GUARANTY dated as of April 14, 1997 made by INTEGRATED HEALTH
SERVICES, INC., a Delaware corporation (the "Guarantor") and HEALTH AND
RETIREMENT PROPERTIES TRUST, a Maryland real estate investment trust (with its
successor and assigns, "HRP").
WITNESSETH:
WHEREAS, Community Care of America, Inc. ("CCA") and its subsidiaries (with
CCA, collectively, the "CCA Companies") have entered into certain loan and lease
financings with HRP governed by certain documents, instruments and agreements to
which the various CCA Companies and/or HRP are a party (as from time to time in
effect, collectively, the "CCA Documents");
WHEREAS, the CCA Companies have requested that HRP (a) consent to the
waiver through February 28, 1998 of the covenants in the CCA Documents requiring
the CCA Companies (i) to maintain a ratio of current assets to current
liabilities of at least 1.0 to 1.0 and (ii) not to permit its tangible net worth
to be less than $5,000,000 and (b) agree to apply a portion of the $6,185,000
security deposit held by HRP as collateral for the obligations of the CCA
Companies under the CCA Documents (the "Security Deposit") to the payment of
existing arrearages under the CCA Documents, to pay a restructuring fee to HRP
and to pay 50% of future monthly payments of regularly scheduled installments of
Minimum and Additional Rent, Mortgage Facilities Fees and principal and interest
on loans by HRP, as and when due;
WHEREAS, HRP is willing to so consent and agree, subject to the terms and
conditions of a letter agreement dated as of April 14, 1997 by HRP to the CCA
Companies (the "Letter Agreement");
WHEREAS, it is a condition to the effectiveness of the Letter Agreement
that, among other things, the Guarantor deliver this Guaranty in favor of HRP;
WHEREAS, the Guarantor holds warrants to purchase ___ shares of common
stock of CCA, the value of which would be adversely affected if the Letter
Agreement, were not to become affected;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Guarantor hereby agrees with HRP as follows:
1. Defined Terms. Unless otherwise defined herein, terms which are defined in
the CCA Documents and used herein are so used as so defined. In addition, the
following terms shall have the meanings set forth below:
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"Applicable-Law" shall mean any law of any governmental authority, whether
domestic or foreign, including without limitation all federal and state laws, to
which the Person in question is subject or by which it or any of its property is
bound, and including without limitation any: (a) administrative, executive,
judicial, legislative or other action, code, consent decree, constitution,
decree, directive, enactment, finding, guideline, injunction, interpretation,
judgment, law, order, ordinance, policy statement, proclamation, promulgation,
regulation, requirement, rule, rule of law, rule of public policy, settlement
agreement, statute, or writ, of any governmental authority, domestic or foreign,
whether or not having the force of law; (b) common law or other legal or
quasi-legal precedent; or (c) arbitrator's, mediator's or referee's award,
decision, finding or recommendation, or, in any case, any particular section,
part or provision thereof
"CCA Event of Default" shall mean an "Event of Default" under and as
defined in any CCA Document.
"Default Amount" shall mean $10,000,000 or such lesser amount to which the
Guarantor's maximum liability hereunder has been reduced pursuant to the second
paragraph of Section 2 hereof.
"Default Rate" shall mean 4% per annum above the prime rate or base rate on
corporate loans at large U.S. money center commercial banks as published in The
Wall Street Joumal or, if publication of such rate shall be suspended or
terminated, the annual rate of interest, determined daily and expressed as a
percentage, from time to time announced by one of the five largest
national-chartered banking institutions having their principal office in New
York, New York and selected by HRP at the time such publication is suspended or
terminated. Each change in the Interest Rate shall take effect simultaneously
with the date of publication or announcement, as applicable, of each
corresponding change in such prime rate or base rate.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or prospects
of the Guarantor, or of the Guarantor and its Subsidiaries taken as a whole, (b)
the ability of the Guarantor to perform its obligations under this Guaranty, or
(c) the validity or enforceability of this Guaranty, or the rights of HRP
hereunder.
