Exhibit 10.5


 


GUARANTY


 


THIS
GUARANTY (the “Guaranty”), dated as of October 16, 2009, is
executed by each of the undersigned corporations, limited liability companies,
and limited partnerships (collectively the “Guarantors” and individually
each a “Guarantor”), in favor of U.S. National Bank Association, acting
as trustee under the Indenture defined below (in such capacity, the “Trustee”).


 


RECITALS


 


A.            Vitesse
Semiconductor Corporation, a Delaware corporation (the “Issuer”), and the
Forbearing Holders (as defined in the Forbearance Agreement (as defined below))
have entered into that certain Forbearance Agreement dated as of the date
hereof (the “Forbearance Agreement”) pursuant to which the Forbearing
Holders have agreed to forbear from exercising certain of the rights and
remedies available to them arising from the Specified Defaults (as defined in
the Forbearance Agreement) in exchange for Issuer agreeing to enter into the
Third Supplemental Indenture (as defined below).


 


B.            The Issuer and
the Trustee have entered into an Indenture dated as of September 22, 2004
(as amended by that certain First Supplemental Indenture dated November 3,
2006, that certain Second Supplemental Indenture dated September 24, 2007,
and that certain Third Supplemental Indenture, dated as of the date hereof,
among the Forbearing Holders (as defined therein) and the Issuer (the “Third
Supplemental Indenture”), as the same may hereafter be amended,
supplemented, extended, restated, or otherwise modified from time to time, the “Indenture”)
pursuant to which the Issuer issued the Securities (as defined in the
Indenture) to the Holders.  Capitalized
terms used herein but not otherwise defined shall have the meanings assigned to
them in the Indenture.


 


C.            Each Guarantor
is a subsidiary of the Issuer


 


D.            It is a
requirement of the Third Supplemental Indenture that this Guaranty be executed
and delivered by each Guarantor.


 


E.             Each Guarantor
finds it advantageous, desirable and in its best interests to comply with the
requirement that it execute and deliver this Guaranty to the Trustee.


 


AGREEMENT


 


NOW,
THEREFORE, for good and valuable consideration, the sufficiency of which the parties
hereby acknowledge, the parties hereto hereby covenant and agree as follows:


 


Section 1.               Defined Terms.  As used in this Guaranty, the following terms
shall have the meaning indicated:


 


“Issuer”
shall have the meaning indicated in Recital A.


 

















 


“Indenture”
shall have the meaning indicated in Recital B.


 


“Intercreditor
Agreement” shall have the meaning given such term in the Indenture.


 


“Forbearance
Agreement” shall have the meaning indicated in Recital A.


 


“Guarantor”
shall have the meaning indicated in the opening paragraph hereof.


 


“Guaranty”
shall have the meaning indicated in the opening paragraph hereof.


 


“Holder”
shall have the meaning given such term in the Indenture.


 


“Indenture
Documents” shall have the meaning given such term in the Indenture.


 


“Material
Adverse Occurrence” shall mean any occurrence of whatsoever nature
(including, without limitation, any adverse determination in any litigation,
arbitration, or governmental investigation or proceeding), which could
reasonably be expected to materially and adversely affect (a) the
financial condition or operation of the Issuer and its subsidiaries taken as a
whole, (b) impair the ability of the Issuer or any subsidiary to perform
its obligations under the Indenture or any writing executed pursuant thereto, (c) the
validity or enforceability of the material obligations of the Issuer or any
subsidiary under any Indenture Document, (d) the rights and remedies of
the Holders or the Trustee against the Issuer hereunder, (e) the timely
payment of the principal of and interest on the Notes or other amounts payable
by the Issuer hereunder, or (f) the validity of the joint and several
nature of the obligations of the Issuer with respect to all of the Obligations.


 


“Obligations”
shall mean (a) all indebtedness, liabilities and obligations of the Issuer
to the Holders of every kind, nature or description under the Indenture,
including the Issuer’s obligation on any notes issued under the Indenture (including,
without limitation, any obligation to pay Forbearance Interest (as defined in
the Forbearance Agreement)) and any note or notes hereafter issued in
substitution or replacement thereof, in all cases whether due or to become due,
and whether now existing or hereafter arising or incurred and (b) any and
all liabilities and obligations of the Issuer to the Holders and the Trustee of
every kind, nature and description, whether direct or indirect or hereafter
acquired by the Holders from any Person, absolute or contingent, regardless of
how such liabilities arise or by what agreement or instrument they may be
evidenced, and (c) in all of the foregoing cases whether due or to become
due, and whether now existing or hereafter arising or incurred for the benefit
of the Holders.


