Exhibit 10.4
GUARANTY
This is a guaranty (this “
Guaranty ”) dated as of June 1, 2005 from Rainmaker
Systems, Inc., a Delaware corporation, having an address of 1800
Green Hills Road, Scotts Valley, California, 95066 (hereinafter
called “ Guarantor ”), to Hub Properties Trust,
a Maryland real estate investment trust having its principal place
of business at c/o Reit Management & Research LLC, 400 Centre
Street, Newton, Massachusetts 02458 (hereinafter called “
Landlord ”).
WHEREAS, the State of Wisconsin
Investment Board (“ Original Lessor ”) and
Sunset Direct, Inc., a Texas corporation (“ Original
Lessee ”) entered into that certain Office Lease dated
January 6, 1997, as amended by a First Amendment to Lease dated
August 30, 1997 for certain premises located at Atrium Office
Centre, 8701 North Mopac, Austin, Texas, as more particularly
described in the Lease (as so amended, the “ Indenture
”); and
WHEREAS, Harvard Property (Atrium)
L.P. (“ Harvard ”) succeeded to the interest of
Original Lessor under the Indenture and with Original Lessee
entered into a Second Amendment to Lease dated May 8, 1998 and a
Third Amendment to Lease effective as of October 1, 2002 (the
Indenture as so amended, the “ Original Lease
”); and
WHEREAS, Landlord succeeded to the
interest of Original Lessor under the Original Lease and with
Original Lessee entered into a Fourth Amendment to Lease (the
“ Fourth Amendment ”) as of July 1, 2002;
and
WHEREAS, Sunset Direct, Inc., an
Idaho corporation (“ Tenant ”) succeeded to the
interest of Original Lessee under the Original Lease as amended by
the Fourth Amendment as of July 8, 2004; and
WHEREAS, Landlord, Tenant and The
Frost National Bank entered into a Landlord’s Subordination
of Lien dated December 6, 2004 (the “ Lien
Subordination ”); and
WHEREAS, Landlord and Tenant are
contemporaneously herewith entering into a Fifth Amendment to Lease
(the “ Fifth Amendment ”); and
WHEREAS, Guarantor owns the stock of
Tenant and expects to receive benefits from the Fifth Amendment
(the Original Lease as amended by the Fourth Amendment, the Lien
Subordination and the Fifth Amendment is hereinafter referred to as
the “ Lease ”); and
WHEREAS, as a condition to entering
into the Fifth Amendment, Landlord has required that Guarantor
enter into this Guaranty, and in order to induce Landlord to enter
into the Fifth Amendment, Guarantor agrees to enter into this
Guaranty.
NOW, THEREFORE, in consideration of
the foregoing and as an inducement to Landlord to enter into the
Fifth Amendment, Guarantor hereby agrees for the benefit of
Landlord as follows:
1. Certain Terms .
Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to such terms in the Lease.
2. Guaranteed Obligations .
The term “ Guaranteed Obligations ” shall mean
the payment of all rent, additional rent and other monetary
obligations of Tenant under the Lease and the performance of each
and every non-monetary obligation of Tenant under the
Lease.
3. Representations and
Covenants . Guarantor represents, warrants, covenants and
agrees that:
3.1 Performance of Covenants and
Agreements . Guarantor will use best efforts to cause Tenant
duly and punctually to perform all of the Guaranteed
Obligations.
3.2 Validity of Agreement .
Guarantor has duly and validly executed and delivered this
Guaranty; this Guaranty constitutes the legal, valid and binding
obligation of Guarantor, enforceable against Guarantor in
accordance with its terms; and the execution, delivery and
performance of this Guaranty have been duly authorized by all
requisite action of Guarantor and such execution, delivery and
performance by Guarantor will not result in any breach of the
terms, conditions or provisions of, or conflict with or constitute
a default under, or result in the creation of any lien, charge or
encumbrance upon any of the property or assets of Guarantor
pursuant to the terms of any indenture, mortgage, deed of trust,
note, other evidence of indebtedness, agreement or other instrument
to which Guarantor may be a party or by which Guarantor or any
property or assets of Guarantor may be bound, or violate any
provision of law, or any applicable order, writ, injunction,
judgment or decree of any court or any order or other public
regulation of any governmental commission, bureau or administrative
agency.
3.3 Payment of Expenses .
Guarantor agrees, as principal obligor and not as a guarantor only,
to pay to Landlord forthwith upon demand in immediately available
Federal funds, all costs and expenses (including court costs and
reasonable legal expenses) incurred or expended by landlord in
connection with the enforcement of this Guaranty, together with
interest on amounts recoverable under this Guaranty from the time
such amounts become due until payment at a rate equal to the lesser
of six percent (6%) over the Prime Rate or the maximum rate allowed
by law. “ Prime Rate ” shall mean the annual
floating rate of interest, determined daily and expressed as a
percentage from time to time announced by Bank of America (or its
successor) as its “prime” or “base” rate.
Guarantor’s covenants and agreement set forth in this Section
3.3 shall survive the termination of this Guaranty.
3.4 Notices . Guarantor shall
promptly give notice to Landlord of any event which might
reasonably result in a material adverse change in the financial
condition of Guarantor.
4. Guarantee . Guarantor
hereby unconditionally guarantees that the Guaranteed Obligations
which are monetary obligations shall be paid in full when due and
payable under the Lease and that the Guaranteed Obligations which
are non-monetary obligations shall be performed when such
performance is required under the Lease. As to monetary obligations
under the Lease, this guarantee is a guarantee of payment and not
of collectability. Guarantor’s liability hereunder is direct,
absolute and unconditional and may be enforced after nonpayment or
non-performance by Tenant of any Guaranteed Obligations without
requiring Landlord to
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resort to any other person or entity (including,
without limitation, Tenant) or any other right, remedy or
collateral.
5. Unenforceability of Guaranteed
Obligations, Etc. If Tenant is for any reason under no legal
obligation to discharge any of the Guaranteed Obligations, or if
any other moneys included in the Guaranteed Obligations have become
unrecoverable from Tenant by operation of law or for any other
reason, (including, without limitation, the invalidity or
irregularity in whole or in part of any Guaranteed Obligation or of
the Lease or any limitation on the liability of Tenant thereunder
or any limitation on the method or terms of payment thereunder
which may now or hereafter be caused or imposed in any
manne
