment whatsoever) irrespective of the genuineness, validity,
regularity or enforceability of the Indebtedness or the Security Agreement or
any conduct of Obligor and/or Guaranteed Party which might constitute a legal
or equitable discharge of a surety, guarantor or guaranty and shall remain in
full force and effect without regard to any circumstance whatsoever (whether
or not Guarantor shall have any knowledge or notice thereof), including,
without limitation: (i) any failure, omission or delay on the part of Obligor
or Guaranteed Party to conform or comply with any term of the Security
Agreement; (ii) any waiver, consent, extension, indulgence, compromise,
release or other action or inaction under or in respect of the Security
Agreement or any obligation or liability of Obligor or Guaranteed Party, or
any exercise or non-exercise of any right, remedy, power or privilege under
or in respect to any such instrument or agreement or any such obligation or
liability; (iii) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, liquidation or similar proceeding with respect to Obligor or
Guaranteed Party or any of their respective properties, or any action taken
by any trustee or receiver or by any court in any such proceeding; (iv) any
merger or consolidation of Obligor or Guarantor into or with any other
corporation or any sale, lease or transfer of all or any of the assets of
Obligor or Guarantor to any other entity; or (v) any change in the ownership
of Obligor. The obligations of Guarantor set forth herein constitute full
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recourse obligations of Guarantor enforceable against him to the full extent
of all his assets and properties. Without limiting the generality of the
foregoing, Guarantor agrees that (i) repeated and successive demands may be
made and recoveries may be had hereunder as and when, from time to time,
Obligor shall default under or fail to comply with the terms of the Security
Agreement and that notwithstanding the recovery hereunder for or in respect
of any given default or failure to so comply by Obligor under the Security
Agreement, this Guaranty shall remain in force and effect and shall apply to
each and every subsequent default, and (ii) in the event that any
Indebtedness is paid by Obligor, and thereafter all or any part of such
payment is recovered from Guaranteed Party to whom paid, as a preferential or
fraudulent transfer under the Federal Bankruptcy Code, any applicable state
insolvency law, or any other similar Federal or state law now or hereafter in
effect, the liability of Guarantor hereunder with respect to such
Indebtedness so paid and recovered shall continue and remain in full force
and effect as if, to the extent of such recovery, such payment had not been
made. If (i) an event permitting the exercise of remedies under the Security
Agreement shall at any time have occurred and be continuing and (ii) such
exercise, or any consequences thereof provided in the Security Agreement
shall at any time be prevented by reason of the pendency against Obligor of a
case or proceeding under the bankruptcy or insolvency law, Guarantor agrees
that, solely for purposes of this Guaranty and its obligations hereunder, the
Security Agreement shall be deemed to have been declared in default and all
amounts thereunder shall be deemed to be due and payable, with all the
attendant consequences as provided in the Security Agreement, as if
declaration of default and the consequence thereof had been accomplished in
accordance with the terms thereof, and Guarantor shall forthwith pay any
amounts guaranteed hereunder.
3. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and warrants
that (a) Guarantor is duly organized and validly existing in good standing
under the laws of the State of CALIFORNIA and has all requisite corporate
power and authority to enter into and perform its obligations provided under
this Guaranty, (b) this Guaranty has been duly authorized by all necessary
corporate action, and has been duly executed and delivered by Guarantor and
is a legal, valid and binding obligation of Guarantor, enforceable in
accordance with its terms
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except as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors rights generally and general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or at law, (c) the execution and delivery by Guarantor of this
Guaranty is not, and the performance by it of its obligations hereunder will
not be, inconsistent with Guarantor's other activities, do not and will not
contravene any law, governmental rule or regulation, judgment or order
applicable to Guarantor, and do not and will not contravene any provision of,
or constitute a default under, its certificate of incorporation or bylaws or
any indenture, mortgage, contract or other instrument to which Guarantor is a
party or by which it is bound, (d) no consent or approval of, giving of
notice to, registration with, or taking of any other action in respect to or
by, any Federal, national, state or local governmental authority or agency or
other entity is required with respect to the execution, delivery and
performance by Guarantor of this Guaranty, or if any such approval, notice,
registration or action is required, it has been duly given or obtained, (e)
there are no suits or proceedings pending or threatened in any court or
before any commission, board or other administrative agency against or
affecting Guarantor, which will have a material adverse effect on the ability
of Guarantor to fulfill its obligations under this Guaranty.
