LESSEE GUARANTEE
This Lessee Guarantee (REMEC, Inc. Trust 1998-A), dated as of August 25,
1998 ("LESSEE GUARANTEE"), is made by REMEC, INC., a California corporation (in
such capacity, the "LESSEE") in favor of the Beneficiaries.
W I T N E S E T H:
WHEREAS, REMEC, Inc., as Lessee, Union Bank of California, N.A., as
Certificate Trustee, as Agent, and as Borrower, the Certificate Purchasers named
therein, as Certificate Purchasers, and the Lenders named therein, have entered
into that certain Participation Agreement, dated as of August 25, 1998 (as it
may be modified, amended or restated from time to time as and to the extent
permitted thereby, the "PARTICIPATION AGREEMENT"); and, unless otherwise defined
herein or the context hereof otherwise requires, terms which are defined or
defined by reference in the Participation Agreement (including Appendix 1
thereto) shall have the same meanings when used herein as such terms have
therein, and the rules of interpretation set forth in Appendix 1 to the
Participation Agreement shall apply to this Lessee Guarantee); and
WHEREAS, it is a condition precedent to the consummation by Participants of
the transactions to be consummated on the Document Closing Date and the Advance
Date that Lessee execute and deliver this Lessee Guarantee; and
WHEREAS, Lessee has reviewed and approved the Operative Documents and is
fully informed of (a) the extent of the Borrower Liabilities and (b) the
remedies Beneficiaries may pursue thereunder, with or without notice to Lessee;
and
WHEREAS, it is in the best interests of Lessee that the Overall Transaction
and the Advance Date occur; and
WHEREAS, this Lessee Guarantee, and the execution, delivery and performance
hereof, have been duly authorized by all necessary corporate action of Lessee;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Lessee, Lessee hereby agrees as follows:
SECTION 1. GUARANTEE. Lessee hereby irrevocably and unconditionally
guarantees to Agent (both individually and in its capacity as Agent), each
Participant, and their respective Indemnitees, successors and assigns
(individually a "BENEFICIARY" and collectively the "BENEFICIARIES") the full
and prompt payment when due, whether by acceleration or otherwise, and at all
times thereafter, and the full and prompt performance of all of the Borrower
Liabilities (as hereinafter defined), including interest and yield on any
Borrower Liabilities, whether accruing before or after any Insolvency Event
involving Lessee or any other Person,
and, if interest or yield on any portion of such obligations ceases to accrue
by operation of law by reason of the commencement of such case or proceeding,
including such interest and yield as would have accrued on any such portion
of such obligations if such case or proceeding had not commenced, and further
agrees to pay all expenses (including attorneys' fees, legal expenses and
allocated costs of internal counsel) paid or incurred by any Beneficiary in
endeavoring to collect the Borrower Liabilities, or any part thereof, and in
enforcing this Lessee Guarantee; PROVIDED, HOWEVER, if Lessee duly and timely
exercises and consummates the Sale Option pursuant to the Lease and provided
that a Lease Event of Default has not occurred, the amount guaranteed above
with respect to the Certificate Amounts, Yield accrued thereon, principal of
the Notes, and interest accrued thereon shall not exceed the aggregate
amounts required to be paid and set over by Lessee pursuant to the Lease and
other Operative Documents in connection with such exercise and sale. The
foregoing limitation shall not apply to any Claim under any indemnity in any
Operative Document. The term "BORROWER LIABILITIES", as used herein, shall
mean all of the following, in each case howsoever created, arising or
evidenced, whether direct or indirect, joint or several, absolute or
contingent, or now or hereafter existing, or due or to become due: (i) all
principal of the Notes and interest accrued thereon, (ii) all of the
Certificate Amounts and Yield accrued thereon; (iii) all additional amounts
and other sums (other than Basic Rent) at any time due and owing, and
required to be paid by Borrower under the terms of the Loan Agreement, the
Notes, the Trust Agreement, the Certificates, the Deeds of Trust or any other
Operative Document (including Section 7.5 of the Participation Agreement and
whether or not Lessee or any other Person shall be released or relieved from
any or all liability or obligation to Borrower under any Operative Document).
