GUARANTY
BY
LYRIC HEALTH CARE LLC
IN FAVOR OF
MONARCH PROPERTIES, LP
DATED AS OF JUNE 23, 1998
GUARANTY
THIS GUARANTY (this "Guaranty") is given as of the 23rd day of June, 1998
("Effective Date"), by LYRIC HEALTH CARE LLC, a Delaware limited liability
company ("Guarantor"), in favor of MONARCH PROPERTIES, LP, a Delaware limited
partnership corporation ("Lessor").
RECITALS
A. Capitalized terms used but not otherwise defined herein shall have the
respective meanings given them in Section 1 below.
B. Concurrently herewith, Lessor and Lyric Holdings have executed and
delivered the Master Lease, pursuant to which Lessor has leased to Lyric
Holdings the respective Facilities, and Lyric Holdings and the Subsidiaries have
executed and delivered the Facility Subleases. As security for the payment and
performance by Lyric Holdings of its obligations under the Master Lease, the
Subsidiaries and Lyric Holdings have (i) executed and delivered to Lessor the
L/C Agreement and delivered to Lessor a Letter of Credit pursuant thereto; and
(ii) executed and delivered to Lessor the Security Agreement, pursuant to which
Lyric Holdings and each of the Subsidiaries has granted to Lessor security
interests in certain property of the Subsidiaries.
C. Guarantor owns all of the stock of Lyric Holdings, and Lyric Holdings
owns all of the stock in each of the Subsidiaries and, accordingly, benefits
from the execution of the Master Lease.
D. As a material inducement to Lessor to enter into the Master Lease,
Guarantor has agreed to guarantee both the payment of all amounts due from, and
the performance of all obligations undertaken by, Lyric Holdings under the
Master Lease and the Subsidiaries under the Facility Subleases.
NOW, THEREFORE, Guarantor agrees as follows:
1. DEFINED TERMS. The following terms shall have the respective meanings
given them below:
"Affiliate" means any Person who, directly or indirectly, Controls or is
Controlled by or is under common Control with another Person.
"A/R Lender" means any lender to the Subsidiaries under the Line of Credit,
whereby the A/R Lender lends to the Subsidiaries based upon the accounts
receivable of the various Facilities.
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"Control" (and its corollaries "Controlled by" and "under common Control
with") means possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, through the ownership
of voting securities, partnership interests or other equity interests.
"Dividend" means any dividend, distribution or other payment constituting a
return of or return on capital invested in a Person.
"Escrow Agreement" means the Escrow Agreement dated as of the date hereof
among Subsidiaries, Lyric Holdings, Lessor and Fidelity National Title Insurance
Company of New York.
"Event of Default" means an "Event of Default," as defined in the Master
Lease.
"Facilities" means the healthcare facilities listed on attached EXHIBIT A.
"Facility" means any of the Facilities.
"Facility Subleases" means the Facility Subleases dated as of the date
hereof between Holdings and the Subsidiaries.
"Fees" means the fees payable by Lyric Holdings and/or the Subsidiaries to
Manager or Franchisor pursuant to each Management Agreement or Franchise
Agreement, as the case may be.
"Franchise Agreement" means, collectively, the Amended and Restated Master
Franchise Agreement dated as of the date hereof between Franchisor and Guarantor
and each Facility Franchise Agreement dated as of the date hereof between
Franchisor and a Subsidiary.
"Franchisor" means Integrated Health Services Franchising Co., Inc., a
Delaware corporation.
"GAAP" means generally accepted accounting principles.
"Guaranty Default" means any of: (a) an Event of Default; (b) Guarantor's
failure to pay any amounts as and when required under this Guaranty; (c)
Guarantor's failure to observe and perform any covenant, condition or agreement
on its part to be observed or performed under this Guaranty (other than as
referred to in clause (b) above) for a period of three (3) Business Days or more
after Lessor has given written notice of such failure to Guarantor; or (d) the
occurrence and continuation of a default by any person other than Lessor under
any of the other Transaction Documents, if the default is not cured within any
applicable grace or cure period set forth therein.
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"IHS" means Integrated Health Services, Inc., a Delaware corporation.
"Indemnity Agreement" means the Indemnity Agreement dated as of the date
hereof executed by IHS for the benefit of Lessor.
