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EXHIBIT 10.145
[LOGO] SILICON VALLEY BANK
CONTINUING GUARANTY
BORROWER: ALPHA MICROSYSTEMS
GUARANTOR: ALPHAHEALTHCARE, INC.
DATE: JULY 10, 1995
THIS CONTINUING GUARANTY is executed by the above-named guarantor (the
"Guarantor"), as of the above date, in favor of SILICON VALLEY BANK
("Silicon"), whose address is 3000 Lakeside Drive, Santa Clara, California
95054-2895, with respect to the Indebtedness of the above-named borrower
("Borrower")
1. CONTINUING GUARANTY. Guarantor hereby unconditionally guarantees and
promises to pay on demand to Silicon, at the address indicated above, or at
such other address as Silicon may direct, in lawful money of the United States,
and to perform for the benefit of Silicon, all Indebtedness of Borrower now or
hereafter owing to or held by Silicon. As used herein, the term "Indebtedness"
is used in its most comprehensive sense and shall mean and include without
limitation: (a) any and all debts, duties, obligations, liabilities,
representations, warranties and guaranties of Borrower or any one or more of
them, heretofore, now, or hereafter made, incurred, or created, whether
directly to Silicon or acquired by Silicon by assignment or otherwise, or held
by Silicon on behalf of others, however arising, whether voluntary or
involuntary, due or not due, absolute or contingent, liquidated or
unliquidated, certain or uncertain, determined or undetermined, monetary or
nonmonetary, written or oral, and whether Borrower may be liable individually
or jointly with others, and regardless of whether recovery thereon may be or
hereafter become barred by any statute of limitations, discharged or
uncollectible in any bankruptcy, insolvency or other proceeding, or otherwise
unenforceable; and (b) any and all amendments, modifications, renewals and
extensions of any or all of the foregoing, including without limitation
amendments, modifications, renewals and extensions which are evidenced by any
new or additional instrument, document or agreement; and (c) any and all
attorneys' fees, court costs, and collection charges incurred in endeavoring to
collect or enforce any of the foregoing against Borrower, Guarantor, or any
other person liable thereon (whether or not suit be brought) and any other
expenses of, for or incidental to collection thereof. As used herein, the term
"Borrower" shall include any successor to the business and assets of Borrower,
and shall also include Borrower in its capacity as a debtor or debtor in
possession under the federal Bankruptcy Code, and any trustee, custodian or
receiver for Borrower or any of its assets, should Borrower hereafter become
the subject of any bankruptcy or insolvency proceeding, voluntary or
involuntary; and all indebtedness, liabilities and obligations incurred by any
such person shall be included in the Indebtedness guaranteed hereby. This
Guaranty is given in consideration for credit and other financial
accommodations which may, from time to time, be given by Silicon to Borrower in
Silicon's sole discretion, but Guarantor acknowledges and agrees that
acceptance by Silicon of this Guaranty shall not constitute a commitment of any
kind by Silicon to extend such credit or other financial accommodation to
Borrower or to permit Borrower to incur Indebtedness to Silicon. All sums due
under this Guaranty shall bear interest from the date due until the date paid
at the highest rate charged with respect to any of the Indebtedness.
2. WAIVERS. Guarantor hereby waives: (a) presentment for payment,
notice of dishonor, demand, protest, and notice thereof as to any instrument,
and all other notices and demands to which Guarantor might be entitled,
including without limitation notice of all of the following: the acceptance
hereof; the creation, existence, or acquisition of any Indebtedness; the amount
of the Indebtedness from time to time outstanding; any foreclosure sale or
other disposition of any property which secures any or all of the Indebtedness
or which secures the obligations of any other guarantor of any or all of the
Indebtedness; any adverse change in Borrower's financial position; any other
fact which might increase Guarantor's risk; any default, partial payment or
non-payment of all or any part of the Indebtedness; the occurrence of any other
Event of Default (as hereinafter defined); any and all agreements and
arrangements between
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SILICON VALLEY BANK CONTINUINING GUARANTY
Silicon and Borrower and any changes, modifications, or extensions thereof, and
any revocation, modification or release of any guaranty of any or all of the
Indebtedness by any person (including without limitation any other person
signing this Guaranty); (b) any right to require Silicon to institute suit
against, or to exhaust its rights and remedies against, Borrower or any other
person, or to proceed against any property of any kind which secures all or any
part of the Indebtedness, or to exercise any right of offset or other right
with respect to any reserves, credits or deposit accounts held by or maintained
with Silicon or any indebtedness of Silicon to Borrower, or to exercise any
other right or power, or pursue any other remedy Silicon may have; (c) any
defense arising by reason of any disability or other defense of Borrower or any
other guarantor or any endorser, co-maker or other person, or by reason of the
cessation from any cause whatsoever of any liability of Borrower or any other
guarantor or any endorser, co-maker or other person, with respect to all or any
part of the Indebtedness, or by reason of any act or omission of Silicon or
others which directly or indirectly results in the discharge or release of
Borrower or any other guarantor or any other person or any Indebtedness or any
security therefor, whether by operation of law or otherwise; (d) any defense
arising by reason of any failure of Silicon to obtain, perfect, maintain or
keep in force any security interest in, or lien or encumbrance upon, any
property of Borrower or any other person; (e) any defense based upon any
failure of Silicon to give Guarantor notice of any sale or other disposition of
any property securing any or all of the Indebtedness, or any defects in any
