EXHIBIT 10.37
GUARANTY BY INTEGRATED HEALTH SERVICES, INC.
GUARANTY dated as of September 24, 1997 made by INTEGRATED
HEALTH SERVICES, INC., a Delaware corporation (the "Guarantor") and HEALTH AND
RETIREMENT PROPERTIES TRUST, a Maryland real estate investment trust (with its
successor and assigns, "HRP").
W I T N E S S E T H :
WHEREAS, Community Care of America, Inc., a Delaware corporation
("CCA") and the other CCA Companies (as hereinafter defined) have entered into
certain loan and lease financings with HRP governed by the CCA Documents (as
hereinafter defined);
WHEREAS, pursuant to and subject to the terms and conditions of an
Agreement and Plan of Merger dated as of August 1, 1997 among the Guarantor, IHS
Acquisition XXVI, Inc., a Delaware corporation and a wholly-owned indirect
subsidiary of the Guarantor ("IHS Acquisition") and CCA, CCA shall become a
wholly-owned indirect subsidiary of the Guarantor through a tender offer by IHS
Acquisition for all the common stock of CCA, followed by the merger of IHS
Acquisition with and into CCA (the "Acquisition");
WHEREAS, the Guarantor and CCA have requested that HRP consent to the
Acquisition and to make certain modifications to the CCA Documents in connection
therewith;
WHEREAS, HRP is willing to so consent and agree, subject to the terms
and conditions of a certain Asset Exchange Agreement between ECA Holdings II,
Inc., a Delaware corporation and a wholly-owned indirect subsidiary of CCA ("New
ECA"), and HRP, and a Restructuring Agreement among HRP, the Guarantor, and CCA
and the other CCA Companies, each of which Agreements are dated as of even date
herewith (collectively, the "Restructuring Agreement")
WHEREAS, it is a condition to the effectiveness of the Restructuring
Agreement that, among other things, the Guarantor deliver this Guaranty in favor
of HRP;
WHEREAS, the CCA Companies will benefit substantially from, among other
things, increased access to capital, by virtue of the Acquisition and the
related modifications to the CCA Documents contemplated by the Restructuring
Agreement
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Guarantor hereby agrees with HRP as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are defined in
the Restructuring Agreement and used herein are so used as so defined. In
addition, the following terms shall have the meanings set forth below:
"Applicable Law" shall mean any law of any governmental
authority, whether domestic or foreign, including without limitation
all federal and state laws, to which the Person in question is subject
or by which it or any of its property is bound, and including without
limitation any: (a) administrative, executive, judicial, legislative or
other action, code, consent decree, constitution, decree, directive,
enactment, finding, guideline, injunction, interpretation, judgment,
law, order, ordinance, policy statement, proclamation, promulgation,
regulation, requirement, rule, rule of law, rule of public policy,
settlement agreement, statute, or writ, of any governmental authority,
domestic or foreign, whether or not having the force of law; (b) common
law or other legal or
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quasi-legal precedent; or (c) arbitrator's, mediator's or referee's
award, decision, finding or recommendation, or, in any case, any
particular section, part or provision thereof
"CCA Documents" shall mean, collectively, any agreement, note,
lease, master lease, mortgage, security agreement, pledge agreement,
assignment, guaranty or other agreement or instrument now or hereafter
executed by one or more of the CCA Companies with, in favor of or for
the benefit of, HRP or any Affiliate thereof (including, without
limitation, any and all other documents executed in connection with,
relating to, evidencing or creating collateral or security in favor of
or for the benefit of HRP or any Affiliate thereof), and any agreement,
note, mortgage, security agreement, pledge agreement, assignment,
guaranty or other agreement or instrument hereafter executed in
connection with any extension, renewal, refunding or refinancing
thereof, as any of the same may hereafter from time to time be amended,
modified or supplemented.
"CCA Companies" shall mean, collectively, CCA, New ECA, ECA
Holdings, Inc., a Delaware corporation, Community Care of Nebraska,
Inc., a Delaware corporation, W.S.T. Care, Inc., a Nebraska
corporation, Quality Care of Xxxxx, Inc., a Nebraska corporation, CCA
Acquisition I, Inc., a Delaware corporation, Marietta/SCC, Inc., a
Georgia corporation, Glenwood/SCC, Inc., a Georgia corporation,
Dublin/SCC, Inc., a Georgia corporation, and College Park/SCC, Inc., a
Georgia corporation, and their respective successors and assigns.