"Incentive Management Fees" means the "Incentive Management Fees," as
defined in the Management Agreement.
"Intangible Assets" means the amount of (a) all unamortized debt discount
and expense, unamortized deferred charges, goodwill, patents, trademarks,
service marks, trade names, copyrights, organizational and developmental
expenses, unamortized operating rights, unamortized licenses, unamortized
leasehold rights, or any write-up resulting from a reversal of a reserve for bad
debts or depreciation and any write-up resulting from a change in methods of
accounting or inventory, and (b) any investment in any Affiliate. The term
Intangible Assets does not include accounts receivable.
"L/C Agreement" means the Letter of Credit Agreement dated as of the date
hereof among the Subsidiaries, Lyric Holdings and Lessor.
"Letter of Credit" means the "Letter of Credit," as defined in the L/C
Agreement.
"Line of Credit" means the revolving line of credit to be granted to the
Subsidiaries by the A/R Lender.
"Line of Credit Commitment" means the Commitment from the A/R Lender to
Guarantor and/or the Subsidiaries to provide the Line of Credit.
"Lyric Holdings" means Lyric Health Care Holdings III, Inc., a Delaware
corporation that is wholly owned by Guarantor and that in turn owns all of the
stock of the Subsidiaries.
"Management Agreement" means, collectively, the Amended and Restated Master
Management Agreement dated as of the date hereof between Manager and Guarantor
and each Facility Management Agreement dated as of the date hereof between
Manager and a Subsidiary.
"Manager" means IHS Facility Management, Inc., a Delaware corporation.
"Master Lease" means the Master Lease dated as of the date hereof between
Lessor and Lyric Holdings.
"Minimum Tangible Net Worth" means a Tangible Net Worth equal to Two
Million Five Hundred Thousand Dollars ($2,500,000) in United States currency.
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"Net Income" means the net income of Guarantor, determined on an accrual
basis in accordance with GAAP, before federal, state and local income taxes, but
excluding extraordinary items.
"Obligations" means, collectively, all covenants and obligations contained
in the Master Lease, the Facility Subleases and the other Transaction Documents,
and any and all amendments, modifications, extensions and renewals thereof, to
be performed by the Lyric Holdings and the Subsidiaries thereunder, and all
damages that may result from the non-performance thereof to the full extent
provided under the Master Lease, the Facility Subleases and the other
Transaction Documents.
"Person" means any natural person, trust, partnership, corporation, limited
liability company, joint venture or other legal entity.
"Purchase Agreement" means the Facilities Purchase Agreement dated as of
the date hereof among Lessor, IHS, and the Subsidiaries.
"Rent" means "Rent," as defined in the Master Lease.
"Security Agreement" means the Security Agreement dated as of the date
hereof among the respective Subsidiaries, Lyric Holdings and Lessor.
"Stock Pledge Agreement" means, collectively, the Pledge Agreement dated as
of the date hereof between Lyric and Lessor and the Pledge Agreement dated as of
the date hereof between Lyric Holdings and Lessor.
"Subsidiaries" means, collectively, Lyric Holdings and the entities listed
on attached EXHIBIT A.
"Subsidiary" means any of the Subsidiaries.
"Tangible Net Worth" means, at any date, the net worth of Guarantor and all
of its subsidiaries (including, without limitation, the Subsidiaries), as
determined on a consolidated basis in accordance with GAAP, less Intangible
Assets of Guarantor and all of its subsidiaries (including, without limitation,
the Subsidiaries).
"TFN" means T.F.N. Healthcare Investors, LLC, a Delaware limited liability
company.
"Transaction Documents" means the Purchase Agreement, the Master Lease, the
Facility Subleases, the L/C Agreement, the Letter of Credit, the Escrow
Agreement, the Security Agreement, the Indemnity Agreement and any other
documents executed and/or
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delivered or caused to be executed and/or delivered by Lyric Holdings and the
Subsidiaries pursuant to or in connection with the Master Lease and the Facility
Subleases.
2. GUARANTY. Guarantor hereby unconditionally and irrevocably guarantees to
Lessor (a) the payment when due of all Rent and other sums payable by Lyric
Holdings under the Master Lease and the Transaction Documents, (b) the payment
when due of all Rent and other sums payable by the Subsidiaries under the
Facility Subleases and the Transaction Documents and (c) the faithful and prompt
performance when due of each and every one of the Obligations. Upon the
occurrence of a Guaranty Default, Guarantor immediately shall perform or cause
to be performed the Obligations. Guarantor's liability under this Guaranty is
without limit.