such notice that may be given, or any failure of Silicon to comply with any
provision of applicable law in enforcing any security interest in or lien upon
any property securing any or all of the Indebtedness including, but not limited
to, any failure by Silicon to dispose of any property securing any or all of
the Indebtedness in a commercially reasonable manner; (f) any defense based
upon or arising out of any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against Borrower or any other guarantor or any endorser, co-maker or other
person, including without limitation any discharge of, or bar against
collecting, any of the Indebtedness (including without limitation any interest
thereon), in or as a result of any such proceeding; and (g) the benefit of any
and all statutes of limitation with respect to any action based upon, arising
out of or related to this Guaranty. Until all of the Indebtedness has been
paid, performed, and discharged in full, nothing shall discharge or satisfy the
liability of Guarantor hereunder except the full performance and payment of all
of the Indebtedness. If any claim is ever made upon Silicon for repayment or
recovery of any amount or amounts received by Silicon in payment of or on
account of any of the Indebtedness, because of any claim that any such payment
constituted a preferential transfer or fraudulent conveyance, or for any other
reason whatsoever, and Silicon repays all or part of said amount by reason of
any judgment, decree or order of any court or administrative body having
jurisdiction over Silicon or any of its property, or by reason of any
settlement or compromise of any such claim effected by Silicon with any such
claimant (including without limitation the Borrower), then and in any such
event, Guarantor agrees that any such judgment, decree, order, settlement and
compromise shall be binding upon Guarantor, notwithstanding any revocation or
release of this Guaranty or the cancellation of any note or other instrument
evidencing any of the Indebtedness, or any release of any of the Indebtedness,
and the Guarantor shall be and remain liable to Silicon under this Guaranty for
the amount so repaid or recovered, to the same extent as if such amount had
never originally been received by Silicon, and the provisions of this sentence
shall survive, and continue in effect, notwithstanding any revocation or
release of this Guaranty. Until all of the Indebtedness has been irrevocably
paid and performed in full, Guarantor hereby expressly and unconditionally
waives all rights of subrogation, reimbursement and indemnity of every kind
against Borrower, and all rights of recourse to any assets or property of
Borrower, and all rights to any collateral or security held for the payment and
performance of any Indebtedness, including (but not limited to) any of the
foregoing rights which Guarantor may have under any present or future document
or agreement with any Borrower or other person, and including (but not limited
to) any of the foregoing rights which Guarantor may have under any equitable
doctrine of subrogation, implied contract, or unjust enrichment, or any other
equitable or legal doctrine. Neither Silicon, nor any of its directors,
officers, employees, agents, attorneys or any other person affiliated with or
representing Silicon shall be liable for any claims, demands, losses or
damages, of any kind whatsoever, made, claimed, incurred or suffered by
Guarantor or any other party through the ordinary negligence of Silicon, or any
of its directors, officers, employees, agents, attorneys or any other person
affiliated with or representing Silicon.
3. CONSENTS. Guarantor hereby consents and agrees that, without notice
to or by Guarantor and without affecting or impairing in any way the
obligations or liability of Guarantor hereunder, Silicon may, from time to time
before or after revocation of this Guaranty, do any one or more of the
following in Silicon's sole and absolute discretion: (a) accelerate, accept
partial payments of, compromise or settle, renew, extend the time for the
payment, discharge, or performance of, refuse to enforce, and release all or
any parties to, any or all of the Indebtedness; (b) grant any other indulgence
to Borrower or any other person in respect of any or all of the Indebtedness or
any other matter; (c) accept, release, waive, surrender, enforce, exchange,
modify, impair, or extend the time for the performance, discharge, or payment
of, any and all property of any kind securing any or all of the Indebtedness or
any guaranty of any or all of the Indebtedness, or on which Silicon at any time
may have a lien, or refuse to enforce its rights or make any compromise or
settlement or agreement therefor in respect of any or all of such property; (d)
substitute or add, or take any action or omit to take any action which results
in the release of, any one or more endorsers or guarantors of all or any part
of the Indebtedness, including, without limitation one or more parties to this
Guaranty, regardless of any destruction or impairment of any right of
contribution or other right of Guarantor; (e) amend, alter or change in any
respect whatsoever any term or provision relating to any or all of the
Indebtedness, including the rate of interest thereon; (f) apply any sums
received from Borrower, any other
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guarantor, endorser, or co-signer, or from the disposition of any collateral or
security, to any indebtedness whatsoever owing from such person or secured by
such collateral or security, in such manner and order as Silicon determines in
its sole discretion, and regardless of whether such indebtedness is part of the
Indebtedness, is secured, or is due and payable; (g) apply any sums received
from Guarantor or from the disposition of any collateral or security securing
the obligations of Guarantor, to any of the Indebtedness in such manner and
order as Silicon determines in its sole discretion, regardless of whether or
not such Indebtedness is secured or is due and payable. Guarantor consents and
agrees that Silicon shall be under no obligation to marshal any assets in favor
of Guarantor, or against or in payment of any or all of the Indebtedness.