"Obligations" shall mean the payment and performance of each and every
obligation and liability of any CCA Company to HRP, whether under a CCA Document
or otherwise, whether now existing or hereafter arising or created, joint or
several, direct or indirect, absolute or contingent, due or to become due,
matured or unmatured, liquidated or unliquidated, arising by contract, operation
of law or otherwise, and including, without limitation, (i) all principal,
premium or prepayment fee and interest (including, without limitation, Minimum
Interest and Additional Interest, as such terms are defined in the various CCA
Documents) under any promissory note payable to HRP, (ii) all rent under any
lease with HRP as landlord (including, without limitation, any Minimum Rent,
Additional Rent and Additional Charges, as such terms are defined in the
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various CCA Documents), and (iii) all fees and charges (including without
limitation, any Mortgage Facilities Fee, as such term is defined in the various
CCA Documents).
2. Guaranty. The Guarantor hereby unconditionally and irrevocably guarantees to
HRP the prompt and complete payment and performance by the CCA Companies (and
each of them), when due (whether at stated maturity, by acceleration or
otherwise), of the Obligations. The Guarantor further agrees to pay any and all
reasonable expenses (including, without limitation, all reasonable fees and
disbursements of counsel to HRP) which may be paid or incurred by HRP in
enforcing any of its rights under this Guaranty. This Guaranty is a guaranty of
payment and not of collectibility and is absolute and in no way conditional or
contingent. The Guarantor's liability hereunder is direct and unconditional and
(without limiting the provisions of Section 15 hereof) may be enforced after
nonpayment or nonperformance by any CCA Company of any Obligation without
requiring HRP to resort to any other Person (including without limitation such
CCA Company) or any other right, remedy or collateral. This Guaranty shall
remain in full force and effect until the Obligations are paid in full.
Notwithstanding the aggregate amount of the Obligations at any time or from
time to time payable or to be payable by the CCA Companies to HRP, the liability
of the Guarantor to HRP hereunder in respect of the Obligations shall not exceed
$10,000,000 in the aggregate. The Guarantor agrees that the Obligations may at
any time and from time to time exceed the amount of the liability of the
Guarantor hereunder without impairing this Guaranty or affecting the rights and
remedies of HRP hereunder. The Guarantor agrees that whenever, at any time, or
from time to time, it shall make any payment to HRP on account of its liability
hereunder, it will notify HRP in writing that such payment is made under this
Guaranty for such purpose. No payment or payments made by any CCA Company or any
other Person or received or collected by HRP from any CCA Company or any other
Person by virtue of any action or proceeding or any set-off or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of the Guarantor hereunder which shall, notwithstanding any such
payment or payments, remain liable for the amount of the Obligations until the
Obligations are paid in full.
3. Costs and Expenses of Collection. The Guarantor agrees, as principal obligor
and not as a guarantor only, to pay to HRP forthwith upon demand, in immediately
available funds, all costs and expenses (including, without limitation, all
court costs and all fees and disbursements of counsel to HRP) incuffed or
expended by HRP in connection with the enforcement of this Guaranty, together
with interest on such amounts from the time such amounts become due until
payment at the Default Rate. The Guarantor's covenants and agreements set forth
in this Section 3 shall survive the termination of this Guaranty.
4. Right of Setoff. Regardless of the adequacy of any collateral or other means
of obtaining repayment of the Obligations, HRP is hereby authorized, without
notice to the Guarantor or compliance with any other condition precedent now or
hereafter imposed by Applicable Law (all of which are hereby expressly waived to
the extent permitted by Applicable Law) and to the fullest extent permitted by
Applicable Law, to set off and apply any securities, deposits or other property
belonging to the Guarantor now or hereafter held by HRP against the obligations
of the
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Guarantor under this Guaranty, whether or not HRP shall have made any demand
under this Guaranty, at any time and from time to time after the occurrence of a
Guarantor Event of Default, in such manner as HRP in its sole discretion may
determine, and the Guarantor hereby grants HRP a continuing security interest in
such securities, deposits and property for the payment and performance of such
obligations.
