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Exhibit 10.10
FORM OF WORKING CAPITAL ASSURANCE AGREEMENT
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(____________)
THIS AGREEMENT is made as of the 30th day of June, 1998, by and among
BALANCED CARE CORPORATION, a Delaware corporation, with a principal place of
business at 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxxx, XX 00000 ("BCC"), TC
REALTY OF ____________, INC., a Delaware corporation (the "Lessee"), TC REALTY
HOLDING COMPANY, a Delaware corporation (the "Pledgor"), both the Lessee and
Pledgor with their principal place of business at 0000 XXX Xxxxxxxxx, Xxxxx
0000, Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000, and MEDITRUST COMPANY LLC, a Delaware
limited liability company, with a principal place of business at 000 Xxxxx
Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx (the "Lessor").
W I T N E S S E T H:
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WHEREAS, the Lessor and the Lessee have agreed to enter into that
certain Facility Lease Agreement, of even date herewith, relating to certain
premises located in _____________________________ (the "Lease") and all
capitalized terms used herein and not otherwise defined herein shall have the
same meanings as ascribed to such terms in the Lease; and
WHEREAS, pursuant to the terms of the Note, the Lessor has agreed to
advance to the Pledgor funds to be used by the Pledgor as equity contributions
to the Lessee, so that the Lessee may use such funds for certain working capital
obligations, as more particularly set forth in the Note, and the maximum
aggregate amount of such funds to be advanced under the Note shall equal the
Working Capital Reserve; and
WHEREAS, because the Lessee shall receive a direct benefit from the
advances made under the Note (which shall be deemed to be equity contributions
to the Lessee), the Lessee has executed and delivered to the Lessor a guaranty
of even date, guarantying the obligations of the Pledgor under the Note (the
"Lessee's Guaranty");
WHEREAS, as additional security for the Lease Obligations, the Lessor
has requested the execution and delivery of this Agreement.
NOW THEREFORE, for good and valuable consideration paid by each of the
parties hereto to the other, the receipt and sufficiency of which is hereby
acknowledged and in consideration of the covenants and agreements set forth
herein, the parties hereto agree as follows:
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1. Subject to the terms of Sections 5 and 6 hereof, from the date
hereof until the complete payment and performance of the Lease Obligations, BCC
unconditionally agrees to pay to the Lessee, on a monthly basis, sufficient
funds, by means of working capital loans (collectively, the "Working Capital
Loans"), to pay and satisfy the amount by which the Lessee's cash requirements
to meet its obligations (including, without limitation, operating expenses, debt
service and the Lease Obligations) due and payable during any month and the
obligations of the Pledgor under the Note due and payable during such month
exceed the Gross Revenues received by the Lessee during such month (the
"Shortfall"). Without limiting the foregoing, BCC hereby acknowledges and agrees
that it shall advance the Working Capital Loans as required hereunder
notwithstanding any default, breach of condition or failure to satisfy any
condition under the Shortfall Agreement and/or any of the other Working Capital
Loan Documents. It is further acknowledged and agreed that the term Lease
Obligations includes, together with all other obligations set forth in the
definition thereof in the Lease, all of the Lessee's obligations under the
Lessee's Guaranty and the First Leasehold Mortgage and the Pledgor's obligations
under the Note.
2. The Working Capital Loans shall be completely subordinate to the
Lease Obligations pursuant to the terms and conditions of that certain
Subordination and Standstill Agreement of even date by and between the Lessor
and BCC.
3. Subject to the terms of Sections 5 and 6 hereof, but without regard
to any default, breach of condition or failure to satisfy any condition under
the Shortfall Agreement and/or any of the other Working Capital Loan Documents,
BCC shall, without further direction, advance to the Lessee, each month, the
amount equal to the Shortfall in a timely fashion so that the Lessee is able to
meet all of its working capital obligations (including, without limitation, the
Lease Obligations) when due and so that the payments due under the Note are made
in a timely fashion. Such portion of the funds advanced under the Shortfall
Agreement that are advanced to satisfy the Pledgor's obligations under the Note
shall be advanced directly to the Lessor to satisfy the Pledgor's obligations
under the Note and shall be deemed to be payments made by the Lessee under the
Lessee's Guaranty. Notwithstanding anything to the contrary set forth under the
Shortfall Agreement and/or any of the other Working Capital Loan Documents, BCC
and Balanced Care at Chesterfield, Inc. (the "Manager") each hereby waive all
rights of subrogation they may have against Xxxxx X. Xxxxxxx (the "Shareholder")
at law or in equity as a consequence of any payment by BCC or the Manager of (A)
its obligations hereunder or under the Shortfall Agreement, (B) the Pledgor's
obligations under the Note, (C) the Lessee's obligations under the Lessee's
Guaranty or (D) any other obligations under any of the Lease Documents or the
Working Capital Loan Documents.
