LEASE GUARANTY AGREEMENT
(Clearwater Guaranty)
THIS LEASE GUARANTY AGREEMENT (this "Guaranty"), made as of the 1st day
of October, 1998, by CENTENNIAL HEALTHCARE CORPORATION, a Georgia corporation
(the "Guarantor") in favor of EBT HEALTHCARE PROPERTIES, L.P., a Delaware
limited partnership (the "Lessor").
RECITALS:
Pursuant to the Lease Agreement described on Exhibit A hereto between
the Lessor and Centennial HealthCare Properties Corporation, a Georgia
corporation (the "Lessee") (the "Lease"), Lessee leases from Lessor certain real
estate and the nursing home facility situated thereon (the "Nursing Home")
located in Clearwater County, Idaho (such real estate and Nursing Home being
more particularly described in the Lease and collectively referred to herein as
the "Property").
NOW, THEREFORE, in consideration of the recitals, Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and as security for the payment of all rent, all
expenses, charges and other amounts from time to time owing to Lessor pursuant
to the Lease, and for the performance of all covenants, agreements and other
obligations from time to time owing to, or for the benefit of, Lessor pursuant
to the Lease (collectively referred to herein the "Lease Obligations"), the
Guarantor agrees and covenants with Lessor and represents and warrants to Lessor
as follows:
1. Guarantee of Lease Obligations. The Guarantor hereby unconditionally
guarantees to the Lessor the due, regular, and punctual payment and performance
of the Lease Obligations. Upon the failure of the Lessee timely to pay or
perform any of the Lease Obligations, the Guarantor further guarantees timely to
pay or perform any of the Lease Obligations and the payment of all reasonable
costs and expenses actually incurred by Lessor in paying or performing such
Lease Obligations (but Lessor shall not be required to pay or perform such Lease
Obligations). Further, the Guarantor guarantees the payment of all reasonable
costs, attorneys' fees, and expenses that are actually incurred by the Lessor by
reason of a default under the Lease (as defined in Section 20 of the Lease,
hereinafter "Event of Default") by the Lessee, including reasonable fees and
expenses in any appellate or bankruptcy proceedings.
Upon any Event of Default (as therein defined) pursuant to the Lease,
the Guarantor unconditionally promises to pay to the Lessor such amounts as are
necessary to cure the Event of Default, or at the option of the Lessor, the
Guarantor agrees to pay the outstanding Lease Obligations (including, without
limitation, any accelerated rental due upon such Event of Default) in full.
This Guaranty is unconditional, and the Guarantor agrees that the
Lessor, upon the occurrence of an Event of Default pursuant to the Lease, shall
not be required to assert any claim or cause of action against Lessee before
asserting any claim or cause of action against the Guarantor under this
Guaranty. Furthermore, the Guarantor agrees that the Lessor shall not be
required to pursue or foreclose on any collateral that it may receive from the
Lessee, the Guarantor, or others as security for any of the Lease Obligations
before making a claim or asserting a cause of action against the Guarantor under
this Guaranty.
The failure of the Lessor to perfect its security interest in any
collateral now or hereafter securing all or any part of the Lease Obligations
shall not release the Guarantor from its liabilities and obligations hereunder.
Notice of acceptance of this Guaranty is hereby waived by the
Guarantor. Presentment, protest, demand, and notice of protest and demand, and
notice of receipt of any and all collateral, and of the exercise of possessory
remedies or foreclosure on any and all collateral received by the Lessor from
the Lessee or the Guarantor are hereby waived. All settlements, compromises,
compositions, accounts stated, and agreed balances in good faith between any
primary or secondary obligors on any accounts received as collateral shall be
binding upon the Guarantor.
This Guaranty shall not be affected, modified, or impaired by the
voluntary or Involuntary liquidation, dissolution, sale, or other disposition of
all or substantially all of the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangements, composition with creditors or readjustment of, or
other similar proceedings affecting the Lessee or the Guarantor, or any of the
assets belonging to either of them, nor shall this Guaranty be affected,
modified, or impaired by the invalidity of the Lease.
