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SECURED CONTINUING CORPORATE GUARANTY
EXHIBIT 10.29B
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SECURED CONTINUING CORPORATE GUARANTY
FOR VALUE RECEIVED, and in consideration of any loan or other
financial accommodation heretofore or hereafter at any time made or granted to
Primary Rate, Inc. ("Borrower"), by The CIT Group/Credit Finance, Inc.
("Lender"), the undersigned, Xircom, Inc. ("Guarantor"), xxxxxx agrees as
follows:
1. Guaranty of Obligations. Guarantor unconditionally,
absolutely and irrevocably guarantees the full and prompt payment and
performance when due, whether by acceleration or otherwise, and at all times
thereafter, of all obligations of Borrower to Lender, howsoever created,
arising or evidenced, whether direct or indirect, absolute or contingent, or
now or hereafter existing or due or to become due, including, without
limitation, under or in connection with that certain Loan and Security
Agreement dated as of November ___, 1995, between Borrower and Lender, and each
of the documents, instruments and agreements executed and delivered in
connection therewith, as each may be modified, amended, supplemented or
replaced from time to time (all such obligations are herein referred to,
collectively, as the "Liabilities", and all documents evidencing or securing
any of the Liabilities are herein referred to, collectively, as the "Loan
Documents"). This Secured Continuing Corporate Guaranty (this "Continuing
Guaranty") is a guaranty of payment and performance when due and not of
collection.
In the event of any default by Xxxxxxxx in making payment of,
or default by Borrower in performance of, any of the Liabilities, Guarantor
agrees on demand by Xxxxxx to pay and perform all of the Liabilities as are
then or thereafter become due and owing or are to be performed under the terms
of the Loan Documents. Guarantor further agrees to pay all expenses
(including reasonable attorneys' fees and expenses) paid or incurred by Xxxxxx
in endeavoring to collect the Liabilities, or any part thereof, and in
enforcing this Continuing Guaranty.
2. Security for Continuing Guaranty. This Continuing
Guaranty is secured by that certain Loan and Security Agreement of even date
herewith among Guarantor, Borrower and Lender (the "Security Document").
3. Continuing Nature of Guaranty and Liabilities. This
Continuing Guaranty shall be continuing and shall not be discharged, impaired
or affected by:
a. the insolvency of Borrower or the payment in
full of all of the Liabilities at any time or from time to time;
b. the power or authority or lack thereof of
Borrower to incur the Liabilities;
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c. the validity or invalidity of any of the Loan
Documents or the documents securing the same;
d. the existence or non-existence of Borrower as
a legal entity;
e. any transfer by Borrower of all or any part
of any collateral in which Xxxxxx has been granted a lien or security
interest pursuant to the Loan Documents;
f. any statute of limitations affecting the
liability of Guarantor under this Continuing Guaranty or the Loan
Documents or the ability of Lender to enforce this Continuing Guaranty
or any provision of the Loan Documents or the Security Document; or
g. any right of offset, counterclaim or defense
of Guarantor, including, without limitation, those which have been
waived by Guarantor pursuant to Paragraph 7 hereof.
4. Insolvency of Borrower or Guarantor. Without
limiting the generality of any other provision hereof, Xxxxxxxxx agrees that,
in the event of the dissolution or insolvency of Borrower or Guarantor or the
inability of Borrower or Guarantor to pay their respective debts as they
mature, or an assignment by Borrower or Guarantor for the benefit of creditors,
or the institution of any proceeding by or against Borrower or Guarantor
alleging that Borrower or Guarantor is insolvent or unable to pay their
respective debts as they mature, Guarantor will pay to Lender forthwith the
full amount which would be payable hereunder by Guarantor if all of the
Liabilities were then due and payable, whether or not such event occurs at a
time when any of the Liabilities are otherwise due and payable.
5. Payment of the Liabilities. Any amounts received by
Lender from whatever source on account of the Liabilities may be applied by
Lender toward the payment of such of the Liabilities, and in such order of
application, as Lender may from time to time elect, and notwithstanding any
payments made by or for the account of Guarantor pursuant to this Continuing
Guaranty.
Guarantor agrees that, if at any time all or any part of any
payment theretofore applied by Lender to any of the Liabilities is or must be
rescinded or returned by Lender for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of Borrower), such
Liabilities shall, for the purposes of this Continuing Guaranty and to the
extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence notwithstanding such application by Xxxxxx, and this
Continuing Guaranty shall continue to be effective or be reinstated, as the
case may be, as to such Liabilities, all as though such application by Xxxxxx
had not been made.