3A. EXISTENCE, ETC. Guarantor agrees that, so long as this Guaranty is in
effect, Guarantor shall (i) preserve and maintain its corporate existence,
(ii) preserve and maintain all of its material rights, privileges and
franchises, except where the failure to preserve and maintain any such right,
privilege or franchise would not materially and adversely affect the ability
of Guarantor to perform its obligations under this Guaranty; and (iii) comply
with all the requirements of all applicable laws, rules, regulations and
orders of governmental or regulatory authorities except where the failure to
comply with any such requirement would not materially and adversely affect
the ability of Guarantor to perform its obligations under this Guaranty.
4. CERTAIN RIGHTS AND POWERS OF GUARANTEED PARTY. (a) Guarantor authorizes
Guaranteed Party, without notice or consent and without affecting, impairing
or discharging in whole or in part its
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liability hereunder, from time to time to (i) renew, modify, amend,
compromise, extend, accelerate, discharge or otherwise change the time for
payment of, or otherwise change the terms or provisions of the Indebtedness
or any part thereof, including increase or decrease of the rate of interest
thereon; (ii) take and hold security for the payment of this Guaranty or the
Indebtedness guaranteed, and exchange, enforce, waive, and release any such
security; (iii) apply such security and direct the order or manner of sale
thereof as Guaranteed Party in its discretion may determine; and (iv) release
or substitute in whole or in part any one or more of the endorsers, Guarantor
or anyone else who may be partially or wholly liable for any part of the
Indebtedness. Guaranteed Party may without notice assign this Guaranty in
whole or in part. At the option of Guaranteed Party and upon notice to
Guarantor, Guarantor may be joined in an action or proceeding commenced by
Guaranteed Party against Obligor in respect of any Indebtedness.
(b) Guaranteed Party shall have a lien and security interest
upon and a right of setoff against all moneys, securities and other property
of Guarantor now or hereafter in the possession of Guaranteed Party whether
held in a special account, for safekeeping or otherwise; and every lien and
security interest and right of setoff may be exercised without demand upon
Guarantor or notice by Guaranteed Party. No lien or right of setoff may be
deemed to have been waived by any act or conduct on the part of Guaranteed
Party or by any neglect to exercise such right of setoff or to enforce such
lien or security interest or by any delay in so doing, and every right of
setoff, lien or security interest and shall continue in full force and effect
until such right of setoff, lien or security interest is specifically waived
or released by an instrument in writing executed by Guaranteed Party.
(c) Any Indebtedness of Obligor now or hereafter held by or
owing to Guarantor is hereby subordinated to the Indebtedness of Obligor to
Guaranteed Party; and such Indebtedness of Obligor to Guarantor, if
Guaranteed Party so requests, shall be collected, enforced and received by
Guarantor as trustee for Guaranteed Party and be paid over to Guaranteed
Party on account of the Indebtedness of Obligor to Guaranteed Party but
without reducing or affecting in any manner the liability of Guarantor
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under the other provisions of this Guaranty. In the event of any
distribution, division or application, partial or complete, voluntary or
involuntary, by operation of law or otherwise, of all or any part of the
assets of Obligor or the proceed thereof to the creditors of Obligor, or upon
any Indebtedness of Obligor, by reason of dissolution, liquidation or other
winding up of Obligor or its business, or compromise or settlement with its
creditors, or any sale, receivership, insolvency or bankruptcy proceeding or
assignment for the benefit of creditors, or any proceeding by or against
Obligor for any relief under any provisions of the Federal Bankruptcy Code,
any applicable state insolvency law, or any other similar Federal or state
law now or hereafter in effect, then and in any such event any payment or
distribution of any kind or character, which shall be payable or deliverable
with respect to any and all Indebtedness due to Guarantor by Obligor, shall
be paid or delivered directly to Guaranteed Party for application on any
Indebtedness to Guaranteed Party until such Indebtedness shall have been
first and fully paid. Guarantor hereby sells, assigns, transfers and sets
over to Guaranteed Party all of its rights to any and all such distributions.
