EXHIBIT 10.41
CONSENT, ASSUMPTION AND GUARANTY AGREEMENT
THIS CONSENT, ASSUMPTION AND GUARANTY AGREEMENT (this "Agreement") is
entered into as of this 31st day of December, 1997, by and among (i) INTEGRATED
HEALTH SERVICES, INC., a Delaware corporation ("IHS"), (ii) IHS ACQUISITION NO.
108, INC., IHS ACQUISITION NO. 112, INC., IHS ACQUISITION NO. 113, INC., IHS
ACQUISITION NO. 135, INC., IHS ACQUISITION NO. 148, INC., IHS ACQUISITION NO.
152, INC., IHS ACQUISITION NO. 153, INC., IHS ACQUISITION NO. 154, INC., IHS
ACQUISITION NO. 155, INC. AND IHS ACQUISITION NO. 175, INC., each a Delaware
corporation (collectively, the "Acquisition Subsidiaries"), (iii) HEALTHSOUTH
CORPORATION, a Delaware corporation ("HealthSouth"), (iv) HORIZON HEALTHCARE
CORPORATION, a Delaware corporation ("Horizon"), (v) HEALTH AND RETIREMENT
PROPERTIES TRUST, a Maryland real estate investment trust (together with its
successors and assigns, "HRP"), and (vi) INDEMNITY COLLECTION CORPORATION, a
Delaware corporation ("ICC").
W I T N E S S E T H:
WHEREAS, pursuant to certain documents and agreements listed on Exhibit
A to this Agreement (such documents and agreements, as amended from time to
time, and, together with any other documents or agreements executed in
connection therewith or incidental thereto, collectively, the "Transaction
Documents"), Horizon incurred certain obligations to and made certain
undertakings and covenants for the benefit of HRP; and
WHEREAS, HealthSouth has guaranteed the obligations of Horizon to HRP
under the Transaction Documents; and
WHEREAS, IHS and the Acquisition Subsidiaries wish to acquire the
interests of Horizon under the Transaction Documents; and
WHEREAS, the Transaction Documents require that Horizon, HealthSouth,
IHS and the Acquisition Subsidiaries obtain HRP's prior approval of such
acquisition; and
WHEREAS, HRP is willing to grant such approval on the condition that
Horizon, HealthSouth, IHS and the Acquisition Subsidiaries enter into this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration,
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the mutual receipt and legal sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions. (a) Capitalized terms used and not otherwise defined in
this Agreement shall have the meanings ascribed to such terms in the Transaction
Documents.
(b) "Assumed Obligations" shall mean, with respect to each of IHS and
each of the Acquisition Subsidiaries, all obligations and liabilities arising
under the Transaction Documents relating to the property or properties set forth
opposite its name on Exhibit B to this Agreement.
(c) "Guaranteed Obligations" shall mean, with respect to IHS, the
payment and performance of each and every obligation of the Acquisition
Subsidiaries to HRP, and, with respect to the Acquisition Subsidiaries, the
payment and performance of each and every obligation of IHS and each other
Acquisition Subsidiary to HRP under the Transactions Documents, whether now
existing or hereafter arising, and including, without limitation, payment of the
principal of, and all interest and other charges due on, all notes to HRP and
the payment of the full amount of the rent and other charges payable under all
leases with HRP if and to the extent such obligations are not Assumed
Obligations.
(d) "Licensure Date" shall mean, with respect to any Facility located
in Massachusetts, the date IHS or any Acquisition Subsidiary shall obtain from
the Department of Health of The Commonwealth of Massachusetts an unconditional
license to operate the Facilities located in Massachusetts and any applicable
notice and/or appeal periods have lapsed.
(e) "Licensing Deadline" shall mean the date one hundred eighty (180)
days after the date of this Agreement.
2. Assumption of Assumed Obligations. Each of IHS and the Acquiring
Subsidiaries hereby assumes its respective Assumed Obligations. In any case
where more than one party shall be assuming any of the Assumed Obligations, such
Assumed Obligations shall be the joint and several obligation of each such
party.
3. Representations and Covenants of IHS and Acquisition Subsidiaries.
IHS and the Acquisition Subsidiaries, jointly and severally, represent, warrant,
covenant and agree that:
(a) IHS and the Acquisition Subsidiaries shall duly and punctually
perform all of their covenants and agreements relative to their respective
Assumed Obligations set forth in the Transaction Documents.
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(b) Each of the IHS and the Acquisition Subsidiaries has duly and
validly executed and delivered this Agreement; this Agreement constitutes the
legal, valid and binding obligation of IHS and the Acquisition Subsidiaries,
enforceable against IHS and the Acquisition Subsidiaries in accordance with its
terms; and the execution, delivery and performance of this Agreement have been
duly authorized by all requisite action of IHS and the Acquisition Subsidiaries
and such execution, delivery and performance by IHS and the Acquisition
Subsidiaries will not result in any breach of the terms, conditions or
provisions of, or conflict with or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any of the property or assets
of IHS or any of the Acquisition Subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust, note, other evidence of indebtedness,
agreement or other instrument to which IHS and/or any of the Acquisition
Subsidiaries may be a party or by which any of their property or assets may be
bound, or violate any provision of law, or any applicable order, writ,
injunction, judgement or decree of any court or any order or other public
regulation of any governmental commission, bureau or administrative agency
applicable to IHS and/or any of the Acquisition Subsidiaries.
(c) Each of IHS and the Acquisition Subsidiaries agrees, as principal
obligor and not as Guarantor only, to pay to HRP forthwith, upon demand, in
immediately available Federal funds, all costs and expenses (including, without
limitation, court costs and reasonable legal expenses) incurred or expended by
HRP in connection with the enforcement of this Agreement, together with interest
on amounts recoverable under this Agreement from the time such amounts become
due until payment at the Default Rate. Each of IHS and the Acquisition
Subsidiaries shall, upon demand, pay to HRP all costs and expenses (including,
without limitation, reasonable legal expenses) incurred by HRP in connection
with the preparation and negotiation of this Agreement. Each of IHS's and the
Acquisition Subsidiaries' covenants and agreements set forth in this section
shall survive the termination of this Agreement.
