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EXHIBIT 10.45
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (the "Guaranty") is made by ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ (the "Guarantor") as of August 31, 1998, to and for the benefit of
United American Healthcare Corporation (the "Beneficiary"). In consideration of
these presents and of other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the Guarantor gives the following
guaranty to the Beneficiary and the Beneficiary's successors and assigns:
1. Purpose. The Beneficiary and CHFA, Inc. (the "Company")
have entered into that certain Stock Purchase Agreement, dated this date (the
"Agreement"), relating to the purchase by CHFA of all of the issued and
outstanding stock of Corporate Healthcare Financing, Inc., in exchange for the
execution and delivery by the Company of that certain secured promissory note,
dated this date, payable to the order of the Beneficiary in the principal amount
of $13,250,000 (the "Note"), among other consideration. Guarantor is a principal
stockholder of the Company. To induce, and as a condition of, the execution and
delivery of the Agreement by Beneficiary, the Guarantor has agreed to guarantee
the full and prompt payment when due of the first Four Million, Five Hundred
Thousand Dollars ($4,500,000) due under the Note (the "Obligations"). The
Beneficiary agrees that the amount of the Obligations subject to this Guaranty
shall be reduced dollar for dollar by the amount of any payments of any kind or
nature made (i) by the Company pursuant to the Note; or (ii) by the Guarantor
pursuant to this Guaranty, other than pursuant to Section 12 hereof (and such
reduced amount from time to time shall then constitute the "Obligations"
hereunder).
2. Guaranty. The Guarantor unconditionally and irrevocably
guarantees the due and punctual payment in full of the Obligations when and as
due in accordance with the terms and conditions of the Note. If the Company
fails to pay the Obligations when due under the Note and after the expiration of
any applicable grace and cure periods, the Guarantor shall pay or satisfy on
demand in full and all of the Obligations. The Guarantor represents and warrants
to the Beneficiary that: (i) the Guarantor has full power, authority and legal
right to execute and deliver, and to perform the Obligations under this
Guaranty; and (ii) this Guaranty has been duly executed and delivered by the
Guarantor and constitutes a legal, valid and binding obligations of the
Guarantor enforceable against the Guarantor in accordance with its terms,
subject to (a) the effect of bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, equitable subordination or other similar laws relating to
or affecting the rights of creditors generally, and (b) the exercise of judicial
discretion in accordance with public policy limitations and general principles
of equity, regardless of whether considered in a proceeding at law or in equity.
3. Nature of the Guaranty. The guaranty of the Guarantor
hereunder shall be direct, immediate, and primary and is one of payment and
performance and not just collection or surety.
4. The Beneficiary Need Not Pursue Rights Against the
Company. The Beneficiary shall be under no obligation to pursue the
Beneficiary's rights against the Company or any collateral securing the
Obligations before pursuing the Beneficiary's rights against the Guarantor.
5. Rights of the Beneficiary to Deal With Guarantor. The
Guarantor hereby consents to any and all agreements between the Beneficiary and
the Company or between the Beneficiary and any person who has guaranteed or
secured, in whole or in part, the payment of the Obligations, and any and all
amendments and modifications thereof, whether presently existing or hereafter
made. The Beneficiary may without compromising, impairing, diminishing, or in
any way releasing the Guarantor from the Guarantor's obligations hereunder, and
without notifying or obtaining the prior approval of the Guarantor, at any time
or from time to time: (a) waive or excuse a default or defaults by the Company
or any person who has guaranteed or secured, in whole or in part, any of the
Obligations, or delay in exercising any or all of the Beneficiary's rights or
remedies with respect to such default or defaults; (b) grant extensions of time
for payment by the Company or any person who has guaranteed or secured, in whole
or in part, any of the Obligations; (c) release, substitute, exchange,
surrender, or add collateral of the Company or of any person who has guaranteed
or secured, in whole or in part, any of the Obligations, or waive, release, or
subordinate, in whole or in part, any lien or security interest held by the
Beneficiary on any real or personal property securing payment, in whole or in
part, of the Obligations; (d) release the Company or any person who has
guaranteed or secured, in whole or in part, any of the Obligations; or (e)
modify, change, renew,
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extend, or amend, in any respect, the Beneficiary's agreements with the Company
or any person who has guaranteed or secured, in whole or in part, any of the
Obligations, or any document, instrument, or writing, embodying or reflecting
the same.
