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EXHIBIT 10.118
GUARANTY OF PAYMENT AND PERFORMANCE
THIS GUARANTY dated as of January 14, 2000 (the "Guaranty") from
ALTERRA HEALTHCARE CORPORATION, a Delaware corporation with its principal
executive office and place of business at 10000 Innovation Drive, Milwaukee,
Wisconsin 53226 (the "Guarantor") to KEY CORPORATE CAPITAL INC., a Michigan
corporation with an office for the transaction of business located at 127 Public
Square, 6th Floor, Cleveland, OH 44114 (the "Lender").
W I T N E S S E T H :
WHEREAS, Clinton Brookside Drive, LLC, a New York limited liability
company (herein called the "Borrower"), is about to borrow from the Lender the
sum of up to Three Million Three Hundred Thousand Dollars ($3,300,000.00) (the
"Loan"); and
WHEREAS, the Lender is unwilling to make the Loan to the Borrower
unless it receives this Guaranty; and
WHEREAS, the Guarantor is willing to enter into this Guaranty in order
to induce the Lender to make the Loan and the Guarantor has approved the form
and substance of any documents executed or delivered by Borrower in connection
with the Loan (the "Loan Documents").
NOW, THEREFORE, in order to induce the Lender to make the Loan to the
Borrower and in consideration of the premises and of other good and valuable
consideration, the Guarantor intends to guarantee absolutely and unconditionally
to the Lender, the punctual payment of the Loan and all notes or other evidences
of indebtedness given by the Borrower to the Lender in connection therewith and
all extensions, modifications or renewals thereof (collectively, the "Note") and
all interest and other sums due under the Note or any Loan Document and such
further payment and performance as may be set forth in Article 2 hereof.
ARTICLE 1
REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS
The Guarantor hereby represents and warrants to Lender that:
Section 1.1 Capacity of the Guarantor. Guarantor:
(A) Has the capacity to enter into this Guaranty.
(B) Has its principal place of business at the address set forth at
the head of this
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Guaranty.
Section 1.2 No Violation of Restrictions. Neither the execution and
delivery of this Guaranty, the consummation of the transactions contemplated
hereby nor the fulfillment of or compliance with the provisions of this Guaranty
will conflict with or result in a breach of any of the terms, covenants,
conditions or provisions of any agreement, judgment or order to which any party
named as a Guarantor is a party or by which any party named as a Guarantor is
bound, or will constitute a default under any of the foregoing, or result in the
creation or imposition of any lien of any nature whatsoever.
Section 1.3 Compliance with Law. Guarantor (A) is not in violation
of any law, ordinance, governmental rule, regulation, order or judgment to which
the Guarantor may be subject which would materially affect the business of the
Guarantor and (B) has not failed to obtain any material license, permit,
franchise or other governmental authorization necessary to the conduct of their
present business.
Section 1.4 Financial Statements. The financial statements
submitted by Guarantor, including balance sheets, statement of income, retained
earnings and other related schedules, to Lender fairly represent the financial
condition as of the date of each statement and there has been no adverse
material change in the financial condition of any Guarantor since the date of
the respective statements submitted to Lender.
Section 1.5 Solvency of Guarantor and Borrower. Guarantor is
solvent and has made an appropriate financial investigation of the Borrower and
has determined that the Borrower is solvent at the time of execution of this
Guaranty.
ARTICLE 2
COVENANTS AND AGREEMENTS
Section 2.1 Guaranty of Payment and Performance. The Guarantor
(jointly and severally, if there be more than one Guarantor) irrevocably,
absolutely and unconditionally guarantees to the Lender:
(A) The punctual payment of the Loan, the Note, all principal and
interest due thereunder and any other sums due under the Note or
any Loan Document.
(B) The full and prompt payment and performance of any and all
obligations of Borrower to Lender under the Loan Documents
including, without limitation, the obligations of Borrower
concerning hazardous materials and other environmental matters
contained in any of the Loan Documents.