(d) IHS and the Acquisition Subsidiaries shall promptly give notice to
HRP of any event which might reasonably result in a material adverse change in
the financial condition of any of them.
(e) IHS shall promptly provide to HRP, with respect to IHS, each of the
financial reports, certificates and other documents required of any person under
the Transaction Documents.
(f) IHS and the Acquisition Subsidiaries shall do or cause to be done
all things necessary to preserve and keep in full force and effect each of their
respective corporate existences
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and shall not suffer or permit any change in control of, or transfer of
interests in, IHS or the Acquisition Subsidiaries without the prior written
consent of HRP, which consent may be given or withheld by HRP in HRP's sole
discretion, for any reason or for no reason at all; provided, however, that (x)
change of control of IHS shall not be deemed to occur by reason of the election
of directors of IHS unless more than a majority of the directors of IHS are
changed in a period of twelve (12) consecutive months; (y) a transfer of
interests in IHS shall not be deemed to occur by reason of public trading in
IHS's securities unless fifty percent (50%) or more of the direct or indirect
ownership interests of IHS come under control of one or more Affiliated Persons
or Entities or Persons or Entities acting in concert; and (z) no consent shall
be required with respect to IHS if the successor or surviving Person has a
tangible net worth, determined in accordance with GAAP, equal to or greater than
One Billion Dollars ($1,000,000,000).
(g) There shall be no material adverse change in the financial
condition of IHS or any of the Acquisition Subsidiaries unless and until all of
the Guaranteed Obligations have been satisfied in full.
4. Guarantee. Each of IHS and the Acquisition Subsidiaries hereby,
jointly and severally, unconditionally guarantees that the Guaranteed
Obligations which are monetary obligations shall be paid in full when due and
payable, whether upon demand, at the stated or accelerated maturity thereof or
upon any mandatory or voluntary prepayment pursuant to any Transaction Document,
or otherwise, and that the Guaranteed Obligations which are performance
obligations shall be fully performed at the times and in the manner such
performance is required by the Transaction Documents. With respect to the
Guaranteed Obligations which are monetary obligations, this guarantee is a
guarantee of payment and not of collectibility and is absolute and in no way
conditional or contingent. In case any part of the Guaranteed Obligations shall
not have been paid when due and payable or performed at the time performance is
required, IHS and the Acquisition Subsidiaries shall, within five (5) days after
receipt of notice from HRP, pay or cause to be paid to HRP the amount thereof as
is then due and payable and unpaid (including interest and other charges, if
any, due thereon through the date of payment in accordance with the applicable
provisions of the Transaction Documents) or perform or cause to be performed
such obligations in accordance with the Transaction Documents.
5. Set-Off. Regardless of the adequacy of any collateral or other means
of obtaining payment of the Guaranteed Obligations, HRP may, upon the occurrence
and during the continuance of any monetary Event of Default by IHS of its
guaranty obligations pursuant to this Agreement or any monetary
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event of default of IHS pursuant to that certain guaranty of obligations of
Community Care of America, Inc. and its Affiliated Persons to HRP, with or
without notice to IHS and/or the Acquisition Subsidiaries, set off the whole or
any portion or portions of any or all sums held by HRP and/or credited by or due
from HRP to IHS or any of its Affiliated Persons against amounts payable under
this Agreement and/or the Transaction Documents.
6. Unenforceability of Guaranteed Obligations, Etc. If any of IHS or
the Acquisition Subsidiaries is for any reason under no legal obligation to
discharge any of the Guaranteed Obligations, or if any other moneys included in
the Guaranteed Obligations have become unrecoverable from any obligor by
operation of law or for any other reason, including, without limitation, the
invalidity or irregularity in whole or in part of any Guaranteed Obligation or
of any Transaction Document or any limitation on the liability of any obligor
thereunder or any limitation on the method or terms of payment thereunder which
may now or hereafter be caused or imposed in any manner whatsoever, the
guarantees contained in this Agreement shall nevertheless remain in full force
and effect and shall be binding upon IHS and the Acquisition Subsidiaries to the
same extent as if such party at all times had been the principal joint and
several debtors on all such Guaranteed Obligations.
7. Additional Guarantees, Etc. The undertakings of IHS and the
Acquisition Subsidiaries pursuant to this Agreement shall be in addition to any
other guarantee or other security for the Guaranteed Obligations, and it shall
not be prejudiced or rendered unenforceable by the invalidity of any such other
guarantee or security or by any waiver, amendment, release or modification
thereof. In the event of any conflict between the provisions of this Agreement
and the provisions of any Transaction Document, the provisions of this Agreement
shall control.
8. Consents and Waivers, Etc. Each of IHS and the Acquisition
Subsidiaries hereby acknowledges receipt of correct and complete copies of each
of the Transaction Documents, and consent to all of the terms and provisions
thereof, as the same may be from time to time hereafter amended or changed in
accordance therewith, and waive, in their respective capacities as guarantors
but not as primary obligors, (a) presentment, demand for payment, and protest of
nonpayment, of any principal of or interest on any of the Guaranteed
Obligations, (b) notice of acceptance of this Agreement and of diligence,
presentment, demand and protest, (c) notice of any default hereunder and any
default, breach or nonperformance or Event of Default under any of the
Guaranteed Obligations or the Transaction Documents, (d) notice of the terms,
time and place of any private or public sale of collateral held as security for
the Guaranteed Obligations,
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(e) demand for performance or observance of, and any enforcement of any
provision of, or any pursuit or exhaustion of rights or remedies against any
obligor or any other guarantor of the Guaranteed Obligations, under or pursuant
to the Transaction Documents, or any agreement directly or indirectly relating
thereto and any requirements of diligence or promptness on the part of the
holders of the Guaranteed Obligations in connection therewith, and (f) to the
extent IHS and the Acquisition Subsidiaries lawfully may do so, any and all
demands and notices of every kind and description with respect to the foregoing
or which may be required to be given by any statute or rule of law and any
defense of any kind which it may now or hereafter have with respect to this
Agreement, or any of the Transaction Documents or the Guaranteed Obligations.
