{"id":41056,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/guaranty-storagetek-holding-corp-and-bank-of-america-na.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"guaranty-storagetek-holding-corp-and-bank-of-america-na","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/guaranty-storagetek-holding-corp-and-bank-of-america-na.html","title":{"rendered":"Guaranty &#8211; StorageTek Holding Corp. and Bank of America NA"},"content":{"rendered":"<pre>\n                                    GUARANTY\n\n\n                  THIS GUARANTY (this \"Guaranty\"), dated as of October 10, 2001,\nis made by StorageTek Holding Corporation, a Nevada corporation (the\n\"Guarantor\"), in favor of the Banks party to the Credit Agreement referred to\nbelow and Bank of America, N.A., as Agent and Issuing Bank and Collateral Agent.\n\n                                    RECITALS\n\n                  WHEREAS, Storage Technology Corporation, a Delaware\ncorporation (the \"Borrower\"), the Banks and the Agent are parties to a Credit\nAgreement dated as of October 10, 2001 (as amended, modified, renewed or\nextended from time to time, the \"Credit Agreement\");\n\n                  WHEREAS, it is a condition precedent to the making of Loans\nunder the Credit Agreement that the Guarantor execute and deliver this Guaranty;\nand\n\n                  WHEREAS, the Guarantor will derive substantial direct and\nindirect benefits from the credit extensions to the Borrower pursuant to the\nCredit Agreement (which benefits are hereby acknowledged by the Guarantor).\n\n                  NOW, THEREFORE, for good and valuable consideration the\nreceipt and the adequacy of which is hereby acknowledged, the Guarantor hereby\nagrees as follows:\n\n                  SECTION 1 Definitions; Interpretation.\n\n                  (a) Terms Defined in Credit Agreement.  All capitalized terms\n                      ---------------------------------\nused in this Guaranty and not otherwise defined herein shall have the meanings\nassigned to them in the Credit Agreement.\n\n                  (b) Certain Defined Terms.  As used in this Guaranty, the \n                      ---------------------\nfollowing terms shall have the following meanings:\n\n                  \"Guaranteed Obligations\" has the meaning set forth in Section\n                   ----------------------\n2.\n\n                  \"Guarantor Documents\" means this Guaranty, and all other\n                   -------------------\ncertificates, documents, agreements and instruments delivered to the Agent and\nthe Banks under or in connection with this Guaranty.\n\n                  \"Solvent\" means, as to any Person at any time, that (a) the\n                   -------\nfair value of the property of such Person is greater than the amount of such\nPerson's liabilities (including disputed, contingent and unliquidated\nliabilities) as such value is established and liabilities evaluated for purposes\nof Section 101(31) of the Bankruptcy Code and, in the alternative, for purposes\nof the California Uniform Fraudulent Transfer Act; (b) the present fair saleable\nvalue of the property of such Person is not less than the amount that will be\nrequired to pay the probable liability of such Person on its debts as they\nbecome absolute and matured; (c) such Person is able to realize upon its\nproperty and pay its debts and other liabilities (including disputed, contingent\n\n\n                                       1\n\n\nand unliquidated liabilities) as they mature in the normal course of business;\n(d) such Person does not intend to, and does not believe that it will, incur\ndebts or liabilities beyond such Person's ability to pay as such debts and\nliabilities mature; and (e) such Person is not engaged in business or a\ntransaction, and is not about to engage in business or a transaction, for which\nsuch Person's property would constitute unreasonably small capital.\n\n                  (c) Interpretation.  The rules of interpretation set forth in\n                      --------------\nSection 1.2 of the Credit Agreement shall be applicable to this Guaranty and are\nincorporated herein by this reference.\n\n                  SECTION 2  Guaranty.\n                             --------\n\n                  (a) Guaranty. The Guarantor hereby unconditionally and\n                      --------\nirrevocably guarantees to the Agent and the Banks, and their respective\nsuccessors, endorsees, transferees and assigns, the full and prompt payment when\ndue (whether at stated maturity, by required prepayment, declaration,\nacceleration, demand or otherwise) and performance of the indebtedness,\nliabilities and other monetary obligations of the Borrower to the Agent and the\nBanks under or in connection with the Credit Agreement, the Letters of Credit\nand the other Loan Documents, including all unpaid principal of the Loans, all\ninterest accrued thereon, all fees due under the Credit Agreement and all other\namounts payable by the Borrower to the Agent and the Banks thereunder or in\nconnection therewith. The terms \"indebtedness,\" \"liabilities\" and \"obligations\"\nare used herein in their most comprehensive sense and include any and all\nadvances, debts, obligations and liabilities, now existing or hereafter arising,\nwhether voluntary or involuntary and whether due or not due, absolute or\ncontingent, liquidated or unliquidated, determined or undetermined, and whether\nrecovery upon such indebtedness, liabilities and obligations may be or hereafter\nbecome unenforceable or shall be an allowed or disallowed claim under the\nBankruptcy Code or other applicable law. The foregoing indebtedness, liabilities\nand other obligations of the Borrower, and all other indebtedness, liabilities\nand obligations to be paid or performed by the Guarantor in connection with this\nGuaranty (including any and all amounts due under Section 15), shall hereinafter\nbe collectively referred to as the \"Guaranteed Obligations.\"\n                                    ----------------------\n\n                  (b) Limitation of Guaranty. To the extent that any court of\n                      ----------------------\ncompetent jurisdiction shall impose by final judgment under applicable law\n(including the California Uniform Fraudulent Transfer Act and ss.ss.544 and 548\nof the Bankruptcy Code) any limitations on the amount of the Guarantor's\nliability with respect to the Guaranteed Obligations which the Agent or the\nBanks can enforce under this Guaranty, the Agent and the Banks by their\nacceptance hereof accept such limitation on the amount of the Guarantor's\nliability hereunder to the extent needed to make this Guaranty and the Guarantor\nDocuments fully enforceable and nonavoidable.