6. Permitted Actions of Lender. Lender may from time to
time, in its sole discretion and without notice to Guarantor, take any or all
of the following actions:
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a. retain or obtain a security interest in any
assets of Borrower or any third party to secure any of the Liabilities
or any obligations of Guarantor hereunder;
b. retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to Guarantor, with
respect to any of the Liabilities;
c. extend or renew for one or more periods
(whether or not longer than the original period), alter or exchange
any of the Liabilities;
x. xxxxx, ignore or forbear from taking action
or otherwise exercising any of its default rights or remedies with
respect to any default by Borrower under the Loan Documents;
e. release, waive or compromise any obligation
of Guarantor hereunder or any obligation of any nature of any other
obligor primarily or secondarily obligated with respect to any of the
Liabilities;
f. release its security interest in, or
surrender, release or permit any substitution or exchange for, all or
any part of any collateral now or hereafter securing any of the
Liabilities or any obligation hereunder, or extend or renew for one or
more periods (whether or not longer than the original period) or
release, waive, compromise, alter or exchange any obligations of any
nature of any obligor with respect to any such property; and
g. demand payment or performance of any of the
Liabilities from Guarantor at any time or from time to time, whether
or not Lender shall have exercised any of its rights or remedies with
respect to any property securing any of the Liabilities or any
obligation hereunder, or proceeded against any other obligor primarily
or secondarily liable for payment or performance of any of the
Liabilities.
7. Specific Waivers. Without limiting the generality
of any other provision of this Continuing Guaranty, Guarantor hereby expressly
waives:
a. notice of the acceptance by Xxxxxx of this
Continuing Guaranty;
b. notice of the existence, creation, payment,
nonpayment, performance or nonperformance of all or any of the
Liabilities;
c. presentment, demand, notice of dishonor,
protest, notice of protest and all other notices whatsoever with
respect to the payment or performance of the Liabilities or the amount
thereof or any payment or performance by Guarantor hereunder;
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d. all diligence in collection or protection of
or realization upon the Liabilities or any thereof, any obligation
hereunder or any security for or guaranty of any of the foregoing;
e. any right to direct or affect the manner or
timing of Lender's enforcement of its rights or remedies;
f. any and all defenses which would otherwise
arise upon the occurrence of any event or contingency described in
Paragraph 1 hereof or upon the taking of any action by Xxxxxx
permitted hereunder;
g. any defense, right of set-off, claim or
counterclaim whatsoever and any and all other rights, benefits,
protections and other defenses available to Guarantor now or at any
time hereafter, including, without limitation, under California Civil
Code Sections 2787 to 2855, inclusive, and California Code of Civil
Procedure Sections 580a, 580b, 580d or 726, and all successor
sections; and
h. all other principles or provisions of law, if
any, that conflict with the terms of this Continuing Guaranty,
including, without limitation, the effect of any circumstances that
may or might constitute a legal or equitable discharge of a guarantor
or surety.
8. Irrevocability. Guarantor hereby further waives all
rights to revoke this Continuing Guaranty at any time, and all rights to revoke
any agreement executed by Guarantor at any time to secure the payment and
performance of Guarantor's obligations under this Continuing Guaranty,
including, without limitation, the Security Document.
9. Statutory Waiver of Rights and Defenses Regarding
Election of Remedies. Guarantor waives all rights and defenses arising out of
an election of remedies by Xxxxxx, even though that election of remedies, such
as a nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed Guarantor's rights of subrogation and reimbursement
against Borrower by the operation of Section 580d of the California Code of
Civil Procedure or otherwise.
10. Subordination. Guarantor hereby subordinates any and
all indebtedness of Borrower to Guarantor to the full and prompt payment and
performance of all of the Liabilities. Guarantor agrees that Xxxxxx shall be
entitled to receive payment of all Liabilities prior to Guarantor's receipt of
payment of any amount of any indebtedness of Borrower to Guarantor. Any
payments on such indebtedness to Guarantor, if Lender so requests, shall be
collected, enforced and received by Guarantor, in trust, as trustee for Lender
and shall be paid over to Lender on account of the Liabilities, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guaranty. Lender is authorized and empowered, but not
obligated, in its discretion, (a) in the name of Guarantor, to collect and
enforce, and to submit claims in respect of, indebtedness of Borrower to
Guarantor and to apply any amounts received thereon to the
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Liabilities, and (b) to require Guarantor (i) to collect and enforce, and to
submit claims in respect of, any indebtedness of Borrower to Guarantor, and
(ii) to pay any amounts received on such indebtedness to Lender for application
to the Liabilities.
11. Subrogation. Guarantor will not exercise any rights
which it may acquire by way of subrogation under this Continuing Guaranty, by
any payment hereunder or otherwise, until all of the Liabilities have been paid
in full, in cash, and Lender shall have no further obligations to Borrowers
under the Loan Documents or otherwise. If any amount shall be paid to
Guarantor on account of such subrogation rights at any other time, such amount
shall be held in trust for the benefit of Lender and shall be forthwith paid to
Lender to be credited and applied to the Liabilities, whether matured or
unmatured, in such manner as Lender shall determine in its sole discretion.