"Consolidated Financials" shall mean, for any fiscal year or
other accounting period of the Guarantor and its consolidated
Subsidiaries, annual audited and quarterly unaudited financial
statements prepared on a consolidated basis, including the Guarantor's
consolidated balance sheet and the related statements of income and
cash flows, all in reasonable detail, and setting forth in comparative
form the corresponding figures for the corresponding period in the
preceding fiscal year, and prepared in accordance with GAAP
consistently applied throughout the periods presented.
"Default Rate" shall mean 4% per annum above the prime rate or
base rate on corporate loans at large U.S. money center commercial
banks as published in The Wall Street Journal or, if publication of
such rate shall be suspended or terminated, the annual rate of
interest, determined daily and expressed as a percentage, from time to
time announced by one of the five largest national-chartered banking
institutions having their principal office in New York, New York and
selected by HRP at the time such publication is suspended or
terminated. Each change in the Interest Rate shall take effect
simultaneously with the date of publication or announcement, as
applicable, of each corresponding change in such prime rate or base
rate.
"Financial Officer's Certificate" shall mean a certificate of
the financial officer of the Guarantor, duly authorized, accompanying
the financial statements required to be delivered by such Person
pursuant to Section 14, in which such officer shall (a) certify that
such statements have been properly prepared in accordance with GAAP and
are true, correct and complete in all material respects and fairly
present the consolidated financial condition of the Guarantor at and as
of the dates thereof and the results of its and their operations for
the periods covered thereby, and (b) certify that such officer has
reviewed the CCA Documents and has no knowledge of any material default
by the Guarantor or any Subsidiary thereof in the performance or
observance of any of the provisions of any CCA Document or of any
condition or event which constitutes an Event of Default under any CCA
Document or which with the passage of time or the giving of notice or
both would become such an Event of Default.
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, property, condition (financial or
otherwise) or prospects of the Guarantor, or of the
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Guarantor and its Subsidiaries taken as a whole, (b) the ability of the
Guarantor to perform its obligations under this Guaranty, or (c) the
validity or enforceability of this Guaranty, or the rights of HRP
hereunder.
"Obligations" shall mean the payment and performance of each
and every obligation and liability of any CCA Company to HRP under any
CCA Document, whether now existing or hereafter arising or created,
joint or several, direct or indirect, absolute or contingent, due or to
become due, matured or unmatured, liquidated or unliquidated, arising
by contract, operation of law or otherwise, and including, without
limitation, (i) all principal, premium or prepayment fee and interest
under any promissory note payable to HRP by any CCA Company, (ii) all
rent under any lease with HRP as landlord, and (iii) all fees and
charges, and all costs and expenses payable under any CCA Document.
"Subsidiary" shall mean any corporation of which more than
fifty percent of the outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether or not at the time capital stock of any other
class or classes of such corporation shall or might have voting power
upon the occurrence of any contingency) is at the time directly or
indirectly owned by Guarantor, or Guarantor and one or more other
Subsidiaries, or by one or more Subsidiaries.
2. Guaranty. The Guarantor hereby unconditionally and irrevocably guarantees to
HRP the prompt and complete payment and performance by the CCA Companies (and
each of them), when due (whether at stated maturity, by acceleration or
otherwise), of the Obligations. The Guarantor further agrees to pay any and all
reasonable expenses (including, without limitation, all reasonable fees and
disbursements of counsel to HRP) which may be paid or incurred by HRP in
enforcing any of its rights under this Guaranty. This Guaranty is a guaranty of
payment and not of collectibility and is absolute and in no way conditional or
contingent. The Guarantor's liability hereunder is direct and unconditional and
may be enforced after nonpayment or nonperformance by any CCA Company of any
Obligation without requiring HRP to resort to any other Person (including
without limitation such CCA Company) or any other right, remedy or collateral.
This Guaranty shall remain in full force and effect until the Obligations are
paid in full following the termination of all CCA Documents.
3. Costs and Expenses of Collection. The Guarantor agrees, as principal obligor
and not as a guarantor only, to pay to HRP forthwith upon demand, in immediately
available funds, all costs and expenses (including, without limitation, all
court costs and all fees and disbursements of counsel to HRP) incurred or
expended by HRP in connection with the enforcement of this Guaranty, together
with interest on such amounts from the time such amounts become due until
payment at the Default Rate. It shall be a condition of the obligations of
Guarantor to pay any fees and expenses payable by it under this Guaranty that
HRP shall have, or shall have caused to have, provided the Guarantor with a
writing describing such fees and/or expenses in reasonable detail.