9. No Impairment, Etc. The obligations, covenants, agreements and
duties of IHS and the Acquisition Subsidiaries under this Agreement shall not be
affected or impaired by any assignment or transfer in whole or in part of any of
the Guaranteed Obligations without notice to any of IHS and the Acquisition
Subsidiaries, or any waiver by HRP or any holder of any of the Guaranteed
Obligations or by the holders of all of the Guaranteed Obligations of the
performance or observance by any obligor or any other guarantor of any of the
agreements, covenants, terms or conditions contained in the Guaranteed
Obligations or the Transaction Documents or any indulgence in or the extension
of the time for payment by any obligor or any other guarantor of any amounts
payable under or in connection with the Guaranteed Obligations or the
Transaction Documents or any other instrument or agreement relating to the
Guaranteed Obligations or of the time for performance by any obligor or any
other guarantor of any other obligations under or arising out of any of the
foregoing or the extension or renewal thereof, or the modification or amendment
(whether material or otherwise) of any duty, agreement or obligation of any
obligor or any other guarantor set forth in any of the foregoing, or the
voluntary or involuntary sale or other disposition of all or substantially all
the assets of any obligor or any other guarantor or insolvency, bankruptcy, or
other similar proceedings affecting any obligor or any other guarantor or any
assets of any obligor or any such other guarantor, or the release or discharge
of any obligor or any such other guarantor from the performance or observance of
any agreement, covenant, term or condition contained in any of the foregoing
without the consent of the holders of the Guaranteed Obligations by operation of
law, or any other cause, whether similar or dissimilar to the foregoing.
10. Reimbursement, Subrogation, Etc. Each of IHS and the Acquisition
Subsidiaries hereby covenant and agree that it will not enforce or otherwise
exercise any rights of reimbursement, subrogation, contribution or other similar
rights against any
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other person with respect to the Guaranteed Obligations prior to the payment in
full of all amounts owing under the Transaction Documents, and, until all
indebtedness to HRP shall have been paid in full, none of IHS or the Acquisition
Subsidiaries shall have any right of subrogation, and waives any defense it may
have based upon any election of remedies by HRP which destroys its subrogation
rights or its rights to proceed against any other person for reimbursement,
including, without limitation, any loss of rights it may suffer by reason of any
rights, powers or remedies of any other person in connection with any
anti-deficiency laws or any other laws limiting, qualifying or discharging the
indebtedness to HRP. Until all obligations pursuant to the Transaction Documents
shall have been paid and satisfied in full, each of IHS and the Acquisition
Subsidiaries further waive any right to enforce any remedy which any of them now
has or may in the future have against the others, or any other guarantor, and
hereby waive any benefit of, or any right to participate in, any security
whatsoever now or in the future held by HRP.
11. Defaults. IHS and the Acquisition Subsidiaries acknowledge and
agree that any default under this Agreement shall be an Event of Default under
the Transaction Documents and that any Event of Default under any Transaction
Document shall constitute and Event of Default under this Agreement and under
every other Transaction Document. All collateral given to HRP to secure any
obligation under any Transaction Document shall serve as collateral for all
obligations under all Transaction Documents; provided, however, that, if IHS or
any Acquisition Subsidiary shall satisfy its obligations under any Transaction
Document, including the purchase of any of the leased properties pursuant to the
terms of the Transaction Documents or the prepayment of mortgage indebtedness
with respect to any of the mortgaged properties pursuant to the terms of any
Transaction Document, the applicable Transaction Documents shall terminate as to
such properties in accordance with their respective terms, any collateral
provided in connection therewith shall be released in accordance with the terms
of the applicable Transaction Document.
12. Security Deposits. HRP represents that, as of the date hereof, it
holds no cash security for any obligations under the Transaction Documents.
13. Consent. In reliance on the undertakings set forth in this
Agreement, and provided that IHS, IHS Acquisition No. 175, Inc., and Connecticut
Subacute Corporation II shall enter into an agreement in the form attached
hereto as Exhibit C, HRP hereby consents to the acquisition of the interests of
Horizon under the Transaction Documents by IHS and the Acquisition Subsidiaries
as set forth in Exhibit B. If and to the extent HRP's consent, as mortgagee, may
be required for the transfer to IHS or its
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Affiliated Persons of Horizon's interests with respect to certain facilities
known as Ridge Crest Care Center, Warren, Ohio and/or San Jacinto Nursing Home,
Deer Park, Texas, HRP hereby grants such consent.
14. Subleases and Management Agreements. Notwithstanding anything to
the contrary set forth in the Transaction Documents, IHS may, upon prior written
notice to HRP, enter into subleases and/or submanagement agreements with the
Acquisition Subsidiaries. Until the Licensure Date, IHS may enter into a
management agreement with Horizon with respect to the Facilities located in
Massachusetts.
15. Release of HealthSouth and Horizon. HRP hereby releases HealthSouth
and Horizon from all obligations arising under the Transaction Documents, which
accrue on or after the date hereof; provided, however, that, with respect to any
Transaction Documents which relate to Facilities located in Massachusetts, such
release shall not be effective until the Licensure Date has occurred with
respect to the subject Facility.