3. SURVIVAL OF OBLIGATIONS. The obligations of Guarantor under this
Guaranty with respect to the Master Lease and the Transaction Documents shall
survive and continue in full force and effect notwithstanding:
(a) any amendment, modification or extension of the Master Lease, the
Facility Subleases or any of the other Transaction Documents;
(b) any compromise, release, consent, extension, indulgence or other
action or inaction in respect of any terms of the Master Lease, the
Facility Subleases or any of the other Transaction Documents or any
other guarantor;
(c) any substitution or release, in whole or in part, of any security for
this Guaranty that Lessor may hold at any time;
(d) any exercise or nonexercise by Lessor of any right, power or remedy
under or in respect of the Master Lease, the Facility Subleases or any
of the other Transaction Documents or any security held by Lessor with
respect thereto, or any waiver of any such right, power or remedy;
(e) any bankruptcy, insolvency, reorganization, arrangement, adjustment,
composition, liquidation or the like of any Subsidiary or any other
guarantor;
(f) any limitation of Lyric Holdings' or the Subsidiaries' liability under
the Master Lease, the Facility Subleases or the other Transaction
Documents or any limitation of such liability that now or hereafter
may be imposed by any statute, regulation or rule of law, or any
illegality, irregularity, invalidity or unenforceability, in whole or
in part, of the Master Lease, the Facility Subleases or the other
Transaction Documents or any term thereof;
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(g) any sale, lease or transfer of all or any part of any interest in any
Facility or any or all of the assets of Lyric Holdings or any
Subsidiary to any other person, firm or entity other than to Lessor;
(h) any act or omission by Lessor with respect to any of the security
instruments or any failure to file, record or otherwise perfect any of
the same;
(i) any extensions of time for performance under the Master Lease, the
Facility Subleases or the other Transaction Documents, whether prior
to or after maturity;
(j) the release of any collateral from the lien of any of the Security
Agreements, or the release of Lyric Holdings or any of the
Subsidiaries from performance or observation of any of the agreements,
covenants, terms or conditions contained in the Master Lease, the
Facility Subleases or any of the other Transaction Documents by
operation of law or otherwise;
(k) the fact that Lyric Holdings or any of the Subsidiaries may or may not
be personally liable, in whole or in part, under the terms of the
Master Lease, the Facility Subleases or the other Transaction
Documents to pay any money judgment;
(l) the failure to give Guarantor any notice of acceptance, default or
otherwise;
(m) any other guaranty now or hereafter executed by Guarantor or anyone
else in connection with the Master Lease or the Facility Subleases;
(n) any rights, powers or privileges that Lessor now or hereafter may have
against any other person, entity or collateral; or
(o) any other circumstances, whether or not Guarantor had notice or
knowledge thereof.
4. PRIMARY LIABILITY. The liability of Guarantor under this Guaranty is
primary, direct and immediate, and, upon the occurrence of a Guaranty Default,
Lessor may proceed against Guarantor: (a) prior to or in lieu of proceeding
against any Subsidiary, its assets, any security deposit or any other guarantor;
and (b) prior to or in lieu of pursuing any other rights or remedies available
to Lessor. All rights and remedies afforded to Lessor by reason of this Guaranty
or by law are separate, independent and cumulative, and the exercise of any
rights or remedies shall not in any way limit, restrict or prejudice the
exercise of any other rights or remedies.
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Upon the occurrence of a Guaranty Default, Lessor may bring and prosecute
against Guarantor an action or actions under this Guaranty, regardless of
whether Lyric Holdings or any Subsidiary is joined therein or a separate action
or actions are brought against any Subsidiary. Lessor may maintain successive
actions for other defaults. Lessor's rights hereunder shall not be exhausted by
its exercise of any of its rights or remedies or by any such action or by any
number of successive actions until and unless all Obligations have been paid and
fully performed.
