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Exhibit 10.15
THIS GUARANTY AGREEMENT made and entered into as of March 5, 1991 (the
("Guaranty") between National HealthCorp L.P., a Delaware limited partnership
the ("Guarantor"), and The Bank of Tokyo, Ltd., New York Agency, a New York
agency of a Japanese banking corporation (the "Bank").
WHEREAS:
A. Palm Beach County the ("Issuer") has issued its Industrial
Development Revenue Bonds (Florida Convalescent Centers, Inc. Project), Series
1986 (the "Bonds") under and pursuant to the Trust Indenture dated as of
November 1, 1986 and amended and restated as of March 10, 1987 and further
amended and restated as of June 30, 1987 among the Issuer, Third National Bank
in Nashville, as original Trustee, and Sun Bank/South Florida, N.A., as
Co-Trustee (the "Indenture") for the benefit of Florida Convalescent Centers,
Inc. (the "Company").
B. The Company and the Guarantor have entered into an Amended and
Restated Reimbursement Agreement of even date herewith (the "Reimbursement
Agreement") with the Bank pursuant to which the Bank has issued its Irrevocable
Letter of Credit for the purpose of providing direct payment of principal of and
interest on and purchase price of the Bonds (the "Letter of Credit") in favor of
The Bank of Tokyo Trust Company, as successor Trustee (the "Trustee").
C. The proceeds of the Bonds have been advanced by the Issuer to the
Company for the purpose of acquiring, constructing and equipping a nursing home
facility in Palm Beach County, Florida owned by the Company (the "Project").
D. A corporate predecessor of the Guarantor has contracted with the
Company to manage the Project pursuant to a Management Agreement dated as of
November 1, 1986.
E. The Guarantor desired that the Issuer issue the Bonds and is willing
to enter into this Guaranty Agreement in order (i) to enhance the continued
marketability of the Bonds by causing the issuance of the Letter of Credit and
thereby achieve cost and other savings to the Company and financial benefits
for the Guarantor, and (ii) to secure the monetary obligations of the Company to
the Bank under the Reimbursement Agreement and the Mortgage referred to therein
(the "Mortgage"), and the monetary obligations of the Guarantor to the Bank
under the Reimbursement Agreement, which obligations to the Bank are each herein
defined as a "Guaranteed Obligation".
NOW THEREFORE, in consideration of the premises, the Guarantor,
National HealthCorp L.P., does hereby, subject to the terms hereof, covenant and
agree with the Bank as follows:
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ARTICLE I
REPRESENTATIONS AND WARRANTIES
OF THE GUARANTOR
The Guarantor does hereby represent and warrant that it is a limited
partnership duly organized under the laws of the State of Delaware, is qualified
to do business under the laws of the State of Florida, is not in violation of
any provisions of its Certificate of Limited Partnership or Partnership
Agreement, or the laws of the States of Tennessee, Delaware or Florida, has
power to enter into this Guaranty Agreement, has duly authorized the execution
and delivery of this Guaranty Agreement by proper partnership action, and
neither this Guaranty Agreement nor the agreements herein contained contravene
or constitute a default under any agreement, instrument or indenture, or any
provision of its Certificate of Limited Partnership or Partnership Agreement or
any other requirement of law. The execution by the Guarantor of this Guaranty
Agreement will result in a direct financial benefit to it.
ARTICLE II
COVENANTS AND AGREEMENTS
Section 2.1 The Guarantor hereby guarantees the payment to the Bank of
the Guaranteed Obligations of the Company and the Guarantor under the
Reimbursement Agreement and the Mortgage. All payments by the Guarantor shall be
paid in lawful money of the United States of America. Each and every default in
payment of the amounts due under the Reimbursement Agreement or the Mortgage
shall give rise to a separate cause of action hereunder, and separate suits may
be brought hereunder as each cause of action arises.
Section 2.2 The obligations of the Guarantor under this Guaranty shall
be absolute and unconditional and shall remain in full force and effect until
all Guaranteed Obligations due under the Reimbursement and the Mortgage shall
have been paid and such Obligations shall not be affected, modified or impaired
upon the happening from time to time of any event other than such payment,
without limitation any of the following, whether or not with notice to, or the
consent of, the Guarantor:
(a) the compromise, settlement, release or termination of any or all
of the obligations, covenants or agreements of the Company or the Bank under the
Reimbursement Agreement or the Mortgage;
(b) the failure to give notice to the Guarantor of the occurrence of an
event of default under the terms and provisions of the Reimbursement Agreement
or the Mortgage.