Guarantor further consents and agrees that Silicon shall have no duties or
responsibilities whatsoever with respect to any property securing any or all of
the Indebtedness. Without limiting the generality of the foregoing, Silicon
shall have no obligation to monitor, verify, audit, examine, or obtain or
maintain any insurance with respect to, any property securing any or all of the
Indebtedness.
4. ACCOUNT STATED. Silicon's books and records showing the account
between it and the Borrower shall be admissible in evidence in any action or
proceeding as prima facie proof of the items therein set forth. Silicon's
monthly statements rendered to the Borrower shall be binding upon the Guarantor
(whether or not the Guarantor receives copies thereof), and shall constitute an
account stated between Silicon and the Borrower, unless Silicon receives a
written statement of the Borrower's exceptions within 30 days after the
statement was mailed to the Borrower. The Guarantor assumes full
responsibility for obtaining copies of such monthly statements from the
Borrower, if the Guarantor desires such copies.
5. EXERCISE OF RIGHTS AND REMEDIES; FORECLOSURE OF TRUST DEEDS.
Guarantor consents and agrees that, without notice to or by Guarantor and
without affecting or impairing in any way the obligations or liability of
Guarantor hereunder, Silicon may, from time to time, before or after revocation
of this Guaranty, exercise any right or remedy it may have with respect to any
or all of the Indebtedness or any property securing any or all of the
Indebtedness or any guaranty thereof, including without limitation judicial
foreclosure, nonjudicial foreclosure, exercise of a power of sale, and taking a
deed, assignment or transfer in lieu of foreclosure as to any such property,
and Guarantor expressly waives any defense based upon the exercise of any such
right or remedy, notwithstanding the effect thereof upon any of Guarantor's
rights, including without limitation, any destruction of Guarantor's right of
subrogation against Borrower and any destruction of Guarantor's right of
ocontribution or other right against any other guarantor of any or all of the
Indebtedness or against any other person, whether by operation of Sections
580a, 580d or 726 of the California Code of Civil Procedure, or any comparable
provisions of the laws of any other jurisdiction, or any other statutes or
rules of law now or hereafter in effect, or otherwise. Without limiting the
generality of the foregoing, (a) Guarantor waives all rights and defenses
arising out of an election of remedies by Silicon, even though that election of
remedies, such as a nonjudicial foreclosure with respect to security for any of
the Indebtedness, has destroyed the guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section 580d of the
Code of Civil Procedure or otherwise. (b) Guarantor further waives all rights
and defenses arising out of an election of remedies by Silicon, even though
that election of remedies, such as a nonjudicial foreclosure with respect to
security for any of the Indebtedness, has destroyed the guarantor's rights of
subrogation, reimbursement and contribution against any other guarantor of the
guaranteed obligation, by the operation of Section 580d of the Code of Civil
Procedure or otherwise. (c) Guarantor understands that if Silicon forecloses
any present or future trust deed, which secures any or all of the Indebtedness
or which secures any other guaranty of any or all of the Indebtedness, by
nonjudicial foreclosure, Guarantor may, as a result, have a complete defense to
liability under this Guaranty, based on the legal doctrine of estoppel and
Sections 580a, 580d or 726 of the California Code of Civil Procedure, and
Guarantor hereby expressly waives all such defenses. (d) Guarantor understands
and agrees that, in the event Silicon in its sole discretion forecloses any
trust deed now or hereafter securing any or all of the Indebtedness, by
nonjudicial foreclosure, Guarantor will remain liable to Silicon for any
deficiency, even though Guarantor will lose his right of subrogation against
the Borrower, and even though Guarantor will be unable to recover from the
Borrower the amount of the deficiency for which Guarantor is liable, and even
though Guarantor may have retained his right of subrogation against Borrower if
Silicon had foreclosed said trust deed by judicial foreclosure as opposed to
nonjudicial foreclosure, and even though absent the waivers set forth herein
Guarantor may have had a complete defense to any liability for any deficiency
hereunder. (e) Guarantor understands and agrees that, in the event Silicon in
its sole discretion forecloses any trust deed now or hereafter securing any
other guaranty of any or all of the Indebtedness, by nonjudicial foreclosure,
Guarantor will remain liable to Silicon for any deficiency, even though
Guarantor will lose his right of subrogation or contribution against the other
guarantor, and even though Guarantor will be unable to recover from the other
guarantor any part of the deficiency for which Guarantor is liable, and even
though Guarantor may have retained his right of subrogation or contribution
against the other guarantor if Silicon had foreclosed said trust deed by
judicial foreclosure as opposed to nonjudicial foreclosure, and even though
absent the waivers set forth herein Guarantor may have had a complete defense
to any liability for any deficiency hereunder.
