EXHIBIT 10.57
GUARANTY OF LEASE
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Guaranty of Lease, dated as of October 1, 1997, by Iatros Health Network,
Inc., a Delaware corporation herein, together with any corporation succeeding
thereto by consolidation, merger or acquisition of its assets substantially as
an entirety, called "Guarantor".
G&L Hampden, LLC, a Delaware limited liability company (herein together
with its successors and assigns as owner of the property hereinafter described,
called "Landlord"), is about to acquire an interest in the land described on
Schedule A hereto together with the buildings, fixtures and other improvements
located on said land (collectively, the "Property"), and lease said Property to
Hampden Holding Group, Inc. ("Tenant"), a wholly owned subsidiary of Guarantor,
pursuant to a lease dated as of the date hereof (the "Lease") effective upon
Tenant becoming licensed to operate the Property as a nursing home. Landlord is
unwilling to acquire the Property or enter into the Lease unless the Guarantor
enters into this agreement. The acquisition by Landlord of the Property and the
lease of the Property to Tenant is of direct benefit to the Guarantor.
NOW, THEREFORE, in consideration of the execution and delivery of the
Lease and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Guarantor, intending to be legally bound,
covenants and agrees with Landlord as follows:
1. The Guarantor unconditionally and irrevocably guarantees to Landlord
that (a) all Basic Rent and Additional Rent (as defined in the Lease) and all
other sums stated in the Lease to be payable by the Tenant, insurance premiums
and costs of maintenance and repair, whether due by acceleration or otherwise,
including costs and expenses of collection (collectively, the "Monetary
Obligations") will be promptly paid in full when due, in accordance with the
provisions thereof, and (b) Tenant will perform and observe each and every
covenant, agreement, term and condition in the Lease (the "Performance
Obligations"). If for any reason any Monetary Obligations shall not be paid
promptly when due after receipt of required notice to Tenant under the Lease, if
any, and after the expiration of any applicable grace period therefor, Guarantor
shall, immediately upon demand, pay the same to Landlord with interest due
thereon as stated in the Lease. In addition to the foregoing, the Guarantor
hereby becomes surety to Landlord for the due and punctual payment and
performance of the Monetary Obligations and the Performance Obligations and the
Guarantor hereby waives all defenses of any nature that may be available to
Guarantor as a surety and guarantor other than the defenses of payment of the
Monetary Obligations and performance of the Performance Obligations.
2. Landlord may enforce this Guaranty without first having recourse
against Tenant or exhausting its rights or remedies under the Lease; provided,
that nothing herein shall prohibit Landlord from exercising its rights against
both Guarantor and Tenant simultaneously. This Guaranty and the obligations of
the Guarantor hereunder are present, primary, direct, continuing, unconditional,
irrevocable and absolute and independent of any obligations of Tenant. This
Guaranty constitutes the agreement to pay money and to act in the first instance
and is not to be construed as a contract of indemnity or as a guaranty of
collectability.