\n\n                  SECTION 3 Liability of Guarantor. The liability of the\n                            ----------------------\nGuarantor under this Guaranty shall be irrevocable, absolute, independent and\nunconditional, and shall not be affected by any circumstance which might\nconstitute a discharge of a surety or guarantor other than the payment and\nperformance in full of all Guaranteed Obligations. In furtherance of the\nforegoing and without limiting the generality thereof, the Guarantor agrees as\nfollows:\n\n                                       2\n\n\n                  (i) the Guarantor's liability hereunder shall be the\nimmediate, direct, and primary obligation of the Guarantor and shall not be\ncontingent upon the Agent's or any Bank's exercise or enforcement of any remedy\nit may have against the Borrower or any other Person, or against any Collateral;\n\n                  (ii) this Guaranty is a guaranty of payment when due and not\nmerely of collectibility;\n\n                  (iii) the Guarantor's payment of a portion, but not all, of\nthe Guaranteed Obligations shall in no way limit, affect, modify or abridge the\nGuarantor's liability for any portion of the Guaranteed Obligations remaining\nunsatisfied; and\n\n                  (iv) the Guarantor's liability with respect to the Guaranteed\nObligations shall remain in full force and effect without regard to, and shall\nnot be impaired or affected by, nor shall the Guarantor be exonerated or\ndischarged by, any of the following events:\n\n                           (A) any proceeding under any Insolvency Proceeding\nwith respect to the Borrower, any other guarantor or any other Person;\n\n                           (B) any limitation, discharge, or cessation of the\nliability of the Borrower, any other guarantor or any other Person for any\nGuaranteed Obligations due to any statute, regulation or rule of law, or any \ninvalidity or unenforceability in whole or in part of any of the Guaranteed\nObligations or the Loan Documents;\n\n                           (C) any merger, acquisition, consolidation or change\nin structure of the Borrower, the Guarantor or any other guarantor or Person, or\nany sale, lease, transfer or other disposition of any or all of the assets or\nshares of the Borrower, the Guarantor, any other guarantor or other Person;\n\n                           (D) any assignment or other transfer, in whole or in\npart, of the Agent's or any Bank's interests in and rights under this Guaranty\nor the other Loan Documents, including the Agent's or any Bank's right to\nreceive payment of the Guaranteed Obligations;\n\n                           (E) any claim, defense, counterclaim or setoff, other\nthan that of prior performance, that the Borrower, the Guarantor, any other\nguarantor or other Person may have or assert, including any defense of\nincapacity or lack of corporate or other authority to execute any of the Loan\nDocuments;\n\n                           (F) the Agent's or any Bank's amendment, \nmodification, renewal, extension, cancellation or surrender of any Loan\nDocument;\n\n                           (G) the Agent's or any Bank's vote, claim, \ndistribution, election, acceptance, action or inaction in any proceeding under\nany Insolvency Proceeding related to the Guaranteed Obligations;\n\n                           (H) any impairment or invalidity of any collateral\nsecuring any of the Guaranteed Obligations or any failure to perfect any of the\nLiens of the Agent and the Banks thereon or therein; and\n\n                                       3\n\n\n                           (I) any other guaranty, whether by the Guarantor or\nany other Person, of all or any part of the Guaranteed Obligations or any other\nindebtedness, obligations or liabilities of the Borrower to the Agent or the\nBanks.\n\n                  SECTION 4 Consents of Guarantor. The Guarantor hereby\n                            ---------------------\nunconditionally consents and agrees that, without notice to or further assent\nfrom the Guarantor:\n\n                  (i) the principal amount of the Guaranteed Obligations may be\nincreased or decreased and additional indebtedness or obligations of the\nBorrower under the Loan Documents may be incurred, by one or more amendments,\nmodifications, renewals or extensions of any Loan Document or otherwise;\n\n                  (ii) the time, manner, place or terms of any payment under any\nLoan Document may be extended or changed, including by an increase or decrease\nin the interest rate on any Guaranteed Obligation or any fee or other amount\npayable under such Loan Document, by an amendment, modification or renewal of\nany Loan Document or otherwise;\n\n                  (iii) the time for the Borrower's (or any other Person's)\nperformance of or compliance with any term, covenant or agreement on its part to\nbe performed or observed under any Loan Document may be extended, or such\nperformance or compliance waived, or failure in or departure from such\nperformance or compliance consented to, all in such manner and upon such terms\nas the Agent and the Banks may deem proper;\n\n                  (iv) the Agent or the Banks may discharge or release, in whole\nor in part, any other guarantor or any other Person liable for the payment and\nperformance of all or any part of the Guaranteed Obligations, and may permit or\nconsent to any such action or any result of such action, and shall not be\nobligated to demand or enforce payment upon any collateral, nor shall the Agent\nor the Banks be liable to the Guarantor for any failure to collect or enforce\npayment or performance of the Guaranteed Obligations from any Person or to\nrealize on any collateral therefor;\n\n                  (v) Agent and the Banks may take and hold other security\n(legal or equitable) of any kind, at any time, as collateral for the Guaranteed\nObligations, and may, from time to time, in whole or in part, exchange, sell,\nsurrender, release, subordinate, modify, waive, rescind, compromise or extend\nsuch security and may permit or consent to any such action or the result of any\nsuch action, and may apply such security and direct the order or manner of sale\nthereof;\n\n                  (vi) the Agent and the Banks may request and accept other\nguaranties of the Guaranteed Obligations and any other indebtedness, obligations\nor liabilities of the Borrower to the Agent or the Banks and may, from time to\ntime, in whole or in part, surrender, release, subordinate, modify, waive,\nrescind, compromise or extend any such guaranty and may permit or consent to any\nsuch action or the result of any such action; and\n\n                  (vii) the Agent and the Banks may exercise, or waive or\notherwise refrain from exercising, any other right, remedy, power or privilege\n(including the right to accelerate the maturity of any Loan and any power of\nsale) granted by any Loan Document or other security document or agreement, or\notherwise available to the Agent and the Banks, with respect to the Guaranteed\nObligations or any collateral, even if the exercise of such right, remedy, power\n\n\n                                       4\n\n\nor privilege affects or eliminates any right of subrogation or any other right\nof the Guarantor against the Borrower;\n\nall as the Agent and the Banks may deem advisable, and all without impairing,\nabridging, releasing or affecting this Guaranty.