6. ACCELERATION. Notwithstanding the terms of all or any part of the
Indebtedness, the obligations of the Guarantor hereunder to pay and perform all
of the Indebtedness shall, at the option of Silicon, immediately become due and
payable, without notice, and without regard to the expressed maturity of any of
the Indebtedness, in the event: (a) any warranty, representation, statement,
report, or certificate made or delivered to Silicon by Borrower or Guarantor,
or any of their respective officers, partners,
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employees, or agents, is incorrect, false, untrue, or misleading when given in
any material respect; or (b) Borrower or Guarantor shall fail to pay or perform
when due all or any part of the Indebtedness; or (c) Guarantor shall fail to
pay or perform when due any indebtedness or obligation of Guarantor to Silicon
or to any parent, subsidiary or corporate affiliate of Silicon, whether under
this Guaranty or any other instrument, document, or agreement heretofore or
hereafter entered into*; or (d) there occurs in Silicon's judgment a material
impairment of the prospect of payment or performance of any or all of the
Indebtedness; or (e) any event shall occur which may or does result in the
acceleration of the maturity of any indebtedness of Borrower or Guarantor to
others (regardless of any requirement of notice, opportunity to cure or other
condition prior to the exercise of any right of acceleration); or (f) Borrower
or Guarantor shall fail promptly to perform or comply with any term or
condition of any agreement with any third party which does or may result in a
material adverse effect on the business of Borrower or Guarantor; or (g) there
shall be made or exist any levy, assessment, attachment, seizure, lien, or
encumbrance for any cause or reason whatsoever upon all or any part of the
property of Borrower or Guarantor (unless discharged by payment, release or
bond not more than [ten] ** days after such event has occurred); or (h) there
shall occur the dissolution, termination of existence, insolvency, or business
failure of Borrower or Guarantor, or the appointment of a receiver, trustee or
custodian for Borrower or Guarantor or all or any part of the property of
either of them, or the assignment for the benefit of creditors by Borrower or
Guarantor, or the commencement of any proceeding by or against Borrower or
Guarantor under any reorganization, bankruptcy, insolvency, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, now or hereafter in effect; or (i) Borrower or Guarantor shall be
deceased or declared incompetent by any court or a guardian or conservator
shall be appointed for either of them or for the property of either of them; or
(j) Guarantor or Borrower shall generally not pay their respective debts as
they become due or shall enter into any agreement (whether written or oral), or
offer to enter into any such agreement, with all or a significant number of its
creditors regarding any moratorium or other indulgence with respect to its
debts or the participation of such creditors or their representatives in the
supervision, management, or control of the business of either of them; or (k)
Borrower or Guarantor shall conceal, remove or permit to be concealed or
removed any part of its property, with intent to hinder, delay or defraud its
creditors, or make or suffer any transfer of any of its property which may be
fraudulent under any bankruptcy, fraudulent conveyance or similar law, or shall
make any transfer of its property to or for the benefit of any creditor at a
time when other creditors similarly situated have not been paid; or (l) the
board of directors or shareholders of Borrower or Guarantor shall adopt any
resolution or plan for its dissolution or the liquidation of all or
substantially all of its assets; or (m) Guarantor shall revoke this Guaranty or
contest or deny liability under this Guaranty. All of the foregoing are
hereinafter referred to as "Events of Default".
* , PROVIDED THAT WITH RESPECT TO THE FAILURE TO PERFORM ANY NON-MONETARY
OBLIGATION ONLY, SUCH FAILURE IS NOT CURED WITHIN 30 DAYS AFTER THE DATE DUE
** 30
7. RIGHT TO ATTACHMENT REMEDY. Guarantor agrees that, notwithstanding
the existence of any property securing any or all of the Indebtedness, Silicon
shall have all of the rights of an unsecured creditor of Guarantor, including
without limitation the right to obtain a temporary protective order and writ of
attachment against Guarantor with respect to any sums due under this Guaranty.
