EXHIBIT
10.2
GUARANTY
Agreement of Guaranty made as of this 21st day
of December, 1999, by the undersigned hereof (the
"Guarantor"), to MATTERHORN USA, INC., having an address
at c/o BDG Management, Inc., 0000 Xxxxxxx Xxxxxxxx,
Xxxxxxx, Xxx Xxxx (hereinafter together with the
successors and assigns "Landlord");
WITNESSETH:
WHEREAS, by that certain First Amendment to Lease between
Landlord and STAFF BUILDERS, INC. ("Tenant"), dated October
28,1998, which amendment consolidated and modified certain leases
previously entered into between Landlord's predecessor in interest,
Triad III Associates, as landlord and Tenant (hereinafter
collectively referred to as the "Lease"), Landlord leased to Tenant
premises comprising a portion of the building known as 0000 Xxxxxx
Xxxxxx, Xxxx Xxxxxxx, Xxx Xxxx and which premises is defined in the
Lease as the "Demised Premises"; and
WHEREAS, Guarantor is the parent company of Tenant and
Guarantor desires to execute and deliver this Guaranty to Landlord;
and
NOW, THEREFORE, in consideration of the premises,
Guarantor hereby unconditionally covenants and agrees to and with
Landlord as follows:
(1) Guarantor hereby unconditionally jointly and
severally guarantees the full payment, performance and observance
of all of the covenants, conditions and agreements to be paid,
performed and observed under the Lease.
(2) Guarantor hereby agrees that its liability hereunder
shall be unaffected by (i) any agreement or modification of the
provisions of the Lease or any other instrument made to or with the
Landlord by the Tenant or any person who succeeds the Tenant, (ii)
any extension of time for performance required thereby, (iii) any
assignment of the Lease (unless Tenant is expressly released from
all of its obligations under the Lease) or sublet of the Demised
Premises hereunder, (iv) exculpatory provisions, if any, in any of
said instruments, (v) the release of the Tenant (unless Tenant is
expressly released from all of its obligations under the Lease),
the Guarantor or any other person or entity from performance or
observance of any of the agreements, terms or conditions contained
in any said instruments by operation of law, whether made with or
without notice to the Guarantor, or (vi) any bankruptcy,
insolvency, reorganization, arrangement, assignment for the benefit
of creditors, receivership or trusteeship affecting the Tenant, the
Demised Premises, and/or the Guarantor or any of its respective
successors or assigns whether or not any notice thereof is given to
the Guarantor.
(3) Guarantor hereby waives any and all legal
requirements that Landlord shall institute any action or
proceedings at law or in equity against Tenant, or anyone else, in
respect of the Lease, or in respect of any other security held by
Landlord, as a condition precedent to bringing an action against
the Guarantor upon this Guarantee. All remedies afforded to
Landlord by reason of this Guarantee are separate and cumulative
remedies and it is agreed that no one of such remedies, whether
exercised by Landlord or not, shall be deemed to be an exclusion of
any of the other remedies available to Landlord and shall not limit
or prejudice any other legal or equitable remedy which Landlord may
have.
(4) It is understood and agreed that the Guarantor shall
not be released by any act or thing which might, but for this
provision of this instrument, be deemed a legal or equitable
discharge of a surety or a guarantor, or by reason of any waiver,
extension, modification, forbearance or delay or other act or
omission of Landlord or its failure to proceed promptly or
otherwise, or by reason of any action taken or omitted or
circumstance which may or might vary the risk or affect the rights
or remedies of Guarantor or any of them or by reason of any further
dealings between Tenant and Landlord, whether relating to the Lease
or otherwise, and the Guarantor hereby expressly waives and
surrenders any defense o its liability hereunder based upon any of
the foregoing acts, omissions, things, agreements, waivers or any
of them and hereby expressly waives and relinquishes all other
rights and remedies accorded by applicable law to guarantors and
sureties; it being the purpose and intent of the parties hereto
that the obligations of Guarantor hereunder are absolute and
unconditional under any and all circumstances.
(5) Guarantor hereby waives notice of acceptance of this
Guarantee by Landlord and of presentment for payment, demand, protest,
notice of protest and of dishonor, notices of default and all other
notices of every kind and description now or hereafter provided by any
statute or rule of law.