5. Subrogation and Contribution. Until the Obligations shall have been paid and
performed in full, the Guarantor irrevocably and unconditionally waives any and
all rights to which it may be entitled, by operation of law or otherwise, to be
subrogated, with respect to any payment made by the Guarantor hereunder, to the
rights of HRP against any CCA Company, or otherwise to be reimbursed,
indemnified or exonerated by any CCA Company in respect thereof or to receive
any payment, in the nature of contribution or for any other reason, from any
other guarantor of the Obligations with respect to any payment made by the
Guarantor hereunder. Until the Obligations shall have been paid and performed in
full, the Guarantor waives any defense it may have based upon any election of
remedies by HRP which impairs the Guarantor's subrogation rights or the
Guarantor's rights to proceed against any CCA Company for reimbursement
(including without limitation any loss of rights the Guarantor may suffer by
reason of any rights, powers or remedies of such CCA Company in connection with
any anti-deficiency laws or any other laws limiting, qualifying or discharging
any indebtedness to HRP). Until the Obligations shall have been paid, performed
and satisfied in full, the Guarantor further waives any right to enforce any
remedy which HRP now has or may in the future have against any CCA Company, 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 HRP.
6. Effect of Bankruptcy Stay. If acceleration of the time for payment or
performance of any of the Obligations is stayed upon the insolvency, bankruptcy
or reorganization of any CCA Company or any other Person or otherwise, all such
amounts otherwise subject to acceleration shall nonetheless be payable by the
Guarantor under this Guaranty forthwith upon demand.
7. Receipt of CCA Documents, etc. The Guarantor confirms, represents and
warrants to HRP that (i) it has received true and complete copies of all
existing CCA Documents from the CCA Companies, has read the contents thereof and
reviewed the same with legal counsel of its choice; (ii) no representations or
agreements of any kind have been made to the Guarantor which would limit or
qualify in any way the terrns of this Guaranty; (iii) this Guaranty is executed
at the CCA Companies' request and not at the request of HRP; (iv) HRP has made
no representation to the Guarantor as to the creditworthiness of any CCA
Company; and (v) the Guarantor has established adequate means of obtaining from
each CCA Company on a continuing basis information regarding such CCA Company's
financial condition. The Guarantor agrees to keep adequately informed from such
means of any facts, events, or circumstances which might in any way affect the
Guarantor's risks under this Guaranty, and the Guarantor further agrees that HRP
shall have no obligation to disclose to the Guarantor any information or
documents acquired by HRP in the course of its relationship with the CCA
Companies .
8. Amendments, etc. with Respect to the Obligations. The obligations of the
Guarantor under this Guaranty shall remain in full force and effect without
regard to, and shall not be
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released, altered, exhausted, discharged or in any way affected by any
circumstance or condition (whether or not any CCA Company shall have any
knowledge or notice thereof), including without limitation (a) any amendment or
modification of or supplement to any CCA Document, or any obligation, duty or
agreement of the CCA Companies or any other Person thereunder or in respect
thereof; (b) any assignment or transfer in whole or in part of any of the
Obligations; any fumishing, acceptance, release, nonperfection or invalidity of
any direct or indirect security or guaranty for any of the Obligations; (c) any
waiver, consent, extension, renewal, indulgence, settlement, compromise or other
action or inaction under or in respect of any CCA Document, or any exercise or
nonexercise of any right, remedy, power or privilege under or in respect of any
such instrument (whether by operation of law or otherwise); (d) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding with respect to any CCA Company or any other Person or any
of their respective properties or creditors or any resulting release or
discharge of any Obligation (including without limitation any rejection of any
lease pursuant to Section 365 of the Federal Bankruptcy Code); (e) any new or
additional financing arrangements entered into by any CCA Company or by any
other Person on behalf of or for the benefit of any CCA Company; (f) the merger
or consolidation of any CCA Company with or into any other Person or of any
other Person with or into any CCA Company; (g) the voluntary or involuntary sale
or other disposition of all or substantially all the assets of any CCA Company
or any other Person; (h) the voluntary or involuntary liquidation, dissolution
or termination of any CCA Company or any other Person; (i) any invalidity or
unenforceability, in whole or in part, of any term hereof or of any CCA
Document, or any obligation, duty or agreement of any CCA Company or any other
Person thereunder or in respect thereof; (j) any provision of any applicable law
or regulation purporting to prohibit the payment or performance by any CCA
Company or any other Person of any Obligation; (k) any failure on the part of
any CCA Company or any other Person for any reason to perform or comply with any
term of any CCA Document or any other agreement; or (1) any other act, omission
or occurrence whatsoever, whether similar or dissimilar to the foregoing. The
Guarantor authorizes each CCA Company, each other guarantor in respect of the
Obligations and HRP at any time in its discretion, as the case may be, to alter
any of the terms of any of the Obligations.
