UNCONDITIONAL GUARANTY OF LEASE
THIS UNCONDITIONAL GUARANTY OF LEASE (this "Guaranty") dated as of this
30th day of November, 1996, is given by SUN HEALTHCARE GROUP, INC., a Delaware
corporation ("Guarantor") to WASHINGTON ASSOCIATES, an Illinois limited
partnership ("Lessor").
I
RECITALS
1.1 DESCRIPTION OF LEASE. Lessor and Sunrise Healthcare Corporation, a
New Mexico corporation ("Lessee"), having entered into that certain Lease of
even date herewith (the "Lease") of the nursing home facility commonly known as
Blue Mountain Convalescent Center located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx
Xxxxx, Xxxxxxxxxx.
1.2 INDUCEMENT. Guarantor is the sole shareholder of Lessee, and
accordingly, Guarantor hereby acknowledges that the Lease will economically
benefit Guarantor.
II
THE GUARANTY
2.1 GUARANTY. Guarantor hereby absolutely and unconditionally guarantees:
(a) The prompt payment of each installment of fixed annual rent and
Additional Rent (as defined in the Lease) when and as the same become due under
the terms of the Lease;
(b) The prompt payment of all other sums payable by Lessee to Lessor
or any other person under the terms of the Lease including, without limitation,
tax and any other deposits required under the terms of the Lease and damages due
to default of Lessee under the Lease; and
(c) The full and timely performance of each and every other
obligation of Lessee under the Lease;
for which Guarantor shall be jointly and severally liable with Lessee (the items
described in clauses (a), (b) and (c) above are hereinafter referred to as the
"Guarantor's Obligations").
2.2 Guarantor absolutely and unconditionally covenants and agrees that, in
the event that Lessee is unable to, or does not, pay, perform or satisfy any of
the obligations or liabilities of Lessee under the Lease (the "Lessee's
Liabilities") in a full and timely manner, for any reason, including, without
limitation, the liquidation, dissolution, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition, or readjustment of, or other similar proceedings affecting, the
status, composition, identity, existence, assets or obligations of Lessee, or
the disaffirmance or termination of any of the Lessee's Liabilities in or as a
result of any such proceedings, Guarantor shall pay, perform or satisfy the
Lessee's Liabilities and that no such occurrence shall in any way reduce or
affect the Guarantor's Obligations hereunder. Upon the occurrence of a default
in the prompt payment, timely performance and satisfaction in full of Lessee's
Liabilities, all of the Guarantor's Obligations shall, at the election of
Lessor, become immediately due and payable, provided, however, that nothing
herein shall be construed as granting Lessor any greater rights or remedies
against Guarantor as a result of a breach by Lessee of its obligations under the
Lease than Lessor has against Lessee as a result thereof under the terms of the
Lease.
2.3 Guarantor shall be directly and primarily liable, jointly and
severally with Lessee, for all of the foregoing. Lessor's rights under this
Guaranty shall be exercisable by action against Guarantor or joined with any
action against Lessee. Lessor need not proceed against Lessee as security for
Lessee's Liabilities or exhaust its remedies against Lessee or exercise any of
the other remedies available to Lessor under the Lease, prior to, concurrently
with or after proceeding against Guarantor to collect the full amount of the
Guarantor's Obligations hereunder. In the event that Lessor may have collected
all or any part of Lessee's Liabilities and a claim for repayment of all or any
part thereof is made against Lessor, the liability of Guarantor hereunder as to
the amount so collected but subject to such claim shall not be discharged or
affected.
III
OTHER PROVISIONS
3.1 ACTIONS BY LESSOR NOT TO AFFECT LIABILITY. The liability of Guarantor
hereunder shall not be affected by:
(a) The renewal, extension, modification or termination of the Lease
by lapse of time or otherwise (all of which are hereby authorized by Guarantor)
or a release or limitation of the liability of Lessee or Lessee's estate under
the Lease in any bankruptcy or insolvency proceeding;
(b) Any extension in the time for making any payment due under the
Lease or acceptance of partial payment or performance from Lessee;
(c) The acceptance or release by Lessor of any additional security
for the performance of Lessee's obligations under the Lease;
(d) The failure during any period of time whatsoever of Lessor to
attempt to collect any amount due under the Lease from Lessee or to exercise any
remedy available under such Lease or any other security instrument given as
security for performance of the same, in the event of a default in the
performance by Lessee of the terms of the Lease;
(e) Lessor's consent to any assignment or successive assignments of
the Lease, or any subletting or successive subletting of the Demised Premises
(as defined in the Lease);
(f) Any assignment or successive assignments of Lessor's interest
under the Lease (whether absolute or as collateral);
(g) Lessor's consent to any changed, expanded or different use of any
or all of the Demised Premises;
(h) The assertion by Lessor against Lessee of any rights or remedies
reserved or granted to Lessor under the Lease, including the commencement by
Lessor of any proceedings against Lessee; or
(i) Any dealings, transactions or other matter occurring between
Lessor and Lessee;
whether or not Guarantor shall have knowledge or have been notified of or agreed
to any of the foregoing.