Without notice to the Guarantor, without the consent of the Guarantor,
and without affecting or limiting the Guarantor's liability hereunder, the
Lessor may:
(a) grant the Lessee extensions of time for payment of the Lease
Obligations or any part hereof;
(b) renew any of the Lease Obligations;
(c) grant the Lessee extensions of time for performance of agreements or
other indulgences;
(d) at any time release any or all of the collateral, or any mortgage, deed
of trust or security interest in any collateral, that now or hereafter
secures any of the Lease Obligations;
(e) compromise, settle, release, or terminate any or all of the
obligations, covenants, or agreements of the Lessee under the Lease; and
(f) with the Lessee's written consent, modify or amend any obligation,
covenant, or agreement of Lessee as set forth in the Lease (and such
amendments shall nevertheless be binding upon Guarantor).
This Guaranty shall continue to be effective, or be reinstated, as the
case may be, if at any time any whole or partial payment or performance of any
Lease Obligations is or is sought to be rescinded or must otherwise be restored
or returned by the Lessor upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of Lessee or upon or as a result of the
appointment of a receiver, intervenor, or conservator of, or trustee or similar
officer for, the Lessee or of or for any substantial part of its property, or
otherwise, all as though such payments and performance had not been made.
2. Representations and Warranties of the Guarantor. Guarantor
represents and warrants as follows:
(a) Existence, Power and Qualification. Guarantor is a corporation duly
organized and validly existing under the laws of the state of its formation as
set forth in' the heading of this Guaranty, has the corporate power to own its
properties and to carry on. its business as is now being conducted, and is duly
qualified to do business and is in good standing in every jurisdiction in which
the character of the properties owned by it or in which the transaction of its
business makes its qualification necessary.
(b) Power and Authority . Guarantor has full power and authority to incur
the obligations provided for herein, all of which have been authorized by
all proper and necessary corporate action.
(c) Enforceability. This Guaranty constitutes a valid and legally binding
obligation of the Guarantor, enforceable in accordance with its respective
terms and does not violate, conflict with, or constitute any default under
any law, government regulation, decree, judgment, Guarantor's articles of
incorporation or by-laws or any other agreement or instrument binding upon
Guarantor.
(d) Pending Matters. No action or investigation is pending or, to the best
of its knowledge, threatened before or by any state or federal court or
administrative agency which in Guarantor's reasonable opinion has a
substantial likelihood of resulting in a material adverse change in the
financial condition, operations or prospects of the Guarantor. To the best
of Guarantor's knowledge, Guarantor is not in violation of any agreement,
the violation of which might reasonably be expected to have a materially
adverse effect on its business or assets, nor is Guarantor in violation of
any order, judgment, or decree of any state or federal court, or any
statute or governmental regulation to which it is subject, the violation of
which might reasonably be expected to have a material adverse effect on its
business or assets.
(e) Financial Statements Accurate. All financial statements of the
Guarantor heretofore provided are, and all financial statements hereafter
to be provided will be, true and complete in all material respects as of
their respective dates and fairly and will fairly present the financial
condition of the Guarantor, and there are no liabilities, direct or
indirect, fixed or contingent, as of the respective dates of such
statements which are not reflected therein or in the notes thereto as
presented in accordance with GAAP or in a written certificate delivered
with such statements. The financial statements of the Guarantor have been
prepared in accordance with generally accepted accounting principles
consistently applied ("GAAP"). There has been no material adverse change in
the financial condition, operations, or prospects of the Guarantor since
the dates of such statements except as fully disclosed in writing with the
delivery of such statements.
(f) No Defaults or Restrictions. There is no declared default under any
agreement or instrument nor does there exist any restriction in the
organizational documents of the Guarantor that causes or would cause a
material adverse effect on the business, properties, operations or
condition, financial or otherwise, of Guarantor.
(g) Payment of Taxes. Guarantor has filed all federal, state, and local tax
returns which are required to be filed and has paid, or made adequate
provision for the payment of, all taxes which have or may become due
pursuant to said returns or to assessments received by Guarantor.