Section 2.2 Obligations Unconditional. This Guaranty shall remain
in full force and effect until the Loan, the Note and all sums due thereunder or
under any Loan Document are paid in full, irrespective of any interruptions in
the business relationships of the Borrower and
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the Guarantor with the Lender, and shall not be affected, modified or impaired
by any state of facts or the happening from time to time of any event,
including, without limitation, any of the following, whether or not with notice
to or the consent of the Guarantor provided, however, that nothing contained in
this Section 2.2 shall relieve Lender from its obligation to give any notice or
opportunity to cure that may be required hereunder or under the Loan Documents:
(A) The invalidity, irregularity, illegality or unenforceability of,
or any defect in, the Note or any Loan Document or any collateral
security for the Loan (the "Collateral").
(B) The waiver, compromise, settlement, release or termination of any
or all of the obligations, covenants or agreements of the
Borrower under the Note or any Loan Documents.
(C) The failure to give notice to the Guarantor of the occurrence of
an event of default under the Note or any other Loan Document,
except as required herein.
(D) The loss, release, sale, exchange, surrender or other change in
any Collateral.
(E) The extension of the time for payment of any principal of or
interest on the Note or of the time for performance of any other
obligations, covenants or agreements under or arising out of the
Note or any Loan Document or the extension or the renewal of any
thereof.
(F) The modification or amendment (whether material or otherwise) of
any obligation, covenant or agreement set forth in the Note or
any Loan Document.
(G) The taking of, or the omission to take, any of the actions
referred to in the Note or any Loan Document.
(H) Any failure, omission or delay on the part of the Lender to
enforce, assert or exercise any right, power or remedy conferred
on the Lender in the Note or any Loan Document.
(I) The voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all the assets,
marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition with creditors or
readjustment of, or other similar proceedings affecting the
Guarantor or the Borrower or any of their assets, or any
allegation or contest of the validity of the Note or any Loan
Document.
(J) The default or failure of the Guarantor to fully perform any
obligations set forth in this Guaranty.
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(K) Any event or action that would, in the absence of this paragraph,
result in the release or discharge of the Guarantor from the
performance or observance of any obligation, covenant or
agreement contained in this Guaranty.
(L) Any other circumstances which might otherwise constitute a legal
or equitable discharge or defense of a surety or a guarantor.
Section 2.3 Waiver by Guarantor. Provided that nothing contained in
this Section 2.3 shall relieve Lender from its
obligation to give any notice or opportunity to cure
that may be required hereunder or under the Loan
Documents, the Guarantor hereby waives:
(A) Notice of acceptance of this Guaranty.
(B) Diligence, presentment and demand for payment of the Loan and/or
the Note.
(C) Protest and notice of protest, dishonor or default to the
Guarantor or to any other party with respect to the Loan.
(D) Until such time as the Note is paid in full and the Lender has
received all other sums due under the terms of the Loan
Documents, any and all rights of subrogation, reimbursement,
indemnity, exoneration, contribution or any other claim which the
Guarantor may now or hereafter have against the Borrower or any
other person directly or contingently liable for the Loan
guaranteed hereunder, or against or with respect to the
Borrower's property (including, without limitation, property
collateralizing the Loan), arising from the existence or
performance of this Guaranty and whether or not such claim, right
or remedy arises in equity, under contract, by statute, under
common law or otherwise.
Section 2.4 Nature of Guaranty. This Guaranty is a guaranty of
payment and not of collection and the Guarantor hereby waives the right to
require that any action be brought first against the Borrower or any other
Guarantor, or any security, or to require that resort be made to any security or
to any balance of any deposit account on credit on the books of the Lender in
favor of the Borrower or of any Guarantor.
Section 2.5 Continuation of Guaranty. The Guarantor further agrees
that the obligations hereunder shall continue to be effective or reinstated, as
the case may be, if at any time payment or any part thereof of the Loan or the
Note is rescinded or must otherwise be restored by the Lender upon the
bankruptcy or reorganization of the Borrower, the Guarantor or otherwise.
