GUARANTY
Exhibit
10.4
GUARANTY
FOR VALUE RECEIVED, and in consideration of note purchases from, or credit otherwise extended
or to be extended by Laurus Master Fund, Ltd. (“Laurus”), Valens U.S. SPV I, LLC (“Valens U.S.”),
Valens Offshore SPV I, Ltd. (“Valens Offshore”) and PSource Structured Debt Limited (“PSource” and,
together with Laurus, Valens U.S., Valens Offshore, the “Purchasers” and each, a “Purchaser”) to or
for the account of Silicon Mountain Memory, Incorporated, a Colorado corporation (the “SMM”) and
VCI Systems, Inc., a Colorado corporation (“VCI” and together with SMM, the “Companies” and each, a
“Company”) from time to time and at any time and for other good and valuable consideration and to
induce each Purchaser, in its discretion, to purchase such notes or make other extensions of credit
and to make or grant such renewals, extensions, releases of collateral or relinquishments of legal
rights as such Purchaser may deem advisable, each of the undersigned (and each of them if more than
one, the liability under this Guaranty being joint and several) (jointly and severally referred to
as “Guarantors” or “the undersigned”) unconditionally guaranties to each Purchaser, its successors,
endorsees and assigns the prompt payment when due (whether by acceleration or otherwise) of all
present and future obligations and liabilities of any and all kinds of each Company to any
Purchaser and of all instruments of any nature evidencing or relating to any such obligations and
liabilities upon which such Company or one or more parties and such Company is or may become liable
to any Purchaser, whether incurred by such Company as maker, endorser, drawer, acceptor,
guarantors, accommodation party or otherwise, and whether due or to become due, secured or
unsecured, absolute or contingent, joint or several, and however or whenever acquired by any
Purchaser, whether arising under, out of, or in connection with (i) that certain Security Agreement
dated as of September 25, 2006 by and among SMM, the other Companies named therein and Laurus (the
“Security Agreement”) and (ii) each Ancillary Agreement referred to in the Security Agreement (the
Security Agreement and each Ancillary Agreement, as each may be amended, modified, restated and/or
supplemented from time to time, are collectively referred to herein as the “Documents”), or any
documents, instruments or agreements relating to or executed in connection with the Documents or
any documents, instruments or agreements referred to therein or otherwise, or any other obligations
or liabilities of such Company to any Purchaser, whether now existing or hereafter arising, direct
or indirect, liquidated or unliquidated, absolute or contingent, due or not due and whether under,
pursuant to or evidenced by a note, agreement, guaranty, instrument or otherwise (all of which are
herein collectively referred to as the “Obligations”), and irrespective of the genuineness,
validity, regularity or enforceability of such Obligations, or of any instrument evidencing any of
the Obligations or of any collateral therefor or of the existence or extent of such collateral, and
irrespective of the allowability, allowance or disallowance of any or all of the Obligations in any
case commenced by or against any Company under Title 11, United States Code, including, without
limitation, obligations or indebtedness of any Company for post-petition interest, fees, costs and
charges that would have accrued or been added to the Obligations but for the commencement of such
case. Terms not otherwise defined herein shall have the meaning assigned such terms in the
Security Agreement. In furtherance of the foregoing, the undersigned xxxxxx agrees as follows:
Subsidiary Guaranty
1. No Impairment. Any Purchaser may at any time and from time to time, either before
or after the maturity thereof, without notice to or further consent of the undersigned, extend the
time of payment of, exchange or surrender any collateral for, renew or extend any of the
Obligations or increase or decrease the interest rate thereon, or any other agreement with any
Company or with any other party to or person liable on any of the Obligations, or interested
therein, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or
in part, or for any modification of the terms thereof or of any agreement between any Purchasers
and any Company or any such other party or person, or make any election of rights such Purchaser
may deem desirable under the United States Bankruptcy Code, as amended, or any other federal or
state bankruptcy, reorganization, moratorium or insolvency law relating to or affecting the
enforcement of creditors’ rights generally (any of the foregoing, an “Insolvency Law”) without in
any way impairing or affecting this Guaranty. This Guaranty shall be effective regardless of the
subsequent incorporation, merger or consolidation of any Company, or any change in the composition,
nature, personnel or location of any Company and shall extend to any successor entity to each
Company, including a debtor in possession or the like under any Insolvency Law.