(h) ERISA. To the best of Guarantor's knowledge, Guarantor is in compliance
with all applicable provisions of the Employee Retirement Income Act of
1974, as amended ("ERISA").
(i) Disclosure. To the best of Guarantor's knowledge, neither this Guaranty
nor any other document, financial statement, credit information,
certificate or statement required herein to be furnished to Lessor by
Guarantor in connection with this Guaranty contains any untrue, incorrect
or misleading statement of material fact, and all of these documents taken
as a whole do not omit to state a fact material to this Guaranty, to
Lessor's decision to enter into this Guaranty or to the transactions
contemplated hereunder. All representations and warranties made herein or
any certificate or other document delivered to Lessor by or on behalf of
Guarantor pursuant to or in connection with this Guaranty, shall be deemed
to have been relied upon by Lessor notwithstanding any investigation
heretofore or hereafter made by Lessor or on its behalf.
3. Affirmative Covenants of the Guarantor. The Guarantor covenants and
agrees that so long as the Lease Obligations are outstanding, it shall
comply with each of the following affirmative covenants: (a) Payment of
Rent/Performance of Lease Obligations. Within five (5) business days of
Lessor's demand thereof, duly and punctually pay or cause to be paid all
rent and other charges due under the Lease in accordance with its terms and
duly and punctually pay or cause to be paid or performed all Lease
Obligations.
(b) Maintenance of Existence. Preserve and maintain its existence and, in
each jurisdiction in which the character of the properties owned by it or
in which the transaction of its business makes qualification necessary,
maintain such qualification and good standing.
(c) Payment of Taxes. Pay and discharge all taxes, assessments, and
governmental charges or levies imposed upon it, including, without
limitation, all current tax liabilities of all kinds, all required
withholdings of income taxes of employees, all required old age and
unemployment contributions, and all so-called provider taxes.
(d) Annual Audited Reporting Requirements. Furnish to Lessor, as soon as
available and in any event within ninety (120) days after the end of each
fiscal year of Guarantor, annual financial statements of the Guarantor,
which shall be audited and certified by an independent certified public
accountant reasonably acceptable to Lessor as (i) fairly presenting the
financial condition of Guarantor as at the end of such fiscal year and the
results of the operations of Guarantor for such period and (ii) having been
prepared in accordance with GAAP. In addition, Guarantor will furnish to
the Lessor such other financial information of the Guarantor as the Lessor
shall deem reasonably necessary. All financial statements shall be in form
and detail as the Lessor shall from time to time reasonably request.
Guarantor agrees that all financial statements will be true and correct as
of their respective dates in all material respects and will fairly present
the financial condition of the Guarantor and such financial statements (or
the notes thereto) will not omit any liabilities, direct or indirect, fixed
or contingent, of a material nature.
(e) Examination and Visitation By Lessor. At any reasonable time and from
time to time during normal business hours, permit Lessor or its
representatives to examine and make copies and abstracts from the records
and books of account of, and visit the properties of the Guarantor, and to
discuss the affairs, finances and accounts of the Guarantor with any of
Lessor's respective officers, directors or employees.
(f) Accounting Records. Keep adequate records and books of account, with
complete entries made in accordance with GAAP consistently applied,
reflecting its financial transactions.
(g) Conduct of Business. Cause Lessee to conduct the operation of the
Nursing Home at all times in compliance with applicable laws and
regulations relating thereto and cause all licenses, permits, certificates
of need, Medicaid and Medicare agreements and any other agreements
necessary for the use and operation of the Nursing Home or as may be
necessary for participation in the Medicaid and Medicare programs to remain
in effect without reduction in the number of licensed beds or beds
authorized for use in the Medicaid or Medicare programs (to the extent the
Nursing Home is currently participating in such programs).