In any action or proceeding involving any state corporate law, or any
state or federal bankruptcy, insolvency, reorganization or any other law
affecting the rights of creditors generally, if the obligations of Lessee
under this Lessee Guarantee would otherwise be held or determined to be void,
invalid or unenforceable, or subordinated to the claims of any other
creditors, on account of the amount of its liability under this Lessee
Guarantee, then, notwithstanding any other provision hereof to the contrary,
the amount of such liability shall, without any further action by Lessee or
any other Person, be automatically limited and reduced to the highest amount
which is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
Lessee agrees that, in the event of an Insolvency Event with respect to
Borrower or Lessee, or the inability or failure of Borrower or Lessee to pay
debts as they become due, or an assignment by Borrower or Lessee for the
benefit of creditors, or the commencement of any case or proceeding in
respect of Borrower or Lessee under any bankruptcy, insolvency or similar
laws, and if such event shall occur at a time when any of the Borrower
Liabilities may not then be due and payable, Lessee will pay to Agent
forthwith the full amount which would be payable hereunder by Lessee if all
Borrower Liabilities were then due and payable. Notwithstanding any
modification, discharge or extension of any of the Borrower Liabilities or
any amendment, modification, stay or cure of the rights or remedies of any
Beneficiary which may occur in any bankruptcy or reorganization case or
proceeding concerning Borrower or any other Person, whether permanent or
temporary and whether assented to by any Beneficiary, Lessee hereby agrees
that it shall be obligated hereunder to pay and perform
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the Borrower Liabilities thereof and discharge its other obligations
hereunder and under the Operative Documents in accordance with the terms
thereof and the terms of this Lessee Guarantee in effect on the date
immediately prior to such case or proceeding (including the obligation to
perform and pay the portion of Borrower Liabilities consisting of interest or
yield accruing or as would have accrued after the commencement of such
bankruptcy or reorganization case or proceeding). Lessee understands and
acknowledges that by virtue of this Lessee Guarantee, it has specifically
assumed any and all risks of a bankruptcy or reorganization case or
proceeding concerning Borrower or any other Person.
To secure all of the obligations of Lessee hereunder, each Beneficiary
shall have a lien upon and security interest in (and may, without demand or
notice of any kind, at any time and from time to time when any amount shall
be due and payable by Lessee hereunder, appropriate and apply toward the
payment of such amount, in such order of application as Agent may elect in
accordance with the Loan Agreement and the Trust Agreement) any and all
balances, credits, deposits, accounts or moneys of or in the name of Lessee
or any of its Affiliates now or hereafter, for any reason or purpose
whatsoever, in the possession or control of, or in transit to, Agent,
Certificate Trustee or any Participant or any agent or bailee for Agent,
Certificate Trustee or any Participant. Prior to the time any amount shall
be due and payable hereunder, Lessee shall have the use and enjoyment of all
such balances, credits, deposits, accounts and monies, including the right to
withdraw the same. Notwithstanding the foregoing, no Beneficiary shall
exercise, or attempt to exercise, any right of setoff, banker's lien, or the
like, against any deposit account or property of the Lessee or any of its
Affiliates held or maintained by such Beneficiary without the prior written
consent of the Agent at the written direction of the Required Participants.
This Lessee Guarantee shall in all respects be an absolute and
unconditional guaranty of payment and performance (and not of collection),
and shall remain in full force and effect (notwithstanding, without
limitation, the dissolution of Lessee). This Lessee Guarantee is made for
the benefit of and shall be enforceable by each Beneficiary as its interests
may appear, or by Agent on behalf of the Beneficiaries.
Agent on behalf of itself and the Participants, and the Participants
each may, from time to time at its discretion and without notice to Lessee
(except for notices specifically required under the Participation Agreement),
take any or all of the following actions: (a) retain or obtain a lien upon
or a security interest in any property to secure any of the Borrower
Liabilities or any guaranteed obligation hereunder; (b) retain or obtain the
primary or secondary obligation of any obligor or obligors, in addition to
Lessee, with respect to any of the Borrower Liabilities; (c) extend or renew
for one or more periods (regardless of whether longer than the original
period), alter or exchange any of the Borrower Liabilities, or release or
compromise (or cause Lessee to release or compromise) any obligation of
Lessee hereunder or any obligation of any nature of any other obligor
(including, without limitation, Borrower) with respect to any of the Borrower
Liabilities; (d) release or fail to perfect its lien upon or security
interest in, or impair, surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the Borrower
Liabilities or any obligation hereunder, or extend or renew for one or more
periods (regardless of whether longer than the original period) or release,
compromise, alter or exchange any obligations of
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any nature of any obligor with respect to any such property; and (e) resort
to Lessee for payment of any of the Borrower Liabilities, regardless of
whether Agent or any other Person shall have resorted to any other property
securing any of the Borrower Liabilities or any obligation hereunder or shall
have proceeded against any other obligor primarily or secondarily obligated
with respect to any of the Borrower Liabilities (all of the actions referred
to in this paragraph being hereby expressly waived by Lessee).
