EXHIBIT 10.16
CROSS-CORPORATE CONTINUING GUARANTY
BORROWERS: XXXXXXX CARDIOLOGY SYSTEMS, INC.
XXXXXXX, INC.
GUARANTORS: XXXXXXX CARDIOLOGY SYSTEMS, INC.
XXXXXXX, INC.
DATE: DECEMBER 30, 2002
THIS CROSS-CORPORATE CONTINUING GUARANTY is executed by the above-named
guarantors (jointly and severally, the "Guarantor"), as of the above date, in
favor of SILICON VALLEY BANK ("Silicon"), whose address is 0000 Xxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx 00000, with respect to the Indebtedness of each and all
of the above-named borrowers (jointly and severally, the "Borrower").
1. CONTINUING GUARANTY. Guarantor hereby unconditionally
guarantees and promises to pay on demand to Silicon in lawful money of the
United States, and to perform for the benefit of Silicon, all of the Borrower's
present and future Indebtedness (as defined below) to Silicon.
2. "INDEBTEDNESS." As used in this Guaranty, 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.
3. 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 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
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SILICON VALLEY BANK CROSS-CORPORATE CONTINUING GUARANTY
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.
4. 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 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.
5. NO COMMITMENT. Guarantor acknowledges and agrees that
acceptance by Silicon of this Guaranty shall not constitute a commitment of any
kind by Silicon to extend
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SILICON VALLEY BANK CROSS-CORPORATE CONTINUING GUARANTY
such credit or other financial accommodation to Borrower or to permit Borrower
to incur Indebtedness to Silicon.
6. EXERCISE OF RIGHTS AND REMEDIES; FORECLOSURE OF TRUST DEEDS.
Guarantor hereby waives all rights of subrogation, reimbursement,
indemnification, and contribution and any other rights and defenses that are or
may become available to the Guarantor or other surety by reason of California
Civil Code Sections 2787 to 2855, inclusive. The Guarantor waives all rights and
defenses that the Guarantor may have because the Borrower's Indebtedness is
secured by real property. This means, among other things: (1) Silicon may
collect from the Guarantor without first foreclosing on any real or personal
property collateral pledged by the Borrower. (2) If Silicon forecloses on any
real property collateral pledged by the Borrower: (A) The amount of the
Indebtedness may be reduced only by the price for which that collateral is sold
at the foreclosure sale, even if the collateral is worth more than the sale
price. (B) Silicon may collect from the Guarantor even if Silicon, by
foreclosing on the real property collateral, has destroyed any right the
Guarantor may have to collect from the Borrower. This is an unconditional and
irrevocable waiver of any rights and defenses the Guarantor may have because the
Borrower's Indebtedness is secured by real property. These rights and defenses
include, but are not limited to, any rights or defenses based upon Section 580a,
580b, 580d, or 726 of the Code of Civil Procedure. The 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 a guaranteed obligation, 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.
7. 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) Guarantor shall fail to pay or perform
when due any of its obligations under this Guaranty; or (b) any default or event
of default occurs under any present or future loan agreement or other
instrument, document, or agreement between Silicon and Borrower or between
Silicon and Guarantor. The foregoing are referred to in this Guaranty as "Events
of Default".
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 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. The obligations of Guarantor hereunder may be terminated only as to
future transactions and only by giving 90 days' advance written notice thereof
to Silicon at its address above by registered first-class U.S. mail, postage
prepaid, return receipt requested. No such revocation shall be effective until
90 days following the date of actual receipt thereof by Silicon. Notwithstanding
such revocation, this Guaranty and all consents, waivers and other provisions
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SILICON VALLEY BANK CROSS-CORPORATE CONTINUING GUARANTY
hereof shall continue in full force and effect as to any and all Indebtedness
which is outstanding on the effective date of revocation 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 after revocation), and
all interest thereon, then and thereafter accruing, and all attorneys' fees,
court costs and collection charges theretofore and thereafter 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.
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 it 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 its obligations hereunder either in full or to
any lesser extent.
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 its 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 it 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.
13. 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.
14. COSTS; INTEREST. 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. 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.
15. 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 its address provided by
Guarantor to Silicon in
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SILICON VALLEY BANK CROSS-CORPORATE CONTINUING GUARANTY
writing, 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 its address.
16. 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
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 Santa Xxxxx 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.
17. CONSTRUCTION; SEVERABILITY. 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. 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. 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.
18. 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. Silicon shall have
no obligation to inquire into the power or authority of Borrower or any of its
officers, directors, employees, 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 its successors and assigns. 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.
19. 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 Santa Xxxxx 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.
20. RECEIPT OF COPY. Guarantor acknowledges receipt of a copy of
this Guaranty.
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,
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SILICON VALLEY BANK CROSS-CORPORATE CONTINUING GUARANTY
ARISING OUT OF, OR IN ANY WAY RELATING TO: (i) THIS GUARANTEE OR ANY SUPPLEMENT
OR 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.
Guarantor Signature:
Xxxxxxx Cardiology Systems, Inc.
By /s/ Xxxxxxx Xxxxxxx
---------------------------------
Title SVP / CFO / Secretary
Guarantor Signature:
Xxxxxxx, Inc.
By /s/ Xxxxxxx Xxxxxxx
---------------------------------
Title SVP / CFO / Secretary
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CERTIFIED RESOLUTION - GUARANTEE
GUARANTOR: XXXXXXX CARDIOLOGY SYSTEMS, INC.