6. Waivers by the Guarantor. Except for any notice
requirements and any cure periods provided in the Note with respect to the
Obligations, the Guarantor waives: (a) any and all notices whatsoever with
respect to the enforceability of this Guaranty or with respect to any of the
Obligations, including, but not limited to, the notice and enforceability of (i)
the Beneficiary's acceptance hereof or the Beneficiary's intention to act, or
the Beneficiary's action, in reliance hereon; and (ii) any default by the
Company or any surety, pledgor, grantor of security, guarantor or other person
who has guaranteed or secured, in whole or in part, the Obligations; and (b) (i)
presentment, protest and demand for payment, notice of protest, notice of
dishonor and nonpayment of any sum due from the Company or any person who has
guaranteed or secured, in whole or in part, any of the Obligations; (ii) notice
of default by the Company or any person who has guaranteed or secured, in whole
or in part, any of the Obligations; and (iii) demand for performance by the
Company or any person who has guaranteed or secured, in whole or in part, any of
the Obligations.
7. Default. Following any event constituting an "Event of
Default" (as defined in the Note) with respect to the Obligations under the Note
(after giving effect to any notice requirements and the passage of any cure
periods provided therein), the Guarantor shall pay to the Beneficiary, upon
demand, the lesser of (i) the entire amount of the Obligations, or (ii) all
amounts due under the Note.
8. Nature of Guarantor's Liability; Remedies Cumulative. The
liability of the Guarantor under this Guaranty is absolute and unconditional,
not subject to any counterclaim, recoupment, setoff, reduction or defense,
without regard to the liability of any other person, and shall not in any manner
be affected by reason of any action taken or not taken by the Beneficiary, nor
by the partial or complete unenforceability or invalidity of the Note or any
other instrument, agreement, promissory note or document referred to therein or
reflecting, securing or evidencing the obligations described therein, or any
other guaranty or surety agreement, pledge, assignment or other security for any
of the Obligations. This Guaranty shall remain in full force and effect until
the Obligations have been paid in full. No delay in making demand on the
Guarantor for satisfaction of the Guarantor's liability hereunder shall
prejudice the Beneficiary's right to enforce such satisfaction. All of the
Beneficiary's rights and remedies shall be cumulative and any failure of the
Beneficiary to exercise any right hereunder shall not be construed as a waiver
of the right to exercise the same or any other right at any time, and from time
to time, thereafter.
9. Binding Nature. This Guaranty shall inure to the benefit
of and be enforceable by the Beneficiary, the Beneficiary's successors and
assigns, as the case may be, and shall be binding upon and enforceable against
the Guarantor and the Guarantor's heirs, executors, administrators, personal
representatives, successors and assigns.
10. Invalidity of Any Part. If any provision or part of any
provision of this Guaranty shall for any reason be held invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provisions or the remaining part of any effective
provisions of this Guaranty and this Guaranty shall be construed as if such
invalid, illegal, or unenforceable provision or part thereof had never been
contained herein, but only to the extent of its invalidity, illegality, or
unenforceability.
11. Choice of Law. This Guaranty shall be construed,
interpreted, and enforced in accordance with the laws of the State of Maryland,
without regard to principles of conflicts of law.
12. Costs of Collection. The Guarantor agrees to pay, in
addition to the Obligations, all costs and expenses (including attorney fees)
incurred by Beneficiary in enforcing its rights and collecting or attempting to
collect from the Guarantor any or all amounts due hereunder.
13. Reinstatement. To the extent that any of the first Four
Million, Five Hundred Thousand Dollars ($4,500,000) due under the Note has been
paid by the Company to the Beneficiary, and thereafter any of such payments have
been rescinded and restored by any holder of the Note (such amount restored, the
"Restoration Payment"), whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, then the Obligations of the Guarantor under this
Guaranty shall be automatically reinstated solely to the extent of the amount of
the Restoration Payment; provided, however, that the amount of the Obligations
of the Guarantor under this Guaranty shall never exceed an amount determined by
subtracting the amount of all payments Guarantor has made hereunder
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(excluding amounts paid pursuant to Section 12 hereof) from Four Million, Five
Hundred Thousand Dollars ($4,500,000).
14. Subordination. Any indebtedness of the Company now or
hereafter held by the Guarantor on account of any payment made by the Guarantor
pursuant to this Guaranty is hereby subordinated to the indebtedness of the
Company to the Beneficiary. No such indebtedness of the Company to the Guarantor
shall be paid unless and until all amounts due Beneficiary under the Note and
that certain unsecured promissory note of even date herewith have been paid in
full. Prior to the transfer by the Guarantor of any agreement, note or
negotiable instrument evidencing any such indebtedness of the Company to the
Guarantor, the Guarantor shall ▇▇▇▇ such agreement, note or negotiable
instrument with a legend that the same is subject to this subordination.
15. Termination. Except with respect to Section 14 hereof,
this Guaranty, the guarantee hereunder and all of Guarantor's duties,
obligations and covenants hereunder shall terminate when all of the Obligations
shall have been fully paid.
IN WITNESS WHEREOF, the Guarantor has duly executed this
Guaranty under seal as of the date set forth above, with the specific intention
that this Guaranty constitute an instrument under seal.
WITNESS:
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