16. Assignment of Claims. As an inducement to HRP to grant its consent
hereunder, HealthSouth, Horizon and IHS hereby assign to ICC all their right,
title and interest in, to and under any indemnities and/or undertakings made by
New MediCo Holding Co., Inc. and/or any of its Affiliated Persons for the
benefit of Greenery Rehabilitation Group, Inc. and certain others, now known to
exist or as may hereafter become known or arise in the future, which indemnities
are currently a subject of dispute among the parties thereto (the "Assigned
Claims"). HealthSouth and Horizon represent and warrant that they have not
previously assigned, pledged or encumbered the Assigned Claims. ICC and HRP
understand that IHS may have no interest in the Assigned Claims. HealthSouth and
Horizon agree to pay (or cause to be paid) Horizon's pro rata share of all costs
and expenses (including attorneys' fees) incurred with respect to the Assigned
Claims through the date hereof (the amount due through November 30, 1997 being
$61,860.93) and ICC shall be liable for all such costs and expenses incurred
subsequent to the date hereof. Each of HealthSouth, Horizon and IHS shall, to
the extent reasonably requested by ICC, cooperate with ICC in the prosecution
and defense of the Assigned Claims and shall take such actions and execute such
documents and agreements as ICC may reasonably require in connection with the
Assigned Claims, including, without limitation, making personnel available and
providing access to books and records. If HealthSouth, Horizon or IHS believe
any request by ICC is unreasonable, they shall give prompt written notice
thereof to ICC. The parties shall endeavor to resolve such issue in good faith.
If they cannot reach resolution within 30 days after notice of dispute is given
to ICC, any party may submit the matter to arbitration, each party
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hereby agreeing to submit to the jurisdiction of any tribunal hearing issues
relating to the Assigned Claims. Failure of IHS or its Affiliated Persons so to
cooperate and the continuance thereof for 10 days after notice thereof shall
constitute an Event of Default under the Transaction Documents.
17. Term Extensions. The Fixed Term and maturity date of each of the
Transaction Documents, other than those with respect to the Facility located in
Louisiana, is hereby extended to January 1, 2006.
18. Licensing Deadline. IHS and the Acquisition Subsidiaries shall use
best efforts to cause the Licensure Date with respect to all Massachusetts
Facilities to occur on or before the Licensing Deadline. If the Licensure Date
shall not occur with respect to any Facility prior to the Licensing Deadline and
provided IHS shall given written notice thereof to HRP prior to the Licensing
Deadline, IHS shall be automatically released with respect to the obligations
arising under any Transaction Document with respect to the affected Facility. In
the event IHS shall fail to give such notice, HRP shall provide IHS with a
notice inquiring as to the status of such licenses. If IHS shall advise HRP in
writing within ten (10) Business Days after receipt of such notice that the
Licensure Date has not occurred with respect to any Facility, IHS shall be
automatically released with respect to obligations arising under any Transaction
Document with respect to the affected Facility.
19. Notices. (a) Any and all notices, demands, consents, approvals,
offers, elections and other communications required or permitted under this
Agreement shall be deemed adequately given if in writing and the same shall be
delivered either in hand, by telecopier with written acknowledgment of receipt,
or by mail or Federal Express or similar expedited commercial carrier, addressed
to the recipient of the notice, postpaid and registered or certified with return
receipt requested (if by mail), or with all freight charges prepaid (if by
Federal Express or similar carrier).
(b) All notices required or permitted to be sent hereunder shall be
deemed to have been given for all purposes of this Agreement upon the date of
acknowledged receipt, in the case of a notice by telecopier, and, in all other
cases, upon the date of receipt or refusal, except that whenever under this
Agreement a notice is either received on a day which is not a Business Day or is
required to be delivered on or before a specific day which is not a Business
Day, the day of receipt or required delivery shall automatically be extended to
the next Business Day.
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(c) All such notices shall be addressed,
if to HRP to:
Health and Retirement Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
[Telecopier No. (000) 000-0000]
if to IHS and/or the Acquisition Subsidiaries:
Integrated Health Services, Inc.
00000 Xxx Xxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxx
[Telecopier No. (000) 000-0000]
(d) By notice given as herein provided, the parties hereto and their
respective successor and assigns shall have the right from time to time and at
any time during the term of this Agreement to change their respective addresses
effective upon receipt by the other parties of such notice and each shall have
the right to specify as its address any other address within the United States
of America.
20. Successors and Assigns. Whenever in this Agreement, any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party, including without limitation the holders,
from time to time, of the Guaranteed Obligations and the Transaction Documents;
and all representations, warranties, covenants and agreements by or on behalf of
IHS and/or the Acquisition Subsidiaries which are contained in this Agreement
shall inure to the benefit of HRP's successors and assigns, including without
limitation, such holders, whether so expressed or not.
21. Applicable Law. Except as to matters regarding the internal affairs
of HRP and issues of or limitations on any personal liability of the
shareholders and trustees of HRP for obligations of HRP, as to which the laws of
the State of Maryland shall govern, this Agreement shall be interpreted,
construed,
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applied and enforced in accordance with the laws of The Commonwealth of
Massachusetts applicable to contracts between residents of Massachusetts which
are to be performed entirely within Massachusetts, regardless of (i) where any
such instrument is executed or delivered; or (ii) where any payment or other
performance required by any such instrument is made or required to be made; or
(iii) where any breach of any provision of any such instrument occurs, or any
cause of action otherwise accrues; or (iv) where any action or other proceeding
is instituted or pending; or (v) the nationality, citizenship, domicile,
principal place of business, or jurisdiction of organization or domestication of
any party; or (vi) whether the laws of the forum jurisdiction otherwise would
apply the laws of a jurisdiction other than The Commonwealth of Massachusetts;
or (vii) any combination of the foregoing.
To the maximum extent permitted by applicable law, any action to
enforce, arising out of, or relating in any way to, any of the provisions of
this Agreement may be brought and prosecuted in such court or courts located in
The Commonwealth of Massachusetts as may be provided by law; and the parties
consent to the jurisdiction of said court or courts located in The Commonwealth
of Massachusetts and to service of process by registered mail, return receipt
requested, or by any other manner provided by law.
22. Modification of Agreement. No modification or waiver of any
provision of this Agreement, nor any consent to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
party against whom enforcement is sought, and such modification, waiver or
consent shall be effective only in the specific instances and for the purpose
for which given. No notice to or demand on the IHS and/or the Acquisition
Subsidiaries in any case shall entitle such party to any other or further notice
or demand in the same, similar or other circumstances.
23. Waiver of Rights by HRP. Neither any failure nor any delay on HRP's
part in exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right, power
or privilege. Nothing contained herein shall be deemed to waive HRP's right to
give or withhold its consent in any subsequent transaction.