2. Guaranty Absolute. Subject to Section 5(c) hereof, each of the undersigned jointly
and severally guarantees that the Obligations will be paid strictly in accordance with the terms of
the Documents and/or any other document, instrument or agreement creating or evidencing the
Obligations, regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any Company with respect thereto.
Guarantors hereby knowingly accept the full range of risk encompassed within a contract of
“continuing guaranty” which risk includes the possibility that a Company will contract additional
obligations and liabilities for which Guarantors may be liable hereunder after such Company’s
financial condition or ability to pay its lawful debts when they fall due has deteriorated, whether
or not such Company has properly authorized incurring such additional obligations and liabilities.
The undersigned acknowledge that (i) no oral representations, including any representations to
extend credit or provide other financial accommodations to any Company, have been made by any
Purchaser to induce the undersigned to enter into this Guaranty and (ii) any extension of credit to
any Company shall be governed solely by the provisions of the Documents. The liability of each of
the undersigned under this Guaranty shall be absolute and unconditional, in accordance with its
terms, and shall remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver, indulgence, renewal, extension,
amendment or modification of or addition, consent or supplement to or deletion from or any other
action or inaction under or in respect of the Documents or any other instruments or agreements
relating to the Obligations or any assignment or transfer of any thereof, (b) any lack of validity
or enforceability of any Document or other documents, instruments or agreements relating to the
Obligations or any assignment or transfer of any thereof, (c) any furnishing of any additional
security to any Purchaser or its assignees or any acceptance thereof or any release of any security
by any Purchaser or its assignees, (d) any limitation on any party’s liability or obligation under
the Documents or any other documents, instruments or agreements relating to the Obligations or any
assignment or transfer of any thereof or any invalidity or unenforceability, in whole or in part,
of any such document, instrument or agreement or any term thereof, (e) any bankruptcy, insolvency,
reorganization,
Subsidiary Guaranty
2
composition, adjustment, dissolution, liquidation or other like proceeding relating to any
Company, or any action taken with respect to this Guaranty by any trustee or receiver, or by any
court, in any such proceeding, whether or not the undersigned shall have notice or knowledge of any
of the foregoing, (f) any exchange, release or nonperfection of any collateral, or any release, or
amendment or waiver of or consent to departure from any guaranty or security, for all or any of the
Obligations or (g) any other circumstance which might otherwise constitute a defense available to,
or a discharge of, the undersigned. Any amounts due from the undersigned to any Purchaser shall
bear interest until such amounts are paid in full at the highest rate then applicable to the
Obligations. Obligations include post-petition interest whether or not allowed or allowable.
3. Waivers.
(a) This Guaranty is a guaranty of payment and not of collection. No Purchaser shall
be under any obligation to institute suit, exercise rights or remedies or take any other
action against any Company or any other person or entity liable with respect to any of the
Obligations or resort to any collateral security held by it to secure any of the Obligations
as a condition precedent to the undersigned being obligated to perform as agreed herein and
each of the Guarantors hereby waives any and all rights which it may have by statute or
otherwise which would require any Purchaser to do any of the foregoing. Each of the
Guarantors further consents and agrees that no Purchaser shall be under any obligation to
marshal any assets in favor of Guarantors, or against or in payment of any or all of the
Obligations. Each of the undersigned hereby waives all suretyship defenses and any rights
to interpose any defense, counterclaim or offset of any nature and description which the
undersigned may have or which may exist between and among any Purchaser, any Company and/or
the undersigned with respect to the undersigned’s obligations under this Guaranty, or which
any Company may assert on the underlying debt, including but not limited to failure of
consideration, breach of warranty, fraud, payment (other than cash payment in full of the
Obligations), statute of frauds, bankruptcy, infancy, statute of limitations, accord and
satisfaction, and usury.