 


“Person”
shall mean any individual, corporation, partnership, limited partnership,
limited liability company, joint venture, firm, association, trust,
unincorporated organization, government or governmental agency or political
subdivision or any other entity, whether acting in an individual, fiduciary or
other capacity.


 


“Third
Supplemental Indenture” shall have the meaning indicated in Recital B.


 


“Trustee”
shall have the meaning indicated in the opening paragraph hereof.


 


2

















 


Section 2.               The Guaranty.  Each Guarantor, jointly and severally, hereby
absolutely and unconditionally guarantees to the Trustee, the payment when due
(whether at a stated maturity or earlier by reason of acceleration or
otherwise) and performance of the Obligations.


 


Section 3.               Continuing Guaranty.  This Guaranty is an absolute, unconditional
and continuing guaranty of payment and performance of the Obligations, and the
obligations of the Guarantors hereunder shall not be released, in whole or in
part, by any action or thing which might, but for this provision of this
Guaranty, be deemed a legal or equitable discharge of a surety or guarantor,
other than irrevocable payment and performance in full of the Obligations.  No notice of the Obligations to which this
Guaranty may apply, or of any renewal or extension thereof need be given to the
Guarantors and none of the foregoing acts shall release the Guarantors from
liability hereunder.  Each Guarantor
hereby expressly waives (a) demand of payment, presentment, protest,
notice of dishonor, nonpayment or nonperformance on any and all forms of the
Obligations; (b) notice of acceptance of this Guaranty and notice of any
liability to which it may apply; (c) all other notices and demands of any
kind and description relating to the Obligations now or hereafter provided for
by any agreement, statute, law, rule or regulation; and (d) any and
all defenses of the Issuer pertaining to the Obligations except for the defense
of discharge by payment.  No Guarantor
shall be exonerated with respect to such Guarantors’ liabilities under this
Guaranty by any act or thing except irrevocable payment and performance of the
Obligations, it being the purpose and intent of this Guaranty that the
Obligations constitute the direct and primary obligations of each Guarantor and
that the covenants, agreements and all obligations of the Guarantors hereunder
be absolute, unconditional and irrevocable. 
Each Guarantor shall be and remain liable for any deficiency remaining
after foreclosure of any mortgage, deed of trust or security agreement securing
all or any part of the Obligations, whether or not the liability of the Issuer
or any other Person for such deficiency is discharged pursuant to statute,
judicial decision or otherwise.  The
acceptance of this Guaranty by the Trustee and the Holders is not intended and
does not release any liability previously existing of any guarantor or surety
of any indebtedness of the Issuer to the Trustee and the Holders.


 


Section 4.                Second Priority Nature of
Liens.  Notwithstanding anything
herein to the contrary, the liens and security interest granted to the
Collateral Agent for the benefit of the Holders pursuant to this Agreement and
the exercise of any right or remedy by the Collateral Agent or any Holder
hereunder is subject to the provisions of the Intercreditor Agreement.


 


Section 5.               Other Transactions.  The Trustee and each Holder is expressly
authorized (a) to exchange, surrender or release with or without
consideration any or all collateral and security which may at any time be
placed with it by the Issuer or by any other Person, or to forward or deliver
any or all such collateral and security directly to the Issuer for collection
and remittance or for credit, or to collect the same in any other manner
without notice to the Guarantors and (b) to amend, modify, extend or
supplement the Indenture, any note or other instrument evidencing the
Obligations or any part thereof and any other agreement with respect to the
Obligations, waive compliance by the Issuer or any other Person with the
respective terms thereof and settle or compromise any of the Obligations
without notice to any Guarantor and without in any manner affecting the
absolute liabilities of any Guarantor hereunder.  No invalidity, irregularity or
unenforceability of all or any part of the Obligations or of any security
therefor or other recourse with respect thereto shall affect, impair or be a
defense to this Guaranty.  The
liabilities of each Guarantor hereunder shall not be affected or impaired by
any 


 


