1
EXHIBIT 10.133
CONTINUING GUARANTY
(Corporation or Partnership)
GUARANTOR: ALTERRA HEALTHCARE CORPORATION
Name
450 NORTH SUNNYSLOPE ROAD, SUITE 300, BROOKFIELD, WI 53005
Address of Chief Executive Office
a [X] corporation [ ] general partnership [ ] limited
partnership [ ] organized under the laws of
----------
the State of New York
BORROWER: CLIFTON PARK ROUTE 146, LLC
Name
250 South Clinton Street, Syracuse, New York 13202
Address
BANK: Manufacturers and Traders Trust Company, One M&T Plaza, Buffalo,
New York 14240 Attention: Office of General Counsel
1. GUARANTY. (a) Guarantor guarantees to the Bank the full and immediate
payment and performance of all of Borrower's obligations to the Bank from time
to time of every kind and nature, now existing and hereafter incurred, direct
and contingent, liquidated and unliquidated, secured and unsecured, matured and
unmatured, including all accrued and unpaid interest and all Expenses (defined
below) even if such obligations were originally contracted with another lender
or jointly with other borrowers, even if not evidenced by a writing, and even if
periodically extinguished and reincurred (the "Obligations"). Guarantor will pay
or perform is obligations under this Guaranty upon demand. This is a guaranty of
payment, not collection.
(b) Guarantor acknowledges the receipt of valuable consideration for
this Guaranty and acknowledges that the Bank is relying on this Guaranty in
making a financial accommodation to Borrower, whether a commitment to lend,
extension, modification or replacement of, or forbearance with respect to, any
Obligation, cancellation of another guaranty, purchase of Borrower's assets, or
other valuable consideration.
2. CONTINUING, UNCONDITIONAL AND UNLIMITED GUARANTY. This Guaranty is
irrevocable, continuing, unconditional and general without any limitation unless
specified in the following blank: The Guarantor's obligation shall not in any
event
2
exceed $4,720,000.00 plus interest, premiums and Expenses (as defined below).
2. GUARANTOR'S WAIVERS. (a) Guarantor's obligations shall not be
released, impaired or affected in any way by (i) Borrower's bankruptcy,
reorganization or insolvency under any law or that of any other party, or by any
action of a trustee in any such proceeding; (ii) failure of any other party to
perform its obligations to the Bank; or (iii) any other circumstance that might
constitute a legal or equitable defense to Guarantor's or Borrower's obligations
under this Guaranty, including without limitation: (A) any new agreements or
obligations of Borrower with or to the Bank, amendments, changes in rate of
interest, extensions of time for payments, modifications, renewals or the
existence of or waivers of default as to any existing or future agreements of
Borrower or any other party with the Bank; (B) any adjustment, compromise or
release of any Obligations of Borrower, by the Bank or any other party; the
existence or nonexistence or order of any filings, exchanges, releases,
impairment or sale of, or failure to perfect a security interest in, any
security for the Obligations, or the order in which payments and proceeds of
collateral are applied; or acceptance by the Bank of any writing intended by any
other party to create an accord and satisfaction with respect to any of the
Obligations; (C) any fictitiousness, incorrectness, invalidity or
unenforceability for any reason, of any instrument or other agreement, or act of
commission or omission by the Bank or Borrower; (D) any composition, extension,
moratoria or other statutory relief granted to Borrower; or (E) any interruption
in the business relations between the Bank and Borrower; or any dissolution or
change in form of organization, name or ownership of Borrower or Guarantor.
(b) WAIVERS OF NOTICE, ETC. The Guarantor waives acceptance, assent
and all rights of notice or demand including without limitation (i) notice of
acceptance of this Guaranty, of Borrower's default or nonpayment of any
Obligation, and of changes in Borrower's financial condition; (ii) presentment,
protest, notice of protest and demand for payment; and (iii) any other notice,
demand or condition to which Guarantor might otherwise be entitled prior to the
Bank's reliance on or enforcement of this Guaranty.
(c) WAIVER OF SUBROGATION. Notwithstanding any other provision in this
Guaranty, Guarantor irrevocably waives, without notice, any right it may have at
law or in equity (including without limitation any law subrogating Guarantor to
the rights of the Bank) to seek contribution, indemnification or any other form
of reimbursement from Borrower or any other obligor or guarantor of the
Obligations for any disbursement made under this Guaranty or otherwise.
