EXHIBIT 10.31
GUARANTY OF PERFORMANCE
For valuable consideration, the undersigned, VANGUARD HEALTH SYSTEMS,
INC., a Delaware corporation ("Guarantor"), hereby unconditionally and
irrevocably guarantees to Seller (as such term is defined below) the due, prompt
and complete performance (including, without limitation, payment) by VHS
ACQUISITION SUBSIDIARY NUMBER 7, INC., a Delaware corporation ("Purchaser"), of
each and every obligation of Purchaser under that certain Asset Sale Agreement
dated as of October 11, 2004 (the "Agreement"), by and among Purchaser and ▇▇▇▇▇
METROWEST HEALTHCARE SYSTEM, LIMITED PARTNERSHIP, a Massachusetts limited
partnership ("▇▇▇▇▇ ▇▇"), SAINT ▇▇▇▇▇▇▇ HOSPITAL, L.L.C., a Massachusetts
limited liability company ("SVH"), and OHM SERVICES, INC., a Massachusetts
nonprofit corporation ("OHM") (▇▇▇▇▇ ▇▇, SVH and OHM are collectively referred
to herein as "Seller"), all agreements ancillary thereto and all agreements and
other documents delivered at the closing of the transactions contemplated by the
Agreement (collectively, the "Obligations").
The obligations of Guarantor under this Guaranty are independent of the
obligations of Purchaser and are made by Guarantor not as surety, and a separate
action or actions may be brought against Guarantor, whether action is brought
against Purchaser or whether Purchaser is joined in any such action or actions.
The Guarantor agrees that this Guaranty is a guaranty of payment and not of
collection and may be enforced by Seller. The Guarantor hereby waives the right
to require Seller to proceed against Purchaser or any other person (including a
co-guarantor) or to require Seller to pursue any other remedy or enforce any
other right; provided, however, as a condition precedent to the commencement of
any action against Guarantor, Seller shall first comply with all procedures
specified in the Agreement or any agreement ancillary thereto with respect to
actions to be taken against Purchaser.
Guarantor authorizes Seller, without notice to or demand upon Guarantor
(except as shall be required by applicable statute which requirement cannot be
waived), and without affecting or impairing Guarantor's liability hereunder,
from time to time to renew, compromise, extend, increase or otherwise change the
time for payment of, or otherwise amend or change the terms of, the Obligations
or any part thereof. Subject to the provisions of the immediately preceding
paragraph, Guarantor hereby waives: (a) any right to require Seller to proceed
against Purchaser or to pursue any other remedy in Seller's power whatsoever;
(b) any defense arising by reason of any disability or other defense of
Purchaser; (c) all presentments, demands for performance, notices of
nonperformance, notices of protest, notices of dishonor and notices of
acceptance of this Guaranty; and (d) any right to assert against the Seller, as
a defense, counterclaim, set off, or cross claim which the Guarantor may now or
hereafter have against Seller, but such waiver shall not prevent the Guarantor
from asserting against Purchaser in a separate action, any claim, action, cause
of action, or demand that the Guarantor might have, whether or not arising out
of this Guaranty
If any provision of this Guaranty is held invalid or unenforceable, the
remainder of this Guaranty shall not be affected thereby, the provisions of this
Guaranty being severable in any such instance. This Guaranty shall be governed
by and construed and enforced in accordance
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with the laws of the Commonwealth of Massachusetts as applied to contracts made
and performed within the Commonwealth of Massachusetts.
This Guaranty shall not be assigned by Guarantor in whole or in part
without the written consent of Seller, which consent shall not be unreasonably
withheld. This Guaranty shall be binding upon and shall inure to the benefit of
Guarantor and Seller and each of their permissible and respective successors and
assigns. Seller may assign this Guaranty to any affiliate of Seller which is the
assignee of Seller's rights under the Agreement, provided that such assignment
is conducted in accordance with the terms of Section 12.2 of the Agreement.
This Guaranty shall continue in full force and effect until the
Obligations are fully paid, performed and discharged. Notwithstanding the
foregoing, 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 to Purchaser
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
Purchaser, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, Seller or any substantial
part of its property, or otherwise, all as though such payments had not been
made. Guarantor warrants and represents to Seller that (a) this Guaranty
constitutes a valid and binding obligation of Guarantor enforceable in
accordance with its terms and (b) the execution and delivery of this Guaranty
does not (i) conflict with or result in a breach of any material provision of
Guarantor's articles of incorporation or bylaws or (ii) violate any order, writ,
injunction, ruling or material law of any court or governmental authority,
United States or foreign, binding upon or affecting Guarantor.
No modification, limitation or discharge of the obligations herein
guaranteed, arising out of or by virtue of any bankruptcy, reorganization or
similar proceeding for relief of debtors under federal or state law, or any
other voluntary or involuntary dissolution, liquidation, or winding up of the
affairs of Purchaser, will in any way affect, modify, limit or discharge the
liability of Guarantor under this Guaranty.
This Guaranty may only be amended, waived, modified discharged or
otherwise changed by a written instrument signed by Guarantor and Seller. No
delay or forbearance by Seller in exercising any right under the Agreement or
under this Guaranty, and no express or implied waiver by Seller of any default
under the Agreement or under this Guaranty, shall constitute a waiver of any
subsequent default under the Agreement or under this Guaranty.
Dated: October 11, 2004 VANGUARD HEALTH SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice Chairman
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