\n\n                  SECTION 5 Guarantor's Waivers.\n                            -------------------\n\n                  (a) Certain Waivers.  The Guarantor waives and agrees not to \n                      ---------------\nassert:\n\n                  (i) any right to require the Agent or any Bank to marshal\nassets in favor of the Borrower, the Guarantor, any other guarantor or any other\nPerson, to proceed against the Borrower, any other guarantor or any other\nPerson, to proceed against or exhaust any of the Collateral, to give notice of\nthe terms, time and place of any public or private sale of personal property\nsecurity constituting the Collateral or other collateral for the Guaranteed\nObligations or comply with any other provisions of ss.9-504 of the California\nUCC (or any equivalent provision of any other applicable law) or to pursue any\nother right, remedy, power or privilege of the Agent or any Bank whatsoever;\n\n                  (ii) the defense of the statute of limitations in any action\nhereunder or for the collection or performance of the Guaranteed Obligations;\n\n                  (iii) any defense arising by reason of any lack of corporate\nor other authority or any other defense of the Borrower, the Guarantor or any\nother Person;\n                  (iv) any defense based upon the Agent's or any Bank's errors\nor omissions in the administration of the Guaranteed Obligations;\n\n                  (v) any rights to set-offs and counterclaims;\n\n                  (vi) any defense based upon an election of remedies\n(including, if available, an election to proceed by nonjudicial foreclosure)\nwhich destroys or impairs the subrogation rights of the Guarantor or the right\nof the Guarantor to proceed against the Borrower or any other obligor of the\nGuaranteed Obligations for reimbursement; and\n\n                  (vii) without limiting the generality of the foregoing, to the\nfullest extent permitted by law, any defenses or benefits that may be derived\nfrom or afforded by applicable law limiting the liability of or exonerating\nguarantors or sureties, or which may conflict with the terms of this Guaranty,\nincluding any and all benefits that otherwise might be available to the\nGuarantor under California Civil Code ss.ss.1432, 2809, 2810, 2815, 2819, 2839,\n2845, 2848, 2849, 2850, 2899 and 3433 and California Code of Civil Procedure\nss.ss.580a, 580b, 580d and 726, and any similar laws in any states in which any\nreal property collateral is situated. Accordingly, the Guarantor waives all\nrights and defenses that the Guarantor may have because the Borrower's debt is\nsecured by real property. This means, among other things: (A) the Agent and the\nBanks may collect from the Guarantor without first foreclosing on any real or\npersonal property collateral pledged by the Borrower; and (B) if the Agent\nforecloses on any real property collateral pledged by the Borrower: (1) the\namount of the debt may be reduced only by the price for which that collateral is\nsold at the foreclosure sale, even if the collateral is worth more than the sale\n\n\n                                       5\n\n\nprice, and (2) the Agent and the Banks may collect from the Guarantor even if\nthe Agent, by foreclosing on the real property collateral, has destroyed any\nright the Guarantor may have to collect from the Borrower. This is an\nunconditional and irrevocable waiver of any rights and defenses the Guarantor\nmay have because the Borrower's debt is secured by real property. These rights\nand defenses include, but are not limited to, any rights of defenses based upon\nSection 580a, 580b, 580d or 726 of the California Code of Civil Procedure\n\n                  (b) Additional Waivers. The Guarantor waives any and all\n                      ------------------\nnotice of the acceptance of this Guaranty, and any and all notice of the\ncreation, renewal, modification, extension or accrual of the Guaranteed\nObligations, or the reliance by the Agent and the Banks upon this Guaranty, or\nthe exercise of any right, power or privilege hereunder. The Guaranteed\nObligations shall conclusively be deemed to have been created, contracted,\nincurred and permitted to exist in reliance upon this Guaranty. The Guarantor\nwaives promptness, diligence, presentment, protest, demand for payment, notice\nof default, dishonor or nonpayment and all other notices to or upon the\nBorrower, the Guarantor or any other Person with respect to the Guaranteed\nObligations.\n\n                  (c) Independent Obligations. The obligations of the Guarantor\n                      -----------------------\nhereunder are independent of and separate from the obligations of the Borrower\nand any other guarantor and upon the occurrence and during the continuance of\nany Event of Default, a separate action or actions may be brought against the\nGuarantor, whether or not the Borrower or any such other guarantor is joined\ntherein or a separate action or actions are brought against the Borrower or any\nsuch other guarantor.\n\n                  (d) Financial Condition of Borrower. The Guarantor shall not\n                      -------------------------------\nhave any right to require the Agent or the Banks to obtain or disclose any\ninformation with respect to: (i) the financial condition or character of the\nBorrower or the ability of the Borrower to pay and perform the Guaranteed\nObligations; (ii) the Guaranteed Obligations; (iii) the existence or\nnonexistence of any other guarantees of all or any part of the Guaranteed\nObligations; (iv) any action or inaction on the part of the Agent or the Banks\nor any other Person; or (v) any other matter, fact or occurrence whatsoever.