CONSENT AND SUBORDINATION AGREEMENT
AMONG
IHS FACILITY MANAGEMENT, INC.,
INTEGRATED HEALTH SERVICES FRANCHISING CO., INC.,
LYRIC HEALTH CARE HOLDINGS III, INC.,
LYRIC HEALTH CARE LLC,
MONARCH PROPERTIES, LP
AND
THE ENTITIES LISTED ON ATTACHED EXHIBIT A
DATED AS OF JUNE 23, 1998
CONSENT AND SUBORDINATION AGREEMENT
THIS CONSENT AND SUBORDINATION AGREEMENT (this "Agreement") is made and
entered into as of June 23, 1998, by IHS FACILITY MANAGEMENT, INC., a Delaware
corporation, the address of which is 00000 Xxx Xxx Xxxxxxxxx, Xxxxxx Xxxxx,
Xxxxxxxx 00000 ("Manager"), INTEGRATED HEALTH SERVICES FRANCHISING CO., INC., a
Delaware corporation, the address of which is 00000 Xxx Xxx Xxxxxxxxx, Xxxxxx
Xxxxx, XX 00000 ("Franchisor"), the entities listed on attached EXHIBIT A (each,
a "Subsidiary" and, collectively, the "Subsidiaries"), LYRIC HEALTH CARE
HOLDINGS III, INC., a Delaware corporation, the address of which is 00000 Xxx
Xxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000 ("Master Lessee"), LYRIC HEALTH CARE
LLC, a Delaware limited liability company, the address of which is 00000 Xxx Xxx
Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000 ("Lyric") and MONARCH PROPERTIES, LP, a
Delaware limited partnership, the address of which is 0000 Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxx, Xxxxxxx 00000 ("Master Lessor").
The circumstances underlying the execution of this Agreement are as
follows:
A. Capitalized terms used but not otherwise defined in this Agreement shall
have the respective meanings given them in Section 1 herein.
B. Concurrently herewith, Master Lessor has acquired from the Subsidiaries
the Facilities. Also concurrently herewith, Master Lessor and Master Lessee have
entered into the Master Lease and Master Lessee has subleased the Facilities to
the respective Subsidiaries who owned them immediately prior to Master Lessor's
acquisition of them. The obligations of Master Lessee and the respective
Subsidiaries under the Master Lease are secured by, among other things, (i) the
Lyric Guaranty and (ii) security interests in the Secured Property granted by
Master Lessee and each of the Subsidiaries to Master Lessor pursuant to the
Security Agreements.
C. Also concurrently herewith, Lyric has entered into the Master Management
Agreement with Manager, and with the consent of Master Lessee, each of the
Subsidiaries has entered into a Facility Management Agreement with Manager,
pursuant to which Manager has agreed to provide certain management services to
the respective Facilities. Lyric also has entered into a Master Franchise
Agreement with Franchisor, and with the consent of Master Lessee, each of the
Subsidiaries has entered into a Facility Franchise Agreement with Franchisor,
pursuant to which Franchisor has agreed to make available to Lyric and the
Subsidiaries certain trade names, trade marks and systems in connection with the
Subsidiaries' operation of the respective Facilities.
D. The Master Management Agreement provides for the payment to Manager of
certain Fees, including the Base Management Fee and the Incentive Management
Fee, and provides that Manager may make Manager Loans to the respective
Subsidiaries to provide working capital and/or to make capital or other
improvements to the Facilities.
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E. The Franchise Agreement also provides for the payment to Franchisor of
certain Fees, including the Franchise Fee.
F. Master Lessor is willing to consent to the Management Agreement only if
Manager agrees, among other things, that: (i) the Management Agreement,
including without limitation any provisions therein for the payment or
repayment, as the case may be, of any Fees and Manager Loans payable from time
to time, is subject and subordinate in all respects to the rights of Master
Lessor and the obligations of Lyric, Master Lessee and the Subsidiaries under
the Lease Documents; (ii) upon the occurrence of certain events as set forth in
this Agreement, Master Lessor shall have the right to terminate the respective
Facility Management Agreements; and (iii) Master Lessor, as owner of the
Facilities, will not be bound by any of the obligations of the Subsidiaries,
Master Lessee or Lyric under the Management Agreement or be responsible under
the Management Agreement in any capacity.
