EXHIBIT 10.51
AMENDED AND RESTATED CONTINUING GUARANTY
OBLIGOR: MTI TECHNOLOGY B.V., A COMPANY ORGANIZED UNDER THE LAWS OF
THE NETHERLANDS AND SUCCESSOR-IN-INTEREST TO SUBSTANTIALLY
ALL OF THE ASSETS AND LIABILITIES OF MTI TECHNOLOGY IRELAND,
LTD.
GUARANTOR: MTI TECHNOLOGY CORPORATION
DATE: NOVEMBER 8, 2001
THIS AMENDED AND RESTATED CONTINUING GUARANTY (THIS "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 ("Lender"), with an address for
purposes of notices hereunder at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
00000, with respect to the Indebtedness of the above-named obligor ("Obligor").
Guarantor previously entered into a Loan and Security Agreement, dated as of
July 22, 1998 (as amended prior to the date hereof, the "Original Loan
Agreement") with Lender and GENERAL ELECTRIC CAPITAL CORPORATION ("GECC")
(Lender and GECC are hereinafter collectively referred to as "Old Lenders"), and
in connection therewith, Guarantor executed and delivered to Old Lenders that
certain Continuing Guaranty, dated as of February 20, 2001 (as amended (if at
all) prior to the date hereof, the "Original Guaranty"). GECC ceased to be a
"Lender" under the Original Loan Agreement and the Original Guaranty from and
after September 22, 2001 and, from and after such date, Lender is the sole
remaining "Lender" under the Original Loan Agreement and the Original Guaranty.
Guarantor and Lender amended and restated the Original Loan Agreement in its
entirety by that certain Amended and Restated Loan and Security Agreement dated
as of October 29, 2001 (as amended, restated, supplemented, or otherwise
modified from time to time, the "Loan Agreement"). MTI Technology Ireland, Ltd.
("Irish Sub") has assigned to Obligor, and Obligor has assumed from Irish Sub,
all of the obligations of Irish Sub owing to Lender. Accordingly, pursuant to
the Loan Agreement and in connection with such assignment and assumption,
Guarantor and Lender hereby amend and restate the Original Guaranty in its
entirety as follows:
1. CONTINUING GUARANTY. Guarantor hereby unconditionally guarantees and
promises to pay on demand to Lender, at the address indicated above, or at such
other address as Lender may direct, in lawful money of the United States, and to
perform for the benefit of Lender, all Indebtedness of Obligor now or hereafter
owing to or held by Lender. 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 Obligor or any one or more of them, heretofore,
now, or hereafter made, incurred, or created, whether directly to Lender or
acquired by Lender by assignment or otherwise, or held by Lender 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 Obligor 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 Obligor, 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 "Obligor" shall include any successor to the
business and assets of Obligor, and shall also include Obligor in its capacity
as a debtor or debtor in possession under the federal Bankruptcy Code, and any
trustee, custodian or receiver for Obligor or any of its assets, should Obligor
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 Lender to Obligor in
Lender's sole discretion, but Guarantor acknowledges and agrees that acceptance
by Lender of this Guaranty shall not constitute a commitment of any kind by
Lender to extend such credit or other financial accommodation to Obligor or to
permit Obligor to incur
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Indebtedness to Lender. 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.