(h) Comply with Laws. Comply and cause the Lessee to comply with all
applicable statutes and governmental regulations; pay and cause the Lessee
to pay, all taxes, assessments, charges, claims for labor, supplies, rent,
and other obligations prior to the date the same become overdue, provided
that Guarantor (or Lessee, as applicable) shall have the right to contest
the validity or amount of such taxes, assessments, charges or claims
provided (a) such contest is in good faith, (b) Guarantor provides Lessor
written notice of such contest, (c) if requested by Lessor, Guarantor
either pays the amount due or claimed to be due prior to such contest or
deposits an amount (together with any interest and penalties that may
accrue during the period of such contest) with Lessor which, together with
any bond provided under part (d), will be adequate for payment in the event
such contest is unsuccessful, and (d) no lien is imposed on the Property
or, if imposed, such lien is promptly bonded off or otherwise removed.
4. Events of Default. The Guarantor's failure to properly and timely
perform or observe any covenant or condition set forth in this Guaranty
which is not cured with any. applicable cure period as set forth herein or,
if no cure period is specified therefor, is not cured within thirty (30)
days of Lessor's notice to Guarantor of such default, or the filing by or
against the Guarantor of any proceeding under bankruptcy or insolvency
laws, shall constitute an "Event of Default" hereunder and under the Lease.
5. Waiver of Subrogation. The Guarantor hereby irrevocably waives and
relinquishes as against Lessor any right of subrogation or other right of
reimbursement from the Lessee and any other right to payment from the
Lessee arising out of or on account of any sums paid or agreed to be paid
by the Guarantor under this Guaranty, whether any such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, secured, or unsecured. The provisions of this
subparagraph are made for the express benefit of the Lessee as well as the
Lessor and may be enforced independently by the Lessee.
6. Successors and Assigns. This Guaranty shall be binding upon, and inure
to the benefit of, the parties hereto and their respective heirs, legal
representatives, successors, and assigns. Specifically, Guarantor
acknowledges and agrees that this Guaranty may be assigned by the Lessor as
collateral security for a loan or loans encumbering the Property, and, upon
such assignment, the assignee shall possess all rights and interests of
Lessor hereunder.
7. Severability. In the event that any provision hereof is deemed to be
invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Guaranty shall be
construed as not containing such provisions, and the invalidity of such
provisions shall not affect other provisions hereof which are otherwise
lawful and valid and shall remain in full force and effect.
8. Notices. Any notice or other communication required or permitted to be
given pursuant to this Guaranty or by applicable law shall be in writing
and shall be deemed received on the date delivered, if delivered in person
to the person or department specified below, or three (3) days after
depositing the same in the U.S. Mail, certified or registered, with return
receipt requested, or one (1) day following the date deposited with Federal
Express or other national overnight carrier, and in each case addressed as
follows:
If to the Guarantor to:
Centennial HealthCare Corporation
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xx. Xxxx X. Xxxx
If to the Lessor to:
EBT Healthcare Properties, L.P.
0000 Xxxxxxxx Xxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxxx
Any party may change its address to another single address by notice given
as herein provided, except that any change of address must be actually
received in order to be effective. 9. Waiver. The failure by the Lessor at
any time or times hereafter to require strict performance by the Guarantor
of any of the provisions, warranties, terms, and conditions contained
herein or in any other agreement, document, or instrument now or hereafter
executed by the Guarantor and delivered to the Lessor shall not waive,
affect, or diminish any right of the Lessor hereafter to demand strict
compliance or performance therewith and with respect to any other
provisions, warranties, terms, and conditions contained in such agreements,
documents, and instruments, and any waiver of any Default shall not waive
or affect any other Default, whether prior or subsequent thereto and
whether of the same or a different type. None of the warranties,
conditions, provisions, and terms contained in this Guaranty or in any
agreement, document, or instrument now or hereafter executed by the
Guarantor and delivered to the Lessor shall be deemed to have been waived
by any act or knowledge of the Lessor, its agents, officers, or employees,
but only by an instrument in writing, signed by an officer of the Lessor,
and directed to the Guarantor specifying such waiver.