4. Right of Setoff. Regardless of the adequacy of any collateral or other means
of obtaining repayment of the Obligations, HRP is hereby authorized, without
notice to the Guarantor or compliance with any other condition precedent now or
hereafter imposed by Applicable Law (all of which are hereby expressly waived to
the extent permitted by Applicable Law) and to the fullest extent permitted by
Applicable Law, to set off and apply any securities, deposits or other property
belonging to the Guarantor now or hereafter held by HRP against the obligations
of the Guarantor under this Guaranty, whether or not HRP shall have made any
demand under this Guaranty, at any time and from time to time after the
occurrence of a Event of Default under and as defined in any CCA Document, in
such manner as HRP in its sole discretion may determine, and the Guarantor
hereby grants HRP a continuing security interest in such securities, deposits
and property for the payment and performance of such obligations.
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5. Subrogation and Contribution. Until the Obligations shall have been paid and
performed in full, the Guarantor irrevocably and unconditionally waives any and
all rights to which it may be entitled, by operation of law or otherwise, to be
subrogated, with respect to any payment made by the Guarantor hereunder, to the
rights of HRP against any CCA Company, or otherwise to be reimbursed,
indemnified or exonerated by any CCA Company in respect thereof or to receive
any payment, in the nature of contribution or for any other reason, from any
other guarantor of the Obligations with respect to any payment made by the
Guarantor hereunder. Until the Obligations shall have been paid and performed in
full, the Guarantor waives any defense it may have based upon any election of
remedies by HRP which impairs the Guarantor's subrogation rights or the
Guarantor's rights to proceed against any CCA Company for reimbursement
(including without limitation any loss of rights the Guarantor may suffer by
reason of any rights, powers or remedies of such CCA Company in connection with
any anti-deficiency laws or any other laws limiting, qualifying or discharging
any indebtedness to HRP). Until the Obligations shall have been paid, performed
and satisfied in full, the Guarantor further waives any right to enforce any
remedy which HRP now has or may in the future have against any CCA Company, any
other guarantor or any other Person and any benefit of, or any right to
participate in, any security whatsoever now or in the future held by HRP.
6. Effect of Bankruptcy Stay. If acceleration of the time for payment or
performance of any of the Obligations is stayed upon the insolvency, bankruptcy
or reorganization of any CCA Company or any other Person or otherwise, all such
amounts otherwise subject to acceleration shall nonetheless be payable by the
Guarantor under this Guaranty forthwith upon demand.
7. Receipt of CCA Documents, etc. The Guarantor confirms, represents and
warrants to HRP that (i) it has received true and complete copies of all
existing CCA Documents from the CCA Companies, has read the contents thereof and
reviewed the same with legal counsel of its choice; (ii) no representations or
agreements of any kind have been made to the Guarantor which would limit or
qualify in any way the terms of this Guaranty; (iii) this Guaranty is executed
at the CCA Companies' request and not at the request of HRP; (iv) HRP has made
no representation to the Guarantor as to the creditworthiness of any CCA
Company; and (v) the Guarantor has established adequate means of obtaining from
each CCA Company on a continuing basis information regarding such CCA Company's
financial condition. The Guarantor agrees to keep adequately informed from such
means of any facts, events, or circumstances which might in any way affect the
Guarantor's risks under this Guaranty, and the Guarantor further agrees that HRP
shall have no obligation to disclose to the Guarantor any information or
documents acquired by HRP in the course of its relationship with the CCA
Companies.