G. Master Lessor is willing to consent to the Franchise Agreement only if
Franchisor agrees, among other things, that: (i) the Franchise Agreement,
including without limitation any provisions therein for the payment of any Fees
payable from time to time, is subject and subordinate in all respects to the
rights of Master Lessor and the obligations of Lyric, Master Lessee and the
Subsidiaries under the Lease Documents; (ii) upon the occurrence of certain
events as set forth in this Agreement, Master Lessor shall have the right to
terminate the respective Facility Franchise Agreements; and (iii) Master Lessor,
as owner of the Facilities, will not be bound by any of the obligations of the
Subsidiaries, Master Lessee or Lyric under the Franchise Agreement or be
responsible under the Franchise Agreement in any capacity.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, each of the undersigned agrees as
follows:
1. DEFINITIONS. The following terms shall have the respective meanings
given them below:
"Annual Fee" means the "Annual Fee," as defined in the Facility Franchise
Agreement.
"Base Management Fee" means the "Base Management Fee," as defined in the
Management Agreement.
"Code" means the Federal Bankruptcy Code, 11 USC ss.101, et. seq., as the
same may be amended from time to time
"Continuing Annual Fee" means the "Continuing Annual Fee," as defined in
the Master Franchise Agreement.
"Deferred Franchise Fees" means any Franchise Fee (a) that Franchisor would
be entitled, pursuant to the Franchise Agreement, to receive during any calendar
month and (b) the payment of which is deferred for any reason, including as
required by any provision of this Agreement.
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"Deferred Management Fees" means any Base Management Fee and/or Incentive
Management Fee (a) that Manager would be entitled, pursuant to the Management
Agreement, to receive during any calendar month or fiscal quarter, as the case
may be, and (b) the payment of which is deferred for any reason, including as
required by any provision of this Agreement.
"Facilities" means the healthcare facilities described on attached EXHIBIT
A.
"Facility" means any of the Facilities.
"Facility Franchise Agreement" means each Facility Franchise Agreement
dated as of the date hereof among Franchisor, Lyric and a Subsidiary, consented
to by Master Lessee.
"Facility Funds" means the "Facility Funds," as defined in the Management
Agreement.
"Facility Management Agreement" means each Facility Management Agreement
dated as of the date hereof between Manager and a Subsidiary, consented to by
Master Lessee.
"Facility Sublease" means each Facility Sublease dated as of the date
hereof between Master Lessee and a Subsidiary.
"Fees" means any fees payable by Lyric, Master Lessee or a Subsidiary to
Manager or Franchisor pursuant to the Management Agreement or the Franchise
Agreement, including without limitation the Base Management Fee, the Incentive
Management Fee and any Franchise Fee.
"Financial Covenants" means the covenants of Lyric set forth in Section 13
of the Lyric Guaranty.
"Franchise Agreement" means, collectively, the Master Franchise Agreement
and each Facility Franchise Agreement.
"Franchise Fee" means any fee payable pursuant to the Franchise Agreement,
including without limitation the Annual Fee and the Continuing Annual Fee.
"Incentive Management Fee" means the "Incentive Management Fee," as defined
in the Management Agreement.
"Lease Documents" means, collectively, the Master Lease, the Facility
Subleases, the Lyric Guaranty and any other documents executed and/or delivered
by Master Lessee, Lyric or any of the Subsidiaries in connection with or
pursuant to the Master Lease and the Facility Subleases.
"Lyric Guaranty" means a Guaranty dated as of the date hereof executed by
Lyric and pursuant to which Lyric has guaranteed to Master Lessor the payment
and performance by Master Lessee and the Subsidiaries of their obligations under
the Master Lease and the Facility Subleases.
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"Management Agreement" means, collectively, the Management Agreement and
each Facility Management Agreement.
"Manager Loan(s)" means any loan(s) made by Manager to any of the
Subsidiaries pursuant to the Management Agreement, whether to provide working
capital or to make capital or other improvements to any of the Facilities.
"Master Franchise Agreement" means the Amended and Restated Master
Franchise Agreement dated as of the date hereof between Franchisor and Lyric.
