Exhibit 10.45
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") made as of the 18th day of
July, 1996, by MEDCATH, INCORPORATED, a North Carolina corporation (the
"Guarantor") in favor of CAPSTONE CAPITAL CORPORATION, a Maryland corporation
(the "Lender").
R E C I T A L S:
Pursuant to that certain Loan Agreement of even date herewith (as the
same may hereafter be amended, the "Loan Agreement;" defined terms used herein
without definition shall have the meanings ascribed to them in the Loan
Agreement) between the Lender and MedCath of Tucson, L.L.C., a North Carolina
limited liability company (the "Borrower"), Lender has agreed to make a
construction/mini-perm loan to the Borrower in the principal amount of up to
Seventeen Million Eight Hundred Thousand and No/100 Dollars ($17,800,000) (the
"Loan"). The Loan will be used to finance the construction of the Tucson Heart
Hospital, a 60-bed acute care hospital specializing in cardiology services and
cardiovascular surgery (the "Improvements") in accordance with the Plans and
Specifications therefor prepared by Xxxxxxxxxx, Xxxxxx & Xxxxxxxxxx, dated March
18, 1996, as approved by the Lender (the "Plans and Specifications"). As a
condition to making the Loan, the Lender has required that the Guarantor
guarantee repayment of a portion of the Loan and further that the Guarantor
guarantee in full the performance obligations of the Borrower hereinafter set
forth.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals,
and in order to induce the Lender to make the Loan, and as security for all
agreements and covenants of the Borrower to Lender pursuant to the Loan
Documents, including, but not limited to the payment of the principal, interest
and other charges pursuant to the Note, and the performance of all covenants,
agreements and other obligations from time to time owing to, or for the benefit
of, Lender pursuant to the Loan Documents (collectively, the "Loan
Obligations"), the Guarantor agrees and covenants with Lender and represents and
warrants to Lender as follows:
1. Guarantee of Loan Obligations. The Guarantor hereby
unconditionally guarantees to the Lender the following (collectively, the
"Guaranteed Obligations"):
(a) The full and prompt payment of the Loan, together with all
accrued and unpaid interest owed on the Loan; plus
(b) The full, prompt, and timely performance of all of the Borrower's
obligations under the Loan Agreement to complete construction of the
Improvements to the reasonable satisfaction of the Lender and the Lender's
Inspecting Consultant on or before the Scheduled Completion Date of November 1,
1997, which such performance obligations shall include,
without limitation, (i)
equipping and fixturing of the Improvements so as to enable the Improvements to
be fully utilized for their intended purposes as an acute care hospital
specializing in cardiology services and cardiovascular surgery, and (ii)
obtaining all necessary licenses, certifications, accreditations, or other
required permits in order to operate the Improvements as aforesaid as a licensed
bed capacity of not less than 66-beds in accordance with applicable state and
federal licensure, certification, and accreditation laws, rules, and
regulations, including, without limitation, accreditation by the Joint
Commission on Accreditation of Hospital Organizations (the "Performance
Obligations"). Furthermore, the Guarantor covenants and agrees with Lender that
it will cause the Improvements to be kept free from all liens and encumbrances
in favor of any persons or entities supplying work or materials for the
construction of the Improvements by (i) paying promptly (or causing Borrower to
pay promptly) all such persons or entities, or (ii) within thirty (30) days of
the filing of any such lien (irrespective of any dispute which the Borrower or
the General Contractor may have with any such entity), discharging or making
other arrangements acceptable to Lender, or causing Borrower to discharge or
make other arrangements acceptable to Lender, with respect to such mechanics' or
materialmens' liens filed against the Improvements. Guarantor hereby further
agrees that, in the event it fails to comply with its Performance Obligations
under this subsection (d), Lender may, at its option (but Lender shall have no
obligation to do so), cause such Performance Obligations to be performed on
behalf of the Borrower or Guarantor and may use, without limitation, such
portions of the Loan proceeds which are budgeted for such uses in payment of
such Performance Obligations. Guarantor hereby ratifies and affirms such use of
the Loan proceeds in the circumstances set forth in this subsection (d) and
Guarantor agrees immediately to reimburse Lender, upon Lender's demand
therefore, for all costs and expenses incurred by the Lender in performing such
Performance Obligations, together with all losses or damages that the Lender may
suffer as a result of the Borrower's or Guarantor's failure to perform its
Performance Obligations, even if such costs, expenses, losses, and damages are
in excess of the Loan proceeds budgeted for such uses; plus
(c) the payment of all costs, reasonable attorneys' fees, and
expenses that may be incurred by the Lender as set forth in Section 12 hereof.
