EXHIBIT 10.140
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("Guaranty") is made and entered into this 25th
day of November, 1996 by and between CareMatrix Corporation (hereinafter
referred to as "Guarantor") and Sylvan Manor Health Care Center Limited
Partnership (hereinafter referred to as "Landlord").
WITNESSETH:
WHEREAS, CCC of Maryland, Inc ("Tenant"), a wholly owned subsidiary of
Guarantor, has leased the premises located at 0000 Xxxxxx Xxxxxx, Xxxxxx Xxxxxx,
Xxxxxxxx 00000 (the "Demised Premises") from Landlord pursuant to a certain
Indenture of Lease dated August 1, 1995, as amended by that certain Amendment of
Indenture of Lease dated September 7, 1995 and a certain Letter Agreement dated
August 16, 1996 (the "Lease"), all as more particularly described in the Lease;
and
WHEREAS, the terms of the Lease require the Tenant to post a letter of
credit or provide a certain unconditional and irrevocable guarantee of the
performance of all covenant, terms, conditions, agreements, obligations,
liabilities, warranties and indemnifications of Tenant under the Lease
("Tenant's Obligations"), including, but not limited to, the payment of Monthly
Rant, Additional Rent and all other charges due Landlord under the Lease,
including any damages that may arise as a consequent of any default of Tenant
under the Lease; and
WHEREAS, Guarantor has agreed to unconditionally and irrevocably
guaranty to Landlord the performance of Tenant's Obligations.
NOW, THEREFORE, in consideration of the foregoing premises, the sum of
Ten ($10.00) Dollars and other good and valuable consideration, the receipt and
adequacy of which is hereby conclusively acknowledged by Guarantor, the
Guarantor does hereby covenant and agree as follows:
1. The Guarantor hereby unconditionally and irrevocably guarantees to
Landlord the full and timely performance of all of Tenant's Obligations under
the Lease.
2. If Tenant defaults in the full, complete and timely performance of
Tenant's Obligations (after any notice and/or opportunity to cure provided
Tenant under the Lease, if any), Guarantor shall promptly pay or perform
Tenant's Obligations ("Guarantor's Obligations"). Guarantor's Obligations under
this Guaranty shall remain in full force and effect until Tenant's Obligations
pursuant to the Lease have been fully discharged.
3. This Guaranty shall be a continuing guarantee of Tenant's Obligations
under the Lease, and the liability of Guarantor hereunder shall in no way be
affected, modified, diminished or terminated by reason of (i) any assignment,
renewal, amendment, modification and/or extension of the Lease, (ii) any
compromise, release or waiver of Tenant's Obligations, (iii) any assignment or
transfer of any interest of Tenant in the Lease and/or the Demised Premises,
including any sublease of the Demised Premises by Tenant, (iv) any extension of
time granted by Landlord to Tenant and/or (v) any bankruptcy, insolvency,
reorganization, arrangement assignment for the benefit of creditors,
receivership or trusteeship affecting Tenant, whether or not notice has been
given to or received by Guarantor of any of the foregoing. Guarantor hereby
waives all notice of and consents to the foregoing, waives any right to notice
for a default by Tenant of its obligations under the Lease, waives notice of
acceptance of this Guaranty by Landlord (or its successors or assigns) whether
or not Landlord (or its successor assigns) is or becomes a signatory to this
Guaranty, and waives any and all suretyship defenses it may have with respect to
the enforcement of this Guaranty.
4. At the option of Landlord, Guarantor may be joined in any action or
proceeding against Tenant with respect to the Lease and Tenant's Obligations
thereunder, or Landlord may bring a separate action or proceeding directly
against the Guarantor, without any requirement that Landlord first assert,
prosecute or exhaust any remedy or claim against Tenant, all to the effect that
Guarantor's liability hereunder shall be deemed primary, direct and immediate
and not conditional or contingent. In the event Landlord shall commence any
action or proceeding for the enforcement of this Guaranty, the Guarantor will
reimburse Landlord, promptly upon demand, for any and all expenses incurred by
Landlord in connection with such action or proceeding, including, but not
limited to, reasonable attorneys' fees, court costs and expenses. Guarantor
hereby waives its right to a jury trial with respect to any action or proceeding
pertaining or related to the Lease, this Guaranty and/or the enforcement of the
lease and/or the Guaranty.