4. BCC acknowledges that the covenants and agreements made hereunder by
BCC are being made to (a) induce the Lessor to enter into and accept the Lease
and the other Lease Documents, (b) induce the Lessor to accept the Note from the
Pledgor and the Lessee's Guaranty and the First Leasehold Mortgage from the
Lessee and to lend to the Pledgor the sums to be advanced under the Note in
accordance with the terms thereof, and (c) enable the Pledgor to make equity
contributions to the Lessee (up to the original
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principal amount of the Note) to enable the Lessee, upon the complete
disbursement of the original principal amount of the Note (which amount shall
equal the Working Capital Reserve) and upon receipt of the corresponding equity
contributions to be made by the Pledgor to the Lessee, to fulfill the Lessee's
working capital obligations, including, without limitation, the Lease
Obligations and (d) induce the Shareholder to execute and deliver a Demand
Promissory Note, of even date herewith, in the original principal amount of
______________________________________________ DOLLARS ($__________) to the
Lessor. Accordingly, it is expressly intended by BCC that the covenants and
agreements by BCC hereunder may be relied upon and enforced by the Lessor, the
Lessee, the Pledgor and the Shareholder.
Furthermore, BCC agrees to pay to the Lessor forthwith upon demand, in
funds immediately available to the Lessor, all costs and expenses, including,
without limitation, court costs and attorneys' fees and expenses, reasonably
incurred or expended by the Lessor in connection with the collection or
enforcement of the obligations hereunder. Any amounts owed to the Lessor under
this Section 4 shall be a demand obligation and, if not paid within ten (10)
days after demand, shall thereafter, to the extent then permitted by applicable
law, bear interest at the Overdue Rate until the date of payment. The provisions
of this Section 4 shall survive the expiration or earlier termination of the
Agreement.
5. Notwithstanding anything to the contrary set forth herein, BCC's
obligations to provide the Working Capital Loans to the Lessee and advance to
the Lessee the Shortfall each month shall not commence until such time as BCC
has received written confirmation from the Lessor that the Lessor has advanced
the original principal amount of the Note (which amount shall equal the Working
Capital Reserve) in accordance with the terms of the Note.
6. Notwithstanding anything to the contrary set forth herein, in the
event of (a) the occurrence of a Lease Default and/or (b) a termination of the
Lease as a result of the exercise by the Lessor of any of its rights and/or
remedies thereunder, upon written notice from the Lessor, BCC shall without
further direction advance to the Lessor, each month, the amount equal to the
Rental Shortfall (as hereinafter defined) in a timely fashion until the
expiration of the Fixed Term or, if the Lessee had exercised its option to
extend the Lease, the expiration of the Extended Term in effect as of the date
of the termination of the Lease. In the event of any such termination of the
Lease, the Lessor agrees that it shall use its best efforts to relet the Leased
Property, so as to mitigate the amount due and payable under this Section 6 by
BCC.
As used herein, the term "Rental Shortfall" shall mean the difference,
if positive, between (i) the sum of the Rent that would have otherwise been due
under the Lease plus the amounts payable under the Note minus (ii) the aggregate
rent due under the leases affecting the Leased Property and any damages or other
payments (other than any reimbursement for expenses incurred by the Lessor)
received by the Lessor from the Lessee or any endorser, surety or guarantor of
the Lease Obligations as a result of the termination of the Lease.
