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Exhibit 10.6
Loan No. 99-407
GUARANTY
THIS GUARANTY (this "Guaranty") made this 30th day of December,
1999, by Balanced Care Corporation, a Delaware corporation ("Guarantor") in
favor of Xxxxxx Healthcare Finance, Inc., a Delaware corporation ("Lender").
RECITALS
A. Financial Accommodations. Lender and Balanced Care Realty
at State College, Inc., a Delaware corporation, Balanced Care Realty at
Altoona, Inc., a Delaware corporation, Balanced Care Realty at Lewistown,
Inc., a Delaware corporation, Balanced Care Realty at Reading, Inc., a
Delaware corporation, Balanced Care Realty at Berwick, Inc., a Delaware
corporation, Balanced Care Realty at Peckville, Inc., a Delaware corporation,
Balanced Care Realty at Scranton, Inc., a Delaware corporation, Balanced Care
Realty at Martinsburg, Inc., a Delaware corporation, Balanced Care Realty at
Maumelle, Inc., a Delaware corporation, Balanced Care Realty at Sherwood,
Inc., a Delaware corporation, Balanced Care Realty at Mountain Home, Inc., a
Delaware corporation, and Balanced Care Realty at Mansfield, Inc., a Delaware
corporation, (collectively "Borrower") are concurrently herewith entering
into that certain Loan Agreement (the "Loan Agreement") of even date herewith
pursuant to which Lender shall extend financial accommodations to Borrower.
B. Inducement. To induce Lender to extend to Borrower the
financial accommodations set forth in the Loan Agreement, Guarantor is
willing to execute and deliver this Guaranty.
In consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby agrees as follows:
1. DEFINED TERMS
All capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Loan Agreement.
2. THE GUARANTY
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2.1 Guaranty of Obligations. Guarantor unconditionally and
absolutely guarantees the full and prompt payment and performance when due,
whether at maturity or earlier, by reason of acceleration or otherwise, and at
all times thereafter, of the indebtedness, liabilities and obligations of every
kind and nature of Borrower to Lender arising under or in any way relating to
the Loan Agreement or any of the other Loan Documents, howsoever created,
incurred or evidenced, whether direct or indirect, absolute or contingent, now
or hereafter existing, due or to become due, and howsoever owned, held or
acquired by Lender (collectively, the "Obligations"). Without limitation to the
foregoing, the Obligations shall include (a) all reasonable attorneys' and
paralegals' fees, including the cost of inside attorneys and paralegals, costs
and expenses and all court costs and costs of appeal incurred by Lender in
collecting any amount due Lender under this Guaranty or in prosecuting any
action against Borrower, Guarantor or any other guarantor with respect to all or
any part of the Obligations (collectively, the "Enforcement Costs"), and (b) all
interest, fees, costs and expenses due Lender after the filing of a bankruptcy
petition by or against Borrower regardless of whether such amounts can be
collected during the pendency of the bankruptcy proceedings.
2.2 Continuing Guaranty; Guaranty of Payment. This Guaranty is a
continuing guaranty of the Obligations, and Guarantor agrees that the
obligations of Guarantor to Lender hereunder shall be primary obligations, shall
not be subject to any counterclaim, set-off, abatement, deferment or defense
based upon any claim that Guarantor may have against Lender, Borrower or any
other person or entity.
