EXHIBIT 6(g)
UNCONDITIONAL AND CONTINUING LEASE GUARANTY
THIS GUARANTY is made effective as of ______________, 199__ (the "Effective
Date") by GREENBRIAR CORPORATION, a Nevada corporation ("Guarantor") in favor of
RESIDENTIAL HEALTHCARE PROPERTIES, INC., a Nevada corporation ("Landlord").
R E C I T A L S
A. Landlord is granting to _________________, Inc., a _______ corporation
("Tenant"), a lease of the real property located at _________________________,
________, _________ ("Property") pursuant to a Lease Agreement between Landlord
and Tenant of even date ("Lease").
B. The Facility and all improvements and fixtures now existing or
hereafter constructed and installed on the Property will be the property of
Landlord and will be included in the "Leased Property" under the Lease.
C. In order to extend the Lease to Tenant, Landlord requires that this
guaranty be provided by Guarantor. Tenant is a wholly-owned subsidiary of
Greenbriar Corporation Guarantor has determined that it will benefit from the
Lease to Tenant and has agreed to provide this guaranty to Landlord.
D. As used herein, "Lease Documents" means the Lease and all other
documents and agreements made in connection with the Lease, as amended,
modified, renewed or extended from time to time. "Rent" means all rent,
percentage rent, late charges, interest, taxes, utility charges, insurance
premiums and all other charges, expenses and amounts payable by Tenant to
Landlord pursuant to the Lease Documents. "Lease Obligations" means all of the
covenants, obligations and liabilities of Tenant under the Lease Documents,
including the payment of the Rent when due.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Guarantor agree as follows:
1. Guaranty. Guarantor, jointly and severally, unconditionally
guarantees the prompt payment when due of the Rent and the performance of the
Lease Obligations and shall indemnify Landlord and hold Landlord harmless from
any costs and in any way arising out of Tenant's failure to pay the Rent or
perform the Lease Obligations according to their terms.
2. Warranties.
(a) Capacity. Greenbriar Corporation is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada. Guarantor warrants that Guarantor has taken all necessary corporate
action to incur the obligations of this guaranty and to execute, deliver and
perform this guaranty.
(b) Contracts. Guarantor warrants that there is no provision of
its Certificate of Incorporation or Bylaws or any existing indenture, contract,
or agreement to which Guarantor is a party or of any law, administrative
regulation, court order, or consent decree that would be contravened by the
execution, delivery, or performance of this guaranty.
(c) Inducement to Landlord; Waivers. Guarantor [1] acknowledges that
Landlord would not enter into the Lease with Tenant but for this guaranty; [2]
warrants that Guarantor has given this guaranty to induce Landlord to enter into
the Lease with Tenant; [3] agrees that Landlord may rely on this guaranty in
extending future Rent to Tenant without notice to Guarantor; [4] warrants that
Guarantor has received good and valuable consideration for this guaranty; [5]
waives acceptance of this guaranty; [6] waives protest and any other notice of
failure to pay the Rent or to perform any agreement relating to any Rent or
Security; [7] acknowledges that Guarantor has read this guaranty, the Lease and
all other documents in connection with the Lease; and [81] acknowledges that
Guarantor understands and agrees to Guarantor's obligations under this guaranty.
(d) No Reliance on Information from Landlord. Guarantor [1] warrants
that Guarantor has not relied on any information about the Tenant or any
guarantor of the Rent provided directly or indirectly by Landlord; [2] warrants
that Guarantor is familiar with Tenant and Tenant's affairs; [3] warrants that
Guarantor has had ample opportunity to investigate Tenant and Tenant's affairs,
and the effect that the Rent will have; [4] warrants that Guarantor has been
provided all information concerning Tenant and Tenant's affairs; [5] warrants
that Guarantor has had adequate opportunity to seek and evaluate professional
advice concerning Tenant, and this guaranty from advisors of Guarantor's
choosing, including financial and legal advice; and [6] agrees that Guarantor
shall not rely on any information provided by Landlord about Tenant, including
any other guarantor. Landlord has no obligation to provide Guarantor any
information about the Tenant.
(e) No Insolvency. On the date of the Guarantor's entering into this
guaranty and after giving effect to all indebtedness of the Guarantor, [1] the
Guarantor will be able to pay Guarantor's obligations as they become due and
payable; [2] the present fair saleable value of the Guarantor's assets exceeds
the amount that will be required to pay Guarantor's probable liability
on its obligations as the same become absolute and mature; [3] the sum of the
Guarantor's property at a fair valuation exceeds Guarantor's indebtedness;
and [4] the Guarantor will have sufficient capital to engage in Guarantor's
businesses. The benefits accruing to Tenant under the Lease constitute fair
consideration and reasonably equivalent value for this guaranty.
