EXHIBIT 10.2.3
GUARANTY OF RECOURSE OBLIGATIONS
THIS GUARANTY (as amended, restated, replaced, supplemented or
otherwise modified from time to time, this "Guaranty") is executed as of
November 1, 2002 by THOSE ENTITIES LISTED ON SCHEDULE II attached hereto (each,
a "Guarantor" and collectively the, "Guarantors"), for the benefit of VENTAS
REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership (together with its
successors and assigns, "Lender").
W I T N E S S E T H
WHEREAS, pursuant to that certain Promissory Note, dated of even date
herewith, executed by the entities listed on Schedule I attached hereto, each a
Delaware limited liability company (each, a "Borrower" and collectively, the
"Borrowers") and payable to the order of Lender in the maximum principal amount
of Fifty Five Million and No/100 Dollars ($55,000,000) (together with all
renewals, modifications, increases and extensions thereof, the "Note"), the
Borrowers have become indebted, and may from time to time be further indebted,
to Lender with respect to a loan (the "Loan") which is made pursuant to that
certain Loan Agreement, dated of even date herewith, between the Borrowers and
Lender (as amended, restated, replaced, supplemented or otherwise modified from
time to time, the "Loan Agreement");
WHEREAS, Lender is not willing to make the Loan, or otherwise extend
credit, to the Borrowers unless each Guarantor unconditionally guarantees
payment and performance to Lender of the Guaranteed Obligations (as herein
defined); and
WHEREAS, the Guarantors are the owners of a direct or indirect
interest in the Borrowers, and will directly benefit from Lender's making the
Loan to the Borrowers.
NOW, THEREFORE, as an inducement to Lender to make the Loan to the
Borrowers and to extend such additional credit as Lender may from time to time
agree to extend under the Loan Documents, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
ARTICLE I - NATURE AND SCOPE OF GUARANTY
Section 1.1 Guaranty of Obligations. Each Guarantor hereby irrevocably
and unconditionally guarantees to Lender and its successors and assigns the
payment and performance of the Guaranteed Obligations as and when the same shall
be due and payable, whether by lapse of time, by acceleration of maturity or
otherwise. Each Guarantor hereby irrevocably and unconditionally covenants and
agrees that it is liable for the Guaranteed Obligations as a primary obligor.
Section 1.2 Definition of Guaranteed Obligations. As used herein, the
term "Guaranteed Obligations" means the obligations or liabilities of any
Borrower to Lender for
any loss, damage, cost, expense, liability, claim or other obligation incurred
by Lender (including attorneys' fees and costs reasonably incurred) arising out
of or in connection with the following:
(a) fraud or intentional misrepresentation by any Borrower or any
Guarantor in connection with the Loan;
(b) the gross negligence or willful misconduct by any Borrower;
(c) the breach of any representation, warranty, covenant or
indemnification provision in the Environmental Indemnity concerning
environmental laws, hazardous substances and asbestos and any
indemnification of Lender with respect thereto contained in the
Environmental Indemnity;
(d) the removal or disposal of any portion of the Properties
after an Event of Default;
(e) the misapplication or conversion by any Borrower of (i) any
insurance proceeds paid by reason of any loss, damage or destruction to the
Properties, (ii) any Awards or other amounts received in connection with
the Condemnation of all or a portion of the Properties or (iii) any Rents;
(f) failure to pay charges for labor or materials or other
charges that can create Liens on any portion of the Properties;
(g) any security deposits, advance deposits or other deposits
collected with respect to the Properties which are not delivered to Lender
upon a foreclosure of the Properties or action in lieu thereof, except to
the extent any such security deposits were applied in accordance with the
terms and conditions of any of the Leases prior to the occurrence of the
Event of Default that gave rise to such foreclosure or action in lieu
thereof;
(h) the breach by any Borrower of its indemnification obligations
set forth in Section 9.2 of the Loan Agreement; and
(i) the failure to deposit all Rents into the Cash Management
Account as required by the Loan Agreement.
