SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement") dated as of April 9,
1997, is by and among NATIONSBANK, N.A. (SOUTH), as Agent for and on behalf of
the Lenders under and in connection with the Senior Bank Credit Agreement as
hereinafter referenced (such Lenders as holders of the Senior Debt hereinafter
defined, including their respective successors and assigns, may be hereinafter
referred to as the "Senior Creditors"); INTEGRATED HEALTH SERVICES, INC., a
Delaware corporation (hereinafter together with its successors and assigns, the
"Subordinated Creditor"); and INTEGRATED LIVING COMMUNITIES, INC., a Delaware
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, NationsBank, N.A. (South) and various other banks and
financial institutions as may now or hereafter become a party thereto (such
banks and financial institutions, together with their successors and assigns,
may hereinafter be referred to collectively as the "Lenders" and individually as
a "Lender") have agreed to establish a credit facility in favor of Integrated
Living Communities Holding, Inc. (the "Borrower"), a Delaware corporation and a
wholly-owned subsidiary of the Company pursuant to the terms of that Credit
Agreement dated as of the date hereof among the Company, as a guarantor, the
Borrower, certain subsidiaries of the Company and the Borrower, as guarantors,
the Lenders and NationsBank, N.A. (South), as Agent (as amended, modified,
extended, renewed or replaced from time to time, the "Senior Bank Credit
Agreement") and as evidenced by those certain promissory notes issued from time
to time by the Borrower to the Lenders under and pursuant to the terms of the
Senior Bank Credit Agreement (hereinafter such promissory notes may be referred
to collectively as the "Senior Notes" or individually as a "Senior Note");
WHEREAS, the Subordinated Creditor has made a loan to the Company in
the original aggregate principal amount of $3,445,024 as evidenced by a
promissory note of the Company dated as of November 20, 1996 (as amended,
modified, extended, renewed or replaced from time to time with the consent of
the Required Lenders or the Agent acting with the consent of the Required
Lenders, the "Subordinated Note");
WHEREAS, the Lenders have required as a condition to the extension of
the credit facility pursuant to the Senior Bank Credit Agreement that the
Subordinated Debt (as hereinafter defined) be subordinated to the loans and
extensions of credit made pursuant to the terms of the Senior Bank Credit
Agreement and evidenced by the Senior Notes on terms acceptable to them;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1 Definitions.
1.1 Definitions. Terms used but not otherwise defined herein shall
have the meanings provided in the Senior Bank Credit Agreement. As used herein:
"Agent" means NationsBank, N.A. (South), as agent for the Lenders under
the Senior Bank Credit Agreement and related Senior Bank Credit Documents, and
any successors and assigns in such capacity.
"Change of Control" shall have the meaning assigned to such term in the
Senior Bank Credit Agreement.
"Commitments" shall have the meaning assigned to such term in the
Senior Bank Credit Agreement.
"Guarantor" means the Company and any subsidiary or affiliate of the
Company or the Borrower which may guarantee the Senior Debt or any portion
thereof.
"Lender" or "Lenders" means the Lenders party to the Senior Bank Credit
Agreement, together with their successors and assigns as referenced in the
Recitals of this Agreement.
"Person" means any individual, corporation, company, limited liability
company, voluntary association, partnership, trust, unincorporated association
or government (or any agency, instrumentality or political subdivision thereof).
"Proceeding" shall have the meaning assigned in Section 2.2 of this
Agreement.
"Required Lenders" shall have the meaning assigned to such term in the
Senior Bank Credit Agreement.
"Senior Bank Credit Agreement" shall have the meaning assigned to such
term in the Recitals of this Agreement.
"Senior Bank Debt" means the principal of and interest on the loans and
obligations owing from time to time, and all other amounts (including without
limitation all fees, indemnities, charges, expenses and other monetary
obligations) from time to time owing by the Borrower, the Company or any other
Guarantor to any Lender or the Agent, under any of the Senior Bank Credit
Documents.
"Senior Bank Credit Documents" means the Senior Bank Credit Agreement,
the Senior Notes and all other promissory notes, agreements, assignments,
guarantees, mortgages, security agreements, pledge agreements and documents that
have been or may hereafter be given by the Borrower, the Company or any other
Guarantor in connection with the Senior Bank Credit Agreement and the Senior
Debt existing thereunder, and
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includes without limitation, the "Credit Documents" referred to in the Senior
Bank Credit Agreement.
