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EXHIBIT 10.117
GUARANTY OF OBLIGATIONS
PURSUANT TO LEASE AGREEMENT
The undersigned, RAMSAY HEALTH CARE, INC., a Delaware corporation
("Guarantor"), as a material and necessary inducement to CAPSTONE CAPITAL
CORPORATION, a Maryland corporation (the "Lessor"), to enter into a Lease
Agreement of even date herewith (the "Lease") with HAVENWYCK HOSPITAL, INC., a
Michigan corporation (the "Lessee"), for the demise by the Lessor to Lessee of
real property and the improvements located thereon commonly known as Havenwyck
Hospital located at 0000 Xxxxxxxxxx Xxxxx, 0000 Xxxxx Road, and 1333-1376
University Drive, Cities of Pontiac and Auburn Hills, Oakland County, Michigan,
which improvements, together with all related land and parking areas, total
approximately 31.395 acres, more or less, as more particularly described on
EXHIBIT A attached hereto (the "Property"), hereby represents, warrants,
covenants and agrees as follows:
1. Guarantor hereby irrevocably guarantees to Lessor the prompt payment
when due, whether by acceleration or otherwise, of all rent and all
other sums payable by Lessee under the Lease and the faithful and
prompt performance when due of each and every one of the terms,
conditions and covenants to be kept and performed by Lessee under the
Lease, and any and all amendments, extensions and renewals of the
Lease. In the event of the failure of Lessee to pay any such rent or
other sums, or to render any other performance required of Lessee under
the Lease, if and when due after the expiration of any applicable cure
period, Guarantor shall, upon receiving notice of such failure from
Lessor, pay the rent and forthwith perform all provisions of the Lease
to be performed by Lessee thereunder. Guarantor further agrees to pay
to Lessor, upon demand, all losses and reasonable costs and expenses
incurred by Lessor in enforcing the Lease or this Guaranty.
2. In such manner, upon such terms and at such times as Lessor in its sole
discretion deems necessary or expedient, and without notice to or
consent by Guarantor, which notice and consent are hereby expressly
waived by Guarantor, Lessor may alter, compromise, accelerate, extend
or change the time or manner for the payment or the performance of any
obligation hereby guaranteed (in accordance with the terms of the
instruments and documents pursuant to or by which such obligations are
created or evidenced), release Lessee by consent to any assignment (or
otherwise) as to all or any portion of the obligations hereby
guaranteed, release, substitute or add any one or more guarantors,
accept additional or substituted security for any obligation secured
hereby, release or subordinate any security for any obligation secured
hereby or release or substitute the Property now or hereafter covered
by the Lease for any other facility. No exercise or non-exercise by
Lessor of any right hereby given Lessor (or neglect or delay in
connection therewith), no dealing by Lessor with Guarantor or any other
guarantor or any other person, and no change, impairment, release or
suspension of any right or remedy of Lessor against any person,
including Lessee and any other guarantor, shall in any way affect any
of the obligations of Guarantor hereunder or any security furnished by
Guarantor or give
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Guarantor any recourse or right of offset against Lessor. If Lessor has
exculpated Lessee from personal liability under theLease in whole or in
part, said exculpation shall not affect the obligations of Guarantor
hereunder. Guarantor's obligations hereunder are independent of the
obligations of Lessee and are to be construed as if no such exculpation
had been given to Lessee by Lessor. It is further understood and agreed
that if any such exculpation has been or at any time hereafter is given
to Lessee, Lessor has done or will do so in reliance upon the
agreements of Guarantor expressed herein.