Notwithstanding anything to the contrary in any of the Loan Documents,
(i) Lender shall not be deemed to have waived any right which Lender may have
under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy
Code to file a claim for the full amount of the Debt or to require that all
collateral shall continue to secure all of the Debt owing to Lender in
accordance with the Loan Documents and (ii) each Guarantor shall be liable for
the full amount of the Debt (1) prior to a Securitization and (2) in the event
that: (A) any Borrower fails to permit on-site inspections of any Property,
fails to provide financial information, fails to maintain its status as a
Single-Purpose Entity or fails to appoint a new property manager or new Operator
upon the request of Lender after an Event of Default or other event that would
give rise to the right of Lender to request such Borrower to appoint a new
property manager or new Operator, each as required by, and in accordance with
the terms and
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provisions of, the Loan Documents; (B) any Borrower fails to obtain Lender's
prior written consent to any subordinate financing, mezzanine financing or other
voluntary lien encumbering any Property; (C) any Borrower fails to obtain
Lender's prior written consent to any Transfer to the extent such consent is
required in the Loan Agreement or any Mortgage; (D) any Borrower files a
voluntary petition under the Bankruptcy Code or any other Federal or state
bankruptcy or insolvency law; (E) any Affiliate, officer, director, or
representative which controls, directly or indirectly, any Borrower files, or
joins in the filing of, an involuntary petition against such Borrower under the
Bankruptcy Code or any other Federal or state bankruptcy or insolvency law, or
solicits or causes to be solicited petitioning creditors for any involuntary
petition against such Borrower from any Person; (F) any Borrower files an answer
consenting to or otherwise acquiescing in or joining in any involuntary petition
filed against it, by any other Person under the Bankruptcy Code or any other
Federal or state bankruptcy or insolvency law, or solicits or causes to be
solicited petitioning creditors for any involuntary petition from any Person;
(G) any Affiliate, officer, director, or representative which controls any
Borrower consents to or acquiesces in or joins in an application for the
appointment of a custodian, receiver, trustee, or examiner for such Borrower or
any portion of the Properties; or (H) any Borrower makes an assignment for the
benefit of creditors, or admits, in writing or in any legal proceeding, its
insolvency or inability to pay its debts as they become due.
Section 1.3 Nature of Guaranty. This Guaranty is an irrevocable,
absolute, continuing guaranty of payment and performance and not a guaranty of
collection. This Guaranty may not be revoked by any Guarantor and shall continue
to be effective with respect to any Guaranteed Obligations arising or created
after any attempted revocation by any Guarantor and after (if a Guarantor is a
natural person) such Guarantor's death (in which event this Guaranty shall be
binding upon such Guarantor's estate and such Guarantor's legal representatives
and heirs). The fact that at any time or from time to time the Guaranteed
Obligations may be increased or reduced shall not release or discharge the
obligation of any Guarantor to Lender with respect to the Guaranteed
Obligations. This Guaranty may be enforced by Lender and any subsequent holder
of the Note and shall not be discharged by the assignment or negotiation of all
or part of the Note.
Section 1.4 Guaranteed Obligations Not Reduced by Offset. The
Guaranteed Obligations and the liabilities and obligations of each Guarantor to
Lender hereunder shall not be reduced, discharged or released because or by
reason of any existing or future offset, claim or defense of any Borrower or any
other party against Lender or against payment of the Guaranteed Obligations,
whether such offset, claim or defense arises in connection with the Guaranteed
Obligations (or the transactions creating the Guaranteed Obligations) or
otherwise.
Section 1.5 Payment by Guarantor. If all or any part of the Guaranteed
Obligations shall not be punctually paid when due, whether at demand, maturity,
acceleration or otherwise, each Guarantor shall, immediately upon demand by
Lender and without presentment, protest, notice of protest, notice of
non-payment, notice of intention to accelerate the maturity, notice of
acceleration of the maturity or any other notice whatsoever, pay in lawful money
of the United States of America, the amount due on the Guaranteed Obligations to
Lender at Lender's address as set forth herein. Such demand(s) may be made at
any time coincident with or after the time for payment of all or part of the
Guaranteed Obligations and may be made from time to time
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with respect to the same or different items of Guaranteed Obligations. Such
demand shall be deemed made, given and received in accordance with the notice
provisions hereof.
Section 1.6 No Duty to Pursue Others. It shall not be necessary for
Lender (and each Guarantor hereby waives any rights which it may have to require
Lender), in order to enforce the obligations of each Guarantor hereunder, first
to (i) institute suit or exhaust its remedies against any Borrower or others
liable on the Loan or the Guaranteed Obligations or any other person, (ii)
enforce Lender's rights against any collateral which shall ever have been given
to secure the Loan, (iii) enforce Lender's rights against any other guarantors
of the Guaranteed Obligations, (iv) join any Borrower or any others liable on
the Guaranteed Obligations in any action seeking to enforce this Guaranty, (v)
exhaust any remedies available to Lender against any collateral which shall ever
have been given to secure the Loan, or (vi) resort to any other means of
obtaining payment of the Guaranteed Obligations. Lender shall not be required to
mitigate damages or take any other action to reduce, collect or enforce the
Guaranteed Obligations.