"Senior Bank Refinancing Debt" means all obligations of the Borrower,
the Company and each of the other Guarantors outstanding from time to time in
respect of any refinancing, refunding, renewal or restructuring of all or any
part of the Senior Bank Debt.
"Senior Creditors" shall have the meaning assigned to such term in the
preamble of this Agreement and, unless the context otherwise requires, shall
include all holders of the Senior Debt from time to time.
"Senior Debt" means, collectively, (a) all Senior Bank Debt; (b) all
Senior Bank Refinancing Debt; and (c) without limiting the foregoing, any
interest on any of the foregoing Senior Debt accruing subsequent to the
commencement of a Proceeding with respect to the Borrower, the Company or any
other Guarantor, whether or not such interest is allowed as a claim under such
Proceeding.
"Senior Note" or "Senior Notes" shall have the meanings assigned to
such terms in the Recitals of this Agreement.
"Subordinated Creditor" shall have the meaning assigned to such term in
the preamble of this Agreement and, unless the context otherwise requires, shall
include all holders of the Subordinated Debt from time to time.
"Subordinated Debt" means all principal of and interest on, and all
other obligations and liabilities of the Company and the Guarantors owing in
respect of or arising under, the Subordinated Debt Documents, and including
without limitation, amounts advanced or accreted in respect of interest accruing
on the Subordinated Note.
"Subordinated Debt Documents" means the Subordinated Note, and any
other documents or agreements that have been or may hereafter be given by the
Company or a Guarantor to a Subordinated Creditor in connection with the
Subordinated Debt.
"Subordinated Note" shall have the meaning assigned to such term in the
Recitals of this Agreement.
SECTION 2 Subordination Provisions.
2.1 Subordination to Senior Debt. The Company covenants and agrees for
itself and its successors and assigns, and the Subordinated Creditor likewise
covenants and agrees, that the payment of the Subordinated Debt is hereby
expressly subordinated, to the extent that and in the manner hereinafter set
forth, in right and order of payment to the prior payment in full in cash or
cash equivalents of all Senior Debt. While any Senior Debt shall be outstanding,
the Company shall not make any payment on or in respect of, or transfer any
property or interest in property as collateral security for, the Subordinated
Debt and the Subordinated Creditor (including any
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subsequent holders of the Subordinated Debt) shall not demand or accept any such
payment or collateral security, or take any action with respect to the
Subordinated Debt inconsistent with the priority position of the Senior Debt
established by these subordination provisions, except as expressly permitted by
these subordination provisions. The provisions of this Section 2 shall
constitute a continuing offer to all Persons who, in reliance upon such
provisions, become holders of, or continue to hold, Senior Debt, and such
provisions are made for the benefit of the holders of Senior Debt, and each such
holder is hereby made an obligee hereunder the same as if their names were
written herein as such and is entitled to enforce the provisions of this Section
2, subject to provisions thereof, without any act or notice of acceptance hereof
or in reliance hereon.
To the extent any payment of Senior Debt (whether by or on behalf of the
Borrower, the Company or any other Guarantor, as proceeds of security or
enforcement of any right of set-off, or otherwise) is declared to be fraudulent
or preferential, set aside or required to be paid to a trustee, receiver or
similar party under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then if such payment is recovered by, or paid over
to, such trustee, receiver or other similar party, the Senior Debt or part
thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
For purposes of this Section 2, the Senior Bank Debt shall not be considered to
be paid in full unless at the time of such payment or thereafter the commitments
relating thereto shall have expired or been terminated.