Guarantor further agrees that in the event any property secures the obligations
of Guarantor under this Guaranty, to the extent that Silicon, in its sole and
absolute discretion, determines prior to the disposition of such property that
the amount to be realized by Silicon therefrom may be less than the
indebtedness of the Guarantor under this Guaranty, Silicon shall have all the
rights of an unsecured creditor against Guarantor, including without limitation
the right of Silicon, prior to the disposition of said property, to obtain a
temporary protective order and writ of attachment against Guarantor. Guarantor
waives the benefit of Section 483.010(b) of the California Code of Civil
Procedure and of any and all other statutes and rules of law now or hereafter
in effect requiring Silicon to first resort to or exhaust all such collateral
before seeking or obtaining any attachment remedy against Guarantor. Silicon
shall have no liability to Guarantor as a result thereof, whether or not the
actual deficiency realized by Silicon is less than the anticipated deficiency
on the basis of which Silicon obtains a temporary protective order or writ of
attachment.
8. INDEMNITY. Guarantor hereby agrees to indemnify Silicon and hold
Silicon harmless from and against any and all claims, debts, liabilities,
demands, obligations, actions, causes of action, penalties, costs and expenses
(including without limitation attorneys' fees), of every nature, character and
description, which Silicon may sustain or incur based upon or arising out of
any of the Indebtedness, any actual or alleged failure to collect and pay over
any withholding or other tax relating to Borrower or its employees, any
relationship or agreement between Silicon and Borrower, any actual or alleged
failure of Silicon to comply with any writ of attachment or other legal process
relating to Borrower or any of its property, or any other matter, cause or
thing whatsoever occurred, done, omitted or suffered to be done by Silicon
relating in any way to Borrower or the Indebtedness (except any such amounts
sustained or incurred as the result of the gross negligence or willful
misconduct of Silicon or any of its directors, officers, employees, agents,
attorneys, or any other person affiliated with or representing Silicon).
Notwithstanding any provision in this Guaranty to the contrary, the indemnity
agreement set forth in this Section shall survive any termination or revocation
of this Guaranty and shall for all purposes continue in full force and effect.
9. SUBORDINATION. Any and all rights of Guarantor under any and all
debts, liabilities and obligations owing from Borrower to Guarantor, including
any security for and guaranties of any such obligations, whether now existing
or
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hereafter arising, are hereby subordinated in right of payment to the prior
payment in full of all of the Indebtedness. No payment in respect of any such
subordinated obligations shall at any time be made to or accepted by Guarantor
if at the time of such payment any Indebtedness is outstanding. If any Event
of Default has occurred, Borrower and any assignee, trustee in bankruptcy,
receiver, or any other person having custody or control over any or all of
Borrower's property are hereby authorized and directed to pay to Silicon the
entire unpaid balance of the Indebtedness before making any payments whatsoever
to Guarantor, whether as a creditor, shareholder, or otherwise; and insofar as
may be necessary for that purpose, Guarantor hereby assigns and transfers to
Silicon all rights to any and all debts, liabilities and obligations owing from
Borrower to Guarantor, including any security for and guaranties of any such
obligations, whether now existing or hereafter arising, including without
limitation any payments, dividends or distributions out of the business or
assets of Borrower. Any amounts received by Guarantor in violation of the
foregoing provisions shall be received and held as trustee for the benefit of
Silicon and shall forthwith be paid over to Silicon to be applied to the
Indebtedness in such order and sequence as Silicon shall in its sole discretion
determine, without limiting or affecting any other right or remedy which
Silicon may have hereunder or otherwise and without otherwise affecting the
liability of Guarantor hereunder. Guarantor hereby expressly waives any right
to set-off or assert any counterclaim against Borrower.
10. REVOCATION. This is a Continuing Guaranty relating to all of the
Indebtedness, including Indebtedness arising under successive transactions
which from time to time continue the Indebtedness or renew it after it has been
satisfied. Guarantor waives all benefits of California Civil Code Section
2815, and agrees that the obligations of Guarantor hereunder may not be
terminated or revoked in any manner except by giving 90 days' advance written
notice of revocation to Silicon at its address above by registered first-class
U.S. mail, postage prepaid, return receipt requested, and only as to new loans
made by Silicon to Borrower more than 90 days after actual receipt of such
written notice by Silicon. No termination or revocation of this Guaranty shall
be effective until 90 days following the date of actual receipt of said written
notice of revocation by Silicon. Notwithstanding such written notice of
revocation or any other act of Guarantor or any other event or circumstance,
Guarantor agrees that this Guaranty and all consents, waivers and other
provisions hereof shall continue in full force and effect as to any and all
Indebtedness which is outstanding on or before the 90th day following actual
receipt of said written notice of revocation by Silicon, and all extensions,
renewals and modifications of said Indebtedness (including without limitation
amendments, extensions, renewals and modifications which are evidenced by new
or additional instruments, documents or agreements executed before or after
expiration of said 90-day period), and all interest thereon, accruing before or
after expiration of said 90-day period, and all attorneys' fees, court costs
and collection charges, incurred before or after expiration of said 90-day
period, in endeavoring to collect or enforce any of the foregoing against
Borrower, Guarantor or any other person liable thereon (whether or not suit be
brought) and any other expenses of, for or incidental to collection thereof.