Section 1.7 Waivers. Each Guarantor agrees to the provisions of the
Loan Documents and hereby waives notice of (i) any loans or advances made by
Lender to any Borrower, (ii) acceptance of this Guaranty, (iii) any amendment,
modification, replacement or extension of the Note, the Mortgages, the Loan
Agreement or of any other Loan Documents, (iv) the execution and delivery by any
Borrower and Lender of any other loan or credit agreement or of any Borrower's
execution and delivery of any promissory notes or other documents arising under
the Loan Documents or in connection with any of the Properties, (v) the
occurrence of any breach by any Borrower or an Event of Default, (vi) Lender's
transfer or disposition of the Guaranteed Obligations, or any part thereof,
(vii) sale or foreclosure (or posting or advertising for sale or foreclosure) of
any collateral for the Guaranteed Obligations, (viii) protest, proof of
non-payment or default by any Borrower, or (ix) any other action at any time
taken or omitted by Lender and, generally, all demands and notices of every kind
in connection with this Guaranty, the Loan Documents, any documents or
agreements evidencing, securing or relating to any of the Guaranteed Obligations
and the obligations hereby guaranteed.
Section 1.8 Payment of Expenses. In the event that any Guarantor
should breach or fail to timely perform any provisions of this Guaranty, each
Guarantor shall, immediately upon demand by Lender, pay Lender all costs and
expenses (including court costs and attorneys' fees) incurred by Lender in the
enforcement hereof or the preservation of Lender's rights hereunder. The
covenant contained in this Section shall survive the payment and performance of
the Guaranteed Obligations.
Section 1.9 Effect of Bankruptcy. In the event that pursuant to any
insolvency, bankruptcy, reorganization, receivership or other debtor relief law
or any judgment, order or decision thereunder, Lender must rescind or restore
any payment or any part thereof received by Lender in satisfaction of the
Guaranteed Obligations, as set forth herein, any prior release or discharge from
the terms of this Guaranty given to any Guarantor by Lender shall be without
effect and this Guaranty shall remain in full force and effect. It is the
intention of each Borrower and each Guarantor that each Guarantor's obligations
hereunder shall not be discharged except by performance of such obligations and
then only to the extent of such performance.
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Section 1.10 Waiver of Subrogation, Reimbursement and Contribution.
Notwithstanding anything to the contrary contained in this Guaranty, unless and
until the indefeasible payment and satisfaction in full of all of the Guaranteed
Obligations, each Guarantor hereby unconditionally and irrevocably waives,
releases and abrogates any and all rights it may now or hereafter have under any
agreement, at law or in equity (including, without limitation, any law
subrogating such Guarantor to the rights of Lender), to assert any claim against
or seek contribution, indemnification or any other form of reimbursement from
any Borrower or any other party liable for payment of any or all of the
Guaranteed Obligations for any payment made by such Guarantor under or in
connection with this Guaranty or otherwise.
Section 1.11 Borrower. The term "Borrower" as used herein shall
include any new or successor corporation, association, partnership (general or
limited), limited liability company joint venture, trust or other individual or
organization formed as a result of any merger, reorganization, sale, transfer,
devise, gift or bequest of any Borrower or any interest in any Borrower.
ARTICLE II - EVENTS AND CIRCUMSTANCES NOT
REDUCING OR DISCHARGING GUARANTOR'S OBLIGATIONS
Section 2.1 Events and Circumstances Not Reducing or Discharging
Guarantor's Obligations. Each Guarantor hereby consents and agrees to each of
the following and agrees that its obligations under this Guaranty shall not be
released, diminished, impaired, reduced or adversely affected by any of the
following and waives any common law, equitable, statutory or other rights
(including without limitation rights to notice) which it might otherwise have as
a result of or in connection with any of the following:
(a) Modifications. Any renewal, extension, increase,
modification, alteration or rearrangement of all or any part of the
Guaranteed Obligations, the Note, the Mortgages, the Loan Agreement, the
other Loan Documents or any other document, instrument, contract or
understanding between any Borrower and Lender or any other parties
pertaining to the Guaranteed Obligations or any failure of Lender to notify
any Guarantor of any such action.
(b) Adjustment. Any adjustment, indulgence, forbearance or
compromise that might be granted or given by Lender to any Borrower or any
Guarantor.
(c) Condition of Borrower or Guarantor. The insolvency,
bankruptcy, arrangement, adjustment, composition, liquidation, disability,
dissolution or lack of power of any Borrower, any Guarantor or any other
party at any time liable for the payment of all or part of the Guaranteed
Obligations; or any dissolution of any Borrower or any Guarantor or any
sale, lease or transfer of any or all of the assets of any Borrower or any
Guarantor or any changes in the shareholders, partners or members of any
Borrower or any Guarantor; or any reorganization of any Borrower or any
Guarantor.