"Master Lease" means the Master Lease dated as of the date hereof between
Master Lessor and Master Lessee.
"Master Management Agreement" means the Amended and Restated Master
Management Agreement dated as of the date hereof between Manager and Lyric.
"Owner Expenditures" means the "Owner Expenditures," as defined in Section
3.16(a) of the Master Management Agreement.
"Proprietary Materials" the trademarks, trade names, service marks,
computer software, trade dress, uniforms and copyrighted or copyrightable
manuals, contract forms and other document forms covered by the Franchise
Agreement.
"Secured Property" means the property of the Subsidiaries in which the
Subsidiaries and Master Lessee has granted to Master Lessor a security interest
pursuant to any of the Security Agreement.
"Security Agreement" means the Security Agreement dated as of the date
hereof among the respective Subsidiaries, Master Lessee and Master Lessor.
2. CONSENT. Subject to the terms and conditions of this Agreement, Master
Lessor hereby consents to the Management Agreement and the Franchise Agreement;
provided, however, that such consent shall not be deemed to be a waiver by
Master Lessor of any rights of the Master Lessor, or the duties and obligations
of the Master Lessee, under the Master Lease.
3. SUBORDINATION OF MANAGEMENT AGREEMENT.
(a) The rights of Manager and the obligations of Lyric, Master Lessee
and the Subsidiaries under the Management Agreement, and any renewals,
amendments, extensions, replacements, consolidations or substitutions thereof,
are and shall be subject and subordinate at all times and in all respects to the
rights of Master Lessor and all of the obligations of Lyric, Master Lessee and
the Subsidiaries under the Lease Documents and all amendments, extensions,
replacements, modifications, renewals or restatements thereof.
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(b) Without limiting the generality of Subsection (a) above, the
obligations of Lyric, Master Lessee and/or the Subsidiaries to pay or repay, as
the case may be, any Fees and/or Manager Loans under the Management Agreement
shall be and at all times remain subject and subordinate in all respects to all
of the obligations of Lyric, Master Lessee and the Subsidiaries to Master Lessor
under the Lease Documents.
(c) No portion of the Base Management Fee or Incentive Management Fee
or Deferred Management Fees shall be paid without the prior, written approval of
Master Lessor at any time after (i) the occurrence and continuance of an Event
of Default under the Master Lease or any Facility Sublease, or (ii) a default by
Lyric under the Lyric Guaranty that is not cured within any applicable grace or
cure period specified therein, or (iii) a default by any of the Subsidiaries,
Master Lessee, Lyric, Franchisor or Manager under this Agreement that is not
cured within any applicable grace or cure period specified herein.
(d) If (i) during the course of any fiscal year of a Subsidiary,
Manager has received any Incentive Management Fee and (ii) as of the end of such
fiscal year, Lyric is not in compliance with the Financial Covenants, then
Manager may retain such Fees only if and to the extent that the payment of such
Fees does not result in a violation by Lyric of the Financial Covenants as of
the end of such fiscal year, and Manager immediately shall repay to Master
Lessee or the applicable Subsidiary the excess. Manager shall deliver to Master
Lessor, within one hundred and twenty (120) days after the end of each fiscal
year of Master Lessee, a written reconciliation, in form and substance
satisfactory to Master Lessor, that sets forth (i) the aggregate Incentive
Management Fee actually paid to Manager during such fiscal year; (ii) the amount
of any Deferred Management Fees that have accrued during such fiscal year; and
(iii) such information as is required by Master Lessor to enable Master Lessor
to determine whether, as of the end of such fiscal year, Lyric is in compliance
with the Financial Covenants and the amount of Incentive Management Fee, if any,
that Manager is required to repay.
(e) If Manager accrues any Deferred Management Fees during any
calendar month or fiscal quarter of a Subsidiary, such Deferred Management Fees
may be paid to Manager only to the extent that the payment of such Deferred
Management Fees to Manager will not result in a violation by Lyric of the
Financial Covenants for the period during which such Deferred Management Fees
are paid to Manager.
