Unconditional Guaranty - Odimo Inc., Ashford.com Inc. , DIA Marketing Inc. and SOFTBANK Capital LP
UNCONDITIONAL GUARANTY
(Softbank Capital)
In consideration of SILICON VALLEY BANK'S ("Bank") loan to ODIMO
INCORPORATED, ASHFORD.COM, INC., and D.I.A. MARKETING, INC. (individually and
collectively, "Borrower"), under a Loan and Security Agreement dated July 31,
2004 (the "Agreement"), SOFTBANK CAPITAL LP ("Guarantor") unconditionally and
irrevocably guarantees payment of all amounts Borrower owes Bank and Borrower's
performance of the Agreement and any other agreements between Borrower and Bank,
as amended from time to time (collectively the "Agreements"), according to their
terms.
1. If Borrower does not perform its obligations under the Agreements,
Guarantor will immediately pay all amounts due (including, without limitation,
all principal, interest, and fees) and satisfy all Borrower's obligations under
the Agreements.
2. 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). Guarantor waives
benefit of any statute of limitations affecting its liability. Guarantor's
liability is not contingent on the genuineness or enforceability of the
Agreements. Guarantor's liability hereunder shall be joint and several with any
other guarantors of the Obligations (as defined in the Agreement), and the
compromise of any claim with or release of Borrower or any other guarantor of
the Obligations shall not constitute a compromise with or release of Guarantor.
3. Bank may, without notice to Guarantor and without affecting Guarantor's
obligations under this Guaranty, (a) renew, extend, or otherwise change the
terms of the Agreements; (b) take security for the payment of this Guaranty or
the Agreements; (c) exchange, enforce, waive and release any security; and (d)
apply the security and direct its sale as Bank, in its discretion, chooses.
4. 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.
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.
d) Any defense from the absence, impairment or loss of any right
of reimbursement or subrogation or any other rights against
Borrower. Until Borrower's obligations to Bank have been paid,
Guarantor has no right of subrogation or reimbursement or
subrogation or other rights against Borrower.
e) Any right to enforce any remedy that Bank has against
Borrower.
f) Any rights to participate in any security held by Bank.
g) Any demands for performance, notices of nonperformance or of
new or additional indebtedness. Guarantor is responsible for
being and keeping itself informed of Borrower's financial
condition. Unless Guarantor requests particular information,
Bank has no duty to provide information to Guarantor.
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.
6. If Borrower becomes insolvent or is adjudicated bankrupt or files a
petition for reorganization, or similar relief under the United States
Bankruptcy Code, or if a petition is filed against Borrower and/or any
obligation under the Agreements is terminated or rejected or any obligation of
Borrower is modified or if Borrower's obligations are avoided
<PAGE>
Guarantor's liability will not be affected and its liability will continue. If
Bank must return any payment because of the insolvency, bankruptcy or
reorganization of Borrower, Guarantor or any other guarantor this Guaranty will
remain effective or be reinstated.
7. Guarantor subordinates any indebtedness of Borrower it holds to Bank;
and Guarantor will collect, enforce and receive payments as Bank's trustee and
will pay Bank those payments without reducing or affecting its liability under
this Guaranty.
8. Guarantor will pay Bank's reasonable attorneys' fees and other costs
and expenses incurred enforcing this Guaranty. This Guaranty may not be waived,
revoked or amended without Lender's prior written consent. If any provision of
this Guaranty is unenforceable, all other provisions remain effective. This
Guaranty is the entire agreement among the parties about this guaranty. No prior
dealings, no usage of trade, and no parol or extrinsic evidence may supplement
or vary this Guaranty. Bank may assign this Guaranty. This Guaranty benefits
Bank, its successors and assigns. This Guaranty is in addition to any other
guaranties Bank obtains.
9. Guarantor represents and warrants that (i) it has taken all action
necessary authorize execute, deliver and perform this Guaranty, (ii) execution,
delivery and performance of this Guaranty do not conflict with any
organizational documents or agreements to which it is party and (iii) this
Guaranty is a valid and binding obligation, enforceable against Guarantor
according to its terms.