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24. Severability. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby, but this Agreement
shall be reformed and construed and enforced to the maximum extent permitted by
applicable law.
25. Entire Contract. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and shall
supersede and take the place of any other instruments purporting to be an
agreement of the parties hereto relating to the subject matter hereof.
26. Headings; Counterparts. Headings in this Agreement are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument,
and in pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one of such counterparts.
27. Remedies Cumulative. No remedy herein conferred upon HRP is
intended to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise.
28. NON-LIABILITY OF TRUSTEES. THE DECLARATION OF TRUST OF HRP PROVIDES
THAT THE NAME "HEALTH AND RETIREMENT PROPERTIES TRUST" REFERS TO THE TRUSTEES
UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR
PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF HRP
SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY
OBLIGATION OF, OR CLAIM AGAINST, HRP. ALL PERSONS DEALING WITH HRP, IN ANY WAY,
SHALL LOOK ONLY TO THE ASSETS OF HRP FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
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29. Payment of Fees. IHS shall pay all attorney fees incident to the
preparation, negotiation and implementation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the date above first written.
INTEGRATED HEALTH SERVICES, INC.
By: /s/
Its Executive Vice President
IHS ACQUISITION NO. 108, INC.
By: /s/
Its Executive Vice President
IHS ACQUISITION NO. 112, INC.
By: /s/
Its Executive Vice President
IHS ACQUISITION NO. 113, INC.
By: /s/
Its Executive Vice President
IHS ACQUISITION NO. 135, INC.
By: /s/
Its Executive Vice President
IHS ACQUISITION NO. 148, INC.
By: /s/
Its Executive Vice President
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IHS ACQUISITION NO. 152, INC.
By: /s/
Its Executive Vice President
IHS ACQUISITION NO. 153, INC.
By: /s/
Its Executive Vice President
IHS ACQUISITION NO. 154, INC.
By: /s/
Its Executive Vice President
IHS ACQUISITION NO. 155, INC.
By: /s/
Its Executive Vice President
IHS ACQUISITION NO. 175, INC.
By: /s/
Its Executive Vice President
HEALTHSOUTH CORPORATION
By: /s/
Its (Vice) President
HORIZON HEALTHCARE CORPORATION
By: /s/
Its (Vice) President
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HEALTH AND RETIREMENT PROPERTIES
TRUST
By: /s/ Xxxxx X. Xxxxxxx
Its President
INDEMNITY COLLECTION CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Its (Vice) President
EXHIBIT A
List of Documents and Agreements
1. Promissory Note dated February 11, 1994 in the original principal
amount of $5,100,000.
2. Mortgage and Security Agreement, dated November 29, 1993, with respect
to Howell, Michigan.
3. Assignment of Leases and Rents, dated February 11, 1994, with respect
to Howell, Michigan.
4. Promissory Note, dated February 11, 1994, in the original principal
amount of $4,300,000.
5. Mortgage and Security Agreement, dated November 29, 1993, with respect
to Farmington, Michigan.
6. Assignment of Leases and Rents, dated February 11, 1994, with respect
to Farmington, Michigan.
7. Leases, dated February 11, 1994, with respect to properties located in
Hyannis, North Andover, Middleboro and Worcester, Massachusetts,
Cannonsburg, PA and Boston, MA.
8. Guarantees of Leases to Connecticut Subacute Corporation II, dated
February 11, 1994.
9. Purchase Option Agreement dated as of February 11, 1994.
10. Master Lease Document General Terms and Conditions, dated as of May 15,
1987.
11. Promissory Note, dated January 28, 1995, in the original principal
amount of $19,500,000.
12. Mortgage and Security Agreement, dated January 28, 1995, with respect
to Slidell, Louisiana.
13. Assignment of Leases and Rents, dated January 28, 1995, with respect to
Slidell, Louisiana.
14. UCC-1 Financing Statements with respect to the above.
EXHIBIT B
ASSUMED OBLIGATIONS
Property Obligors
Worcester, MA IHS and
IHS Acquisition Xx. 000, Xxx.
Xxxxx Xxxxxxx, XX IHS and
IHS Acquisition No. 148, Inc.
Boston, MA IHS and
IHS Acquisition No. 152, Inc.
Hyannis, MA IHS and
IHS Acquisition No. 153, Inc.
Middleboro, MA IHS and
IHS Acquisition No. 154, Inc.
Cannonsburg, PA IHS and
IHS Acquisition No. 135, Inc.
Farmington, MI IHS Acquisition No. 112, Inc.
Howell, MI IHS Acquisition No. 113, Inc.
Slidell, LA IHS Acquisition No. 108, Inc.
Xxxxxxx House,* IHS Acquisition No. 175, Inc.
New Haven, CT
Cheshire, CT* IHS Acquisition Xx. 000, Xxx.
Xxxxxxxxx, XX* IHS Acquisition No. 175, Inc.
*IHS to assume lease obligation pursuant to CSC Consent and will be only a
guarantor of the Management Contracts.
EXHIBIT C
CSC Consent Agreement
[See attached copy.]
CONSENT, GUARANTY AND ASSUMPTION AGREEMENT
THIS CONSENT, GUARANTY AND ASSUMPTION AGREEMENT (this "Agreement") is
entered into as of this 31st day of December 1997, by and among (i) INTEGRATED
HEALTH SERVICES, INC., a Delaware corporation ("IHS"), (ii) IHS ACQUISITION NO.
175, INC., a Delaware corporation ("Acquisition Subsidiary"), (iii) HEALTHSOUTH
CORPORATION, a Delaware corporation ("HealthSouth"), (iv) HORIZON HEALTHCARE
CORPORATION, a Delaware corporation ("Horizon"), and (v) CONNECTICUT SUBACUTE
CORPORATION II, a Delaware corporation (together with its successors and
assigns, "CSC").