9. Guarantor as Principal. If for any reason the CCA Companies, or any of them,
or any other Person is under no legal obligation to discharge any Obligation, or
if any other moneys included in the Obligations have become unrecoverable from
the CCA Companies, or any of them, or any other Person by operation of law or
for any other reason, including, without limitation, the invalidity or
irregularity in whole or in part of any Obligation or of any CCA Document, the
legal disability of any CCA Company or any other obligor in respect of
Obligations, any discharge of or limitation on the liability of any CCA Company
or any other Person or any limitation on the method or terms of payment under
any Obligation, or of any CCA Document, which may now or hereafter be caused or
imposed in any manner whatsoever (whether consensual or arising by operation of
law or otherwise), this Guaranty shall nevertheless remain in full force and
effect and shall be binding upon the Guarantor to the same extent as if the
Guarantor at all times had been the principal obligor on all Obligations.
10. Waiver of Demand, Notice, Etc, The Guarantor hereby waives, to the extent
not prohibited by applicable law, all presentments, demands for performance,
notice of
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nonperformance, protests, notices of protests and notices of dishonor in
connection with the Obligations or any CCA Document, including but not limited
to (a) notice of the existence, creation or incurring of any new or additional
obligation or of any action or failure to act on the part of any CCA Company,
HRP, any endorser or creditor of any CCA Company or any other Person; (b) any
notice of any indulgence, extensions or renewals granted to any obligor with
respect to the Obligations; (c) any requirement of diligence or promptness in
the enforcement of rights under any CCA Document, or any other agreement or
instrument directly or indirectly relating thereto or to the Obligations; (d)
any enforcement of any present or future agreement or instrument relating
directly or indirectly thereto or to the Obligations; (e) notice of any of the
matters referred to in Section 9 above; (f) any defense of any kind which the
Guarantor may now have with respect to his liability under this Guaranty; (g)
any right to require HRP, as a condition of enforcement of this Guaranty, to
proceed against any CCA Company or any other Person or to proceed against or
exhaust any security held by HRP at any time or to pursue any other right or
remedy in HRP's power before proceeding against the Guarantor; (h) any defense
that may arise by reason of the incapacity, lack of authority, death or
disability of any other Person or Persons or the failure of HRP to file or
enforce a claim against the estate (in administration, bankruptcy, or any other
proceeding) of any other Person or Persons; (i) any defense based upon an
election of remedies by HRP; 0) any defense arising by reason of any "one
action" or "anti-deficiency" law or any other law which may prevent HRP from
bringing any action, including a claim for deficiency, against the Guarantor,
before or after HRP's commencement of completion of any foreclosure action,
either judicially or by exercise of a power of sale; (k) any defense based upon
any lack of diligence by HRP in the collection of any Obligation; (1) any duty
on the part of HRP to disclose to the Guarantor any facts HRP may now or
hereafter know about any CCA Company or any other obligor in respect of
Obligations; (m) any defense arising because of an election made by HRP under
Section 1 1 1 1 (b) (2) of the Federal Bankruptcy Code; (n) any defense based on
any borrowing or grant of a security interest under Section 364 of the Federal
Bankruptcy Code; (o) and any defense based upon or arising out of any defense
which any CCA Company or any other Person may have to the payment or performance
of the Obligations (including but not limited to failure of consideration,
breach of warranty, fraud, payment, accord and satisfaction, strict foreclosure,
statute of frauds, bankruptcy, infancy, statute of limitations, lender liability
and usury). Guarantor acknowledges and agrees that each of the waivers set forth
herein on the part of the Guarantor is made with Guarantor's full knowledge of
the significance and consequences thereof and that, under the circumstances, the
waivers are reasonable. If any such waiver is determined to be contrary to
Applicable Law such waiver shall be effective only to the extent not prohibited
by such Applicable Law.