5. Guarantor hereby represents and warrants to Landlord that there is
not now pending against or affecting Guarantor, nor, to the best of Guarantor's
knowledge is there threatened, any action, suit or proceeding at law, in equity
or before any administrative agency which if adversely determined would
materially impair or affect the financial condition or operation of Guarantor.
Furthermore, Guarantor hereby represents and warrants to Landlord that if called
upon to perform Tenant's Obligations hereunder, Guarantor has the capacity,
experience and ability to perform each of Tenant's Obligations under the Lease.
6. All of the grants, covenants, terms, provisions and conditions of
this Guaranty shall apply, bind and inure to the benefit of the successors and
assigns of Guarantor and the successors and assigns of Landlord, and all persons
claiming any interest to the Demised Premises and/or the Lease under or through
any of them. If Guarantor is comprised of more than one individual, entity or
combination thereof, this Guaranty and its provisions shall be binding upon and
enforceable against any one or more of such individuals and entities, and the
liability of such individuals and entities shall be joint and severable.
7. Landlord's interest in this Guaranty may be assigned by it, by way of
security or otherwise, with or without notice to Guarantor.
8. This Guaranty shall be governed by and construed, interpreted and
enforced in accordance with and pursuant to the laws of the state in which the
Demised Premises is located.
9. All notices, demands, reports and other communications required or
desired to be given hereunder shall be in writing and deemed to have been
properly given or served when personally delivered (by hand, courier or
commercial overnight delivery service) or sent by United States registered or
certified mail, return receipt requested, postage prepaid, or by telex or
facsimile transmission when receipt is acknowledged (unless sent after 5 00 p.m.
of any business day or on the weekend in which event it will be deemed received
on the next business day) to the following addresses:
(a) If to Landlord, then to Landlord:
0000 Xxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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With a copy to:
Xxxxxxxxxx Xxxxx & Xxxxxxx, Chtd.
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxx, Esquire
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(b) If to Guarantor, then to Guarantor at:
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chairman of Board or President
and General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Any of the parties may designate a change of address by notice in writing to the
other party, with a change of address effective upon receipt by such other
party. Whenever in this Guaranty the giving of notice is required, the giving of
such notice may be waived in writing by the person or persons entitled to
receive such notice.
10. The Guarantor hereby represents and warrants to Landlord that all
corporate action has been taken to authorize the Guarantor, and the undersigned
officer of Guarantor, to execute and deliver this Guaranty, and that this
Guaranty when executed and delivered by Guarantor shall be the valid, legal and
binding obligation of Guarantor enforceable in accordance with its terms.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty intending to
be legally bound the day and year first above written.
WITNESS/ATTEST GUARANTOR:
CareMatrix Corporation
???????
----------------------- /s/ Xxxxxx X. Xxxxxxx (SEAL)
-----------------------------
By: Xxxxxx X. Xxxxxxx, President
THE UNDERSIGNED hereby acknowledges and accepts the above Guaranty.
WITNESS: LANDLORD:
Sylvan Manor Health Care Center
Limited Partnership
Xxxxxxx X. ???????? /s/ Xxxxxxx X. Xxxxx
--------------------- ---------------------
By: Xxxxxxx X. Xxxxx
General Partner
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GUARANTOR'S ACKNOWLEDGMENT
STATE OF MASSACHUSETTS
COUNTY OF NORFOLK, ss:
I a Notary Public in and for said County and State, do hereby certify that
Xxxxxx X. Xxxxxxx, who acknowledged himself to be the President of CareMatrix
Corporation, and party to a certain Guaranty Agreement bearing the date of
November 25, 1996 and hereto annexed, personally appeared before me, being well
known to me (or satisfactorily proven) as the person who executed the said
Guaranty Agreement on behalf of the Corporation, and acknowledge the same to be
the free act and deed of said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
26th day of November, 1996.
/s/ Xxxxxxxxx Xxxxxx
-----------------------
Notary Public
My commission expires: Sept. 4, 1998
(Notarial Seal)
