EXHIBIT 10.3
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UNCONDITIONAL GUARANTY
(VERISITY LTD.)
For and in consideration of the loan by SILICON VALLEY BANK ("Bank")
to VERISITY DESIGN, INC. ("Borrower"), which loan is made pursuant to Amended
and Restated Loan and Security Agreement of even date herewith between Borrower
and Bank (the "Agreement"), the undersigned guarantor ("Guarantor") hereby
unconditionally and irrevocably guarantees the prompt and complete payment of
all amounts that Borrower owes to Bank and performance by Borrower of the Loan
Documents (as defined in the Agreement) between Borrower and Bank, as amended
from time to time (collectively referred to as the "Agreements"), in strict
accordance with their respective terms.
1. If Borrower does not perform its obligations in strict accordance
with the Agreements, Guarantor shall immediately pay all amounts due thereunder
(including, without limitation, all principal, interest and fees) and otherwise
to proceed to complete the same and satisfy all of Borrower's obligations under
the Agreements.
2. The obligations hereunder are independent of the obligations of
Borrower, 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 Agreements.
3. Guarantor authorizes Bank, without notice or demand and without
affecting its liability hereunder, from time to time to renew, extend or
otherwise change the terms of the Agreements or any part thereof.
4. Guarantor waives any right to require Bank to (a) proceed against
Borrower or any other person; (b) proceed against or exhaust any security held
from Borrower; or (c) pursue any other remedy in Bank's power whatsoever. Bank
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 Bank, including
without limitation the right to foreclose upon any such security by judicial or
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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. Guarantor waives any setoff,
defense or counterclaim that Borrower may have against Bank. 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 all of
the amounts that Borrower owes to Bank have been paid in full, (i) Guarantor
shall have no right of subrogation or reimbursement for claims arising out of or
in connection with this Guaranty, (ii) contribution or other rights against
Borrower, (iii) Guarantor waives any right to enforce any remedy that Bank now
has or may hereafter have against Borrower and (iv) Guarantor waives all tights
to participate in any security now or hereafter held by Bank. 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. 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 Bank that it will keep so informed and
agrees that absent a request for particular information by Guarantor, Bank shall
have no duty to advise Guarantor of information known to Bank regarding such
condition or any such circumstances. Guarantor waives the benefits of California
Civil Code sections 2810, 2845, 2850, 2899 and 3433.
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 Agreements 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 Bank upon the
insolvency, bankruptcy or reorganization of Borrower, Guarantor, any other
guarantor or otherwise, as though such payment had not been made.
6. Upon an Event of Default (as defined in the Agreement) of
Borrower, any indebtedness of Borrower now or hereafter held by Guarantor is
hereby subordinated to any indebtedness of Borrower to Bank, and such
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indebtedness of Borrower to Guarantor shall be collected, enforced and received
by Guarantor as trustee for Bank and be paid over to Bank on account of the
indebtedness of Borrower to Bank but without reducing or affecting in any manner
the liability of Guarantor under the other provisions of this Guaranty;
provided, however, that if there is no Event of Default that is uncured beyond
the applicable cure period, if any, under the Agreement, any amounts received by
Guarantor on account of any indebtedness of Borrower held by Guarantor shall be
Borrower's sole and separate property and shall not be subject to recovery by
Bank if properly received pursuant to this Section 6.
7. Guarantor agrees to pay a reasonable attorneys' fee and all other
costs and expenses that may be incurred by Bank in the enforcement of this
Guaranty. No terms or provisions of this Guaranty may be changed, waived,
revoked or amended without Lender's prior written consent. Should any provision
of this Guaranty be determined by a court of competent jurisdiction to be
unenforceable, all of the other provisions shall remain effective. This
Guaranty, together with any agreements (including without limitation any
security agreements or any pledge agreements) executed in connection with this
Guaranty, embodies the entire agreement among the parties hereto with respect to
the matters set forth herein, and supersedes all prior agreements among the
parties with respect to the matters set forth herein. No course of prior dealing
among the parties, no usage of trade and no parol or extrinsic evidence of any
nature shall be used to supplement, modify or vary any of the terms hereof.
There are no conditions to the full effectiveness of this Guaranty. Bank may
assign this Guaranty without in any way affecting Guarantor's liability under
it. This Guaranty shall inure to the benefit of Bank and its successors and
assigns. This Guaranty is in addition to the guaranties of any other guarantors
and any and all other guaranties of Borrower's indebtedness or liabilities to
Bank.