(d) Invalidity of Guaranteed Obligations. The invalidity,
illegality or unenforceability of all or any part of the Guaranteed
Obligations or any document or agreement executed in connection with the
Guaranteed Obligations for any reason
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whatsoever, including without limitation the fact that (i) the Guaranteed
Obligations or any part thereof exceeds the amount permitted by law, (ii)
the act of creating the Guaranteed Obligations or any part thereof is ultra
xxxxx, (iii) the officers or representatives executing the Note, the
Mortgages, the Loan Agreement or the other Loan Documents or otherwise
creating the Guaranteed Obligations acted in excess of their authority,
(iv) the Guaranteed Obligations violate applicable usury laws, (v) any
Borrower has valid defenses, claims or offsets (whether at law, in equity
or by agreement) which render the Guaranteed Obligations wholly or
partially uncollectible from such Borrower, (vi) the creation, performance
or repayment of the Guaranteed Obligations (or the execution, delivery and
performance of any document or instrument representing part of the
Guaranteed Obligations or executed in connection with the Guaranteed
Obligations or given to secure the repayment of the Guaranteed Obligations)
is illegal, uncollectible or unenforceable, or (vii) the Note, the
Mortgages, the Loan Agreement or any of the other Loan Documents have been
forged or otherwise are irregular or not genuine or authentic, it being
agreed that each Guarantor shall remain liable hereon regardless of whether
any Borrower or any other person be found not liable on the Guaranteed
Obligations or any part thereof for any reason.
(e) Release of Obligors. Any full or partial release of the
liability of any Borrower on the Guaranteed Obligations or any part
thereof, or of any co-guarantors, or any other Person now or hereafter
liable, whether directly or indirectly, jointly, severally, or jointly and
severally, to pay, perform, guarantee or assure the payment of the
Guaranteed Obligations, or any part thereof, it being recognized,
acknowledged and agreed by each Guarantor that it may be required to pay
the Guaranteed Obligations in full without assistance or support of any
other party, and each Guarantor has not been induced to enter into this
Guaranty on the basis of a contemplation, belief, understanding or
agreement that other parties will be liable to pay or perform the
Guaranteed Obligations, or that Lender will look to other parties to pay or
perform the Guaranteed Obligations.
(f) Other Collateral. The taking or accepting of any other
security, collateral or guaranty, or other assurance of payment, for all or
any part of the Guaranteed Obligations.
(g) Release of Collateral. Any release, surrender, exchange,
subordination, deterioration, waste, loss or impairment (including without
limitation negligent, willful, unreasonable or unjustifiable impairment) of
any collateral, property or security at any time existing in connection
with, or assuring or securing payment of, all or any part of the Guaranteed
Obligations.
(h) Care and Diligence. The failure of Lender or any other party
to exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of any
collateral, property or security, including but not limited to any neglect,
delay, omission, failure or refusal of Lender (i) to take or prosecute any
action for the collection of any of the Guaranteed Obligations or (ii) to
foreclose, or initiate any action to foreclose, or, once commenced,
prosecute to completion any action to foreclose upon any security therefor,
or (iii) to take or prosecute
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any action in connection with any instrument or agreement evidencing or
securing all or any part of the Guaranteed Obligations.
(i) Unenforceability. The fact that any collateral, security,
security interest or lien contemplated or intended to be given, created or
granted as security for the repayment of the Guaranteed Obligations, or any
part thereof, shall not be properly perfected or created, or shall prove to
be unenforceable or subordinate to any other security interest or lien, it
being recognized and agreed by each Guarantor that it is not entering into
this Guaranty in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectibility or value of any of the collateral
for the Guaranteed Obligations.
(j) Offset. The Note, the Guaranteed Obligations and the
liabilities and obligations of each Guarantor to Lender hereunder shall not
be reduced, discharged or released because of or by reason of any existing
or future right of offset, claim or defense of any Borrower against Lender,
or any other party, or against payment of the Guaranteed Obligations,
whether such right of offset, claim or defense arises in connection with
the Guaranteed Obligations (or the transactions creating the Guaranteed
Obligations) or otherwise.
(k) Merger. The reorganization, merger or consolidation of any
Borrower into or with any other Person.
(l) Preference. Any payment by any Borrower to Lender is held to
constitute a preference under bankruptcy laws or for any reason Lender is
required to refund such payment or pay such amount to any Borrower or
someone else.
(m) Other Actions Taken or Omitted. Any other action taken or
omitted to be taken with respect to the Loan Documents, the Guaranteed
Obligations, or the security and collateral therefor, whether or not such
action or omission prejudices any Guarantor or increases the likelihood
that any Guarantor will be required to pay the Guaranteed Obligations
pursuant to the terms hereof, it is the unambiguous and unequivocal
intention of each Guarantor that it shall be obligated to pay the
Guaranteed Obligations when due, notwithstanding any occurrence,
circumstance, event, action, or omission whatsoever, whether contemplated
or uncontemplated, and whether or not otherwise or particularly described
herein, which obligation shall be deemed satisfied only upon the full and
final payment and satisfaction of the Guaranteed Obligations.