W I T N E S S E T H:
WHEREAS, pursuant to certain Management Agreements, dated February 1,
1994 (as amended from time to time, collectively, the "Management Agreements"
and, together with any other documents or agreements executed in connection
therewith or incidental thereto, the "Transaction Documents"), Horizon incurred
certain obligations to and made certain undertakings and covenants for the
benefit of CSC; and
WHEREAS, HealthSouth has guaranteed the obligations of Horizon under
the Transaction Documents; and
WHEREAS, IHS and Acquisition Subsidiary wish to acquire the interest of
Horizon under the Transaction Documents; and
WHEREAS, the Transaction Documents require that Horizon, IHS and
Acquisition Subsidiary obtain CSC's prior approval of such acquisition; and
WHEREAS, CSC is willing to grant such approval on the condition that
HealthSouth, Horizon, IHS and Acquisition Subsidiary enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Definitions. (a) Capitalized terms used and not otherwise defined in
this Agreement shall have the meanings ascribed to such terms in the Transaction
Documents.
(b) "Guaranteed Obligations" shall mean the payment and performance of
each and every obligation of Acquisition
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Subsidiary to CSC, whether under the Transaction Documents, or otherwise,
whether now existing or hereafter arising, and including, without limitation,
the payment of the full amount of rent and other charges payable under the
Leases and all working capital required to operate the Facilities.
2. Representations and Covenants of IHS and Acquisition Subsidiary. IHS
and Acquisition Subsidiary represent, warrant, covenant and agree that:
(a) Each of IHS and Acquisition Subsidiary has duly and validly
executed and delivered this Agreement; this Agreement constitutes the legal,
valid and binding obligation of IHS and Acquisition Subsidiary, enforceable
against IHS and Acquisition Subsidiary in accordance with its terms; and the
execution, delivery and performance of this Agreement have been duly authorized
by all requisite action of IHS and Acquisition Subsidiary and such execution,
delivery and performance by IHS and Acquisition Subsidiary will not result in
any breach of the terms, conditions or provisions of, or conflict with or
constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any of the property or assets of IHS and Acquisition Subsidiary
pursuant to the terms of, any indenture, mortgage, deed of trust, note, other
evidence of indebtedness, agreement or other instrument to which IHS and
Acquisition Subsidiary may be a party or by which IHS and Acquisition Subsidiary
or any of their property or assets may be bound, or violate any provision of
law, or any applicable order, writ, injunction, judgement or decree of any court
or any order or other public regulation of any governmental commission, bureau
or administrative agency applicable to IHS or the Acquisition Subsidiary.
(b) IHS and Acquisition Subsidiary shall promptly give notice to CSC of
any event which might reasonably result in a material adverse change in the
financial condition of either of them.
(c) IHS and Acquisition Subsidiary shall do or cause to be done all
things necessary to preserve and keep in full force and effect each of their
respective corporate existence and shall not suffer or permit any change in
control of, or transfer of interests in, IHS and Acquisition Subsidiary without
the prior written consent of CSC, which consent may be given or withheld by CSC
in CSC's sole discretion, for any reason or for no reason at all; provided,
however, that (x) a change of control of IHS shall not be deemed to occur by
reason of the election of directors of IHS unless more than a majority of the
directors of IHS are changed in a period of twelve (12) consecutive months; (y)
a transfer of interests in IHS shall not be deemed to occur by reason of public
trading in IHS's securities unless fifty percent
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(50%) or more of the direct or indirect ownership interests of IHS come under
control of one or more Affiliated Persons or Entities or Persons or Entities
acting in concert; and (z) no consent shall be required with respect to IHS if
the successor or surviving person has a tangible net worth, determined in
accordance with GAAP, equal to or greater than One Billion Dollars
($1,000,000,000).
(d) IHS agrees, as principal obligor and not as guarantor only, to pay
to CSC forthwith, upon demand, in immediately available Federal funds, all costs
and expenses (including, without limitation, court costs and reasonable legal
expenses) incurred or expended by CSC in connection with the enforcement of this
Agreement from the time such amounts become due until payment at the maximum
rate permitted by applicable law. The covenants and agreements of IHS set forth
in this section shall survive the termination of this Agreement.
3. Guarantee. IHS hereby unconditionally guarantees that the Guaranteed
Obligations which are monetary obligations shall be paid in full when due and
payable, whether upon demand, at the stated or accelerated maturity thereof or
upon any mandatory or voluntary prepayment pursuant to any Transaction Document,
or otherwise, and that the Guaranteed Obligations which are performance
obligations shall be fully performed at the times and in the manner such
performance is required by the Transaction Documents. With respect to the
Guaranteed Obligations which are monetary obligations, this guarantee is a
guarantee of payment and not of collectibility and is absolute and in no way
conditional or contingent. In case any part of the Guaranteed Obligations shall
not have been paid when due and payable or performed at the time performance is
required, IHS shall, within five (5) days after receipt of notice from CSC, pay
or cause to be paid to CSC the amount thereof as is then due and payable and
unpaid (including interest and other charges, if any, due thereon through the
date of payment in accordance with the applicable provisions of the Transaction
Documents) or perform or cause to be performed such obligations in accordance
with the Transaction Documents.
4. Set-Off. Regardless of the adequacy of any collateral or other means
of obtaining payment of the Guaranteed Obligations, CSC may at any time and
without notice to IHS and/or Acquisition Subsidiary set off the whole or any
portion or portions of any or all sums held by CSC and/or credited by or due
from CSC to IHS or any of its Affiliated Persons against amounts payable under
this Agreement and/or the Transaction Documents.
5. Unenforceability of Guaranteed Obligations, Etc. If Acquisition
Subsidiary is for any reason under no legal obligation to discharge any of the
Guaranteed Obligations, or if
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any other moneys included in the Guaranteed Obligations have become
unrecoverable from Acquisition Subsidiary by operation of law or for any other
reason, including, without limitation, the invalidity or irregularity in whole
or in part of any Guaranteed Obligation or of any Transaction Document or any
limitation on the liability of Acquisition Subsidiary thereunder or any
limitation on the method or terms of payment thereunder which may now or
hereafter be caused or imposed in any manner whatsoever, the guarantees
contained in this Agreement shall nevertheless remain in full force and effect
and shall be binding upon IHS to the same extent as if IHS at all times had been
the principal joint and several debtor on all such Guaranteed Obligations.