\n\n                  SECTION 6 Subrogation. Until the Guaranteed Obligations shall\n                            -----------\nbe satisfied in full and the Commitments shall be terminated, the Guarantor\nshall not have, and shall not directly or indirectly exercise, (i) any rights\nthat it may acquire by way of subrogation under this Guaranty, by any payment\nhereunder or otherwise, (ii) any rights of contribution, indemnification,\nreimbursement or similar suretyship claims arising out of this Guaranty or (iii)\nany other right which it might otherwise have or acquire (in any way whatsoever)\nwhich could entitle it at any time to share or participate in any right, remedy\nor security of the Banks or the Agent as against the Borrower or other\nguarantors, whether in connection with this Guaranty, any of the other Loan\nDocuments or otherwise. If any amount shall be paid to the Guarantor on account\nof the foregoing rights at any time when all the Guaranteed Obligations shall\nnot have been paid in full, such amount shall be held in trust for the benefit\nof the Agent and the Banks and shall forthwith be paid to the Agent to be\ncredited and applied to the Guaranteed Obligations, whether matured or\nunmatured, in accordance with the terms of the Loan Documents.\n\n                                       6\n\n\n                  SECTION 7  Subordination.\n                             -------------\n\n                  (a) Subordination to Payment of Guaranteed Obligations. All\n                      --------------------------------------------------\npayments on account of all indebtedness, liabilities and other obligations of\nthe Borrower to the Guarantor, whether created under, arising out of or in\nconnection with any documents or instruments evidencing any credit extensions to\nBorrower or otherwise, including all principal on any such credit extensions,\nall interest accrued thereon, all fees and all other amounts payable by the\nBorrower to the Guarantor in connection therewith, whether now existing or\nhereafter arising, and whether due or to become due, absolute or contingent,\nliquidated or unliquidated, determined or undetermined (the \"Subordinated Debt\")\n                                                             -----------------\nshall be subject, subordinate and junior in right of payment and exercise of\nremedies, to the extent and in the manner set forth herein, to the prior payment\nin full in cash or cash equivalents of the Guaranteed Obligations.\n\n                  (b) No Payments. As long as any of the Guaranteed Obligations\n                      -----------\nshall remain outstanding and unpaid, the Guarantor shall not accept or receive\nany payment or distribution by or on behalf of the Borrower, directly or\nindirectly, of assets of the Borrower of any kind or character, whether in cash,\nproperty or securities, including on account of the purchase, redemption or\nother acquisition of Subordinated Debt, as a result of any collection, sale or\nother disposition of collateral, or by setoff, exchange or in any other manner,\nfor or on account of the Subordinated Debt (\"Subordinated Debt Payments\"),\n                                             --------------------------\nexcept that if no Event of Default exists and no notice described below has been\nreceived by the Guarantor, the Guarantor shall be entitled to accept and receive\nregularly scheduled payments and other payments on the Subordinated Debt, in\naccordance with the terms of the documents and instruments governing the\nSubordinated Debt and other Subordinated Debt Payments in respect of\nSubordinated Debt not evidenced by documents or instruments (including in\nrespect of Dispositions), in each case to the extent not prohibited under the\nCredit Agreement. During the existence of an Event of Default (or if any Event\nof Default would exist immediately after the making of a Subordinated Debt\nPayment), and upon receipt by the Borrower of notice from the Agent or any Bank\nof such Default, and until such Event of Default is cured or waived, the\nBorrower shall not make, accept or receive any Subordinated Debt Payment. In the\nevent that, notwithstanding the provisions of this Section 7, any Subordinated\nDebt Payments shall be received in contravention of this Section 7 by the\nGuarantor before all Guaranteed Obligations are paid in full in cash or cash\nequivalents, such Subordinated Debt Payments shall be held in trust for the\nbenefit of the Agent and the Banks and shall be paid over or delivered to the\nAgent for application to the payment in full in cash or cash equivalents of all\nGuaranteed Obligations remaining unpaid to the extent necessary to give effect\nto this Section 7, after giving effect to any concurrent payments or\ndistributions to the Agent and the Banks in respect of the Guaranteed\nObligations.\n\n                  (c) Subordination of Remedies. As long as any Guaranteed\n                      -------------------------\nObligations shall remain outstanding and unpaid, the Guarantor shall not,\nwithout the prior written consent of the Agent:\n\n                  (i) accelerate or bring suit or institute any other actions or\nproceedings to enforce its rights or interests under or in respect of the \nSubordinated Debt;\n\n                  (ii) exercise any rights under or with respect to (A) any\nguaranties of the Subordinated Debt, or (B) any collateral held by it, including\ncausing or compelling the pledge or delivery of any collateral, any attachment\n\n\n                                       7\n\n\nof, levy upon, execution against, foreclosure upon or the taking of other action\nagainst or institution of other proceedings with respect to any collateral held\nby it, notifying any account debtors of the Borrower or asserting any claim or\ninterest in any insurance with respect to any collateral, or attempt to do any\nof the foregoing;\n\n                  (iii) exercise any rights to set-offs and counterclaims in\nrespect of any indebtedness, liabilities or obligations of the Guarantor to the\nBorrower against any of the Subordinated Debt; or\n\n                  (iv) commence, or cause to be commenced, or join with any\ncreditor other than the Agent and the Banks in commencing, any proceeding under\nany Debtor Relief Laws as against Borrower.\n\n                  (d) Subordination Upon Any Distribution of Assets of the\n                      ----------------------------------------------------\nBorrower. In the event of any payment or distribution of assets of the Borrower\n--------\nof any kind or character, whether in cash, property or securities, upon any\nproceeding under any Debtor Relief Laws with respect to or involving the\nBorrower, (i) all amounts owing on account of the Guaranteed Obligations,\nincluding all interest accrued thereon at the contract rate both before and\nafter the initiation of any such proceeding, whether or not an allowed claim in\nany such proceeding, shall first be paid in full in cash, or payment provided\nfor in cash or in cash equivalents, before any Subordinated Debt Payment is\nmade; and (ii) to the extent permitted by applicable law, any Subordinated Debt\nPayment to which the Guarantor would be entitled except for the provisions\nhereof, shall be paid or delivered by the trustee in bankruptcy, receiver,\nassignee for the benefit of creditors or other liquidating agent making such\npayment or distribution directly to the Agent (on behalf of the Banks) for\napplication to the payment of the Guaranteed Obligations in accordance with\nclause (i), after giving effect to any concurrent payment or distribution or\nprovision therefor to the Agent or the Banks in respect of such Guaranteed\nObligations.