Exhibit 10.28
GUARANTEE
GUARANTEE dated as of May 21, 1998 made by LIONBRIDGE
TECHNOLOGIES CALIFORNIA, INC., a Delaware corporation (the "GUARANTOR") in favor
of SILICON VALLEY BANK (the "BANK").
W I T N E S S E T H :
WHEREAS, pursuant to the Loan Agreement dated as of September 26, 1997
among Lionbridge Technologies Holdings B.V. and Lionbridge Technologies B.V.,
each a Netherlands company with limited liability (together, the "BORROWERS")
and the Bank (the "ORIGINAL LOAN AGREEMENT"), the Bank agreed, subject to the
terms and conditions thereof, to make credit extensions to the Borrowers to be
evidenced by their promissory note payable to the order of the Bank, also dated
September 26, 1997 (the "ORIGINAL NOTE");
WHEREAS, the Borrowers wish to enter into a Loan Document Modification
Agreement of even date amending the Original Loan Agreement (the Original Loan
Agreement as so amended, and as the same may hereafter be further amended,
modified, supplemented, extended or restated from time to time, the "LOAN
AGREEMENT") pursuant to which they will issue to the Bank an Amended and
Restated Note of even date herewith in the original principal amount of
$8,000,000 (as the same may hereafter be amended, modified, increased,
supplemented, extended or restated from time to time, the "NOTE");
WHEREAS, it is a condition to the Bank's entering into the Loan
Modification Agreement that the Guarantor enter into a guarantee on the terms
set forth in this guarantee (as the same may be amended, modified, supplemented,
extended or restated from time to time, the "GUARANTEE");
WHEREAS, the Guarantor is a wholly-owned subsidiary of Lionbridge
Technologies Holdings, Inc., which is the registered and beneficial owner of
approximately 39.6% of the outstanding capital stock of Lionbridge Technologies
Holdings B.V. which in turn is the registered owner of all the outstanding
capital stock of Lionbridge Technologies, B.V. and for this reason the Guarantor
will derive the benefit of using the money procured from the Bank's agreement to
make Credit Extensions to the Borrowers;
WHEREAS, the Guarantor now wishes to enter into this Guarantee in order
to induce the Bank to enter into the above referenced Loan Modification
Agreement;
NOW, THEREFORE, in consideration of the premises and to induce
the Bank to make advances and other extensions of credit to the Borrowers
thereunder, the Guarantor hereby agrees with the Bank as follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms which
are
-2-
defined in the Loan Agreement and used herein are so used as so defined. In
addition, the following terms shall have the meanings set forth below:
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, operations, property, condition (financial or
otherwise) or prospects of the Guarantor, (b) the ability of the
Guarantor to perform its obligations under this Guarantee, or (c) the
validity or enforceability of this Guarantee, or the rights of the Bank
hereunder.
"OBLIGATIONS" shall mean all obligations of the Borrowers to
the Bank, whether such obligations are now existing or hereafter
incurred or created, joint or several, direct or indirect, absolute or
contingent, due or to become due, matured or unmatured, liquidated or
unliquidated, arising by contract, operation of law or otherwise,
including, without limitation, (a) all principal of and interest
(including, without limitation, any interest which accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization of the Borrowers) on any
advance to the Borrowers under the Loan Agreement or the Note; (b) all
other amounts (including, without limitation, any fees or expenses)
payable by the Borrowers under the Loan Agreement, the Note or any
other Loan Document; (c) all amounts payable to the Bank in connection
with the issuance of any letter of credit by the Bank for the account
of the Borrowers or any drawing thereunder, including without
limitation, any reimbursement obligation and letter of credit fees
payable under any letter of credit application or reimbursement
agreement executed by the Borrowers in connection with any such letter
of credit; and (d) any renewals, refinancings or extensions of any of
the foregoing.
2. GUARANTEE. The Guarantor hereby unconditionally and
irrevocably guarantees to the Bank the prompt and complete payment and
performance by the Borrowers when due (whether at stated maturity, by
acceleration or otherwise) of the Obligations. The Guarantor further agrees to
pay any and all expenses (including, without limitation, all reasonable fees and
disbursements of counsel to the Bank) which may be paid or incurred by the Bank
in enforcing, or obtaining advice of counsel in respect of, any of its rights
under this Guarantee. The Guarantee shall remain in full force and effect until
the Obligations are paid in full and the Bank's obligation to make Advances or
other Credit Extensions under the Loan Agreement is terminated, notwithstanding
that from time to time prior thereto the Borrowers may be free from any
Obligations.