ii. Reinstatement. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
HRP upon the insolvency, bankruptcy, dissolution, liquidation or reorganization
of any CCA Company or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for, any CCA Company
or any substantial part of its property, or otherwise, all as though such
payments had not been made.
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12. The Guarantor hereby agrees that the Obligations will be paid to HRP without
set-off or counterclaim in U.S. Dollars at the office of HRP located at 400
Centre Street, Newton, Massachusetts 02158, or to such other location as HRP
shall notify the Guarantor.
13. Representations and Warranties. The Guarantor represents and warrants that:
(i) Corporate Existence. The Guarantor is a corporation
duly incorporated and validly existing under the laws of the
jurisdiction of its incorporation, and is duly licensed or
qualified as a foreign corporation in all states wherein the
nature of its property owned or business transacted by it makes
such licensing or qualification necessary, except where the
failure to be licensed or to so qualify could not have a
Material Adverse Effect.
(ii) No Violation. The execution, delivery and performance
of this Guaranty will not contravene any provision of law,
statute, rule or regulation to which the Guarantor or any of its
Subsidiaries is subject or any judgment, decree, franchise,
order or permit applicable to the Guarantor or any of its
Subsidiaries, or conflict or be inconsistent with or result in
any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the
creation or imposition of (or the obligation to create or
impose) any lien or security interest upon any of the property
or assets of the Guarantor or any of its Subsidiaries pursuant
to the terms of any agreement or instrument to which the
Guarantor or any of its Subsidiaries is party, or violate any
provision of the respective corporate charters or bylaws of the
Guarantor or any of its Subsidiaries.
(iii) Corporate Authority and Power. The execution,
delivery and performance of this Guaranty is within the
corporate powers of the Guarantor and has been duly authorized
by all necessary corporate action.
(iv) Enforceability. This Guaranty has been duly executed
and delivered by the Guarantor, and this Guaranty constitutes
the valid and binding obligation of the Guarantor enforceable
against the Guarantor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and except as
enforceability may be subject to general principles of equity,
whether such principles are applied in a court of equity or at
law.
(v) Governmental Approvals. No order, permission, consent,
approval, license, authorization, registration or validation of,
or filing with, or exemption by, any governmental authority is
required to authorize, or is required in connection with, the
execution, delivery and performance of this Guaranty, or the
taking of any action contemplated hereby or thereby.
(vi) Litigation. The Guarantor has no notice or knowledge
of any action, suit or proceeding pending or threatened against
or affecting it at law or in equity or before or by any
governmental department, court, commission, board, bureau,
agency or
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instrumentality, domestic or foreign, or before any arbitrator
of any kind that would, if adversely determined, have a Material
Adverse Effect.