5. OBLIGATIONS NOT AFFECTED. In such manner, upon such terms and at such
times as Lessor in its sole discretion deems necessary or expedient, and without
notice to Guarantor, Lessor may: (a) amend, alter, compromise, accelerate,
extend or change the time or manner for the payment or the performance of the
Obligations; (b) extend, amend or terminate the Master Lease or any other
Transaction Document; or (c) release Lyric Holdings and any Subsidiary by
consent to any assignment (or otherwise) as to all or any portion of the
obligations hereby guaranteed. Any exercise or non-exercise by Lessor of any
right hereby given Lessor, any dealing by Lessor with Guarantor or any other
guarantor, Lyric Holdings, any Subsidiary or other person, or any change,
impairment, release or suspension of any right or remedy of Lessor against any
person (including Lyric Holdings, any Subsidiary and any other guarantor) will
not affect any of the obligations of Guarantor hereunder or give Guarantor any
recourse or offset against Lessor.
6. WAIVER. Guarantor hereby waives and relinquishes all rights and remedies
accorded by applicable law to sureties and/or guarantors or any other
accommodation parties, under any statutory provisions, common law or any other
provision of law, custom or practice, and agrees not to assert or take advantage
of any such rights or remedies including, but not limited to:
(a) any right to require Lessor to proceed against Lyric Holdings or any
Subsidiary or any other person or to proceed against or exhaust any
security held by Lessor at any time or to pursue any other remedy in
Lessor's power before proceeding against Guarantor or to require that
Lessor cause a marshaling of the respective Subsidiaries' assets,
Lyric Holdings' assets or the assets, if any, given as collateral for
this Guaranty or to proceed against any Lyric Holdings or Subsidiary
and/or any collateral, including collateral, if any, given to secure
Guarantor's obligation under this Guaranty, held by Lessor at any time
or in any particular order;
(b) any defense that may arise by reason of the incapacity or lack of
authority of any other person or persons;
(c) notice of the existence, creation or incurring of any new or
additional indebtedness or obligation or of any action or non-action
on the part of Lyric
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Holdings or any Subsidiary, Lessor, any creditor of any Subsidiary or
Guarantor or on the part of any other person whomsoever under this or
any other instrument in connection with any obligation or evidence of
indebtedness held by Lessor or in connection with any obligation
hereby guaranteed;
(d) any defense based upon an election of remedies by Lessor that destroys
or otherwise impairs the subrogation rights of Guarantor or the right
of Guarantor to proceed against Lyric Holdings or any Subsidiary for
reimbursement, or both;
(e) any defense based upon any statute or rule of law that provides that
the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal;
(f) any duty on the part of Lessor to disclose to Guarantor any facts
Lessor may now or hereafter know about Lyric Holdings or any
Subsidiary, regardless of whether Lessor has reason to believe that
any such facts materially increase the risk beyond that which
Guarantor intends to assume or has reason to believe that such facts
are unknown to Guarantor or has a reasonable opportunity to
communicate such facts to Guarantor, it being understood and agreed
that Guarantor is fully responsible for being and keeping informed of
the financial condition of Lyric Holdings and the respective
Subsidiaries and of all circumstances bearing on the risk of
non-payment or non-performance of any obligations or indebtedness
hereby guaranteed;
(g) any defense arising because of Lessor's election, in any proceeding
instituted under the federal Bankruptcy Code, of the application of
Section 1111 (b)(2) of the federal Bankruptcy Code;
(h) any defense based on any borrowing or grant of a security interest
under Section 364 of the federal Bankruptcy Code; and
(i) all rights and remedies accorded by applicable law to guarantors,
including without limitation, any extension of time conferred by any
law now or hereafter in effect and any requirement or notice of
acceptance of this Guaranty or any other notice to which the
undersigned may now or hereafter be entitled to the extent such waiver
of notice is permitted by applicable law.
7. WARRANTIES. Guarantor represents and warrants to Lessor that: (a) this
Guaranty is executed at the request of Lyric Holdings and the Subsidiaries; and
(b) Guarantor has established adequate means of obtaining from Lyric Holdings
and the Subsidiaries, on a continuing basis, financial and other information
pertaining to the respective Subsidiaries'
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financial condition. Guarantor agrees to keep adequately informed from such
means of any facts, events or circumstances that might in any way affect
Guarantor's risks hereunder, and Guarantor further agrees that Lessor shall have
no obligation to disclose to Guarantor information or material acquired in the
course of Lessor's relationship with Lyric Holdings and any of the Subsidiaries.