3. RIGHT OF SET-OFF. Regardless of the adequacy of any
collateral or other means of obtaining repayment of the Obligations, any
deposits (general or special, time or demand, provisional or final, including,
but not limited to indebtedness evidenced by a certificate of deposit, whether
matured or unmatured) and any other indebtedness at any time held or owing by
the Bank to the Guarantor may, at any time and from time to time after the
occurrence of an Event of Default, without prior notice to the Guarantor or
compliance with any other condition precedent now or hereafter imposed by
statute, rule of law, or otherwise (all of which are hereby expressly waived to
the extent permitted by law) be set off, appropriated, and applied by the Bank
against any and all obligations of the Guarantor to the Bank then due and
payable in such manner as the Bank in its sole discretion may determine, and the
Guarantor hereby grants the Bank a continuing security interest in such deposits
and
-3-
indebtedness for the payment and performance of such obligations.
4. SUBROGATION AND CONTRIBUTION. Until payment and performance
in full of all the Obligations, the Guarantor irrevocably and unconditionally
waives any and all rights to which it may be entitled, by operation of law or
otherwise, (a) to be subrogated, with respect to any payment made by the
Guarantor hereunder, to the rights of the Bank against the Borrowers, or
otherwise to be reimbursed, indemnified or exonerated by the Borrowers in
respect thereof or (b) to receive any payment, in the nature of contribution or
for any other reason, from any other guarantor of the Obligations with respect
to any payment made by the Guarantor hereunder.
5. EFFECT OF BANKRUPTCY STAY. If acceleration of the time for
payment or performance of any of the Obligations is stayed upon the insolvency,
bankruptcy or reorganization of the Borrowers or any other Person or otherwise,
all such amounts otherwise subject to acceleration shall nonetheless be payable
by the Guarantor under this Guarantee forthwith upon demand.
6. RECEIPT OF LOAN DOCUMENTS, ETC. The Guarantor confirms,
represents and warrants to the Bank that (i) it has received true and complete
copies of the Loan Agreement, the Note and the other Loan Documents entered into
as of the date hereof from the Borrowers, has read the contents thereof and
reviewed the same with legal counsel of its choice; (ii) no representations or
agreements of any kind have been made to the Guarantor which would limit or
qualify in any way the terms of this Guarantee; (iii) the Bank has made no
representation to the Guarantor as to the creditworthiness of the Borrowers; and
(iv) the Guarantor has established adequate means of obtaining from the
Borrowers on a continuing basis information regarding the Borrowers' financial
condition. The Guarantor agrees to keep adequately informed from such means of
any facts, events, or circumstances which might in any way affect the
Guarantor's risks under this Guarantee, and the Guarantor further agrees that
the Bank shall have no obligation to disclose to the Guarantor any information
or documents acquired by the Bank in the course of its relationship with the
Borrowers.
7. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS. The
obligations of the Guarantor under this Guarantee shall remain in full force and
effect without regard to, and shall not be released, altered, exhausted,
discharged or in any way affected by any circumstance or condition (whether or
not the Borrowers shall have any knowledge or notice thereof), including without
limitation (i) any amendment or modification of or supplement to the Loan
Agreement, the Note, or any other Loan Document, or any obligation, duty or
agreement of the Borrowers or any other Person thereunder or in respect thereof,
(ii) any assignment or transfer in whole or in part of any of the Obligations,
(iii) any furnishing or acceptance of any direct or indirect security or
guaranty, or any release of or non-perfection or invalidity of any direct or
indirect security or guaranty, for any of the Obligations, (iv) any waiver,
consent, extension, renewal, indulgence, settlement, compromise or other action
or inaction under or in respect of the Loan Agreement, the Note, or any other
Loan Document, or any exercise or nonexercise of any right, remedy, power or
privilege under or in respect of any such instrument (whether by operation of
law or otherwise), (v) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect to the
Borrowers or any other Person (other than the Guarantor) or
-4-
any of their respective properties or creditors or any resulting release or
discharge of any Obligations, (vi) the voluntary or involuntary sale or other
disposition of all or substantially all the assets of the Borrowers or any other
Person, (vii) the voluntary or involuntary liquidation, dissolution or
termination of the Borrowers or any other Person, (viii) any invalidity or
unenforceability, in whole or in part, of any term hereof or of the Loan
Agreement, the Note, or any other Loan Document, or any obligation, duty or
agreement of the Borrowers or any other Person (other than the Guarantor)
thereunder or in respect thereof, or any provision of any applicable law or
regulation purporting to prohibit the payment or performance by the Borrowers or
any other Person (other than the Guarantor) of any Obligations, (ix) any failure
on the part of the Borrowers or any other Person for any reason to perform or
comply with any term of the Loan Agreement, the Note, or any other Loan Document
or any other agreement, or (x) any other act, omission or occurrence whatsoever,
whether similar or dissimilar to the foregoing. The Guarantor authorizes the
Borrowers, each other guarantor in respect of Obligations and the Bank at any
time in its discretion, as the case may be, to alter any of the terms of
Obligations.
8. GUARANTOR AS PRINCIPAL. If for any reason the Borrowers or
any other Person is under no legal obligation to discharge any Obligations, or
if any other moneys included in Obligations have become unrecoverable from the
Borrowers or any other Person by operation of law or for any other reason,
including, without limitation, the invalidity or irregularity in whole or in
part of any Obligation or of the Loan Agreement, the Note, or any other Loan
Document, the legal disability of the Borrowers or any other obligor in respect
of Obligations, any discharge of or limitation on the liability of the Borrowers
or any other person or any limitation on the method or terms of payment under
any Obligation, or of the Loan Agreement, the Note, or any other Loan Document,
which may now or hereafter be caused or imposed in any manner whatsoever
(whether consensual or arising by operation of law or otherwise), this Guarantee
shall nevertheless remain in full force and effect and shall be binding upon the
Guarantor to the same extent as if the Guarantor at all times had been the
principal obligor on all Obligations.
9. WAIVER OF DEMAND, NOTICE, ETC. The Guarantor hereby waives,
to the extent not prohibited by applicable law, (i) all presentments, demands
for performance, notice of nonperformance, protests, notices of protests and
notices of dishonor in connection with the Obligations or the Loan Agreement,
the Note, or any other Loan Document, including but not limited to notice of
additional indebtedness constituting Obligations or the existence, creation or
incurring of any new or additional indebtedness or obligation or of any action
or non-action on the part of the Borrowers, the Bank, any endorser or creditor
of the Borrowers or any other Person; (ii) any notice of any indulgence,
extensions or renewals granted to any obligor with respect to Obligations; (iii)
any requirement of diligence or promptness in the enforcement of rights under
the Loan Agreement, the Note, or any other Loan Document, or any other agreement
or instrument directly or indirectly relating thereto or to the Obligations;
(iv) any enforcement of any present or future agreement or instrument relating
directly or indirectly thereto or to the Obligations; (v) notice of any of the
matters referred to in PARAGRAPH 8 above, (vi) any defense of any kind which the
Guarantor may now have with respect to his liability under this Guarantee; (vii)
any right to require the Bank, as a condition of enforcement of this Guarantee,
to proceed against the Borrowers or any other Person or to proceed against or
exhaust any security held by the Bank at any time or to pursue any other right
or remedy in
-5-
the Bank's power before proceeding against the Guarantor; (viii) any defense
that may arise by reason of the incapacity, lack of authority, death or
disability of any other Person or Persons or the failure of the Bank to file or
enforce a claim against the estate (in administration, bankruptcy, or any other
proceeding) of any other Person or Persons; (ix) any defense based upon an
election of remedies by the Bank; (x) any defense arising by reason of any "one
action" or "anti-deficiency" law or any other law which may prevent the Bank
from bringing any action, including a claim for deficiency, against the
Guarantor, before or after the Bank's commencement of completion of any
foreclosure action, either judicially or by exercise of a power of sale; (xi)
any defense based upon any lack of diligence by the Bank in the collection of
any Obligation; (xii) any duty on the part of the Bank to disclose to the
Guarantor any facts the Bank may now or hereafter know about the Borrowers or
any other obligor in respect of Obligations; (xiii) any defense arising because
of an election made by the Bank under Section 1111(b)(2) of the Federal
Bankruptcy Code; (xiv) any defense based on any borrowing or grant of a security
interest under Section 364 of the Federal Bankruptcy Code; and (xv) any defense
based upon or arising out of any defense which the Borrowers or any other Person
may have to the payment or performance of Obligations (including but not limited
to failure of consideration, breach of warranty, fraud, payment, accord and
satisfaction, strict foreclosure, statute of frauds, bankruptcy, infancy,
statute of limitations, lender liability and usury). Guarantor acknowledges and
agrees that each of the waivers set forth herein on the part of the Guarantor is
made with Guarantor's full knowledge of the significance and consequences
thereof and that under the circumstances the waivers are reasonable. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by such law or public
policy.