14. Subordination of Claims against CCA Companies. Without limiting the
provisions of Section 5 hereof, the Guarantor hereby irrevocably agrees that any
and all claims which the Guarantor may now or hereafter have against any CCA
Company or any other guarantor of the Obligations, including, without
limitation, the benefit of any set-off or counterclaim or proof against
dividend, composition or payment by any CCA Company or such other guarantor,
shall be subject and subordinate to the prior payment in full of all of the
Obligations to HRP. After the occurrence of an Event of Default under and as
defined in any CCA Document, or any event or condition that with the giving of
notice or lapse of time or both could become such an Event of Default (a "CCA
Default"), the Guarantor shall not claim from any CCA Company or such other
guarantor, or with respect to any of their respective properties, any sums which
may be owing to the Guarantor, or have the benefit of any set-off or
counterclaim or proof against dividend, composition or payment by such CCA
Company or such other guarantor, until all Obligations shall have been paid in
full. Should any payment or distribution or security or the benefit of proceeds
thereof be received by the Guarantor upon or with respect to amounts due to the
Guarantor from any CCA Company or any other guarantor of the Obligations after a
CCA Default has occurred and prior to the payment in full of all Obligations,
the Guarantor shall forthwith deliver the same to HRP in precisely the form
received (except for endorsement or assignment where necessary), for application
in or towards repayment of the Obligations and, until so delivered, the same
shall be held in trust as property of HRP. In the event of the failure of the
Guarantor to make any such endorsement or assignment, HRP is hereby irrevocably
authorized to make the same on behalf of the Guarantor.
15. Guarantor Events of Default. If one or more of the following events (a
"Guarantor Event of Default") shall have occurred:
(i) a CCA Event of Default shall have occurred and be
continuing for more than three Business Days after notice by HRP
to the Guarantor;
(ii) the Guarantor shall fail to make punctual payment of
any amount payable hereunder as the same shall become due and
payable; or
(iii) any representation or warranty of the Guarantor
contained in this Guaranty, or any statement or certificate
furnished pursuant to any provision of this Guaranty or the
Amendment, shall have been false, incorrect or misleading in any
material respect when made or so certified to; or
(iv) the Guarantor shall breach any of the provisions of,
or fail duly to observe or perform any covenant, agreement or
provision contained in, this Guaranty, and such breach shall
continue for ten days after notice by HRP to the Guarantor; or
(v) the Guarantor shall apply for or consent to the
appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all or a
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substantial part of its property, make a general assignment for
the benefit of its creditors, commence a voluntary case under
the Bankruptcy Code, file a petition seeking to take advantage
of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or readjustment of
debts, fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code, or take any
corporate action for the purpose of effecting any of the
foregoing; or
(vi) a proceeding or case shall be commenced, without the
application or consent of the Guarantor thereof in any court of
competent jurisdiction, seeking its liquidation, reorganization,
dissolution or winding-up, or the composition or readjustment of
its debts, the appointment of a trustee, receiver, custodian,
liquidator or the like of the Guarantor or of all or any
substantial part of its assets, or similar relief in respect of
the Guarantor under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of
debts, and such proceeding or case shall continue undismissed,
or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect,
for a period of 60 days; or an order for relief against the
Guarantor shall be entered in an involuntary case under the
Bankruptcy Code;
THEN, irrespective of whether a CCA Event of Default may then have occurred and
be continuing, (a) in the event of a Guarantor Event of Default described in
paragraph (v) or (vi) above, there shall become due and payable to HRP, and the
Guarantor shall immediately pay HRP, without notice or demand of any kind
whatsoever, an amount in immediately available funds equal to the Default
Amount, and (b) in the event of any other Guarantor Event of Default, upon
notice from HRP specifying such Guarantor Event of Default, there shall become
due and payable to HRP, and the Guarantor shall immediately pay HRP, an amount
in immediately available funds equal to Default Amount. The amounts so paid to
HRP shall be held as collateral for the payment of the Obligations and the
obligations of the Guarantor hereunder. Such amounts shall be applied by HRP to
the payment and performance of the Obligations and the obligations of the
Guarantor hereunder as and when the same become due and payable in accordance
with the provisions thereof and hereof.
16. Severability. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. Additional Guaranties. This Guaranty shall be in addition to any other
guaranty or other security for the Obligations, and it shall not be prejudiced
or rendered unenforceable by the invalidity of any such other guaranty or
security.