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7. The obligations of BCC hereunder shall not be affected by the
termination, discontinuance, release or modification of any agreement from (a)
any endorser, surety or guarantor of the Lease Obligations and/or (b) any other
endorser, surety or guarantor of any of the other Obligations; provided,
however, that, notwithstanding the foregoing, as long as no Lease Default has
occurred, nor any event which, with notice and/or the passage of time could
constitute a Lease Default, the Lessor hereby covenants and agrees with BCC that
the Lessor shall not amend any of the Lease Documents without BCC's prior
written consent, in each instance, which consent, shall not be unreasonably
withheld, conditioned or delayed. Nothing contained herein or otherwise shall
require the Lessor to make demand upon or join the Lessee or any such endorser,
surety or guarantor or other party in any suit brought upon this Agreement; and
subject to the terms of Section 5 hereof, BCC hereby waives any right to require
marshalling or exhaustion of any remedy against any collateral, other property,
or any other Person primarily or secondarily liable for the Lease Obligations.
In addition, the Lessor hereby covenants and agrees with BCC that,
except in connection with the exercise of any of its rights and/or remedies
under the Lease Documents, as long as no Lease Default has occurred, nor any
event which, with notice and/or the passage of time could constitute a Lease
Default, the Lessor shall not terminate the Lease without the prior written
consent of BCC, which consent shall not be unreasonably withheld, conditioned or
delayed.
8. The Lessor shall be at liberty, without giving notice to or
obtaining the assent of BCC and without relieving BCC of any liability
hereunder, to deal with the Lessee and with each other Person who now is or
after the date hereof becomes liable in any manner for any of the Obligations in
such manner as the Lessor, in its reasonable discretion, deems fit. The Lessor
and the other Meditrust Entities have full authority (in their reasonable
discretion) to do any or all of the following things, none of which shall
discharge or affect BCC's liability hereunder:
(a) extend credit, make loans and afford other financial accommodations
to the Lessee, any other member of the Leasing Group and/or any of the Related
Parties at such times, in such amounts and on such terms as the Lessor may
approve;
(b) modify, amend, vary the terms and grant extensions or renewals of
any present or future indebtedness or of any of the Obligations or any
instrument relating to or securing the same;
(c) grant time, waivers and other indulgences in respect of any of the
Obligations;
(d) vary, exchange, release or discharge, wholly or partially, or delay
or abstain from perfecting and enforcing any security or guaranty or other means
of obtaining payment of any of the Obligations which the Lessor or any of the
other Meditrust Entities now has or acquires after the date hereof;
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(e) take or omit to take any of the actions referred to in any
instrument evidencing, securing or relating to any of the Obligations or any
actions under this Agreement;
(f) fail, omit or delay to enforce, assert or exercise any right, power
or remedy conferred on the Lessor or any of the other Meditrust Entities in any
instrument evidencing, securing or relating to any of the Obligations or take or
refrain from taking any other action;
(g) accept partial payments from the Lessee, any other member of the
Leasing Group, any of the Related Parties or any other Person;
(h) release or discharge, wholly or partially, the Lessee, any other
member of the Leasing Group, any of the Related Parties and/or any other Person
now or hereafter primarily or secondarily liable for the Obligations (or any
portion thereof) or accept additional collateral for the payment of any
Obligations;
(i) compromise or make any settlement or other arrangement with the
Lessee, any other member of the Leasing Group, any of the Related Parties or any
other Person referred to in clause (h) above; and
(j) consent to and participate in the proceeds of any assignment, trust
or mortgage for the benefit of creditors;
provided, however, that notwithstanding the foregoing, as long as the Lessee is
not an Affiliate of BCC, the Lessor and the Meditrust Entities shall not elect
to take any of the actions described in clauses (b), (g), (h) and/or (i) above
without the prior consent of BCC, which consent shall not be unreasonably
withheld, conditioned or delayed.