10. Expenses. If, at any time or times hereafter, the Lessor employs
counsel to advise or provide other representation with respect to this
Guaranty or any other agreement, document, or instrument heretofore, now,
or hereafter executed by the Guarantor and delivered to the Lessor with
respect to the Lessee or the Lease Obligations, or to commence, defend, or
intervene, file a petition, complaint, answer, motion, or any other
pleading or to take any other action in or with respect to any suit or
proceeding relating to this Guaranty or any other agreement, instrument, or
document heretofore, now, or hereafter executed by the Guarantor and
delivered to the Lessor with respect to the Lessee or the Lease
Obligations, or to represent the Lessor in any litigation with respect to
the affairs of the Guarantor or to enforce any rights of the Lessor or
obligations of the Guarantor or any other person, firm, or corporation that
may be obligated to the Lessor by virtue of this Guaranty, or any other
agreement, document, or instrument heretofore or hereafter delivered to the
Lessor by or for the benefit of the Guarantor with respect to the Lessee or
the Lease Obligations, then in any such events, all of the reasonable
attorneys' fees arising from such services, including fees in any appellate
or bankruptcy proceedings, and any other reasonable expenses, costs, and
charges relating to this Guaranty, the Lessee or the Lease Obligations,
shall constitute additional obligations of the Guarantor payable on demand.
11. Singular and Plural. Singular terms shall include the plural forms, and
vice versa.
12. Entire Agreement. This Guaranty constitutes the entire agreement and
supersedes all prior agreements and understandings both oral and written,
between the parties with respect to the subject matter hereof, including,
without limitation, that prior Lease Guaranty Agreement from Guarantor to
Lessor dated July 6, 1994 relating to the Lease.
13. THE VALIDITY, INTERPRETATION, ENFORCEMENT, AND EFFECT OF THIS GUARANTY
SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF
GEORGIA.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
properly executed as of the day and year first above written.
CENTENNIAL HEALTHCARE CORPORATION,
a Georgia corporation
By: /s/ Xxxx X. Xxxx
-----------------------------
Xxxx X. Xxxx
Its Vice President
EXHIBIT A
Description of Lease
(Clearwater)
Second Amended and Restated Lease Agreement by and between EBT
Healthcare Properties, L.P. and Centennial HealthCare Properties Corporation for
the nursing home facility known as Clearwater Health & Rehabilitation, dated as
of October 1, 1998.
SCHEDULE 10.14
CHPC has entered into lease guarantee agreements substantially identical
to Exhibit 10.14 as follows:
1. Lease Guarantee Agreement dated October 1, 1998 with EBT Healthcare
Properties, L.P. for the Ft. Worth, Texas facility.
2. Lease Guarantee Agreement dated October 1, 1998 with EBT Healthcare
Properties, L.P. for the Libby, Montana facility.
3. Lease Guarantee Agreement dated October 1, 1998 with EBT Healthcare
Properties, L.P. for the Libby, Montana facility.
4. Lease Guarantee Agreement dated October 1, 1998 with EBT Healthcare
Properties, L.P. for the Union, Mississippi facility.
5. Lease Guarantee Agreement dated October 1, 1998 with EBT Healthcare
Properties, L.P. for the Natchez, Mississippi facility.
6. Lease Guarantee Agreement dated October 1, 1998 with EBT Healthcare
Properties, L.P. for the Winona, Mississippi facility.
7. Lease Guarantee Agreement dated October 1, 1998 with EBT Healthcare
Properties, L.P. for the Franklinton, Louisiana facility.
8. Lease Guarantee Agreement dated October 1, 1998 with EBT Healthcare
Properties, L.P. for the Bossier City, Louisiana facility.
14
9. Lease Guarantee Agreement dated October 1, 1998 with EBT Healthcare
Properties, L.P. for the Ferriday, Louisiana facility.
10. Lease Guarantee Agreement dated October 1, 1998 with EBT Healthcare
Properties, L.P. for the McComb, Mississippi facility.
11. Lease Guarantee Agreement dated October 1, 1998 with EBT Healthcare
Properties, L.P. for the Starkville, Mississippi facility.