(f) If Master Lessor terminates the Master Lease following an Event of
Default thereunder, Master Lessor shall have the right to terminate each
Facility Management Agreement pursuant to Section 8.1 of the Master Management
Agreement (which is incorporated into each Facility Management Agreement by
reference). Without limiting the generality of the foregoing, Manager, Master
Lessee and the Subsidiaries acknowledge and agree that, if Master Lessor (i)
terminates the Master Lease or (ii) recovers possession of any Facility in
accordance with the provisions of the Master Lease, then Master Lessor shall
have the right, immediately upon written notice to Manager, to terminate the
Facility Management Agreement relating to such Facility. If Master Lessor
terminates the Management Agreement in accordance with this Section, the
following provisions shall apply:
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(i) Manager agrees to extend all reasonable cooperation to Master
Lessor and its nominee in order to accomplish an orderly transition of
management of the applicable Facility, and, if requested by such
party, Manager shall continue to manage the Facility on an "at will"
basis for a period not to exceed ninety (90) days from the effective
date of such termination, until such time as an orderly transfer of
management has been accomplished.
(ii) In order to further the orderly transition of management of
the applicable Facility, Manager agrees to:
(A) Promptly provide Master Lessor or its nominee with an
accounting of Manager's activities during the term of the
applicable Facility Management Agreement;
(B) Promptly turn over to Master Lessor or its nominee all
funds and other property of the applicable Subsidiary that is in
Manager's possession or under its control;
(C) Provide to Master Lessor or its nominee all information
requested by Master Lessor or its nominee and necessary for the
preparation and filing of any and all necessary applications and
notifications of any federal or state governmental authority
having jurisdiction over a change in the operational control of
the applicable Facility, and use its commercially reasonable
efforts to cause the operating health care licenses to be
transferred to Master Lessor or its nominee; and
(D) Supply to Master Lessor or its nominee any and all other
information that reasonably may be required in order to effect an
orderly transfer of the applicable Facility.
(iii) Neither Master Lessor nor its nominee shall be responsible
for the payment to Manager of any Fees payable to Manager pursuant to
the applicable Facility Management Agreement and attributable to the
period prior to the date on which Master Lessor terminates the Master
Lease with respect to the applicable Facility or recovers possession
of the applicable Facility in accordance with the provisions of the
Master Lease.
4. OTHER COVENANTS OF MANAGER. Manager hereby specifically agrees,
represents and acknowledges to Master Lessor the following.
(a) Manager has reviewed and consents to and approves the terms and
conditions of the Master Lease.
(b) Master Lessor shall not be deemed an "Operator", as that term is
normally
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used in the nursing care industry, and there shall be no obligation by Master
Lessor to satisfy or perform any of the terms, conditions, obligations or duties
contained in the Management Agreement. Manager shall continue to look solely to
Master Lessee, Lyric and the Subsidiaries for all indemnifications, duties and
obligations of the "Operator" arising under the Management Agreement. Master
Lessor shall have no fiduciary duty to Manager whatsoever, and neither Master
Lessee nor the Subsidiaries shall, under any circumstance, be deemed to act as
Master Lessor's agent in the performance of the obligations of the owner under
the Management Agreement.
(c) Manager, as the Manager under the Management Agreement, shall
extend all reasonable and necessary cooperation to Master Lessor, Lyric and the
Subsidiaries, in order to permit Master Lessee, Lyric and the Subsidiaries to
provide copies to Master Lessor of all financial statements, reports or notices
required by the terms and conditions of the Master Lease.
(d) Manager shall not cause or, by failure to perform under the
Management Agreement, create a default under the Master Lease. Manager shall not
amend or modify the Management Agreement in any material respect without Master
Lessor's prior written consent, which consent shall not be unreasonably
withheld.
(e) Manager agrees that any transfer of the Master Management
Agreement other than to the transferee in a Transfer as to which Master Lessor's
approval is not required under the Master Lease, or any substitution of parties
thereunder other than the substitution of the transferee in a Transfer as to
which Master Lessor's approval is not required under the Master Lease, shall
require the prior consent of Master Lessor.