3

















 


failure, delay, neglect or
omission on the part of the Trustee or the Holders to realize upon any of the
Obligations of the Issuer to the Holders, or upon any collateral or security
for any or all of the Obligations, nor by the taking by the Holders of (or the
failure to take) any other guaranty or guaranties to secure the Obligations,
nor by the taking by the Holders of (or the failure to take or the failure to
perfect its security interest in or other lien on) collateral or security of
any kind.  No act or omission of the
Holder, whether or not such action or failure to act varies or increases the
risk, or affects the rights or remedies of the Guarantors, shall affect or
impair the obligations of the Guarantors hereunder.  Each Guarantor acknowledges that this
Guaranty is in effect and binding without reference to whether this Guaranty is
signed by any other Person or Persons, that possession of this Guaranty by the
Trustee or any Holder shall be conclusive evidence of due delivery hereof by
such Guarantor and that this Guaranty shall continue in full force and effect,
both as to the Obligations then existing and/or thereafter created,
notwithstanding the release of or extension of time to any other guarantor of
the Obligations or any part thereof.


 


Section 6.               Actions Not Required.  Each Guarantor hereby waives any and all right
to cause a marshalling of the assets of the Issuer or any other action by any
court or other governmental body with respect thereto or to cause the Trustee
or any Holder to proceed against any security for the Obligations or any other
recourse which the Trustee or any Holder may have with respect thereto and
further waives any and all requirements that the Trustee or any Holder
institute any action or proceeding at law or in equity, or obtain any judgment,
against the Issuer or any other Person, or with respect to any collateral
security for the Obligations, as a condition precedent to making demand on or
bringing an action or obtaining and/or enforcing a judgment against, such
Guarantor upon this Guaranty.  Each
Guarantor further acknowledges that time is of the essence with respect to such
Guarantor’s obligations under this Guaranty. 
Any remedy or right hereby granted which shall be found to be
unenforceable as to any Person or under any circumstance, for any reason, shall
in no way limit or prevent the enforcement of such remedy or right as to any
other Person or circumstance, nor shall such unenforceability limit or prevent
enforcement of any other remedy or right hereby granted.


 


Section 7.               No Subrogation.  Notwithstanding any payment or payments made
by any Guarantor hereunder, each Guarantor waives all rights of subrogation to
any of the rights of the Trustee or the Holders against the Issuer or any other
Person liable for payment of any of the Obligations or any collateral security
or guaranty or right of offset held by the Trustee or the Holders for the
payment of the Obligations, and each Guarantor waives all rights to seek any
recourse to or contribution or reimbursement from the Issuer or any other
Person liable for payment of any of the Obligations in respect of payments made
by such Guarantor hereunder.


 


Section 8.               Application of Payments.  Any and all payments upon the Obligations
made by any Guarantor or by any other Person, and/or the proceeds of any or all
collateral or security for any of the Obligations, may be applied by the
Trustee on such items of the Obligations as the Trustee may elect for the
benefit of the Holders.


 


Section 9.               Recovery of Payment.  If any payment received by the Trustee or any
Holder and applied to the Obligations is subsequently set aside, recovered,
rescinded or required to be returned for any reason (including, without
limitation, the bankruptcy, insolvency or reorganization of the Issuer or any
other obligor), the Obligations to which such payment was applied shall for the
purposes of this Guaranty be deemed to have continued in existence, 


 


4

















 


notwithstanding such
application, and this Guaranty shall be enforceable as to such Obligations as
fully as if such application had never been made.  References in this Guaranty to amounts “irrevocably
paid” or to “irrevocable payment” refer to payments that cannot be set aside,
recovered, rescinded or required to be returned for any reason.


 


Section 10.             Issuer’s Financial Condition.  Each Guarantor is familiar with the financial
condition of the Issuer, and each Guarantor has executed and delivered this
Guaranty based on such Guarantor’s own judgment and not in reliance upon any
statement or representation of the Trustee or the Holder.  The Trustee and each Holder shall have no
obligation to provide the Guarantors with any advice whatsoever or to inform
the Guarantors at any time of the Holder’s actions, evaluations or conclusions
on the financial condition or any other matter concerning the Issuer.


 


Section 11.             Remedies.  All remedies afforded to the Trustee and the
Holders by reason of this Guaranty are separate and cumulative remedies and it
is agreed that no one of such remedies, whether or not exercised by the Trustee
or any Holder, shall be deemed to be in exclusion of any of the other remedies
available to the Trustee or any Holder and no one of such remedies shall in any
way limit or prejudice any other legal or equitable remedy which the Trustee or
any Holder may have hereunder and with respect to the Obligations.  Mere delay or failure to act shall not
preclude the exercise or enforcement of any rights and remedies available to
the Trustee or any Holder.