ARTICLE III - REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties. To induce Lender to enter
into the Loan Documents and extend credit to the Borrowers, each Guarantor
represents and warrants to Lender as follows:
(a) Benefit. Guarantor is an Affiliate of the Borrowers, is the
owner of a direct or indirect interest in the Borrowers, and has received,
or will receive, direct or
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indirect benefit from the making of this Guaranty with respect to the
Guaranteed Obligations.
(b) Familiarity and Reliance. Guarantor is familiar with, and has
independently reviewed books and records regarding, the financial condition
of each Borrower and is familiar with the value of any and all collateral
intended to be created as security for the payment of the Note or
Guaranteed Obligations; however, Guarantor is not relying on such financial
condition or the collateral as an inducement to enter into this Guaranty.
(c) No Representation by Lender. Neither Lender nor any other
party has made any representation, warranty or statement to Guarantor in
order to induce Guarantor to execute this Guaranty.
(d) Guarantor's Financial Condition. As of the date hereof, and
after giving effect to this Guaranty and the contingent obligation
evidenced hereby, Guarantor is and will be solvent and has and will have
assets which, fairly valued, exceed its obligations, liabilities (including
contingent liabilities) and debts, and has and will have property and
assets sufficient to satisfy and repay its obligations and liabilities.
(e) Legality. The execution, delivery and performance by
Guarantor of this Guaranty and the consummation of the transactions
contemplated hereunder do not and will not contravene or conflict with any
law, statute or regulation whatsoever to which Guarantor is subject or
constitute a default (or an event which with notice or lapse of time or
both would constitute a default) under, or result in the breach of, any
indenture, mortgage, charge, lien, or any contract, agreement or other
instrument to which Guarantor is a party or which may be applicable to
Guarantor. This Guaranty is a legal and binding obligation of Guarantor and
is enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors' rights.
(f) Survival. All representations and warranties made by
Guarantor herein shall survive the execution hereof.
ARTICLE IV - SUBORDINATION OF CERTAIN INDEBTEDNESS
Section 4.1 Subordination of All Guarantor Claims. As used herein, the
term "Guarantor Claims" shall mean all debts and liabilities of any Borrower to
any Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligations of any Borrower thereon be direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such debts or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by any Guarantor. The Guarantor Claims shall include without
limitation all rights and claims of any Guarantor against any Borrower (arising
as a result of subrogation or otherwise) as a result of such Guarantor's payment
of all or a portion of the Guaranteed Obligations. After the occurrence of an
Event of
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Default or the occurrence of an event which would, with the giving of notice or
the passage of time, or both, constitute an Event of Default, no Guarantor shall
receive or collect, directly nor indirectly, from any Borrower or any other
party any amount upon the Guarantor Claims.
Section 4.2 Claims in Bankruptcy. In the event of receivership,
bankruptcy, reorganization, arrangement, debtor's relief, or other insolvency
proceedings involving any Guarantor as debtor, Lender shall have the right to
prove its claim in any such proceeding so as to establish its rights hereunder
and receive directly from the receiver, trustee or other court custodian
dividends and payments which would otherwise be payable upon Guarantor Claims.
Each Guarantor hereby assigns such dividends and payments to Lender. Should
Lender receive, for application against the Guaranteed Obligations, any dividend
or payment which is otherwise payable to any Guarantor and which, as between any
Borrower and such Guarantor, shall constitute a credit against the Guarantor
Claims, then, upon payment to Lender in full of the Guaranteed Obligations, such
Guarantor shall become subrogated to the rights of Lender to the extent that
such payments to Lender on the Guarantor Claims have contributed toward the
liquidation of the Guaranteed Obligations, and such subrogation shall be with
respect to that proportion of the Guaranteed Obligations which would have been
unpaid if Lender had not received dividends or payments upon the Guarantor
Claims.
Section 4.3 Payments Held in Trust. In the event that, notwithstanding
anything to the contrary in this Guaranty, any Guarantor should receive any
funds, payment, claim or distribution which is prohibited by this Guaranty, it
agrees to hold in trust for Lender an amount equal to the amount of all funds,
payments, claims or distributions so received, and agrees that it shall have
absolutely no dominion over the amount of such funds, payments, claims or
distributions so received except to pay them promptly to Lender, and it
covenants promptly to pay the same to Lender.