(b) Each of the undersigned further waives (i) notice of the acceptance of this
Guaranty, of the extensions of credit, and of all notices and demands of any kind to which
the undersigned may be entitled, including, without limitation, notice of adverse change in
any Company’s financial condition or of any other fact which might materially increase the
risk of the undersigned and (ii) presentment to or demand of payment from anyone whomsoever
liable upon any of the Obligations, protest, notices of presentment, non-payment or protest
and notice of any sale of collateral security or any default of any sort.
(c) Notwithstanding any payment or payments made by the undersigned hereunder, or any
setoff or application of funds of the undersigned by any Purchaser, the undersigned shall
not be entitled to be subrogated to any of the rights of any Purchaser against any Company
or against any collateral or guarantee or right of offset held by any Purchaser for the
payment of the Obligations, nor shall the undersigned seek or be entitled to seek any
contribution or reimbursement from any Company in respect of payments made by the
undersigned hereunder, until all amounts owing to each Purchaser
Subsidiary Guaranty
3
by each Company on account of the Obligations are indefeasibly paid in full and each
Purchaser’s obligation to extend credit pursuant to the Documents has been irrevocably
terminated. If, notwithstanding the foregoing, any amount shall be paid to the undersigned
on account of such subrogation rights at any time when all of the Obligations shall not have
been paid in full and each Purchaser’s obligation to extend credit pursuant to the Documents
shall not have been terminated, such amount shall be held by the undersigned in trust for
the Purchasers, segregated from other funds of the undersigned, and shall forthwith upon,
and in any event within two (2) business days of, receipt by the undersigned, be turned over
to the Purchasers in the exact form received by the undersigned (duly endorsed by the
undersigned to the Purchasers, if required), to be applied against the Obligations, whether
matured or unmatured, in such order as the Purchasers may determine, subject to the
provisions of the Documents. Any and all present and future obligations and liabilities of
each Company to any of the undersigned are hereby waived and postponed in favor of, and
subordinated to the full payment and performance of, all Obligations of each Company to each
Purchaser.
4. Security. All sums at any time to the credit of the undersigned and any property
of the undersigned in any Purchaser’s possession or in the possession of any bank, financial
institution or other entity that directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, any Purchaser (each such entity, an
“Affiliate”) shall be deemed held by such Purchaser or such Affiliate, as the case may be, as
security for any and all of the undersigned’s obligations and liabilities to such Purchaser and to
any Affiliate of such Purchaser, no matter how or when arising and whether under this or any other
instrument, agreement or otherwise.
5. Representations and Warranties. Each of the undersigned hereby jointly and
severally represents and warrants (all of which representations and warranties shall survive until
all Obligations are indefeasibly satisfied in full and the Documents have been irrevocably
terminated), that:
(a) Corporate Status. It is a corporation, partnership or limited liability
company, as the case may be, duly formed, validly existing and in good standing under the
laws of its jurisdiction of formation indicated on the signature page hereof and has full
power, authority and legal right to own its property and assets and to transact the business
in which it is engaged.
(b) Authority and Execution. It has full power, authority and legal right to
execute and deliver, and to perform its obligations under, this Guaranty and has taken all
necessary corporate, partnership or limited liability company, as the case may be, action to
authorize the execution, delivery and performance of this Guaranty.
(c) Legal, Xxxxx and Binding Character. This Guaranty constitutes its legal,
valid and binding obligation enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting the enforcement of creditor’s
rights and general principles of equity that restrict the availability of equitable or legal
remedies.