3. Subject to the provisions of the last sentence of this Section,
Guarantor hereby waives and relinquishes all rights and remedies
accorded by applicable law to sureties and/or guarantors or any other
accommodation parties, under any statutory provisions, common law or
any other provision of law, custom or practice, and agrees not to
assert or take advantage of any such rights or remedies, including, but
not limited to, (a) any right to require Lessor to proceed against
Lessee or any other person or to proceed against or exhaust any
security held by Lessor at any time or to pursue any other remedy in
Lessor's power before proceeding against Guarantor; (b) any defense
that may arise by reason of incapacity, lack of authority, insolvency,
bankruptcy, death or disability of any other person or persons or the
failure of Lessor to file or enforce a claim against the estate (in
administration, bankruptcy) or any other proceeding) of any other
person or persons; (c) any defense arising because of Lessor's
election, in any proceeding instituted under the Federal Bankruptcy
Code, together with all amendments and revisions thereto (the
"Bankruptcy Code"), of the application of Section 1111(b)(2) of the
Bankruptcy Code; (d) any defense based on any borrowing or grant of a
security interest under Section 364 of the Bankruptcy Code; and (e) any
duty on the part of Lessor to disclose to Guarantor any facts Lessor
may now or hereafter know about Lessee, regardless of whether Lessor
has reason to believe that any such facts materially increase the risk
beyond that which Guarantor intends to assume or has reason to believe
that such facts are unknown to Guarantor or has a reasonable
opportunity to communicate such facts to Guarantor, it being understood
and agreed that the undersigned is fully responsible for being and
keeping informed of the financial condition of Lessee and of all
circumstances bearing on the risk of non-payment or non-performance of
any obligations or indebtedness hereby guaranteed. Guarantor hereby
waives all notices of acceptance of this Guaranty, protest, notice of
intention to accelerate (and notice of such acceleration), demand,
dishonor and presentment, and all other demands of any kind now or
hereafter provided for by any statute or rule of law. Notwithstanding
anything to the contrary in this Guaranty, Guarantor shall have as a
defense to payment or performance hereunder each and every defense,
real and personal, which Lessee may have to payment or performance
under the Lease, it being the intention of Guarantor and Lessor that
Guarantor's obligations hereunder shall not be greater or more
burdensome than or otherwise different from Lessee's obligations under
the Lease.
4. Until all obligations of Lessee under the Lease have been satisfied and
discharged in full, Guarantor shall have no right of subrogation and
hereby waives any right to enforce any
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remedy which Lessor now has or may hereafter have against Lessee and
any benefit of, any right to participate in, any security now or
hereafter held by Lessor with respect to the Lease.
5. Notwithstanding any modification or discharge of the obligations
guaranteed hereby (or any part thereof) or any amendment, modification,
rearrangement, stay or care of any of Lessor's rights, remedies or
recourse under the Lease which may occur in any bankruptcy or
reorganization case or proceeding concerning Lessee, whether permanent
or temporary, and whether or not assented to by Lessor, Guarantor
hereby agrees that Guarantor shall be obligated under this Guaranty to
pay and perform all of the obligations guaranteed hereby in accordance
with the respective terms of the Lease and of this Guaranty in effect
on the date hereof. Guarantor understands and acknowledges that, by
virtue of this Guaranty, Guarantor has specifically assumed any and all
risks of a bankruptcy, reorganization, or other case or proceeding
under any of the Debtor Relief Laws (as hereinafter defined) with
respect to Lessee. The term "Debtor Relief Laws," as used in this
Guaranty, shall mean the Bankruptcy Code or any other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, or
similar debtor relief law from time to time in effect which affects the
rights of creditors generally.
6. With or without notice to Guarantor, Lessor, in its sole discretion and
at any time and from time to time and in such manner and upon such
terms as it deems fit, may (a) apply any or all payments or recoveries
from Lessee or from any other guarantor under any other instrument or
realized from any security, in such manner and order or priority as
Lessor may determine, to any indebtedness or other obligation of Lessee
with respect to the Lease, whether or not such indebtedness or other
obligation is guaranteed hereby or is otherwise secured or is due at
the time of such application, and (b) refund to Lessee any payment
received by Lessor under the Lease.
7. The amount of Guarantor's liability and all rights, powers and remedies
of Lessor hereunder and under any other agreement now or at any time
hereafter in force between Lessor and Guarantor including any other
guaranty executed by Guarantor relating to any indebtedness or other
obligation of any lessee to Lessor shall be cumulative and not
alternative and such rights, powers and remedies shall be in addition
to all rights, powers and remedies given to Lessor by law. This
Guaranty is in addition to and exclusive of the guaranty of any other
guarantor of any indebtedness of Lessee to Lessor.