10. Guarantor will do all of the following:
a) Maintain its existence, remain in good standing in Delaware,
and continue to qualify in each jurisdiction in which the
failure to qualify could have a material adverse effect on the
financial condition, operations or business. Maintain all
licenses, approvals and agreements, the loss of which could
have a material adverse effect on its financial condition,
operations or business.
b) Comply with all statutes and regulations if non-compliance
could adversely affect its financial condition, operations or
business.
c) Execute other instruments and take action Bank reasonably
requests to effect the purposes of this Agreement.
d) Deliver to Bank: (i) as soon as available, but no later than
thirty (30) days after the last day of each calendar month, a
compliance certificate signed by a Responsible Officer in the
form of Exhibit A, (ii) as soon as available, but no later
than thirty (30) days after the last day of each fiscal
quarter, Guarantor prepared unaudited quarterly financial
statements and (iii) as soon as available, but no later than
one hundred twenty (120) days after the end of Guarantor's
fiscal year, Guarantor prepared unaudited financial statements
prepared under generally accepted accounting principles,
consistently applied.
e) Maintain as of the last day of each month, on a consolidated
basis with SOFTBANK Capital Partners LP and SOFTBANK Capital
Advisors Fund LP (collectively with Guarantor, the "SOFTBANK
Guarantors"), a minimum of Twenty-Four Million Dollars
($24,000,000) of unrestricted cash plus callable capital, net
of all Contingent Liabilities (as defined in the Agreement) of
the SOFTBANK Guarantors.
11. Guarantor acknowledges and agrees that the occurrence of any of the
following shall constitute a default under this Guaranty:
a) If Guarantor fails to perform any obligation under this
Guaranty or violates any of the covenants contained in this
Guaranty;
b) If any material misrepresentation or material misstatement
exists now or later in any warranty or representation in this
Guaranty or in any certificate delivered to Bank in connection
with this Guaranty; or
c) If SOFTBANK Corp., Guarantor's sole Limited Partner, becomes
insolvent or if SOFTBANK Corp. begins an Insolvency Proceeding
(as defined in the Agreement) or an Insolvency Proceeding is
begun against SOFTBANK Corp. and not dismissed or stayed
within 30 days.
2
<PAGE>
12. Bank hereby agrees to negotiate in good faith a release of this
Guaranty upon the successful completion by Borrower of its initial public
offering. Bank's consent to any such release shall be predicated upon conditions
including, but not limited to, the following: (a) the initial public offering
results in net proceeds to Borrower of not less than Twenty-Five Million Dollars
($25,000,000), (b) the Obligations are reduced to not more than Five Million
Dollars ($5,000,000) with an annual clean-up period, and (c) Borrower and Bank
agree upon appropriate operating and liquidity covenants, as well as a reduced
advance rate as to Eligible Inventory (as defined in the Agreement).
13. This Guaranty is governed by Georgia law, without regard to conflicts
of laws. GUARANTOR WAIVES ITS RIGHT TO A JURY TRIAL OF ANY ACTION ARISING OUT OF
THIS GUARANTY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER CLAIMS.
Guarantor submits to the exclusive jurisdiction of the State and Federal courts
in Georgia; provided, however, if for any reason Bank can not avail itself of
the courts of Georgia, then the Guarantor submits to the jurisdiction of the
State and Federal courts in Santa Clara County, California.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty
as of the day and year first written above.
GUARANTOR:
SOFTBANK CAPITAL LP
By: SOFTBANK CAPITAL PARTNERS LLC, its
sole General Partner
By: /s/ Stephen J. Murray
Name: Stephen J. Murray
Title: Administrative Member
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<PAGE>
UNCONDITIONAL GUARANTY
(Softbank Capital Partners)
In consideration of SILICON VALLEY BANK'S ("Bank") loan to ODIMO
INCORPORATED, ASHFORD.COM, INC., and D.I.A. MARKETING, INC. (individually and
collectively, "Borrower"), under a Loan and Security Agreement dated July 31,
2004 (the "Agreement"), SOFTBANK CAPITAL PARTNERS LP ("Guarantor")
unconditionally and irrevocably guarantees payment of all amounts Borrower owes
Bank and Borrower's performance of the Agreement and any other agreements
between Borrower and Bank, as amended from time to time (collectively the
"Agreements"), according to their terms.
1. If Borrower does not perform its obligations under the Agreements,
Guarantor will immediately pay all amounts due (including, without limitation,
all principal, interest, and fees) and satisfy all Borrower's obligations under
the Agreements.
2. 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). Guarantor waives
benefit of any statute of limitations affecting its liability. Guarantor's
liability is not contingent on the genuineness or enforceability of the
Agreements. Guarantor's liability hereunder shall be joint and several with any
other guarantors of the Obligations (as defined in the Agreement), and the
compromise of any claim with or release of Borrower or any other guarantor of
the Obligations shall not constitute a compromise with or release of Guarantor.
3. Bank may, without notice to Guarantor and without affecting Guarantor's
obligations under this Guaranty, (a) renew, extend, or otherwise change the
terms of the Agreements; (b) take security for the payment of this Guaranty or
the Agreements; (c) exchange, enforce, waive and release any security; and (d)
apply the security and direct its sale as Bank, in its discretion, chooses.