Lender agrees that if Guarantor performs the Performance Obligations
with respect to the construction of the Improvements, provided that there remain
any undisbursed Loan funds, Lender will make Advances (as defined in the Loan
Agreement) to the Guarantor in order to reimburse Guarantor for its costs of
performance, however such Advances will only be made in strict accordance with
the terms governing Advances as set forth in the Loan Agreement (taking into
account, however, any extensions of deadlines as may be necessitated in order
for the Guarantor to complete such construction).
This Guaranty is an unconditional guaranty, and the Guarantor agrees
that the Lender, upon the occurrence of any Event of Default pursuant to any of
the Loan Documents, shall not be required to assert any claim or cause of action
against the Borrower or other guarantors before
asserting any claim or cause of action against the Guarantor under this
Guaranty. The Guarantor further agrees that the Lender shall not be required to
pursue or foreclose on any Collateral that it may receive from the Borrower, the
Guarantor, or others as security for any of the Loan Obligations before making a
claim or asserting a cause of action against the Guarantor under this Guaranty.
Notice of acceptance of this Guaranty and of any Default or Event of
Default 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 Lender from the Borrower, the Guarantor, or others
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, or 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 Borrower 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 any of the Loan
Documents executed by the Borrower, the Guarantor, or others in connection with
the Loan.
The failure of the Lender to perfect its security interest in any of
the Collateral as set forth in any of the Loan Documents or any other collateral
now or hereafter securing all or any part of the Loan Obligations shall not
release the Guarantor from its liabilities and obligations hereunder.
Without notice to the Guarantor, without the consent of the Guarantor,
and without affecting or limiting the Guarantor's liability hereunder, the
Lender may:
(a) grant the Borrower extensions of time for payment of the
Loan Obligations or any part hereof;
(b) renew any of the Loan Obligations;
(c) grant the Borrower 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 Loan Obligations;
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(e) compromise, settle, release, or terminate any or all of
the obligations, covenants, or agreements of the Borrower under the Note or
other Loan Documents;
(f) at any time release any other guarantor from its guaranty
of any of the Loan Obligations; and
(g) with the Borrower's written consent, modify or amend any
obligation, covenant, or agreement of Borrower as set forth in the Note or any
of the other Loan Documents (and such amendments shall nevertheless be binding
upon Guarantor).
2. Representations and Warranties of the Guarantor. To induce the
Lender to make the Loan to Borrower, the Guarantor represents and warrants to
the Lender as follows:
(a) Existence, Power and Qualification. Guarantor is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its formation as set forth in the heading of this Guaranty, has
the 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 to Incur Obligations. The Guarantor has full power
and unrestricted right to enter into this Guaranty and to incur the obligations
provided for herein, all of which have been authorized by all requisite
corporate action of Guarantor.
(c) Conflicts. This Guaranty does not violate, conflict with,
or constitute any default under any decree, judgment, or any other agreement or
instrument binding upon the Guarantor and does not violate or conflict with the
articles of incorporation or by-laws of Guarantor.
(d) Pending Matters. Except as otherwise set forth on Schedule
I attached hereto, no action or investigation is pending or, to the best of
Guarantor's knowledge, threatened before or by any state or federal court or
administrative agency which might result in any material adverse change in the
financial condition, operations or prospects of the Guarantor. The 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, and the
Guarantor is not in violation of any order, judgment, or decree of any state or
federal court.
(e) Financial Statements Accurate. All financial statements
heretofore or hereafter provided by the Guarantor are and will be true and
complete in all material respects as of their respective dates and fairly
present the financial condition of the Guarantor, and there are no material
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 or in
a written certificate delivered with such statements. The financial statements
of the Guarantor hereafter will be
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prepared in accordance with 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 that causes or would cause a material adverse
effect on the business, properties, or financial operations or condition of the
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 the Guarantor.
(h) Disclosure. Neither this Guaranty nor any other document,
financial statement, credit information, certificate or statement required
herein to be furnished to Lender by Guarantor in connection with this Guaranty
contains any untrue, incorrect or misleading statement of material fact. All
representations and warranties made herein or in any certificate or other
document delivered to Lender by or on behalf of Guarantor pursuant to or in
connection with this Guaranty shall be deemed to have been relied upon by Lender
notwithstanding any investigation heretofore or hereafter made by Lender or on
its behalf, and shall survive the making of the Loan.
(i) ERISA. Guarantor is compliance with all applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA").
