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EXHIBIT 10.21
GUARANTY
OF
DIODES INCORPORATED, 0000 Xxxx Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
1. FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which by DIODES INCORPORATED, a Delaware corporation ("DIODES"), are hereby
acknowledged, and to induce THE HONG KONG and SHANGHAI BANKING CORPORATION
LIMITED (the "Bank") at any time or from time to time, to extend financial
accommodation with or without security, to or for the account of: SHANGHAI
KAIHONG ELECTRONICS CO., LTD. (the "Borrower"), or in respect of which the
Borrower may be liable (the term "Financial Accommodations" shall include the
financial accommodations as outlined in the Bank's offer letter of August 12,
1996 duly accepted by the Borrower), DIODES hereby guarantees to the Bank that
the Borrower will promptly perform and observe every agreement to be performed
or observed by the Borrower and that all sums stated to be payable in, or which
become payable under the documents to which such Financial Accommodations are
made ("the Financing Document(s)"), will be promptly paid in full when due
whether at maturity or earlier by reason or acceleration or otherwise, together
with interest due thereunder, or DIODES shall immediately upon receipt of
written demand thereof, fully pay and otherwise discharge all such obligations
of the Borrower. In case of one or more extensions of time of payment or
renewals, in whole or in part, of any of the Financing Document(s), the same
will be promptly paid or performed when due, according to each such extension or
renewal, whether at maturity or earlier by reason of acceleration or otherwise.
2. DIODES hereby consents that from time to time, without notice to or
further consent of DIODES, the performance or observance by the Borrower of any
of the Financing Document(s) may be waived or the time of performance thereof
extended by the Bank, and payment of any obligation hereby guaranteed may be
accelerated in accordance with any agreement between the Bank and the Borrower,
or may be increased, extended, or renewed in whole or in part without affecting
the liability of DIODES hereunder.
3. Notwithstanding the aggregate sums which may be or become payable by
the Borrower to the Bank at any time or from time to time, the liability of
DIODES hereunder shall not exceed ONE MILLION DOLLARS (U.S.$1,000,000.00) plus
any and all interest on that amount, and all costs of collection including
without limitation, reasonable attorney fees. It is understood that the
obligations of the Borrower to the Bank may at any time and from time to time
exceed the liability of DIODES hereunder without impairing this Guaranty. DIODES
agrees that whenever at any time or from time to time it shall make any payment
to the Bank hereunder on account of its liability hereunder, that it will notify
the Bank in writing that such payment is made under this Guaranty for such
purpose. No payment pursuant to any provision hereof shall entitle DIODES by
subrogation to the rights of the Bank, to any payment by the Borrower or out of
the property of the Borrower, except after payment in full of all sums
(including interests, costs and expenses) which may be or become payable by the
Borrower to the Bank at any time or from time to time.
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4. DIODES reserves the right, at any time or from time to time, on one
month prior written notice to the Bank, to reduce the maximum amount guaranteed
hereunder or to terminate this Guaranty; provided, however, that DIODES shall in
any event remain liable as guarantor for all obligations of the Borrower
outstanding at the effective date of any such notice to the Bank pursuant to
this paragraph.
5. DIODES' obligations hereunder shall be unconditional notwithstanding
any lack of enforceability of any Financing Documents pursuant to which the
Financial Accommodations are made or any change in any term thereof, any
exchange, release or nonperfection of any collateral securing payment of any
Financial Accommodation, any law, regulation or order of any jurisdiction
affecting any term of any or the Bank's rights with respect thereto or any other
circumstance which might otherwise constitute a defense available to or
discharge of DIODES. DIODES waives promptness, diligence and notices, including
acceptance hereof, with respect to this Guaranty and the Financial
Accommodations hereby guaranteed and any requirement that the Bank exhaust any
right or take any action against the Borrower or any collateral or disclose to
DIODES any information concerning the Borrower.
6. DIODES agrees that, to the extent that the Borrower makes a payment
or payments to the Bank on the Financial Accommodations, or the Bank receives
any proceed of collateral to be applied to the Financial Accommodations, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set arise or otherwise are required to be
repaid to the Borrower, its estate, trustee, receiver or any other party,
including, without limitation, under any bankruptcy law, state or federal law,
common law, or equitable cause, then to the extent of such repayment, the
obligation or part thereof which has been paid, reduced, or satisfied by such
amount shall be reinstated and continued in full force and effect as of the date
of the initial payments, reduction or satisfaction occurred, notwithstanding any
contrary action which may have been taken by the Bank in reliance upon such
payment or payments. As of the date any payment or proceeds are returned, the
statute of limitations shall start anew with respect to any action or proceeding
by the Bank against DIODES under this document. DIODES shall defend and
indemnify the Bank of and from any claim or loss under this paragraph including
actual attorney's and paralegal's fees and expenses in the defense of any such
action or suit.
7. This Guaranty and all rights, obligations and liabilities arising
hereunder shall be construed according to the laws of the State of California,
United States of America. Unless the context otherwise requires, all terms used
herein which are defined in the Uniform Commercial Code shall have the meanings
therein stated. All notices hereunder shall be given by telex or telecopier if
to the Bank at The Hongkong and Shanghai Banking Corporation Limited, Shanghai
Branch, Suite 504, Shanghai Centre, 1376 Xxxxxxx Xx Xx, Xxxxxxxx 000000, the
People's Republic of China, Attention: Manager, Corporate Banking, Facsimile:
(8621) 6279-8586 or if to Attention: Manager's Office, and shall be effective
when sent.
IN WITNESS WHEREOF, this instrument has been duly executed by DIODES
this 12th day of December, 1996.
By: /s/ Xxxxx Xxx
Title: President & CEO
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