EXHIBIT 10.47.2
GUARANTY AGREEMENT
GUARANTY AGREEMENT ("Guaranty"), dated as of July 3, 1997, made by THE
CHESTNUT REAL ESTATE PARTNERSHIP, a Maryland general partnership ("CREP"), LCS
HOLDINGS, INC., an Iowa corporation ("LCS"), LIFE CARE SERVICES CORPORATION, an
Iowa corporation ("LCSC"), and HOME HEALTH CARE SERVICES CORPORATION, an Iowa
corporation ("HHC") (CREP, LCS, LCSC and HHC are, collectively, the
"Guarantors"), in favor of NORWEST BANK IOWA, NATIONAL ASSOCIATION, a national
banking association (the "Bank").
RECITALS:
WHEREAS, pursuant to a Term Loan Agreement of even date herewith among
Bank, The Chestnut Partnership, as Borrower and the Guarantors as the same may
be amended, modified or supplemented from time to time (the "Loan Agreement"),
the Bank has agreed to make a loan of up to One Million Nine Hundred Thousand
Dollars ($1 900,000.00) to Bank (the "Loan"), and it is intended that
capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Loan Agreement;
WHEREAS, the Loan is evidenced by a Note of even date herewith made by
the Borrower to the Bank as the same may be extended, renewed, refinanced,
refunded, amended, modified or supplemented form time to time, and any
replacement or successor note (the "Note");
WHEREAS as used herein, the term "Loan Documents" shall include the
Loan Documents described in the Loan Agreement and all other documents delivered
by or on behalf of the Borrower in connection with the Loan;
WHEREAS, each of the Guarantors acknowledges receipt of copies of the
Loan Agreement, the Note and the other Loan Documents; and
WHEREAS, the execution and delivery by the Guarantors of this Guaranty
is a condition to the Bank's obligation to make a Loan to the Borrower pursuant
to the Loan Agreement, and the Guarantors expect to derive financial benefit
from the making of the Loan by the Bank to Borrower.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged by the
Guarantors, and intending to be legally bound, the Guarantors hereby agree as
follows:
SECTION 1. GUARANTEE
1.1. GUARANTEED OBLIGATIONS. The Guarantors hereby jointly and
severally and unconditionally and irrevocably guarantee to Bank, and become
surety to the Bank for, the due,
punctual and full payment and performance of, and covenant with Bank to duly,
punctually and fully pay and perform, the following (collectively, the
"Guaranteed Obligations"):
(a) all indebtedness of the Borrower to the Bank evidenced by the
Note or incurred under the Loan Agreement, both principal and
interest, and any refinancing or refunding thereof, and all
other amounts due or to become due under the Loan Agreement,
the Note and the other Loan Documents, and any refinancing or
refunding thereof, whether now existing or hereafter arising,
contracted or incurred, as and when such payment or
performance shall become due (whether by acceleration or
otherwise) in accordance with the terms of the Loan Documents;
(b) all covenants, agreements, obligations and liabilities of the
Borrower under the Loan Agreement, the Note and the other Loan
Documents, whether now existing or hereafter arising,
contracted or incurred, as and when such payment or
performance shall become due (whether by acceleration or
otherwise) in accordance with the terms of the Loan Documents;
1.2. GUARANTEE UNCONDITIONAL. The obligations of the Guarantors
hereunder are continuing, absolute and unconditional, irrespective of any
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a guarantor or surety. Without limiting the generality
of the foregoing, the obligations of the Guarantors hereunder shall remain in
full force and effect without regard to, and shall not be released, discharged
or in any way affected by:
(a) any amendment, modification or supplement to the Loan
Agreement, the Note or any other Loan Document;
(b) any exercise or nonexercise of or delay in exercising any
right, remedy, power or privilege under or in respect of this
Guaranty, the Loan Agreement, the Mortgage, the Note or any
other Loan Document (even if any such right, remedy, power or
privilege shall be lost thereby), or any waiver, consent,
indulgence or other action or inaction in respect thereof;
(c) any bankruptcy, insolvency, arrangement, composition,
assignment for the benefit of creditors or similar proceeding
commenced by or against the Borrower or any of the Guarantors;
(d) any failure to perfect or continue perfection of, or any
release or waiver of, any rights given to the Bank in any
property as security for the performance of any of the
Guaranteed Obligations;
(e) any extension of time for payment or performance of any of the
Guaranteed Obligations;
(f) the genuineness, validity or enforceability of the Loan
Documents;
(g) any limitation of liability of the Borrower contained in any
Loan Document;
(h) any defense that may arise by reason of the failure of the
Bank to file or enforce a claim against the estate of the
Borrower in any bankruptcy or other proceeding;
(i) any voluntary or involuntary liquidation, dissolution, sale of
all or substantially all of the property of the Borrower, or
any marshalling of assets and liabilities, or other similar
proceeding affecting the Borrower or any of its assets;
(j) the release of the Borrower or any of the Guarantors from
performance or observance of any of the agreements, covenants,
terms or conditions contained in the Loan Documents by
operation of law;
(k) the failure of the Bank to keep the Guarantors advised of the
Borrower's financial condition, regardless of the existence of
any duty to do so;
(l) any sale or other transfer of the Collateral or any part
thereof or any foreclosure by Bank or any part thereof, or
(m) any other circumstances which might otherwise constitute a
legal or equitable discharge of a guarantor or surety.
