Exhibit 10.133

 


 




	
U.S. Small Business Administration
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	

    	
 
    	
U.S. Small Business Administration

 

UNCONDITIONAL GUARANTEE
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    





 



 

	
SBA   Loan #
    	
 
    	
48507750-04
    
	
SBA   Loan Name
    	
 
    	
Mt.   Kenn Nursing, LLC
    
	
Guarantor
    	
 
    	
Hearth &   Home of Ohio, Inc.
    
	
Borrower
    	
 
    	
Mt.   Kenn Property Holdings, LLC
    
	
Lender
    	
 
    	
Economic Development Corporation of Fulton County
    
	
Date
    	
 
    	
November 4, 2011
    
	
Note Amount
    	
 
    	
$2,274,000.00
    


 

1.                                       GUARANTEE:

 

Guarantor unconditionally guarantees payment to Lender of all amounts owing under the Note.  This Guarantee remains in effect until the Note is paid in full.  Guarantor must pay all amounts due under the Note when Lender makes written demand upon Guarantor.  Lender is not required to seek payment from any other source before demanding payment from Guarantor.

 

2.                                       NOTE:

 

The “Note” is the promissory note dated of even date in the principal amount of Two Million Two Hundred Seventy-Four Thousand and No/100 Dollars ($2,274,000.00), from Borrower to Lender.  It includes any assumption, renewal, substitution, or replacement of the Note, and multiple notes under a line of credit.

 

3.                                       DEFINITIONS:

 

“Collateral” means any property taken as security for payment of the Note or any guarantee of the Note.

 

“Loan” means the loan evidenced by the Note.

 

“Loan Documents” means the documents related to the Loan signed by Borrower, Guarantor or any other guarantor, or anyone who pledges Collateral.

 

“SBA” means the Small Business Administration, an Agency of the United States of America.

 

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4.                                       LENDER’S GENERAL POWERS:

 

Lender may take any of the following actions at any time, without notice, without Guarantor’s consent, and without making demand upon Guarantor:

 

A.    Modify the terms of the Note or any other Loan Document except to increase the amounts due under the Note;

B.    Refrain from taking any action on the Note, the Collateral, or any guarantee;

C.    Release any Borrower or any guarantor of the Note;

D.    Compromise or settle with the Borrower or any guarantor of the Note;

E.     Substitute or release any of the Collateral, whether or not Lender receives anything in return;

F.     Foreclose upon or otherwise obtain, and dispose of, any Collateral at public or private sale, with or without advertisement;

G.    Bid or buy at any sale of Collateral by Lender or any other lienholder, at any price Lender chooses; and

H.    Exercise any rights it has, including those in the Note and other Documents.

 

These actions will not release or reduce the obligations of Guarantor or create any rights or claims against Lender.

 

5.                                       FEDERAL LAW:

 

When SBA is the holder, the Note and this Guarantee will be construed and enforced under federal law, including SBA regulations.  Lender or SBA may use state or local procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes.  By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability.  As to this Guarantee, Guarantor may not claim or assert any local or state law against SBA to deny any obligation, defeat any claim of SBA, or preempt federal law.

 

6.                                       RIGHTS, NOTICES, AND DEFENSES THAT GUARANTOR WAIVES:

 

To the extent permitted by law,

 

A.  Guarantor waives all rights to:

 

	
1)
    	
 
    	
Require   presentment, protest, or demand upon Borrower;
    
	
2)
    	
 
    	
Redeem   any Collateral before or after Lender disposes of it;
    
	
3)
    	
 
    	
Have   any disposition of Collateral advertised; and
    
	
4)
    	
 
    	
Require   a valuation of Collateral before or after Lender disposes of it.
    


 

B.  Guarantor waives any notice of:

 

	
1)
    	
 
    	
Any   default under the Note;
    
	
2)
    	
 
    	
Presentment,   dishonor, protest, or demand;
    
	
3)
    	
 
    	
Execution   of the Note;
    
	
4)
    	
 
    	
Any   action or inaction on the Note or Collateral, such as disbursements, payment,   nonpayment, acceleration, intent to accelerate, assignment, collection   activity, and incurring enforcement expenses;
    
	
5)
    	
 
    	
Any   change in the financial condition or business operations of Borrower or any   guarantor;
    
	
6)
    	
 
    	
Any   changes in the terms of the Note or other Loan Documents, except increases in   the amounts due under the Note; and
    
	
7)
    	
 
    	
The   time or place of any sale or other disposition of Collateral.
    