10. REINSTATEMENT. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Bank upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrowers or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrowers or any substantial part of its property, or
otherwise, all as though such payments had not been made.
11. PAYMENTS. The Guarantor hereby agrees that the Obligations
will be paid to the Bank without set-off or counterclaim in U.S. Dollars at the
office of the Bank located at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000,
or to such other location as the Bank shall notify the Guarantor.
12. REPRESENTATIONS AND WARRANTIES. The Guarantor represents
and warrants that:
(a) CORPORATE EXISTENCE. The Guarantor is a corporation duly
incorporated and validly existing under the laws of the jurisdiction of
its incorporation, and is duly licensed or qualified as a foreign
corporation in all states wherein the nature of its property owned or
business transacted by it makes such licensing or qualification
necessary.
(b) NO VIOLATION. The execution, delivery and performance of
this
-6-
Guarantee will not contravene any provision of law, statute, rule
or regulation to which the Guarantor is subject or any judgment,
decree, franchise, order or permit applicable to the Guarantor, or will
conflict or will be inconsistent with or will result in any breach of,
any of the terms, covenants, conditions or provisions of, or constitute
a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or
assets of the Guarantor pursuant to the terms of any contractual
obligation of the Guarantor, or violate any provision of the corporate
charter or by-laws of the Guarantor.
(c) CORPORATE AUTHORITY AND POWER. The execution, delivery and
performance of this Guarantee is within the corporate powers of the
Guarantor and has been duly authorized by all necessary corporate
action.
(d) ENFORCEABILITY. This Guarantee constitutes a valid and
binding obligation of the Guarantor enforceable against the Guarantor
in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and except as enforceability may be subject to general principles of
equity, whether such principles are applied in a court of equity or at
law.
(e) GOVERNMENTAL APPROVALS. No order, permission, consent,
approval, license, authorization, registration or validation of, or
filing with, or exemption by, any governmental authority is required to
authorize, or is required in connection with, the execution, delivery
and performance of this Guarantee, or the taking of any action
contemplated hereby or thereby.
(f) LITIGATION. There are no actions, suits or proceedings
pending or, to the Guarantor's knowledge, threatened against or
affecting the Guarantor before any governmental authority, which in any
one case or in the aggregate, if determined adversely to the interests
of the Guarantor, would have a Material Adverse Effect.
(g) COMPLIANCE WITH OTHER INSTRUMENTS. Neither the Guarantor
is in default under (i) any contractual obligation, where such default
could have a Material Adverse Effect, or (ii) the terms of any
agreements relating to any Indebtedness of the Guarantor.
(h) COMPLIANCE WITH LAW. The Guarantor is not in default with
respect to any applicable statute, rule, writ, injunction, decree,
order or regulation of any Governmental Authority having jurisdiction
over the Guarantor which could reasonably be expected to have a
Material Adverse Effect.
(i) INVESTMENT COMPANY STATUS; LIMITS ON ABILITY TO INCUR
INDEBTEDNESS. The Guarantor is not an "investment company" or a company
"controlled by" an investment company within the meaning of the
Investment Company Act of 1940, as amended. The Guarantor is not
subject to regulation under any Federal or State statute or regulation
which limits its ability to incur Indebtedness.