No set-off, claim, reduction or diminution of any obligation, or any defense of
any kind or nature which the Borrower or any Guarantor now has or hereafter may
have against the Bank shall be available hereunder to any Guarantor against the
Bank.
1.3. NO NOTICE OR DUTY TO EXHAUST REMEDIES: WAIVER OF JURY TRIAL. Each
Guarantor hereby waives diligence, presentment, demand protest and all notices
of any kind, and waives any requirement that the Bank exhaust any right or
remedy, or proceed first or at any time, against the Borrower or any other
guarantor of, or any security for, any of the Guaranteed Obligations. This
Guaranty constitutes an agreement of suretyship as well as of guaranty, and Bank
may pursue its rights and remedies under this Guaranty and under the other Loan
Documents in whatever order, or collectively, and shall be entitled to payment
and performance hereunder notwithstanding such other Loan Documents and
notwithstanding any action taken by the Bank or inaction by the Bank to enforce
any of its rights or remedies against any other guarantor or any other Person or
property whatsoever. Each Guarantor waives any right to a trial by jury with
respect to any remedy or proceeding of the Bank with respect to this Guaranty.
1.4. WAVIER OF SUBROGATION, ETC. NOTWITHSTANDING ANY PAYMENTS MADE OR
OBLIGATIONS PERFORMED BY THE GUARANTORS BY REASON OF THIS GUARANTY (INCLUDING
BUT NOT LIMITED TO APPLICATION OF
FUNDS ON ACCOUNT OF SUCH PAYMENTS OR OBLIGATIONS), EACH GUARANTOR HEREBY
IRREVOCABLY WAIVES AND RELEASES ANY AND ALL RIGHTS IT MAY HAVE AT ANY TIME
(WHETHER ARISING DIRECTLY OR INDIRECTLY, BY OPERATION OF LAW, CONTRACT OR
OTHERWISE) (A) TO ASSERT ANY CLAIM AGAINST THE BORROWER OR ANY OTHER PERSON, OR
AGAINST ANY DIRECT OR INDIRECT SECURITY, ON ACCOUNT OF PAYMENTS MADE OR
OBLIGATIONS PERFORMED UNDER OR PURSUANT TO THIS GUARANTY, INCLUDING WITHOUT
LIMITATION ANY AND ALL RIGHTS OF SUBROGATION, REIMBURSEMENT, EXONERATION,
CONTRIBUTION OR INDEMNITY, OR (B) TO REQUIRE THE MARSHALING OF ANY ASSETS OF THE
BORROWER, WHICH RIGHT OF MARSHALING MIGHT OTHERWISE ARISE FROM PAYMENTS MADE OR
OBLIGATIONS PERFORMED UNDER OR PURSUANT TO THIS GUARANTY, AND ANY AND ALL RIGHTS
THAT WOULD RESULT IN SUCH GUARANTOR BEING DEEMED A "CREDITOR" UNDER THE UNITED
STATES BANKRUPTCY CODE OF THE BORROWER OR ANY OTHER PERSON.
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby represents
warrants and certifies to Bank that the representations and warranties made by
the Borrower and Guarantors in the Loan Agreement are true and correct on the
date hereof.
2.2 COVENANTS. Each Guarantor hereby covenants with Bank that:
(a) Promptly upon becoming aware thereof, such Guarantor shall
give Bank notice of (i) the commencement, existence or threat
of any proceeding by or before any Governmental Authority
against or affecting such Guarantor or any of its Subsidiaries
which, if adversely decided, would have a material adverse
effect on the business, operations, condition (financial or
otherwise) or prospects of such Guarantor or on its ability to
perform its obligations hereunder or (ii) any material adverse
change in the business, operations, condition (financial or
otherwise) or prospects of such Guarantor.
(b) Such Guarantor shall permit such Persons as Bank may designate
to examine such Guarantor's books and records and take copies
and extracts therefrom and to discuss the affairs of such
Guarantor with its officers, employees and independent
accountants at such times and as often as the Bank may
reasonably request. Such Guarantor hereby authorizes such
officers, employees and independent accountants to discuss
with Bank the affairs of such Guarantor.