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(c) the assignment or mortgaging of all or any part of the interest of
the Bank or the Company in the Project or any failure of title with respect to
the interests of the Bank or the Company in the Project;
(d) the waiver of the payment, performance or observance by the Bank or
the Company of any of the obligations, covenants or agreements contained in the
Reimbursement Agreement or the Mortgage or in this Guaranty Agreement;
(e) the extension of the time for payment of any Guaranteed Obligation
or the time for performance of any other obligations, covenants or agreements
under or arising in connection with the Reimbursement Agreement or the Mortgage
or this Guaranty or the extension or renewal of any thereof;
(f) the modification or amendment (whether material or otherwise) of
any Guaranteed Obligation or the Reimbursement Agreement or the Mortgage
provided that, the obligations of the Guarantor are not thereby increased or
expanded without its prior written consent;
(g) the taking, suffering or omitting to take, or the omission of any
of the actions referred to in the Reimbursement or the Mortgage and any actions
under this Guaranty Agreement.
(h) any failure, omission, delay or lack on the part of the Bank to
enforce, assert or exercise any right, power or remedy conferred on the Bank in
this Guaranty Agreement or by the Reimbursement Agreement or the Mortgage;
(i) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all the assets, marshalling of assets
and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition with creditors or
readjustment of, or other similar proceedings affecting the Guarantor, the
Company, the Bank, the Trustee or the Issuer or any of the assets of any of them
or any allegation or contest of the validity of this Guaranty Agreement, the
Reimbursement Agreement or the Mortgage in any such proceeding;
(j) to the extent permitted by law, the releasor discharge of the
Guarantor from the performance or observance of my obligation, covenant or
agreement contained in this Guaranty Agreement by operation of law; or
(k) the default or failure of the Guarantor fully to perform any of its
obligations as set forth in this Guaranty Agreement; or
(l) the assignment of any right, title or interest of the Issuer to the
Trustee, its successors or assigns; or
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(m) the invalidity of the Reimbursement Agreement or the Mortgage or
any term thereof;
(n) the transfer of the Project or changes in the beneficial or actual
owners of the Company; or
(o) the foreclosure of the Mortgage; or
(p) any other circumstance, occurrence or condition, whether similar or
dissimilar to any of the foregoing, that might be raised in avoidance of or in
defense against any action to enforce the obligations of the Guarantor under the
provisions hereof.
Section 2.3 The rights of the Bank to enforce the obligations of the
Guarantor under this Guaranty Agreement by any proceedings, whether by action at
law, suit in equity, or otherwise, shall not be impaired by any right,
counterclaim or defense of any character whatsoever, including without
limitation any right, claim or defense or rescission, recoupment, reduction,
limitation, set-off, counterclaim, waiver, frustration, surrender, alteration or
compromise. This Guaranty Agreement and the obligations of the Guarantor
hereunder are separate and independent of the Company's obligations under the
Reimbursement Agreement and the Mortgage, and it is specifically understood and
agreed by the Guarantor that any payment now or hereafter made by or on behalf
of the Company under or pursuant to the Reimbursement Agreement or the Mortgage
shall not, except to the extent paid to the owners of the Bonds directly by the
Trustee, affect, impair or diminish, in any manner whatsoever, the obligations
of the Guarantor hereunder. In the event that the Company or any successor or
assignee under the Reimbursement Agreement or the Mortgage should fail to
perform any agreement on its part, the Guarantor may institute such action as it
deems necessary to compel performance so long as such action does not abrogate
the Guarantor's obligations hereunder.
Section 2.4 In the event of a default in the payment of a Guaranteed
Obligation, the Bank shall have the right to proceed first and directly against
the Guarantor under this Guaranty Agreement to the extent of its obligations
hereunder without proceeding against or exhausting any other remedies which it
may have and without resorting to any other security held by the Bank.
Section 2.5 The Guarantor hereby expressly waives notice from the Bank
of its acceptance and reliance on this Guaranty Agreement. The Guarantor agrees
to pay all costs, expenses and fees, including all reasonable attorneys' fees
which may be incurred by the Bank in enforcing or attempting to enforce this
Guaranty Agreement following default hereunder, whether the same by enforced by
suit or otherwise.
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Section 2.6 No remedy herein conferred upon or reserved to the Bank is
intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Guaranty Agreement or now or hereafter existing at law
or in equity. No delay or omission to exercise any right or power accruing upon
any default, omission or failure of performance hereunder shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Bank to exercise any remedy reserved to it in
this Guaranty Agreement, it shall not be necessary to give any notice, other
than such notice as may be herein expressly required. In the event any provision
contained in this Guaranty Agreement should be breached by the Guarantor and
thereafter duly waived by the Bank, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder. No waiver, amendment, release or modification of this Guaranty
Agreement shall be established by conduct, custom or course of dealing, but
solely by an instrument in writing duly executed by the Bank.