-7-
(j) TITLE TO PROPERTY. The Guarantor has good and marketable
title to all of its properties and assets, and none of such properties
or assets is subject to (i) any Lien except for Permitted Liens, or
(ii) a defect in title or other claim other than defects and claims
that, in the aggregate, would have no Material Adverse Effect. The
Guarantor enjoys peaceful and undisturbed possession under all leases
necessary in any material respect for the operation of its properties
and assets, none of which contains any unusual or burdensome provisions
which could reasonably be expected to have a Material Adverse Effect.
All such leases are valid and subsisting and are in full force and
effect.
(k) ERISA PLANS. Each "employee benefit plan," "employee
pension benefit plan," "defined benefit plan," or "multiemployer plan,"
which the Guarantor has established or maintained or to which the
Guarantor is required to contribute (collectively, the "PLANS") is in
compliance in all material respects with all applicable provisions of
ERISA and the Internal Revenue Code of 1986 as amended, and the rules
and regulations thereunder, except where failure to so comply would not
have a Material Adverse Effect. There have been no "prohibited
transactions" under ERISA with respect to the Plans which would result
in any material liability to the Guarantor under ERISA or the Code. As
used in the Loan Documents, the terms "employee benefit plan,"
"employee pension benefit plan," "defined benefit plan," and
"multiemployer plan" shall have the respective meanings assigned to
such terms in Section 3 of ERISA. The Guarantor thereof has not
incurred any material "accumulated funding deficiency" within the
meaning of ERISA or incurred any material liability to the PBGC in
connection with a Plan (or other class of benefit which the PBGC has
elected to insure) established or maintained by the Guarantor.
(l) TAXES. All tax returns of the Guarantor required to be
filed have been timely filed, all taxes, fees and other governmental
charges (other than those being contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate
reserves have been established and, in the case of AD VALOREM taxes or
betterment assessments, no proceedings to foreclose any lien with
respect thereto have been commenced and, in all other cases, no notice
of lien has been filed or other action taken to perfect or enforce such
lien) shown thereon which are payable have been paid. The charges and
reserves on the books of the Guarantor in respect of all income and
other taxes are adequate, and the Guarantor knows of no additional
assessment or any basis therefor. The Federal income tax returns of the
Guarantor have not been audited within the last three years, all prior
audits have been closed, and there are no unpaid assessments, penalties
or other charges arising from such prior audits.
13. COVENANTS. The Guarantor hereby covenants and agrees with
the Bank from and after the date of this Guarantee until the Obligations are
paid in full and the obligation of the Bank to make Advances or other Credit
Extensions is terminated to maintain its existence and not to take any action or
refrain from taking any action which would cause the Borrowers to be in default
of any of their covenants or agreements contained in the Loan Agreement.
-8-
14. SUBORDINATION OF CLAIMS AGAINST BORROWERS. Without
limiting the provisions of PARAGRAPH 4 hereof, the Guarantor hereby irrevocably
agrees that any and all claims which the Guarantor may now or hereafter have
against the Borrowers or any other guarantor of the Obligations, including,
without limitation, the benefit of any setoff or counterclaim or proof against
dividend, composition or payment by the Borrowers or such other guarantor, shall
be subject and subordinate to the prior payment in full of all of the
Obligations to the Bank. After the occurrence and during the continuation of an
Event of Default, the Guarantor shall not claim from the Borrowers or such other
guarantor, or with respect to any of their respective properties, any sums which
may be owing to the Guarantor, or have the benefit of any setoff or counterclaim
or proof against dividend, composition or payment by the Borrowers or such other
guarantor, until all the Obligations shall have been paid in full. Should any
payment or distribution or security or the benefit of proceeds thereof be
received by the Guarantor upon or with respect to amounts due to him from the
Borrowers or any other guarantor of the Obligations after an Event of Default
has occurred and is continuing and prior to the payment in full of all
Obligations, the Guarantor will forthwith deliver the same to the Bank in
precisely the form received (except for endorsement or assignment where
necessary), for application in or towards repayment of the Obligations and,
until so delivered, the same shall be held in trust as property of the Bank. In
the event of the failure of the Guarantor to make any such endorsement or
assignment, the Bank is hereby irrevocably authorized to make the same on behalf
of the Guarantor.