Subsidiary Guaranty
4
(d) Violations. The execution, delivery and performance of this Guaranty will
not violate any requirement of law applicable to it or any contract, agreement or instrument
to which it is a party or by which it or any of its property is bound or result in the
creation or imposition of any mortgage, lien or other encumbrance other than in favor of the
Purchasers on any of its property or assets pursuant to the provisions of any of the
foregoing, which, in any of the foregoing cases, could reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.
(e) Consents or Approvals. No consent of any other person or entity
(including, without limitation, any creditor of the undersigned) and no consent, license,
permit, approval or authorization of, exemption by, notice or report to, or registration,
filing or declaration with, any governmental authority is required in connection with the
execution, delivery, performance, validity or enforceability of this Guaranty by it, except
to the extent that the failure to obtain any of the foregoing could not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) Litigation. No litigation, arbitration, investigation or administrative
proceeding of or before any court, arbitrator or governmental authority, bureau or agency is
currently pending or, to the best of its knowledge, threatened (i) with respect to this
Guaranty or any of the transactions contemplated by this Guaranty or (ii) against or
affecting it, or any of its property or assets, which, in each of the foregoing cases, if
adversely determined, could reasonably be expected to have a Material Adverse Effect.
(g) Financial Benefit. It has derived or expects to derive a financial or
other advantage from each and every loan, advance or extension of credit made under the
Documents or other Obligation incurred by the Companies to the Purchasers.
(h) Solvency. As of the date of this Guaranty, (a) the fair saleable value of
its assets exceeds its liabilities and (b) it is meeting its current liabilities as they
mature.
6. Acceleration.
(a) If any breach of any covenant or condition or other event of default shall occur
and be continuing under any agreement made by any Company or any of the undersigned to any
Purchaser, or either any Company or any of the undersigned should at any time become
insolvent, or make a general assignment, or if a proceeding in or under any Insolvency Law
shall be filed or commenced by, or in respect of, any of the undersigned, or if a notice of
any lien, levy, or assessment is filed of record with respect to any assets of any of the
undersigned by the United States of America or any department, agency, or instrumentality
thereof, or if any taxes or debts owing at any time or times hereafter to any one of them
becomes a lien or encumbrance upon any assets of the undersigned in any Purchaser’s
possession, or otherwise, any and all Obligations shall for purposes hereof, at such
Purchaser’s option, be deemed due and payable without notice notwithstanding that any such
Obligation is not then due and payable by the Companies.
Subsidiary Guaranty
5
(b) Each of the undersigned will promptly notify the Purchasers of any default by such
undersigned in its respective performance or observance of any term or condition of any
agreement to which the undersigned is a party if the effect of such default is to cause, or
permit the holder of any obligation under such agreement to cause, such obligation to become
due prior to its stated maturity and, if such an event occurs, the Purchasers shall have the
right to accelerate such undersigned’s obligations hereunder.
7. Payments from Guarantors. The Purchasers, in their sole and absolute discretion,
with or without notice to the undersigned, may apply on account of the Obligations any payment from
the undersigned or any other guarantors, or amounts realized from any security for the Obligations,
or may deposit any and all such amounts realized in a non-interest bearing cash collateral deposit
account to be maintained as security for the Obligations.
8. Costs. The undersigned shall pay on demand, all costs, fees and expenses
(including expenses for legal services of every kind) relating or incidental to the enforcement or
protection of the rights of the Purchasers hereunder or under any of the Obligations.
9. No Termination. This is a continuing irrevocable guaranty and shall remain in full
force and effect and be binding upon the undersigned, and each of the undersigned’s successors and
assigns, until all of the Obligations have been indefeasibly paid in full and each Purchaser’s
obligation to extend credit pursuant to the Documents has been irrevocably terminated. If any of
the present or future Obligations are guarantied by persons, partnerships, corporations or other
entities in addition to the undersigned, the death, release or discharge in whole or in part or the
bankruptcy, merger, consolidation, incorporation, liquidation or dissolution of one or more of them
shall not discharge or affect the liabilities of any undersigned under this Guaranty.