9. The obligations of BCC hereunder shall not be affected by any change
in the beneficial ownership of the Lessee, any other member of the Leasing Group
or any of the Related Parties or by reason of any disability of the Lessee, any
other member of the Leasing Group, or any Related Party. This Agreement shall be
in addition to any guaranty or other security for the Obligations, and it shall
not be prejudiced or rendered unenforceable by the invalidity of any such
guaranty or security. This Agreement shall continue to be effective or be
reinstated, as the case may be, if, at any time, any payment of the Obligations
is rescinded or must otherwise be returned by the Lessor or any of the other
Meditrust Entities, upon the insolvency, bankruptcy or reorganization of the
Lessee, any other member of the Leasing Group or any of the Related Parties or
otherwise, all as though such payment had not been made. BCC covenants to take
no action of any kind which might be the basis for a claim that BCC has any
defense hereunder other than the complete payment of the Shortfall or the Rent
Shortfall, as the case may be.
10. In order to induce the Lessor to enter into or accept this
Agreement, BCC hereby warrants and represents to, and covenants and agrees with,
the Lessor that:
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10.1. FORMATION AND AUTHORITY OF BCC.
(a) BCC is a corporation duly organized, validly existing and in good
standing under the laws of Delaware. BCC has all requisite corporate power to
own and operate its properties and to carry on its business as now conducted and
as proposed to be conducted and is duly qualified to do business and is in good
standing in each jurisdiction where such qualification is necessary or desirable
in order to carry out its business as now conducted and as proposed to be
conducted;
(b) BCC is duly authorized to make and enter into this Agreement and
all of the other Working Capital Loan Documents to which BCC is a party and to
carry out the transactions contemplated therein. This Agreement and all of the
other Working Capital Loan Documents to which BCC is a party have each been duly
executed and delivered by BCC, and each is a legal, valid and binding obligation
of BCC, enforceable in accordance with its terms;
10.2. NO VIOLATIONS.
The execution, delivery and performance of this Agreement and the other
Working Capital Loan Documents and the consummation of the transactions thereby
contemplated shall not result in any breach of, or constitute a default under,
or result in the acceleration of, or constitute an event which, with notice or
passage of time could result in default or acceleration of any obligation of BCC
or any other contract, mortgage, lien, lease, agreement, instrument, franchise,
arbitration award, judgment, decree, bank loan or credit agreement, trust
indenture or other instrument to which BCC is a party or by which BCC may be
bound or affected and do not violate or contravene any Legal Requirement;
10.3. NO CONSENT OR APPROVAL.
Except as already obtained or filed, as the case may be, no consent or
approval or other authorization of, or exemption by, or declaration or filing
with, any Person and no waiver of any right by any Person is required to
authorize or permit, or is otherwise required as a condition to BCC's execution
and delivery of this Agreement or any of the other Working Capital Loan
Documents to which it is a party and the performance of its obligations
thereunder, or as a condition to the validity (assuming the due authorization,
execution and delivery by all of the other parties to this Agreement and the
other Working Capital Loan Documents) or enforceability of any of the same;
10.4. FINANCIAL CONDITION.
(a) BCC is financially solvent and there are no actions, suits,
investigations or proceedings including, without limitation, outstanding federal
or state tax liens, garnishments or insolvency and bankruptcy proceedings,
pending or, to the best of BCC's knowledge and belief, threatened:
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i. against or affecting BCC which, if adversely resolved
against BCC would materially adversely affect the ability of BCC to
perform its obligations under this Agreement or any of the other
Working Capital Loan Documents to which it is a party; or
ii. which may involve or affect the validity, priority or
enforceability of this Agreement or any of the other Working Capital
Loan Documents, at law or in equity, or before or by any arbitrator or
Governmental Authority;
(b) After giving effect to the consummation of the transactions
contemplated by this Agreement and the other Working Capital Loan Documents,
BCC:
i. will be able to pay its debts as they become due;
ii. will have sufficient funds and capital to carry on its
business as now conducted or as contemplated to be conducted (in
accordance with the terms of this Agreement);
iii. will own property having a value both at fair valuation
and at present fair saleable value greater than the amount required to
pay its debts as they become due; and
iv. will not be rendered insolvent as determined by applicable
law;
(c) BCC is not a party to any agreement, the terms of which now have
or, based upon current circumstances, as far as can be reasonably foreseen, may
have a material adverse effect on its financial condition or business;
(d) BCC is not delinquent or claimed to be delinquent under any
material obligation for the payment of borrowed money;
10.5. COMMERCIAL ACTS.
BCC's performance of and compliance with the obligations and conditions
set forth herein and the other Working Capital Loan Documents to which it is a
party will constitute commercial acts done and performed for commercial
purposes;
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10.6. FILING OF TAX RETURNS.