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18. Paragraph Headings. The paragraph headings used in this Guaranty are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
19. No Waiver, Cumulative Remedies. HRP shall not by any act (except by a
written instrument pursuant to Paragraph-20 hereof), delay, indulgence, omission
or otherwise, be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of HRP,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by HRP of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy which
HRP would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
20. Waivers and Amendments. None of the terms or provisions of this Guaranty may
be waived, amended, supplemented or otherwise modified except by a written
instrument executed by the Guarantor and HRP, provided that any provision of
this Guaranty may be waived by HRP in a letter or agreement executed by HRP or
by telecopy from HRP. This Guaranty shall be binding upon the successors and
assigns of the Guarantor and shall inure to the benefit of HRP and its
successors and assigns.
21. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION; GOVERNING LAW. THE GUARANTOR
HEREBY EXPRESSLY WAIVES ANY RIGHT IT MAY NOW OR HEREAFTER HAVE TO A JURY TRIAL
IN ANY SUIT, ACTION OR PROCEEDING WHICH ARISES OUT OF OR BY REASON OF THIS
GUARANTY, ANY CCA DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
BY ITS EXECUTION AND DELIVERY OF THIS GUARANTY, THE GUARANTOR (1) ACCEPTS
FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY,
THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS IN ANY ACTION, SUIT OR
PROCEEDING OF ANY KIND AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS
GUARANTY, ANY CCA DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY,
IN ADDITION TO ANY OTHER COURT IN WHICH SUCH ACTION, SUIT OR PROCEEDING MAY BE
BROUGHT; (2) IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED BY ANY SUCH
COURT IN ANY SUCH ACTION, SUIT OR PROCEEDING IN WHICH IT SHALL HAVE BEEN SERVED
WITH PROCESS IN THE MANNER HEREINAFTER PROVIDED; (3) TO THE EXTENT THAT IT MAY
LAWFULLY DO SO, WAIVES AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE
OR OTHERWISE, IN SUCH ACTION SUIT OR
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PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
SUCH COURT, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION,
THAT THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT
THE VENUE THEREOF IS IMPROPER; AND (4) AGREES THAT PROCESS MAY BE SERVED UPON IT
IN ANY SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED BY CHAPTER 223A OF
THE GENERAL LAWS OF MASSACHUSETTS, RULE 4 OF THE MASSACHUSETTS RULES OF CIVIL
PROCEDURE OR RULE 4 OF THE FEDERAL RULES OF CIVIL PROCEDURE.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
22. Notices. All notices under this Guaranty shall be in writing, and shall be
delivered by hand, by a nationally recognized commercial overnight delivery
service, by first class mail or by telecopy, delivered, addressed or
transmitted, if to HRP, at 400 Centre Street, Newton, Massachusetts 02158,
Attention: President (telecopy no. 617-332-2261), with a copy to Sullivan &
Worcester LLP, One Post Office Square, Boston, Massachusetts 02109, Attention:
Alexander A. Notopoulos, Esq. (telecopy no. 617-338-2880), and if to the
Guarantor, at its address or telecopy number set out below its signature in this
Guaranty. Such notices shall be effective: in the case of hand deliveries, when
received; in the case of an overnight delivery service, on the next business day
after being placed in the possession of such delivery service, with delivery
charges prepaid; in the case of mail, three days after deposit in the postal
system, first class postage prepaid; and in the case of telecopy notices, when
electronic indication of receipt is received. Either party may change its
address and telecopy number by written notice to the other delivered in
accordance with the provisions of this Section.
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty to
be duly executed and delivered as of the date first above written.
INTEGRATED HEALTH SERVICES, INC.
By /s/ W. Bradley Bennett
-------------------------------------
Name: W. Bradley Bennett
Title: Executive Vice President and
Chief Accounting Officer
Address for Notices:
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Telecopy No.:____________