6. Additional Guarantees, Etc. IHS's undertakings pursuant to this
Agreement shall be in addition to any other guarantee or other security for the
Guaranteed Obligations, and it shall not be prejudiced or rendered unenforceable
by the invalidity of any such other guarantee or security or by any waiver,
amendment, release or modification thereof. In the event of any conflict between
the provisions of this Agreement and the provisions of any Transaction Document,
the provisions of this Agreement shall control.
7. Consents and Waivers, Etc. IHS hereby acknowledges receipt of
correct and complete copies of each of the Transaction Documents, and consents
to all of the terms and provisions thereof (including, without limitation,
Sections 6.3 and 9.10 thereof), as the same may be from time to time hereafter
amended or changed in accordance therewith, and waives (a) presentment, demand
for payment, and protest of nonpayment, of any principal of or interest on any
of the Guaranteed Obligations, (b) notice of acceptance of this Agreement and of
diligence, presentment, demand and protest, (c) notice of any default hereunder
and any default, breach or nonperformance or Event of Default under any of the
Guaranteed Obligations or the Transaction Documents, (d) notice of the terms,
time and place of any private or public sale of collateral held as security for
the Guaranteed Obligations, (e) demand for performance or observance of, and any
enforcement of any provision of, or any pursuit or exhaustion of rights or
remedies against Acquisition Subsidiary or any other guarantor of the Guaranteed
Obligations, under or pursuant to the Transaction Documents, or any agreement
directly or indirectly relating thereto and any requirements of diligence or
promptness on the part of the holders of the Guaranteed Obligations in
connection therewith, and (f) to the extent IHS lawfully may do so, any and all
demands and notices of every kind and description with respect to the foregoing
or which may be required to be given by any statute or rule of law and any
defense of any kind which it may now or hereafter have with respect to this
Agreement, or any of the Transaction Documents or the Guaranteed Obligations.
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8. No Impairment, Etc. The obligations, covenants, agreements and
duties of IHS under this Agreement shall not be affected or impaired by any
assignment or transfer in whole or in part of any of the Guaranteed Obligations
without notice to IHS, or any waiver by CSC or any holder of any of the
Guaranteed Obligations or by the holders of all of the Guaranteed Obligations of
the performance or observance by Acquisition Subsidiary or any other guarantor
of any of the agreements, covenants, terms or conditions contained in the
Guaranteed Obligations or the Transaction Documents or any indulgence in or the
extension of the time for payment by Acquisition Subsidiary or any other
guarantor of any amounts payable under or in connection with the Guaranteed
Obligations or the Transaction Documents or any other instrument or agreement
relating to the Guaranteed Obligations or of the time for performance by
Acquisition Subsidiary or any other guarantor of any other obligations under or
arising out of any of the foregoing or the extension or renewal thereof, or the
modification or amendment (whether material or otherwise) of any duty, agreement
or obligation of Acquisition Subsidiary or any other guarantor set forth in any
of the foregoing, or the voluntary or involuntary sale or other disposition of
all or substantially all the assets of Acquisition Subsidiary or any other
guarantor or insolvency, bankruptcy, or other similar proceedings affecting
Acquisition Subsidiary or any other guarantor or any assets of Acquisition
Subsidiary or any such other guarantor, or the release or discharge of
Acquisition Subsidiary or any such other guarantor from the performance or
observance of any agreement, covenant, term or condition contained in any of the
foregoing without the consent of the holders of the Guaranteed Obligations by
operation of law, or any other cause, whether similar or dissimilar to the
foregoing.
9. Reimbursement, Subrogation, Etc. IHS hereby covenants and agrees
that IHS will not enforce or otherwise exercise any rights of reimbursement,
subrogation, contribution or other similar rights against Acquisition Subsidiary
or any other person with respect to the Guaranteed Obligations prior to the
payment in full of all amounts owing under the Transaction Documents, and until
all indebtedness of Acquisition Subsidiary to CSC shall have been paid in full,
IHS shall have no right of subrogation, and IHS waives any defense it may have
based upon any election of remedies by CSC which destroys IHS's subrogation
rights or IHS's rights to proceed against Acquisition Subsidiary for
reimbursement, including, without limitation, any loss of rights IHS may suffer
by reason of any rights, powers or remedies of Acquisition Subsidiary in
connection with any anti-deficiency laws or any other laws limiting, qualifying
or discharging the indebtedness to CSC. Until all obligations of Acquisition
Subsidiary pursuant to the Transaction Documents shall have been paid and
satisfied in full, IHS further waives any right to
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enforce any remedy which CSC now has or may in the future have against
Acquisition Subsidiary, any other guarantor or any other person and any benefit
of, or any right to participate in, any security whatsoever now or in the future
held by CSC.
10. Defaults. IHS and Acquisition Subsidiary acknowledge and agree that
any default under this Agreement shall be an Event of Default under the
Transaction Documents and that any Event of Default under any Transaction
Document shall constitute and Event of Default under this Agreement and under
every other Transaction Document.
11. Extension of Term. To induce CSC to enter into this Agreement, IHS
and Acquisition Subsidiary hereby agree that the term of the Management
Agreements is hereby extended to January 1, 2006. The parties acknowledge that
the Leases will be and hereby are extended through such period.
12. Assumption; Acknowledgment of Certain Liabilities. Acquisition
Subsidiary hereby assumes all obligations and liabilities of Horizon under the
Transaction Documents. Without limiting the generality of the foregoing or of
Section 3.3 of the Management Agreements, Acquisition Subsidiary acknowledges
that it is liable for, and shall indemnify and hold harmless CSC and HRP from
and against all fines and penalties assessed in connection with the operation of
the Facilities. IHS hereby assumes all obligations of CSC arising under the
Leases with HRP and IHS and CSC acknowledge and agree that, from and after the
date hereof, they shall be jointly and severally liable under such Leases.