BCC has filed all federal, state and local tax returns which are
required to be filed as to which extensions are not currently in effect and has
paid all taxes, assessments, impositions, fees and other governmental charges
(including interest and penalties) which have become due pursuant to such
returns or pursuant to any assessment or notice of tax claim or deficiency
received by BCC. No tax liability has been asserted by the Internal Revenue
Service against BCC or any other federal, state or local taxing authority for
taxes, assessments, impositions, fees or other governmental charges (including
interest or penalties thereon) in excess of those already paid; and
10.7. ACCURACY OF FINANCIAL STATEMENTS AND OTHER INFORMATION.
The financial statements of BCC given to the Lessor in connection with
the consummation of the transaction contemplated by this Agreement were true,
complete and accurate and fairly presented the financial condition of BCC as of
the date thereof and for the periods covered thereby, having been prepared in
accordance with GAAP and such financial statements disclosed all material
liabilities, including, without limitation, contingent liabilities, of BCC.
There has been no material adverse change since such date with respect to the
Tangible Net Worth or liquidity of BCC or with respect to any other matters
referred to or contained therein and no additional material liabilities,
including, without limitation, contingent liabilities of BCC have arisen or been
incurred since such date. The projections heretofore delivered to the Lessor
continue to be reasonable (with respect to the material assumptions upon which
such projections are based) and BCC reasonably anticipates the results projected
therein will be achieved, there having been (a) no material adverse change in
the business, assets or condition, financial or otherwise of BCC or (b) no
material depletion of BCC's cash or decrease in working capital.
10.8. WORKING CAPITAL LOAN DOCUMENTS.
True and correct copies of the Working Capital Loan Agreement and the
other Working Capital Loan Documents have been delivered to Lessor and the
transaction contemplated by the Working Capital Loan Documents has closed in
accordance with the terms thereof and in compliance with all applicable Legal
Requirements. Attached hereto as EXHIBIT A is a true and correct list of all of
the Working Capital Loan Documents. There are no agreements in force and effect
between Lessee and BCC or any Affiliate of BCC, other than (i) the Leasehold
Improvement Agreement, (ii) the Affiliated Party Subordination Agreement, (iii)
the Current Management Agreement and (iv) the Working Capital Loan Documents.
BCC shall not terminate, amend, abridge, modify or otherwise limit any of the
Working Capital Loan Documents without the prior written consent of the Lessor,
in each instance, which consent may be withheld in the Lessor's sole and
absolute discretion. Notwithstanding the foregoing, from and after the date
hereof, BCC shall not enter into, nor permit any of its Subsidiaries to enter
into, any contractual arrangement with the Lessee without the prior written
consent of the Lessor, in each instance, which consent may be withheld in the
Lessor's sole and absolute discretion.
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10.9. FINANCIAL COVENANTS.
BCC shall maintain, at all times, a ratio of Consolidated Current
Assets to Consolidated Current Liabilities equal to or greater than 1 to 1. In
addition, BCC shall maintain a Tangible Net Worth equal to or greater than (a)
SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000) from July 1, 1997 through June
30, 1998 and (b) ONE MILLION DOLLARS ($1,000,000) from July 1, 1998 through the
end of the Term.
10.10. NON-COMPETITION.
BCC acknowledges and agrees that BCC, the Current Manager and the
Developer are members of the Leasing Group and, as such, the terms of Section
11.5.4 of the Lease shall apply to each of the foregoing parties and any Person
holding or controlling, directly or indirectly, any interest in any of the
foregoing parties. Accordingly the terms of Section 11.5.4 of the Lease are
hereby incorporated herein by reference, mutatis, mutandis. The provisions of
this Section 10.10 shall survive the expiration or earlier termination of this
Agreement and/or the Lease.
11. All representations and warranties contained in this Agreement
shall constitute continuing representations and warranties which shall remain
true, correct and complete as long as this Agreement is in force and effect.