8. SUBROGATION. Guarantor shall defer until all obligations of Lyric
Holdings and the Subsidiaries under the Master Lease, the Facility Subleases and
the other Transaction Documents have been satisfied and discharged in full for
one (1) year, its exercise of any right of subrogation it may have, and any
right to enforce any remedy that Lessor now has or hereafter may have, against
Lyric Holdings and the Subsidiaries and any benefit of, and any right to
participate in, any security now or hereafter held by Lessor with respect to the
Master Lease, the Facility Subleases and the other Transaction Documents.
9. SUBORDINATION. Following any notice from Lessor to Guarantor of an Event
of Default, and for so long as such default exists and remains uncured under the
Master Lease, the Facility Subleases or any of the other Transaction Documents,
(a) no Subsidiary or Lyric Holdings shall pay to Guarantor all or any part of
any indebtedness or obligations owing by Lyric Holdings or such Subsidiary to
Guarantor, nor will Guarantor accept any payment of or on account of any amounts
owing, without the prior written consent of Lessor and (b) Lessor's request,
Guarantor shall cause Lyric Holdings or the applicable Subsidiar(y)(ies) to pay
to Lessor all or any part of the subordinated indebtedness until the obligations
under the Master Lease, the Facility Subleases or the other Transaction
Documents have been paid in full. Any payment by Lyric Holdings or any
Subsidiary in violation of this Guaranty shall be received by Guarantor in trust
for Lessor, and Guarantor shall cause the same to be paid to Lessor immediately
on account of the amounts owing from Lyric Holdings or the applicable Subsidiary
to Lessor.
10. NO DELAY. Any payments required to be made by Guarantor hereunder
immediately shall become due on demand in accordance with the terms hereof upon
the occurrence of a Guaranty Default.
11. APPLICATION OF PAYMENTS. Lessor may, in its sole discretion, (a) apply
any or all payments or recoveries from Lyric Holdings or any Subsidiary or from
any other guarantor under any other instrument or realized from any security, in
such manner and order of priority as Lessor may determine, to any indebtedness
or other obligation of Lyric Holdings or the Subsidiaries with respect to the
Master Lease or the Facility Subleases, regardless of whether such indebtedness
or other obligation is guaranteed hereby or is otherwise secured or is due at
the time of such application, and/or (b) refund to Lyric Holdings or the
Subsidiaries any payment received by Lessor under the Master Lease or the
Facility Subleases.
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12. GUARANTY DEFAULT. Upon the occurrence and continuation of a Guaranty
Default, Lessor shall have the right to bring such actions at law or in equity,
including appropriate injunctive relief, as it deems appropriate to compel
compliance, payment or deposit, and among other remedies to recover its
reasonable attorneys' fees in any proceeding, including any appeal therefrom and
any post-judgement proceedings.
13. FINANCIAL COVENANTS.
(a) Except as provided in the next sentence of this paragraph, at all times
while any Obligations remain outstanding, during any fiscal year of Guarantor
(a) Guarantor shall not pay any Dividend and (b) Guarantor shall prohibit Lyric
Holdings and the Subsidiaries from paying any Incentive Management Fees if,
following the payment of the Dividend or Incentive Management Fees, Guarantor's
Tangible Net Worth at the end of the fiscal year will be less than the Minimum
Tangible Net Worth. Notwithstanding the foregoing, regardless of the Tangible
Net Worth of Guarantor, during any fiscal year of Guarantor, (i) Guarantor may
pay to TFN Dividends not exceeding One Hundred Fifty Thousand ($150,000.00)
Dollars and (ii) Guarantor may pay Dividends, and Lyric Holdings and the
Subsidiaries may pay Incentive Management Fees accrued during the fiscal year,
as long as the aggregate amount of all Dividends and Incentive Management Fees
paid during the fiscal year (exclusive of the permitted Dividend to TFN) does
not exceed sixty-seven percent (67%) of the sum of (A) the Net Income of
Guarantor for the fiscal year and (B) the Fees paid by Lyric Holdings and the
Subsidiaries during the fiscal year, and (iii) in any fiscal year, Guarantor may
pay Dividends to TFN in such amounts which, when added to any Dividends
otherwise paid to TFN in such fiscal year, shall be equal to TFN's actual
federal, state and local income tax liability attributable to its membership
interest in the Guarantor during the immediately preceding fiscal year.