2.2 Payment of Proceeds Upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities
of the Borrower, the Company or any other Guarantor or upon any
dissolution, winding up, liquidation or reorganization of the Borrower,
the Company or any other Guarantor, whether voluntary or involuntary or
in bankruptcy, insolvency, reorganization, receivership, liquidation,
administrative supervision or similar proceedings or upon an assignment
for the benefit of creditors or any other marshalling of the assets and
liabilities of the Borrower, the Company or any other Guarantor (each,
a "Proceeding"), then and in any such event:
(i) the holders of all Senior Debt shall first be
entitled to receive indefeasible payment in full in cash or
cash equivalents of all amounts due thereon (including
interest accruing subsequent to the commencement of or filing
of a petition in any bankruptcy or insolvency proceeding at
the rate provided for under the terms of such Senior Debt),
before the holders of the Subordinated Debt are entitled to
receive any payment upon the Subordinated Debt or any
distribution of assets in respect of the Subordinated Debt;
(ii) any payment or distribution of assets of the
Borrower, the Company or any other Guarantor of any kind or
character, whether in cash, property or securities, to which
the holders of the Subordinated Debt would be entitled to
except for these subordination provisions shall be paid by the
liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise,
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directly to the holders of the Senior Debt or their
representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any
of such Senior Debt may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of the Senior
Debt held or represented by each, to the extent necessary to
make payment in full of all Senior Debt remaining unpaid, or
adequate provision therefor, after giving effect to any
concurrent payment or distribution to the holders of such
Senior Debt; and
(iii) in the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Borrower, the
Company or any other Guarantor of any kind or character,
whether in cash, property or securities, shall be received by
the holders of the Subordinated Debt after the commencement of
such marshalling of assets and before all Senior Debt is paid
in full, or adequate provision is made therefor, such payment
or distribution shall be paid over to the holders of such
Senior Debt or their representative or representatives or to
the trustee or trustees under any indenture under which any
instruments evidencing any such Senior Debt may have been
issued, ratably as aforesaid, for application to the payment
of all Senior Debt remaining unpaid until all such Senior Debt
shall have been paid in full, or adequate provision made
therefor, after giving effect to any concurrent payment or
distribution to the holders of such Senior Debt.
(b) If the holders of Subordinated Debt do not file a proper
claim or proof of claim or proof of debt or other document or amendment
thereof in the form required in any Proceeding prior to 30 days before
the expiration of the time to file such claim or proof or other
document or amendment thereof, then the Agent, on behalf of the holders
of the Senior Debt, has the right (but not the obligation) in such
Proceeding to, and is hereby irrevocably appointed the lawful attorney
of the holders of the Subordinated Debt for the purpose of enabling the
holders of Senior Debt to, demand, xxx for, collect, receive and give
receipt for the payments and distributions in respect of Subordinated
Debt that are made in such Proceeding and that are required to be paid
or delivered to the holders of Senior Debt as provided in this
Agreement, and to file and prove all claims therefor and to execute and
deliver all documents in such Proceeding in the name of the holders of
Subordinated Debt or otherwise in respect of such claims, as the
Required Lenders may reasonably determine to be necessary or
appropriate for the enforcement of the provisions of this Agreement.
2.3 Payments on Subordinated Debt.
(a) Notwithstanding Section 2.1 hereof, prior to the occurrence of a
Senior Payment Default (as hereinafter defined) or a Payment Blockage Period (as
hereinafter defined) and written notice thereof by the Agent to the Subordinated
Creditor stating either that (i) such a Senior Payment Default exists or (ii)
the Agent is electing to initiate the Payment Blockage Period as a result of a
Change of Control, the Subordinated Creditor shall be entitled to receive all
regularly scheduled payments of principal and interest on the Subordinated Debt.
No direct or indirect payment in respect of any Subordinated Debt shall be made
by the Borrower, the
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Company or any other Guarantor after the occurrence and during the continuation
of any Senior Payment Default or any Payment Blockage Period.
(b) As used herein (i) "Senior Payment Default" means a Default or
Event of Default in the payment of all or any portion of principal of, premium,
if any, interest or any fees or expenses on or with respect to any Senior Debt,
whether by acceleration or otherwise where the Agent has given written notice
thereof to the Borrower and the Subordinated Creditor and such Senior Payment
Default shall not have been cured by the Borrower or waived by the Lenders and
(ii) "Payment Blockage Period" means the period which (A) begins on the date the
Agent gives written notice to the Borrower and the Subordinated Creditor as
described in Section 2.3(a) stating that the Agent is initiating the Payment
Blockage Period as a result of the occurrence of a Change of Control and (B)
which ends on the date that is 60 days after the occurrence of the Change of
Control referred to in subclause (A). Upon the expiration of the Payment
Blockage Period (without an acceleration of the Senior Debt which acceleration
will constitute a Senior Payment Default), the Subordinated Creditor shall have
the right to (1) again receive all regularly scheduled payments of principal and
interest on the Subordinated Debt, (2) recover all principal and interest
payments which otherwise would have been made to the Subordinated Creditor
during such Payment Blockage Period, and (3) if the Senior Debt has not been
accelerated as a result of the respective Change of Control, declare the
Subordinated Debt due and payable before its stated maturity (and the Company
hereby agrees that the Subordinated Note may be accelerated in such
circumstance) and receive payments on the Subordinated Debt as a result of such
acceleration.