2.3 Liability of Guarantor Not Affected. This Guaranty shall remain
in full force and effect without regard to, and shall not be released,
discharged or affected in any way by, any circumstances or condition, including,
without limitation:
(a) the attempt or the absence of any attempt by Lender to obtain
payment or performance by Borrower or any other guarantor (this being a
guaranty of payment and performance and not of collection);
(b) Lender's delay in enforcing Guarantor's obligations hereunder or
of any other party under the Loan Documents, or any prior partial exercise
by Lender of any right or remedy hereunder or under any of the other Loan
Documents;
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(c) any renewal, extension, substitution, modification, replacement
of or indulgence with respect to, the Obligations, all of which Lender is
hereby authorized to make;
(d) the fact that Borrower is not liable for the payment or
performance of the Obligations, or any portion thereof, for any reason
whatsoever, Guarantor being liable for the Obligations notwithstanding
that Borrower may not be;
(e) any sale, exchange, release, surrender or other disposition of,
or realization upon, any collateral securing the Obligations, or any
settlement or compromise of any guaranties of the Obligations, or any
other obligation of any person or entity with respect to the Loan
Documents;
(f) the acceptance by Lender of any additional security for the
Obligations;
(g) the lack of validity or enforceability of, or Lender's waiver or
consent with respect to, any provision of any instrument evidencing,
securing or otherwise relating to the Obligations, or any part thereof,
including without limitation the Loan Documents;
(h) the failure by Lender to take any steps to perfect, maintain, or
enforce its security interests or remedies under the Loan Documents, or to
preserve its rights to or protect any security or collateral, for the
Obligations;
(i) any voluntary or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment, assignment for the benefit of
creditors, composition, receivership, liquidation, marshalling of assets
and liabilities or similar event or proceedings with respect to Borrower
or Guarantor, as applicable, or any of their respective properties (each,
an "Insolvency Proceeding"), or any action taken by Lender, any trustee or
receiver or by any court in any such proceeding;
(j) the failure by Lender to file or enforce a claim against the
estate (either in an Insolvency Proceeding or other proceeding) of
Borrower or Guarantor;
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(k) in any proceeding under Title 11 of the United States Code (11
U.S.C. Section 101 et seq.), as amended (the "Bankruptcy Code"): (i) any
election by Lender under Section 1111(b)(2) of the Bankruptcy Code, (ii)
any borrowing or grant of a security interest by Borrower as
debtor-in-possession under Section 364 of the Bankruptcy Code, (iii) the
inability of Lender to enforce the Obligations against Borrower by
application of the automatic stay provisions of Section 362 of the
Bankruptcy Code, or (iv) the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of Lender's claim(s) against
Borrower for repayment of the Obligations;
(l) the failure of Guarantor to receive notice of any intended
disposition of the collateral for the Obligations;
(m) any merger or consolidation of Borrower into or with any other
entity, or any sale, lease or transfer of any of the assets of Borrower or
Guarantor to any other person or entity;
(n) any change in the ownership of Borrower or any change in the
relationship between Borrower and Guarantor, or any termination of any
such relationship;
(o) the death, incapacity, insanity, disability, dissolution or
other change in states of Borrower or Guarantor;
(p) the making of additional loans to Borrower, the increase or
reduction of the maximum principal amount of the Obligations, the increase
or reduction in the interest rate provided in the Note, or any other
modification, amendment, release or waiver of the terms of the Loan
Documents;
(q) the absence, impairment or loss of any right of reimbursement or
subrogation or other right or remedy of Guarantor; and
(r) any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of Borrower, Guarantor or any other
guarantor.
Guarantor hereby expressly waives and surrenders any defense to
its liability under this Guaranty based upon any of the foregoing acts,
omissions, agreements, waivers or matters,
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whether or not Guarantor had notice or knowledge of same. It is the purpose and
intent of this Guaranty that the obligations of Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
2.4 Rights of Lender. Lender is hereby authorized, without notice to
or demand of Guarantor and without affecting the liability of Guarantor
hereunder, to take any of the following actions from time to time: (a) increase
or decrease the amount of, or renew, extend, accelerate or otherwise change the
time for payment of, or other terms relating to, the Obligations, or otherwise
modify, amend or change the terms of any promissory note or other agreement
evidencing, securing or otherwise relating to any of the Obligations, including,
without limitation, the making of additional advances thereunder; (b) accept and
apply any payments on or recoveries against the Obligations from any source, and
any proceeds of any security therefor, to the Obligations in such manner, order
and priority as Lender may elect in its sole discretion; (c) take, hold, sell,
release or otherwise dispose of all or any security for the Obligations or the
payment of this Guaranty; (d) settle, release, compromise, collect or otherwise
liquidate the Obligations or any portion thereof; (e) accept, hold, substitute,
add or release any other guaranty or endorsements of the Obligations; and (f) at
any time after maturity of the Obligations, appropriate and apply toward payment
of the Obligations (i) any indebtedness due or to become due from Lender to
Guarantor, and (ii) any moneys, credits, or other property belonging to
Guarantor at any time held by or coming into the possession of Lender or any
affiliates thereof, whether for deposit or otherwise.