3. The obligations, covenants, agreements and duties of the Guarantor
under this Guaranty shall in no way be discharged, affected or impaired by any
of the following and Landlord may at any time and from time to time, with or
without consideration, without prejudice to any claim against Guarantor
hereunder, without in any way changing, releasing or discharging Guarantor from
its liabilities and obligations hereunder and without notice to or the consent
of Guarantor waive, release or consent to any of the following:
(a) the waiver by Landlord of the performance or observance by Tenant
or any other party of any of the agreements, covenants, terms or conditions
contained in the Lease;
(b) the extension, in whole or in part, of the time for payment by
Tenant of any sums owing or payable under the Lease, or of any other sums or
obligations under or arising out of or on account of the Lease, or the renewal
or extension of the Lease;
(c) any sublease of any or all of the Property by Tenant to
any other person;
(d) any assumption by any person of any or all of Tenant's
obligations under, or Tenant's assignment of any or all of its interest in the
Lease;
(e) the waiver or release or modification or amendment (whether
material or otherwise) of any provision of the Lease, and Guarantor hereby
consents to any such waivers, releases, modifications and amendments and to any
future terms or agreements heretofore or hereafter made by Landlord and Tenant
in accordance with the terms of the Lease, provided that Guarantor shall not be
responsible for any increase in the obligations of tenant under the Lease
resulting solely from an amendment to the Lease made by a tenant which was not,
at the time of such amendment, an affiliate of Guarantor;
(f) any failure, omission or delay on the part of Landlord to
enforce, assert or exercise any right, power or remedy conferred on or available
to Landlord in or by the Lease or this Guaranty, or any action on the part of
Landlord granting indulgence or extension in any form whatsoever;
(g) the voluntary or involuntary liquidation, dissolution, sale of
all or substantially all of the assets, marshaling of assets and liabilities,
receivership, conservatorship, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization or other similar proceeding affecting
Landlord, Tenant or Guarantor or any of their assets or any impairment,
modification, release or limitation of liability of Landlord, Tenant or
Guarantor or any of their estates in bankruptcy or of any remedy for the
enforcement of such liability resulting from the operation of any present or
future provision of the Federal Bankruptcy Act or other similar statute or from
the decision of any court;
(h) the release of Tenant from the performance or observance of any
of the agreements, covenants, terms or conditions contained in the Lease by
operation of law;
(i) the power or authority or lack thereof of Tenant to
execute, acknowledge or deliver the Lease;
(j) the legality, validity or invalidity of the Lease;
(k) any defenses whatsoever that Tenant may or might have to the
payment of the Monetary Obligations except for the payment thereof;
(l) the existence or non-existence of Tenant as a legal entity or the
existence or non-existence of any business relationship between Tenant and
Guarantor or between Landlord and Guarantor;
(m) any sale or assignment by Landlord of this Guaranty and/or the
Lease (including any assignment by Landlord to any Mortgagee (as defined in the
Lease);
(n) any default by Guarantor under this Guaranty or any right of
setoff, counterclaim or defense (other than payment in full of the Monetary
Obligations in accordance with the terms of the Lease) that Guarantor may or
might have to its respective undertakings, liabilities and obligations
hereunder, each and every such defense being hereby waived by Guarantor; or
(o) any other cause, whether similar or dissimilar to any of the
foregoing, that might constitute a legal or equitable discharge of Guarantor
(whether or not Guarantor shall have knowledge or notice thereof) other than
payment in full of the Monetary Obligations.
Without in any way limiting the generality of the foregoing, Guarantor
specifically agrees that if Tenant's obligations under the Lease are modified or
amended with the express written consent of Landlord, this Guaranty shall extend
to such obligations as so amended or modified but shall not extend to any
increase in the obligations of
Tenant under the Lease if such modification or amendment was made by a tenant
which was not, at the time of such modification or amendment, an affiliate of
Guarantor.
4. Guarantor hereby waives notice (other than any notice required by
the terms of the Lease), demand, presentment, protest and notice of protest.
5. Guarantor agrees that, in the event of the rejection or
disaffirmance of the Lease by Tenant or Tenant's trustee in bankruptcy pursuant
to bankruptcy law or any other law affecting creditors rights, the Guarantor
will, if Landlord so requests, assume all obligations and liabilities of Tenant
under the Lease, to the same extent as if the Guarantor had been originally
named instead of Tenant as a party to such document and there had been no such
rejection or disaffirmance; and the Guarantor will confirm such assumption in
writing at the request of Landlord upon or after such rejection or
disaffirmance. The Guarantor, upon such assumption, shall have all rights of
Tenant under the Lease (to the extent permitted by law).