8. Amendments, etc. with Respect to the Obligations. The obligations of the
Guarantor under this Guaranty shall remain in full force and effect without
regard to, and shall not be released, altered, exhausted, discharged or in any
way affected by any circumstance or condition (whether or not any CCA Company
shall have any knowledge or notice thereof), including without limitation (a)
any amendment or modification of or supplement to any CCA Document, or any
obligation, duty or agreement of the CCA Companies or any other Person
thereunder or in respect thereof; (b) any assignment or transfer in whole or in
part of any of the Obligations; any furnishing, acceptance, release,
nonperfection or invalidity of any direct or indirect security or guaranty for
any of the Obligations; (c) any waiver, consent, extension, renewal, indulgence,
settlement, compromise or other action or inaction under or in respect of any
CCA Document, or any exercise or nonexercise of any right, remedy, power or
privilege under or in respect of any such instrument (whether by operation of
law or otherwise); (d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding with respect to any
CCA Company or any other Person or any of their respective properties or
creditors or any resulting release or discharge of any Obligation (including
without limitation any rejection of any lease pursuant to Section 365 of the
Federal Bankruptcy Code); (e) any new or additional financing arrangements
entered
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into by any CCA Company or by any other Person on behalf of or for the benefit
of any CCA Company; (f) the merger or consolidation of any CCA Company with or
into any other Person or of any other Person with or into any CCA Company; (g)
the voluntary or involuntary sale or other disposition of all or substantially
all the assets of any CCA Company or any other Person; (h) the voluntary or
involuntary liquidation, dissolution or termination of any CCA Company or any
other Person; (i) any invalidity or unenforceability, in whole or in part, of
any term hereof or of any CCA Document, or any obligation, duty or agreement of
any CCA Company or any other Person thereunder or in respect thereof; (j) any
provision of any applicable law or regulation purporting to prohibit the payment
or performance by any CCA Company or any other Person of any Obligation; (k) any
failure on the part of any CCA Company or any other Person for any reason to
perform or comply with any term of any CCA Document or any other agreement; or
(l) any other act, omission or occurrence whatsoever, whether similar or
dissimilar to the foregoing. The Guarantor authorizes each CCA Company, each
other guarantor in respect of the Obligations and HRP at any time in its
discretion, as the case may be, to alter any of the terms of any of the
Obligations.
9. Guarantor as Principal. If for any reason the CCA Companies, or any of them,
or any other Person is under no legal obligation to discharge any Obligation, or
if any other moneys included in the Obligations have become unrecoverable from
the CCA Companies, or any of them, or any other Person by operation of law or
for any other reason, including, without limitation, the invalidity or
irregularity in whole or in part of any Obligation or of any CCA Document, the
legal disability of any CCA Company or any other obligor in respect of
Obligations, any discharge of or limitation on the liability of any CCA Company
or any other Person or any limitation on the method or terms of payment under
any Obligation, or of any CCA Document, which may now or hereafter be caused or
imposed in any manner whatsoever (whether consensual or arising by operation of
law or otherwise), this Guaranty shall nevertheless remain in full force and
effect and shall be binding upon the Guarantor to the same extent as if the
Guarantor at all times had been the principal obligor on all Obligations.
10. Waiver of Demand, Notice, Etc. The Guarantor hereby waives, to the extent
not prohibited by applicable law, all presentments, demands for performance,
notice of nonperformance, protests, notices of protests and notices of dishonor
in connection with the Obligations or any CCA Document, including but not
limited to (a) notice of the existence, creation or incurring of any new or
additional obligation or of any action or failure to act on the part of any CCA
Company, HRP, any endorser or creditor of any CCA Company or any other Person;
(b) any notice of any indulgence, extensions or renewals granted to any obligor
with respect to the Obligations; (c) any requirement of diligence or promptness
in the enforcement of rights under any CCA Document, or any other agreement or
instrument directly or indirectly relating thereto or to the Obligations; (d)
any enforcement of any present or future agreement or instrument relating
directly or indirectly thereto or to the Obligations; (e) notice of any of the
matters referred to in Section 9 above; (f) any defense of any kind which the
Guarantor may now have with respect to his liability under this Guaranty; (g)
any right to require HRP, as a condition of enforcement of this Guaranty, to
proceed against any CCA Company or any other Person or to proceed against or
exhaust any security held by HRP at any time or to pursue any other right or
remedy in HRP's power before proceeding against the Guarantor; (h) any defense
that may arise by reason of the incapacity, lack of authority, death or
disability of any other Person or Persons or the failure of HRP to file or
enforce a claim against the estate (in administration, bankruptcy, or any other
proceeding) of any other Person or Persons; (i) any defense based upon an
election of remedies by HRP; (j) any defense arising by reason of any "one
action" or "anti-deficiency" law or any other law which may prevent HRP from
bringing any action, including a claim for deficiency, against the Guarantor,
before or after HRP's commencement of completion of any foreclosure action,
either judicially or by exercise of a power of sale; (k) any defense based upon
any lack of diligence by HRP in the collection of any Obligation; (l) any duty
on the part of HRP to disclose to the Guarantor any facts HRP may now or
hereafter know about any CCA Company or any other obligor in respect of
Obligations; (m) any defense arising because of an election made by HRP under
Section
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1111(b)(2) of the Federal Bankruptcy Code; (n) any defense based on any
borrowing or grant of a security interest under Section 364 of the Federal
Bankruptcy Code; (o) and any defense based upon or arising out of any defense
which any CCA Company or any other Person may have to the payment or performance
of the Obligations (including but not limited to failure of consideration,
breach of warranty, fraud, payment, accord and satisfaction, strict foreclosure,
statute of frauds, bankruptcy, infancy, statute of limitations, lender liability
and usury). Guarantor acknowledges and agrees that each of the waivers set forth
herein on the part of the Guarantor is made with Guarantor's full knowledge of
the significance and consequences thereof and that, under the circumstances, the
waivers are reasonable. If any such waiver is determined to be contrary to
Applicable Law such waiver shall be effective only to the extent no prohibited
by such Applicable Law.