 


Section 12.             Bankruptcy of the Issuer.  Each Guarantor expressly agrees that the
liabilities and obligations of such Guarantor under this Guaranty shall not in
any way be impaired or otherwise affected by the institution by or against the
Issuer or any other Person of any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or any other similar proceedings for
relief under any bankruptcy law or similar law for the relief of debtors and
that any discharge of any of the Obligations pursuant to any such bankruptcy or
similar law or other law shall not diminish, discharge or otherwise affect in
any way the obligations of such Guarantor under this Guaranty, and that upon
the institution of any of the above actions, such obligations shall be
enforceable against such Guarantor.


 


Section 13.             Costs and Expenses.  The Guarantors jointly and severally agree to
pay or reimburse the Trustee on demand for all out-of-pocket expenses
(including in each case all reasonable fees and expenses of counsel) incurred
by the Trustee arising out of or in connection with the enforcement of this
Guaranty against the Guarantors or arising out of or in connection with any
failure of any Guarantor to fully and timely perform the obligations of such
Guarantor hereunder.


 


Section 14.             Waivers and Amendments.  This Guaranty can be waived, modified,
amended, terminated or discharged only explicitly in a writing signed by the
Trustee.  A waiver so signed shall be
effective only in the specific instance and for the specific purpose given.


 


Section 15.             Notices.  Any notice or other communication to any
party in connection with this Guaranty shall be in writing and shall be sent by
manual delivery, facsimile transmission, overnight courier or United States
mail (postage prepaid) addressed to such party at the address specified on the
signature page hereof, or at such other address as such party shall 


 


5

















 


have specified to the other
party hereto in writing.  All periods of
notice shall be measured from the date of delivery thereof if manually
delivered, from the date of sending thereof if sent by facsimile transmission,
from the first business day after the date of sending if sent by overnight
courier, or from four days after the date of mailing if mailed.


 


Section 16.             Guarantor Acknowledgements.  The Guarantors hereby acknowledge that (a) counsel
has advised the Guarantors in the negotiation, execution and delivery of this
Guaranty, (b) neither the Trustee nor any Holder has a fiduciary
relationship to any Guarantor, each such relationship being solely that of
obligor and creditor, and (c) no joint venture exists between any
Guarantor and the Trustee or any Guarantor and any Holder.


 


Section 17.             Representations and Warranties.  Each Guarantor
hereby represents and warrants to the Trustee and the Holders that it is a
corporation, limited liability company, or limited partnership, as applicable,
organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has the power and authority and the legal
right to own and operate its properties and to conduct the business in which it
is currently engaged.  Each Guarantor
further represents and warrants to the Trustee and the Holders that:


 


17(a)       It has the power and authority and the legal right to
execute and deliver, and to perform its obligations under this Guaranty and the
other Indenture Documents to which it is a party and has taken all necessary
action required by its form of organization to authorize such execution,
delivery and performance.


 


17(b)       This Guaranty and each Indenture Document to which it is a
party constitutes the legal, valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).


 


17(c)       The execution, delivery and performance of this Guaranty
will not (i) violate any provision of any law, statute, rule or
regulation or any order, writ, judgment, injunction, decree, determination or
award of any court, governmental agency or arbitrator presently in effect
having applicability to it, (ii) violate or contravene any provision of
its organizational documents, or (iii) except as disclosed in the
Indenture, result in a breach of or constitute a default under any indenture,
loan or credit agreement or any other agreement, lease or instrument to which
it is a party or by which it or any of its properties may be bound or result in
the creation of any lien thereunder except in each case of any such breach or
default under this clause (iii) as would not reasonably be expected to cause
a Material Adverse Occurrence.  Except
with respect to or as a result of the Specified Defaults (as defined in the
Forbearance Agreement), it is not in default under or in violation of any such
law, statute, rule or regulation, order, writ, judgment, injunction,
decree, determination or award or any such indenture, loan or credit agreement
or other agreement, lease or instrument in any case in which the consequences
of such default or violation would reasonably be expected to cause a Material
Adverse Occurrence.