(b) At all times while any Obligations remain outstanding, Guarantor shall
not permit the Subsidiaries or Lyric Holdings to seek or accept any advances
under the Line of Credit (a) which exceed ninety percent (90%) of the borrowing
base as determined in accordance with the Line of Credit Commitment (without
regard to any amendment thereto subsequent to the date hereof), or (b) for any
purpose other than to fund the working capital requirements of the Leased
Properties (as defined in the Master Lease), nor, in the event the Line of
Credit is replaced or supplemented by any financing secured in whole or in part
by the accounts receivable of the Subsidiaries or Lyric Holdings, shall
Guarantor permit the Subsidiaries or Lyric Holdings to seek or accept any
advances pursuant to such financing which would cause the total of all
outstanding advances to the Subsidiaries or Lyric Holdings to exceed the total
of the advances which would have been obtainable by application of the terms of
the Line of Credit Commitment, or any advances for any other purpose than that
stated above in this subsection (b).
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14. FINANCIAL STATEMENTS. Within fifty (50) days after the end of each of
Guarantor's fiscal quarters, Guarantor shall deliver to Lessor quarterly
consolidated financial statements, prepared in accordance with GAAP,
consistently applied, and certified by an officer of Guarantor. Within one
hundred twenty (120) days after the end of each of Guarantor's fiscal years,
Guarantor shall deliver to Lessor a copy of its consolidated financial
statements, prepared in accordance with GAAP, consistently applied, and
certified by an officer of Guarantor and reported on by a "Big Six" certified
public accounting firm or other certified public accounting firm approved by
Lessor. Together with the Guarantor's financial statements furnished in
accordance with the preceding two (2) sentences, Guarantor shall deliver an
officer's certificate of Guarantor stating that Guarantor is not in default in
the performance or observance of any of the terms of this Guaranty, or, if
Guarantor is in default, specifying all such defaults, the nature thereof and
the steps being taken to remedy the same.
15. PLEDGE OF STOCK. On or before September 1, 1998, Guarantor shall (a)
execute and deliver the applicable Stock Pledge Agreement, (b) cause Lyric
Holdings to execute and deliver to Lessor the applicable Stock Pledge Agreement
and (c) deliver to Lessor certificates representing all of the shares of stock
in each of Lyric Holdings and the Subsidiaries, endorsed as provided for in each
Stock Pledge Agreement.
16. NOTICES. Any notice, request or other communication to be given by any
party hereunder shall be in writing and shall be sent by registered or certified
mail, postage prepaid, by overnight delivery or hand delivery to the following
address:
To Guarantor: Lyric Health Care LLC
c/o Integrated Health Services, Inc.
00000 Xxx Xxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Copy to: Xxxxxxxx X. Xxxxxx, Esq.
Telephone No.: 410/000-0000
Facsimile No.: 410/998-8695
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To Lessor: Monarch Properties, LP
0000 Xxxxxxx Xxx Xxxxxxxxx - Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxx
Telephone No.: 941/000-0000
Facsimile No.: 941/566-6082
With copy to LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
(which shall not 000 Xxxx 00xx Xxxxxx
constitute notice): Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxx X. Xxxxxx, Xx.
Telephone No.: 212/000-0000
Facsimile No.: 212/424-8500
Notices shall be deemed given upon actual receipt.
17. MISCELLANEOUS.
(a) No term, condition or provision of this Guaranty may be waived except
by an express written instrument to that effect signed by Lessor. No waiver of
any term, condition or provision of this Guaranty will be deemed a waiver of any
other term, condition or provision, irrespective of similarity, or constitute a
continuing waiver of the same term, condition or provision, unless otherwise
expressly provided.
(b) If any one or more of the terms, conditions or provisions contained in
this Guaranty is found in a final award or judgment rendered by any court of
competent jurisdiction to be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining terms, conditions and
provisions of this Guaranty shall not in any way be affected or impaired
thereby, and this Guaranty shall be interpreted and construed as if the invalid,
illegal, or unenforceable term, condition or provision had never been contained
in this Guaranty.
