EXHIBIT
10.5
GELAAC Loan
No. 3982
UNCONDITIONAL
GUARANTY
THIS GUARANTY is made this 1
st
day of August, 2005, by
A4 HEALTH SYSTEMS, INC., a North Carolina corporation
(“Guarantor”) to and for the benefit of GE LIFE AND
ANNUITY ASSURANCE COMPANY, a Virginia corporation
(“Lender”).
BACKGROUND
A. A4 REALTY, LLC, a North Carolina
limited liability company (“Borrower”, has applied to
Lender to assume a loan (“Loan”) in the original
principal amount of Four Million Four Hundred Thousand and No/100
Dollars ($4,400,000.00). The Loan is evidenced by a Promissory Note
(the “Note”) in the loan amount and is secured by a
Deed of Trust, Assignment of Rents and Leases and Security
Agreement (the “Deed of Trust”) on real property
located in Wake County, North Carolina, commonly described as 5501
Dillard Road, Cary, North Carolina 27511-9234.
B. The Note, the Deed of Trust and
any other documents executed in connection with the Loan, other
than the Environmental Indemnity of even date, are referred to as
the “Loan Documents.”
C. The assumption of the Loan is
conditioned upon Guarantor’s execution and delivery to Lender
of this Guaranty.
NOW, THEREFORE, in consideration of
benefits to Guarantor from Borrower, the receipt and sufficiency of
which are hereby acknowledged by Guarantor, and to induce Lender to
make the Loan to Borrower, Guarantor agrees as follows:
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1.
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Unconditional Guaranty of Payment
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a.
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Guarantor
unconditionally, absolutely and irrevocably guarantees the due and
punctual payment of the principal and interest of the Note and any
other moneys due or which may become due under the Note, the Deed
of Trust and any other documents executed in connection with the
Loan (collectively the “Loan Documents”), or any of
them, and the due and punctual performance and observance by
Borrower of all of the other terms, covenants and conditions of the
Loan Documents, whether according to the present terms of any of
those Documents or at any earlier or accelerated date or dates as
provided therein, or pursuant to any extension of time, or any
change or changes in the terms, covenants and conditions of the
Loan Documents hereafter made or granted. All such principal,
interest and other moneys and the performance and observance by
Borrower of all such other terms, covenants and conditions are
hereinafter collectively referred to as the
“Indebtedness.”
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2.
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Acknowledgements, Representations and
Warranties .
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a.
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Guarantor
acknowledges and agrees that:
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(i)
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Guarantor
either has reviewed, or has had an opportunity to review, the Loan
Documents, and is otherwise fully familiar with the terms of the
Loan;
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(ii)
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This Guaranty
constitutes an obligation to Lender which is separate and distinct
from the obligation of Borrower to Lender under the Loan Documents;
and
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(iii)
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Guarantor is
signing this Guaranty as an inducement to Lender to make the Loan,
and further acknowledges that Lender would not make the Loan
without this Guaranty.
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b.
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Guarantor
represents and warrants to Lender that Guarantor is either
financially interested in Borrower or will receive other benefits
from Borrower as a result of this Guaranty.
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3.
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Waivers by
Guarantor and Rights of Lender . Guarantor agrees that Lender may deal
exclusively with Borrower in all matters relating to the Loan
without notice to or the approval of Guarantor. It is intended that
Guarantor shall remain unconditionally, absolutely and irrevocably
liable hereunder for payment and performance of the Indebtedness
regardless of any act or omission which might otherwise directly or
indirectly result, by operation of law or otherwise, in the
discharge or release in whole or in part of Borrower, Guarantor or
any other person, or the discharge, release or impairment of any
collateral (the “Collateral”) now or hereafter held as
security for any of the obligations under the Loan Documents or
this Guaranty. Without limiting the generality of the foregoing,
Guarantor hereby waives the following and agrees that Lender may do
or fail to do any of the following one or more times, without
notice to or the approval of Guarantor, all without diminishing,
altering or otherwise affecting the unconditional, absolute and
irrevocable liability of Guarantor hereunder:
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a.
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Guarantor
waives notice of Lender’s acceptance of this
Guaranty;
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b.
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Guarantor
waives notice of Lender’s advances of Loan funds, extension
of credit to Borrower and any payment of obligations of
Borrower;
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c.
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Guarantor
waives notice of default under the Loan Documents;
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d.
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Lender may
extend, renew, accelerate or otherwise change the time for payment
and performance of any of Borrower’s obligations under the
Loan Documents and may otherwise modify and change the terms,
conditions and covenants of the Loan Documents, including without
limitation increase or decrease of the rate of interest on the
Loan, provided, however, that nothing in this clause (d) is
intended to grant Lender the right to make any such modification of
change without the approval of Borrower unless Lender has the right
to do so without Borrower’s approval under the Loan Documents
or as a matter of law;
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e.
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Lender may
release Borrower, any guarantor or any other person now or
hereafter having any liability under the Loan Documents;
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f.
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Lender may take
and hold Collateral for payment and performance of the
Indebtedness, and may release, surrender, substitute, take
additional, or exchange, any such Collateral Lender now holds or
may later acquire;
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g.
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Lender does not
have to marshall assets and may direct the order or manner of sale
of the Collateral as Lender in its discretion may
determine;
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h.
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Lender may
apply any money or Collateral to the repayment of any obligations
due to Lender under the Loan Documents in any order Lender in its
discretion may determine.
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i.
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Lender may
forbear from pursuing Borrower, or any other guarantor or any other
person, or forbear from foreclosing or otherwise realizing upon any
Collateral or other guaranty;
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j.
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Lender may
impair or fail to perfect a security interest in any
Collateral;
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k.
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Lender may sell
Collateral in any manner Lender in its discretion may determine,
with
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