* (INCLUDING WITHOUT LIMITATION THE OBLIGATIONS OF OBLIGOR TO LENDER WITH
RESPECT TO ANY FOREIGN EXCHANGE FORWARD CONTRACTS BETWEEN LENDER AND OBLIGOR OR
ANY FOREIGN EXCHANGE FORWARD CONTRACTS BETWEEN LENDER AND IRISH SUB AS ASSUMED
BY OBLIGOR)
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 Obligor'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 Lender and Obligor 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 Lender to
institute suit against, or to exhaust its rights and remedies against, Obligor
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 Lender or any indebtedness of Lender to Obligor, or to
exercise any other right or power, or pursue any other remedy Lender may have;
(c) any defense arising by reason of any disability or other defense of Obligor
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 Obligor 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 Lender
or others which directly or indirectly results in the discharge or release of
Obligor 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 Lender to obtain, perfect, maintain or keep
in force any security interest in, or lien or encumbrance upon, any property of
Obligor or any other person; (e) any defense based upon any failure of Lender 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 Lender 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 Lender 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 Obligor 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 Lender for repayment or recovery of any amount or amounts
received by Lender 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 Lender repays
all or part of said amount by reason of any judgment, decree or order of any
court or administrative body having jurisdiction over Lender or any of its
property, or by reason of any settlement or compromise of any such claim
effected by Lender with any such claimant (including without limitation the
Obligor), 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 Lender under this Guaranty for the amount so repaid or recovered, to the same
extent as if such amount had never originally been received by Lender, 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 Obligor, and all rights of recourse to any
assets or property of Obligor, 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 Obligor 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 Lender, nor any of its
directors, officers, employees, agents, attorneys or any other person affiliated
with or representing Lender 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 Lender,
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or any of its directors, officers, employees, agents, attorneys or any other
person affiliated with or representing Lender.
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, Lender may, from time to time before or after
revocation of this Guaranty, do any one or more of the following in Lender'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 Obligor 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 Lender 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 Obligor, 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 Lender 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 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 Lender determines in its sole discretion, regardless of whether or not
such Indebtedness is secured or is due and payable. Guarantor consents and
agrees that Lender 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 Lender 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, Lender 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. Lender's books and records showing the account between it
and the Obligor shall be admissible in evidence in any action or proceeding as
prima facie proof of the items therein set forth. Lender's monthly statements
rendered to the Obligor shall be binding upon the Guarantor (whether or not the
Guarantor receives copies thereof), and shall constitute an account stated
between Lender and the Obligor, unless Lender receives a written statement of
the Obligor's exceptions within 30 days after the statement was mailed to the
Obligor. The Guarantor assumes full responsibility for obtaining copies of such
monthly statements from the Obligor, 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, Lender 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
Obligor 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) Lender may collect from the Guarantor without first foreclosing on any real
or personal property collateral pledged by the Obligor. (2) If Lender forecloses
on any real property collateral pledged by the Obligor: (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) Lender may collect from the Guarantor even if Lender, by foreclosing
on the real property collateral, has destroyed any right the Guarantor may have
to collect from the Obligor. 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) Lender may collect from the
Guarantor without first foreclosing on any real or personal property collateral
pledged by the other guarantor. (2) If Lender
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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) Lender may collect from the Guarantor even if Lender,
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 Lender, 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 Lender by Obligor or 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) Obligor
or Guarantor shall fail to pay or perform when due all or any part of the
Indebtedness; or (c) Guarantor shall fail to pay or perform when due any
indebtedness or obligation of Guarantor to Lender or to any parent, subsidiary
or corporate affiliate of Lender, whether under this Guaranty or any other
instrument, document, or agreement heretofore or hereafter entered into; or (d)
there occurs in Lender's judgment a material impairment of the prospect of
payment or performance of any or all of the Indebtedness; or (e) any event shall
occur which may or does result in the acceleration of the maturity of any
indebtedness of Obligor or Guarantor to others (regardless of any requirement of
notice, opportunity to cure or other condition prior to the exercise of any
right of acceleration); or (f) Obligor or Guarantor shall fail promptly to