4. Guarantor waives:
h) 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.
i) Any defenses from disability or other defense of Borrower or
from the cessation of Borrowers liabilities.
j) Any setoff, defense or counterclaim against Bank.
k) Any defense from the absence, impairment or loss of any right
of reimbursement or subrogation or any other rights against
Borrower. Until Borrower's obligations to Bank have been paid,
Guarantor has no right of subrogation or reimbursement or
subrogation or other rights against Borrower.
l) Any right to enforce any remedy that Bank has against
Borrower.
m) Any rights to participate in any security held by Bank.
n) Any demands for performance, notices of nonperformance or of
new or additional indebtedness. Guarantor is responsible for
being and keeping itself informed of Borrower's financial
condition. Unless Guarantor requests particular information,
Bank has no duty to provide information to Guarantor.
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.
6. If Borrower becomes insolvent or is adjudicated bankrupt or files a
petition for reorganization, or similar relief under the United States
Bankruptcy Code, or if a petition is filed against Borrower and/or any
obligation under the Agreements is terminated or rejected or any obligation of
Borrower is modified or if Borrower's obligations are avoided Guarantor's
liability will not be affected and its liability will continue. If Bank must
return any payment because of the
<PAGE>
insolvency, bankruptcy or reorganization of Borrower, Guarantor or any other
guarantor this Guaranty will remain effective or be reinstated.
7. Guarantor subordinates any indebtedness of Borrower it holds to Bank;
and Guarantor will collect, enforce and receive payments as Bank's trustee and
will pay Bank those payments without reducing or affecting its liability under
this Guaranty.
8. Guarantor will pay Bank's reasonable attorneys' fees and other costs
and expenses incurred enforcing this Guaranty. This Guaranty may not be waived,
revoked or amended without Lender's prior written consent. If any provision of
this Guaranty is unenforceable, all other provisions remain effective. This
Guaranty is the entire agreement among the parties about this guaranty. No prior
dealings, no usage of trade, and no parol or extrinsic evidence may supplement
or vary this Guaranty. Bank may assign this Guaranty. This Guaranty benefits
Bank, its successors and assigns. This Guaranty is in addition to any other
guaranties Bank obtains.
9. Guarantor represents and warrants that (i) it has taken all action
necessary authorize execute, deliver and perform this Guaranty, (ii) execution,
delivery and performance of this Guaranty do not conflict with any
organizational documents or agreements to which it is party and (iii) this
Guaranty is a valid and binding obligation, enforceable against Guarantor
according to its terms.
10. Guarantor will do all of the following:
b) Maintain its existence, remain in good standing in Delaware,
and continue to qualify in each jurisdiction in which the
failure to qualify could have a material adverse effect on the
financial condition, operations or business. Maintain all
licenses, approvals and agreements, the loss of which could
have a material adverse effect on its financial condition,
operations or business.
c) Comply with all statutes and regulations if non-compliance
could adversely affect its financial condition, operations or
business.
f) Execute other instruments and take action Bank reasonably
requests to effect the purposes of this Agreement.
g) Deliver to Bank: (i) as soon as available, but no later than
thirty (30) days after the last day of each calendar month, a
compliance certificate signed by a Responsible Officer in the
form of Exhibit A, (ii) as soon as available, but no later
than thirty (30) days after the last day of each fiscal
quarter, Guarantor prepared unaudited quarterly financial
statements and (iii) as soon as available, but no later than
one hundred twenty (120) days after the end of Guarantor's
fiscal year, audited consolidated financial statements
prepared under generally accepted accounting principles,
consistently applied, together with an unqualified opinion on
the financial statements from an independent certified public
accounting firm acceptable to Bank.
h) Maintain as of the last day of each month, on a consolidated
basis with SOFTBANK Capital LP and SOFTBANK Capital Advisors
Fund LP (collectively with Guarantor, the "SOFTBANK
Guarantors"), a minimum of Twenty-Four Million Dollars
($24,000,000) of unrestricted cash plus callable capital, net
of all Contingent Liabilities (as defined in the Agreement) of
the SOFTBANK Guarantors.
11. Guarantor acknowledges and agrees that the occurrence of any of the
following shall constitute a default under this Guaranty:
a) If Guarantor fails to perform any obligation under this
Guaranty or violates any of the covenants contained in this
Guaranty; or
b) If any material misrepresentation or material misstatement
exists now or later in any warranty or representation in this
Guaranty or in any certificate delivered to Bank in connection
with this Guaranty.