8. This Guaranty is a guaranty of payment and performance and not of
collection. The obligations of Guarantor hereunder are primary, direct
and independent of the obligations of Lessee and, in the event of any
default by Lessee under the Lease, a separate action may be brought and
prosecuted against Guarantor, whether or not Lessee is joined therein
or a separate action is brought against Lessee. Lessor may maintain
successive actions for defaults, and Lessor's rights hereunder shall
not be exhausted by its exercise of any of its
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rights or remedies or by any such action or by any number of successive
actions until and unless all indebtedness and obligations, the payment
and performance of which are hereby guaranteed, have been paid and
fully performed.
9. Guarantor shall pay to Lessor on demand all reasonable attorneys' fees
and all costs and expenses which Lessor expends or incurs in enforcing
performance of any indebtedness or other obligation hereby guaranteed
or in enforcing this Guaranty against Guarantor, whether or not suit is
filed, expressly including but not limited to all costs, reasonable
attorneys' fees and expenses incurred by Lessor in connection with any
insolvency, bankruptcy, reorganization, arrangement or other similar
proceedings involving Guarantor which in any way affects the exercise
by Lessor of its rights and remedies hereunder.
10. The most recent audited financial statements of Guarantor heretofore
delivered to Lessor have been prepared in accordance with generally
accepted accounting principles and fairly represent the financial
condition of Guarantor as of the date thereof, and no material adverse
change has occurred in the financial condition of Guarantor since the
respective dates thereof.
11. If any provision or portion thereof of this Guaranty is declared or
found by a court of competent jurisdiction to be unenforceable or null
and void, such provision or portion thereof shall be deemed stricken
and severed from this Guaranty, and the remaining provisions and
portions thereof shall continue in full force and effect.
12. This Guaranty shall be a continuing guaranty and shall inure to the
benefit of Lessor, its successors and assigns, and any subsequent
owners of the Property who succeed to all or any portion of Lessor's
obligations and rights under the Lease, and shall bind the heirs,
executors, administrators, personal representatives, successors and
assigns of Guarantor; provided that Guarantor may not, without Lessor's
prior written consent, assign or transfer any of its powers, duties or
obligations under this Guaranty. This Guaranty may be assigned by
Lessor with respect to all or any portion of the indebtedness or
obligations hereby guaranteed to any subsequent owners or encumbrances
of the Property, and when so assigned Guarantor shall be liable to the
assignees under this Guaranty without in any manner affecting the
liability of Guarantor hereunder with respect to any indebtedness or
obligations retained by Lessor.
13. Neither any provision of this Guaranty nor any right of Lessor
hereunder may be waived in whole or in part, nor shall Guarantor be
released from Guarantor's obligations hereunder, except by a writing
duly executed by an authorized officer of Lessor.
14. When the context and construction so require, all words used in the
singular herein shall be deemed to have been used in the plural and the
masculine shall include the feminine and neuter and vice versa. The
word "person" as used herein shall include any individual, company,
firm, association, partnership, corporation, trust or other legal
entity of any kind
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whatsoever. The term "Lessee" as used herein shall mean the party
herein so named and its successors, including but not limited to a
debtor in possession under Chapter 11 of the Bankruptcy Code.
15. EXCEPT WHERE FEDERAL LAW IS APPLICABLE AND UNLESS OTHERWISE EXPRESSLY
PROVIDED HEREIN, THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ALABAMA. Guarantor hereby (a)
irrevocably submits to the non-exclusive jurisdiction of the state and
federal courts of the State of Alabama in any legal proceeding arising
out of or in connection with this Guaranty, the Lease and the
obligations guaranteed hereby; and (b) irrevocably consents to the
service of process upon Guarantor by the mailing of copies thereof by
certified mail, return receipt requested, postage prepaid, to Guarantor
at Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxx 00000,
Attention: President, or such other address of which Guarantor shall
notify Lessor in writing. Nothing herein shall affect the rights of
Lessor to commence legal proceedings or otherwise proceed against
Guarantor in any jurisdiction or to service process in any manner
permitted by applicable law, and nothing herein shall constitute a
general consent to jurisdiction or service of process.
16. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
PERTAINING TO THE SUBJECT MATTER ADDRESSED HEREIN AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
- SIGNATURE IS ON THE FOLLOWING PAGE -
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EXECUTED as of September 28, 1998.
RAMSAY HEALTH CARE, INC.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: Vice President
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EXHIBIT A
REAL PROPERTY DESCRIPTION
(Parcel 1)
Situated in the City of Auburn Hills, Oakland County, Michigan, described as:
Part of the Northwest 1/4 of Section 23, Town 3 North, Range 10 East, being more
particularly described as follows: Beginning at a point which is North 00
degrees 13 minutes 10 seconds East 1360.94 feet along the West line of Section
23, which is also the East line of Assessor's Plat No. 104 (liber 48, page 26
and 26a, Oakland County Records) from the West 1/4 corner of Xxxxxxx 00, Xxxx 0
Xxxxx, Xxxxx 00 Xxxx; thence along the West line of Section 23, 897.98 feet;
thence North 89 degrees 00 minutes 00 seconds East 270.00 feet; thence South 65
degrees 09 minutes 27 seconds East 538.14 feet; thence South 39 degrees 10
minutes 58 seconds East 292.62 feet; thence South 01 degrees 26 minutes 00
seconds West 135.00 feet; thence along the center line of Mt. Xxxxxxx Road
(University Drive), Southwesterly 177.16 feet along a curve concave curve to the
Northwest (Radius of 1084.04 feet, central angle 09 degrees 21 minutes 50
seconds, long chord bears South 67 degrees 41 minutes 35 seconds West 176.97
feet), and South 72 degrees 22 minutes 30 seconds West 817.91 feet to the point
of beginning.
Excepting the following described parcel for University Drive Right-of-Way.
Beginning at a point which is North 00 degrees 13 minutes 10 seconds East,
1360.94 feet along the West line of said Section 23, which is also the east line
of Assessor's Plat No. 104 (liber 48, page 26 and 26a, Oakland County Records)
from the West 1/4 corner of said Section 23; thence continuing along the West
line of said Section 23, North 00 degrees 13 minutes 10 seconds East 63.14 feet;
thence North 72 degrees 04 minutes 17 seconds East 867.83 feet; thence 128.76
feet along the arc of a curve to the left having a radius of 825.00 feet passing
through a central angle of 08 degrees 56 minutes 32 seconds with a long chord
bearing of North 67 degrees 36 minutes 01 seconds, East 128.63 feet; thence
South 01 degrees 26 minutes 00 seconds West, 64.50 feet; thence 177.16 feet
along the arc of a curve to the right having a radius of 1084.04 feet passing
through a central angle of 09 degrees 21 minutes 50 seconds with a long chord
bearing of South 67 degrees 41 minutes 35 seconds West, 176.97 feet; thence
South 72 degrees 22 minutes 30 seconds West, 817.91 feet to the point of
beginning.
Parcel Identification No. 00-00-000-000
Commonly known as: 0000 Xxxxxxxxxx Xxxxx
(Parcel 2)
Situated in the City of Auburn Hills, Oakland County, Michigan, described as:
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Part of the Northwest 1/4 of Section 23, Town 3 North, Range 10 East, described
as beginning at a point in the center line of Mt. Xxxxxxx Road located North 00
degrees 13 minutes 10 seconds East 1360.94 feet along the West line of Section
23, which is also the East line of Assessor's Plat No. 104 and North 72 degrees
22 minutes 30 seconds East 751.66 feet along the center line of Mt. Xxxxxxx Road
from the West 1/4 corner of said Section 23; thence from said point of beginning
North 72 degrees 22 minutes 30 seconds East 66.25 feet along the centerline of
Mt. Xxxxxxx Road; thence on a curve to the left (radius 1084.04) feet, delta
angle 9 degrees 46 minutes 41 seconds, Long Chord North 67 degrees 29 minutes 09
seconds East 184.78 feet) an arc distance of 185.00 feet along the center line
of Mt. Xxxxxxx Road; thence South 26 degrees 21 minutes 20 seconds East 281.15
feet; thence South 61 degrees 44 minutes 10 seconds West 205.78 feet to the
center line of Xxxxx Road; thence North 34 degrees 27 minutes 10 seconds West
313.56 feet along the center line of Xxxxx Road to the point beginning. Subject
to the rights of the public and of any governmental unit in any part thereof
taken, used or deeded for street, road or highway purposes. Containing 1.520
acres more or less.