Section 4.4 Liens Subordinate. Each Guarantor agrees that any liens,
security interests, judgment liens, charges or other encumbrances upon any
Borrower's assets securing payment of the Guarantor Claims shall be and remain
inferior and subordinate to any liens, security interests, judgment liens,
charges or other encumbrances upon any Borrower's assets securing payment of the
Guaranteed Obligations, regardless of whether such encumbrances in favor of any
Guarantor or Lender presently exist or are hereafter created or attach. Without
the prior written consent of Lender, no Guarantor shall (i) exercise or enforce
any creditor's right it may have against any Borrower, or (ii) foreclose,
repossess, sequester or otherwise take steps or institute any action or
proceedings (judicial or otherwise, including without limitation the
commencement of, or joinder in, any liquidation, bankruptcy, rearrangement,
debtor's relief or insolvency proceeding) to enforce any liens, mortgage, deeds
of trust, security interests, collateral rights, judgments or other encumbrances
on assets of any Borrower held by it.
ARTICLE V - MISCELLANEOUS
Section 5.1 Waiver. No failure to exercise, and no delay in
exercising, on the part of Lender, any right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right. The rights of
Lender hereunder shall be in addition to all other rights provided by law. No
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modification or waiver of any provision of this Guaranty, nor consent to
departure therefrom, shall be effective unless in writing and no such consent or
waiver shall extend beyond the particular case and purpose involved. No notice
or demand given in any case shall constitute a waiver of the right to take other
action in the same, similar or other instances without such notice or demand.
Section 5.2 Notices. All notices, demands, requests, consents,
approvals or other communications (any of the foregoing, a "Notice") required,
permitted, or desired to be given hereunder shall be in writing sent by telefax
(with answer back acknowledged) or by registered or certified mail, postage
prepaid, return receipt requested, or delivered by hand or reputable overnight
courier addressed to the party to be so notified at its address hereinafter set
forth, or to such other address as such party may hereafter specify in
accordance with the provisions of this Section 5.2. Any Notice to any Guarantor
shall be deemed effective as to all Guarantors to the extent delivered to one
Guarantor; it being understood that Notice to all Guarantors shall not be
required if Notice is given to one Guarantor. Any Notice shall be deemed to have
been received: (a) three (3) days after the date such Notice is mailed, (b) on
the date of sending by telefax if sent during business hours on a Business Day
(otherwise on the next Business Day), (c) on the date of delivery by hand if
delivered during business hours on a Business Day (otherwise on the next
Business Day), and (d) on the next Business Day if sent by an overnight
commercial courier, in each case addressed to the parties as follows:
If to Lender: Ventas Realty, Limited Partnership
c/o Ventas, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile No. (000) 000-0000
with a copy to: Ventas Realty, Limited Partnership
c/o Ventas, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile No. (000) 000-0000
with a copy to: Dechert
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esquire
Facsimile No: (000) 000-0000
If to Guarantor: c/o Trans Healthcare, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile No. (000) 000-0000
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with a copy to: Xxxxxx Xxxxx & Xxxx, P.C.
0000 Xxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esquire
Facsimile No. (000)000-0000
Section 5.3 Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK AND
MADE BY EACH GUARANTOR AND ACCEPTED BY LENDER IN THE STATE OF NEW YORK, AND
THE PROCEEDS OF THE LOAN WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH
STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND
TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS GUARANTY AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND
ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT
PERMITTED BY LAW, EACH GUARANTOR HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS
THIS GUARANTY AND THE NOTE, AND THIS GUARANTY AND THE NOTE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR ANY
GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY AT LENDER'S
OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX,
XXXXXX XX XXX XXXX, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, AND EACH GUARANTOR WAIVES ANY OBJECTIONS WHICH IT MAY NOW
OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH
SUIT, ACTION OR PROCEEDING, AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING.
EACH GUARANTOR DOES HEREBY DESIGNATE AND APPOINT:
CT CORPORATION SYSTEM
000 XXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
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AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF
ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING
IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO GUARANTOR IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON GUARANTOR IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. EACH GUARANTOR (I) SHALL GIVE
PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT
HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE
AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT
AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS)
AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT
CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A
SUCCESSOR.
Section 5.4 Invalid Provisions. If any provision of this Guaranty is
held to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Guaranty, such provision shall be fully
severable and this Guaranty shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this Guaranty,
and the remaining provisions of this Guaranty shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Guaranty, unless such continued
effectiveness of this Guaranty, as modified, would be contrary to the basic
understandings and intentions of the parties as expressed herein.
Section 5.5 Amendments. This Guaranty may be amended only by an
instrument in writing executed by the party or an authorized representative of
the party against whom such amendment is sought to be enforced.
