EXHIBIT 10.59
EXHIBIT D
FORM OF
LEASE GUARANTY
THIS LEASE GUARANTY (this "Guaranty") is made and entered into to be
effective as of ____________________, 2004 (the "Effective Date"), by **[ALS
PROPERTIES HOLDINGS CO., LLC]**, a Delaware limited liability company
("Guarantor"), in favor of [PSLT-ALS WEST, LLC], a Delaware limited liability
company ("Landlord").
RECITALS
WHEREAS, as of the Effective Date, Landlord and [ALS PROPERTIES II TENANT,
LLC], a Delaware limited liability company, as tenant ("Tenant"), have executed
and entered into that certain Lease Agreement (as the same may be renewed,
extended, amended or modified from time to time, the "Lease"), pertaining to
those certain Leased Properties (as defined in the Lease Agreement);
WHEREAS, Guarantor is a direct or indirect owner of 100% of the beneficial
ownership interest in Tenant, and Guarantor will derive substantial direct and
indirect benefit from the transactions contemplated by the Lease; and
WHEREAS, it is a condition to the entering into of the Lease by Landlord
that Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged by Guarantor, and in order to induce Landlord to enter into the
Lease, Guarantor hereby agrees as follows:
Section 1. GUARANTY. Guarantor hereby unconditionally and irrevocably
guarantees (i) the full and prompt payment of all rent and other sums required
to be paid by Tenant under the Lease, (ii) the full and timely performance of
all other terms, conditions, covenants and obligations of Tenant under the Lease
(as same may be amended, renewed, extended or modified), and (iii) any and all
expenses (including reasonable attorneys' fees and expenses) incurred by
Landlord in enforcing any rights under the Lease or this Guaranty (such
obligations, collectively, are referred to as the "Guaranteed Obligations").
Guarantor agrees that this Guaranty is a guarantee of payment and performance,
not collection, and that Guarantor is primarily liable and responsible for the
payment and performance of the Guaranteed Obligations. It is not necessary for
Landlord, in order to enforce payment and performance by Guarantor under this
Guaranty, first or contemporaneously to institute suit or exhaust remedies
against Tenant or others liable for any of the Guaranteed Obligations or to
enforce rights against any collateral securing any of it. With the exception of
the defense of prior payment, performance, or compliance by Tenant or Guarantor
of the Guaranteed Obligations which Guarantor is called upon to pay, or the
defense that Landlord's claim against Guarantor hereunder is barred by the
applicable statute of limitations, all defenses of the law of guaranty or
suretyship, including, without limitation, substantive defenses and procedural
defenses, are waived and released by Guarantor to the extent permitted by law.
Except as provided in the preceding sentence, under no circumstances will the
liability of Guarantor under this Guaranty be terminated either with respect to
any period of time when the liability of Tenant under the Lease continues, or
with
respect to any circumstances as to which the Guaranteed Obligations have not
been fully discharged by payment, performance or compliance.
Section 2. GUARANTY ABSOLUTE. Guarantor guarantees that the Guaranteed
Obligations will be paid and performed strictly in accordance with the terms of
the Lease. The liability and responsibilities of Guarantor under this Guaranty
shall be absolute and unconditional, shall not be subject to any counterclaim,
setoff, or deduction and shall not be released, discharged, affected or impaired
by (i) any change in the time, manner, or place of payment or performance of any
of the Guaranteed Obligations, or any other amendment or waiver of, or any
consent to or departure from, or termination of, the Lease, (ii) any release or
discharge of Tenant in any bankruptcy, receivership or other similar
proceedings, (iii) the impairment, limitation or modification of the liability
of Tenant or the estate of Tenant in bankruptcy or of any remedy for the
enforcement of Tenant's liability under the Lease, resulting from the operation
of any present or future provisions of any bankruptcy code or other statute or
from the decision in any court, the rejection or disaffirmance of the Lease in
any such proceedings, or the assignment or transfer of the Lease by Tenant, (iv)
any failure, omission or delay on the part of Landlord, to enforce, assert or
exercise any right, power or remedy conferred on or available to Landlord in or
by the Lease or this Guaranty, or any action on the part of Landlord granting
indulgence or extension in any form whatsoever or any invalidity, irregularity
or unenforceability as to Tenant of all or any part of the Guaranteed
Obligations or any security therefor, (v) the waiver by Landlord of the
performance or observance by Tenant or Guarantor of any of the agreements,
covenants, terms or conditions contained in the Lease or this Guaranty, (vi) any
merger, consolidation, reorganization or similar transaction involving Tenant
even if Tenant ceases to exist as a result of (and is not the surviving party
in) such transaction, (vii) the inability of Landlord or Tenant to enforce any
provision of the Lease for any reason, (viii) any change in the corporate
relationship between Tenant and Guarantor or any termination of such
relationship, (ix) any change in the ownership of all or any part of the
membership interests in Tenant, (x) the inability of Tenant to perform, or the
release of Tenant or Guarantor from the performance of, any obligation,
agreement, covenant, term or condition under the Lease or this Guaranty by
reason of any law, regulation or decree, now or hereafter in effect, (xi) any
merger of the leasehold estate of Tenant with the fee estate or any other estate
in any of the Leased Properties, or (xii) any disability or other defense of
Tenant. Landlord and Tenant, without notice to or consent by Guarantor, may at
any time or times enter into such modifications, extensions, amendments, or
other covenants with respect to the Lease as they may deem appropriate and
Guarantor shall not be released thereby, but shall continue to be fully liable
for the payment and performance of all liabilities, obligations and duties of
Tenant under the Lease as so modified, extended or amended.