Notwithstanding the provisions of the foregoing sentence but without derogation
from any other terms and provisions of this Agreement, including, without
limitation, those terms and provisions containing covenants to be performed or
conditions to be satisfied on the part of BCC, the representations and
warranties contained in Sections 10.4(a), 10.4(c), 10.4(d), in the second
sentence of Section 10.6 and in the second and third sentences of Section 10.7
hereof shall not constitute continuing representations and warranties hereunder.
12. Without limiting BCC's obligations to provide the Working Capital
Loans, upon the occurrence of any default under any of the Lease Documents, BCC
shall have the right, but not the obligation, to cure such default within any
applicable notice and grace periods and, to the extent permitted by law, enter
upon the Leased Property, if necessary, for such purpose and take all such
actions as BCC may deem necessary or appropriate to remedy such default. The
Lessor agrees to give written notice to BCC simultaneous with the provision by
the Lessor of any notice to the Lessee (or any other member of the Leasing
Group) relating to any such default. The Lessor agrees to accept any remedy
performed by BCC as if the same had been performed by the Lessee, but,
nevertheless, reserves the right to determine whether any remedy performed by
BCC cures any such default to the Lessor's satisfaction.
13. Subject to the provisions of Section 5 hereof, no set-off,
counterclaim, reduction or diminution of any obligation, or any claim or defense
of any kind or nature which BCC has or may have against the Lessee, any other
member of the Leasing Group, any of the Related Parties or the Lessor shall be
available hereunder to BCC. Subject to the terms of the Working Capital
Assurance Documents, BCC shall not assert and hereby
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waives any right whatsoever that BCC may have at law or in equity, including,
without limitation, any right of subrogation or to seek contribution,
indemnification or any other form of reimbursement from the Lessee, any other
endorser, surety or guarantor of any of the Obligations or any other Person now
or hereafter primarily or secondarily liable for any of the Obligations.
14. Any notice, request, demand, statement or consent made hereunder
shall be in writing and shall be deemed duly given if personally delivered, sent
by certified mail, return receipt requested, or sent by a nationally recognized
commercial overnight delivery service with provisions for a receipt, postage or
delivery charges prepaid, and shall be deemed given when postmarked or placed in
the possession of such mail or delivery service and addressed as follows:
If to BCC: Balanced Care Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attn: President
With copies to: Balanced Care Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attn: General Counsel
and
Xxxxxxxxxxx & Xxxxxxxx, LLP
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxxx, Esq.
If to the Lessee: _______________________________
0000 XXX Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
With a copy to: Xxxxxxxx X. Xxxxx, P.A.
0000 XXX Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx Xxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
If to the Pledgor: TC Realty Holding Company
0000 XXX Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
With a copy to: Xxxxxxxx X. Xxxxx, P.A.
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0000 XXX Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx Xxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
If to the Lessor: Meditrust Company LLC
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
With copies to: Meditrust Company LLC
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxxx
or at such other place as any of the parties hereto may from time to time
hereafter designate by a written notice to the others in such manner. Any notice
given to BCC or the Lessee by the Lessor at any time shall not imply that such
notice or any further or similar notice was or is required.
15. This Agreement shall be construed, and the rights and obligations
of the Lessor, the Lessee and BCC shall be determined, in accordance with the
laws of the Commonwealth of Massachusetts.
Notwithstanding anything to the contrary set forth in any of the
Working Capital Loan Documents, BCC and the Lessee each hereby consents to
personal jurisdiction in the courts of the Commonwealth of Massachusetts and the
United States District Court for the District of Massachusetts as well as to the
jurisdiction of all courts from which an appeal may be taken from the aforesaid
courts, for the purpose of any suit, action or other proceeding arising out of
or with respect to this Agreement, any of the other Working Capital Assurance
Documents and/or any of the other Working Capital Loan Documents, the
negotiation and/or consummation of the transactions evidenced by this Agreement,
the other Working Capital Assurance Documents and the other Working Capital Loan
Documents and/or the performance of any obligation or the exercise of any remedy
under this Agreement, any of the other Working Capital Assurance Documents
and/or any of the other Working Capital Loan Documents and BCC and the Lessee
each expressly waives any and all objections it may have as to venue in any of
such courts.