(6) Guarantor waives any claim (as such term is defined
in the United States Bankruptcy Code, as amended from time to time)
it has or may have against Tenant, including, but not limited to,
the right to receive any bankruptcy or other distribution to which
Guarantor may be entitled by reason of having executed and
performed under this Guaranty, and Guarantor waives any legal or
equitable right to indemnification, contribution or reimbursement,
or any other contingent claim, arising out of or in connection with
the Lease or this Guaranty.
(7) Any notice, demand or request by Landlord to
Guarantor shall be made in writing and shall be deemed to have been
duly given or made if mailed by certified or registered mail
addressed to the Guarantor at its respective address set forth at
the foot hereof
(8) This Guaranty is, and shall be deemed to be, a
contract entered into under and pursuant to the laws of the State
of New York and shall be in all respects governed, construed,
applied and enforced in accordance with the laws of said State; and
no defense given or allowed by the laws of any other State or
Country shall be interposed in any action or proceeding hereon
unless such defense is also given or allowed by the laws of the
State of New York. The undersigned agrees to submit to personal
jurisdiction in the State of New York in any action or proceeding
arising out of this Guaranty.
(9) The Guarantor hereby represents and warrants that:
(a) The most recent financial statement of the
Guarantor, copies of which statements have been furnished to the
Landlord, fairly present the financial condition of the Guarantor
as of such dates in accordance with generally accepted accounting
principles applied on a consistent basis, and since the date of
each of such financial statements, there has been no material
adverse change in such condition or operations.
(b) There are no actions, suits or proceedings
pending, or to the knowledge of the Guarantor, threatened against
or affecting the Guarantor or the properties of the Guarantor
before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which, if
determined adversely to the Guarantor, would have a material
adverse effect on the financial condition, properties or operations
of the Guarantor.
(c) The Guarantor is not a party to any indenture,
loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or other restriction which
would have a material adverse effect on the ability of the
Guarantor to carry out its obligation under this Guaranty.
(d) No information, exhibit or report furnished by
the Guarantor to the Landlord in connection with the negotiation of
this Guaranty contained as of the date thereof, or, if there be no
such date, the date of furnishing thereof, any material
misstatement of fact or omitted to state a material fact or any
fact necessary to make the statements contained therein not
misleading.
(10) The Guarantor hereby agrees to indemnify the
Landlord against loss, cost or expense caused by the assertion by
the Tenant of any unsuccessful defense to its obligations under the
Lease or the assertion by the Guarantor of any unsuccessful defense
to the obligations of the Guarantor under this Guarantee.
(11) The Guarantor hereby agrees that should
Landlord be obligated by any bankruptcy or other law to repay to
the Guarantor, or to any trustee, receiver or other representative
of it, any amounts previously paid in respect of and/or pursuant to
this Guaranty, then this Guaranty shall be reinstated to include
the amount of such repayment. Landlord shall not be required to
litigate or otherwise dispute Guarantor's obligation to make such
repayments if it, in good faith and on the written advice of
counsel, believes that such obligation exists.
(12) If any action, suit or proceeding which either
directly or indirectly involves this Guaranty is commenced, the
Guarantor waives its right to any jury trial in connection
therewith.
(13) This Guaranty is separate, distinct and in
addition to any liability and/or obligations that the Guarantor may
have under any other guaranty or any other agreement executed by
the Guarantor in connection with the Lease and no other agreement
or guaranty executed in connection with the Lease shall act to
reduce or set-off the Guarantor's liability hereunder.
(14) If any of the provisions of this Guaranty, or
the application thereof to any person or circumstances, shall, to
any extent, be invalid or unenforceable, the remainder of the
Guaranty, or the application of such provision or provisions to
persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected thereby, and
every provision of this Guaranty shall be valid and enforceable to
the fullest extent permitted by law.
This Guaranty shall be binding upon the respective heirs, legal
representatives, successors and assigns of the Guarantor and
shall inure to the benefit of the Landlord and its successors and
assigns.
IN WITNESS WHEREOF, Guarantor has duly executed this
Guaranty as of the day and year first above written.
TENDER LOVING CARE HEALTH CARE
SERVICES, INC., a Delaware corporation
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: President