8. Guarantor represents and warrants to Bank that (i) Guarantor has
taken all necessary and appropriate action to authorize the execution, delivery
and performance of this Guaranty, (ii) execution, delivery and performance of
this Guaranty do not conflict with or result in a breach of or constitute a
default under Guarantor's Articles of Association and Memorandum of Association
or other organizational documents or agreements to which it is party or by which
it is bound and (iii) this Guaranty constitutes a valid and binding obligation,
enforceable against Guarantor in accordance with its terms.
9. Guarantor covenants and agrees that Guarantor shall do all of the
following:
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9.1 Guarantor shall maintain its corporate existence, remain in
good standing in Israel, and continue to qualify in each jurisdiction in which
the failure to so qualify could reasonably be expected to have a material
adverse effect on the financial condition, operations or business of Guarantor.
Guarantor shall maintain in force all licenses, approvals and agreements, the
loss of which could reasonably be expected to have a material adverse effect on
its financial condition, operations or business.
9.2 Guarantor shall comply with all statutes, laws, ordinances,
directives, orders and government rules and regulations to which it is subject
if noncompliance with such laws could reasonably be expected to adversely affect
the financial condition, operations or business of Guarantor.
9.3 At any time and from time to time Guarantor shall execute
and deliver such further instruments and take such further action as may
reasonably be requested by Bank to effect the purposes of this Agreement.
10. This Guaranty shall be governed by the laws of the State of
California, without regard to conflicts of laws principles. GUARANTOR WAIVES ANY
RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. Guarantor submits to the exclusive jurisdiction of the State
and federal courts located in Santa ▇▇▇▇▇ County, California.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this
Guaranty as of this 31st day of December, 1998.
VERISITY LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: VP Finance/CFO
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CORPORATE RESOLUTIONS TO GUARANTEE
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Guarantor: VERISITY LTD.
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I, the undersigned Secretary or Assistant Secretary of Verisity Ltd.
(the "Corporation"), HEREBY CERTIFY that the Corporation is organized and
existing under and by virtue of the laws of the country of Israel.
I FURTHER CERTIFY that the Articles of Association and Memorandum of
Association of the Corporation attached hereto are in full force and effect on
the date hereof and have not been modified or amended as of the date hereof.
I FURTHER CERTIFY that at a meeting of the Directors of the
Corporation duly called and held, at which a quorum was present and voting (or
by other duly authorized corporate action in lieu of a meeting), the following
resolutions were adopted.
BE IT RESOLVED, that any one (1) of the following named officers,
employees or agents of this Corporation, whose actual signatures are shown
below:
NAMES POSITIONS ACTUAL SIGNATURES
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Chief Executive Officer /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Avishai Silvershatz President /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Chief Financial Officer /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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acting for an on behalf of this Corporation and as its act and deed be, and they
hereby are, authorized and empowered:
Guarantee Indebtedness. To guarantee amounts borrowed from time to
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time from Silicon Valley Bank ("Bank") by VERISITY DESIGN, INC. ("Borrower")
pursuant to that certain Amended and Restated Loan and Security
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Agreement between Bank and Borrower dated as of December 31, 1998, as amended
from time to time (the "Loan Agreement").
Execute Guaranty. To execute and deliver to Bank that certain
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Unconditional Guaranty (Verisity Ltd.) dated December 31, 1998 (the "Guaranty"),
on Bank's forms, and also to execute and deliver to Bank one or more renewals,
extensions, modifications, consolidations or substitutions therefor.
Further Acts. To do and perform such other acts and things, to pay
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any and all fees and costs and to execute and deliver such other documents and
agreements as they may in their discretion deem reasonably necessary or proper
in order to carry into effect the provisions of these Resolutions.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to
these resolutions and performed prior to the passage of these resolutions are
hereby ratified and approved, that these Resolutions shall remain in full force
and effect and Bank may rely on these Resolutions until written notice of their
revocation shall have been delivered to and received by Bank. Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
I FURTHER CERTIFY that the officers, employees and agents named above
are duly elected, appointed or employed by or for the Corporation, as the case
may be, and occupy the positions set opposite their respective names; that the
foregoing Resolutions now stand of record on the books of the Corporation; and
that the Resolutions are in full force and effect and have not been modified or
revoked in any manner whatsoever.
IN WITNESS WHEREOF, I have hereunto set my hand on December 31, 1998,
and attest that the signatures set opposite the names listed above are their
genuine signatures.
CERTIFIED TO AND ATTESTED BY:
X /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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