12. Bank hereby agrees to negotiate in good faith a release of this
Guaranty upon the successful completion by Borrower of its initial public
offering. Bank's consent to any such release shall be predicated upon conditions
including, but not limited to, the following: (a) the initial public offering
results in net proceeds to Borrower of not less than Twenty-Five Million Dollars
($25,000,000), (b) the Obligations are reduced to not more than Five Million
Dollars ($5,000,000) with an annual
2
<PAGE>
clean-up period, and (c) Borrower and Bank agree upon appropriate operating and
liquidity covenants, as well as a reduced advance rate as to Eligible Inventory
(as defined in the Agreement).
13. This Guaranty is governed by Georgia law, without regard to conflicts
of laws. GUARANTOR WAIVES ITS RIGHT TO A JURY TRIAL OF ANY ACTION ARISING OUT OF
THIS GUARANTY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER CLAIMS.
Guarantor submits to the exclusive jurisdiction of the State and Federal courts
in Georgia; provided, however, if for any reason Bank can not avail itself of
the courts of Georgia, then the Guarantor submits to the jurisdiction of the
State and Federal courts in Santa Clara County, California.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty
as of the day and year first written above.
GUARANTOR:
SOFTBANK CAPITAL PARTNERS LP
By: SOFTBANK CAPITAL PARTNERS LLC, its
sole General Partner
By: /s/ Stephen J. Murray
Name: Stephen J. Murray
Title: Administrative Member
3
<PAGE>
UNCONDITIONAL GUARANTY
(Softbank Capital Advisors)
In consideration of SILICON VALLEY BANK'S ("Bank") loan to ODIMO
INCORPORATED, ASHFORD.COM, INC., and D.I.A. MARKETING, INC. (individually and
collectively, "Borrower"), under a Loan and Security Agreement dated July 31,
2004 (the "Agreement"), SOFTBANK CAPITAL ADVISORS FUND LP ("Guarantor")
unconditionally and irrevocably guarantees payment of all amounts Borrower owes
Bank and Borrower's performance of the Agreement and any other agreements
between Borrower and Bank, as amended from time to time (collectively the
"Agreements"), according to their terms.
1. If Borrower does not perform its obligations under the Agreements,
Guarantor will immediately pay all amounts due (including, without limitation,
all principal, interest, and fees) and satisfy all Borrower's obligations under
the Agreements.
2. 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). Guarantor waives
benefit of any statute of limitations affecting its liability. Guarantor's
liability is not contingent on the genuineness or enforceability of the
Agreements. Guarantor's liability hereunder shall be joint and several with any
other guarantors of the Obligations (as defined in the Agreement), and the
compromise of any claim with or release of Borrower or any other guarantor of
the Obligations shall not constitute a compromise with or release of Guarantor.
3. Bank may, without notice to Guarantor and without affecting Guarantor's
obligations under this Guaranty, (a) renew, extend, or otherwise change the
terms of the Agreements; (b) take security for the payment of this Guaranty or
the Agreements; (c) exchange, enforce, waive and release any security; and (d)
apply the security and direct its sale as Bank, in its discretion, chooses.
4. Guarantor waives:
o) 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.
p) Any defenses from disability or other defense of Borrower or
from the cessation of Borrowers liabilities.
q) Any setoff, defense or counterclaim against Bank.
r) Any defense from the absence, impairment or loss of any right
of reimbursement or subrogation or any other rights against
Borrower. Until Borrower's obligations to Bank have been paid,
Guarantor has no right of subrogation or reimbursement or
subrogation or other rights against Borrower.
s) Any right to enforce any remedy that Bank has against
Borrower.
t) Any rights to participate in any security held by Bank.
u) Any demands for performance, notices of nonperformance or of
new or additional indebtedness. Guarantor is responsible for
being and keeping itself informed of Borrower's financial
condition. Unless Guarantor requests particular information,
Bank has no duty to provide information to Guarantor.
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.
6. If Borrower becomes insolvent or is adjudicated bankrupt or files a
petition for reorganization, or similar relief under the United States
Bankruptcy Code, or if a petition is filed against Borrower and/or any
obligation under the Agreements is terminated or rejected or any obligation of
Borrower is modified or if Borrower's obligations are avoided Guarantor's
liability will not be affected and its liability will continue. If Bank must
return any payment because of the
<PAGE>
insolvency, bankruptcy or reorganization of Borrower, Guarantor or any other
guarantor this Guaranty will remain effective or be reinstated.
7. Guarantor subordinates any indebtedness of Borrower it holds to Bank;
and Guarantor will collect, enforce and receive payments as Bank's trustee and
will pay Bank those payments without reducing or affecting its liability under
this Guaranty.