perform or comply with any term or condition of any agreement with any third
party which does or may result in a material adverse effect on the business of
Obligor or Guarantor; or (g) there shall be made or exist any levy, assessment,
attachment, seizure, lien, or encumbrance for any cause or reason whatsoever
upon all or any part of the property of Obligor or Guarantor (unless discharged
by payment, release or bond not more than ten days after such event has
occurred); or (h) there shall occur the dissolution, termination of existence,
insolvency, or business failure of Obligor or Guarantor, or the appointment of a
receiver, trustee or custodian for Obligor or Guarantor or all or any part of
the property of either of them, or the assignment for the benefit of creditors
by Obligor or Guarantor, or the commencement of any proceeding by or against
Obligor 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 (i) Obligor or Guarantor shall
be deceased or declared incompetent by any court or a guardian or conservator
shall be appointed for either of them or for the property of either of them; or
(j) Guarantor or Obligor shall generally not pay their respective 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)
Obligor or 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 Obligor or 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, Lender 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 Lender, in its sole and
absolute discretion, determines prior to the disposition of such property that
the amount to be realized by Lender therefrom may be less than the indebtedness
of the Guarantor under this Guaranty, Lender shall have all the rights of an
unsecured creditor against Guarantor, including without limitation the right of
Lender, 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
Lender to first resort to or exhaust all such collateral before seeking or
obtaining any attachment remedy against Guarantor. Lender shall have no
liability to Guarantor as a result thereof, whether or not the actual deficiency
realized by Lender is less than the anticipated deficiency on the basis of which
Lender obtains a temporary protective order or writ of attachment.
8. INDEMNITY. Guarantor hereby agrees to indemnify Lender and hold Lender
harmless from and against any and all claims, debts, liabilities, demands,
obligations, actions, causes of action, penalties, costs and expenses (including
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without limitation attorneys' fees), of every nature, character and description,
which Lender 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 Obligor or its employees, any relationship
or agreement between Lender and Obligor, any actual or alleged failure of Lender
to comply with any writ of attachment or other legal process relating to Obligor
or any of its property, or any other matter, cause or thing whatsoever occurred,
done, omitted or suffered to be done by Lender relating in any way to Obligor or
the Indebtedness (except any such amounts sustained or incurred as the result of
the gross negligence or willful misconduct of Lender or any of its directors,
officers, employees, agents, attorneys, or any other person affiliated with or
representing Lender). 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 Obligor 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, Obligor and any assignee, trustee in bankruptcy, receiver,
or any other person having custody or control over any or all of Obligor's
property are hereby authorized and directed to pay to Lender 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 Lender all
rights to any and all debts, liabilities and obligations owing from Obligor 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 Obligor.
Any amounts received by Guarantor in violation of the foregoing provisions shall
be received and held as trustee for the benefit of Lender and shall forthwith be
paid over to Lender to be applied to the Indebtedness in such order and sequence
as Lender shall in its sole discretion determine, without limiting or affecting
any other right or remedy which Lender 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
Obligor.
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 Lender at its address above by registered first-class U.S. mail,
postage prepaid, return receipt requested, and only as to new loans made by
Lender to Obligor more than 90 days after actual receipt of such written notice
by Lender. 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 Lender. 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 Lender, 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 Obligor, 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 Obligor may be sued or in separate actions, as often as
deemed advisable by Lender. 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 Lender or set forth in this Guaranty); or (b)
any direction as to the application of payment by Obligor 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
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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 OBLIGOR. Guarantor is fully aware of the financial
condition of Obligor and is executing and delivering this Guaranty at Obligor'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 Lender 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
Obligor's financial condition and any other matter pertinent hereto as Guarantor
may desire, and Guarantor is not relying upon or expecting Lender to furnish to
him any information now or hereafter in Lender'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
Obligor will incur additional Indebtedness for which Guarantor will be liable
hereunder after Obligor's financial condition or ability to pay such
Indebtedness has deteriorated and/or after bankruptcy or insolvency proceedings
have been commenced by or against Obligor. Guarantor shall have no right to
require Lender to obtain or disclose any information with respect to the
Indebtedness, the financial condition or character of Obligor, the existence of
any collateral or security for any or all of the Indebtedness, the filing by or
against Obligor 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 Lender, Obligor, or any other person, or any other
matter, fact, or occurrence.
