This continuing
Unconditional Guaranty (“Guaranty”) is entered into as
of February 23, 2007, by
(“Guarantor”), in favor of Silicon Valley Bank
(“Bank”).
A. Concurrently
herewith, Bank and WebSideStory, Inc., a Delaware corporation
(“Borrower”), are entering into that certain Loan and
Security Agreement dated of even date herewith, (as amended,
restated, or otherwise modified from time to time, the “Loan
Agreement”) pursuant to which Bank has agreed to make certain
advances of money and to extend certain financial accommodations to
Borrower (collectively, the “Loans”), subject to the
terms and conditions set forth therein. Capitalized terms used but
not otherwise defined herein shall have the meanings given them in
the Loan Agreement.
B. In
consideration of the agreement of Bank to make the Loans to
Borrower under the Loan Agreement, Guarantor is willing to guaranty
the full payment and performance by Borrower of all of its
obligations thereunder and under the other Loan Documents, all as
further set forth herein.
C. Guarantor
is the wholly-owned subsidiary of Borrower and will obtain
substantial direct and indirect benefit from the Loans made by Bank
to Borrower under the Loan Agreement.
Now, Therefore, to induce
Bank to enter into the Loan Agreement, and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound, Guarantor
hereby represents, warrants, covenants and agrees as
follows:
1.1
Unconditional Guaranty of Payment . In consideration of the
foregoing, Guarantor hereby irrevocably, absolutely and
unconditionally guarantees to Bank the prompt and complete payment
and performance when due (whether at stated maturity, by
acceleration or otherwise) of all Obligations of Borrower under the
Loan Documents. Guarantor agrees that it shall execute such other
documents or agreements and take such action as Bank shall
reasonably request to effect the purposes of this
Guaranty.
1.2
Separate Obligations . These obligations are independent of
Borrower’s obligations and separate actions may be brought
against Guarantor (whether action is brought against Borrower or
whether Borrower is joined in the action).
Section 2.
Representations and Warranties . Guarantor hereby represents
and warrants that:
(a) Guarantor
(i) is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of
Delaware; (ii) is duly qualified to do business and is in good
standing in every jurisdiction where the nature of its business
requires it to be so qualified (except where the failure to so
qualify would not have a material adverse effect on
Guarantor’s condition, financial or otherwise, or on
Guarantor’s ability to pay or perform the obligations
hereunder); and (iii) has all requisite power and authority to
execute and deliver this Guaranty and each Loan Document executed
and delivered by Guarantor pursuant to the Loan Agreement or this
Guaranty and to perform its obligations thereunder and
hereunder.
(b) The
execution, delivery and performance by Guarantor of this Guaranty
(i) are within Guarantor’s powers and have been duly
authorized by all necessary action; (ii) do not contravene
Guarantor’s charter documents or any law or any material
contractual restriction binding on or affecting
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Guarantor or by
which Guarantor’s property may be affected; (iii) do not
require any authorization or approval or other action by, or any
notice to or filing with, any governmental authority or any other
Person under any material indenture, mortgage, deed of trust,
lease, agreement or other instrument to which Guarantor is a party
or by which Guarantor or any of its material property is bound,
except such as have been obtained or made; and (iv) do not
result in the imposition or creation of any Lien upon any property
of Guarantor, other than the Lien created pursuant to the Security
Agreement, of even date herewith.
(c) This
Guaranty is a valid and binding obligation of Guarantor,
enforceable against Guarantor in accordance with its terms, except
as the enforceability thereof may be subject to or limited by
bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws relating to or affecting the rights of creditors
generally or by equitable principles relating to
enforceability.
(d) Except
for actions or proceedings disclosed in Borrower’s public
reports filed with the Securities and Exchange Commission prior to
the Effective Date, there is no action, suit or proceeding
affecting Guarantor pending or, to Guarantor’s knowledge,
threatened before any court, arbitrator, or governmental authority,
domestic or foreign, which could reasonably be expected to have a
material adverse effect on the ability of Guarantor to perform its
obligations under this Guaranty.
(e) Guarantor’s
obligations hereunder are not subject to any offset or defense
against Bank or Borrower of any kind.
(f) To
ensure the legality, validity, enforceability or admissability into
evidence of this Guaranty in each of the jurisdictions in which
Guarantor is incorporated or organized and any jurisdiction in
which Guarantor conducts business, it is not necessary that
(i) this Guaranty be filed or recorded with any court or other
authority in such jurisdiction, (ii) any other filings,
notices, authorizations, approvals be obtained or other actions
taken, or (iii) any stamp or similar tax be paid on or with
respect to this Guaranty, or, if any of the foregoing actions are
necessary, they have been duly taken.
(g) Neither
Guarantor nor its property has any immunity from jurisdiction of
any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) under applicable law.
(h) The
incurrence of Guarantor’s obligations under this Guaranty
will not cause Guarantor to (i) become insolvent; (ii) be
left with unreasonably small capital for any business or
transaction in which Guarantor is presently engaged or plans to be
engaged; or (iii) be unable to pay its debts as such debts
mature.
(i) Guarantor
covenants, warrants, and represents to Bank that all
representations and warranties contained in this Guaranty shall be
true at the time of Guarantor’s execution of this Guaranty,
and shall continue to be true and correct in all material respects
on the date of each Advance.
Section 3.
General Waivers . Guarantor waives:
(a) Any
right to require Bank to (i) proceed against Borrower or any
other person; (ii) proceed against or exhaust any security or
(iii) pursue any other remedy. Bank may exercise or not
exercise any right or remedy it has against Borrower or any
security it holds (including the right to foreclose by judicial or
nonjudicial sale) without affecting Guarantor’s liability
hereunder.
(b) Any
defenses from disability or other defense of Borrower or from the
cessation of Borrowers liabilities.
(c) Any
setoff, defense or counterclaim against Bank.
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(d) Any
defense from the absence, impairment or loss
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