SECTION 2. LESSEE'S OBLIGATIONS UNCONDITIONAL. Lessee's obligations
hereunder are independent of the obligations of Borrower or any other Person,
and each Beneficiary may enforce any of its rights hereunder independently of
any other right or remedy that it may at any time hold with respect to the
Borrower Liabilities or any security or other guaranty therefor. Such
obligations shall be absolute and unconditional, shall not be subject to any
counterclaim, setoff, deduction, diminution, abatement, recoupment,
suspension, deferment, reduction or defense (other than full and strict
compliance by Lessee with its obligations hereunder), whether based upon any
claim that Borrower, Lessee, any Beneficiary, or any other Person may have
against any Beneficiary or any other Person or otherwise, independent of any
obligations of Lessee under any other guarantee, and shall remain in full
force and effect without regard to, and shall not be released, discharged or
in any way affected by, any circumstance or condition whatsoever (whether or
not Lessee, Borrower or any other Person shall have any knowledge or notice
thereof) including:
(A) any amendment, modification, addition, deletion, supplement or renewal
to or of or other change in the Borrower Liabilities or any Operative
Document or any of the agreements referred to in any thereof, or any
other instrument or agreement applicable to any Operative Document or
any of the parties to such agreements, or to the Leased Property, or
any assignment, mortgage, encumbrance or transfer thereof or of any
interest therein, or any furnishing or acceptance of additional
security for, guaranty of or right of offset with respect to, any of
the Borrower Liabilities; or the failure of any security or the
failure of any Beneficiary to perfect or insure any interest in any
collateral;
(B) any failure, omission or delay on the part of Borrower, any
Beneficiary or any other Person to conform or comply with any term of
any instrument or agreement referred to in CLAUSE (A) above;
(C) any waiver, consent, extension, indulgence, compromise, release or
other action or inaction under or in respect of any instrument,
agreement, guaranty, right of offset or security referred to in CLAUSE
(A) above or any obligation or liability of Borrower or any
Beneficiary, or any exercise or non-exercise by any Beneficiary of any
right, remedy, power or privilege under or in respect of any such
instrument, agreement, guaranty, right of offset or security or any
such obligation or liability;
(D) any Insolvency Event with respect to Borrower, any Beneficiary, Lessee
or any other Person or any of their respective properties or
creditors, or any action taken by any trustee, receiver or court in
any such proceeding;
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(E) any limitation on the liability or obligations of any Person
(including Borrower or Lessee) under any Operative Document
(including, without limitation, any limitation on the liability of, or
recourse to, Certificate Trustee, whether pursuant to Section 9.11 of
the Participation Agreement or otherwise), the Borrower Liabilities,
any collateral security for the Borrower Liabilities, any other
guaranty of the Borrower Liabilities or any discharge, termination,
cancellation, frustration, irregularity, invalidity or
unenforceability, in whole or in part, of any of the foregoing or any
other agreement, instrument, guaranty or security referred to in
CLAUSE (A) above or any term of any thereof;
(F) any defect in the title, compliance with specifications, condition,
design, operation or fitness for use of, or any damage to or loss or
destruction of, or any interruption or cessation in the use of the
Leased Property by Lessee or any other Person for any reason
whatsoever (including, without limitation, any governmental
prohibition or restriction, condemnation, requisition, seizure or any
other act on the part of any governmental or military authority, or
any act of God or of the public enemy) regardless of the duration
thereof (even though such duration would otherwise constitute a
frustration of a lease), whether or not resulting from accident and
whether or not without fault on the part of Lessee, Lessor or any
other Person;
(G) any merger or consolidation of Borrower or Lessee into or with any
other Person, or any sale, lease or transfer of any of the assets of
Borrower or Lessee to any other Person;
(H) any change in the ownership of any shares of capital stock or other
interests in Borrower or Lessee or any corporate change in Borrower or
Lessee; or
(I) any other occurrence or circumstance whatsoever, whether similar or
dissimilar to the foregoing, and any other circumstance that might
otherwise constitute a legal or equitable defense or discharge of the
Borrower Liabilities of a Lessee or surety or that might otherwise
limit recourse against Lessee.