SECTION 3. MISCELLANEOUS
3.1. EFFECT OF BANKRUPTCY PROCEEDINGS. This Guaranty SHALL be
effective, or be automatically reinstated, as the case may be, if at any time
payment, in whole or in part, of any of the Guaranteed Obligations is rescinded
or must otherwise be restored or returned by the Bank as a preference,
fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar
law, all as though such payment had not been made. If an Event of Default at any
time shall have occurred and be continuing or exist and declaration of default
or acceleration under or with respect to any of the Loan Documents shall at such
time be prevented by reason of the pendency against the Borrower of a case or
proceeding under any bankruptcy or insolvency law, the Guarantors agree that,
for purposes of this Guaranty and their obligations hereunder, such Loan
Documents shall be deemed to have been declared in default or accelerated with
the same effect as if such Loan Documents had been declared in default and
accelerated in accordance with the terms thereof, and the Guarantors shall
forthwith pay the Guaranteed Obligations in full without further notice or
demand.
3.2 BANK'S RIGHT OF SET-OFF. If an Event of Default shall occur, the
Bank shall have the right, in addition to all other rights and remedies
available to it, to setoff against and to appropriate and apply to the unpaid
balance of the Guaranteed Obligations any debt owing to, and any other funds
held in any manner for the account of, any Guarantor by the Bank, including
without limitation all funds in all deposit accounts (general or special) now or
hereafter maintained by any Guarantor with the Bank. Such right shall exist
whether or not the Bank shall have made any demand under this Guaranty or any
other Loan Document and whether or not the Guaranteed Obligations or such
participation are matured or unmatured. Each Guarantor hereby confirms the
foregoing arrangements and the Bank's right of banker's lien and set-off and
nothing in this Guaranty or any other Loan Document shall be deemed any waiver
or prohibition of the Bank's right of banker's lien or setoff.
3.3 FURTHER ASSURANCES. From time to time upon the request of the Bank,
the Guarantors shall promptly and duty execute, acknowledge and deliver any and
all such further instruments and documents as the Bank may deem necessary or
desirable to confirm this Guaranty, to carry out the purpose and intent hereof
or to enable the Bank to enforce any of their respective rights hereunder.
3.4 AMENDMENTS, WAIVERS, ETC. This Guaranty cannot be amended,
modified, waived, changed, discharged or terminated except by an instrument in
writing signed by the party against whom enforcement of such amendment,
modification, waiver, change, discharge or termination is sought.
3.5 NO IMPLIED WAIVER; CUMULATIVE REMEDIES. No course of dealing and no
delay or failure of the Bank in exercising any right, power or privilege under,
this Guaranty or any other Loan Document shall affect any other or future
exercise thereof or exercise of any other right, power or privilege; nor shall
any single or partial exercise of any such right, power or privilege
or any abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power or
privilege. The rights and remedies of the Bank under this Guaranty are
cumulative and not exclusive of any rights or remedies which they would
otherwise have under the other Loan Documents, at law or in equity.
3.6. NOTICES. All notices, requests, demands, directions and other
communications under the provisions of this Guaranty shall be delivered in
accordance with the terms of the Loan Agreement to the addresses set forth
therein.
3.7. EXPENSES. The Guarantors agree to pay or cause to be paid and to
save the Bank harmless against liability for the payment of all out-of-pocket
expenses, including reasonable fees and expenses of counsel for the Bank,
incurred by the Bank from time to time arising in connection with enforcement or
preservation of rights under this Guaranty, including but not limited to such
expenses as may be incurred by the Bank in connection with any default by the
Guarantors of any of their obligations hereunder.
3.8 SURVIVAL. All obligations of the Guarantors to make payments
hereunder or to indemnify the Bank (including indemnities by the Borrower of the
Bank under the Loan Documents) shall survive the payment and performance in full
of the Guaranteed Obligations.
3.9. JURISDICTION; ETC. Each of the Guarantors irrevocably (a) agrees
that the Bank may bring suit, action or other legal proceedings arising out of
this Guaranty in the courts of the State of Iowa in Polk County, Iowa, the
courts of the United States for the Southern District of Iowa; (b) consents to
the jurisdiction each such court in any such suit, action or proceeding; (c)
waives any objection which such Guarantor may have to the laying of the venue of
any such suit action or proceeding in any of such courts; and (d) waives any
right such Guarantor may have to a jury trial in connection with any such suit,
action or proceeding.
3.10. SEVERABILITY. If any term or provision of this Guaranty or the
application thereof to any Person or circumstance shall to any extent be invalid
or unenforceable, the remainder of this Guaranty, or the application or such
term or provision to Persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Guaranty shall be valid and enforceable to the fullest extent
permitted by law.
3.11. COUNTERPARTS. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
3.12. GOVERNING LAW. This Guaranty shall be governed by, and construed
in accordance with, the laws of the State of Iowa.