Section 2.7 The Guarantor agrees that it will maintain its partnership
existence throughout the term of years that the Bonds will remain outstanding
and unpaid, and during such period the Guarantor will remain qualified to engage
in the business and be subject to service of process in the States of Tennessee
and Florida. The Guarantor further agrees that it will not dispose of all or
substantially all of its assets except to a corporation incorporated and
existing under the laws of one of the States of the United States of America and
qualified to do business in Florida; provided, in all cases, that such other
corporation shall have a net worth not less than that of the Guarantor and shall
assume in writing all of the obligations of the Guarantor herein.
Section 2.8 The Guarantor covenants and agrees that so long as the
Bonds remain outstanding and unpaid, it will furnish to the Bank, as soon as
available and, in any event, within 125 days after the end of each fiscal year,
copies of a certified balance sheet of the Guarantor and its consolidated
subsidiaries as of the end of the fiscal year. The Guarantor shall also furnish
to the Bank copies of its financial statements for all fiscal years accompanied
by the auditor's report thereon, as well as copies of all interim quarterly
reports sent to the Guarantor's limited partners.
Section 2.9 This Guaranty is entered into by the Guarantor for the
benefit of the Bank and may be amended or supplemented only with the prior
written consent of the Bank.
Section 2.10 (a) Until the Guaranteed Obligations have been paid
full and particularly with respect to any
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payment by the Company made to the Bank within one year prior to the
commencement of any bankruptcy or reorganization proceedings affecting the
Company, the Guarantor hereby (i) waives, and releases and discharges, any claim
of any kind or nature whatsoever it may have against the Company for
indemnification, contribution, subrogation or any other form of reimbursement
with respect to any amounts it may be required to pay under this Guaranty
Agreement, (ii) waives any right to enforce any remedy which the Bank now have
or may hereafter have against the Company and (iii) waives any benefit of, and
any right to participate in, any security now or hereafter held by the Bank.
(b) The Guarantor shall be discharged of its obligations hereunder upon
the payment of all Guaranteed Obligations; provided that, in the event the Bank
is required by order of the court or administrative body having jurisdiction at
any time to refund or repay to any person or entity any sums collected by it on
account of the obligations subject to this Guaranty Agreement, the Guarantor
agrees that all such sums shall remain subject to the terms of this Guaranty
Agreement and the Bank shall be entitled to recover such sums from the Guarantor
notwithstanding the fact that the Guarantor shall have been otherwise discharged
from further liability under this Guaranty Agreement, but only on the condition
precedent that the Bank shall have given the Guarantor written notice of such
court or administrative proceeding and shall have afforded the Guarantor a
reasonable opportunity to contest any demand for a refund or repayment. The
Guarantor shall have an opportunity to make such a contest only within the time
requirements of the court or administrative body having jurisdiction and must
proceed with diligence to completion of the contest or the condition precedent
described in the preceding sentence shall be deemed to have been waived by the
Guarantor.
Section 2.11 The Guarantor hereby subordinates the payment of
management fees from the Company to the prior payment in full of the Bonds and
the obligations owing to the Bank under the Reimbursement Agreement, and agrees
that no payment thereof shall be made while there remains a payment default on
the Bonds or under the Reimbursement Agreement.
ARTICLE III
MISCELLANEOUS
Section 3.1 The obligations of the Guarantor hereunder shall arise
absolutely and unconditionally when the Letter of Credit shall have been issued
and delivered by the Bank.
Section 3.2 The Guaranty Agreement constitutes the entire agreement of
guarantee, and supersedes all prior agreements and understanding, both written
and oral, between the parties with respect to the subject matter hereof and may
be
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executed simultaneously in several counterparts, each of which shall be deemed
an original, and all of which together shall constitute one and the same
instrument.
Section 3.3 The invalidity or unenforceability of any one or more
phrases, sentences, clauses or Sections in this Guaranty Agreement shall not
affect the validity or enforceability of the remaining portions of this Guaranty
Agreement, or any part thereof.
Section 3.4 This Guaranty Agreement shall be governed by and construed
interpreted in accordance with the laws of the State of New York.
Section 3.5 The agreements contained herein on the part of the
Guarantor shall inure to and be binding upon its successors and assigns,
including without limitation, any successor or assign in any transaction
expressly permitted by Section 2.7 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty
Agreement to be executed in their respective names by their respective duly
authorized officials as of the date first above stated.
NATIONAL HEALTHCORP L.P.
as Guarantor
By: NHC, INC.
Managing Partner
By:
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Title: Senior Vice President
Accepted:
THE BANK OF TOKYO, LTD.
NEW YORK AGENCY
By:
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Title: Attorney-in-fact
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