5. WAIVER OF DEMANDS, NOTICES AND CERTAIN RIGHTS OF GUARANTOR. Guarantor
waives any right to require Guaranteed Party to (a) proceed with or exhaust
remedies against Obligor; (b) proceed against or exhaust any security held
from Obligor or Guarantor; (c) pursue any other remedy available to
Guaranteed Party whatsoever; or (d) proceed against any other persons or
guarantors who may be liable to Guaranteed Party in whole or in part for the
Indebtedness. Guarantor waives any defense arising by reason of any
disability or other defense of Obligor or by reason of the cessation or
modification from any cause whatsoever of the liability of Obligor. Guarantor
shall have no right to subrogation, and waives any right to enforce any
remedy which Guaranteed Party now has or may hereafter have against Obligor,
and waives any benefit of, and any right to participate in any security now
or hereafter held by Guaranteed Party. Guarantor waives diligence, all
presentments, demands for performance, notices of non-performance, default,
protests, notices of protest, notices of dishonor, notices of acceptance of
this Guaranty and of the existence, creation, or incurring of new, changes,
modified, increased or additional Indebtedness, all other notices of every
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and any kind. Guarantor hereby further agrees that no payment or performance
hereunder by Guarantor shall give rise to any claim of Guarantor against
Guaranteed Party.
(a) Where there is but a single Obligor, or where a single
Guarantor executes this Guaranty, then all words used herein in the plural
shall be deemed to have been used in the singular where the context and
construction so require; and when there is more than one Obligor named
herein, or when this Guaranty is executed by more than one Guarantor, the
words "Obligor" and "Guarantor" respectively shall mean all and any one or
more of them.
(b) Guarantor agrees to pay on demand to Guaranteed Party all
costs and expenses of collection (including, without limitation, the fees and
disbursements of counsel) incident to the enforcement, protection on
preservation of any right or claim of Guaranteed Party under this Guaranty
against Guarantor as a result of breach of this Guaranty by Guarantor.
(c) If any provision of this Guaranty shall contravene or be
invalid under applicable law or regulation (including Federal law and
regulation), such contravention or invalidity shall not affect the entire
Guaranty, the provisions held to be invalid to be deemed deleted or modified
and the Guaranty interpreted and construed as though such invalid provision
or provisions were not part hereof or conformed thereto.
(d) Guaranteed Party may give notice to Guarantor or make a
request of Guarantor in the U.S. mail, first class postage prepaid, addressed
to Guarantor at its address below, or an address furnished by Guarantor to
Guaranteed Party. All notices to be given by Guarantor hereunder shall be
deemed adequately given if sent by registered or certified mail to Guaranteed
Party at the address of Guaranteed Party stated herein, or at such other
place as Guaranteed Party may designate to Guarantor in writing.
(e) This Guaranty shall be binding upon successors and assigns
of Guarantor, but no assignment hereof, or of any right to any funds due or
to become due under this Guaranty, shall in any event relieve Guarantor of
its obligations hereunder.
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(f) This Guaranty constitutes the entire agreement of the
parties with respect to the subject matter hereof. ANY VARIATION OR
MODIFICATION OF THIS GUARANTY AND ANY WAIVER OF ANY OF ITS PROVISIONS SHALL
NOT BE VALID UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED OFFICER OR MANAGER
OF GUARANTEED PARTY.
(g) GUARANTOR WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
LITIGATION ARISING HEREFROM OR IN RELATION HERETO.
(h) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, Guarantor (and each of them if there are more
than one), has caused this Guaranty to be executed and delivered by its
officer hereunder duly authorized independent of any other party and not
relying upon or in consideration of the execution hereof by any other party,
this 5TH day of MARCH, 1996.
SIMPLE TECHNOLOGY, INC.
By: [ILLEGIBLE]
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Name: Xxxx Xxxxxxxxx
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Title: COO
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ATTEST
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
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Title: Manager of Financial Reporting
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(Seal)
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