10. Recapture. Anything in this Guaranty to the contrary notwithstanding, if any
Purchaser receives any payment or payments on account of the liabilities guaranteed hereby, which
payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver, or any other party
under any Insolvency Law, common law or equitable doctrine, then to the extent of any sum not
finally retained by such Purchaser, the undersigned’s obligations to such Purchaser shall be
reinstated and this Guaranty shall remain in full force and effect (or be reinstated) until payment
shall have been made to such Purchaser, which payment shall be due on demand.
11. Books and Records. The books and records of each Purchaser showing the account
between such Purchaser and each Company shall be admissible in evidence in any action or
proceeding, shall be binding upon the undersigned for the purpose of establishing the items therein
set forth and shall constitute prima facie proof thereof.
12. No Waiver. No failure on the part of any Purchaser to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise by any Purchaser of any right, remedy or power hereunder preclude any
other or future exercise of any other legal right, remedy or power. Each and every right, remedy
and power hereby granted to each Purchaser or allowed it by law or other agreement shall be
Subsidiary Guaranty
6
cumulative and not exclusive of any other, and may be exercised by any Purchaser at any time
and from time to time.
13. Waiver of Jury Trial. EACH OF THE UNDERSIGNED DESIRES THAT ITS DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF
THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH OF THE UNDERSIGNED HERETO WAIVES ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
ARISING IN CONTRACT, TORT, OR OTHERWISE AMONG EACH PURCHASER, AND/OR ANY OF THE UNDERSIGNED ARISING
OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH THIS GUARANTY, ANY DOCUMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.
14. Governing Law; Jurisdiction. THIS GUARANTY CANNOT BE CHANGED OR TERMINATED
ORALLY, AND SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS. EACH OF THE UNDERSIGNED HEREBY CONSENTS AND AGREES THAT THE STATE
OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY OF THE UNDERSIGNED, ON THE
ONE HAND, AND ANY PURCHASER, ON THE OTHER HAND, PERTAINING TO THIS GUARANTY OR ANY OF THE DOCUMENTS
OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS GUARANTY OR ANY OF THE DOCUMENTS;
PROVIDED, THAT EACH OF THE UNDERSIGNED ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY
HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK; AND
FURTHER PROVIDED, THAT NOTHING IN THIS GUARANTY SHALL BE DEEMED OR OPERATE TO
PRECLUDE ANY PURCHASER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO
COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR
TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF ANY PURCHASER. EACH OF THE UNDERSIGNED
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN
ANY SUCH COURT, AND EACH UNDERSIGNED HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK
OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. EACH OF THE UNDERSIGNED
HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH
ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH UNDERSIGNED IN ACCORDANCE WITH SECTION 18 AND THAT
SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH UNDERSIGNED’S ACTUAL RECEIPT
THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
Subsidiary Guaranty
7
15. Understanding With Respect to Waivers and Consents. Each Guarantor warrants and
agrees that each of the waivers and consents set forth in this Guaranty is made voluntarily and
unconditionally after consultation with outside legal counsel and with full knowledge of its
significance and consequences, with the understanding that events giving rise to any defense or
right waived may diminish, destroy or otherwise adversely affect rights which such Guarantor
otherwise may have against any Company, any Purchaser or any other person or entity or against any
collateral. If, notwithstanding the intent of the parties that the terms of this Guaranty shall
control in any and all circumstances, any such waivers or consents are determined to be
unenforceable under applicable law, such waivers and consents shall be effective to the maximum
extent permitted by law.
16. Severability. To the extent permitted by applicable law, any provision of this
Guaranty 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.
17. Amendments, Waivers. No amendment or waiver of any provision of this Guaranty nor
consent to any departure by the undersigned therefrom shall in any event be effective unless the
same shall be in writing executed by each of the undersigned directly affected by such amendment
and/or waiver and one or more Purchasers, as applicable.