3. TERMINATION; REINSTATEMENT. This Guaranty can be terminated (a) only
with respect to Obligations not yet incurred, and (b) only by actual receipt by
the Bank officer named above of written notice of Guarantor's intent to
terminate (or Guarantor's dissolution) plus (c) the lapse of a reasonable time
for Bank to act on such notice. This Guaranty cannot be terminated with respect
to any Obligations committed or contracted for or outstanding at the time the
Bank acts on such notice, or any prior or subsequent modifications, renewals,
extensions or replacements of or interest on such
3
Obligations, or related expenses. If any payment the Bank has received prior to
termination subsequently is declared fraudulent or preferential or for any other
reason required to be surrendered, Guarantor's obligations under this Guaranty
and any related security agreements shall be reinstated and remain in effect
until the Bank has actually received payment in full of the Obligations.
3. EXPENSES. Guarantor agrees to reimburse the Bank on demand for all the
Bank's expenses, costs, damages and losses of any kind or nature, including
without limitation actual attorneys' fees and disbursements whether for internal
or external counsel incurred by the Bank in attempting to enforce this Guaranty,
collect or restructure any of the Obligations, realize on any collateral, or for
any other purpose related to the Obligations including but not limited to costs
of workout, negotiations, redocumentation or bankruptcy or other legal
proceedings or appeal (collectively, "Expenses"). Expenses will accrue interest
at the highest legal rate until payment is actually received by the Bank.
4. FINANCIAL AND OTHER INFORMATION. Guarantor shall promptly deliver to
the Bank copies of all annual reports, proxy statements and similar information
distributed to shareholders or partners and of all filings with the Securities
and Exchange Commission and the Pension Benefit Guaranty Corporation and shall
provide in form satisfactory to the Bank: (i) within sixty days after the end of
each of its first three fiscal quarters, consolidating and consolidated
statements of income and cash flows for the quarter, for the corresponding
quarter in the previous fiscal year and for the period from the end of the
previous fiscal year, with a consolidating and consolidated balance sheet as of
the quarter end; and (ii) within ninety days after the end of each fiscal year,
consolidating and consolidated statements of Guarantor's income and cash flows
and its consolidating and consolidated balance sheet as of the end of such
fiscal year, setting forth comparative figures for the preceding fiscal year and
to be: |_| AUDITED |_| REVIEWED |X| COMPILED by an independent certified public
accountant acceptable to the Bank; all such statements shall be certified by
Guarantor's chief financial officer or partner to be correct, not misleading and
in accordance with Guarantor's records and to present fairly the results of
Guarantor's operations and cash flows and if annual its financial position at
year end in conformity with generally accepted accounting principles. If no box
is checked, Guarantor shall deliver financial statements and information in the
form and at the times satisfactory to the Bank. Guarantor represents that its
assets are not subject to any liens, encumbrances or contingent liabilities
except as fully disclosed to the Bank in such statements.
5. SECURITY; RIGHT OF SETOFF. As further security for payment of the
Obligations, Expenses and any other obligations of Guarantor to the Bank,
Guarantor hereby grants to the Bank a security interest in all money, securities
and other property of Guarantor in the actual or constructive possession or
control of the Bank including without limitation all deposits and other accounts
owing at any time by the Bank in any capacity to Guarantor in any capacity
(collectively, "Property"). The Bank shall have the right to set off Guarantor's
Property against any of Guarantor's obligations to the Bank
4
and shall have all of the rights and remedies of a secured party under the
Uniform Commercial Code in addition to those under this Guaranty and other
agreements and applicable law
5. NO TRANSFER OF ASSETS. Guarantor shall not transfer, reinvest or
otherwise dispose of its assets in a manner or to an extent that would or might
impair Guarantor's ability to perform its obligations under this Guaranty.
6. NONWAIVER BY THE BANK; MISCELLANEOUS. This is the entire agreement
between Guarantor and the Bank with respect to the Guaranty. This Guaranty may
be assigned by the Bank, shall inure to the benefit of the Bank and its
successors and assigns, and shall be binding upon Guarantor and its successors
and assigns. All rights and remedies of the Bank are cumulative and no such
right or remedy shall be exclusive of any other right or remedy. This Guaranty
does not supersede any other guaranty or security granted to the Bank by
Guarantor or others (except as to Guarantor's Waiver of Subrogation rights
above). No single, partial or delayed exercise by the Bank of any right or
remedy shall preclude exercise by the Bank at any time at its sole option of the
same or any other right or remedy of the Bank without notice. No course of
dealing or other conduct, no oral agreement or representation made by the Bank
or usage of trade shall operate as a waiver of any right or remedy of the Bank.