2.5 Subordination. All indebtedness now or hereafter owing by
Borrower to Guarantor, or any one of them, for borrowed money or otherwise is
hereby subordinated to the payment of the Obligations, and, subsequent to a
default hereunder or under any of the other Loan Documents which default
continues uncured beyond any applicable notice and cure periods, Guarantor shall
not accept payment of all or any portion of such subordinated indebtedness until
satisfaction in full of the Obligations or, if Lender does not accelerate the
Obligations following an Event of Default (as defined in the Loan Agreement),
until all such defaults have been cured and such cure has been accepted by
Lender. All security interests, liens and encumbrances which Guarantor, or any
one of them, now or hereafter may have upon any of the assets of Borrower, or
any one of them, are hereby subordinated to all security interests, liens and
encumbrances heretofore, now or hereafter granted to Lender pursuant to the Loan
Documents.
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3. GUARANTOR'S WAIVERS
3.1 Statutes of Limitation. Guarantor irrevocably waives all
statutes of limitation as a defense to any action or proceeding brought against
Guarantor by Lender, to the fullest extent permitted by law.
3.2 Election of Remedies. Guarantor irrevocably waives any defense
based upon an election of remedies made by Lender or any other election afforded
to Lender pursuant to applicable law, including, without limitation, (a) any
election to proceed by judicial or nonjudicial foreclosure or by Uniform
Commercial Code sale or by deed or assignment in lieu thereof, or any election
of remedies which destroys or otherwise impairs the subrogation rights of the
Guarantor or the rights of the Guarantor to proceed against Borrower for
reimbursement, or both, (b) the waiver by Lender, either by action or inaction
of Lender or by operation of law, of a deficiency judgment against Borrower, and
(c) any election pursuant to an Insolvency Proceeding.
3.3 Rights of Subrogation and Other Rights. Guarantor irrevocably
waives (a) all rights at law or in equity to seek subrogation, contribution,
indemnification or any other form of reimbursement or repayment from Borrower or
any other person or entity now or hereafter primarily or secondarily liable for
any of the Obligations for any disbursements made by any Guarantor under or in
connection with this Guaranty, (b) all claims of any kind or type against
Borrower as a result of any payment made by Guarantor to Lender, and (c) any
right to participate in any security now or hereafter held by Lender. In
furtherance, and not in limitation, of the foregoing, Guarantor agrees that any
payment to Lender pursuant to this Guaranty shall be deemed a contribution to
the capital of Borrower or other obligated party and shall not constitute
Guarantor a creditor of Borrower or such other party. Guarantor further agrees
that to the extent the waiver of its rights of subrogation as set forth herein
is found by a court of competent jurisdiction to be void or voidable for any
reason, any rights of subrogation Guarantor may have against Borrower or against
any collateral or security for any of the Obligations shall be junior and
subordinate to any rights Lender may have against Borrower and to all right,
title and interest Lender may have in such collateral or security.
3.4 Demands and Notices. Guarantor irrevocably waives all
presentments, demands for performance, protests, notices of protest, notices of
dishonor, notices of acceptance of this Guaranty and of the existence, creation
or incurring of new or
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additional Obligations, notices of defaults by Borrower or any other person
liable for the Obligations and demands and notices of every kind that may be
required to be given by any statute or rule or law.
3.5 Borrower Information. Guarantor irrevocably waives (a) any duty
of Lender to advise Guarantor of any information known to Lender regarding the
financial condition of Borrower (it being the obligation of Guarantor to keep
informed regarding such condition), and (b) any defense based on any claim that
Guarantor's obligations exceed or are more burdensome than those of Borrower.
3.6 Limitation of Liability. Guarantor irrevocably waives any
impairment, modification, change, release or limitation of the liability of, or
stay of actions or lien enforcement proceedings against, Borrower or Guarantor,
their property, or their estate in bankruptcy, resulting from the operation of
any provision of the state or federal bankruptcy laws, or from the decision of
any court.
3.7 Lack of Diligence. Guarantor irrevocably waives any and all
claims or defenses based upon lack of diligence in: (a) collection of any
Obligations; (b) protection of any collateral or other security for the
Indebtedness or Obligations; or (c) realization upon the other Loan Documents.
3.8 Other Defenses. Guarantor irrevocably waives any other defenses,
set-offs or counterclaims which may be available to Borrower or any other
Guarantor if there are more than one, and any and all other defenses now or at
any time hereafter available to Guarantor (including without limitation those
given to sureties) at law or in equity.