16. The provisions of Article 23 and Sections 2.2, 16.8 through 16.10,
24.2, 24.3, 24.5 through 24.10 and 24.12 of the Lease are hereby incorporated
herein by
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reference, mutatis, mutandis and shall be applicable to this Agreement as if set
forth in full herein.
17. Without limiting any other provisions of any of the other Lease
Documents, this Agreement and BCC's obligations hereunder shall automatically
terminate upon BCC's purchase of all of the issued and outstanding capital stock
of the Lessee in accordance with the terms of Section 19.4 of the Lease.
18. BCC agrees that, as long as this Agreement remains in force and
effect, BCC shall provide to the Lessor, all of the Consolidated Financials
required to be provided by the Guarantor under the terms of the Lease (whether
or not the Lease is then in effect) and such other information relating to the
financial condition of BCC as the Lessor may reasonably request.
19. The Lessor covenants and agrees with BCC that, as long as no Lease
Default has occurred, nor any event which, with notice and/or the passage of
time could constitute a Lease Default, the Lessor shall not consent to any
assignment of the Lessee's interest under the Lease (except as provided in, and
in accordance with the terms of, Section 19.4 of the Lease) or any transfer of
substantially all of the Lessee's assets or any transfer of the issued and
outstanding capital stock of the Lessee without the prior written consent of
BCC, which consent, BCC may withhold in its sole and absolute discretion. In
addition, in the event that, in violation of the terms of the Lease, (a) the
Lessee attempts to assign its interest in the Lease (or transfer substantially
all of its assets), (b) the current holders of the issued and outstanding
capital stock of the Lessee attempt to transfer any such stock or (c) if any of
the events described in Section 16.1 (f) occurs, the Lessor covenants and agrees
with BCC that, subject to the provisions of applicable Legal Requirements, the
Lessor shall terminate the Lease (in accordance with the terms thereof) and
shall enter into a new lease of the Leased Property with BCC (or any of its
wholly-owned Subsidiaries, provided, that, BCC executes and delivers a guaranty
of any such lease, in form and substance acceptable to the Lessor), in form and
substance acceptable to the Lessor; provided, however, that any such lease shall
be substantially similar to the Lease. In connection with the execution and
delivery of any such lease, (a) BCC and its Subsidiaries shall execute and
deliver any additional documents that the Lessor may request, in form and
substance similar to the Lease Documents (such as assignments of Contracts and
Permits, a pledge of the issued and outstanding capital stock of the new lessee,
an affiliated party subordination agreement, etc.) and (b) BCC shall deliver to
the Lessor such evidence as Lessor shall request, in form and substance
acceptable to the Lessor, that the new lease and all other documents executed
and delivered in connection therewith have been duly authorized, executed and
delivered and are enforceable (such as opinions, certificates of legal existence
and good standing and certified copies of corporate resolutions). BCC agrees to
pay all of the costs and expenses reasonably incurred by the Lessor (including,
without limitation, attorneys' fees and expenses) in connection with the
performance of the Lessor's obligations under this Section 19.
20. BCC covenants and agrees with the Lessor that BCC shall not assign
any interest that it holds in any of the Working Capital Loan Documents without
the prior written consent of the Lessor, in each instance, which consent may be
withheld in the Lessor's sole and absolute discretion.
13
EXECUTED as a sealed instrument as of the date first written above.
WITNESS: BCC:
-------- ----
BALANCED CARE CORPORATION, a Delaware
corporation
_____________________________ By: _______________________________
Name: Name:
Title:
WITNESS: LESSEE:
-------- -------
__________________________
_____________________________ By: _______________________________
Name: Name:
Title:
WITNESS: PLEDGOR:
-------- --------
TC REALTY HOLDING COMPANY, a
Delaware corporation
_____________________________ By: _______________________________
Name: Name:
Title:
WITNESS: LESSOR:
-------- -------
MEDITRUST COMPANY LLC,
a Delaware limited liability company
_____________________________ By: _______________________________
Name: Name:
Title:
14
The undersigned hereby acknowledges and consents to the provisions of
Section 3 of the Working Capital Assurance Agreement as specifically set forth
in Section 3.
____________________________________
By: __________________________________
Name: ________________________________
Title: _______________________________