(c) Any such payments made to the holders of the Subordinated Debt and
any amounts recovered by any such holder upon the exercise of such holder's
remedies and applicable to payments on the Subordinated Debt or otherwise in
contravention of these subordination provisions shall be held for, paid over to,
and be subject to claim and recovery by or on behalf of, the holders of Senior
Debt to be applied ratably to the Senior Debt then due (or otherwise among such
holders of Senior Debt as a court of competent jurisdiction may direct),
whereupon the rights of the holders of the Subordinated Debt against the Company
shall be the same as though the payments so paid over or recovered had never
been made by the Company.
2.4 Limitations on Rights of Action.
(a) Notwithstanding anything contained in the Subordinated
Debt Documents to the contrary, so long as the Company shall be
prohibited from making any payment of cash on or in respect of the
Subordinated Debt hereunder, the holders of the Subordinated Debt shall
not take any action to (i) collect, demand payment of or accelerate any
of the Subordinated Debt, (ii) foreclose or otherwise realize upon any
security for the Subordinated Debt, (iii) initiate any Proceeding or
(iv) exercise any of their other rights or remedies against the Company
under the Subordinated Debt Documents or otherwise in respect of the
Subordinated Debt, unless and until the maturity of the Senior Debt
shall have been accelerated, provided that in any event the
Subordinated Debt may be accelerated only after at least 10 days' prior
written notice shall have been given to the Agent for the Senior
Creditors of the intent of the holders of Subordinated Debt to effect
such an acceleration.
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(b) Subject to the limitations on the rights of the holders of
the Subordinated Debt to accelerate the maturity of the Subordinated
Debt set forth herein, the failure to make a payment on account of this
Section 2 shall not be construed as preventing the occurrence of a
default or event of default under or in respect of the Subordinated
Debt Documents.
2.5 Notices of Conditions under this Section 2. Notices by the holders
of the Senior Debt under Section 2.3 or by the holders of the Subordinated Debt
under Section 2.4, shall be deemed effective when given in writing to the Agent
on behalf of the holders of the Senior Debt or to the holders of the
Subordinated Debt, as appropriate, to the address set out in, and otherwise in
accordance with the terms of, Section 4.2.
2.6 Right to Join in Actions. Nothing contained herein shall prohibit
the holders of the Subordinated Debt from joining any bankruptcy, reorganization
or insolvency proceedings once commenced by other creditors of the Company;
provided, that in any such proceedings the holder of such Subordinated Debt
shall exercise such holder's rights with respect to the Subordinated Debt in a
manner consistent with these subordination provisions and the priority of the
Senior Debt herein established or any of the liens and security interests
relating thereto, and shall, to the extent permitted by law and consistent with
these subordination provisions, and as requested by the Agent on behalf of the
holders of the Senior Debt for such purpose, assign such rights (including the
right to file proofs of claim and to vote claims on any plan of reorganization
or arrangement) to the Agent on behalf of the holders of the Senior Debt, pro
rata in accordance with their claims or as they may otherwise agree among
themselves.
2.7 Subrogation. Subject to the indefeasible payment in full of all
Senior Debt in cash or cash equivalents, the holders of the Subordinated Debt,
ratably in accordance with the amounts due them, shall be subrogated to the
rights of the holders of the Senior Debt to receive payments or distributions of
cash, property or securities of the Company applicable to the Senior Debt until
the principal of and interest on the Subordinated Debt shall be paid in full and
no such payments or distributions to the holders of the Senior Debt of cash,
property or securities otherwise distributable to the holders of the
Subordinated Debt (but for these subordination provisions) shall, as between the
Company, its creditors other than the holders of the Senior Debt, and the
holders of the Subordinated Debt, be deemed to be a payment by the Company on
account of the Senior Debt. It is understood that these subordination provisions
are and are intended solely for the purpose of defining the relative rights of
the holders of the Subordinated Debt, on the one hand, and the holders of the
Senior Debt, on the other hand. Nothing contained herein is intended to or shall
impair, as between the Company, its creditors other than the holders of the
Senior Debt, and the holders of the Subordinated Debt, the obligation of the
Company, which is unconditional and absolute, to pay to the holders of the
Subordinated Debt, ratably in accordance with the respective amounts due them,
the principal of and interest on the Subordinated Debt as and when the same
shall become due and payable in accordance with their terms, or to affect the
relative rights of the holders of the Subordinated Debt and the creditors of the
Company other than the holders of the Senior Debt. No failure of the Company to
pay principal of or interest on the Subordinated Debt when due hereunder shall
be excluded from the definition of "Events of Default" herein solely because
such payment is prohibited by these subordination provisions.