(c) THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, EXCEPT THAT THE LAWS OF THE STATE IN WHICH A
FACILITY IS LOCATED SHALL GOVERN THIS AGREEMENT TO THE EXTENT NECESSARY (i) TO
OBTAIN THE BENEFIT OF THE RIGHTS AND REMEDIES SET FORTH HEREIN WITH RESPECT TO
SUCH FACILITY AND (ii) FOR PROCEDURAL REQUIREMENTS THAT MUST BE GOVERNED BY THE
LAWS OF THE STATE IN WHICH SUCH FACILITY IS LOCATED. GUARANTOR CONSENTS TO IN
PERSONAM JURISDICTION BEFORE THE STATE OR STATES AND FEDERAL COURTS OF NEW YORK
AND AGREES THAT ALL DISPUTES CONCERNING THIS GUARANTY SHALL BE HEARD IN THE
00
XXXXX XXX XXXXXXX XXXXXX XXXXXXX XX XXX XXXXX XX XXXXXX IN WHICH THE FACILITY OR
FACILITIES ARE LOCATED OR IN NEW YORK. GUARANTOR AGREES THAT SERVICE OF PROCESS
MAY BE EFFECTED UPON IT UNDER ANY METHOD PERMISSIBLE UNDER THE LAWS OF THE STATE
OR STATES IN WHICH THE FACILITY OR FACILITIES ARE LOCATED OR NEW YORK AND
IRREVOCABLY WAIVES ANY OBJECTION TO VENUE IN THE STATE AND FEDERAL COURTS OF THE
STATE OR STATES IN WHICH THE FACILITY OR FACILITIES ARE LOCATED AND OF NEW YORK.
(d) GUARANTOR AND LESSOR HEREBY WAIVE TRIAL BY JURY AND THE RIGHT THERETO
IN ANY ACTION OR PROCEEDING OF ANY KIND ARISING ON, UNDER, OUT OF, BY REASON OF
OR RELATING IN ANY WAY TO THIS GUARANTY OR THE INTERPRETATION, BREACH OR
ENFORCEMENT THEREOF.
(e) In the event of any suit, action, arbitration or other proceeding to
interpret this Guaranty, or to determine or enforce any right or obligation
created hereby, the prevailing party in the action shall recover such party's
actual costs and expenses reasonably incurred in connection therewith,
including, but not limited to, attorneys' fees and costs of appeal, post
judgment enforcement proceedings (if any) and bankruptcy proceedings (if any).
Any court, arbitrator or panel of arbitrators shall, in entering any judgment or
making any award in any such suit, action, arbitration or other proceeding, in
addition to any and all other relief awarded to such prevailing party, include
in such judgment or award such party's costs and expenses as provided in this
paragraph.
(f) Guarantor (i) represents that it has been represented and advised by
counsel in connection with the execution of this Guaranty; (ii) acknowledges
receipt of a copy of the Master Lease, the Facility Subleases and the other
Transaction Documents; and (iii) further represents that Guarantor has been
advised by counsel with respect thereto. This Guaranty shall be construed and
interpreted in accordance with the plain meaning of its language, and not for or
against Guarantor or Lessor, and as a whole, giving effect to all of the terms,
conditions and provisions hereof.
(g) Except as provided in any other written agreement now or at any time
hereafter in force between Lessor and Guarantor, this Guaranty shall constitute
the entire agreement of Guarantor with Lessor with respect to the subject matter
hereof, and no representation, understanding, promise or condition concerning
the subject matter hereof will be binding upon Lessor or Guarantor unless
expressed herein.
(h) All stipulations, obligations, liabilities and undertakings under this
Guaranty shall be binding upon Guarantor and its respective successors and
assigns and shall inure to the benefit of Lessor and to the benefit of Lessor's
successors and assigns.
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(i) Whenever the singular shall be used hereunder, it shall be deemed to
include the plural (and vice-versa) and reference to one gender shall be
construed to include all other genders, including neuter, whenever the context
of this Guaranty so requires. Section captions or headings used in the Guaranty
are for convenience and reference only, and shall not affect the construction
thereof.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the
date first written above.
GUARANTOR:
LYRIC HEALTH CARE LLC
BY: INTEGRATED HEALTH SERVICES, INC.
ITS: MEMBER
By:
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
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