Section 5.6 Number and Gender/Successors and Assigns. All pronouns and
any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the person or persons referred to
may require. Without limiting the effect of specific references in any provision
of this Guaranty, the term "Guarantor" shall be deemed to refer to each and
every person comprising a Guarantor from time to time, as the sense of a
particular provision may require, and to include the heirs, executors,
administrators, legal representatives, successors and assigns of such Guarantor,
all of whom shall be bound by the provisions of this Guaranty, provided that no
obligation of any Guarantor may be assigned except with the written consent of
Lender. Without limiting the effect of specific references in any provision of
this Guaranty, the term "Borrower" shall be deemed to refer to each and every
person comprising a Borrower from time to time, as the sense of a particular
provision may require, and to include the heirs, executors, administrators,
legal representatives, successors and assigns of such Borrower. Each reference
herein to Lender shall be deemed to include its successors and assigns. This
Guaranty shall inure to the benefit of Lender and its respective successors and
assigns forever.
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Section 5.7 Headings, Etc. The headings and captions of various
paragraphs of this Guaranty are for the convenience of reference only and are
not to be construed as defining or limiting, in any way, the scope or intent of
the provisions hereof.
Section 5.8 Recitals. The recital and introductory paragraphs hereof
are a part hereof, form a basis for this Guaranty and shall be considered prima
facie evidence of the facts and documents referred to therein.
Section 5.9 Counterparts. To facilitate execution, this Guaranty may
be executed in as many counterparts as may be convenient or required. It shall
not be necessary that the signature of, or on behalf of, each party, or that the
signature of all persons required to bind any party, appear on each counterpart.
All counterparts shall collectively constitute a single instrument. It shall not
be necessary in making proof of this Guaranty to produce or account for more
than a single counterpart containing the respective signatures of, or on behalf
of, each of the parties hereto. Any signature page to any counterpart may be
detached from such counterpart without impairing the legal effect of the
signatures thereon and thereafter attached to another counterpart identical
thereto except having attached to it additional signature pages.
Section 5.10 Rights and Remedies. If any Guarantor becomes liable for
any indebtedness owing by any Borrower to Lender, by endorsement or otherwise,
other than under this Guaranty, such liability shall not be in any manner
impaired or affected hereby and the rights of Lender hereunder shall be
cumulative of any and all other rights that Lender may ever have against such
Guarantor. The exercise by Lender of any right or remedy hereunder or under any
other instrument, or at law or in equity, shall not preclude the concurrent or
subsequent exercise of any other right or remedy.
Section 5.11 Other Defined Terms. Any capitalized term utilized herein
shall have the meaning as specified in the Loan Agreement, unless such term is
otherwise specifically defined herein.
Section 5.12 Entirety. THIS GUARANTY EMBODIES THE FINAL, ENTIRE
AGREEMENT OF EACH GUARANTOR AND LENDER WITH RESPECT TO EACH GUARANTOR'S GUARANTY
OF THE GUARANTEED OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF. THIS GUARANTY IS INTENDED BY EACH
GUARANTOR AND LENDER AS A FINAL AND COMPLETE EXPRESSION OF THE TERMS OF THE
GUARANTY, AND NO COURSE OF DEALING BETWEEN ANY GUARANTOR AND LENDER, NO COURSE
OF PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY
NATURE SHALL BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS
GUARANTY AGREEMENT. THERE ARE NO ORAL AGREEMENTS BETWEEN ANY GUARANTOR AND
LENDER.
Section 5.13 Waiver of Right to Trial by Jury. EACH GUARANTOR HEREBY
AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF
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RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT
ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE
NOTE, THE MORTGAGES, THE LOAN AGREEMENT, OR THE OTHER LOAN DOCUMENTS, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER
OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY EACH GUARANTOR,
AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO
WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY EACH GUARANTOR.
Section 5.14 Cooperation. Each Guarantor acknowledges that Lender and
its successors and assigns may (i) sell this Guaranty, the Note and other Loan
Documents to one or more investors as a whole loan, (ii) participate the Loan
secured by this Guaranty to one or more investors, (iii) deposit this Guaranty,
the Note and other Loan Documents with a trust, which trust may sell
certificates to investors evidencing an ownership interest in the trust assets,
or (iv) otherwise sell the Loan or interest therein to investors (the
transactions referred to in clauses (i) through (iv) are hereinafter each
referred to as "Secondary Market Transaction"). Each Guarantor shall cooperate
with Lender in effecting any such Secondary Market Transaction and shall
cooperate to implement all requirements imposed by any Rating involved in any
Secondary Market Transaction. Each Guarantor shall provide such information and
documents relating to any Guarantor, any Borrower, the Properties and any
tenants of the Improvements as Lender may reasonably request in connection with
such Secondary Market Transaction. In addition, each Guarantor shall make
available to Lender all information concerning its business and operations that
Lender may reasonably request. Lender shall be permitted to share all such
information with the investment banking firms, Rating Agencies, accounting
firms, law firms and other third-party advisory firms involved with the Loan and
the Loan Documents or the applicable Secondary Market Transaction. It is
understood that the information provided by any Guarantor to Lender may
ultimately be incorporated into the offering documents for the Secondary Market
Transaction and thus various investors may also see some or all of the
information. Lender and all of the aforesaid third-party advisors and
professional firms shall be entitled to rely on the information supplied by, or
on behalf of, any Guarantor in the form as provided by such Guarantor. Lender
may publicize the existence of the Loan in connection with its marketing for a
Secondary Market Transaction or otherwise as part of its business development.
