1
EXHIBIT 10.25
GUARANTY
OF
DIODES INCORPORATED
0000 Xxxx Xxxxxxxxx Xxxxx, 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 HONGKONG 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 July 10,
1998 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 THREE MILLION DOLLARS
(U.S.$3,000,000.00) 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.
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
2
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, 5/F Xxxxxx Xxxxx, 0 Xxxxxx Xxx. Xxxxxxxx Xxxxx 000000,
the People's Republic of China, Attention: Manager, Corporate Banking,
Facsimile: (8621) 5879-2238 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 27th day of July 1998.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxxx
Title: President & CEO