15. SEVERABILITY. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. PARAGRAPH HEADINGS. The paragraph headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
17. NO WAIVER, CUMULATIVE REMEDIES. The Bank shall not by any
act (except by a written instrument pursuant to PARAGRAPH 18 hereof), delay,
indulgence, omission or otherwise, be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Event of Default or in any breach of any
of the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Bank, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the
Bank of any right or remedy hereunder on any one occasion shall not be construed
as a bar to any right or remedy which the Bank would otherwise have on any
future occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law.
18. MISCELLANEOUS. This Guarantee constitutes the entire
agreement of the Guarantor with respect to the matters set forth herein. None of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except by a written
-9-
instrument executed by the Guarantor and the Bank, provided that any provision
of this Guarantee may be waived by the Bank in a letter or agreement executed by
the Bank or by telecopy from the Bank. This Guarantee shall be binding upon the
successors and assigns of the Guarantor and shall inure to the benefit of the
Bank and its successors and assigns.
19. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION; GOVERNING
LAW. THE GUARANTOR AND THE BANK BY ITS ACCEPTANCE HEREOF EACH HEREBY EXPRESSLY
WAIVES ANY RIGHT IT MAY NOW OR HEREAFTER HAVE TO A JURY TRIAL IN ANY SUIT,
ACTION, PROCEEDING OR COUNTERCLAIM WHICH ARISES OUT OF, BASED UPON OR BY REASON
OF THIS GUARANTEE, ANY LOAN DOCUMENT (AS DEFINED IN THE LOAN AGREEMENT), OR THE
TRANSACTIONS CONTEMPLATED HEREBY. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN
FULLY DISCUSSED BY THE BANK AND THE GUARANTOR, AND SHALL BE SUBJECT TO NO
EXCEPTIONS.
BY ITS EXECUTION AND DELIVERY OF THIS GUARANTEE, THE GUARANTOR ACCEPTS
FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY,
THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS IN ANY ACTION, SUIT OR
PROCEEDING OF ANY KIND AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS
GUARANTEE, ANY LOAN DOCUMENT (AS DEFINED IN THE LOAN AGREEMENT), OR THE
TRANSACTIONS CONTEMPLATED HEREBY, IN ADDITION TO ANY OTHER COURT IN WHICH SUCH
ACTION, SUIT OR PROCEEDING MAY BE BROUGHT, IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED BY ANY SUCH COURT IN ANY SUCH ACTION, SUIT OR PROCEEDING IN
WHICH IT SHALL HAVE BEEN SERVED WITH PROCESS IN THE MANNER HEREINAFTER PROVIDED,
AND TO THE EXTENT THAT IT MAY LAWFULLY DO SO, WAIVES AND AGREES NOT TO ASSERT,
BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN SUCH ACTION, SUIT OR PROCEEDING
ANY CLAIMS THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT,
THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE
ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
THEREOF IS IMPROPER.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
20. NOTICES. All notices under this Guarantee shall be in
writing, and shall be delivered by hand, by an internationally recognized
commercial overnight delivery service, by U.S. first class mail or by telecopy,
delivered, addressed or transmitted, if to the Bank, at its address or telecopy
number set forth in the Loan Agreement, and if to the Guarantor, at its address
or telecopy number set out below its signature in this Guarantee. Such notices
shall be effective (a) in the case of hand deliveries, when received, (b) in the
case of an overnight delivery service, on the next Business Day after being
placed in the possession of such
-9-
delivery service, with delivery charges prepaid, (c) in the case of mail, three
days after deposit in the U.S. postal system, first class postage prepaid and
(d) in the case of telecopy notices, when electronic indication of receipt is
received. Either party may change its address and telecopy number by written
notice to the other.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
duly executed and delivered as of the date first above written.
LIONBRIDGE TECHNOLOGIES
CALIFORNIA, INC.
By
----------------------------------------
Name:
Title:
Address for Notices:
Lionbridge Technologies California, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Accepted and agreed to:
SILICON VALLEY BANK
By:
--------------------------------
Xxxxxx X. Xxxx
Vice President
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Section 12(1): Guarantor has filed for an automatic extension with the relevant
state and federal tax authorities with respect to its 1997 tax returns.