13. Consent and Release. In reliance on the undertakings set forth in
this Agreement, CSC hereby consents to the transfer of Horizon's rights under
the Transaction Documents to Acquisition Subsidiary. CSC hereby releases
HealthSouth and Horizon from all obligations which accrue under the Transaction
Documents on or after the date hereof.
14. B&G Note. As an inducement to the directors and shareholders of CSC
to cause CSC to enter into this Agreement, IHS and HealthSouth hereby agree that
each is or has been a holder of that certain Promissory Note, made December 10,
1993, made by B&G Partners Limited Partnership to the order of Greenery
Rehabilitation Group, Inc.
15. Management Fees. The parties represent and warrant that, as of the
date hereof, all management fees due and payable under the Transaction Documents
have been paid in full and there is no accrual of any such fees.
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16. Notices. (a) Any and all notices, demands, consents, approvals,
offers, elections and other communications required or permitted under this
Agreement shall be deemed adequately given if in writing and the same shall be
delivered either in hand, by telecopier with written acknowledgment of receipt,
or by mail or Federal Express or similar expedited commercial carrier, addressed
to the recipient of the notice, postpaid and registered or certified with return
receipt requested (if by mail), or with all freight charges prepaid (if by
Federal Express or similar carrier).
(b) All notices required or permitted to be sent hereunder shall be
deemed to have been given for all purposes of this Agreement upon the date of
acknowledged receipt, in the case of a notice by telecopier, and, in all other
cases, upon the date of receipt or refusal, except that whenever under this
Agreement a notice is either received on a day which is not a Business Day or is
required to be delivered on or before a specific day which is not a Business
Day, the day of receipt or required delivery shall automatically be extended to
the next Business Day.
(c) All such notices shall be addressed,
if to CSC to:
Connecticut Subacute Corporation II
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
[Telecopier No. (000) 000-0000]
if to IHS or Acquisition Subsidiary:
Integrated Health Services, Inc.
00000 Xxx Xxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxx
[Telecopier No. (000) 000-0000]
(d) By notice given as herein provided, the parties hereto and their
respective successor and assigns shall have the right from time to time and at
any time during the term of this Agreement to change their respective addresses
effective upon
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receipt by the other parties of such notice and each shall have the right to
specify as its address any other address within the United States of America.
17. Successors and Assigns. Whenever in this Agreement, any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party, including without limitation the holders,
from time to time, of the Transaction Documents; and all representations,
warranties, covenants and agreements by or on behalf of IHS and/or Acquisition
Subsidiary which are contained in this Agreement shall inure to the benefit of
CSC's successors and assigns, including without limitation, such holders,
whether so expressed or not.
18. Applicable Law. This Agreement shall be interpreted, construed,
applied and enforced in accordance with the laws of The Commonwealth of
Massachusetts applicable to contracts between residents of Massachusetts which
are to be performed entirely within Massachusetts, regardless of (i) where any
such instrument is executed or delivered; or (ii) where any payment or other
performance required by any such instrument is made or required to be made; or
(iii) where any breach of any provision of any such instrument occurs, or any
cause of action otherwise accrues; or (iv) where any action or other proceeding
is instituted or pending; or (v) the nationality, citizenship, domicile,
principal place of business, or jurisdiction of organization or domestication of
any party; or (vi) whether the laws of the forum jurisdiction otherwise would
apply the laws of a jurisdiction other than The Commonwealth of Massachusetts;
or (vii) any combination of the foregoing.
To the maximum extent permitted by applicable law, any action to
enforce, arising out of, or relating in any way to, any of the provisions of
this Agreement may be brought and prosecuted in such court or courts located in
The Commonwealth of Massachusetts as may be provided by law; and the parties
consent to the jurisdiction of said court or courts located in The Commonwealth
of Massachusetts and to service of process by registered mail, return receipt
requested, or by any other manner provided by law.
19. Modification of Agreement. No modification or waiver of any
provision of this Agreement, nor any consent to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
party against whom enforcement is sought, and such modification, waiver or
consent shall be effective only in the specific instances and for the purpose
for which given. No notice to or demand on IHS or Acquisition Subsidiary in any
case shall entitle such party to
-9-
any other or further notice or demand in the same, similar or other
circumstances.
20. Waiver of Rights by CSC. Neither any failure nor any delay on CSC's
part in exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right, power
or privilege. Nothing contained herein shall be deemed to waive CSC's right to
give or withhold its consent in any subsequent transaction.
21. Severability. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby, but this Agreement
shall be reformed and construed and enforced to the maximum extent permitted by
applicable law.
22. Entire Contract. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and shall
supersede and take the place of any other instruments purporting to be an
agreement of the parties hereto relating to the subject matter hereof.
23. Headings; Counterparts. Headings in this Agreement are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one instrument,
and in pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one of such counterparts.
24. Remedies Cumulative. No remedy herein conferred upon CSC is
intended to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise.
25. Limitation of Liability. By execution hereof, IHS and Acquisition
Subsidiary expressly acknowledge and agree that the liability of CSC hereunder
and under the Transaction Documents shall be limited to the operating assets and
working capital of CSC arising from the operations of the Leased Property and
IHS and Acquisition Subsidiary shall have no recourse to (x) any shareholder,
officer or director of CSC, or any officer or trustee thereof, or (y) any other
assets of CSC.
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26. Payment of Fees. IHS shall pay all attorney fees incident to the
preparation, negotiation and implementation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the date above first written.
INTEGRATED HEALTH SERVICES, INC.
By: /s/
Its Executive Vice President
IHS ACQUISITION NO. 175, INC.
By: /s/
Its Executive Vice President
HEALTHSOUTH CORPORATION
By: /s/
Its (Vice) President
HORIZON HEALTHCARE CORPORATION
By: /s/
Its (Vice) President
CONNECTICUT SUBACUTE CORPORATION II
By: /s/
Its (Vice) President
ACKNOWLEDGED AND AGREED:
HEALTH AND RETIREMENT PROPERTIES TRUST
By: /s/ Xxxxx X. Xxxxxxx
Its President