4. REPRESENTATIONS AND WARRANTS
Guarantor represents and warrants to Lender as follows:
4.1 Existence: Authority; Execution. Guarantor hereby represents and
warrants that: (a) it is a duly organized Delaware corporation, validly
existing, and in good standing under the laws of the state of its incorporation
or formation; and (b) this Guaranty has been duly and validly authorized,
executed and delivered and constitutes the binding obligation of Guarantor,
enforceable in accordance with its terms except as such enforceability may be
limited by bankruptcy and similar laws and general principles of equity.
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4.2 Financial Statements. All financial statements and other
financial information furnished or to be furnished to Lender (a) are or will be
true and correct and do or will fairly represent the financial condition of
Guarantor (including all contingent liabilities), and (b) were or will be
prepared in accordance with generally accepted accounting principles, or such
other accounting principles as may be acceptable to Lender at the time of their
preparation, consistently applied. There has been no material adverse change in
Guarantor's financial condition since the dates of the statements most recently
furnished Lender, except as disclosed on Exhibit D to the Loan Agreement.
4.3 No Defaults. There is no existing event of default, and no event
has occurred which with the passage of time and/or the giving of notice or both
will constitute an event of default, under any agreement to which Guarantor is a
party, the effect of which event of default will materially impair performance
by Guarantor of the Obligations pursuant to and as contemplated by the terms of
this Guaranty, and neither the execution and delivery of this Guaranty nor
compliance with the terms and provisions hereof will violate any presently
existing provision of law or any presently existing regulation, order, writ,
injunction or decree of any court or governmental department, commission, board,
bureau, agency or instrumentality, or constitute a default under, any agreement
to which Guarantor is a party or by which Guarantor is bound.
4.4 No Litigation. There are no actions, suits or proceedings
pending or to Guarantor's knowledge, threatened against the Guarantor before any
court or any governmental, administrative, regulatory, adjudicatory or
arbitrational body or agency of any kind that will materially adversely affect
performance by the Guarantor of Guarantor's obligations pursuant to and as
contemplated by the terms and provisions of this Guaranty.
4.5 Accuracy. Neither this Guaranty nor any document, financial
statement, credit information, certificate or statement heretofore furnished or
required herein to be furnished to Lender by Guarantor contains any untrue
statement of fact or omits to state a fact material to this Guaranty.
4.6 Net Worth. Guarantor has a net worth greater than zero dollars.
5. EVENTS OF DEFAULT
Upon the occurrence of any of the following events, Lender may,
without notice to Borrower or Guarantor, declare any
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or all of the Obligations, whether or not then due, immediately due and payable
by Guarantor under this Guaranty, and Lender shall be entitled to enforce the
obligations of Guarantor hereunder.
5.1 Default by Borrower. Borrower shall default in the payment or
performance of any of the Obligations guaranteed hereby, after giving effect to
any applicable notice and cure provisions set forth in the Loan Documents.
5.2 Failure to Perform. Guarantor fails to perform any of its
obligations under this Guaranty or any agreement under which security is given
herefor, or this Guaranty is revoked or terminated by Guarantor, or any
representation or warranty made or given by Guarantor to Lender proves to be
false or misleading in any material respect.
5.3 Insolvency Proceeding. The making by Guarantor of any assignment
for the benefit of creditors, or a trustee or receiver being appointed for
Guarantor or for any property of Guarantor, or Guarantor becoming insolvent or
the subject of any Insolvency Proceeding and, in the case of such a proceeding
being commenced against Guarantor, such proceeding is not dismissed within sixty
(60) days following the commencement date thereof.
5.4 Dissolution. Guarantor dissolves or liquidates, or the business
of Guarantor is suspended or terminated for any reason.
5.5 Net Worth. Following a sale or transfer of any substantial
portion of Guarantor's business or assets or any merger, Guarantor's net worth
is less than Forty-Five Million Dollars ($45,000,000.00), excluding goodwill.
6. MISCELLANEOUS
6.1 Revival and Reinstatement. If at any time all or any part of any
payment theretofore applied by Lender to any of the Obligations is or must be
rescinded or returned by Lender for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of Borrower), such
Obligations shall, for the purposes of this Guaranty, to the extent such payment
is or must be rescinded or returned, be deemed to have continued in existence,
notwithstanding such application by Lender, and this Guaranty shall continue to
be effective or be reinstated, as the case may be, as to such Obligations, and
Guarantor shall be fully liable therefore, all as though such application by
Lender had not been made.