No waiver or amendment of any right or remedy of the Bank or release by the Bank
shall be effective unless made specifically in writing by the Bank. This
Guaranty shall be governed by the laws of the State of New York, without regard
to its principles of conflict of laws. Each provision of this Guaranty shall be
interpreted as consistent with existing law and shall be deemed amended to the
extent necessary to comply with any conflicting law. If any provision is
nevertheless held invalid the other provisions shall remain in effect. Captions
are solely for convenience and are not part of the substance of this Guaranty.
7. JOINT AND SEVERAL; PRIMARY OBLIGATION. If there is more than one
Guarantor, each Guarantor jointly and severally guarantees the payment and
performance in full of all obligations under this Guaranty and agrees that the
Bank need not seek payment from any source other than the undersigned Guarantor.
This Guaranty is a primary obligation. Guarantor's obligations hereunder are
separate and independent of Borrower's, and a separate action may be brought
against Guarantor whether or not action is brought or joined against or with
Borrower or any other party.
8. AUTHORIZATION. Guarantor certifies that it is an entity in the form
described above duly organized and in good standing under the laws of the State
of its organization and duly authorized to do business in each State material to
the conduct of its business. Guarantor has determined that the execution of this
Guaranty will be in its best interests, to its direct benefit, incidental to its
powers, and in furtherance of its duly acknowledged purposes and objectives.
Execution of this Guaranty by the persons signing below has been authorized by
all necessary corporate action, including directors' and shareholder consent, as
evidenced by the attached certificates, or (as
5
appropriate) is authorized by its partnership agreement or governing instrument,
a certified copy of which is attached. Guarantor's chief executive office is
located at the above address.
8. GUARANTOR'S CONSENTS TO JURISDICTION. In any action or other legal
proceeding relating to this Guaranty, Guarantor (a) consents to the personal
jurisdiction of any State or federal court located in the State of New York, (b)
waives objection to the laying of venue, (c) waives personal service of process
and subpoenas, (d) consents to service of process and subpoenas by registered or
certified mail directed to Guarantor at the last address shown in the Bank's
records relating to this Guaranty, with such service to be deemed completed five
days after mailing, (e) waives any right to assert any counterclaim or setoff or
any defense based upon a statute of limitations or upon a claim of laches, (f)
waives any right to attack a final judgment that is obtained as a direct or
indirect result of any such action and (g) consents to each such final judgment
being sued upon in any court having jurisdiction. A separate action may be
brought against Guarantor whether or not action is brought against or joined
with Borrower or any other party.
9. WAIVER OF JURY TRIAL. Guarantor and the Bank each waive any right to
trial by jury in any action with respect to this Guaranty.
GUARANTOR:
TIN # 39-1771281 ALTERRA HEALTHCARE CORPORATION
------------ ------------------------------
By: [S] Mark Ohlendorf
------------------
Mark Ohlendorf, Sr. VP
-----------------------
NOTICE: FOR PURPOSES OF THIS Typed Name and title
GUARANTY "OBLIGATIONS" IS NOT
LIMITED TO PRESENTLY EXISTING By:
INDEBTEDNESS, LIABILITIES AND
OBLIGATIONS.
Typed Name and Title
Dated: December 22, 1999
ACKNOWLEDGMENT
STATE OF WISCONSIN )
---------
: SS.
COUNTY OF WAUKESHA )
---------
On the 20th day of December in the year 1999 , before me personally came Mark
---- -------- -- ----
6
Ohlendorf
- ---------
[ ] Partnership to me known and known to me to be a general partner of the
partnership described in and which executed the above
instrument, and __he duty acknowledged to me that __he
executed the above instrument for and on the behalf of said
partnership.
[X] Corporation to me known, who, being by me duly sworn, did depose and say
that __he resides in
Pewaukee, Wis.
--------------
;
that __he is the Sr. VP of ALTERRA HEALTHCARE CORPORATION,
the corporation described in and which executed the above
instrument; and that __he signed his (her) name thereto by
order of the board of directors of said corporation.
[S] J. C. Hansen
-----------------
Notary Public
FOR BANK USE ONLY
Authorization Confirmed:
SIGNATURE
7
RIDER A TO CONTINUING GUARANTY
Rider A to Continuing Guaranty dated December 22, 1999
GIVEN TO BANK BY
ALTERRA HEALTHCARE CORPORATION
This Rider A to Continuing Guaranty shall be attached to and become a part of a
certain Continuing Guaranty, given to Bank by ALTERRA HEALTHCARE CORPORATION,
dated the date hereof.