11. Reinstatement. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
HRP upon the insolvency, bankruptcy, dissolution, liquidation or reorganization
of any CCA Company or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, any CCA Company
or any substantial part of its property, or otherwise, all as though such
payments had not been made.
12. Payments. The Guarantor hereby agrees that the Obligations will be paid to
HRP without set-off or counterclaim in U.S. Dollars at the office of HRP located
at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or to such other location as
HRP shall notify the Guarantor.
13. Representations and Warranties. The Guarantor represents and warrants that:
(i) Corporate Existence. The Guarantor is a corporation duly
incorporated and validly existing under the laws of the jurisdiction of
its incorporation, and is duly licensed or qualified as a foreign
corporation in all states wherein the nature of its property owned or
business transacted by it makes such licensing or qualification
necessary, except where the failure to be licensed or to so qualify
could not have a Material Adverse Effect.
(ii) No Violation. The execution, delivery and performance of
this Guaranty will not contravene any provision of law, statute, rule
or regulation to which the Guarantor or any of its Subsidiaries is
subject or any judgment, decree, franchise, order or permit applicable
to the Guarantor, or conflict or be inconsistent with or result in any
breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any lien or security interest
upon any of the property or assets of the Guarantor pursuant to the
terms of any agreement or instrument to which the Guarantor is party or
by which its assets are bound, or violate any provision of the
respective corporate charters or bylaws of the Guarantor.
(iii) Corporate Authority and Power. The execution, delivery
and performance of this Guaranty is within the corporate powers of the
Guarantor and has been duly authorized by all necessary corporate
action.
(iv) Enforceability. This Guaranty has been duly executed and
delivered by the Guarantor, and this Guaranty constitutes the valid and
binding obligation of the Guarantor enforceable against the Guarantor
in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and except as enforceability may be subject to general principles of
equity, whether such principles are applied in a court of equity or at
law.
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(v) Governmental Approvals. No order, permission, consent,
approval, license, authorization, registration or validation of, or
filing with, or exemption by, any governmental authority is required to
authorize, or is required in connection with, the execution, delivery
and performance of this Guaranty, or the taking of any action
contemplated hereby or thereby.
(vi) Litigation. The Guarantor has no notice or knowledge of
any action, suit or proceeding pending or threatened against or
affecting it at law or in equity or before or by any governmental
department, court, commission, board, bureau, agency or
instrumentality, domestic or foreign, or before any arbitrator of any
kind that would, if adversely determined, have a Material Adverse
Effect.
14. Covenants. The Guarantor hereby covenants and agrees with HRP that, from and
after the date of this Guaranty until the Obligations are paid in full and all
CCA Documents have been terminated:
(a) Notices. The Guarantor shall promptly give notice to HRP of any
event which will, or that may reasonably be expected to, result in a material
adverse change in the financial condition or operation of the Guarantor and its
Subsidiaries taken as a whole.