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6.2 No Marshaling. Lender has no obligation to marshal any assets in
favor of Guarantor, or against or in payment of (a) any of the Obligations, or
(b) any other obligation owed to Lender by Guarantor, Borrower, or any other
person.
6.3 No Modification, Waiver or Release Without Writing. Except as
may otherwise be expressly set forth herein, this Guaranty may not be modified,
amended, revised, revoked, terminated, changed or varied in any way whatsoever,
nor shall any waiver of any of the provisions of this Guaranty be binding upon
Lender, except as expressly set forth in a writing duly executed by Lender. No
waiver by Lender of any default shall operate as a waiver of any other default
or the same default on a future occasion, and no action by Lender permitted
hereunder shall in any way affect or impair Lender's rights or the obligations
of Guarantor under this Guaranty.
6.4 Assignment; Successors and Assigns. Guarantor may not assign
Guarantor's obligations or liability under this Guaranty. Subject to the
preceding sentence, this Guaranty shall be binding upon the parties hereto and
their respective heirs, executors, successors, representatives and assigns and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. Lender may, without notice to anyone, sell or assign the
Obligations, the Note or Loan Documents or any part thereof, or grant
participations therein, and in any such event each and every assignee or holder
of, or participant in, all or any of the Obligations shall have the right to
enforce this Guaranty, by suit or otherwise for the benefit of such assignee,
holder, or participant, as fully as if herein by name specifically given such
right, but Lender shall have an unimpaired right, prior and superior to that of
any such assignee, holder or participant, to enforce this Guaranty for the
benefit of Lender.
6.5 Integration. This Guaranty is the entire agreement of Guarantor
with respect to the subject matter of this Guaranty, provided that this Guaranty
shall not in any way limit or abrogate the obligations of Guarantor under the
other Loan Documents, including, without limitation, the Hazardous Materials
Indemnity Agreement of even date herewith.
6.6 Rights Cumulative. All of Lender's rights under this Guaranty
and the other Loan Documents are cumulative. The exercise of any one right does
not exclude the exercise of any other right given in this Guaranty or the
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other Loan Documents or any other right of Lender not set forth in this Guaranty
or the other Loan Documents. If there is more than one guarantor of the
Obligations, Lender may exercise its rights and remedies against any one or more
such guarantors and the failure of Lender to proceed against one or more of such
guarantors shall not affect the liability of the Guarantor under this Guaranty.
6.7 Severability. Whenever possible each provision of this Guaranty
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
6.8 Material Inducement; Consideration. Guarantor acknowledges and
agrees that Lender is specifically relying upon the representations, warranties,
agreements and waivers contained herein and that such representations,
warranties, agreements and waivers constitute a material inducement to Lender to
accept this Guaranty and to enter into the Loan Agreement and the transaction
contemplated therein. Guarantor further acknowledges that it expects to benefit
from Lender's extension of financing accommodations to Borrower because of its
relationship to Borrower, and that it is executing this Guaranty in
consideration of that anticipated benefit.
6.9 Indemnification. Guarantor agrees to indemnify, pay and hold
Lender and its officers, directors, employees, agents, and attorneys
(collectively called the "Indemnitees") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for such Indemnitees
in connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitee shall be designated a
party thereto) that may be imposed on, incurred by, or asserted against that
Indemnitee, in any manner relating to or arising out of this Guaranty or the
exercise of any right or remedy hereunder or under the other documents
pertaining to the Obligations (the "Indemnified Liabilities"); provided that
Guarantor shall have no obligation to an Indemnitee under this subsection with
respect to Indemnified Liabilities arising from the gross negligence or willful
misconduct of that Indemnitee as determined by a court of competent
jurisdiction. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, Guarantor shall contribute the maximum
portion
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that it is permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by the Indemnitees or any
of them.
6.10 Counterparts. This Guaranty may be executed in counterparts,
each of which shall be deemed an original, but all of which, when taken
together, shall be deemed one and the same agreement.