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2.8 No Waiver of Subordination Provisions.
(a) No right of any present or future holder (or
representative thereof) of any Senior Debt to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any act
or failure to act by any such holder, or by any non-compliance by the
Company with the terms provisions and covenants of the Subordinated
Debt Documents, regardless of any knowledge thereof any such holder (or
representative thereof) may have or be otherwise charged with.
(b) Without in any way limiting the generality of Section
2.08(a) hereof, the holders of Senior Debt (or their representative, if
applicable) may, at any time and from time to time and in their
absolute discretion, without incurring duties or other obligations to
any holders of Subordinated Debt and without impairing or releasing the
subordination and other benefits provided in this Agreement or the
obligations of the holders of the Subordinated Debt to the holders of
the Senior Debt, do any one or more of the following, all without
notice to or assent from the holders of the Subordinated Debt and even
if any right of reimbursement or subrogation or other right or remedy
of any such holder is affected, impaired or extinguished thereby:
(i) change the manner, place or terms of payment or
change or extend the time of payment of, or renew, exchange,
amend or alter, the terms of any Senior Debt, any security
therefor or guarantee thereof of any liability of the
Borrower, the Company or any other Guarantor to such holder,
or any liability incurred directly or indirectly in respect
thereof, or otherwise amend, renew, exchange, modify or
supplement in any manner Senior Debt or any instrument
evidencing or guaranteeing or securing the same or any
agreement under which Senior Debt is outstanding;
(ii) sell, exchange, release, surrender, realize
upon, enforce or otherwise deal with in any manner and any
order any property pledged, mortgaged or otherwise securing
Senior Debt or any liability of the Borrower, the Company or
any other Guarantor to such holder, or any liability incurred
directly or indirectly in respect thereof;
(iii) settle or compromise any Senior Debt or any
other liability of the Borrower, the Company or any other
Guarantor of the Senior Debt to such holder or any security
therefor or any liability incurred directly or indirectly in
respect thereof and apply any sums by whomsoever paid and
however realized to any liability (including, without
limitation, Senior Debt) in any manner or order; and
(iv) fail to take or to record or otherwise perfect,
for any reason or for no reason, any lien or security interest
securing Senior Debt by whomsoever granted, exercise or delay
in or refrain from exercising any right or remedy against the
Borrower, the Company or any other Guarantor or any collateral
or other
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security or any other Person, elect any remedy and otherwise
deal freely with the Borrower, the Company and any
collateral or other security.
SECTION 3 Other Agreements.
3.1 Amendments to Subordinated Debt Documents. Each of the Subordinated
Creditors agrees that it shall not, without the prior consent of the Required
Lenders or the Agent on behalf of the Required Lenders, agree or consent to any
amendment, waiver or other modification of any provision of any Subordinated
Debt Document.
3.2 Transfer of Subordinated Debt. The holders of the Subordinated Debt
shall not, without the prior written consent of the Required Lenders or the
Agent on behalf of the Required Lenders, which consent shall not be unreasonably
withheld, assign or otherwise transfer, in whole or in part, or encumber any of
its rights in respect of, the Subordinated Debt, provided that, in the case of
any such assignment, transfer or encumberance to which the Required Lenders
shall have consented, the transferee shall agree in writing, contemporaneously
therewith, to become a party hereto on the same terms as the Subordinated
Creditor.