12. Assignment of Xxxxxx's Rights. Lender may, from time
to time, without notice to Guarantor, assign or transfer any or all of the
Liabilities or any interest therein and, notwithstanding any such assignment or
transfer of the Liabilities or any subsequent assignment or transfer thereof,
the Liabilities shall be and remain the Liabilities for the purpose of this
Continuing Guaranty. Each and every immediate and successive assignee or
transferee of any of the Liabilities or of any interest therein shall, to the
extent of such party's interest in the Liabilities, be entitled to the benefits
of this Continuing Guaranty to the same extent as if such assignee or
transferee were Lender; provided, however, that unless Lender shall otherwise
consent in writing, Lender shall have an unimpaired right, prior and superior
to that of any such assignee or transferee, to enforce this Continuing Guaranty
for its own benefit as to those of the Liabilities which Xxxxxx has not
assigned or transferred.
13. Indulgences Not Waivers. No delay in the exercise of
any right or remedy shall operate as a waiver thereof, and no single or partial
exercise by Lender of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy; nor shall any
modification or waiver of any of the provisions of this Continuing Guaranty be
binding upon Lender, except as expressly set forth in a writing duly signed and
delivered by Xxxxxx. No action of Xxxxxx permitted hereunder shall in any way
affect or impair the rights of Lender or the obligations of Guarantor under
this Continuing Guaranty.
14. Financial Condition of Borrower. Guarantor
represents and warrants that it is fully aware of the financial condition of
Xxxxxxxx, and Guarantor delivers this Continuing Guaranty based solely upon its
own independent investigation of Xxxxxxxx's financial condition and in no part
upon any representation or statement of Lender with respect thereto. Guarantor
further represents and warrants that it is in a position to and hereby does
assume full responsibility for obtaining such additional information concerning
Borrower's financial condition as Guarantor may deem material to its
obligations hereunder, and Guarantor is not relying upon, nor expecting Lender
to furnish it any information in Xxxxxx's possession concerning Xxxxxxxx's
financial condition or concerning any
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circumstances bearing on the existence or creation, or the risk of nonpayment
or nonperformance of the Liabilities.
Guarantor hereby waives any duty on the part of Lender to
disclose to Guarantor any facts it may now or hereafter know about Borrower,
regardless of whether Xxxxxx has reason to believe that any such facts
materially increase the risk beyond that which Guarantor intends to assume, or
has reason to believe that such facts are unknown to Guarantor.
Guarantor hereby knowingly accepts the full range of risk
encompassed within a contract of "Continuing Guaranty" which includes, without
limitation, the possibility that Borrower will contract for additional
indebtedness for which Guarantor may be liable hereunder after Xxxxxxxx's
financial condition or ability to pay its lawful debts when they fall due has
deteriorated.
15. Representations and Warranties. Guarantor represents
and warrants to Lender that each of the following statements is accurate and
complete as of the date of this Continuing Guaranty:
a. Guarantor is a corporation duly organized,
validly, existing and in good standing under the laws of its state of
incorporation and is duly qualified and in good standing in each
jurisdiction where the nature of its business or properties requires
such qualification, except where the failure to qualify could not have
a material adverse effect on the condition (financial or otherwise),
business, operations, properties or prospects of Guarantor (a
"Material Adverse Effect");
b. the execution, delivery and performance by
Guarantor of this Continuing Guaranty are within the power of
Guarantor and have been duly authorized by all necessary actions on
the part of Guarantor or its shareholders;
c. this Continuing Guaranty has been duly
executed and delivered by Guarantor and constitutes a legal, valid and
binding obligation of Guarantor, enforceable against Guarantor in
accordance with its terms, except as limited by bankruptcy, insolvency
or other laws of general application relating to or affecting the
enforcement of creditors' rights generally;
d. the execution, delivery and performance of
this Continuing Guaranty do not (i) violate any provisions of law or
any order of any court or other agency of government (each, a
"Requirement of Law"), (ii) contravene any provision of Guarantor's
Articles or Certificate of Incorporation, Bylaws or any material
contract or agreement to which Guarantor is a party or by which
Guarantor or Guarantor's assets are bound (each, a "Contractual
Obligation"), or (iii) result in the creation or imposition of any
lien, charge or encumbrance of any nature upon any property, asset or
revenue of Guarantor except pursuant to or as set forth in the
Security Document;
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e. all consents, approvals, orders and
authorizations of, and registrations, declarations and filings with,
any governmental agency or authority or other person or entity
(including, without limitation, the shareholders or partners of any
entity), if any, which are required to be obtained in connection with
the execution and delivery of this Continuing Guaranty or the
performance of Guarantor's obligations hereunder have been obtained,
and each is in full force and effect;
f. Guarantor has paid all taxes and other
charges imposed by any governmental agency or authority due and
payable by Guarantor other than those which are being challenged in
good faith by appropriate proceedings and for which adequate reserves
have been established;
g. Guarantor is not in violation of any
Requirement of Law or Contractual Obligation other than any violation
the consequences of which could not have a Material Adverse Effect;
and
h. Guarantor is neither an investment company
(as defined in the Investment Company Act of 1940) nor controlled by
an investment company; and
i. no action, proceeding, investigation or
litigation is pending or, to the knowledge of Guarantor, overtly
threatened against Guarantor which, if adversely determined, could
have a Material Adverse Effect.