Section 2.6 Subordination of Debt. The Guarantor hereby
subordinates any and all indebtedness of Borrower now or hereafter owed to
Guarantor to all indebtedness of Borrower to Lender and agrees with Lender that
from and after, but only from and after, the date
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whereon Lender notifies Guarantor that Borrower is then in default under the
Note or one or more of the Loan Documents, Guarantor shall not demand or accept
any payment from Borrower, shall not claim any offset or other reduction of
Guarantor's obligations hereunder because of any such indebtedness and shall not
take any action to obtain any interest in any of the security described in and
encumbered by the Loan Documents; provided, however, that, if Lender so
requests, such indebtedness shall be collected, enforced and received by
Guarantor as trustee for Lender and paid over to Lender on account of the
indebtedness of Borrower to Lender, but without reducing or affecting in any
manner the liability of Guarantor under the other provisions of this Guaranty
except to the extent the principal amount of such outstanding indebtedness shall
have been reduced by such payment.
Section 2.7 Financial Statements. Guarantor will advise Lender in
writing if Guarantor operates on other than a calendar-year basis. Guarantor
will at all times keep proper books of record and account in which full, true
and correct entries shall be made in accordance with generally accepted
accounting principles and will deliver to Lender, within one hundred twenty
(120) days after the end of each fiscal year of Guarantor, a copy of the annual
financial statements of Guarantor relating to such fiscal year, such statements
to include (A) the balance sheet of Guarantor as at the end of such fiscal year
and (B) the related income statement and statement of changes in the financial
position of Guarantor for such fiscal year, prepared by such certified public
accountants as may be reasonably satisfactory to Lender. Guarantor also agrees
to deliver to Lender from time to time at the request of Lender, such other
financial information with respect to Guarantor as Lender may reasonably
request. Guarantor shall be deemed to have satisfied its obligation with respect
to Financial Statements by providing copies of all publicly filed Financial
Statements.
Section 2.8 Transfer of Interest. Except as permitted in Section 23
of the Mortgage and Security Agreement dated the date hereof from Borrower to
Lender., Guarantor agrees not to make or permit to be made, by voluntary or
involuntary means, any transfer of the interest of Guarantor in the Borrower,
without first obtaining the prior written consent of Lender.
ARTICLE 3
EVENTS OF DEFAULT
Section 3.1 Events of Default Defined. An "Event of Default" shall
exist if any of the following occurs:
(A) Any party named as a Guarantor fails to perform or observe any
covenant contained herein and the continuance of such failure for
a period of thirty (30) days after written notice thereof from
Lender unless such failure cannot reasonably be cured in thirty
(30) days in which case Guarantor shall commence to cure such
failure within such thirty (30) day period and shall thereafter
prosecute the same with due diligence.
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(B) Any warranty, representation or other statement by or on behalf
of any party named as a Guarantor contained in this Guaranty is
false or misleading in any material respect when made.
(C) A receiver, liquidator or trustee of any party named as a
Guarantor or any of his or its property is appointed by court
order, or any party named as a Guarantor is adjudicated bankrupt
or insolvent or any of his or its property is sequestered by
court order and such order remains in effect for more than thirty
(30) days, or a petition is filed against any party named as a
Guarantor under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law
of any jurisdiction, whether now or hereafter in effect, and is
not dismissed within ninety (90) days of such filing.
(D) Any party named as a Guarantor files a petition in voluntary
bankruptcy or seeks relief under any provision of any
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now
or hereafter in effect, or consents to the filing of any petition
against it under any such law.
(E) Any party named as a Guarantor makes an assignment for the
benefit of creditors or admits in writing inability to pay debts
generally as they become due, or consents to the appointment of a
receiver, trustee or liquidator of all or any part of his or its
property.
(F) The occurrence of an "event of default" under any other Loan
Document and the continuance thereof beyond any applicable notice
and/or cure period, provided a copy is sent to Guarantor.
Section 3.2 Remedies on Default. If an event of default exists,
Lender may proceed to enforce the provisions hereof and to exercise any other
rights, powers and remedies available to the Lender.
Section 3.3 Waiver and Notice.