In the event of any inconsistency between this Rider A to Continuing Guaranty
and the terms of the pre-printed Continuing Guaranty (to which this Rider A is
attached), this Rider A to Continuing Guaranty shall prevail. Otherwise, the
terms of the Continuing Guaranty shall remain in full force and effect.
Section 1, GUARANTY, Subsection (a) shall be deleted in its entirety and
replaced with the following:
(a) Guarantor guarantees to the Bank the full and immediate payment and
performance of all of Borrower's obligations to the Bank due in connection with
a certain Consolidated Mortgage Note (the "Note"), executed and delivered to
Bank by Borrower, in the maximum principal amount of Four Million Seven Hundred
Twenty Thousand and 00/100 Dollars ($4,720,000.00), plus interest and Expenses
(the "Obligations"). Upon ten (10) days written notice of a demand by Bank,
Guarantor will pay or perform its obligations under this Guaranty. This is a
guaranty of payment, not collection. Guarantor understands that the Bank can
bring an action under this Guaranty without being required to exhaust other
remedies or demand payment first from other parties.
Section 2, CONTINUING, UNCONDITIONAL AND UNLIMITED GUARANTY, shall be deleted in
its entirety and replaced with the following:
This Guaranty is irrevocable, continuing and unconditional. The
Guarantor's obligation shall not in any way exceed Four Million Seven
Hundred Twenty Thousand and 00/100 Dollars ($4,720,000.00), plus
interest, Expenses, and all other amounts owed pursuant to the Note or
any documentation given in connection therewith (collectively, the
"Loan Documents").
Section 3, GUARANTOR'S WAIVERS, Subsection (b), WAIVERS OF NOTICE, ETC., shall
be deleted in its entirety and replaced with the following:
(b) WAIVERS OF NOTICE, ETC. Unless notice or demand is required
hereunder
8
and by any other Loan Document, the Guarantor waives acceptance, assent and all
rights of notice or demand including without limitation (i) notice of acceptance
of this Guaranty, of Borrower's default or nonpayment of any Obligation, and of
changes in Borrower's financial condition; (ii) presentment, protest, notice of
protest and demand for payment; and (iii) any other notice, demand or condition
to which Guarantor might otherwise be entitled prior to the Bank's reliance on
or enforcement of this Guaranty.
Section 3, GUARANTOR'S WAIVERS, Subsection (c), WAIVER OF SUBROGATION, shall be
deleted in its entirety and replaced with the following:
(c) WAIVER OF SUBROGATION. Notwithstanding any other provision in this
Guaranty, for so long as an Event of Default (as defined in the Loan Documents)
continues, Guarantor irrevocably waives, without notice, any right he may have
at law or in equity (including, without limitation, any law subrogating
Guarantor to the rights of the Bank) to seek contribution, indemnification or
any other form of reimbursement from any other obligor or guarantor of the
Obligations for any disbursement made under this Guaranty beginning three (3)
days after demand for payment upon Borrower.
The last sentence in Section 5, Expenses, shall be deleted in its entirety and
replaced with the following:
Expenses will accrue interest at a rate no greater than the Default
Rate as defined in the Note until payment is actually received by the
Bank.
Section 6, FINANCIAL AND OTHER INFORMATION, shall be deleted in its entirety and
replaced with the following:
FINANCIAL STATEMENt. Guarantor will advise Bank 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 Bank, within one hundred
twenty (120) days after the end of each fiscal year of Guarantor, a
copy of the annual audited 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 Bank. Guarantor will
also provide Bank with copies of internally prepared financial
statements and covenant compliance certificates in form satisfactory to
Bank within sixty (60) days of the conclusion of the last day of each
Guarantor's financial quarters.
Section 8, NO TRANSFER OF ASSETS, shall be intentionally deleted.
9
Section 11, GUARANTOR'S CONSENTS TO JURISDICTION, Subsection (e) shall be
deleted in its entirety and replaced with the following:
(e) Guarantor waives any rights to assert any counterclaim or setoff or
any defense based upon a statute of limitations or upon a claim of laches,
excluding however, any rights to assert any counterclaim or setoff or any
defense with respect to (i) payment, (ii) the intentional or willful misconduct
or gross negligence of the Bank, or (iii) any counter-claim, setoff or defense
which would otherwise be permanently barred if not introduced therein.
Section 13, VOLUNTARY, shall be deleted in its entirety and replaced with the
following:
Guarantor certifies that this Guaranty is voluntary.
ALTERRA HEALTHCARE CORPORATION
By: /s/ Mark W. Ohlendorf
---------------------