UNCONDITIONAL GUARANTY OF LEASE
THIS UNCONDITIONAL GUARANTY OF LEASE (this "Guaranty") dated as of
this 1st day of March, 1996, is given by Sun Healthcare Group, Inc., a
Delaware corporation ("Guarantor") to Tor Associates, an Illinois limited
partnership ("Lessor").
I
RECITALS
1.1 DESCRIPTION OF LEASE. Lessor and Sunrise Healthcare Corporation, a
New Mexico corporation ("Lessee"), having entered into that certain Lease of
even date herewith (the "Lease") of the nursing home facility commonly known
as Heritage Heights Care center located in Danbury, Connecticut.
1.2 INDUCEMENT. Guarantor is the sole shareholder of Lessee, and
accordingly, Guarantor hereby acknowledges that the Lease will economically
benefit Guarantor.
II
THE GUARANTY
2.1 GUARANTY. Guarantor hereby absolutely and unconditionally
guarantees:
(a) The prompt payment of each installment of fixed annual rent and
Additional Rent (as defined in the Lease) when and as the same become due
under the terms of the Lease;
(b) The prompt payment of all other sums payable by Lessee to
Lessor or any other person under the terms of the Lease, including,
without limitation, tax and any other deposits required under the
terms of the Lease and damages due to default by Lessee under the Lease;
and
(c) The full and timely performance of each and every other
obligation of Lessee under the Lease;
for which Guarantor shall be jointly and severally liable with Lessee (the
items described in clauses (a), (b) and (c) above are hereinafter referred
to as the "Guarantor's Obligations").
2.2 Guarantor absolutely and unconditionally covenants and agrees that,
in the event that Lessee is unable to, or does not, pay, perform or satisfy
any of the obligations or liabilities of Lessee under the Lease (the
"Lessee's Liabilities") in a full and timely manner, for any reason,
including,
without limitation, the liquidation, dissolution, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition, or readjustment of, or other similar proceedings
affecting, the status, composition, identity, existence, assets or
obligations of Lessee, or the disaffirmance or termination of any of the
Lessee's Liabilities in or as a result of any such proceedings, Guarantor
shall pay, perform or satisfy the Lessee's Liabilities and that no such
occurrence shall in any way reduce or affect the Guarantor's Obligations
hereunder. Upon the occurrence of a default in the prompt payment, timely
performance and satisfaction in full of Lessee's Liabilities, all of the
Guarantor's Obligations shall, at the election of Lessor, become immediately
due and payable, provided, however, that nothing herein shall be construed as
granting Lessor any greater rights or remedies against Guarantor as a result
of a breach by Lessee of its obligations under the Lease than Lessor has
against Lessee as a result thereof under the terms of the Lease.
2.3 Guarantor shall be directly and primarily liable, jointly and
severally with Lessee, for all of the foregoing. Lessor's rights under this
Guaranty shall be exercisable by action against Guarantor or joined with any
action against Lessee. Lessor need not proceed against Lessee as security
for Lessee's Liabilities or exhaust its remedies against Lessee or exercise
any of the other remedies available to Lessor under the Lease, prior to,
concurrently with or after proceeding against Guarantor to collect the full
amount of the Guarantor's Obligations hereunder. In the event that Lessor
may have collected all or any part of Lessee's Liabilities and a claim for
repayment of all or any part thereof is made against Lessor, the liability of
Guarantor hereunder as to the amount so collected but subject to such claim
shall not be discharged or affected.
III
OTHER PROVISIONS
3.1 ACTIONS BY LESSOR NOT TO AFFECT LIABILITY. The liability of
Guarantor hereunder shall not be affected by:
(a) The renewal, extension, modification or termination of the
Lease by lapse of time or otherwise (all of which are hereby authorized by
Guarantor) or a release or limitation of the liability of Lessee or
Lessee's estate under the Lease in any bankruptcy or insolvency proceeding;
(b) Any extension in the time for making any payment due under
the Lease or acceptance of partial payment or performance from Lessee;
(c) The acceptance or release by Lessor of any additional
security for the performance of Lessee's obligations under the Lease;
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(d) The failure during any period of time whatsoever of Lessor
to attempt to collect any amount due under the Lease from Lessee or to
exercise any remedy available under such Lease or any other security
instrument given as security for performance of the same, in the event of a
default in the performance by Lessee of the terms of the Lease;
(e) Lessor's consent to any assignment or successive assignments of
the Lease, or any subletting or successive subletting of the Demised
Premises (as defined in the Lease);
(f) Any assignment or successive assignments of Lessor's interest
under the Lease (whether absolute or as collateral);
(g) Lessor's consent to any changed, expanded or different use
of any or all of the Demised Premises;
(h) The assertion by Lessor against Lessee of any rights or
remedies reserved or granted to Lessor under the Lease, including the
commencement by Lessor of any proceedings against Lessee; or
(i) Any dealings, transactions or other matter occurring between
Lessor and Lessee;
whether or not Guarantor shall have knowledge or have been notified of or agreed
to any of the foregoing.
