Exhibit
10.1(g)
UNCONDITIONAL
GUARANTY
(US GUARANTOR)
BRIDGE BANK, N.A.
(“Lender”)
proposes to enter into a loan transaction with EVOLVING
SYSTEMS LIMITED (“Borrower”), which is an
indirect, Wholly-Owned Subsidiary of the undersigned guarantor
(“Guarantor”). The loan and other credit
extensions are being made by Lender to Borrower pursuant to a Loan
Agreement dated as of February 22, 2008 (as the same now
exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced from time to time (the
“Agreement”). Guarantor expects to derive
economic benefit from Lender’s doing so and dealing with
Borrower in accordance with the Agreement and other Loan
Documents. All terms used without definition in this
Guaranty shall have the meaning assigned to them in the
Agreement. Terms defined in the California Uniform Commercial
Code as in effect from time to time (the “Code”) and
not otherwise defined in this Guaranty or the Agreement shall have
the meanings defined for those terms in the Code. With
respect to terms defined in more than one article of the Code,
unless otherwise specified such terms will have the meaning
specified in Article 9 of the Code.
For
and in consideration of the loans and other credit extensions by
Lender to Borrower, and acknowledging that Lender would not enter
into the Agreement without the benefit of this Guaranty
(“Guaranty”), Guarantor hereby unconditionally and
irrevocably guarantees the prompt and complete payment and
performance by the Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the
Obligations.
NOW, THEREFORE
, Guarantor and the Lender
agree as follows:
1.
If Borrower does not pay
or perform when due any of the Obligations in strict accordance
with the Agreement, Guarantor shall promptly pay all amounts due
thereunder (including, without limitation, all principal, interest,
and fees) and otherwise to proceed to perform the
Obligations.
2.
If there is more than one
guarantor, the obligations hereunder are joint and several, and
whether or not there is more than one guarantor, the obligations
hereunder are independent of the obligations of Borrower and any
other person or entity, and a separate action or actions may be
brought and prosecuted against Guarantor whether action is brought
against Borrower or whether Borrower be joined in any such action
or actions. Guarantor waives the benefit of any statute of
limitations affecting its liability hereunder or the enforcement
thereof, to the extent permitted by law. Guarantor’s
liability under this Guaranty is not conditioned or contingent upon
the genuineness, validity, regularity or enforceability of the
Agreement.
3.
Guarantor authorizes
Lender, without notice or demand to Guarantor and without affecting
its liability hereunder, from time to time in accordance with the
applicable provisions of the Agreement and the other Loan Documents
to (a) renew, extend, or otherwise change the terms of the
Agreement or any part thereof; (b) take and hold security for
the payment of this Guaranty or the Agreement, and exchange,
enforce, waive and release any such security; and (c) apply
such security and direct the order or manner of sale thereof as
Lender in its sole discretion may determine.
4.
Guarantor waives any right
to require Lender to (a) proceed against Borrower, any
guarantor or any other person; (b) proceed against or exhaust
any security held from Borrower; or (c) pursue any other
remedy in Lender’s power whatsoever. Lender may, at its
election, exercise or decline or fail to exercise any right or
remedy it may have against Borrower or any security held by Lender,
including without limitation the right to foreclose upon any such
security by judicial or nonjudicial sale, without affecting or
impairing in any way the liability of Guarantor hereunder.
Guarantor waives any defense arising by reason of any disability or
other defense of Borrower or by reason of the cessation from any
cause whatsoever of the liability of Borrower other than
satisfaction in full of the Obligations. Guarantor waives any
setoff, defense or counterclaim that Borrower may have against
Lender other than satisfaction in full of the Obligations.
Guarantor waives any defense arising out of the absence, impairment
or loss of any right of reimbursement or subrogation or any other
rights against Borrower. Until the Obligations have been paid
in full, (other than contingent indemnification Obligations to the
extent no claim giving rise thereto has been asserted), Guarantor
shall have no right of subrogation or reimbursement, contribution
or other rights against Borrower arising out or relating to, this
Guaranty or any sums paid by Guarantor hereunder, and Guarantor
waives any right to enforce any remedy that Lender now has or may
hereafter have against Borrower arising out or relating to this
Guaranty or any sums paid by such Guarantor hereunder.
Guarantor waives all presentments, demands for
performance, notices of nonperformance,
protests, notices of protest, notices of dishonor, and notices of
acceptance of this Guaranty and of the existence, creation, or
incurring of new or additional indebtedness. Notwithstanding
the foregoing, Guarantor does not hereby waive any notices
specifically required in any Loan Document to which Guarantor is a
party but agrees that the failure of Lender to provide any such
notices pursuant to the provisions of any such Loan Document shall
not release or diminish Guarantor’s obligations, liabilities,
agreements or duties hereunder, or otherwise affect this Guaranty
in any way. Guarantor assumes the responsibility for being
and keeping itself informed of the financial condition of Borrower
and of all other circumstances bearing upon the risk of nonpayment
of any indebtedness or nonperformance of any obligation of
Borrower, warrants to Lender that it will keep so informed, and
agrees that absent a request for particular information by
Guarantor, Lender shall not have any duty to advise Guarantor of
information known to Lender regarding such condition or any such
circumstances. Guarantor waives the benefits of California
Civil Code sections 2809, 2810, 2819, 2845, 2847, 2848, 2849, 2850,
2899 and 3433. The waivers of rights in this
Section 4 are made to the extent permitted by applicable law
and are made in favor of Lender only and shall not be deemed a
waiver of such rights for the benefit of any other
Person.
5.
If Borrower becomes
insolvent or is adjudicated bankrupt or files a petition for
reorganization, arrangement, composition or similar relief under
any present or future provision of the United States Bankruptcy
Code or if such a petition is filed against Borrower, and in any
such proceeding some or all of any indebtedness or obligations
under the Agreement are terminated or rejected or any obligation of
Borrower is modified or abrogated, or if Borrower’s
obligations are otherwise avoided for any reason, Guarantor agrees
that Guarantor’s liability hereunder shall not thereby be
affected or modified and such liability shall continue in full
force and effect as if no such action or proceeding had
occurred. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if any payment must be returned by
Lender upon the insolvency, bankruptcy or reorg