5. SUBORDINATION OF FRANCHISE AGREEMENT.
(a) The rights of Franchisor and the obligations of Lyric, Master
Lessee and the Subsidiaries under the Franchise Agreement, and any renewals,
amendments, extensions, replacements, consolidations or substitutions thereof,
are and shall be subject and subordinate at all times and in all respects to the
rights of Master Lessor and all of the obligations of Lyric, Master Lessee and
the Subsidiaries under the Lease Documents and all amendments, extensions,
replacements, modifications, renewals or restatements thereof.
(b) Without limiting the generality of Subsection (a) above, the
obligations of Lyric, Master Lessee and/or the Subsidiaries to pay or repay, as
the case may be, any Fees under the Franchise Agreement shall be and at all
times remain subject and subordinate in all respects to all of the obligations
of Lyric, Master Lessee and the Subsidiaries to Master Lessor under the Lease
Documents.
(c) No portion of any Franchise Fee or Deferred Franchise Fees shall
be paid at any time after (i) the occurrence of an Event of Default under the
Master Lease, or (ii) a default by Lyric under the Lyric Guaranty, or (iii) a
default by any of the Subsidiaries, Master Lessee, Lyric or Franchisor under
this Agreement.
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(d) If Franchisor accrues any Deferred Franchise Fees during any
calendar month or fiscal quarter of a Subsidiary, such Deferred Franchise Fees
may be paid to Franchisor only to the extent that the payment of such Deferred
Franchise Fees to Franchisor will not result in a violation by Lyric of the
Financial Covenants for the period during which such Deferred Franchise Fees are
paid to Franchisor.
(e) If Master Lessor terminates the Master Lease following an Event of
Default thereunder, Master Lessor shall have the right to terminate each
Facility Franchise Agreement pursuant to Section 8.1 of the Master Franchise
Agreement (which is incorporated into each Facility Franchise Agreement by
reference). Without limiting the generality of the foregoing, Franchisor, Master
Lessee and the Subsidiaries acknowledge and agree that, if Master Lessor (i)
terminates the Master Lease or (ii) recovers possession of any Facility in
accordance with the provisions of the Master Lease, then Master Lessor shall
have the right, immediately upon written notice to Franchisor, to terminate the
Facility Franchise Agreement relating to such Facility. If Master Lessor
terminates the Franchise Agreement in accordance with this Section, the
following provisions shall apply:
(i) Franchisor agrees to extend all reasonable cooperation to
Master Lessor and its nominee in order to accomplish an orderly
transition of Franchise of the applicable Facility.
(ii) Neither Master Lessor nor its nominee shall be responsible
for the payment to Franchisor of any Fees payable to Franchisor
pursuant to the applicable Facility Franchise Agreement and
attributable to the period prior to the date on which Master Lessor
terminates the Master Lease with respect to the applicable Facility or
recovers possession of the applicable Facility in accordance with the
provisions of the Master Lease.
(iii) Franchisor shall deliver to Master Lessor, within thirty
(30) days after Franchisor's receipt of Master Lessor's notice of
termination, written notice identifying with specificity the
Proprietary Materials covered by the Franchise Agreement. Master
Lessor and its nominee shall not be permitted the continued use of any
Proprietary Materials in connection with the operation of a Facility.
Master Lessor and its nominee shall have no liability to Franchisor as
a result of the continued use by Master Lessor or its nominee, in
connection with its operation of any of the Facilities, of any and all
other Proprietary Materials and any other protocols, methods,
procedures, systems and ideas used by Manager in connection with its
operation of any Facility prior to the date on which the applicable
Facility Management Agreement and/or Facility Franchise Agreement is
terminated.
6. OTHER COVENANTS OF FRANCHISOR.
Notwithstanding anything to the contrary set forth in the Franchise
Agreement, if and to
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the extent that a conflict exists between the obligations of Master Lessee,
Lyric and/or any of the Subsidiaries pursuant to the Master Franchise Agreement
(including without limitation pursuant to Sections 6.12 and 13.4 thereof) and
the obligations of Master Lessee, Lyric and/or any of the Subsidiaries pursuant
to the Lease Documents, the terms of the Master Lease shall govern, and neither
Master Lessee, Lyric nor any Subsidiary shall be deemed to be in default under
the Franchise Agreement as a result of such conflict.