Section 5.15 Reinstatement in Certain Circumstances. If at any time
any payment of the principal of or interest under the Note or any other amount
payable by any Borrower under the Loan Documents is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of any Borrower or otherwise, each Guarantor's obligations hereunder with
respect to such payment shall be reinstated as though such payment has been due
but not made at such time.
Section 5.16 Joint and Several Liability. If more than one Person has
executed this Agreement as "Guarantor," the representations, covenants,
warranties and obligations of all such Persons hereunder shall be joint and
several.
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IN WITNESS WHEREOF, the undersigned has executed this Guaranty all as
of the day and year first above written.
GUARANTOR:
TRANS HEALTHCARE, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
TRANS HEALTHCARE OF OHIO, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
THI OF OHIO ALFS, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
THI PROPERTIES, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
THI SERVICES CORP.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
THI SPECIALTY HOSPITALS OF OHIO, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
TRANS HEALTH MANAGEMENT, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
THI OF MARYLAND, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
PHYSICAL THERAPY PLUS, INC.,
a Pennsylvania corporation
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
XXXX X. XXXXXXX, PT, INC.,
a Pennsylvania corporation
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
XXXX X. XXXXXXX, PT, INC., NUMBER 4,
a Pennsylvania corporation
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
THE PT GROUP OF PENN HILLS,
a Pennsylvania general partnership
By: Trans Healthcare, Inc.,
a Delaware corporation,
its Partner
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
THE PT GROUP PHYSICAL THERAPY FOR WOMEN,
a Pennsylvania general partnership
By: Xxxx X. Xxxxxxx, PT, Inc.,
a Pennsylvania corporation,
its Partner
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
THE PT GROUP OF MOON TOWNSHIP,
a Pennsylvania general partnership
By: Xxxx X. Xxxxxxx, PT, Inc., Number 4,
a Pennsylvania corporation,
its Partner
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
THI Therapy Concepts, LLC,
a Delaware limited liability company
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice-President
THI SERVICES OF MARYLAND, LLC,
a Delaware limited liability company
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice-President
SCHEDULE I
(BORROWERS)
1. THI of Ohio Real Estate Holding Company, LLC
2. THI of Ohio at Columbus, LLC
3. THI of Ohio at Valley View, LLC
4. THI of Ohio at Northwestern, LLC
5. THI of Ohio at Oak Grove, LLC
6. THI of Ohio at Paradise Oaks, LLC
7. THI of Ohio at Somerset, LLC
8. THI of Ohio at Xxxxxxx, LLC
9. THI of Ohio at Hillcrest, LLC
10. THI of Ohio at Maple View, LLC
11. THI of Ohio at Wintersong Village, LLC
12. THI of Ohio at Woodland, LLC
13. THI of Ohio at Greenbriar South, LLC
14. THI of Ohio at Golden Years, LLC
15. THI of Maryland Real Estate Holding Co., LLC
16. THI of Maryland at Bel Pre, LLC
17. THI of Maryland at Liberty Heights, LLC
18. THI of Maryland at Marley Neck, LLC
19. THI of Maryland at Northwest, LLC
SCHEDULE II
(GUARANTORS)
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GUARANTOR TYPE OF ENTITY
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1. Trans Healthcare, Inc. a Delaware corporation
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2. Trans Healthcare of Ohio, Inc. a Delaware corporation
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3. THI of Ohio ALFs, Inc. a Delaware corporation
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4. THI Properties, Inc. a Delaware corporation
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5. THI Services Corp. a Delaware corporation
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6. THI Specialty Hospitals of Ohio, Inc. a Delaware corporation
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7. Trans Health Management, Inc. a Delaware corporation
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8. THI of Maryland, Inc. a Delaware corporation
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9. THI Therapy Concepts, LLC a Maryland limited liability company
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10. THI Services of Maryland, LLC a Maryland limited liability company
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11. Physical Therapy Plus, Inc. a Pennsylvania corporation
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12. Xxxx X. Xxxxxxx, PT, Inc. a Pennsylvania corporation
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13. Xxxx X. Xxxxxxx, PT, Inc., Number Four a Pennsylvania corporation
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14. The pt Group of Penn Hills a Pennsylvania general partnership
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15. The pt Group Physical Therapy for Women a Pennsylvania general partnership
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16. The pt Group of Moon Township a Pennsylvania general partnership
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