(b) Financial Statements. The Guarantor shall furnish the following
statements to HRP:
(i) within sixty (60) days after each of the first three
quarters of any Fiscal Year, the Consolidated Financials for such
fiscal quarter, in each case accompanied by the Financial Officer's
Certificate;
(ii) within one hundred twenty (120) days after the end of
each Fiscal Year, the Consolidated Financials for such Fiscal Year, in
each case certified by Peat Marwick LLP or any other independent
certified public accountant of national reputation, and accompanied by
the Financial Officer's Certificate;
(iii) promptly after the sending or filing thereof, copies of
all reports which the Guarantor sends to its security holders
generally, and copies of all periodic reports which the Guarantor files
with the SEC or any stock exchange on which its shares are listed or
traded;
(iv) at any time and from time to time upon not less than
thirty (30) days notice from HRP, the Guarantor will furnish to HRP any
Consolidated Financials or any other financial reporting information
required to be filed by HRP with any securities and exchange
commission, the SEC or any successor agency, or any other governmental
authority, or required pursuant to any order issued by any court
governmental authority or arbitrator in any litigation to which HRP is
a party, for purposes of compliance therewith; and
(v) promptly upon notice from HRP, such other information
concerning the business, financial condition and affairs of the
Guarantor as HRP may reasonably request from time to time.
HRP may at any time, and from time to time, provide any lender to HRP with
copies of any of the foregoing statements (provided that HRP shall obtain the
prior consent of the Guarantor (which shall not be unreasonably withheld) prior
to furnishing to such lender copies of any of the foregoing furnished to HRP
pursuant to subparagraph (v) above that is known to HRP to contain non-public
information).
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(c) Reports. The Guarantor shall promptly provide to HRP such
certificates, reports and other documents required of the Guarantor hereunder
and under the CCA Documents, and the Guarantor shall cause each CCA Company to
provide such certificates, reports and other documents required of it hereunder
and under the CCA Documents.
(d) Legal Existence. The Guarantor shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence (subject as provided in Section 14.(f) hereof).
(e) Compliance. The Guarantor shall , and shall cause each of its
Subsidiaries to, comply in all material respects with all Applicable Laws in
respect of the conduct of its business and the ownership of its property
(including, without limitation, applicable statutes, rules, regulations, orders
and restrictions relating to environmental, safety and other similar standards
or controls), except where the failure to comply, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
(f) Merger; Sale of Assets, Etc. The Guarantor shall not enter into any
transaction of merger or consolidation, or liquidate, wind-up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease, sub-lease,
transfer or otherwise dispose of in one transaction or a series of transactions,
all or substantially all of its business, property or fixed assets, whether now
owned or hereafter acquired, except that the Guarantor may merge or consolidate
with any Person, or convey, transfer or lease substantially all of its assets so
long as:
(i) no condition or event shall exist, either before or
immediately after giving effect to such merger or consolidation, or
such conveyance, transfer or lease, that constitutes an Event of
Default under and as defined in the Master Lease or any Mortgage
included in the CCA Documents or that, with the giving of notice or
lapse of time or both would become such an Event of Default;
(ii) the successor formed by such consolidation or the
survivor of such merger or the Person that acquires by conveyance,
transfer or lease substantially all of the assets of the Guarantor, as
the case may be, shall be a corporation organized and existing under
the laws of the United States or any State thereof (including the
District of Columbia), and, if the Guarantor is not such corporation,
(i) such corporation shall have executed and delivered to HRP its
assumption of the due and punctual performance and observance of each
covenant and condition of this Guaranty to the same extent and with the
same effect as though such corporation was a party hereto and was named
and defined as the "Guarantor" herein and (ii) shall have caused to be
delivered to HRP an opinion of nationally recognized independent
counsel, or other independent counsel reasonably satisfactory to HRP,
to the effect that all agreements or instruments effecting such
assumption are enforceable in accordance with their terms and comply
with the terms hereof; and
(1) if the survivor of any such merger is the Guarantor,
the consolidated net worth of the Guarantor and its
Subsidiaries (determined in accordance with GAAP)
giving effect to such merger shall not be less than
$300,000,000; or
(2) if the successor formed by such consolidation or the
survivor of such merger, if other than the Guarantor,
or the Person that acquires by conveyance, transfer
or lease substantially all of the assets of the
Guarantor as an entirety, as the case may be, giving
effect to such consolidation or merger, or such
conveyance,
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transfer or lease, has a consolidated net worth
(determined in accordance with GAAP) of not less than
$300,000,000.
(g) Net Worth. From and after the date that any Person, or two or more
Persons acting in concert, shall acquire beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission) of 30% or more,
or rights, options or warrants to acquire 30% or more, of the outstanding shares
of voting stock of the Guarantor, the Guarantor shall not permit the
consolidated net worth of the Guarantor and its Subsidiaries (determined in
accordance with GAAP) to be less than $300,000,000 at any time.