\n\n                  (e) Authorization to Agent.  If, while any Subordinated Debt \n                      ----------------------\nis outstanding, any proceeding under any Debtor Relief laws is commenced by or\nagainst the Borrower or its property:\n\n                  (i) the Agent, when so instructed by the Required Banks, is\nhereby irrevocably authorized and empowered (in the name of the Banks or in the\nname of the Guarantor or otherwise), but shall have no obligation, to demand,\nsue for, collect and receive every payment or distribution in respect of the\nSubordinated Debt and give acquittance therefor and to file claims and proofs of\nclaim and take such other action (including voting the Subordinated Debt) as it\nmay deem necessary or advisable for the exercise or enforcement of any of the\nrights or interests of the Agent and the Banks; and\n\n                  (ii) the Guarantor shall promptly take such action as the\nAgent (on instruction from the Required Banks) may reasonably request (A) to\ncollect the Subordinated Debt for the account of the Banks and to file\nappropriate claims or proofs of claim in respect of the Subordinated Debt, (B)\nto execute and deliver to the Agent, such powers of attorney, assignments and\nother instruments as it may request to enable it to enforce any and all claims\nwith respect to the Subordinated Debt, and (C) to collect and receive any and\nall Subordinated Debt Payments.\n\n                                       8\n\n\n                  SECTION 8  Continuing Guaranty; Reinstatement.\n                             ----------------------------------\n\n                  (a) Continuing Guaranty.  This Guaranty is a continuing \n                      -------------------\nguaranty and agreement of subordination and shall continue in effect and be\nbinding upon the Guarantor until termination of the Commitments and payment and\nperformance in full of the Guaranteed Obligations.\n\n                  (b) Reinstatement. This Guaranty shall continue to be\n                      -------------\neffective or shall be reinstated and revived, as the case may be, if, for any\nreason, any payment of the Guaranteed Obligations by or on behalf of the\nBorrower (or receipt of any proceeds of collateral) shall be rescinded,\ninvalidated, declared to be fraudulent or preferential, set aside, voided or\notherwise required to be repaid to the Borrower, its estate, trustee, receiver\nor any other Person (including under any Debtor Relief Laws or other state or\nfederal law), or must otherwise be restored by the Agent or any Bank, whether as\na result of proceedings under any Debtor Relief Laws or otherwise. To the extent\nany payment is so rescinded, set aside, voided or otherwise repaid or restored,\nthe Guaranteed Obligations shall be revived in full force and effect without\nreduction or discharge for such payment. All losses, damages, costs and expenses\nthat the Agent or the Banks may suffer or incur as a result of any voided or\notherwise set aside payments shall be specifically covered by the indemnity in\nfavor of the Banks and the Agent contained in Section 16.\n\n                  SECTION 9 Payments. The Guarantor hereby agrees, in\n                            --------\nfurtherance of the foregoing provisions of this Guaranty and not in limitation\nof any other right which the Agent or any Bank or any other Person may have\nagainst the Guarantor by virtue hereof, upon the failure of the Borrower to pay\nany of the Guaranteed Obligations when and as the same shall become due, whether\nat stated maturity, by required prepayment, declaration, acceleration, demand or\notherwise (including amounts that would become due but for the operation of the\nautomatic stay under ss.362(a) of the Bankruptcy Code), the Guarantor shall\nforthwith pay, or cause to be paid, in cash, to the Agent an amount equal to the\namount of the Guaranteed Obligations then due as aforesaid (including interest\nwhich, but for the filing of a petition in any proceeding under any Debtor\nRelief Laws with respect to the Borrower, would have accrued on such Guaranteed\nObligations, whether or not a claim is allowed against the Borrower for such\ninterest in any such proceeding under any Debtor Relief Laws). The Guarantor\nshall make each payment hereunder, unconditionally in full without set-off,\ncounterclaim or other defense, or deduction for any Taxes, on the day when due\nin Dollars and in same day or immediately available funds, to the Agent at such\noffice of the Agent and to such account as are specified in the Credit\nAgreement. All such payments shall be promptly applied from time to time by the\nAgent as provided in the Credit Agreement.\n\n                  SECTION 10 Representations and Warranties. The Guarantor\n                             ------------------------------\nrepresents and warrants to the Agent and each Bank that:\n\n                  (a) Organization and Powers. The Guarantor is a corporation\n                      -----------------------\nduly organized, validly existing and in good standing under the laws of the\njurisdiction of its incorporation or formation, is qualified to do business and\nis in good standing in each jurisdiction in which the failure so to qualify or\nbe in good standing would have a Material Adverse Effect and has all requisite\npower and authority to own its assets and carry on its business and, with\nrespect to the Guarantor, to execute, deliver and perform its obligations under\nthe Guarantor Documents.\n\n                                       9\n\n\n                  (b) Authorization; No Conflict. The execution, delivery and\n                      --------------------------\nperformance by the Guarantor of this Guaranty and any other Guarantor Documents\nhave been duly authorized by all necessary corporate action of the Guarantor,\nand do not and will not: (i) contravene the terms of the Guarantor's\norganization documents or (ii) conflict with or result in any breach or\ncontravention of, or the creation of any Lien under, any document evidencing any\nmaterial Contractual Obligation to which the Guarantor is a party or any order,\ninjunction, writ or decree of any Governmental Authority to which the Guarantor\nor its property is subject, or (iii) violate any Law.