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Exhibit 10.64
FORM OF WORKING CAPITAL ASSURANCE AGREEMENT
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THIS WORKING CAPITAL ASSURANCE AGREEMENT ("AGREEMENT") is made as of
June 15, 1998, by and between Balanced Care Corporation, a Delaware corporation,
with a principal place of business at c/o BCC Development and Management Co.,
0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxxx, XX 00000 ("BCC") and Capstone
Capital of Virginia, an Alabama corporation (the "LESSOR") and for the benefit
of Capstone Capital Corporation, a Maryland corporation ("LENDER"), both with a
principal place of business at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, ALCO __, L.L.C., a North Carolina limited liability company
(the "LESSEE"), executed and delivered that certain Lease dated as of the date
hereof (the "LEASE") whereby Lessee leased from Lessor property, together with
all improvements now or hereafter located thereon, as more fully described in
the Lease (the "PROPERTY"); and
WHEREAS, BCC and Lessee have entered into that certain Shortfall
Funding Agreement dated as of the date hereof (the "SHORTFALL AGREEMENT")
whereby, among other matters, BCC will make certain loans to the Lessee as more
fully described therein; and
WHEREAS, pursuant to the terms of that certain Promissory Note dated as
of the date hereof by and between Lessee and Lender (the "PROMISSORY NOTE"),
Lender has agreed to make advances ("FUNDINGS") to Lessee of up to $600,000 to
fund certain operational losses anticipated in connection with the Facility, on
the terms and conditions set forth in the Promissory Note; and
WHEREAS, because Xxxxxxx X. Xxxxxxxx, Xxxx X. Xxxx, Xxxxx X. Xxxxxx, W.
Xxx Xxxxx, III, and Xxxxxxx X. Xxxxxxxx, individuals resident of the State of
North Carolina (collectively, the "MEMBERS"), as the sole members of Lessee,
shall receive a direct benefit from the advances made under the Promissory Note,
have executed and delivered to the Lender that certain Guaranty dated as of the
date hereof, guarantying the obligations of Lessee under the Promissory Note
(the "GUARANTY"); and
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the same meanings as ascribed to such terms in the Lease; and
WHEREAS, as additional security for (i) Lessee's obligations to Lender
under the Promissory Note (securing payment of principal and interest thereunder
when due, whether by regularly scheduled payments, at maturity, or acceleration
or otherwise) and the First Leasehold Mortgage and Members' obligations to
Lender under the Guaranty (collectively, the "LOAN
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OBLIGATIONS") and (ii) Lessee's obligations to Lessor under the Lease and the
other Lease Documents (as defined in Appendix 1 attached to the Shortfall
Agreement ("APPENDIX 1")) (the "LEASE OBLIGATIONS"), the Lessor and the Lender
have 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:
1. Subject to the terms of Section 4 hereof, from the date hereof
until the complete payment and performance of the Lease Obligations and Loan
Obligations, BCC unconditionally agrees to loan to the Lessee by means of
working capital loans (collectively, the "WORKING CAPITAL LOANS") sufficient
funds to pay and satisfy Shortfalls (as defined in Appendix 1) due and payable
during any month. Such Working Capital Loans shall be made pursuant to the
Shortfall Agreement.
2. Subject to the terms of Section 4 hereof, without regard to
any bankruptcy of Lessee or any default, breach of condition or failure to
satisfy any condition to the making of Working Capital Loans under the Shortfall
Agreement, BCC shall, without further direction, advance to the Lessee 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 and Loan Obligations) when due and so that the payments due
under the Lease and the Promissory Note are made in a timely fashion.
3. 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, (b) enable the Lessee, subject to the terms of Section 4
hereof, to fulfill its working capital obligations, including, without
limitation, the Lease Obligations and Loan Obligations, and (c) induce the
Lender to accept the Promissory Note, the Guaranty and the First Leasehold
Mortgage and to lend to Lessee the sums to be advanced under the Promissory Note
in accordance with the terms thereof. Accordingly, it is expressly intended by
BCC that the covenants and agreements by BCC hereunder may be relied upon and
enforced by the Lessor and the Lender, as applicable.
4. Notwithstanding anything to the contrary set forth herein,
BCC's obligation to provide the Working Capital Loans and advance Shortfalls to
the Lessee shall not commence until such time as the full amount of the Working
Capital Reserve required to be funded pursuant to the Promissory Note has
actually been funded and depleted.
5. The obligations of BCC hereunder shall not be affected by the
termination, discontinuance, release or modification of any agreement from any
maker, endorser, surety or guarantor of the Lease Obligations or the Loan
Obligations.
6. Notwithstanding anything to the contrary contained herein or
in the Lease, the Lessor hereby covenants and agrees with BCC that the Lessor
shall not amend, modify or
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otherwise alter the Lease or any other document executed in connection therewith
(collectively, the "LEASE DOCUMENTS") without BCC's prior written consent, in
each instance, which consent, shall not be unreasonably withheld, conditioned or
delayed.
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, the Lessor shall not terminate the Lease without the
prior written consent of BCC, which consent shall not be unreasonably withheld,
conditioned or delayed.
7. The obligations of BCC hereunder shall not be affected by any
change in the beneficial ownership of the Lessee or by reason of any disability
of the Lessee. This Agreement shall be in addition to any guaranty or other
security for the Lease Obligations and the Loan Obligations, and 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 Lease Obligations or the Loan
Obligations is rescinded or must otherwise be returned by the Lessor or Lender,
as the case may be, upon the insolvency, bankruptcy or reorganization of the
Lessee or otherwise, all as though such payment had not been made.