 


6

















 


17(d)       No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by, any
governmental or public body or authority is required on its part to authorize,
or is required in connection with the execution, delivery and performance of,
or the legality, validity, binding effect or enforceability of, this Guaranty,
other than any required approvals or consents by the First Lien Agent or the
First Lien Lenders (each as defined in the Intercreditor Agreement).


 


17(e)       [Intentionally Omitted]


 


17(f)        It expects to derive benefits from the transactions
resulting in the creation of the Obligations. 
The Trustee and the Holders may rely conclusively on the continuing
warranty, hereby made, that it continues to be benefited by the Holders’ forbearance
under the Forbearance Agreement from exercising remedies against the Issuer and
neither the Trustee nor any Holder shall have a duty to inquire into or confirm
the receipt of any such benefits, and this Guaranty and the Indenture Documents
shall be effective and enforceable by the Trustee and the Holders without
regard to the receipt, nature or value of any such benefits.


 


Section 18.             Continuing Guaranty.  This Guaranty shall (a) remain in full
force and effect until irrevocable payment in full of the Obligations, (b) be
binding upon each Guarantor, its successors and assigns and (c) inure to
the benefit of, and be enforceable by, the Trustee and any Holder and their
successors, transferees, and assigns. 
Without limiting the generality of the foregoing clause (c), any Holder
may assign or otherwise transfer all or any portion of its rights and
obligations under the Indenture to any other Persons to the extent and in the
manner provided in the Indenture and may similarly transfer all or any portion
of its rights under this Guaranty to such Persons.


 


Section 19.             Reaffirmation.  Each Guarantor agrees that when so reasonably
requested by the Trustee or any Holder from time to time it will promptly
execute and deliver to the Trustee or such Holder a written reaffirmation of
this Guaranty in such form as the Trustee or such Holder may reasonably
require.


 


Section 20.             Revocation.  Notwithstanding any other provision hereof, a
Guarantor may revoke this Guaranty as to such Guarantor prospectively as to
future transactions by written notice to that effect actually received by the
Trustee and each Holder.  No such
revocation shall release, impair or affect in any manner any liability
hereunder with respect to Obligations created, contracted, assumed or incurred
prior to receipt by the Trustee and each Holder of written notice of
revocation, or Obligations created, contracted, assumed or incurred after
receipt of such notice pursuant to any contract entered into by the Trustee or
any Holder prior to receipt of such notice, or any renewals or extensions
thereof, theretofore or thereafter made, or any interest accrued or accruing on
such Obligations, or all other costs, expenses and reasonable attorneys’ fees
arising from such Obligations.


 


Section 21.             Governing Law and Construction.  THE
VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS GUARANTY SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS
PRINCIPLES THEREOF.  Whenever possible, each provision of this
Guaranty and any other statement, instrument or transaction contemplated 


 


7

















 


hereby or relating hereto shall
be interpreted in such manner as to be effective and valid under such
applicable law, but, if any provision of this Guaranty or any other statement,
instrument or transaction contemplated hereby or relating hereto shall be held
to be prohibited or invalid under such applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Guaranty or any other statement, instrument or transaction contemplated
hereby or relating hereto.


 


Section 22.             Consent to Jurisdiction.  AT
THE OPTION OF THE HOLDERS, THIS GUARANTY MAY BE ENFORCED IN ANY FEDERAL
COURT OR STATE COURT SITTING IN NEW YORK, NEW YORK; AND EACH GUARANTOR CONSENTS
TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT
VENUE IN SUCH FORUMS IS NOT CONVENIENT. 
IN THE EVENT A GUARANTOR COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR
VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE
RELATIONSHIP CREATED BY THIS GUARANTY, THE HOLDERS AT THEIR OPTION SHALL BE
ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES
ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE
LAW, TO HAVE SUCH CASE DISMISSED WITHOUT PREJUDICE.


 


Section 23.             Waiver of Jury Trial.  EACH
GUARANTOR, THE TRUSTEE AND EACH HOLDER, BY ITS ACCEPTANCE OF THIS GUARANTY,
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


Section 24.             Counterparts.  This Guaranty may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed
an original, but all such counterparts together shall constitute but one and
the same instrument.


 


Section 25.             Joinder Agreements.  Each Subsidiary of the Issuer or any
Guarantor that is required to become a party to this Guaranty pursuant to Section 16.5
of the Indenture or otherwise shall become a party hereto as a Guarantor for
all purposes of this Guaranty by executing and delivering to the Trustee a
Joinder Agreement substantially in the form of Exhibit A attached
hereto.  Upon execution and delivery,
such party shall be as fully a party hereto as if such party were an original
signatory hereof.  Each Guarantor
expressly agrees that its obligations arising hereunder shall not be affected
or diminished by the addition or release of any other Guarantor hereunder.


