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EXHIBIT 10.52.1
GUARANTY AGREEMENT
(LANDLORD GUARANTY)
THIS GUARANTY AGREEMENT (this "Agreement") is made and given as
of
February 28, 2003 by ALTERRA HEALTHCARE CORPORATION, a Delaware
corporation (the
"Guarantor"), for the benefit of SNH ALT LEASED PROPERTIES
TRUST, a Maryland
real estate investment trust (together with its successors and
assigns, the
"Landlord").
W I T N E S S E T H:
WHEREAS, pursuant to a Purchase and Sale Agreement, dated as of
the date
hereof (as amended from time to time, the "Purchase Agreement"),
among
ALS-Venture II, Inc. and Wynwood of Chapel Hill, LLC
(collectively, the
"Sellers") and the Landlord, the Sellers have agreed to sell to
the Landlord,
and the Landlord has agreed to purchase from the Sellers,
certain real property,
together with related improvements and certain personal
property, as more
particularly described in the Purchase Agreement; and
WHEREAS, pursuant to a Lease Agreement, dated as of the date
hereof (as
amended from time to time, the "Lease"), between the Landlord
and AHC Trailside,
Inc. (the "Tenant"), the Landlord has agreed to Lease to the
Tenant, and the
Tenant has agreed to lease from the Landlord, certain real
property, together
with related improvements and certain personal property, as more
particularly
described in the Lease; and
WHEREAS, the Purchase Agreement and the Lease are
cross-defaulted and
cross-collateralized; and
WHEREAS, the Sellers and the Tenant are subsidiaries, or limited
liability
companies, wholly-owned by the Guarantor; and
WHEREAS, it is a condition precedent to the Landlord's entering
into the
Purchase Agreement and the Lease that the Guarantor guaranty (i)
all of the
payment and performance obligations of the Sellers with respect
to the Purchase
Agreement, and (ii) all of the payment and performance
obligations of the Tenant
with respect to the Lease; and
WHEREAS, the transactions contemplated by the Purchase Agreement
and the
Lease are of direct material benefit to the Guarantor; and
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NOW, THEREFORE, in consideration of the foregoing and for other
good and
valuable consideration, the mutual receipt and legal sufficiency
of which are
hereby acknowledged, the Guarantor hereby agrees as follows:
1. Certain Terms. Capitalized terms used and not otherwise
defined in this
Agreement shall have the meanings ascribed to such terms in the
Lease.
2. Guaranteed Obligations. For purposes of this Agreement, the
term
"Guaranteed Obligations" shall mean the payment and performance
of each and
every obligation of the Tenant and the Sellers to the Landlord
under the Lease
Documents or relating thereto, whether now existing or hereafter
arising, and
including, without limitation, the payment of the full amount of
the Rent and
other charges payable under the Lease.
3. Representations and Covenants. The Guarantor represents,
warrants,
covenants, and agrees that:
3.1 Incorporation of Representations and Warranties. The
representations and warranties of the Tenant, the Sellers and
their Affiliated
Persons set forth in the Lease Documents are true and correct on
and as of the
date hereof in all material respects.
3.2 Performance of Covenants and Agreements. The Guarantor
hereby
agrees to take all lawful action in its power to cause the
Tenant and the
Sellers duly and punctually to perform all of the covenants and
agreements set
forth in the Lease Documents.
3.3 Validity of Agreement. The Guarantor has duly and
validly
executed and delivered this Agreement; this Agreement
constitutes the legal,
valid and binding obligation of the Guarantor, enforceable
against the Guarantor
in accordance with its terms, except as the enforceability
thereof may be
subject to bankruptcy, fraudulent conveyance, insolvency,
reorganization,
moratorium and other laws relating to or affecting creditors'
rights generally
and subject to general equitable principles, regardless of
whether
enforceability is considered in a proceeding at law or in
equity; and the
execution, delivery and performance of this Agreement have been
duly authorized
by all requisite action of the Guarantor and such execution,
delivery and
performance by the Guarantor will not result in any breach of
the terms,
conditions or provisions of, or conflict with or constitute a
default under, or
result in the creation of any lien, charge or encumbrance upon
any of the
property or assets of the Guarantor pursuant to the terms
of,
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any indenture, mortgage, deed of trust, note, other evidence of
indebtedness,
agreement or other instrument to which it may be a party or by
which it or any
of its property or assets may be bound, or violate any provision
of law, or any
applicable order, writ, injunction, judgment or decree of any
court or any order
or other public regulation of any governmental commission,
bureau or
administrative agency.
3.4 Payment of Expenses. The Guarantor agrees, as principal
obligor
and not as guarantor only, to pay to the Landlord forthwith,
upon demand, in
immediately available federal funds, all costs and expenses
(including
reasonable attorneys' fees and disbursements) incurred or
expended by the
Landlord in connection with the enforcement of this Agreement,
together with
interest on amounts recoverable under this Agreement from the
time such amounts
become due until payment at the Overdue Rate. The Guarantor's
covenants and
agreements set forth in this Section 3.4 shall survive the
termination of this
Agreement.