7. BANKRUPTCY. If the Master Lessee or the Subsidiaries, or any one of
them, commences a case under any Chapter of the Code, each of Manager and
Franchisor agrees and covenants with Master Lessor as follows:
(a) Manager or Franchisor, as the case may be, will not file any
motion or other pleading seeking relief from its obligations under the
Management Agreement or the Franchise Agreement, as the case may be,
including without limitation the filing of a motion to cause such debtor to
assume or reject the Management Agreement or Franchise Agreement, as the
case may be, prior to the confirmation of a plan of reorganization.
(b) Manager or Franchisor, as the case may be, will not serve upon any
creditors' or other committee appointed in the bankruptcy case without
Master Lessor's prior written consent, which Master Lessor may withhold in
its sole and absolute discretion.
(c) Manager or Franchisor, as the case may be, will not object to the
sale of property (including all or a portion of any Facility) either
pursuant to Section 363 of the Code or a chapter 11 plan without Master
Lessor's prior written consent, which Master Lessor may withhold in its
sole and absolute discretion.
(d) Manager or Franchisor, as the case may be, will not commence, join
in or otherwise support or cooperate with, in any manner whatsoever, (i)
any objection to Master Lessor's claim; (ii) any proceeding to determine
the value of any of the assets serving as collateral security to Master
Lessor or objection to a valuation of any of the assets serving as
collateral security to Master Lessor as determined by Master Lessor, unless
compelled to do so by duly issued process; or (iii) any action to
subordinate the claims, liens and/or security interests held by Master
Lessor.
(e) Manager or Franchisor, as the case may be, will not file, join in
or otherwise support in any manner whatsoever any motion or other pleading
seeking the appointment of a trustee or examiner without Master Lessor's
prior written consent, which Master Lessor may withhold in its sole and
absolute discretion.
(f) Manager or Franchisor, as the case may be, will not file, join in
or otherwise support in any manner whatsoever any motion or other pleading
seeking (i) the conversion of the bankruptcy case to one under another
Chapter of the Code; or (ii) the
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dismissal of the case, without Master Lessor's written consent, which
Master Lessor may withhold in its sole and absolute discretion.
(g) Manager or Franchisor, as the case may be, will not object to any
disclosure statement filed in the bankruptcy case without Master Lessor's
prior written consent, which Master Lessor may withhold in its sole and
absolute discretion.
(h) Manager or Franchisor, as the case may be, will not propose any
plan (or any modifications thereof) without Master Lessor's prior written
consent, which Master Lessor may withhold in its sole and absolute
discretion.
(i) Manager or Franchisor, as the case may be, will not vote to accept
or reject any plan (or any modifications thereof) without Master Lessor's
prior written consent, which Master Lessor may withhold in its sole and
absolute discretion.
(j) Manager or Franchisor, as the case may be, shall vote in favor of
any plan proposed by Master Lessor unless Master Lessor otherwise directs
in writing.
(k) Manager or Franchisor, as the case may be, will not object to
confirmation of any plan (or any modifications thereof) without Master
Lessor's prior written consent, which Master Lessor may withhold in its
sole and absolute discretion.
(l) Manager or Franchisor, as the case may be, will not seek
revocation of an order confirming any plan without Master Lessor's prior
written consent, which Master Lessor may withhold in its sole and absolute
discretion.
8. MISCELLANEOUS.
(a) This Agreement constitutes the sole agreement between Manager,
Franchisor, Lyric, the Subsidiaries, Master Lessee and Master Lessor with
respect to the matters set forth in this Agreement. Any promise, representation,
inducement or condition concerning or respecting the matters set forth in this
Agreement that is not expressly set forth in this Agreement shall be of no force
and effect. Manager, Franchisor, Lyric, Master Lessee and the Subsidiaries
represent to Master Lessor that, except for the Management Agreement and the
Franchise Agreement and as otherwise expressly set forth herein, there are no
other oral or written agreements, promises, representations, inducements or
conditions between the parties involving, directly or indirectly, the subject
matters set forth in this Agreement.
(b) All of the covenants contained herein shall be binding upon and
shall inure to the benefit of the successors and assigns of the Manager,
Franchisor, Lyric, the Subsidiaries, Master Lessee and Master Lessor.