3.13. JOINT AND SEVERAL. The obligations of Guarantors hereunder shall
be joint and several.
3.14. SUCCESSORS AND ASSIGNS. This Guaranty shall bind the Guarantors
and their respective successors and assigns, and shall inure to the benefit of
the Bank and its respective successors and assigns.
3.15. INTERCREDITOR AGREEMENT. The rights of the Bank under this
Guaranty are subject to the terms and conditions of an Intercreditor Agreement
of even date herewith among the Bank and the Bond Trustee, which terms and
conditions are incorporated herein by reference; provided, however, that the
incorporation of the Intercreditor Agreement herein shall not be deemed to
confer upon the Guarantors any rights with respect to the Intercreditor
Agreement, including without limitation any rights as third party beneficiaries
or rights to notice of, or to consent to, any modification, amendment or waiver
of or to any term or provision of the Intercreditor Agreement.
3.16 SUBORDINATION. The Borrower Obligations (as hereinafter defined)
are subordinate in right of payment to the hereinafter prior payment in full of
the Guaranteed Obligations described in clause (a) of Section 2.01. No payment
shall be made by or on behalf of the Borrower for or on account of any Borrower
Obligations, and none of the Guarantors shall ask for, demand, xxx for, take or
receive from the Borrower, directly or indirectly, in cash, securities or
otherwise, by setoff, realization on collateral, exercise of any other remedies
or in any other manner, payment of all or any part of any Borrower Obligation.
As used herein, the term "Borrower Obligations" shall mean all obligations of
any kind or nature from time to time of the Borrower to any of the Guarantors,
whether such obligations are direct or indirect, otherwise secured or unsecured,
joint or several, absolute or contingent, due or to become due, whether for
payment or performance, now existing or hereafter arising; provided, however,
that Borrower Obligations shall not include obligations of the Borrower to LCSC
under the Development Agreement or the Management Agreement, which obligations
shall be subordinated to the extent set forth in the Acknowledgment and Consent
of LCSC to the Facility Agreements Assignment. No Guarantor shall sell, assign
or otherwise dispose of all or any part of its interest in any obligation or
indebtedness constituting or evidencing a Borrower Obligation unless such
purchaser, transferee or assignee agrees, in a manner satisfactory to the Bank,
to become bound by the foregoing subordination terms.
3.17. LIMITATION OF LIABILITY. Notwithstanding any other provision of
this Guaranty to the contrary, the liability of LCS and its Subsidiaries,
including without limitation LCSC and HHC, shall enforced only against the Gross
Revenues (as hereinafter defined) of LCS and its Subsidiaries. As used herein,
the term "Gross Revenues" shall mean any and all gross rents, income, receipts,
consideration, profits, cash, cash flow, accounts, accounts receivable, contract
rights or other obligations, fees, charges and revenues, and any and all
proceeds thereof, including without limitation any and all Entrance Payments (as
defined in the Loan Agreement) or management, consulting, development,
supervision, use, operation, maintenance or other fees of any tone or nature
whatsoever, now or hereafter received by or paid to or for the account or
benefit of LCS or its Subsidiaries in connection with any and all of their
respective businesses, projects and ventures, whether now or hereafter existing,
including without limitation their
development of or other affiliation with any such businesses, projects and
ventures, all as determined in accordance with cash basis accounting, applied in
a consistent manner. LCS hereby agrees that it shall cause its Subsidiaries
other than the Borrower to dividend, distribute, loan or otherwise transfer any
unrestricted cash which is not reasonably required for use by any such
Subsidiary in connection with the development or ownership of its community, to
LCS,
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS GUARANTY SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS GUARANTY ONLY BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, the Guarantors have duly executed and delivered this
Guaranty as of the date first above written.
THE CHESTNUT REAL ESTATE PARTNERSHIP
By: BLAKEHURST JOINT VENTURE, as a
general partner
By: Chestnut Village, Inc., as a general partner
By: /s/ Xxxxxx X. Xxxx
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Title: Treasurer
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THE CHESTNUT REAL ESTATE PARTNERSHIP
By: WEST JOPPA ROAD LIMITED PARTNERSHIP, as
a general partner
By: Rosedale Care, Inc., as a general partner
By: /s/ X.X. Xxxxxx
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Title: Xxxxxx X. Xxxxxx, III
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President
THE CHESTNUT REAL ESTATE PARTNERSHIP
By: WEST JOPPA ROAD LIMITED PARTNERSHIP, as
a general partner
By: Continental Care, Inc., as a general partner
By: /s/ X.X. Xxxxxxxxxxx, Xx.
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Title: President
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LCS HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxx
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Title: Treasurer
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LIFE CARE SERVICES CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Title: Treasurer
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HOME HEALTH CARE SERVICES
CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Title: Treasurer
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