3.2 WAIVERS. Guarantor hereby expressly waives:
(a) Notice of acceptance of this Guaranty;
(b) Presentment, demand, notice of dishonor, protest and notice of
protest, and all other
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notices whatsoever, including, without limitation, notice of any event or
matter described in Section 3.1 hereof;
(c) Any and all claims or defenses based upon lack of diligence in:
(i) collection of any amount the payment of which is guaranteed
hereby;
(ii) protection of any collateral or other security for the
Lease;
(iii) realization upon any other security given for the
Lease; or
(iv) the discharge, liquidation or reorganization of Lessee in
bankruptcy or the rejection of the Lease by Lessee or a trustee in bankruptcy.
(d) Any and all defenses of suretyship;
3.3 NATURE OF REMEDIES. No delay or omission on the part of Lessor in the
exercise of any right or remedy hereunder shall operate as a waiver thereof.
All remedies of Lessor hereunder shall be in addition to, and exercisable
consecutively or concurrently in any combination with, any and all remedies
available to Lessor by operation of law or under the Lease, and Lessor may
exercise its remedies hereunder without the necessity of any notice to Lessee or
Guarantor of nonpayment, nonobservance, nonperformance or other default by
Lessee under the Lease.
3.4 COSTS OF COLLECTION. Notwithstanding any provision of this Guaranty
to the contrary, in the event of the enforcement or interpretation of this
Guaranty the prevailing party shall be entitled to collect its costs of
collection, including, without limitation, reasonable attorneys' fees.
3.5 MECHANIC'S LIENS OR OTHER LIENS. Notwithstanding any provision of
this Guaranty to the contrary, in the event that any mechanic's liens, laborer's
and/or materialman's claims (collectively, the "Mechanic's Liens") are filed
against the Leased Property (as defined in the Lease), or any part thereof, and
not paid or discharged by Lessee in accordance with the terms of the Lease, or
the Guarantor does not either (i) deposit with Lessor such security as may be
reasonably demanded by Lessor to protect against such lien, or (ii) post a
release bond in form and amount as required by applicable law and as otherwise
satisfactory to Lessor, Lessor shall be entitled pursuant to this Guaranty to
collect from Guarantor from and after the expiration or earlier termination of
the Lease, the total aggregate amount of such unpaid or undischarged Mechanic's
Liens.
3.6 SUBORDINATION OF RIGHTS OF SUBROGATION. Guarantor's rights of
subrogation, shall be subordinated to the rights of Lessor under the Lease and
the performance by Guarantor of the Lessee's Liabilities hereunder, and until
such performance of Lessee's Liabilities, Guarantor shall have no such right of
subrogation. Guarantor's execution and performance under this Guaranty shall
not, however, waive Guarantor's rights of subrogation to proceed against Lessee
following Guarantor's satisfaction and performance of Lessee's Liabilities.
3.7 ASSIGNMENT. This Guaranty shall not be assignable by Guarantor but
shall be binding upon the successors to and legal representatives of Guarantor.
This Guaranty shall be assignable by Lessor and shall inure to the benefit of
its successors and assigns.
3.8 GOVERNING LAW. Consent to Jurisdiction. This Guaranty shall be
governed by, and construed in accordance with, the laws of the State of
Illinois. To induce Lessor to accept this Guaranty, Guarantor irrevocably
agrees that, subject to lessor's sole and absolute election, ALL ACTIONS OR
PROCEEDINGS IN ANY WAY, MANNER OR RESPECT, ARISING OUT OF OR FROM OR RELATED TO
THIS GUARANTY, SHALL BE LITIGATED IN COURTS HAVING SITUS WITHIN THE CITY OF
CHICAGO, STATE OF ILLINOIS. GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID CITY AND
STATE AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE
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MADE BY REGISTERED MAIL DIRECTED TO GUARANTOR AT THE ADDRESS STATED ON THE
SIGNATURE PAGE HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
UPON ACTUAL RECEIPT THEREOF.
3.9 SEVERABILITY. If any term, restriction or covenant of this Guaranty
is deemed illegal or unenforceable, all other terms, restrictions and
circumstances subject hereto shall remain unaffected to the extent permitted by
law; and if any application of any term, restriction or covenant to any person
or circumstances is deemed illegal, the application of such term, restriction or
covenant to other persons and circumstances shall remain unaffected to the
extent permitted by law.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the
day and year first above written.
SUN HEALTHCARE GROUP, INC., a Delaware corporation
By:
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Name:
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Title:
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Address:
000 Xxx Xxxx XX
Xxxxxxxxxxx, XX 00000
Attention: Mr. Xxxxxx Xxxxxx
with copies to:
000 Xxx Xxxx XX
Xxxxxxxxxxx, XX 00000
Attention: Law Department
General Counsel
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