15. Severability. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
16. Additional Guaranties. This Guaranty shall be in addition to any other
guaranty or other security for the Obligations, and it shall not be prejudiced
or rendered unenforceable by the invalidity of any such other guaranty or
security.
17. Paragraph Headings. The paragraph headings used in this Guaranty are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
18. No Waiver; Cumulative Remedies, Documentation of Expenses. HRP shall not by
any act (except by a written instrument pursuant to Paragraph 19 hereof), delay,
indulgence, omission or otherwise, be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of HRP, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by HRP of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which HRP would otherwise have on any future occasion. The
rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
19. Waivers and Amendments; Successors and Assigns. None of the terms or
provisions of this Guaranty may be waived, amended, supplemented or otherwise
modified except by a written instrument executed by the Guarantor and HRP,
provided that any provision of this Guaranty may be waived by HRP in a letter or
agreement executed by HRP or by telecopy from HRP. This Guaranty shall be
binding upon the successors and assigns of the Guarantor and shall inure to the
benefit of HRP and its successors and assigns.
20. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION; GOVERNING LAW. THE GUARANTOR
HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY NOW OR HEREAFTER HAVE TO A JURY TRIAL
IN ANY SUIT, ACTION OR PROCEEDING WHICH ARISES OUT OF OR BY REASON OF THIS
GUARANTY, ANY CCA DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
BY ITS EXECUTION AND DELIVERY OF THIS GUARANTY, THE GUARANTOR (1)
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE COMMONWEALTH OF
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MASSACHUSETTS IN ANY ACTION, SUIT OR PROCEEDING OF ANY KIND AGAINST IT WHICH
ARISES OUT OF OR BY REASON OF THIS GUARANTY, ANY CCA DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ADDITION TO ANY OTHER COURT IN
WHICH SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT; (2) IRREVOCABLY AGREES TO
BE BOUND BY ANY JUDGMENT RENDERED BY ANY SUCH COURT IN ANY SUCH ACTION, SUIT OR
PROCEEDING IN WHICH IT SHALL HAVE BEEN SERVED WITH PROCESS IN THE MANNER
HEREINAFTER PROVIDED; (3) TO THE EXTENT THAT IT MAY LAWFULLY DO SO, WAIVES AND
AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN SUCH
ACTION, SUIT OR PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF SUCH COURT, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM
ATTACHMENT OR EXECUTION, THAT THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR THAT THE VENUE THEREOF IS IMPROPER; AND (4) AGREES THAT
PROCESS MAY BE SERVED UPON IT IN ANY SUCH ACTION, SUIT OR PROCEEDING IN THE
MANNER PROVIDED BY CHAPTER 223A OF THE GENERAL LAWS OF MASSACHUSETTS, RULE 4 OF
THE MASSACHUSETTS RULES OF CIVIL PROCEDURE OR RULE 4 OF THE FEDERAL RULES OF
CIVIL PROCEDURE.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
21. Notices. All notices under this Guaranty shall be in writing, and shall be
delivered by hand, by a nationally recognized commercial overnight delivery
service, by first class mail or by telecopy, delivered, addressed or
transmitted, if to HRP, at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: President (telecopy no. 617-332-2261), with a copy to Xxxxxxxx &
Worcester LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Xxxxx X. Xxxxxx, Esq. (telecopy no. 617-338-2880), and if to the Guarantor, at
its address or telecopy number set out below its signature in this Guaranty.
Such notices shall be effective: in the case of hand deliveries, when received;
in the case of an overnight delivery service, on the next business day after
being placed in the possession of such delivery service, with delivery charges
prepaid; in the case of mail, three days after deposit in the postal system,
first class postage prepaid; and in the case of telecopy notices, when
electronic indication of receipt is received. Either party may change its
address and telecopy number by written notice to the other delivered in
accordance with the provisions of this Section.
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty
to be duly executed and delivered as of the date first above written.
INTEGRATED HEALTH SERVICES, INC.
By /s/
Name:
Title:
Address for Notices:
Integrated Health Services, Inc.
00000 Xxx Xxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Executive Vice President--Finance
Fax: 000-000-0000
Signature page to Guaranty by Integrated Health Services, Inc.
dated as of September 24, 1997.