A CORPORATION ORGANIZED UNDER THE
LAWS OF THE STATE OF CALIFORNIA
DATE: DECEMBER 30, 2002
I, the undersigned, Secretary or Assistant Secretary of the above-named
corporation, a corporation organized under the laws of the state set forth
above, do hereby certify that the following is a full, true and correct copy of
resolutions duly and regularly adopted by the Board of Directors of said
corporation as required by law, and by the by-laws of said corporation, and that
said resolutions are still in full force and effect and have not been in any way
modified, repealed, rescinded, amended or revoked.
WHEREAS, it is in the direct interest of this corporation to assist the
following person(s) (jointly and severally, the "Borrower"):
XXXXXXX, INC.
in procuring credit from Silicon Valley Bank ("Silicon"), because Borrower
is an affiliate of this corporation, furnishes goods or services to this
corporation, purchases or acquires goods or services from this corporation,
and/or otherwise has a direct or indirect corporate or business
relationship with this corporation;
RESOLVED, that any officer of this corporation is hereby authorized and
directed to: execute and deliver on behalf of this corporation a guarantee
with respect to all indebtedness, liabilities and obligations of Borrower
to Silicon, whether now existing or hereafter arising or acquired; to
pledge or assign to Silicon, and to grant to Silicon a security interest
and lien in, any and all assets and property, real and personal, of this
corporation as security for all indebtedness, liabilities and obligations
of this corporation to Silicon, now existing or hereafter arising,
including without limitation the obligations of this corporation under said
guarantee, and to execute and deliver in connection therewith, one or more
pledge agreements, assignments, security agreements Uniform Commercial Code
financing statements, deeds of trust and mortgages, in form and substance
satisfactory to Silicon; to execute and deliver any and all amendments,
modifications, extensions, renewals, replacements and agreements,
documents, instruments relating to the foregoing or requested by Silicon;
and to execute and deliver any and all instruments, papers and documents
and to do all other acts that said officers may deem convenient or proper
to effectuate the purpose and intent of these resolutions.
RESOLVED, all actions heretofore taken and all documentation heretofore
executed and delivered by any of said officers, or by any individual who
currently holds or has held any of said offices, in furtherance of the
foregoing is hereby ratified, adopted, approved and confirmed and declared
to be binding and enforceable obligations of this corporation in accordance
with the respective terms and provisions thereof; and that the
authorizations herein set forth shall remain in full force and effect until
written notice of any modification or discontinuance shall be given to and
actually received by Silicon, but no such modification or discontinuance
shall effect the validity of the acts of any person, authorized to so act
with these resolutions, before the receipt of any such notice by Silicon.
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary or
Assistant Secretary on the date set forth above.
/s/ Xxxxxxx Xxxxxxx
---------------------------------
Secretary or Assistant Secretary
CERTIFIED RESOLUTION - GUARANTEE
GUARANTOR: XXXXXXX, INC.
A CORPORATION ORGANIZED UNDER THE
LAWS OF THE STATE OF WASHINGTON
DATE: DECEMBER 30, 2002
I, the undersigned, Secretary or Assistant Secretary of the above-named
corporation, a corporation organized under the laws of the state set forth
above, do hereby certify that the following is a full, true and correct copy of
resolutions duly and regularly adopted by the Board of Directors of said
corporation as required by law, and by the by-laws of said corporation, and that
said resolutions are still in full force and effect and have not been in any way
modified, repealed, rescinded, amended or revoked.
WHEREAS, it is in the direct interest of this corporation to assist the
following person(s) (jointly and severally, the "Borrower"):
XXXXXXX CARDIOLOGY SYSTEMS, INC.
in procuring credit from Silicon Valley Bank ("Silicon"), because Borrower
is an affiliate of this corporation, furnishes goods or services to this
corporation, purchases or acquires goods or services from this corporation,
and/or otherwise has a direct or indirect corporate or business
relationship with this corporation;
RESOLVED, that any officer of this corporation is hereby authorized and
directed to: execute and deliver on behalf of this corporation a guarantee
with respect to all indebtedness, liabilities and obligations of Borrower
to Silicon, whether now existing or hereafter arising or acquired; to
pledge or assign to Silicon, and to grant to Silicon a security interest
and lien in, any and all assets and property, real and personal, of this
corporation as security for all indebtedness, liabilities and obligations
of this corporation to Silicon, now existing or hereafter arising,
including without limitation the obligations of this corporation under said
guarantee, and to execute and deliver in connection therewith, one or more
pledge agreements, assignments, security agreements Uniform Commercial Code
financing statements, deeds of trust and mortgages, in form and substance
satisfactory to Silicon; to execute and deliver any and all amendments,
modifications, extensions, renewals, replacements and agreements,
documents, instruments relating to the foregoing or requested by Silicon;
and to execute and deliver any and all instruments, papers and documents
and to do all other acts that said officers may deem convenient or proper
to effectuate the purpose and intent of these resolutions.
RESOLVED, all actions heretofore taken and all documentation heretofore
executed and delivered by any of said officers, or by any individual who
currently holds or has held any of said offices, in furtherance of the
foregoing is hereby ratified, adopted, approved and confirmed and declared
to be binding and enforceable obligations of this corporation in accordance
with the respective terms and provisions thereof; and that the
authorizations herein set forth shall remain in full force and effect until
written notice of any modification or discontinuance shall be given to and
actually received by Silicon, but no such modification or discontinuance
shall effect the validity of the acts of any person, authorized to so act
with these resolutions, before the receipt of any such notice by Silicon.
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary or
Assistant Secretary on the date set forth above.
/s/ Xxxxxxx Xxxxxxx
---------------------------------
Secretary or Assistant Secretary