(A) No remedy herein conferred upon or reserved to the Lender is
intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this
Guaranty now or hereafter existing at law or in equity or by
statute.
(B) No delay or omission to exercise any right or power accruing upon
the occurrence of any Event of Default shall impair any such
right or power or shall be construed to be a waiver thereof, but
any such right or power may be exercised from time to time and as
often as may be deemed expedient.
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(C) In order to entitle the Lender to exercise any remedy reserved to
it in this Guaranty, it shall not be necessary to give any
notice, other than such notice as may be expressly required in
this Guaranty.
(D) No waiver, amendment, release or modification of this Guaranty
shall be established by conduct, custom or course of dealing.
ARTICLE 4
MISCELLANEOUS
Section 4.1 Construction. If this Guaranty is executed by two or
more parties, they shall be jointly and severally liable hereunder and the
phrase Guarantor whenever used herein shall be construed to refer to each of the
parties in the same manner and with the same effect as if each party had signed
a separate guaranty.
Section 4.2 Governing Law. This Guaranty shall be governed by and
construed in accordance with the laws of the State of New York.
Section 4.3 Submission to Jurisdiction. The Guarantor hereby
irrevocably and unconditionally agrees that any suit, action or proceeding
arising out of or relating to this Guaranty shall be brought in the state courts
of the State of New York or any federal district court sitting therein and
waives any right to object to jurisdiction within either of the foregoing forums
by Lender.
Section 4.4 Waiver of Jury Trial. THE GUARANTOR HEREBY EXPRESSLY
WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION, OR CAUSE OF ACTION (1) ARISING UNDER THIS GUARANTY OR ANY OTHER
INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH,
OR (2) CONNECTED WITH OR RELATED TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO THIS GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT, OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE LOAN, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE; AND GUARANTOR HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THE LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF GUARANTOR'S CONSENT TO THE
WAIVER OF ITS RIGHT TO TRIAL BY JURY.
Section 4.5 Successors and Assigns. This Guaranty shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto.
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Section 4.6 Notices. Any notices required or permitted to be given
hereunder shall be: (i) personally delivered or (ii) given by registered or
certified mail, postage prepaid, return receipt requested, or (iii) forwarded by
a nationally recognized overnight courier service for next morning delivery, in
each instance addressed to the addresses set forth at the head of this Guaranty,
or such other addresses as the parties may for themselves designate in writing
as provided herein for the purpose of receiving notices hereunder. All notices
shall be in writing and shall be deemed given, in the case of notice by personal
delivery or overnight courier, upon tender of delivery, and in the case of mail,
three (3) business days after postmark.
Section 4.7 Entire Agreement. This Guaranty and the other documents
executed by the Guarantor in connection with the Loan (the "Guarantor
Documents") constitutes the entire understanding between the Guarantor and the
Lender and to the extent that any writings not signed by the Lender or oral
statements or conversations at any time made or had are inconsistent with the
provisions of this Guaranty, the same shall be null and void.
Section 4.8 Amendments. No amendment, change, modification,
alteration or termination of this Guaranty shall be made except upon the written
consent of the Lender.
Section 4.9 Assignment. This Guaranty is assignable by Lender in
whole or in part in conjunction with an assignment of the Note and any
assignment hereof or any transfer or assignment of the Note or portions thereof
shall operate to vest in any such assignee the rights and powers, in whole or in
part, as appropriate, herein conferred upon and granted to Lender.
Section 4.10 Partial Invalidity. The invalidity or unenforceability
of any one or more phrases, sentences, clauses or sections in this Guaranty
shall not affect the validity or enforceability of the remaining portions of the
Guaranty or any part thereof.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the
day and year first above written.
ALTERRA HEALTHCARE
CORPORATION
By: |S| Mark Ohlendorf
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Name: Mark Ohlendorf
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Title: Senior Vice President
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STATE OF Wisconsin)
) ss.:
COUNTY OF Milwaukee)
On this 13th day of January, 2000, before me, the undersigned, a Notary
Public in and for said State, personally appeared Mark Ohlendorf personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
|S| J. C. Hansen
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Notary Public
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