6.11 Governing Law. This Guaranty shall be governed by and construed
in accordance with the internal laws of the State of Illinois, without regard to
conflicts of law provisions.
6.12 Intentionally Omitted.
6.13 Venue. GUARANTOR, IN ORDER TO INDUCE LENDER TO ACCEPT THIS
GUARANTY, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH HEREBY IS ACKNOWLEDGED, AGREES THAT ALL ACTIONS OR
PROCEEDINGS ARISING DIRECTLY, INDIRECTLY OR OTHERWISE IN CONNECTION WITH, OUT
OF, RELATED TO OR FROM THIS GUARANTY SHALL BE LITIGATED, AT LENDER'S SOLE
DISCRETION AND ELECTION, ONLY IN COURTS HAVING A SITUS WITHIN THE COUNTY OF
XXXX, STATE OF ILLINOIS. GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID COUNTY AND
STATE. GUARANTOR HEREBY IRREVOCABLY APPOINTS AND DESIGNATES CT CORPORATION
SYSTEM, WHOSE ADDRESS IS GUARANTOR, C/O CT CORPORATION SYSTEM, 000 XXXXX XXXXXXX
XXXXXX, XXXXXXX, XXXXXXXX 00000, AS ITS DULY AUTHORIZED AGENT FOR SERVICE OF
LEGAL PROCESS AND AGREES THAT SERVICE OF SUCH PROCESS UPON CT CORPORATION SHALL
CONSTITUTE PERSONAL SERVICE OF PROCESS UPON GUARANTOR AND EACH OF THEM. IN THE
EVENT SERVICE IS UNDELIVERABLE BECAUSE SUCH AGENT MOVES OR CEASES TO DO BUSINESS
IN CHICAGO, ILLINOIS, GUARANTOR SHALL, WITHIN TEN (10) DAYS AFTER LENDER'S
REQUEST, APPOINT A SUBSTITUTE AGENT (IN CHICAGO, ILLINOIS) ON GUARANTOR'S BEHALF
AND WITHIN SUCH PERIOD NOTIFY LENDER OF SUCH APPOINTMENT. IF SUCH SUBSTITUTE
AGENT IS NOT TIMELY APPOINTED, LENDER SHALL, IN ITS SOLE DISCRETION, HAVE THE
RIGHT TO DESIGNATE A SUBSTITUTE AGENT UPON FIVE (5) DAYS' NOTICE TO GUARANTOR.
GUARANTOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF
ANY LITIGATION BROUGHT AGAINST IT BY LENDER ON THIS GUARANTY IN ACCORDANCE WITH
THIS PARAGRAPH.
6.14 Waiver of Jury Trial. GUARANTOR, AND BY ITS ACCEPTANCE OF THIS
GUARANTY, LENDER, HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS
GUARANTY AND THE BUSINESS RELATIONSHIP THAT IS BEING ESTABLISHED. THIS
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WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY GUARANTOR, AND BY
GUARANTOR'S ACCEPTANCE OF THIS GUARANTY, LENDER, AND GUARANTOR ACKNOWLEDGE THAT
NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF OF LENDER HAS MADE ANY
REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR HAS TAKEN ANY
ACTIONS WHICH IN ANY WAY MODIFY OR NULLIFY ITS EFFECT.
6.15 Waivers. THE WAIVERS SET FORTH IN THIS GUARANTY (INCLUDING,
WITHOUT LIMITATION, SECTIONS 6.13 AND 6.14 ABOVE) ARE KNOWINGLY, INTENTIONALLY,
AND VOLUNTARILY MADE BY GUARANTOR, AND GUARANTOR ACKNOWLEDGES THAT NEITHER
LENDER NOR ANY PERSON ACTING ON BEHALF OF LENDER HAS MADE ANY REPRESENTATIONS OF
FACT TO INDUCE THESE WAIVERS OR IN ANY WAY TO MODIFY OR NULLIFY THEIR EFFECT.
GUARANTOR FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS HAD THE
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS GUARANTY AND IN THE MAKING
OF THESE WAIVERS BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL,
AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THESE WAIVERS WITH COUNSEL.
The undersigned has duly executed this Guaranty as of the date
and year first above written.
BALANCED CARE CORPORATION,
a Delaware corporation
By/s/Xxxxx X. Xxxxx
Its Xxxxx X. Xxxxx
Title VP CFO
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