18. Notice. All notices, requests and demands to or upon the undersigned, shall be in
writing and shall be deemed to have been duly given or made (a) when delivered, if by hand, (b)
three (3) days after being sent, postage prepaid, if by registered or certified mail, (c) when
confirmed electronically, if by facsimile, or (d) when delivered, if by a recognized overnight
delivery service in each event, to the numbers and/or address set forth beneath the signature of
the undersigned.
19. Successors. Each Purchaser may, from time to time, without notice to the
undersigned, sell, assign, transfer or otherwise dispose of all or any part of the Obligations
and/or rights under this Guaranty. Without limiting the generality of the foregoing, each
Purchaser may assign, or grant participations to, one or more banks, financial institutions or
other entities all or any part of any of the Obligations. In each such event, each Purchaser, its
Affiliates and each and every immediate and successive purchaser, assignee, transferee or holder of
all or any part of the Obligations shall have the right to enforce this Guaranty, by legal action
or otherwise, for its own benefit as fully as if such purchaser, assignee, transferee or holder
were herein by name specifically given such right. Each Purchaser shall have an unimpaired right
to enforce this Guaranty for its benefit with respect to that portion of the Obligations which such
Purchaser has not disposed of, sold, assigned, or otherwise transferred.
20. Release. Nothing except indefeasible payment in full of the Obligations shall
release any of the undersigned from liability under this Guaranty.
21. Remedies Not Exclusive. The remedies conferred upon the Purchasers in this
Guaranty are intended to be in addition to, and not in limitation of any other remedy or remedies
available to the Purchasers under applicable law or otherwise.
Subsidiary Guaranty
8
22. Limitation of Obligations under this Guaranty. Each Guarantor and each Purchaser
(by its acceptance of the benefits of this Guaranty) hereby confirms that it is its intention that
this Guaranty not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Code, the Uniform Fraudulent Conveyance Act of any similar Federal or state law. To effectuate the
foregoing intention, each Guarantor and each Purchaser (by its acceptance of the benefits of this
Guaranty) hereby irrevocably agrees that the Obligations guaranteed by such Guarantor shall be
limited to such amount as will, after giving effect to such maximum amount and all other
(contingent or otherwise) liabilities of such Guarantor that are relevant under such laws and after
giving effect to any rights to contribution pursuant to any agreement providing for an equitable
contribution among such Guarantor and the other Guarantors (including this Guaranty), result in the
Obligations of such Guarantor under this Guaranty in respect of such maximum amount not
constituting a fraudulent transfer or conveyance.
23. Counterparts. This Guaranty may be executed in any number of counterparts, each
of which shall be an original, but all of which shall constitute one instrument. It is understood
and agreed that if facsimile copies of this Guaranty bearing facsimile signatures are exchanged
between the parties hereto, such copies shall in all respects have the same weight, force and legal
effect and shall be fully as valid, binding, and enforceable as if such signed facsimile copies
were original documents bearing original signature.
24. Ancillary Agreement. This Guaranty shall for all purposes constitute an “Ancillary
Agreement” under, and as defined in, the Security Agreement.
[REMAINDER OF THIS PAGE IS BLANK.
SIGNATURE PAGE IMMEDIATELY FOLLOWS]
SIGNATURE PAGE IMMEDIATELY FOLLOWS]
Subsidiary Guaranty
9
IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned as of the date and year
here above written.
| SILICON MOUNTAIN HOLDINGS, INC. | ||||||
| By: | /s/ Xxxxxxx (Tré) X. Xxxxx XXX | |||||
| Name: | ||||||
| Title: | ||||||
| Address: 0000 Xxxxxx Xxxxxx | ||||||
| Boulder, Colorado 80301 | ||||||
| Telephone: (000) 000-0000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
| State of Formation: Colorado | ||||||
Subsidiary Guaranty
10