8. (a) Without limiting BCC's obligation 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 (or in the event of no
grace period, within 3 days after receipt by BCC of notice of such default) and,
to the extent permitted by law, enter upon the 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 of any
default by Lessee under the Lease or any other Lease Document of which Lessor
becomes aware. The Lessor agrees to accept any remedy performed by BCC as if the
same had been performed by the Lessee.
(b) Lessor acknowledges that BCC has the right to acquire all
of the assets of Lessee pursuant to the Shortfall Agreement or all of the Equity
Interests (as defined in the Shortfall Agreement) pursuant to the Option
Agreement (as defined in the Shortfall Agreement). In the event that BCC or a
BCC Affiliate (as defined in Appendix 1) exercises its rights to acquire either
the assets or the Equity Interests, (A) Lessor hereby consents to the transfer
of the Lease to BCC or the BCC Affiliate, and shall recognize such purchaser as
Lessee under the Lease and other Lease Documents so long as (i) such purchaser
executes and delivers to Lessor such documents, instruments, affidavits and
opinions as Lessor may reasonably request and (ii) in the event the purchaser is
an affiliate of BCC, BCC shall provide a guaranty of the Lease Obligations in
form and substance reasonably satisfactory to Lessor and (B) Lessor shall
release Lessee and any guarantor of Lessee's obligations upon the consummation
of such transfer; provided, however, that if an Event of Default (as defined in
the Lease) under the Lease has occurred and is continuing at the time the Lease
is transferred to BCC or a BCC Affiliate pursuant to this Section 8(b), such
transfer shall not be deemed a waiver by Lessor of such Event of Default.
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9. 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
c/o BCC Development and Management Co.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attn: President
WITH COPIES TO: Balanced Care Corporation
c/o BCC Development and Management Co.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attn: General Counsel
and
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
IF TO THE LESSOR: Capstone Capital of Virginia, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
WITH COPIES TO: Sirote & Permutt
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn. Xxxxxx X. Xxxxxx, Esq.
or at such other place as any of the parties hereto may from time to time
hereafter designate to the others in writing. 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.
10. This Agreement shall be construed, and the rights and
obligations of the Lessor and BCC shall be determined, in accordance with the
laws of the State of Alabama.
BCC hereby consents to the exclusive jurisdiction of any state
or federal court located within the State of Alabama, and waives personal
service of any and all process upon BCC. BCC consents that all such service of
process may be made by registered mail directed to , a
Delaware corporation.
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11. This Agreement and BCC's obligations hereunder shall
automatically terminate upon the purchase by BCC or a BCC Affiliate of all of
the issued and outstanding equity of the Lessee or substantially all of the
assets of Lessee.
12. The Lessor covenants and agrees with BCC that the Lessor shall
not consent to any assignment of the Lessee's interest under the Lease (except
to BCC or BCC Affiliate, or as otherwise expressly provided in Section 8(b) of
this Agreement) or any transfer of substantially all of the Lessee's assets or
any transfer of the issued and outstanding equity 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 equity of the Lessee attempt to transfer any such equity or (c)
if any of the events described in Section 15.1 of the Lease relating to the
bankruptcy or insolvency of the Lessee occurs, the Lessor covenants and agrees
with BCC that, at the request of BCC and subject to applicable law, the Lessor
shall terminate the Lease (in accordance with the terms thereof) and shall enter
into a new lease of the Property with BCC (or any of its wholly-owned
subsidiaries ("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, (y) 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 and (z) 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. 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 12.
13. (a) Entire Agreement . This Agreement contains the entire
understanding among the parties hereto with respect to its subject matter and
supersedes any prior understandings or agreements between the parties with
respect to such subject matter.
(b) Amendments. This Agreement may be modified or amended
only by a written instrument executed by the Lessor and BCC.
(c) Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the substance of the
transactions contemplated hereby is not affected in any manner adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent possible.
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(d) Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original, but all of
which together shall constitute but a single instrument.
(e) Future Cooperation. Each party covenants and agrees
to take such further action and execute such further documents as may be
necessary or appropriate to carry out the intention of this Agreement.
(f) Successors and Assigns. This Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.
(g) WAIVER OF JURY TRIAL. BCC HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF
ACTION (A) ARISING OUT OF OR IN ANY WAY PERTAINING OR RELATING TO THIS
AGREEMENT, (B) IN ANY WAY CONNECTED WITH OR PERTAINING OR RELATED OR INCIDENTAL
TO ANY DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT, OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH OR IN CONNECTION WITH THE TRANSACTIONS RELATED THERETO OR CONTEMPLATED
THEREBY OR THE EXERCISE OF EITHER PARTY'S RIGHTS AND REMEDIES THEREUNDER, IN ALL
OF THE FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT, IN TORT OR OTHERWISE, BCC AGREES THAT THE LESSOR OR THE
LENDER MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF
THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT OF BCC IRREVOCABLY TO WAIVE ITS
RIGHT TO TRIAL BY JURY AS AN INDUCEMENT TO THE LESSEE TO ENTER INTO THE LEASE
AND THE LENDER TO MAKE FUNDINGS, AND THAT ANY DISPUTE OR CONTROVERSY WHATSOEVER
BETWEEN BCC, THE LESSOR AND THE LENDER SHALL INSTEAD BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
SIGNATURES ON FOLLOWING PAGE
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EXECUTED as a sealed instrument as of the date first written above.
WITNESS: BCC:
BALANCED CARE CORPORATION
_____________________________________ By: _______________________________
Name: Name:
Title:
WITNESS: LESSOR:
CAPSTONE CAPITAL OF VIRGINIA, INC.
_____________________________________ By: _______________________________
Name: Name:
Title:
S-1
Working Capital Assurance Agreement