\n\n                  (c) Binding Obligation. This Guaranty and the other Guarantor\n                      ------------------\nDocuments constitute the legal, valid and binding obligation of the Guarantor,\nenforceable against the Guarantor in accordance with their respective terms,\nexcept as enforceability may be limited by applicable bankruptcy, insolvency, or\nsimilar laws affecting the enforcement of creditors' rights generally or by\nequitable principles relating to enforceability.\n\n                  (d) Governmental Consents. No authorization, consent,\n                      ---------------------\napproval, license, exemption of, or filing or registration with, any\nGovernmental Authority, or approval or consent of any other Person, is required\nfor the due execution, delivery or performance by, or enforcement against, the\nGuarantor of the Guarantor Documents.\n\n                  (e) No Prior Assignment. The Guarantor has not previously\n                      -------------------\nassigned any interest in the Subordinated Debt or any collateral relating\nthereto, no Person other than the Guarantor owns an interest in the Subordinated\nDebt or any such collateral (whether as joint holders of the Subordinated Debt,\nparticipants or otherwise), and the entire Subordinated Debt is owing only to\nthe Guarantor.\n\n                  (f) Solvency.  Immediately prior to and after and giving \n                      --------\neffect to the incurrence of the Guarantor's obligations under this Guaranty the\nGuarantor will be Solvent.\n\n                  (g) Independent Investigation. The Guarantor hereby\n                      -------------------------\nacknowledges that it has undertaken its own independent investigation of the\nfinancial condition of the Borrower and all other matters pertaining to this\nGuaranty and further acknowledges that it is not relying in any manner upon any\nrepresentation or statement of the Agent or any Bank with respect thereto. The\nGuarantor represents and warrants that it has received and reviewed copies of\nthe Loan Documents and that it is in a position to obtain, and it hereby assumes\nfull responsibility for obtaining, any additional information concerning the\nfinancial condition of the Borrower and any other matters pertinent hereto that\nthe Guarantor may desire. The Guarantor is not relying upon or expecting the\nAgent or any Bank to furnish to the Guarantor any information now or hereafter\nin the Agent's or any such Bank's possession concerning the financial condition\nof the Borrower or any other matter.\n\n                  SECTION 11 Reporting Covenant. So long as any Guaranteed\n                             ------------------\nObligations shall remain unsatisfied or any Bank shall have any Commitment, the\nGuarantor agrees that it shall furnish to the Agent such information respecting\nthe operations, properties, business or condition (financial or otherwise) of\nthe Guarantor or its Subsidiaries as the Agent, at the request of any Bank, may\nfrom time to time reasonably request.\n\n                                       10\n\n\n                  SECTION 12 Additional Covenants. So long as any Guaranteed\n                             --------------------\nObligations shall remain unsatisfied or any Bank shall have any Commitment, the\nGuarantor agrees that:\n\n                  (a) Preservation of Existence, Etc. The Guarantor shall\n                      -------------------------------\nmaintain in full force and effect its corporate existence and good standing\nunder the laws of its state or jurisdiction of incorporation and preserve and\nmaintain in full force and effect all governmental rights, privileges,\nqualifications, permits, licenses and franchises necessary or desirable in the\nnormal conduct of its business except (i) if in the reasonable judgment of the\nGuarantor, it is in its best economic interest not to preserve or maintain such\nrights, privileges, qualifications, permits, licenses or franchises and (ii) if\nno Material Adverse Effect could reasonably be expected to result.\n\n                  (b) Further Assurances and Additional Acts. The Guarantor\n                      --------------------------------------\nshall execute, acknowledge, deliver, file, notarize and register at its own\nexpense all such further agreements, instruments, certificates, documents and\nassurances and perform such acts as the Agent or the Required Banks shall deem\nreasonably necessary or appropriate to effectuate the purposes of this Guaranty\nand the other Guarantor Documents, and promptly provide the Agent with evidence\nof the foregoing satisfactory in form and substance to the Agent and the\nRequired Banks.\n\n                  SECTION 13 Notices. All notices, requests or other\n                             -------\ncommunications hereunder shall be given in the manner and to the addresses\nspecified in the Credit Agreement. Notices to the Guarantor shall be sent or\ndelivered to the address set forth therein for the Borrower. All such notices,\nrequested and communications shall, when transmitted by overnight delivery, or\nfaxed, be effective when delivered for overnight (next-day) delivery, or\ntransmitted in legible form by facsimile machine, respectively, or if mailed,\nupon receipt by the addressee, or if delivered, upon delivery.\n\n                  SECTION 14 No Waiver; Cumulative Remedies. No failure on the\n                             ------------------------------\npart of the Agent or any Bank to exercise, and no delay in exercising on the\npart of the Agent or any Bank, any right, remedy, power or privilege hereunder\nor under any other Guarantor Document shall operate as a waiver thereof, nor\nshall any single or partial exercise of any such right, remedy, power or\nprivilege preclude any other or further exercise thereof or the exercise of any\nother right, remedy, power or privilege hereunder preclude any other or further\nexercise thereof or the exercise of any other right, remedy, power or privilege.\n\n                  SECTION 15 Costs and Expenses; Indemnification.\n                             -----------------------------------\n\n                  (a)      Costs and Expenses.  