 


Section 26.             General.  All representations and warranties contained
in this Guaranty or in any other agreement between a Guarantor and the Holders
shall survive the execution, delivery and performance of this Guaranty and the
creation and payment of the Obligations. 
Captions in this Guaranty are for reference and convenience only and
shall not affect the interpretation or meaning of any provision of this
Guaranty.  In the case of any conflict
between any provision of this Guaranty and any provision of the Indenture, the
provision of the Indenture 


 


8

















 


shall govern.  Enforcement of this Guaranty against the
Guarantors shall be subject to all terms, conditions, and provisions of the
Indenture applicable to the enforcement against the Issuer of the Notes, provided,
however, notwithstanding any provision of this Guaranty, in all cases
applicable terms of this Guaranty and the Indenture are subject to the
applicable terms of the Intercreditor Agreement.


 


[The
remainder of this page is intentionally left blank.]


 


9

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.


 


	
   

  	
  VITESSE
  MANUFACTURING & DEVELOPMENT CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher R. Gardner

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Christopher R. Gardner

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  President

  



 


Jurisdiction of Organization:  Delaware


 


Address:


 


741
Calle Plano

Camarillo, CA  93102


 


	
   

  	
  VITESSE
  SEMICONDUCTOR SALES CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher R. Gardner

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Christopher
  R. Gardner

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  President

  



 


Jurisdiction of Organization:  Delaware


 


Address:


 


741
Calle Plano

Camarillo, CA  93102


 


[Signature
Page to Guaranty]


 


S-1

















 


Address
for the Trustee:


 


U.S. Bank National Association


EP-MN-WS3C

60 Livingston Avenue

St. Paul, Minnesota  55107-2292


Attn: Corporate Trust Department


 


[Signature
Page to Guaranty]


 


S-2

















 


EXHIBIT A TO GUARANTY


 


FORM OF JOINDER AGREEMENT


 


JOINDER AGREEMENT


 


This
JOINDER AGREEMENT, dated as of  ___, 200_ (this “Agreement”), is by __________________________,
a _______ _____________ formed under the laws of the State of __________________________
(the “Joining Party”), and is delivered to U.S. National Bank
Association, as trustee (in such capacity, the “Trustee”) for the
Holders from time to time party to the Indenture dated as of September 22,
2004 (as amended by that certain First Supplemental Indenture dated November 3,
2006, that certain Second Supplemental Indenture dated September 24, 2007,
and that certain Third Supplemental Indenture, dated as of the date hereof (the
“Third Supplemental Indenture”), and as the same may be further amended,
restated or otherwise modified from time to time, the “Indenture”), and
pursuant to Section 25 of that certain Guaranty, dated as of October 16,
2009, executed by each Guarantor party thereto in favor of the Trustee (the “Guaranty”).  Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Guaranty.


 


Pursuant
to Section 25 of the Guaranty, by its execution of this Agreement, the
Joining Party hereby becomes a party to the Guaranty bound by all of the terms
and conditions thereof, and, from and after the date hereof, is a Guarantor
bound by all of the obligations of a Guarantor under the Guaranty.  The Joining Party hereby acknowledges that by
becoming a Guarantor, the Joining Party absolutely and unconditionally
guaranties the payment and performance of the “Obligations” under the
Guaranty.  The Joining Party hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms,
provisions, obligations and conditions applicable to a Issuer under the
Guaranty, as amended hereby.


 


This
Agreement and any amendments, waivers, consents or supplements hereto or in
connection herewith may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the
same document.


 


This
Agreement shall be binding upon the parties hereto and their respective
executors, administrators, other legal representatives, successors and assigns,
and shall inure to the benefit of the Trustee, its successors and assigns and
shall be governed by the laws of the State of New York without reference to
principles of conflict of laws.


 


[The
remainder of this page is intentionally left blank.]


 


A-1

















 


IN
WITNESS WHEREOF, the Joining Party has executed this Agreement as of the date
first above written.


 


	
   

  	
  [                                     ]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  Jurisdiction
  of Organization:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
						



 


 


[Signature
Page to Joinder Agreement]


 


A-2