3. Waivers. Without notice to or consent of Guarantor, Landlord may do
or refrain from doing anything affecting the Lease including the following: [a]
granting or not granting any indulgences to anyone liable for payment of the
Rent; [b] failing to get an enforceable agreement to repay the Rent; [c]
releasing anyone or any property from liability for payment of the Rent; [d]
changing the Lease; [e] extending the time for payment of the Rent including
extending the time beyond the term of the Lease; [f] exercising any right or
remedy including, without limitation, eviction of Tenant or termination of the
Lease; [g] applying any funds received from Tenant, Guarantor or any other party
and any other funds in such manner and in such order or priority as Landlord
elects in its sole discretion; and [h] delaying in enforcing or failing to
enforce any rights to payment of the Rent or the Lease.
4. Defects in Security, Etc. Guarantor's liability under this guaranty
shall not be affected by [a] any default in any of the Lease Documents when
accepted by Landlord or arising any time thereafter; [b] the death,
incompetence, insolvency, dissolution, liquidation, or winding up of affairs of
Tenant, Guarantor, or anyone liable under the Lease Documents or the start of
insolvency proceedings by or against any such person or entity; [c] any
termination of the leasehold estate created by the Lease to the extent Tenant
remained liable under the Lease; [d] the release or discharge of Tenant in any
creditors, receivership, bankruptcy, other insolvency proceedings, or other
proceedings; [e] impairment, limitation or modification of the liability of
Tenant or the estate of Tenant in bankruptcy or of any remedy for the
enforcement of Tenant's liability under the Lease, resulting from the operation
of any present or future provisions of the federal Bankruptcy Code or other
statutes or from the decision of any court; [f] the rejection or disaffirmance
of the Lease in any such proceedings; [g] the assignment or transfer of the
Lease by the Tenant; [k] any disability or other defense of Tenant; [h] the
cessation from any cause whatsoever of the liability of Tenant under the Lease;
or [i] any reorganization, merger, consolidation, combination, or sale of
substantially all the assets of Tenant.
5. Waiver of Surety's Defenses. GUARANTOR WAIVES ALL SURETYSHIP AND
OTHER SIMILAR DEFENSES.
6. Unconditional Obligation. If Tenant fails to pay all or any part
of
any Rent when due after expiration of any applicable grace, notice or cure
period, Guarantor shall immediately pay to Landlord all amounts then due and
payable in connection with any Rent, regardless of whether or not Landlord
first pursues Tenant or exhausts any of its rights or remedies against
Tenant, any other Guarantor, or others. Guarantor shall not have any right
of subrogation to the rights of Landlord against any of the assets of Tenant
or any other guarantor of the Lease until after indefeasible payment in full
of all Rent due or to become due under the Lease.
7. Continuing Obligation. This guaranty shall extend and be applicable
to all renewals, amendments, extensions, consolidations, modifications,
increases and reductions of the Lease Documents. Guarantor's liability under
this guaranty shall not be reduced or canceled by any such action and shall be
deemed modified in accordance with the terms of such action, whether or not
Guarantor has notice of such action.
8. Subordination. Guarantor subordinates to and postpones in favor of
the Landlord [a] any present and future debts and obligations of Tenant to
Guarantor (the "Indebtedness") including but not limited to [i] salary, bonuses,
and other payments pursuant to any employment arrangement; [ii] fees,
reimbursement of expenses and other payments pursuant to any independent
contractor arrangement; [iii] principal and interest pursuant to any
Indebtedness; [iv] distributions payable to any shareholders or general or
limited partners of Tenant; and [v] lease payments pursuant to any leasing
arrangement; and [b] any liens or security interests securing payment of the
Indebtedness. Except as otherwise specified in the Lease, the provisions of
this paragraph shall be effective only [i] after the occurrence of an Event of
Default (as defined in the Lease) and until such Event of Default is cured, or
[ii] after the commencement of any bankruptcy or insolvency proceeding by or
against Tenant and until such proceeding is dismissed. Guarantor shall not ask
for, xxx for, demand, take or receive any payment, by setoff or in any other
manner, including the receipt of a negotiable instrument, for all or any part of
the Indebtedness owed by Tenant, or any successor or assign of Tenant, including
without limitation a receiver, trustee or debtor in possession (the term
"Tenant" shall include any such successor or assign of Tenant) until the Rent
has been paid in full; however, if Guarantor receives such a payment, Guarantor
shall immediately deliver the payment to Landlord for credit against the then
outstanding balance of the Rent, whether matured or unmatured. Notwithstanding
any right of Guarantor to ask, demand, xxx for, take or receive any payment with
respect to the Indebtedness, all rights, liens and security interests of the
Guarantor, whether now or hereafter arising, in any assets of the Tenant shall
be and hereby are subordinated to the rights of Landlord in such assets and
Guarantor shall have no right to possession of any
such assets or to foreclose upon any such asset, whether by judicial action
or otherwise, unless and until the Rent has been paid in full. Guarantor
agrees that Landlord shall be subrogated to the Guarantor with respect to the
Guarantor's claims against Tenant and the Guarantor's rights, liens and
security interest, if any, in any of the Tenant's assets and proceeds thereof
until all of the Rent has been paid in full.