The obligations of Lessee set forth herein constitute the full recourse
obligations of Lessee enforceable against it to the full extent of all its
assets and properties, notwithstanding any provision in the Participation
Agreement or any other Operative Document or other agreements limiting the
liability of Borrower, or any Beneficiary or any other Person.
Lessee waives any and all notice of the creation, renewal, extension or
accrual of any of the Borrower Liabilities and notice of or proof of reliance
by any Beneficiary upon this Lessee Guarantee or acceptance of this Lessee
Guarantee, and the Borrower Liabilities, and any of them, shall conclusively
be deemed to have been created, contracted or incurred in reliance upon this
Lessee Guarantee. Lessee unconditionally waives, to the extent permitted by
Applicable Laws: (a) acceptance of this Lessee Guarantee and proof of
reliance by any Beneficiary hereon; (b) notice of any of the matters referred
to in CLAUSES (A) through (I)
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above, or any right to consent or assent to any thereof; (c) all notices that
may be required by statute, rule of law or otherwise, now or hereafter in
effect, to preserve intact any rights against Lessee, including, without
limitation, any demand, presentment, protest, proof or notice of nonpayment
under any Operative Document, and notice of default or any failure on the
part of Borrower or Lessee to perform and comply with any covenant,
agreement, term or condition of any Operative Document; (d) any right to the
enforcement, assertion or exercise against Borrower or Lessee of any right,
power, privilege or remedy conferred in any Operative Document or otherwise;
(e) any requirement of diligence on the part of any Person; (f) any
requirement of any Beneficiary to take any action whatsoever, to exhaust any
remedies or to mitigate the damages resulting from a default by any Person
under any Operative Document; (g) any notice of any sale, transfer or other
disposition by any Person of any right under, title to or interest in any
Operative Document or the Leased Property; and (h) any other circumstance
whatsoever that might otherwise constitute a legal or equitable discharge,
release or defense of a Lessee or surety, or that might otherwise limit
recourse against Lessee. Notwithstanding the foregoing, none of the waivers
of notice or rights to consent or assent set forth in this paragraph shall be
deemed to be a waiver of the obligation of any Person to give the notices to
Lessee, or a waiver of the right of Lessee to consent or assent, which are
specifically required by or granted in any other Operative Document.
Lessee agrees that this Lessee Guarantee shall be automatically
reinstated if and to the extent that for any reason any payment by or on
behalf of Borrower is rescinded or must be otherwise restored by any
Beneficiary whether as a result of any Insolvency Event or otherwise.
Lessee further agrees that, without limiting the generality of this
Lessee Guarantee, if a Loan Event of Default shall have occurred and be
continuing and any Beneficiary is prevented by Applicable Laws from
exercising its remedies under the Operative Documents, such Beneficiary shall
be entitled to receive hereunder from Lessee, upon demand therefor, the sums
which would have otherwise been due from Borrower had such remedies been
exercised.
SECTION 3. WAIVER OF SUBROGATION. Until the prior indefeasible
payment, in full and in cash, of all Borrower Liabilities, Lessee hereby
irrevocably waives any claim or other rights which it may now or hereafter
acquire against Borrower arising from the existence, payment, performance or
enforcement of Lessee's obligations under this Lessee Guarantee or any other
Operative Document, including any right of subrogation, reimbursement,
contribution, exoneration or indemnification, any right to participate in any
claim or remedy of any Beneficiary against Lessee or any property or assets
now or hereafter constituting part of the Trust Estate, whether or not such
claim, remedy or right arises in equity, or under contract, statute or common
law, including the right to take or receive from Lessee, directly or
indirectly, in cash or other property, or by setoff or any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to Lessee in violation of the preceding sentence and the
Borrower Liabilities shall not have been indefeasibly paid in cash, such
amount shall be deemed to have been paid to Lessee for the benefit of, and
held in trust for, the Beneficiaries, and shall forthwith be paid to Agent,
to be credited and applied pursuant to the terms of the Operative Documents.