 

C.  Guarantor waives defenses based upon any claim that:

 

	
1)
    	
 
    	
Lender   failed to obtain any guarantee;
    
	
2)
    	
 
    	
Lender   failed to obtain, perfect, or maintain a security interest in any property   offered or taken as Collateral;
    
	
3)
    	
 
    	
Lender   or others improperly valued or inspected the Collateral;
    
	
4)
    	
 
    	
The   Collateral changed in value or was neglected, lost, destroyed, or   underinsured;
    


 

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5)
    	
 
    	
Lender   impaired the Collateral;
    
	
6)
    	
 
    	
Lender   did not dispose of any of the Collateral;
    
	
7)
    	
 
    	
Lender   did not conduct a commercially reasonable sale;
    
	
8)
    	
 
    	
Lender   did not obtain the fair market value of the Collateral;
    
	
9)
    	
 
    	
Lender   did not make or perfect a claim upon the death or disability of Borrower or   any guarantor of the Note;
    
	
10)
    	
 
    	
The   financial condition of Borrower or any guarantor was overstated or has   adversely changed;
    
	
11)
    	
 
    	
Lender   made errors or omissions in Loan Documents or administration of the Loan;
    
	
12)
    	
 
    	
Lender   did not seek payment from the Borrower, any other guarantors, or any   Collateral before demanding payment from Guarantor;
    
	
13)
    	
 
    	
Lender   impaired Guarantor’s suretyship rights;
    
	
14)
    	
 
    	
Lender   modified the Note terms, other than to increase amounts due under the Note.   If Lender modifies the Note to increase the amounts due under the Note   without Guarantor’s consent, Guarantor will not be liable for the increased   amounts and related interest and expenses, but remains liable for all other   amounts;
    
	
15)
    	
 
    	
Borrower   has avoided liability on the Note; or
    
	
16)
    	
 
    	
Lender   has taken an action allowed under the Note, this Guarantee, or other Loan   Documents.
    


 

7.                                       DUTIES AS TO COLLATERAL:

 

Guarantor will preserve the Collateral pledged by Guarantor to secure this Guarantee.  Lender has no duty to preserve or dispose of any Collateral.

 

8.                                       SUCCESSORS AND ASSIGNS:

 

Under this Guarantee, Guarantor includes heirs and successors, and Lender includes its successors and assigns.

 

9.                                       GENERAL PROVISIONS:

 

A.    ENFORCEMENT EXPENSES. Guarantor promises to pay all expenses Lender incurs to enforce this Guarantee, including, but not limited to, attorney’s fees and costs.

B.    SBA NOT A CO-GUARANTOR. Guarantor’s liability will continue even if SBA pays Lender. SBA is not a co-guarantor with Guarantor. Guarantor has no right of contribution from SBA.

C.    SUBROGATION RIGHTS. Guarantor has no subrogation rights as to the Note or the Collateral until the Note is paid in full.

D.    JOINT AND SEVERAL LIABILITY. All individuals and entities singing as Guarantor are jointly and severally liable.

E.     DOCUMENT SIGNING. Guarantor must sign all documents necessary at any time to comply with the Loan Documents and to enable Lender to acquire, perfect, or maintain Lender’s liens on Collateral.

F.     FINANCIAL STATEMENTS. Guarantor must give Lender financial statements as Lender requires.

G.    LENDER’S RIGHTS CUMULATIVE, NOT WAIVED. Lender may exercise any of its rights separately or together, as many times as it chooses. Lender may delay or forgo enforcing any of its rights without losing or impairing any of them.

H.    ORAL STATEMENTS NOT BINDING. Guarantor may not use oral statement to contradict or alter the written terms of the Note or this Guarantee, or to raise a defense to this Guarantee.

I.      SEVERABILITY. If any part of this Guarantee is found to be unenforceable, all other parts will remain in effect.

J.     CONSIDERATION. The consideration for this Guarantee is the Loan or any accommodation by Lender as to the Loan.

 

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10.                                 STATE-SPECIFIC PROVISIONS:

 

Time is of the essence of this Guaranty.

 

The Guarantor hereby waives the right to require the Holder of the obligations hereby guaranteed to take action against the Debtor as provided for in O.C.G.A. § 10-7-24.

 

11.                                 GUARANTOR ACKNOWLEDGEMENT OF TERMS:

 

Guarantor acknowledges that Guarantor has read and understands the significance of all terms of the Note and this Guarantee, including all waivers.

 

12.                                 GUARANTOR NAME(S) AND SIGNATURE(S):

 

By signing below, each individual or entity becomes obligated as Guarantor under this Guarantee.

 

IN WITNESS WHEREOF, GUARANTOR has executed this Guaranty under seal as of the 4th day of November, 2011.

 

 

	
 
    	
GUARANTOR:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Hearth &   Home of Ohio, Inc.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Christopher F. Brogdon
    
	
 
    	
Christopher   F. Brogdon, Designated Representative
    
	
 
    	
 
    
	
 
    	
[CORPORATE SEAL]
    


 

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