3.3 Notices to Senior Creditors.
(a) Each Subordinated Creditor (or its representative) shall
notify the Senior Creditors (or their representatives) promptly upon
the happening of any of the following:
(i) the occurrence, and the Subordinated Creditors'
waiver, of any default under or in respect of the Subordinated
Debt Documents, but only if the existence of such default
would entitle the holders of the Subordinated Debt to
accelerate any Subordinated Debt;
(ii) acceleration of the maturity of any Subordinated
Debt held by it;
(iii) when proposed and if the same shall become
effective, any amendment, waiver or other modification of any
provision of any Subordinated Debt Document; and
(iv) the transfer of any Subordinated Debt,
specifying the name and address of the transferee and
enclosing an executed counterpart of the agreement required
under Section 3.2 hereof.
(b) Failure of any party to give notice required under this
Section 3.3 shall not relieve any other party of its obligations under
this Agreement.
3.4 Further Assurances. Each Subordinated Creditor agrees to promptly
execute and deliver such further documents and do such other acts and things as
any holder of Senior Debt may reasonably request from time to time in order to
more fully effect the purposes of this Agreement.
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SECTION 4 Miscellaneous.
4.1 No Waiver. No failure on the part of the Senior Creditors to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
4.2 Notices. Except as otherwise expressly provided herein, all notices
and other communications shall have been duly given and shall be effective (i)
when personally delivered, (ii) when transmitted via telecopy (or other
facsimile device) to the number set out below, (iii) the day following the day
on which the same has been delivered prepaid to a reputable national overnight
air courier service, or (iv) the third Business Day following the day on which
the same is sent by certified or registered mail, postage prepaid, to the
address set out on the signature pages hereto, or at such other address as such
party may specify by written notice to the other parties. Any notice or other
communication required to be given or delivered hereunder to the Senior
Creditors shall be deemed given or delivered to the Senior Creditors upon
effective delivery hereunder of such notice or communication to the Agent.
4.3 Amendments; Waivers; Modifications. This Agreement and the
provisions hereof may not be amended, waived, modified, changed, discharged or
terminated except with the prior written consent of the Company, the Required
Lenders and the holders of the Subordinated Debt. Any such amendment,
modification or waiver shall be binding upon all holders of Senior Debt and
Subordinated Debt.
4.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
4.5 Headings. The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
4.6 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA. Any legal action or
proceeding with respect to this Agreement may be brought in the courts
of the State of Florida, or of the federal courts of the United States
located in Florida, and, by execution and delivery of this Agreement,
each party hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of such
courts. Each party further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the
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mailing of copies thereof by registered or certified mail, postage
prepaid, to such party at its address for notices pursuant to Section
4.2. Nothing herein shall affect the right of any party to serve
process in any other manner permitted by law.
(b) Each party hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Agreement or any other Senior Bank Credit Document brought in the
courts referred to in subsection (a) hereof and hereby further
irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED THEREBY.
4.7 Severability. If any provision of any of this Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining
[remainder of page intentionally left blank]
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provisions shall remain in full force and effect and shall be construed without
giving effect to the illegal, invalid or unenforceable provisions.
4.8 Entirety. This Agreement together with the other Senior Bank Credit
Documents represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Senior Bank
Credit Documents or the transactions contemplated herein and therein.
4.9 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Company, each other Guarantor, each
Senior Creditor and the Subordinated Creditor and each other present or future
holder of Subordinated Debt and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
INTEGRATED LIVING COMMUNITIES, INC.
Address for Notice:
Integrated Living Communities, Inc. By:_________________________________
00000 Xxx 00 Xxxx, Xxxxx 00 Name:_______________________________
Xxxxxx Xxxxxxx, Xxxxxxx 00000 Title:______________________________
Attention: Xxxxxxx Xxxxxx
NATIONSBANK, N.A. (SOUTH),
Address for Notice: as Agent for the Senior Creditors
NationsBank, N.A. (South)
Downtown Sarasota Banking Center By:_________________________________
0000 Xxxx Xxxxxx Xxxx:_______________________________
Xxxxxxxx, Xxxxxxx 00000 Title:______________________________
Attention: Xxxx X. XxXxxxxx
INTEGRATED HEALTH SERVICES, INC.
Address for Notice:
Integrated Health Services, Inc. By:_________________________________
00000 Xxx Xxx Xxxxxxxxx Name:_______________________________
Xxxxx Xxxxx, Xxxxxxxx 00000 Title:______________________________
Attention: Xxxxxxx Xxx
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