The Guarantor shall:\n                           ------------------\n\n                  (i) whether or not the transactions contemplated hereby are\nconsummated, pay or reimburse the Agent for all reasonable costs and expenses\nincurred by it in connection with the development, preparation, delivery,\nadministration and execution of, and any amendment, supplement, waiver or\nmodification to (in each case, whether or not consummated), this Guaranty, any\nother Guaranty Document and any other documents prepared in connection herewith\nor therewith and the consummation of the transactions contemplated hereby and\nthereby; and\n\n                                       11\n\n\n                  (ii) pay or reimburse the Agent, and each Bank for all\nreasonable costs and expenses (including Attorney Costs) incurred by them in\nconnection with the enforcement, attempted enforcement, or preservation of any\nrights or remedies under this Guaranty or any other Guaranty Document during the\nexistence of an Event of Default or after acceleration of the Loans (including\nin connection with any \"workout\" or restructuring regarding the Loans, and\nincluding in any proceeding under any Debtor Relief Laws or appellate\nproceeding).\n\n                  (b) Indemnification. The Borrower shall indemnify, defend and\n                      ---------------\nhold the Agent-Related Persons, and each Bank and each of its respective\nofficers, directors, employees, counsel, agents and attorneys-in-fact (each, an\n\"Indemnified Person\") harmless from and against any and all liabilities,\n ------------------\nobligations, losses, damages, penalties, actions, judgments, suites, costs,\ncharges, expenses and disbursements (including Attorney Costs) of any kind or\nnature whatsoever which may at any time be imposed on, incurred by or asserted\nagainst any such Person in favor of any third-party in any way relating to or\narising out of this Guaranty or any document contemplated by or referred to\nherein, or the transactions contemplated hereby, or any action taken or omitted\nby any such Person under or in connection with any of the foregoing, including\nwith respect to any investigation, litigation or proceeding (including any\nproceeding under any Debtor Relief Laws or appellate proceeding) related to or\narising out of this Guaranty or relating to the Collateral, whether or not any\nIndemnified Person is a \"Indemnified Liabilities\"); provided that the Borrower\n                         -----------------------    --------\nshall have no obligation hereunder to any Indemnified Person with respect to\nIndemnified Liabilities resulting from the gross negligence or willful\nmisconduct of such Indemnified Person.\n\n                  (c) Defense. At the election of any Indemnified Person, the\n                      -------\nGuarantor shall defend such Indemnified Person using legal counsel satisfactory\nto both such Indemnified Person and the Guarantor (such Guarantor's approval not\nto be unreasonably withheld), at the sole cost and expense of the Guarantor.\n\n                  (d) Interest. Any amounts payable to the Agent or any Bank\n                      --------\nunder this Section 15 if not paid upon demand shall bear interest from the date\nof such demand until paid in full, at the Default Rate.\n\n                  (e) Survival.  The agreements in this Section shall survive \n                      --------\npayment of all other Secured Obligations.\n\n                  SECTION 16 Right of Set-Off. In addition to any rights and\n                             ----------------\nremedies of the Banks provided by law, if an Event of Default exists or the\nLoans have been accelerated, each Bank is hereby authorized at any time and from\ntime to time, upon obtaining the prior written consent of the Agent, and without\nnotice to the Guarantor (any such notice being expressly waived by the\nGuarantor), to set off and apply any and all deposits (general or special, time\nor demand, provisional or final) at any time held and other indebtedness at any\ntime owing by such Bank to or for the credit or the account of the Guarantor\nagainst any and all of the obligations of the Guarantor now or hereafter\nexisting under this Guaranty, irrespective of whether or not such Bank shall\nhave made any demand upon the Borrower or the Guarantor under the Loan Documents\nand although such obligations may be contingent and unmatured. Each Bank shall\npromptly notify the Guarantor (through the Agent) after any such set-off and\napplication made by it; provided, however, that the failure to give such notice\n                        --------  -------\nshall not affect the validity of such setoff and application. The rights of the\n\n\n                                       12\n\n\nBanks under this Section 16 are in addition to other rights and remedies\n(including other rights of set-off) which the Banks may have.\n\n                  SECTION 17 Marshalling; Payments Set Aside. Neither the Agent\n                             -------------------------------\nnor the Banks shall be under any obligation to marshal any assets in favor of\nthe Guarantor or any other Person or against or in payment of any or all of the\nGuaranteed Obligations. To the extent that the Guarantor makes a payment to the\nAgent or the Banks, or the Agent or the Banks exercise their right of set-off,\nand such payment or the proceeds of such set-off or any part thereof are\nsubsequently invalidated, declared to be fraudulent or preferential, set aside\nor required (including pursuant to any settlement entered into by the Agent or\nsuch Bank in its discretion) to be repaid to a trustee, receiver or any other\nparty, in connection with any proceeding under any Debtor Relief Laws or\notherwise, then (a) to the extent of such recovery the obligation or part\nthereof originally intended to be satisfied shall be revived and continued in\nfull force and effect as if such payment had not been made or such set-off had\nnot occurred, and (b) each Bank severally agrees to pay to the Agent upon demand\nits pro rata share of any amount so recovered from or repaid by the Agent.\n\n                  SECTION 18 Benefits of Guaranty. This Guaranty is entered into\n                             --------------------\nfor the sole protection and benefit of the Agent and each Bank and their\nrespective successors and assigns, and no other Person (other than any\nIndemnified Person specified herein) shall be a direct or indirect beneficiary\nof, or shall have any direct or indirect cause of action or claim in connection\nwith, this Guaranty. The Agent and the Banks, by their acceptance of this\nGuaranty, shall not have any obligations under this Guaranty to any Person other\nthan the Guarantor, and such obligations shall be limited to those expressly\nstated herein.\n\n                  SECTION 19  Binding Effect; Assignment.\n                              --------------------------\n\n                  (a) Successors and Assigns. The provisions of this Guaranty\n                      ----------------------\nshall be binding upon and insure to the benefit of the parties hereto and their\nrespective successors and assigns.