Any claim which Guarantor may make against Tenant or Tenant's estate in any
bankruptcy or insolvency proceedings shall be expressly subject to the terms of
this Section 8.
In the event of any distribution of the assets or readjustment of the
obligations and indebtedness of the Tenant, whether by reason of liquidation,
bankruptcy, arrangement, receivership, assignment for the benefit of creditors
or any other action or proceeding involving the readjustment of all or any of
the Indebtedness hereby subordinated, or the application of the assets of the
Tenant to the payment or liquidation thereof, Landlord shall be entitled to
receive payment in full of any and all of the Rent, due or not due, prior to the
payment of all or any part of the Indebtedness hereby subordinated, and in order
to enable Landlord to enforce its rights hereunder in any such action or
proceeding, Landlord is hereby authorized and empowered in its discretion to
make and present for and on behalf of Guarantor such proofs of claims against
the Tenant, if the Guarantor shall have failed to file any such proof of claim
within thirty (30) days after Landlord has requested Guarantor to file such
proofs of claim on account of the Indebtedness hereby subordinated, as Landlord
may deem expedient or proper and to vote such proofs of claims in any such
proceeding and to receive and collect any and all dividends or other payments or
disbursements made thereon in whatever form the same may be paid or issued and
to apply the same on account of any of the Rent.
In the event of any distribution, division or application, partial or
complete, voluntary or involuntary, by operation of law or otherwise, of all or
any part of the assets of the Tenant or the proceeds thereof, to the creditors
of the Tenant's business, or upon the sale of all or substantially all of the
Tenant's assets, then, and in any such event, any payment or distribution of any
kind or character, either in cash, securities or other property, which shall be
payable or deliverable upon or with respect to any or all of the Indebtedness
shall be paid or delivered directly to Landlord for application on any of the
Rent, due or not due, until such Rent shall have first been fully paid and
satisfied. After the occurrence and during the continuance of any Event of
Default, in the event that Guarantor shall fail or refuse to take any action
that Landlord requests in writing that the Guarantor takes with respect to the
Indebtedness within thirty (30) days of the Guarantor's receipt of such request,
Guarantor authorizes and empowers Landlord to demand, xxx for, collect and
receive every such payment or distribution and give acquittance therefor and to
file claims and take such other proceedings, in Landlord's own name or in the
name of Guarantor or otherwise, as Landlord may deem necessary or advisable for
the enforcement of this guaranty; and Guarantor will execute and deliver to
Landlord such powers of attorney, assignments or other instruments or documents,
as may be requested by Landlord in order to enable Landlord to enforce any and
all claims upon or with respect to any or all of the Indebtedness and to collect
and receive any and all payments of distributions which may be payable or
deliverable at any time upon or with respect to the Indebtedness, all for
Landlord's own benefit.
Should any payment, distribution, security, instrument or proceeds which
are subject to the subordination contained in the first paragraph of this
Section 8 be received by Guarantor upon, or with respect to, the Indebtedness
while such subordination provision is effective and prior to the satisfaction of
all of the Rent and termination of all financing arrangements between the Tenant
and Landlord, Guarantor shall receive and hold the same in trust as trustee, for
the benefit of Landlord and shall forthwith deliver the same to Landlord in
precisely the form received (except for the endorsement or assignment of the
Guarantor where necessary), for application on any of the Rent, due or not due,
and until so delivered, the same shall be held in trust by the Guarantor as the
property of Landlord. In the event of the failure of Guarantor to make any such
endorsement or assignment to Landlord, Landlord, or any of its officers or
employees, is hereby irrevocably authorized to make the same.