Section 3. REINSTATEMENT. Guarantor further agrees that, if at any time
all or any part of any payment applied to any of the Guaranteed Obligations is
or must be rescinded or returned for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of Guarantor), such
Guaranteed Obligations shall, for the purposes of this Guaranty, to the extent
that such payment is or must be rescinded or returned, be deemed to have
continued in existence, notwithstanding such application, and this Guaranty
shall continue to be effective or be reinstated, as the case may be, as to such
Guaranteed Obligations, all as though such application had not been made.
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Section 4. CERTAIN ACTIONS. Landlord may, from time to time at its
discretion and without notice to Guarantor, take any or all of the following
actions: (a) retain or obtain the primary or secondary obligation of any obligor
or obligors, in addition to Guarantor, with respect to any of the Guaranteed
Obligations; (b) extend or renew for one or more periods (regardless of whether
longer than the original period), or release or compromise any obligation of
Guarantor hereunder or any obligation of any nature of any other obligor
(including, without limitation, Tenant) with respect to any of the Guaranteed
Obligations; or (c) release or fail to perfect any lien upon or security
interest in, or impair, surrender, release or permit any substitution or
exchange for, all or any part of any property securing any of the Guaranteed
Obligations or any obligation hereunder, or extend or renew for one or more
periods (regardless of whether longer than the original period) or release or
compromise any obligations of any nature of any obligor with respect to any such
property.
Section 5. WAIVER. To the extent permitted by applicable law, Guarantor
hereby expressly waives: (i) notice of the acceptance of this Guaranty, (ii)
except as otherwise provided in the Lease or this Guaranty, notice of the
existence or creation or non-payment of all or any of the Guaranteed
Obligations, (iii) presentment, demand, notice of dishonor, protest and all
other notices whatsoever except as otherwise provided in the Lease or this
Guaranty, and (iv) all diligence in collection or protection of or realization
upon the Guaranteed Obligations or any part thereof, any obligation hereunder,
or any security for or guaranty of any of the foregoing.
Section 6. WAIVER OF SUBROGATION. Guarantor hereby waives all rights of
subrogation which it may at any time otherwise have as a result of this Guaranty
to the claims of Landlord against Tenant and all contractual, statutory or
common law rights of reimbursement, contribution or indemnity from Tenant which
it may at any time otherwise have as a result of this Guaranty prior to final
payment and satisfaction of the Guaranteed Obligations.
Section 7. MISCELLANEOUS.
7.1 Amendments, Etc. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by Guarantor therefrom shall be effective
unless the same shall be in writing and signed by Landlord.
7.2 Addresses for Notices. All notices hereunder shall be in writing,
personally delivered, delivered by overnight courier service, sent by facsimile
transmission (with confirmation of receipt), or sent by certified mail, return
receipt requested, addressed as follows, or to such other address as shall be
designated by Guarantor or Landlord in written notice to the other party:
If to Tenant: [ALS PROPERTIES II TENANT, LLC]
c/o Alterra Healthcare Corporation
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to: Alterra Healthcare Corporation
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to: Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Guarantor: **[ALS PROPERTIES HOLDINGS CO., LLC]**
c/o Alterra Healthcare Corporation
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Alterra Healthcare Corporation
c/o Alterra Healthcare Corporation
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to: Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Landlord: [PSLT-ALS WEST, LLC]
c/o Fortress Investment Group
1251 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx Xx.