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 Lender upon Lender's request (i) such financial
statements and reports concerning Guarantor for such periods of time as Lender
may designate, (ii) any other information concerning Guarantor's business,
financial condition or affairs as Lender may request, and (iii) copies of any
and all foreign, federal, state and local tax returns and reports of or relating
to Guarantor as Lender 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 Lender hereunder or in any litigation in which Lender may be
involved relating directly or indirectly to Obligor or to Guarantor. Guarantor
further agrees immediately to give written notice to Lender 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 Lender hereunder shall be complete, accurate and correct in all
respects. Whenever requested, Guarantor shall further deliver to Lender 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 the president and secretary of Guarantor, in their
individual capacities) warranting and representing that all reports, financial
statements and other documents and information delivered or caused to be
delivered to Lender 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 Lender 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 Obligor in procuring
credit, because Obligor is an affiliate of Guarantor, furnishes goods or
services to Guarantor, purchases or acquires goods or services from Guarantor,
and/or otherwise has a direct or indirect corporate or business relationship
with 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
Lender on demand for all reasonable attorneys' fees and all other reasonable
costs and expenses incurred by Lender in enforcing this Guaranty, or arising out
of or relating in any way to this Guaranty, or in enforcing any of the
Indebtedness against Obligor, 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 Lender on demand for all reasonable attorneys' fees
and costs Lender incurs in any way relating to Guarantor, Obligor 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 Lender in any litigation with respect to Obligor's or
Guarantor's affairs. In
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the event either Lender 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 Lender 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. Lender 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 Lender immediate
written notice of any change in his address.
17. CLAIMS. Guarantor agrees that any claim or cause of action by Guarantor
against Lender, or any of Lender'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 Lender and Guarantor
or between Lender and Obligor, 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 Lender, or by Lender'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
Lender or any other person authorized to accept service of process on behalf of
Lender, 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 Lender.
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. Lender 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 Lender, and against Obligor 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 Lender's right to proceed in any other form of action or proceeding or
against any other party. The failure of Lender 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 Lender 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 Obligor is a corporation, partnership
or other entity, Guarantor hereby agrees that Lender shall have no obligation to
inquire into the power or authority of Obligor 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 Lender with
respect to the guaranty of the Indebtedness of Obligor 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
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except in a writing executed by Guarantor and a duly authorized officer of
Lender. All rights, benefits and privileges hereunder shall inure to the benefit
of and be enforceable by Lender and its successors and assigns and shall be
binding upon Guarantor and his heirs, executors, administrators, personal
representatives, successors and assigns. Neither the death of Guarantor nor
notice thereof to Lender shall terminate this Guaranty as to his estate, and,
notwithstanding the death of Guarantor or notice thereof to Lender, this
Guaranty shall continue in full force and effect with respect to all
Indebtedness, including without limitation Indebtedness incurred or created
after the death of Guarantor and notice thereof to Lender. 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 Lender 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 Lender, 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. LENDER 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 LENDER AND GUARANTOR ; OR (iii) ANY BREACH, CONDUCT, ACTS
OR OMISSIONS OF LENDER OR GUARANTOR OR ANY OF THEIR RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSON AFFILIATED WITH OR
REPRESENTING LENDER 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.
[REMAINDER OF COLUMN AND PAGE INTENTIONALLY LEFT BLANK; SIGNATURE BLOCKS FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be executed
and delivered as of the date first above written.
GUARANTOR:
MTI TECHNOLOGY CORPORATION
BY /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
PRESIDENT OR VICE PRESIDENT
BY /s/ Xxxx X. Xxxxx, XX
-------------------------------------
SECRETARY OR ASS'T SECRETARY
LENDER:
SILICON VALLEY BANK
BY /s/ Xxxxxxx X. X'Xxxxxxx
----------------------------------------------
TITLE Vice President and Regional Market Manager
-------------------------------------------
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