11. INDEPENDENT LIABILITY. Guarantor hereby agrees that one or more
successive or concurrent actions may be brought hereon against Guarantor, in
the same action in which Borrower may be sued or in separate actions, as often
as deemed advisable by Silicon. The liability of Guarantor hereunder is
exclusive and independent of any other guaranty of any or all of the
Indebtedness whether executed by Guarantor or by any other guarantor (including
without limitation any other persons signing this Guaranty). The liability of
Guarantor hereunder shall not be affected, revoked, impaired, or reduced by any
one or more of the following: (a) the fact that the Indebtedness exceeds the
maximum amount of Guarantor's liability, if any, specified herein or elsewhere
(and no agreement specifying a maximum amount of Guarantor's liability shall be
enforceable unless set forth in a writing signed by Silicon or set forth in
this Guaranty); or (b) any direction as to the application of payment by
Borrower or by any other party; or (c) any other continuing or restrictive
guaranty or undertaking or any limitation on the liability of any other
guarantor (whether under this Guaranty or under any other agreement); or (d)
any payment on or reduction of any such other guaranty or undertaking; or (e)
any revocation, amendment, modification or release of any such other guaranty
or undertaking; or (f) any dissolution or termination of, or increase,
decrease, or change in membership of any Guarantor which is a partnership.
Guarantor hereby expressly represents that he was not induced to give this
Guaranty by the fact that there are or may be other guarantors either under
this Guaranty or otherwise, and Guarantor agrees that any release of any one or
more of such other guarantors shall not release Guarantor from his obligations
hereunder either in full or to any lesser extent. If Guarantor is a married
person, Guarantor hereby expressly agrees that recourse may be had against his
or her separate property for all of his or her obligations hereunder.
12. FINANCIAL CONDITION OF BORROWER. Guarantor is fully aware of the
financial condition of Borrower and is executing and delivering this Guaranty
at Borrower's request and based solely upon his own independent investigation
of all matters pertinent hereto, and Guarantor is not relying in any manner
upon any representation or statement of Silicon with respect thereto.
Guarantor represents and warrants that he is in a position to obtain, and
Guarantor hereby assumes full responsibility for obtaining, any additional
information concerning Borrower's financial condition and any other matter
pertinent hereto as Guarantor may desire, and Guarantor is not relying upon or
expecting Silicon to furnish to him any information now or hereafter in
Silicon's possession concerning the same or any other matter. By executing
this Guaranty, Guarantor knowingly accepts the full range of risks encompassed
within a contract of continuing guaranty, which risks Guarantor acknowledges
include without limitation the possibility that Borrower will incur additional
Indebtedness for which Guarantor will be liable hereunder after Borrower's
financial condition or ability to pay such Indebtedness has deteriorated and/or
after bankruptcy or insolvency proceedings have been
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commenced by or against Borrower. Guarantor shall have no right to require
Silicon to obtain or disclose any information with respect to the Indebtedness,
the financial condition or character of Borrower, the existence of any
collateral or security for any or all of the Indebtedness, the filing by or
against Borrower of any bankruptcy or insolvency proceeding, the existence of
any other guaranties of all or any part of the Indebtedness, any action or
non-action on the part of Silicon, Borrower, or any other person, or any other
matter, fact, or occurrence.
13. REPORTS AND FINANCIAL STATEMENTS OF GUARANTOR. Guarantor shall, at
its sole cost and expense, at any time and from time to time, prepare or cause
to be prepared, and provide to Silicon upon Silicon's request (i) such
financial statements and reports concerning Guarantor for such periods of time
as Silicon may designate, (ii) any other information concerning Guarantor's
business, financial condition or affairs as Silicon may request, and (iii)
copies of any and all foreign, federal, state and local tax returns and reports
of or relating to Guarantor as Silicon may from time to time request.
Guarantor hereby intentionally and knowingly waives any and all rights and
privileges it may have not to divulge or deliver said tax returns, reports and
other information which are requested by Silicon hereunder or in any litigation
in which Silicon may be involved relating directly or indirectly to Borrower or
to Guarantor. Guarantor further agrees immediately to give written notice to
Silicon of any adverse change in Guarantor's financial condition and of any
condition or event which constitutes an Event of Default under this Guaranty.
All reports and information furnished to Silicon hereunder shall be complete,
accurate and correct in all respects. Whenever requested, Guarantor shall
further deliver to Silicon a certificate signed by Guarantor (and, if Guarantor
is a partnership, by all general partners of Guarantor, in their individual
capacities, and, if Guarantor is a corporation, by the president and secretary
of Guarantor, in their individual capacities) warranting and representing that
all reports, financial statements and other documents and information delivered
or caused to be delivered to Silicon under this Guaranty, are complete, correct
and thoroughly and accurately present the financial condition of Guarantor, and
that there exists on the date of delivery of said certificate to Silicon no
condition or event which constitutes an Event of Default under this Guaranty.
14. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and
warrants that (i) it is in Guarantor's direct interest to assist Borrower in
procuring credit, because Borrower is an affiliate of Guarantor, furnishes
goods or services to Guarantor, purchases or acquires goods or services from
Guarantor, and/or otherwise has a direct or indirect corporate or business
relationship with Guarantor, (ii) this Guaranty has been duly and validly
authorized, executed and delivered and constitutes the valid and binding
obligation of Guarantor, enforceable in accordance with its terms, and (iii)
the execution and delivery of this Guaranty does not violate or constitute a
default under (with or without the giving of notice, the passage of time, or
both) any order, judgment, decree, instrument or agreement to which Guarantor
is a party or by which it or its assets are affected or bound.
15. COSTS. Whether or not suit be instituted, Guarantor agrees to
reimburse Silicon on demand for all reasonable attorneys' fees and all other
reasonable costs and expenses incurred by Silicon in enforcing this Guaranty,
or arising out of or relating in any way to this Guaranty, or in enforcing any
of the Indebtedness against Borrower, Guarantor, or any other person, or in
connection with any property of any kind securing all or any part of the
Indebtedness. Without limiting the generality of the foregoing, and in
addition thereto, Guarantor shall reimburse Silicon on demand for all
reasonable attorneys' fees and costs Silicon incurs in any way relating to
Guarantor, Borrower or the Indebtedness, in order to: obtain legal advice;
enforce or seek to enforce any of its rights; commence, intervene in, respond
to, or defend any action or proceeding; file, prosecute or defend any claim or
cause of action in any action or proceeding (including without limitation any
probate claim, bankruptcy claim, third-party claim, secured creditor claim,
reclamation complaint, and complaint for relief from any stay under the
Bankruptcy Code or otherwise); protect, obtain possession of, sell, lease,
dispose of or otherwise enforce any security interest in or lien on any
property of any kind securing any or all of the Indebtedness; or represent
Silicon in any litigation with respect to Borrower's or Guarantor's affairs.
In the event either Silicon or Guarantor files any lawsuit against the other
predicated on a breach of this Guaranty, the prevailing party in such action
shall be entitled to recover its attorneys' fees and costs of suit from the
non-prevailing party.
16. NOTICES. Any notice which a party shall be required or shall desire
to give to the other hereunder (except for notice of revocation, which shall be
governed by Section 10 of this Guaranty) shall be given by personal delivery or
by telecopier or by depositing the same in the United States mail, first class
postage pre-paid, addressed to Silicon at its address set forth in the heading
of this Guaranty and to Guarantor at his address set forth under his signature
hereon, and such notices shall be deemed duly given on the date of personal
delivery or one day after the date telecopied or 3 business days after the date
of mailing as aforesaid. Silicon and Guarantor may change their address for
purposes of receiving notices hereunder by giving written notice thereof to the
other party in accordance herewith. Guarantor shall give Silicon immediate
written notice of any change in his address.
17. CLAIMS. Guarantor agrees that any claim or cause of action by
Guarantor against Silicon, or any of Silicon's directors, officers, employees,
agents, accountants or attorneys, based upon, arising from, or relating to this
Guaranty, or any other present or future agreement between Silicon and
Guarantor or between Silicon and Borrower, or any other transaction
contemplated hereby or thereby or relating hereto or thereto, or any other
matter, cause or thing whatsoever, whether or not relating hereto or thereto,
occurred, done, omitted or suffered to be done by Silicon, or by Silicon's
directors, officers, employees, agents, accountants or attorneys, whether
sounding in contract or in
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SILICON VALLEY BANK CONTINUING GUARANTY
tort or otherwise, shall be barred unless asserted by Guarantor by the
commencement of an action or proceeding in a court of competent jurisdiction
within Los Angeles County, California, by the filing of a complaint within one
year after the first act, occurrence or omission upon which such claim or cause
of action, or any part thereof, is based and service of a summons and complaint
on an officer of Silicon or any other person authorized to accept service of
process on behalf of Silicon, within 30 days thereafter. Guarantor agrees that
such one year period is a reasonable and sufficient time for Guarantor to
investigate and act upon any such claim or cause of action. The one year
period provided herein shall not be waived, tolled, or extended except by a
specific written agreement of Silicon. This provision shall survive any
termination of this Guaranty or any other agreement.
18. CONSTRUCTION; SEVERABILITY. If more than one person has executed this
Guaranty, the term "Guarantor" as used herein shall be deemed to refer to all
and any one or more such persons and their obligations hereunder shall be joint
and several. Without limiting the generality of the foregoing, if more than
one person has executed this Guaranty, this Guaranty shall in all respects be
interpreted as though each person signing this Guaranty had signed a separate
Guaranty, and references herein to "other guarantors" or words of similar
effect shall include without limitation other persons signing this Guaranty.