\n\n                  (b) Assignment. The Guarantor shall not have the right to\n                      ----------\nassign or transfer its rights and obligations hereunder or under any other\nGuarantor Documents without the prior written consent of the Required Banks.\nEach Bank may, without notice to or consent by the Guarantor, sell, assign,\ntransfer or grant participations in all or any portion of such Bank's rights and\nobligations hereunder and under the other Guarantor Documents in connection with\nany sale, assignment, transfer or grant of a participation by such Bank in\naccordance with Section 10.04 of the Credit Agreement of or in its rights and\nobligations thereunder and under the other Loan Documents. The Guarantor agrees\nthat in connection with any such sale, assignment, transfer or grant by any\nBank, such Bank may deliver to the prospective participant or assignee financial\nstatements and subject to Section 11.9 of the Credit Agreement, other relevant\ninformation relating to the Guarantor and its Subsidiaries.\n\n                  SECTION 20 Governing Law and Jurisdiction.\n                             ------------------------------\n\n                  (a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN\nACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE AGENT AND\n\n                                       13\n\n\nTHE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.\n\n                  (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS\nGUARANTY OR ANY OTHER GUARANTOR DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE\nSTATE OF CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF\nCALIFORNIA, AND THE GUARANTOR HEREBY CONSENTS, AND BY ACCEPTANCE OF THIS\nGUARANTY, EACH OF THE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF\nITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER\nIRREVOCABLY WAIVES, AND EACH OF THE AGENT AND THE BANKS BY ITS ACCEPTANCE HEREOF\nIRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE\nOR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER\n                           --------------------\nHAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT\nOF THIS GUARANTY OR ANY GUARANTOR DOCUMENT. THE BORROWER WAIVES, AND EACH OF THE\nAGENT AND THE BANKS BY ITS ACCEPTANCE HEREOF WAIVES PERSONAL SERVICE OF ANY\nSUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS\nPERMITTED BY CALIFORNIA LAW.\n\n                  SECTION 21 Waiver of Jury Trial. THE GUARANTOR HEREBY AGREES\n                             --------------------\nTO WAIVE, AND THE AGENT AND THE BANKS BY THEIR ACCEPTANCE HEREOF HEREBY AGREE TO\nWAIVE, THEIR RESPECTIVE RIGHTS TO A TRAIL BY JURY OF ANY CLAIM OR CAUSE OF\nACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS GUARANTY, THE OTHER\nGUARANTOR DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY IN ANY\nACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES\nAGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE,\nWHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE\nGUARANTOR HEREBY AGREES, AND THE AGENT AND THE BANKS BY THEIR ACCEPTANCE HEREOF\nHEREBY AGREE, THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT\nTRIAL WITHOUT A JURY. WITHOUT IN ANY WAY LIMITING THE FOREGOING, THE GUARANTOR\nFURTHER AGREES, AND THE AGENT AND THE BANKS BY THEIR ACCEPTANCE HEREOF FURTHER\nAGREE, THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF\nTHIS SECTION AS TO ANY ACTION, COUNTERCLAIM, OR OTHER PROCEEDING WHICH SEEKS, IN\nWHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY\nOR THE OTHER GUARANTOR DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER\nSHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS\nTO THIS GUARANTY AND THE OTHER GUARANTOR DOCUMENTS.\n\n                  SECTION 22 Entire Agreement; Amendments. This Guaranty,\n                             ----------------------------\ntogether with the other Guaranty Documents, embodies the entire agreement of the\nGuarantor with respect to the matters set forth herein, and supersedes all prior\nor contemporaneous agreements and understandings of such Persons, verbal or\nwritten, relating to the subject matter hereof and thereof and shall not be\n\n\n                                       14\n\n\namended except by written agreement of the Guarantor, the Agent and the\nRequisite Banks.\n\n                  SECTION 23 Severability. The illegality or unenforceability of\n                             ------------\nany provision of this Guaranty or any instrument or agreement required hereunder\nshall not in any way affect or impair the legality or enforceability of the\nremaining provisions of this Guaranty or any instrument or agreement required\nhereunder.\n\n\n\n                                       15\n\n\n\n\n\n    IN WITNESS WHEREOF, the Guarantor has executed this Guaranty, as of the date\nfirst above written.\n\n                                 STORAGETEK HOLDING CORPORATION\n                                 By\n                                          ----------------------------\n                                 Title    Vice President and Treasurer\n                                          ----------------------------\n\n                                 Address:\n\n                                          StorageTek Holding Corporation\n                                          One StorageTek Drive\n                                          Louisville, CO 80028-4302\n                                          Attention:        Assistant Treasurer\n                                          Facsimile:        (303) 673-2837\n\n                                          With a copy to:\n                                          --------------\n\n                                          StorageTek Holding Corporation\n                                          One StorageTek Drive\n                                          Louisville, CO 80028-4302\n                                          Attention:        General Counsel\n                                          Facsimile:       (303) 673-4151\n\n\n\n                                       16\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8959],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9560,9565],"class_list":["post-41056","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-storage-technology-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_types-finance","corporate_contracts_types-finance__guaranty"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41056","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41056"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41056"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41056"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41056"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}