6. The following events following the expiration of the
applicable cure periods, in this Paragraph are sometimes referred to as an
"Event of Default":
a. If default shall be made in the payment of any sum
required to be paid by Guarantor under this Guaranty;
b. If default shall be made in the observance or performance
of any of the other covenants in this Guaranty which the Guarantor is required
to observe and perform and such default shall continue for thirty (30) days
after written notice to the Guarantor provided that the time within which Tenant
is permitted to cure the default shall be extended for such period as may be
necessary for the curing thereof provided Guarantor is continuously, diligently
and in good faith prosecuting such cure;
c. If any representation or warranty made by Guarantor herein
or in any certificate, demand or request proves to be incorrect in any material
respect when made and the representation or warranty continues to be incorrect
for a period of thirty (30) days after written notice from Landlord, or if the
facts cannot be changed so as to make the representation or warranty correct
within such thirty day period, Guarantor fails to provide Landlord with
protection (including, by way of example, additional collateral or letters of
credit) against loss arising from breach of such representation or warranty,
such protection to be satisfactory to Landlord in its sole discretion;
d. If a petition for relief is filed under the Bankruptcy
Code by Guarantor or the Tenant to place Guarantor or Tenant under the
protection of the Bankruptcy Code;
e. If any involuntary petition in bankruptcy shall be filed
against Guarantor under any Federal or State bankruptcy or insolvency act and
shall not have been dismissed within ninety (90) days of the filing thereof; and
f. If a receiver or similar official shall be appointed for
Guarantor or any substantial portion of the property of Guarantor by any court
and any such receiver shall not have been discharged within thirty (30) days
from the date of his or her appointment.
Upon the occurrence of any such Event of Default, Landlord shall have whatever
rights at law or equity it might have to enforce this Guaranty.
7. Guarantor agrees that any claim or claims or liens or security
interests it may now have or may in the future have against Tenant are or shall
be subordinate to Tenant's obligations to Landlord under the Lease. Guarantor
waives all rights of subrogation against Tenant for any amounts expended by
Guarantor under this Guaranty.
8. If Landlord incurs any expenses in the enforcement of this Guaranty,
including reasonable attorneys' fees and disbursements, whether or not legal
action be instituted, the Guarantor shall pay the same immediately upon demand
by Landlord which shall be accompanied by evidence of such fees and
disbursements.
9. Landlord shall not by any act of omission or commission be deemed to
waive any of its rights or remedies hereunder unless such waiver be in writing
and signed by Landlord, and then only to the extent specifically set forth
therein; a waiver on one event shall not be construed as continuing or as a bar
to or waiver of such right or remedy on a subsequent event.
10. All notices, demands, requests, approvals or consents made pursuant
to, under or by virtue of this Guaranty must be in writing and mailed to the
party to which the notice, demand, request, approval or consent is being sent by
certified or registered mail, return receipt requested, or by overnight courier
delivery, addressed as follows, or at such other address as such party may
designate by notice to the other party:
To Guarantor:
Iatros Health Network, Inc.
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
To Landlord:
G&L Hampden, LLC
c/o G&L Realty Corp.
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
With a copy to:
Day, Xxxxx & Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Any notice, demand, request, approval or consent given in accordance
with the provisions of this Paragraph 10 shall be effective on the date of
receipt or delivery or when proper delivery is refused by the addressee.
11. Notice of acceptance of this Guaranty by Landlord and notice of any
obligations or liabilities contracted or incurred by any Tenant under the Lease
are hereby waived by the Guarantor.
12. This Guaranty shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
13. This Guaranty may not be modified or amended except by a written
agreement duly executed by Guarantor and Landlord and Landlord's first fee
mortgagee from time to time, if any. This Guaranty shall be binding upon the
Guarantor, its successor and assigns by merger, consolidation or sale of
substantially all assets, and shall inure to the benefit of Landlord and its
successors and assigns as permitted hereunder, including, without limitation,
any mortgagee of Landlord's interest in the Property. In the event any one or
more of the provisions contained in this Guaranty shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Guaranty, but this Guaranty shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. As used herein the term
"Tenant" includes its successors and assigns with respect to the Lease.
14. The rights of Landlord under this Guaranty may be assigned in whole or
in part by Landlord, its successors and assigns, whether directly or by way of a
grant of a security interest herein, without the consent of Guarantor.
15. Within 15 days after request by Landlord, Guarantor shall deliver a
certificate confirming that this Guaranty is in full force and effect and
unamended (or, if amended, specifying such amendment), and whether, to the
knowledge of Guarantor, any default exists under the Lease or under this
Guaranty.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed by its officer thereunto duly authorized.
Iatros Health Network, Inc.
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
______________________________
Xxxxxxxx X. Xxxxxxxxxx
President