As used in this Guaranty, the term "property" is used in its most comprehensive
sense and shall mean all property of every kind and nature whatsoever,
including without limitation real property, personal property, mixed property,
tangible property and intangible property. Words used herein in the masculine
gender shall include the neuter and feminine gender, words used herein in the
neuter gender shall include the masculine and feminine, words used herein in
the singular shall include the plural and words used in the plural shall
include the singular, wherever the context so reasonably requires. If any
provision of this Guaranty or the application thereof to any party or
circumstance is held invalid, void, inoperative or unenforceable, the remainder
of this Guaranty and the application of such provision to other parties or
circumstances shall not be affected thereby, the provisions of this Guaranty
being severable in any such instance.
19. GENERAL PROVISIONS. Silicon shall have the right to seek recourse
against Guarantor to the full extent provided for herein and in any other
instrument or agreement evidencing obligations of Guarantor to Silicon, and
against Borrower to the full extent of the Indebtedness. No election in one
form of action or proceeding, or against any party, or on any obligation, shall
constitute a waiver of Silicon's right to proceed in any other form of action
or proceeding or against any other party. The failure of Silicon to enforce
any of the provisions of this Guaranty at any time or for any period of time
shall not be construed to be a waiver of any such provision or the right
thereafter to enforce the same. All remedies hereunder shall be cumulative and
shall be in addition to all rights, powers and remedies given to Silicon by law
or under any other instrument or agreement. Time is of the essence in the
performance by Guarantor of each and every obligation under this Guaranty. If
Borrower is a corporation, partnership or other entity, Guarantor hereby agrees
that Silicon shall have no obligation to inquire into the power or authority of
Borrower or any of its officers, directors, partners, or agents acting or
purporting to act on its behalf, and any Indebtedness made or created in
reliance upon the professed exercise of any such power or authority shall be
included in the Indebtedness guaranteed hereby. This Guaranty is the entire
and only agreement between Guarantor and Silicon with respect to the guaranty
of the Indebtedness of Borrower by Guarantor, and all representations,
warranties, agreements, or undertakings heretofore or contemporaneously made,
which are not set forth herein, are superseded hereby. No course of dealings
between the parties, no usage of the trade, and no parol or extrinsic evidence
of any nature shall be used or be relevant to supplement or explain or modify
any term or provision of this Guaranty. There are no conditions to the full
effectiveness of this Guaranty. The terms and provisions hereof may not be
waived, altered, modified, or amended except in a writing executed by Guarantor
and a duly authorized officer of Silicon. All rights, benefits and privileges
hereunder shall inure to the benefit of and be enforceable by Silicon and its
successors and assigns and shall be binding upon Guarantor and his heirs,
executors, administrators, personal representatives, successors and assigns.
Neither the death of Guarantor nor notice thereof to Silicon shall terminate
this Guaranty as to his estate, and, notwithstanding the death of Guarantor or
notice thereof to Silicon, this Guaranty shall continue in full force and
effect with respect to all Indebtedness, including without limitation
Indebtedness incurred or created after the death of Guarantor and notice
thereof to Silicon. Section headings are used herein for convenience only.
Guarantor acknowledges that the same may not describe completely the subject
matter of the applicable Section, and the same shall not be used in any manner
to construe, limit, define or interpret any term or provision hereof.
20. GOVERNING LAW; VENUE AND JURISDICTION. This instrument and all acts
and transactions pursuant or relating hereto and all rights and obligations of
the parties hereto shall be governed, construed, and interpreted in accordance
with the internal laws of the State of California. In order to induce Silicon
to accept this Guaranty, and as a material part of the consideration therefor,
Guarantor (i) agrees that all actions or proceedings relating directly or
indirectly hereto shall, at the option of Silicon, be litigated in courts
located within Los Angeles County, California, (ii) consents to the
jurisdiction of any such court and consents to the service of process in any
such action or proceeding by personal delivery or any other method permitted by
law; and (iii) waives any and all rights Guarantor may have to transfer or
change the venue of any such action or proceeding.
21. MUTUAL WAIVER OF RIGHT TO JURY TRIAL. SILICON AND GUARANTOR HEREBY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, LAWSUIT OR PROCEEDING
BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO: (i) THIS GUARANTEE OR
ANY SUPPLEMENT OR
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SILICON VALLEY BANK CONTINUING GUARANTY
AMENDMENT THERETO; OR (ii) ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT
BETWEEN SILICON AND GUARANTOR; OR (iii) ANY BREACH, CONDUCT, ACTS OR OMISSIONS
OF SILICON OR GUARANTOR OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSON AFFILIATED WITH OR
REPRESENTING SILICON OR GUARANTOR; IN EACH OF THE FOREGOING CASES, WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
22. RECEIPT OF COPY. Guarantor acknowledges receipt of a copy of
this Guaranty.
Guarantor Signature: ALPHAHEALTHCARE, INC.
By Douglas J. Tullio
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Title President
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Address: 10 Coburg Road
Eugene, Oregon 97401
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