(c) Any Fees paid to Manager or Franchisor in violation of the
provisions of this Agreement shall be deemed to have been made or transferred in
trust for Master Lessor, and
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Manager or Franchisor, as the case may be, immediately shall pay or transfer the
same to Master Lessor, at any time that an Event of Default exists and is
continuing under the Master Lease or to Master Lessee or the applicable
Subsidiar(y)(ies) at any other time during the term of the Master Lease.
(d) This Agreement may not be amended by the conduct or further
agreement of Manager, Franchisor, Lyric, Master Lessee, the Subsidiaries or
Master Lessor, except by a written agreement that is executed by parties to be
bound and that specifically provides that it is an amendment to this Agreement.
(e) This Agreement shall be construed in each and every respect in
accordance with the laws of the State of New York. If any provision in this
Agreement is in conflict with such laws, or is otherwise unenforceable for any
reason whatsoever, such provision shall be deemed null and void to the extent of
such conflict or unenforceability, and it shall be severed from and shall not
invalidate any other provision of this Agreement.
(f) The waiver or non-enforcement by Master Lessor of any breach of
any provision of this Agreement shall not be deemed a continuing waiver or a
waiver of any subsequent breach of the same or any provision of this instrument.
(g) Each of Manager and Franchisor agrees that Master Lessor shall be
a third party beneficiary of the representations, warranties and covenants of
Manager or Franchisor, as the case may be, under the Management Agreement or the
Franchise Agreement, as the case may be.
(h) Notice to Master Lessor shall be given at substantially the same
time as notice to Manager, Franchisor, Lyric, Master Lessee or the Subsidiaries,
as applicable. All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered or mailed, registered or certified mail, postage prepaid, or by
national overnight delivery service such as Federal Express or DHL, properly
addressed as follows:
If to Manager or To its address set forth on Page 1
Franchisor: of this Agreement
Attn: Xxxxxx X. Xxxxx
Copy to: Xxxxxxxx X. Xxxxxx, Esq.
Telephone No.: (410) 998 - 8768
Facsimile No.: (410) 998 - 8695
If to any of the To the address of the Master Lessee
Subsidiaries:
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If to Master Lessee: To its address set forth on Page 1
of this Agreement
Attn: Xxxxxx X. Xxxxx
Copy to: Xxxxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Master Lessor: To its address set forth on Page 1
of this Agreement
Attn: Xxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
LeBoeuf, Lamb, Xxxxxx & XxxXxx L.L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000-0000
Attention: Xxxx X. Xxxxxx, Xx., Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(i) Each of Manager and Franchisor shall furnish to Master Lessor
copies of each report that it furnishes to each Subsidiary. Such reports shall
be furnished to Master Lessor at substantially the same time as they are
furnished to the applicable Subsidiary.
(j) Each of Lyric, Master Lessee, the Subsidiaries, Manager and
Franchisor shall each furnish to Master Lessor copies of any notices of default
that one sends to the other, but inadvertent failure to do so shall not be a
default hereunder or under any other agreement in effect with Master Lessor.
SIGNATURE PAGES FOLLOW
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IN WITNESS WHEREOF, the undersigned have executed this Consent and
Subordination Agreement as of the date first above written.
MANAGER:
IHS FACILITY MANAGEMENT, INC.
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Senior Vice President
--------------------------------------
FRANCHISOR:
INTEGRATED HEALTH SERVICES
FRANCHISING CO., INC.
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Senior Vice President
--------------------------------------
SUBSIDIARIES:
[INSERT SUBSIDIARIES]
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Senior Vice President
--------------------------------------
MASTER LESSEE:
LYRIC HEALTH CARE HOLDINGS III, INC.
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Senior Vice President
--------------------------------------
S-1
LYRIC:
LYRIC HEALTH CARE LLC
By: Integrated Health Services, Inc.,
its Member
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------------
Title: Senior Vice President
--------------------------------------
MASTER LESSOR:
MONARCH PROPERTIES, LP
By: MP Operating, Inc.,
its General Partner
By:
-----------------------------------------
Name: Xxxx X. Xxxxx
---------------------------------------
Title: President and Chief Executive Officer
--------------------------------------
S-2