Parcel Identification No. 00-00-000-000
Commonly known as: 0000 Xxxxx Xxxx
(Parcel 3)
The East 190.75 feet of Lot 1 and all of Xxx 0, Xxxxxxxx'x Xxxx Xx. 000 as
recorded in Liber 48, Pages 26 and 26a of Plats, Oakland County Records, more
particularly described as: Beginning at the Southeast corner of Lot 2; thence
South 69 degrees 39 minutes 05 seconds West along the centerline of University
Drive 540.97 feet; thence North 01 degrees 40 minutes 58 seconds West 1,472.03
feet; thence North 88 degrees 14 minutes 06 seconds East 512.52 feet to a point
on the East line of Section 23; thence along said section line South 01 degrees
40 minutes 58 seconds East 1,299.64 feet to the point of beginning.
Excepting the following 2 parcels for University Drive Right-of-Way:
Commencing at the Southeasterly corner of Xxx 0, "Xxxxxxxx'x Xxxx Xx. 000",
subdivision of part of the Northeast 1/4 and part of the Southeast 1/4, Xxxxxxx
00, Xxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxx of Pontiac, Oakland County, Michigan and
recorded in Liber 48 of Plats, Pages 26, and 26a, Oakland County Records, said
Southeasterly corner being on the centerline of University Drive (variable
width); thence North 01 degrees 40 minutes 58 seconds West, 34.83 feet along the
Easterly line of said Lot 1, also being the Westerly line of Lot 2 of said
"Assessor's Plat Not 104", to the point of beginning; thence South 69 degrees 39
minutes 05 seconds West 201.34 along the existing Northwesterly Right-of-Way
line of University Drive; thence North 01 degrees 40 minutes 58 seconds West
28.50 feet along the Westerly line of the Easterly 190.75 feet of said Lot 1;
thence North 69 degrees 39 minutes 05 seconds East 201.34 feet; thence South 01
degrees 40 minutes 58 seconds East 28.50 feet along said Easterly line of Lot 1
to the point of beginning. Being a part of said Lot 1, also being 27.00 feet in
width and containing 5,436 square feet of land.
Also being subject to easements and restrictions of record, if any.
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Commencing at the Southwesterly corner of Xxx 0, "Xxxxxxxx'x Xxxx Xx. 000" a
subdivision of part of the Northeast 1/4 and part of the Southeast 1/4, Xxxxxxx
00, Xxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxx of Pontiac, Oakland County, Michigan and
recorded in Liber 48 of Plats, Pages 26 and 26a, Oakland County Records, said
Southwesterly corner being on the centerline of University Drive (variable
width); thence North 01 degrees 40 minutes 58 seconds West, 34.83 feet along the
Westerly line of said Lot 2, also being the Easterly line of Xxx 0 xx xxxx
"Xxxxxxxx'x Xxxx Xx. 000" to the point of beginning; thence continuing North 01
degrees 40 minutes 58 seconds East 28.50 feet along said Westerly line of Lot 2;
thence North 69 degrees 39 minutes 05 seconds East 339.63 feet; thence South 01
degrees 40 minutes 58 seconds East 28.50 feet along the Easterly line of said
Lot 2, also being the Easterly line of said "Assessor's Plat No. 104", also
being the East line of said Section 22, also being the Easterly limits of the
City of Pontiac; thence South 69 degrees 39 minutes 05 seconds West, 339.63 feet
along the existing Northwesterly Right-of-Way line of University Drive to the
point of beginning. Being a part of said Lot 2, also being 27.00 feet in width
and containing 9.170 square feet of land. Also being subject to easements and
restrictions of record, if any.
Subject to the riparian rights of the public in Xxxxxxxx Lake.
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