Lessee acknowledges that it will receive
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direct and indirect benefits from the financing arrangements contemplated by
the Participation Agreement and that the waiver set forth in this paragraph
is knowingly made in contemplation of such benefits. Lessee hereby
absolutely, unconditionally and irrevocably waives and agrees not to assert
or take advantage of any defense based upon an election of remedies by any
Beneficiary, including an election to proceed by nonjudicial rather than
judicial foreclosure, which destroys or impairs any right of subrogation of
Lessee or the right of Lessee to proceed against any Person for
reimbursement, or both.
SECTION 4. MORTGAGE ON REAL PROPERTY; ADDITIONAL WAIVERS.
(a) Lessee authorizes each Beneficiary at its sole option, without
notice or demand and without affecting the liability of Lessee hereunder, to
release and reconvey (with or without the receipt of any consideration) any
Lien against any or all real or personal property security for the Borrower
Liabilities, to foreclose any or all deeds of trust, mortgages, security
agreements or other instruments or agreements by judicial or nonjudicial
sale, and to exercise any other remedy against Borrower or any security, all
without affecting the liability of Lessee hereunder.
(b) Lessee waives any defenses or benefits that may be derived from
California Code of Civil Procedure Sections 580a, 580b, 580d or 726, or
comparable provisions of the laws of the State of California or any other
jurisdiction, and all other suretyship defenses it would otherwise have under
California law or the laws of any other jurisdiction. Lessee waives any
right to receive notice of any judicial or nonjudicial sale or foreclosure of
any real property, and the failure of Lessee to receive such notice shall not
impair or affect Lessee's liability hereunder.
(c) Lessee waives all rights and defenses that Lessee may have because
Borrower's debt is secured by real property including, without limitation,
arising out of an election of remedies by any Beneficiary, even though that
election of remedies, such as nonjudicial foreclosure with respect to
security for a guaranteed obligation, has destroyed Lessee's rights of
subrogation and reimbursement against Lessee or any other principal by
operation of Section 580d of the Code of Civil Procedure or otherwise. This
means, among other things:
(1) Beneficiaries may collect from Lessee without first foreclosing
on any real or personal property collateral pledged by Borrower;
(2) If Beneficiaries foreclose on any real property collateral
pledged by Borrower:
(A) The amount of the debt may be reduced only by the price for
which such collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price, and
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(B) Beneficiaries may collect from Lessee even if Agent and
Participant, by foreclosing on the real property collateral, have
destroyed any right Lessee may have to collect from Borrower.
This is an unconditional and irrevocable waiver of any rights and defenses
Lessee may have because Borrower's debt is secured by real property. These
rights and defenses include any rights or defenses based upon Section 580a,
580b, 580d or 726 of the California Code of Civil Procedure.
(d) Lessee acknowledges that it has, in this Lessee Guarantee, waived
any and all rights of subrogation and reimbursement and any other rights and
defenses available to Lessee by reason of Sections 2787 to 2855, inclusive,
and Sections 2899 and 3433 of the California Civil Code, including, without
limitation, (i) any defenses Lessee may have to its guaranty obligations by
reason of an election of remedies by any Beneficiary and (ii) any rights or
defenses Lessee may have by reason of protection afforded to Lessee or any
other principal with respect to the obligation so guaranteed pursuant to the
antideficiency or other laws of the State of California limiting or
discharging Borrower's indebtedness, including Section 580a, 580b, 580d, or
726 of the California Code of Civil Procedure.
SECTION 5. REASONABLENESS AND EFFECT OF WAIVERS. Lessee warrants and
agrees that each of the waivers set forth in this Lessee Guarantee is made
with full knowledge of its significance and consequences and that, under the
circumstances, the waivers are reasonable and not contrary to public policy
or law. If any of such waivers are determined to be contrary to any
Applicable Laws or public policy, such waivers shall be effective only to the
maximum extent permitted by law.