16. Guarantor Financial Information. Guarantor will
provide Lender in writing such financial and other information with respect to
Guarantor's assets and liabilities as Lender shall reasonably request from time
to time, in form satisfactory to Lender.
17. Binding Upon Successors. This Continuing Guaranty
shall be binding upon Guarantor and Guarantor's successors and assigns and
shall inure to the benefit of Lender and its successors and assigns. All
references herein to Borrower shall be deemed to include its successors and
assigns, and all references herein to Guarantor shall be deemed to include
Guarantor and Guarantor's successors and assigns.
In addition and notwithstanding anything to the contrary
contained in this Continuing Guaranty or in any other document, instrument or
agreement between or among any of Lender, Borrower, Guarantor or any third
party, the obligations of Guarantor with respect to the Liabilities shall be
joint and several with any other person or entity that now or hereafter
executes a guaranty of any of the Liabilities separate from this Continuing
Guaranty.
18. Notices. All notices required or permitted to be
given hereunder shall be in writing and shall be either personally delivered,
transmitted by facsimile to the facsimile numbers provided herein or sent by
United States certified or registered mail, return receipt requested, addressed
to Guarantor or Lender at their respective addresses stated below or at such
other address as either party hereafter notifies the other party as
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herein provided. Notices shall be deemed received on the earlier of (i) the
date noted on the return receipt as delivered if mail delivery of the notice is
successful or the date inscribed on a confirmation of successful transmission,
if sent by facsimile; (ii) the last date of attempted delivery, as noted by the
United States Postal Service on the envelope containing the notice, if mail
delivery is unsuccessful; or (iii) the date of the actual delivery if
personally delivered.
19. Governing Law; Additional Waivers. This Continuing
Guaranty has been delivered and shall be governed by and construed in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of California.
GUARANTOR HEREBY
(i) WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION TO
ENFORCE OR DEFEND ANY MATTER ARISING FROM OR RELATED TO THIS
CONTINUING GUARANTY, AND ACKNOWLEDGES THAT XXXXXX ALSO WAIVES SUCH
RIGHT;
(ii) IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED IN LOS ANGELES COUNTY, CALIFORNIA, OVER ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY MATTER ARISING FROM OR
RELATED TO THIS CONTINUING GUARANTY;
(iii) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT GUARANTOR MAY
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING;
(iv) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in any other
jurisdictions by suit on the judgment or in any other manner provided
by law; and
(v) agrees not to institute any legal action or proceeding
against Lender or any of Xxxxxx's directors, officers, employees,
agents or property concerning any matter arising out of or relating to
this Continuing Guaranty in any court other than one located in Los
Angeles County, California.
Nothing herein shall affect or impair Xxxxxx's right to serve
legal process in any manner permitted by law or Xxxxxx's right to bring any
action or proceeding against Guarantor or its property in the courts of any
other jurisdiction. Wherever possible each provision of this Continuing
Guaranty shall be interpreted as to be effective and valid under applicable
law, but if any provision of this Continuing Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Continuing Guaranty.
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20. ADVICE OF COUNSEL. GUARANTOR ACKNOWLEDGES THAT IT
HAS EITHER OBTAINED THE ADVICE OF COUNSEL OR HAS HAD THE OPPORTUNITY TO OBTAIN
SUCH ADVICE IN CONNECTION WITH THE TERMS AND PROVISIONS OF THIS CONTINUING
GUARANTY.
21. Entire Agreement. This Continuing Guaranty contains
the complete understanding of the parties hereto with respect to the subject
matter herein. Guarantor acknowledges that it is not relying upon any
statements or representations of Lender not contained in this Continuing
Guaranty and that such statements or representations, if any, are of no force
or effect and are fully superseded by this Continuing Guaranty. This
Continuing Guaranty may only be modified by a writing executed by Guarantor and
Xxxxxx.
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IN WITNESS WHEREOF, Xxxxxxxxx has caused this Continuing
Guaranty to be duly executed as of this 8 day of November, 1995.
"Guarantor"
Xircom, Inc.
By: X. Xxxxxxxx
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Title: Secretary
Guarantor's address for notices:
Xircom, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000-0000
Xxxxxx's address for notices:
The CIT Group/Credit Finance, Inc.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: 213/613-2537
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