3.2 WAIVERS. Guarantor hereby expressly waives:
(a) Notice of acceptance of this Guaranty;
(b) Presentment, demand, notice of dishonor, protest and notice
of protest, and all other notices whatsoever, including, without
limitation, notice of any event or matter described in Section 3.1 hereof;
(c) Any and all claims or defenses based upon lack of diligence
in:
(i) collection of any amount the payment of which is guaranteed
hereby;
(ii) protection of any collateral or other security for the
Lease;
(iii) realization upon any other security given for the
Lease; or
(iv) the discharge, liquidation or reorganization of Lessee
in bankruptcy or the rejection of the Lease by Lessee
or a trustee in bankruptcy.
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(d) Any and all defenses of suretyship;
3.3 NATURE OF REMEDIES. No delay or omission on the part of Lessor
in the exercise of any right or remedy hereunder shall operate as a waiver
thereof. All remedies of Lessor hereunder shall be in addition to, and
exercisable consecutively or concurrently in any combination with, any and all
remedies available to Lessor by operation of law or under the Lease, and Lessor
may exercise its remedies hereunder without the necessity of any notice to
Lessee or Guarantor of nonpayment, nonobservance, nonperformance or other
default by Lessee under the Lease.
3.4 COSTS OF COLLECTION. Notwithstanding any provision of this
Guaranty to the contrary, in the event of the enforcement of this Guaranty by
Lessor, Lessor shall be entitled to collect from Guarantor, Lessor's costs of
collection, including, without limitation, reasonable attorneys' fees.
3.5 MECHANIC'S LIENS OR OTHER LIENS. Notwithstanding any provision
of this Guaranty to the contrary, in the event that any mechanic's liens,
laborer's and/or materialman's claims (collectively, the "Mechanic's Liens") are
filed against the Leased Property (as defined in the Lease), or any part
thereof, and not paid or discharged by Lessee in accordance with the terms of
the Lease, Lessor shall be entitled pursuant to this Guaranty to collect from
Guarantor from and after the expiration or earlier termination of the Lease, the
total aggregate amount of such unpaid or undischarged Mechanic's Liens.
3.6 NO SUBROGATION. Guarantor shall not be subrogated to any of the
rights of Lessor under the Lease, or in or to the Demised Premises or to any
other rights of Lessor by reason of any of the provisions of this Guaranty or by
reason of the performance by Guarantor of any of its obligations hereunder and
Guarantor shall look solely to Lessee for recoupment of any costs or expenses
incurred by Guarantor in performing its obligations hereunder.
3.7 ASSIGNMENT. This Guaranty shall not be assignable by Guarantor
but shall be binding upon the successors to and legal representatives of
Guarantor. This Guaranty shall be assignable by Lessor and shall inure to the
benefit of its successors and assigns.
3.8 GOVERNING LAW; CONSENT TO JURISDICTION. This Guaranty shall be
governed by, and construed in accordance with, the laws of the State of
Illinois. To induce Lessor to accept this Guaranty, Guarantor irrevocably
agrees that, subject to Lessor's sole and absolute election, ALL ACTIONS OR
PROCEEDINGS IN ANY WAY, MANNER OR RESPECT, ARISING OUT OF OR FROM OR RELATED TO
THIS GUARANTY, SHALL BE LITIGATED IN COURTS HAVING SITUS WITHIN THE CITY OF
CHICAGO, STATE OF ILLINOIS. GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID CITY AND
STATE AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL
DIRECTED TO GUARANTOR AT THE ADDRESS STATED ON THE SIGNATURE PAGE HEREOF AND
SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF.
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3.9 SEVERABILITY. If any term, restriction or covenant of this Guaranty
is deemed illegal or unenforceable, all other terms, restrictions and
circumstances subject hereto shall remain unaffected to the extent permitted
by law; and if any application of any term, restriction or covenant to any
person or circumstances is deemed illegal, the application of such term,
restriction or covenant to other persons and circumstances shall remain
unaffected to the extent permitted by law.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the
day and year first above written.
SUN HEALTHCARE GROUP, INC., a Delaware
corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
Address:
0000 Xxxxxxx Xxxx. X.X.
Xxxxx 000
Xxxxxxxxxxx, XX 00000
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