SECTION 6. TRANSFERS BY BENEFICIARIES. Subject to the restrictions on
transfer set forth in the Participation Agreement, each Beneficiary may, from
time to time, whether before or after any discontinuance of this Lessee
Guarantee, at its sole discretion and without notice to or consent of Lessee,
assign or transfer any or all of its portion of the Borrower Liabilities or
any interest therein; and, notwithstanding any such assignment or transfer or
any subsequent assignment or transfer thereof, such Borrower Liabilities
shall be and remain Borrower Liabilities for the purposes of this Lessee
Guarantee, and each and every immediate and successive assignee or transferee
of any of the Borrower Liabilities or of any interest therein shall, to the
extent of such assignee's or transferee's interest in the Borrower
Liabilities, be entitled to the benefits of this Lessee Guarantee to the same
extent as if such assignee or transferee were such Beneficiary.
SECTION 7. NO WAIVER BY BENEFICIARIES. No delay in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy; nor shall any
modification or waiver of any of the provisions of this Lessee Guarantee be
binding upon any Beneficiary except as expressly set forth in a writing duly
signed and delivered on its behalf. No action permitted hereunder shall in
any way affect or impair any Beneficiary's rights or Lessee's obligations
under this Lessee Guarantee. For the purposes of this Lessee Guarantee,
Borrower Liabilities shall include all of the obligations
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described in the definition thereof, notwithstanding any right or power of
Borrower or any other Person to assert any claim or defense as to the
invalidity or unenforceability of any such obligation, and no such claim or
defense shall affect or impair the obligations of Lessee hereunder. Lessee's
obligations under this Lessee Guarantee shall be absolute and unconditional
irrespective of any circumstance whatsoever which might constitute a legal or
equitable discharge or defense of Lessee. Lessee hereby acknowledges that
there are no conditions to the effectiveness of this Lessee Guarantee.
SECTION 8. SUCCESSORS AND ASSIGNS. This Lessee Guarantee shall be
binding upon Lessee and upon Lessee's successors and assigns; and all
references herein to Lessee shall be deemed to include any successor or
successors, whether immediate or remote, to such Person.
SECTION 9. SEVERABILITY. Wherever possible, each provision of this
Lessee Guarantee shall be interpreted in such manner as to be effective and
valid under Applicable Laws, but if any provision of this Lessee Guarantee
shall be prohibited by or invalid thereunder, 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 Lessee Guarantee.
SECTION 10. SUBMISSION TO JURISDICTION; SERVICE OF PROCESS. LESSEE:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS LESSEE GUARANTEE, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF CALIFORNIA AND OF
ANY CALIFORNIA STATE COURT SITTING IN SAN DIEGO COUNTY, AND APPELLATE COURTS
FROM ANY THEREOF; (b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDINGS MAY BE
BROUGHT TO SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT
SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT
TO PLEAD OR CLAIM THE SAME; (c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH
ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED
OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO IT AT ITS ADDRESS SET FORTH AT SCHEDULE II TO THE PARTICIPATION
AGREEMENT OR AT SUCH OTHER ADDRESS OF WHICH THE OTHER PARTIES TO THE
PARTICIPATION AGREEMENT SHALL HAVE BEEN NOTIFIED PURSUANT TO SECTION 9.3 OF
THE PARTICIPATION AGREEMENT; AND (d) AGREES THAT NOTHING HEREIN SHALL AFFECT
THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR SHALL LIMIT THE RIGHT OF ANY BENEFICIARY TO SUE IN ANY OTHER JURISDICTION.
SECTION 11. NOTICES. All notices, demands, declarations, consents,
directions, approvals, instructions, requests and other communications
required or permitted by this Lessee Guarantee shall be in writing and shall
be deemed to have been duly given when addressed to the appropriate Person
and delivered in the manner specified in Section 9.3 of the Participation
Agreement.
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SECTION 12. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS LESSEE GUARANTEE
HAS BEEN DELIVERED IN, AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF, THE STATE OF CALIFORNIA.
LESSEE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS LESSEE GUARANTEE OR ANY OTHER
OPERATIVE DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, Lessee has caused this Lessee Guarantee to be executed
and delivered as of the date first above written.
REMEC, INC.
By: /s/ Michael McDonald
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Name: Michael McDonald
Title: Chief Financial Officer