3.5 Notices. The Guarantor shall promptly give notice to the
Landlord of any event known to it which might reasonably result
in a material
adverse change in its financial condition, other than the
Chapter 11 case, which
has been filed by the Guarantor and is pending in Bankruptcy
Court as of the
date hereof.
3.6 Reports. The Guarantor shall promptly provide to the
Landlord
each of the financial reports, certificates and other documents
required of it
under the Lease Documents.
3.7 Books and Records. The Guarantor shall at all times keep
proper
books of record and account in which full, true and correct
entries shall be
made of its transactions in accordance with generally accepted
accounting
principles and shall set aside on its books from its earnings
for each fiscal
year all such proper reserves, including reserves for
depreciation, depletion,
obsolescence and amortization of its properties during such
fiscal year, as
shall be required in accordance with generally accepted
accounting principles,
consistently applied, in connection with its business. The
Guarantor shall
permit access by the Landlord and its agents to the books and
records maintained
by the Guarantor during normal business hours and upon
reasonable notice.
3.8 Taxes, Etc. The Guarantor shall pay and discharge promptly
as
they become due and payable all taxes, assessments and other
governmental
charges or levies imposed upon it or its income or upon any of
its property,
real,
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personal or mixed, or upon any part thereof, as well as all
claims of any kind
(including claims for labor, materials and supplies) which, if
unpaid, might by
law become a lien or charge upon any property and result in a
material adverse
change in the financial condition of the Guarantor; provided,
however, that the
Guarantor shall not be required to pay any such tax, assessment,
charge, levy or
claim if the amount, applicability or validity thereof shall
currently be
contested in good faith by appropriate proceedings or other
appropriate actions
promptly initiated and diligently conducted and if the Guarantor
shall have set
aside on its books such reserves, if any, with respect thereto
as are required
by generally accepted accounting principles.
3.9 Legal Existence; Change in Control of Guarantor. The
Guarantor
shall do or cause to be done all things necessary to preserve
and keep in full
force and effect its legal existence. Except as specifically
permitted under the
Lease, the Guarantor shall cause any Person, as a condition of,
and prior to
such Person becoming an Acquiring Guarantor, to execute this
Agreement in favor
of the Landlord pursuant to which the Acquiring Guarantor shall
guarantee the
payment and performance of the Guaranteed Obligations.
3.10 Compliance. The Guarantor shall use reasonable business
efforts
to comply in all material respects with all applicable statutes,
rules,
regulations and orders of, and all applicable restrictions
imposed by, all
governmental authorities in respect of the conduct of its
business and the
ownership of its property (including, without limitation,
applicable statutes,
rules, regulations, orders and restrictions relating to
environmental, safety
and other similar standards or controls).
3.11 Insurance. The Guarantor shall maintain, with financially
sound
and reputable insurers, insurance with respect to its properties
and business
against loss or damage with substantially similar coverages and
in substantially
similar amounts as are required to be maintained by the Tenant
under the Lease
(provided the Guarantor and the Tenant's insurance requirements
may be satisfied
using the same insurance policy).
3.12 Financial Statements, Etc. The financial statements
previously
delivered to the Landlord by the Guarantor fairly present the
financial
condition of the Guarantor in accordance with generally accepted
accounting
principles consistently applied and there has been no material
adverse change
from the date thereof through the date hereof, other than
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the Chapter 11 case, which has been filed by the Guarantor and
is pending in
Bankruptcy Court as of the date hereof.
3.13 No Change in Control. The Guarantor shall not permit
the
occurrence of any direct or indirect Change in Control of the
Tenant or the
Guarantor, except as explicitly permitted under the Lease.
4. Guarantee. The Guarantor hereby unconditionally and
irrevocably
guarantees that the Guaranteed Obligations which are monetary
obligations shall
be paid in full when due and payable, whether upon demand, at
the stated or
accelerated maturity thereof pursuant to any Lease Document, or
otherwise, and
that the Guaranteed Obligations which are performance
obligations shall be fully
performed at the times and in the manner such performance is
required by the
Lease Documents. With respect to the Guaranteed Obligations
which are monetary
obligations, this guarantee is a guarantee of payment and not of
collectibility
and is absolute and in no way conditional or contingent. In case
any part of the
Guaranteed Obligations shall not have been paid when due and
payable or
performed at the time performance is required, the Guarantor
shall, in the case
of monetary obligations, within five (5) days after receipt of
notice from the
Landlord, pay or cause to be paid to the Landlord the amount
thereof as is then
due and payable and unpaid (including interest and other
charges, if any, due
thereon through the date of payment in accordance with the
applicable provisions
of the Lease Documents) or, in the case of nonmonetary
obligations, perform or
cause to be performed such obligations in accordance with the
Lease Documents.
5. Set-Off. The Guarantor hereby authorizes the Landlord, at any
time and
without notice to set off the whole or any portion or portions
of any or all
sums credited by
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