UNCONDITIONAL
GUARANTY
In
consideration of one or more extensions of credit by Silicon
Valley Bank ("Bank") to GigOptix, LLC , an Idaho limited
liability company ("Borrower"), GigOptix, Inc. , a Delaware
corporation ("Guarantor") unconditionally and irrevocably
guarantees (i) payment and performance of all indebtedness of
Borrower to Bank; (ii) Borrower’s performance of
the under the Loan and Security Agreement dated October 5,
2007 (the "Agreement") and any other Loan Documents (as that
term is defined in the Agreement) between Borrower and Bank, each
as amended from time to time (collectively the "Agreements"); and
(iii) performance by Borrower of all of its other obligations to
Bank; in each case, according to their terms.
1. If Borrower does not pay or
perform any of its obligations to Bank under the Agreements or
otherwise, Guarantor will immediately pay all amounts due
(including, without limitation, all principal, interest, and fees)
and satisfy all of Borrower's obligations to Bank.
2. Guarantor’s obligations are
independent of the obligations of Borrower or any other guarantor,
and separate actions may be brought against Guarantor (whether
action is brought against Borrower or any other guarantor, or
whether Borrower or any other guarantor is joined in the
action). Guarantor waives the benefit of any statutes of
limitations affecting its liability. Guarantor's
liability is not contingent on the genuineness or enforceability of
the Agreements.
3. Without notice to Guarantor and
without affecting Guarantor’s obligations under this
Guaranty, Bank may (a) renew, extend, or otherwise change the terms
of the Agreements; (b) take security for the payment of this
Guaranty or the Agreements or other obligations; (c) exchange,
enforce, waive and release any security; and (d) apply the security
and direct its sale as Bank, in its discretion, chooses.
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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.
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Any defenses
from disability or other defense of Borrower or from the cessation
of Borrowers liabilities.
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Any setoff,
defense or counterclaim against Bank.
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Any right to
enforce any remedy that Bank has against Borrower, any other
guarantor or any other person.
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Any rights to
participate in any security held by Bank.
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Any demands for
performance, notices of nonperformance or of new or additional
indebtedness. Unless Guarantor makes a written request
for particular information, Bank has no duty to provide information
to Guarantor.
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The benefits of
California Civil Code sections 2809, 2810, 2819, 2845,
2847, 2849, 2850, 2899 and 3433.
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5. Guarantor acknowledges that, to
the extent Guarantor has or may have rights of subrogation or
reimbursement against Borrower for claims arising out of this
Guaranty, those rights may be impaired or destroyed if Bank elects
to proceed against any real property security of Borrower by
non-judicial foreclosure. That impairment or destruction
could, under certain judicial cases and based on equitable
principles of estoppel, give rise to a defense by Guarantor against
its obligations under this Guaranty. Guarantor waives
that defense and any others arising from Bank’s election to
pursue non-judicial foreclosure. Without limiting the
generality of the foregoing, Guarantor waives all benefits and
defenses under California Code of Civil Procedure Sections 580a,
580b, 580d and 726, to the extent they apply.
6. Guarantor’s obligations and
liability under this Guaranty will continue and not be affected
regardless of whether (i) Borrower becomes insolvent or becomes a
debtor under the United States Bankruptcy Code, or (ii) any
obligation under the Agreements is terminated or reject
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