3. Affirmative Covenants of the Guarantor. The Guarantor covenants and
agrees that so long as the Loan Obligations are outstanding, it shall comply
with each of the following affirmative covenants:
(a) Payment of Loan/Performance of Loan Obligations. Upon
Lender's demand thereof, duly and punctually pay or cause to be paid the
principal and interest then due pursuant to the Note and duly and punctually
perform or cause to be performed all the Performance Obligations.
(b) 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, and all required old age and
unemployment contributions.
(c) Reporting Requirements. Provide to Lender, within one
hundred twenty (120) days after the end of each fiscal year, copies of the 10-K
Report of the Guarantor filed with the United States Securities and Exchange
Commission, and, within fifty (50) days of the end of each fiscal quarter,
copies of the 10-Q Report of the Guarantor filed with the United States
Securities and Exchange Commission.
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(d) Payment of Indebtedness. Pay duly and punctually or cause
to be paid, all principal and interest of any material indebtedness of Guarantor
to its creditors in accordance with its terms, and comply with and perform all
material conditions, terms and obligations of the notes or other instruments
evidencing such indebtedness and any mortgages, deeds of trust, security
agreements and other instruments evidencing security for such indebtedness.
(e) Notice of Loss. Notify Lender of any event causing a loss
which has a material adverse effect on Guarantor's net worth (for purposes of
this Agreement, a material adverse change in the Guarantor's net worth shall be
deemed a decrease by twenty percent (20%) or more during any fiscal quarter).
(f) Maintenance of Existence. Maintain its corporate
existence, and, in each jurisdiction in which the character of the property
owned by it or in which the transaction of its business makes qualification
necessary, maintain qualification and good standing.
(g) Shareholders' Equity. Maintain at all times during the
term of the Loan, a minimum shareholders' equity of not less than One Hundred
Million Dollars ($100,000,000).
(h) MedCath Credit Facility. At all times during the term of
the Loan, maintain for the Borrower's benefit an unsecured line of credit in the
amount of not less than $6,205,000 nor more than $10,000,000 (the "MedCath
Credit Facility"), which may be used by the Borrower as needed to fund costs
necessary to complete construction of the Improvements and following completion
of construction to fund operating deficits of the Improvements, such line of
credit being evidenced by that certain Promissory Note of even date herewith
between Borrower and Guarantor and is secured by that certain Security Agreement
of even date herewith Borrower and Guarantor. Borrower, Guarantor, and Lender
have entered into a Subordination Agreement of even date herewith with respect
to the MedCath Credit Facility, and Guarantor covenants and agreements to comply
with the terms and conditions of such Subordination Agreement.
4. Events of Default. Guarantor's failure to properly and timely
perform or observe any covenant or condition set forth in this Guaranty which is
not cured within any applicable cure period as set forth herein or, if no cure
period is specified therefor, is not cured within thirty (30) days of Lender's
notice to Guarantor of such default, or the falsity of any representation or
warranty herein or in any financial statement, certificate or other information
heretofore or hereafter provided by Guarantor to Lender, shall constitute an
"Event of Default" hereunder and under each of the Loan Documents. The foregoing
provision or any other provision requiring or providing for notice or demand
from Lender is deemed eliminated if Lender is prevented from giving such notice
or demand by bankruptcy or other applicable law, and the Event of Default shall
occur on the occurrence of such event or condition if not cured within any
applicable period measured from the occurrence of such event or condition rather
than from notice or demand.
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5. Reduction in Guaranteed Obligations. Notwithstanding any provision
hereof to the contrary, provided that no Event of Default shall have occurred at
any time prior to any scheduled reduction hereunder, Lender agrees that the
principal amount guaranteed hereunder shall be reduced to the following
principal amounts at such time as the following conditions precedent have been
satisfied:
(a) Once the Improvements have achieved and maintained the minimum Cash
Flow Coverage requirement specified in the Loan Agreement for twenty-four (24)
consecutive months as evidenced by the certificate hereinafter described,
(provided, however, that for purposes of this Guaranty, such Cash Flow Coverage
shall be tested based on the operation of the Improvements on a monthly basis
commencing with the first month in which the required Cash Flow Coverage has
been met), the principal amount guaranteed hereunder shall be reduced to Twelve
Million Eight Hundred Thousand Dollars ($12,800,000); and
(b) Thereafter, provided that the Improvements continue to achieve and
maintain the minimum Cash Flow Coverage requirement, the principal amount
guaranteed hereunder shall be reduced annually in increments of Five Million
Dollars ($5,000,000) each, provided however, that in no event will the principal
amount guaranteed hereunder ever be less than Four Million Five Hundred Thousand
Dollars ($4,500,000) and provided further that if, at the time the amount
guaranteed hereunder is reduced to $4,500,000 the Cash Flow Coverage is less
than 2.0, Guarantor must post (or cause Borrower to post) with Lender an
irrevocable letter of credit in form and content and from an issuer acceptable
to Lender in the face amount of $1,000,000, which such letter of credit shall be
held by Lender as additional collateral for the Loan Obligations until such time
as the Improvements have achieved and maintained a Cash Flow Coverage of not
less than 2.0 for two (2) consecutive fiscal years. Each reduction of the amount
guaranteed hereunder shall be conditioned upon Lender's receipt of a compliance
certificate from the chief financial officer of the Borrower or Guarantor
confirming compliance with the required Cash Flow Coverage requirement. In the
event the audited financial statements of the Borrower reveal that the Cash Flow
Coverage was not met at the time of any guaranty reduction hereunder, such
guaranty reduction shall be null and void; however, future reductions of the
Guaranteed Obligations shall not be precluded if the requirements set forth
herein are thereafter satisfied.
6. Subordination. Guarantor subordinates its right to payments of any
indebtedness owing from Borrower to Guarantor, whether now existing or arising
at any time in the future (including, but not limited to, rights to payment
arising by virtue of any subrogation or indemnification upon payment by
Guarantor of amounts due from Borrower to Lender), to the prior right of Lender
to receive or require payment in full of the Loan Obligations, until such time
as the Loan Obligations are fully paid (and including interest accruing on the
Note after any petition under the Bankruptcy Code, which post-petition interest
Guarantor agrees shall remain a claim that is prior and superior to any claim of
Guarantor notwithstanding any contrary practice, custom or ruling in proceedings
under the Bankruptcy Code generally) and such payments are final and not subject
to refund or recision under bankruptcy or other applicable law. Furthermore,
upon the occurrence of an Event of Default under the Loan Documents, Guarantor
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agrees not to accept any payment or satisfaction of any kind of indebtedness of
Borrower to the Guarantor or any security for such indebtedness. If Guarantor
should receive any such payment, satisfaction or security for any indebtedness
of Borrower to the Guarantor, the Guarantor agrees to deliver the same promptly
to Lender in the form received, endorsed, or assigned as may be appropriate for
application on account of, or as security for, the Loan Obligations and until so
delivered, agrees to hold the same in trust for Lender. Notwithstanding the
foregoing, Lender agrees that Borrower will be permitted to pay, and Guarantor
will be permitted to receive, payments of interest pursuant to the MedCath
Credit Facility described in Subsection 3(h) as long as there is no outstanding
Default or Event of Default pursuant to the Loan Agreement, but payments of
principal under the MedCath Credit Facility are further restricted as set forth
in the above-described Subordination Agreement.
7. Termination. 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 Loan Obligations is or is sought to be rescinded or must
otherwise be restored or returned by the Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower or the Guarantor upon
or as a result of the appointment of a receiver, intervenor, or conservator of,
or trustee or similar officer for, the Borrower or such guarantor of or for any
substantial part of its property, or otherwise, all as though such payments and
performance had not been made. This Guaranty shall not be affected in any way by
the transfer or other disposition of any of the Collateral described in and
granted to Lender pursuant to the Loan Documents, whether by deed, operation of
law, or otherwise.
8. Successors and Assigns. This Guaranty shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns.
9. 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.
10. 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 (a) on the date delivered, if delivered in person to
the person or department specified below, (b) three (3) business days after
depositing the same in the U.S. Mail, certified or registered, with return
receipt requested, or (c) one (1) day following the date deposited with Federal
Express or other national overnight carrier, and in each case addressed as
follows:
If to Guarantor to:
MedCath, Incorporated
0000 Xxxxxx Xxxxxx
0
Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
with a copy to:
Xxx Xxxxxxxx, Esq.
Xxxxx & Xxx Xxxxx, PLLC
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
If to the Lender to:
Capstone Capital Corporation
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Failure to provide courtesy copies shall not render invalid any notice otherwise
properly given. Any party may change its address to another single address by
notice given as herein provided, except any change of address notice must be
actually received in order to be effective.
11. Waivers. The failure by the Lender at any time or times hereafter
to require strict performance by 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 Guarantor and delivered to the Lender
shall not waive, affect, or diminish any right of the Lender thereafter 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 Guarantor and delivered to the Lender shall be
deemed to have been waived by any act or knowledge of the Lender, its agents,
officers, or employees, but only by an instrument in writing, signed by an
officer of the Lender, and directed to the Guarantor specifying such waiver.
Guarantor waives the benefits of any possibly applicable statutory provision or
rule of court limiting the liability of a surety or requiring that Lender bring
an action against Borrower or the collateral, including without limitation,
Arizona Revised Statutes Sections 12-1641, et seq., and Arizona Rules of Civil
Procedure 17(f) and North Carolina General Statutes Section 26-7, et seq.
12. Expenses. If, at any time or times hereafter, the Lender employs
counsel to commence, defend, or intervene, file a petition, complaint, answer,
motion, or any other pleading
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or to take any other action in or with respect to any suit or proceeding
relating to this Guaranty, or to represent the Lender in any litigation with
respect to the affairs of Guarantor or to enforce any rights of the Lender or
obligations of Guarantor by virtue of this Guaranty, then in any such events,
all of the reasonable attorneys' fees actually incurred arising from such
services, including fees in any appellate or bankruptcy proceedings, and any
other expenses, costs, and charges relating to this Guaranty, shall constitute
additional obligations of the Guarantor payable on demand. As used herein, the
term "reasonable attorney's fees" shall mean attorney's fees at standard hourly
rates and fees actually incurred.
13. Singular and Plural. Singular terms shall include the plural forms,
and vice versa.
14. 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.
15. THE VALIDITY, INTERPRETATION, ENFORCEMENT, AND EFFECT OF THIS
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE
OF ALABAMA. THE LENDER'S PRINCIPAL PLACE OF BUSINESS IS LOCATED IN JEFFERSON
COUNTY IN THE STATE OF ALABAMA, AND GUARANTOR AGREES THAT THIS GUARANTY SHALL BE
HELD BY LENDER AT SUCH PRINCIPAL PLACE OF BUSINESS, AND THE HOLDING OF THIS
GUARANTY BY LENDER THEREAT SHALL CONSTITUTE SUFFICIENT MINIMUM CONTACTS OF
GUARANTOR WITH JEFFERSON COUNTY AND THE STATE OF ALABAMA FOR THE PURPOSE OF
CONFERRING JURISDICTION UPON THE FEDERAL AND STATE COURTS PRESIDING IN SUCH
COUNTY AND STATE. THE GUARANTOR CONSENTS THAT ANY LEGAL ACTION OR PROCEEDING
ARISING HEREUNDER MAY BE BROUGHT IN THE CIRCUIT COURT OF THE STATE OF ALABAMA,
IN JEFFERSON COUNTY, ALABAMA, OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA AND ASSENTS AND SUBMITS TO THE PERSONAL
JURISDICTION OF ANY SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING. NOTHING HEREIN
SHALL LIMIT THE JURISDICTION OF ANY OTHER COURT.
16. GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIM,
COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING OUT OF OR IN
ANY WAY RELATED TO THIS GUARANTY OR THE LOAN, OR (B) IN ANY WAY CONNECTED WITH
OR PERTAINING OR RELATED TO OR INCIDENTAL TO ANY DEALINGS OF LENDER AND/OR
BORROWER AND GUARANTOR WITH RESPECT TO THE LOAN DOCUMENTS OR IN CONNECTION WITH
THIS GUARANTY OR THE EXERCISE OF ANY PARTY'S RIGHTS AND REMEDIES UNDER THIS
GUARANTY OR OTHERWISE, OR THE CONDUCT OR THE RELATIONSHIP OF THE PARTIES HERETO,
IN ALL OF THE
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FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE. GUARANTOR AGREES THAT LENDER MAY FILE A COPY OF
THIS GUARANTY WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY, AND
BARGAINED AGREEMENT OF GUARANTOR IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY
AS AN INDUCEMENT OF LENDER TO MAKE THE LOAN, AND THAT, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY WHATSOEVER (WHETHER OR NOT
MODIFIED HEREIN) BETWEEN GUARANTOR AND LENDER SHALL INSTEAD BE TRIED IN A COURT
OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed by its duly authorized officer as of the day and year first above
written.
WITNESS: MEDCATH, INCORPORATED
a North Carolina corporation
BY: Xxxxx Xxxxx
Its: Vice President
STATE OF North Carolina)
COUNTY OF Mecklenburg)
I, the undersigned, a Notary Public, in and for said County in said
State, hereby certify that Xxxxx Xxxxx whose name as Vice President of
MedCath Incorporated, a North Carolina corporation, is signed to the foregoing
Agreement and who is known to me, acknowledged before me on this day that,
being informed of the contents of the Agreement, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand this the 18 day of July, 1996.
_______________________________________
Notary Public
My Commission Expires:________________
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