Any instrument evidencing any of the Indebtedness, or any portion thereof,
will, on the date hereof or promptly hereafter, be inscribed with a legend
conspicuously indicating that payment thereof is subordinated to the claims of
Landlord, pursuant to the terms of this guaranty, and will be delivered to
Landlord upon request therefor after the declaration of an Event of Default, if
such original is necessary in order to enable Landlord to take any action
permitted hereunder, including, without limitation, the filing of proofs of
claim on behalf of Guarantor.
This subordination shall continue and shall be irrevocable until all the
terms, covenants and conditions of the Rent have been fully and completely
performed by Tenant or otherwise discharged and released by Landlord, and the
Guarantor shall not be released from any duty, obligation or liability hereunder
so long as there is any claim of Landlord against Tenant arising out of the Rent
which has not been performed, settled or discharged in full.
9. Financial Statements.
(a) Financial Statements. Not later than 120 days after the end of
each fiscal year, Greenbriar Corporation shall deliver to Landlord audited
financial statements with unaudited supplementary and consolidating schedules
showing each facility. In addition, not later than 45 days after the end of
each quarter, each Guarantor shall deliver to Landlord unaudited consolidated
financial statements of Guarantor for the preceding quarter.
(b) Certificate. With each delivery of financial statements,
Guarantor shall also provide to Landlord a Certificate of the Chief Financial
Officer of Guarantor as to the completeness and accuracy of such financial
statements.
(c) Tax Returns. Guarantor shall deliver to Landlord the federal tax
return of Guarantor for each year within 15 days after the filing of the return.
If the filing date for any tax return has been extended, Guarantor shall also
deliver to Landlord a copy of the extension application within 15 days after the
date of filing.
(d) Other Information. Guarantor shall promptly furnish to Landlord
such other information and statements concerning the business affairs and
financial condition of the Guarantor as Landlord may reasonably request.
Guarantor shall give Landlord access to all books, records, and financial data
of Guarantor by or through any of Landlord's officers, agents, attorneys or
accountants, at all reasonable times and from time to time. Landlord may
examine, inspect, and make extracts from Guarantor's books and other records at
all reasonable times and from time to time, subject, however, to any agreements
made by Landlord regarding confidentiality of such information.
(e) Covenants. Guarantor covenants that all financial statements of
Guarantor furnished Landlord will present fairly the financial condition of
Guarantor as of the dates of the statements and will be prepared in accordance
with generally accepted accounting principles applied on a basis consistently
maintained throughout the period involved.
10. No Conveyance. Guarantor shall not sell, convey, pledge, encumber
or otherwise transfer any ownership interest in Tenant now owned or hereafter
acquired, if any, without the prior written consent of Landlord.
11. Lease Covenants. Throughout the term of the Lease, Guarantor shall
comply with all requirements and covenants of the Lease applicable to
Guarantor.
12. Subsequent Guaranties. No subsequent guaranty to Landlord by
Guarantor shall supersede or terminate this guaranty, but shall be an additional
guaranty unless otherwise stated therein and, if Guarantor has given a previous
guaranty to Landlord, this guaranty shall be in addition to the previous
guaranty.
13. Successors, Etc. This guaranty shall be binding upon not only
Guarantor but also Guarantor, its heirs, administrators, and personal
representatives and shall inure to the benefit of Landlord and its successors
and assigns.
14. Termination; Revocation. Subject to reinstatement pursuant to Section
15, this guaranty shall automatically terminate on the date on which all of the
Rent is paid in full. No revocation of this guaranty or any substitute guaranty
by Guarantor shall be effective until all of the Rent has been paid in full.
15. Survival. The obligations of the Guarantor under this guaranty will
continue to be effective or shall be reinstated, as the case might be, if at any
time any payment from the Tenant of any sum due to the Landlord is rescinded or
must otherwise be restored or returned by the Landlord on the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Tenant or as a
result of the appointment of a custodian, conservator, receiver, trustee or
other officer with similar powers with respect to the Tenant or any part of the
Tenant's property or otherwise.
16. Governing Law. This guaranty shall be governed by and construed in
accordance with the internal laws of the State of Texas, without giving effect
to the conflict of laws rules thereof.
17. Number; Gender. Where appropriate, the number of any word in this
guaranty shall include both singular and plural, the gender of any word shall be
masculine, feminine, or neuter.