Telephone: (000) 000-0000
Facsimile: (___) ___-____
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with a copy to: Sidley Xxxxxx Xxxxx & Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7.3 No Waiver; Remedies. No failure on the part of Landlord to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
other remedies available at law or equity.
7.4 Continuing Guaranty; Transfer of Interest. This Guaranty shall create
a continuing guaranty and will (i) remain in full force and effect until payment
and performance in full and satisfaction of the Guaranteed Obligations, (ii) be
binding upon Guarantor and its successors and assigns, and (iii) inure, together
with the rights and remedies of Landlord hereunder, to the benefit of Landlord
and its successors, as permitted under the Lease. Without limiting the
generality of the foregoing clause, if and when Landlord assigns or otherwise
transfers any interest held by it under the Lease to any other person, that
other person shall thereupon become vested with all the benefits held by
Landlord under this Guaranty.
Section 8. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 9. INDUCEMENT TO LANDLORD. Guarantor acknowledges and agrees that
the execution and delivery of this Guaranty by Guarantor to Landlord has served
as a material inducement to Landlord to execute and deliver the Lease, and
Guarantor further acknowledges and agrees that but for the execution and
delivery of this Guaranty by Guarantor, Landlord would not have executed and
delivered the Lease.
Section 10. INTENTIONALLY DELETED.
Section 11. INTENTIONALLY DELETED.
Section 12. SUBMISSION TO JURISDICTION. Guarantor hereby irrevocably
submits to the non-exclusive jurisdiction of any State or Federal court located
in New York County, New York State over any action, suit or proceeding to
enforce or defend any right under this Guaranty or otherwise arising from or
relating to this Guaranty, and Guarantor irrevocably agrees that all claims in
respect of any such action, suit or proceeding may be heard and determined in
such court. Guarantor hereby irrevocably waives, to the fullest extent that it
may effectively do so, the defense of an inconvenient forum or venue to the
maintenance of any such action, suit or proceeding. Guarantor hereby agrees that
a final, non-appealable judgment in any such action, suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
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Section 13. WAIVER OF JURY TRIAL. Guarantor hereby waives, to the fullest
extent permitted by applicable law, any right to a trial by jury in any action,
suit or proceeding to enforce or defend any rights under this Guaranty or any
other transaction document or any amendment, instrument, document or agreement
delivered or which may in the future be delivered in connection herewith or
arising from or relating to any relationship existing in connection with this
guaranty, and agrees, to the fullest extent permitted by applicable law, that
any such action, suit or proceeding shall be tried before a court and not before
a jury.
Section 14. COOPERATION, FURTHER ASSURANCES. Guarantor covenants, and
agrees to sign, execute and deliver or cause to be signed, executed and
delivered and to do or make, or to cause to be done or make, upon the written
request of Landlord, any and all agreements, instruments, papers, deeds, acts or
things, supplemental, confirming or otherwise, as may be reasonably required by
Landlord for the purpose of, or in connection with, the transaction contemplated
hereby. Upon full and final payment and performance of the Guaranteed
Obligations, Landlord agrees to execute a release for the benefit of Guarantor,
in form and content reasonably satisfactory to Landlord. Notwithstanding
anything to the contrary contained herein, this Guaranty shall survive for a
period of twenty four (24) months after the expiration or earlier termination of
the Lease, and Guarantor shall be liable to Landlord hereunder for any
Guaranteed Obligations which arise during such period and relate to matters
which (i) occurred during the term of the Lease or (ii) Tenant is otherwise
required to indemnify Landlord against pursuant to the terms of the Lease.
Except to the extent expressly provided otherwise in any guaranty or indemnity
from Guarantor or its direct or indirect Parent to Landlord or its Affiliates
(each such term as defined in the Lease), in no event shall any trustee,
shareholder, member, guarantor, partner, employee, officer or beneficiary of
Guarantor be personally liable for any of the obligations of Guarantor
hereunder.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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Guarantor has caused this Guaranty to be effective as of the Effective Date.
GUARANTOR:
**[ALS PROPERTIES HOLDINGS CO.,
LLC]**,
a Delaware limited liability company
By:_________________________________
Name:
Title:
