UNCONDITIONAL GUARANTY OF LEASE
THIS UNCONDITIONAL GUARANTY OF LEASE (this "Guaranty") dated as of this
____________ day of May, 1997, is given by SUN HEALTHCARE GROUP, INC., a
Delaware corporation ("Guarantor") to EFFINGHAM ASSOCIATES, L.L.C., an Illinois
limited liability company ("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
Effingham Manor Nursing Center located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx.
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;
(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:
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(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.
(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
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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.
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:
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Name: /s/ Xxxxxx XxXxxxxx
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Title: Vice-President
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Address:
000 Xxx Xxxx X.X.
Xxxxxxxxxxx, XX 00000
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