18. Enforceability. If any provision of this guaranty or the application
thereof to anyone or any circumstance shall be adjudged invalid or unenforceable
to any extent, the application of the remainder of the provision to the party or
circumstance, the application of the provision to other parties or
circumstances, and the application of the remainder of this guaranty shall not
be affected thereby. Each provision of this guaranty shall be valid and
enforceable to the fullest extent permitted by law.
19. No Waivers by Landlord. No forbearance by Landlord in exercising any
right under this guaranty, the lease or the Lease Documents shall operate as a
waiver thereof; no forbearance in exercising any right under this guaranty, on
any one or more occasions shall operate as a waiver of such right on any other
occasion; and no single or partial exercise of any right under this guaranty
shall preclude any other or further exercise thereof or the exercise of any
other right, power, or privilege. Landlord's rights under this guaranty are
cumulative and not exclusive of any rights or remedies that Landlord may
otherwise have.
20. Fees and Expenses. Guarantor shall pay to Landlord all costs and
expenses incurred by Landlord in enforcing or protecting Landlord's rights in
connection with this guaranty and in collecting payment on any Rent or this
guaranty, whether or not an Event of Default (as defined in the Lease) has
actually occurred or has been declared and thereafter cured, including, but not
limited to, [a] attorney's fees and paralegal fees; [b] the fees and expenses of
any litigation, administrative, bankruptcy, insolvency, receivership or any
other similar proceeding; [c] court costs; [d] the expenses of Landlord, its
employees, agents, and witnesses in preparing for litigation and for lodging,
travel, and attendance at pretrial hearings, depositions, and trials; and [e]
consulting fees and expenses incurred by Landlord in connection with any
litigation.
21. Notices. Any notices required or desired to be given under this
guaranty shall be in writing and shall be delivered in the manner set forth in
the Lease, and if to Landlord, delivered to Landlord at 0000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq., and if to a Guarantor,
to the address set forth opposite such Guarantor's signature, or to such other
address as Landlord or any Guarantor may hereafter give written notice thereof.
All notices shall be effective upon the earlier of actual receipt or three days
after deposit in the U.S. mail or one business day after deposit with a
nationally recognized overnight courier marked for overnight delivery.
22. Amendment. This guaranty may not be amended except in a writing
signed by Guarantor and Landlord. All references to this guaranty, whether in
this guaranty or any other document or instrument, shall be deemed to
incorporate all amendments, modifications, renewals and extensions of this
guaranty and all substitutions therefor made after the date hereof.
23. Joint and Several Liability. If more than one Guarantor, the
liability of each Guarantor under this guaranty is joint and several.
24. Counterparts. This guaranty may be executed in multiple counterparts,
each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
25. JURISDICTION AND VENUE. GUARANTOR IRREVOCABLY SUBMITS AND CONSENTS TO
THE NON-EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING
JURISDICTION OVER DALLAS COUNTY, TEXAS FOR ADJUDICATION OF ALL MATTERS IN
CONTROVERSY UNDER THIS GUARANTY, AND WAIVES ANY OBJECTIONS TO SUCH JURISDICTION
AND VENUE AND CONSENTS TO FULL FAITH AND RENT BEING GIVEN TO ANY DECISION OF
SUCH COURTS BY ANY OTHER XXXXX XX XXXXXXX XXXXX XX XXX XXXXXX XXXXXX OF AMERICA.
GUARANTOR SHALL NOT ATTEMPT TO LITIGATE ANY MATTERS IN CONTROVERSY UNDER THIS
GUARANTY BEFORE ANY COURT OR TRIBUNAL OTHER THAN BEFORE A STATE OR FEDERAL COURT
HAVING JURISDICTION OVER DALLAS COUNTY, TEXAS. GUARANTOR WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON GUARANTOR AND CONSENTS THAT ALL SUCH SERVICE
OF PROCESS UPON THE GUARANTOR BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED
TO GUARANTOR AT THE ADDRESS SET FORTH BELOW AND SHALL BE DEEMED TO BE COMPLETED
FIVE (5) DAYS AFTER POSTED.
IN WITNESS WHEREOF, Guarantor executes and delivers to Landlord this
Unconditional and Continuing Guaranty effective as of the Effective Date.
GUARANTOR:
Address: GREENBRIAR CORPORATION
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000 By: _______________________________
Title: _______________________________
LANDLORD:
Address: RESIDENTIAL HEALTHCARE PROPERTIES, INC.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000 By: _______________________________
Title: _______________________________