8. Guarantor will pay Bank's reasonable attorneys' fees and other costs
and expenses incurred enforcing this Guaranty. This Guaranty may not be waived,
revoked or amended without Lender's prior written consent. If any provision of
this Guaranty is unenforceable, all other provisions remain effective. This
Guaranty is the entire agreement among the parties about this guaranty. No prior
dealings, no usage of trade, and no parol or extrinsic evidence may supplement
or vary this Guaranty. Bank may assign this Guaranty. This Guaranty benefits
Bank, its successors and assigns. This Guaranty is in addition to any other
guaranties Bank obtains.
9. Guarantor represents and warrants that (i) it has taken all action
necessary authorize execute, deliver and perform this Guaranty, (ii) execution,
delivery and performance of this Guaranty do not conflict with any
organizational documents or agreements to which it is party and (iii) this
Guaranty is a valid and binding obligation, enforceable against Guarantor
according to its terms.
10. Guarantor will do all of the following:
c) Maintain its existence, remain in good standing in Delaware,
and continue to qualify in each jurisdiction in which the
failure to qualify could have a material adverse effect on the
financial condition, operations or business. Maintain all
licenses, approvals and agreements, the loss of which could
have a material adverse effect on its financial condition,
operations or business.
d) Comply with all statutes and regulations if non-compliance
could adversely affect its financial condition, operations or
business.
i) Execute other instruments and take action Bank reasonably
requests to effect the purposes of this Agreement.
j) Deliver to Bank: (i) as soon as available, but no later than
thirty (30) days after the last day of each calendar month, a
compliance certificate signed by a Responsible Officer in the
form of Exhibit A, (ii) as soon as available, but no later
than thirty (30) days after the last day of each fiscal
quarter, Guarantor prepared unaudited quarterly financial
statements and (iii) as soon as available, but no later than
one hundred twenty (120) days after the end of Guarantor's
fiscal year, Guarantor prepared unaudited financial statements
prepared under generally accepted accounting principles,
consistently applied.
k) Maintain as of the last day of each month, on a consolidated
basis with SOFTBANK Capital Partners LP and SOFTBANK Capital
LP (collectively with Guarantor, the "SOFTBANK Guarantors"), a
minimum of Twenty-Four Million Dollars ($24,000,000) of
unrestricted cash plus callable capital, net of all Contingent
Liabilities (as defined in the Agreement) of the SOFTBANK
Guarantors.
11. Guarantor acknowledges and agrees that the occurrence of any of the
following shall constitute a default under this Guaranty:
a) If Guarantor fails to perform any obligation under this
Guaranty or violates any of the covenants contained in this
Guaranty;
b) If any material misrepresentation or material misstatement
exists now or later in any warranty or representation in this
Guaranty or in any certificate delivered to Bank in connection
with this Guaranty; or
c) If SOFTBANK Corp., Guarantor's sole Limited Partner, becomes
insolvent or if SOFTBANK Corp. begins an Insolvency Proceeding
(as defined in the Agreement) or an Insolvency Proceeding is
begun against SOFTBANK Corp. and not dismissed or stayed
within 30 days.
12. Bank hereby agrees to negotiate in good faith a release of this
Guaranty upon the successful completion by Borrower of its initial public
offering. Bank's consent to any such release shall be predicated upon conditions
including, but
2
<PAGE>
not limited to, the following: (a) the initial public offering results in net
proceeds to Borrower of not less than Twenty-Five Million Dollars ($25,000,000),
(b) the Obligations are reduced to not more than Five Million Dollars
($5,000,000) with an annual clean-up period, and (c) Borrower and Bank agree
upon appropriate operating and liquidity covenants, as well as a reduced advance
rate as to Eligible Inventory (as defined in the Agreement).
13. This Guaranty is governed by Georgia law, without regard to conflicts
of laws. GUARANTOR WAIVES ITS RIGHT TO A JURY TRIAL OF ANY ACTION ARISING OUT OF
THIS GUARANTY, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER CLAIMS.
Guarantor submits to the exclusive jurisdiction of the State and Federal courts
in Georgia; provided, however, if for any reason Bank can not avail itself of
the courts of Georgia, then the Guarantor submits to the jurisdiction of the
State and Federal courts in Santa Clara County, California.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty
as of the day and year first written above.
GUARANTOR:
SOFTBANK CAPITAL ADVISORS FUND LP
By: SOFTBANK CAPITAL PARTNERS LLC, its
sole General Partner
By: /s/ Stephen J. Murray
Name: Stephen J. Murray
Title: Administrative Member
3