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EXHIBIT 10.55
ADDITIONAL BORROWER JOINDER SUPPLEMENT
THIS ADDITIONAL BORROWER JOINDER SUPPLEMENT (this "Agreement") is made
this 10th day of December, 1998, by and among ALS HOLDINGS, INC., a corporation
organized under the laws of the State of Delaware ("Holdings"), ALS WISCONSIN
HOLDINGS, INC., a Delaware corporation (the "Additional Borrower"), and
wholly-owned subsidiary of ALTERNATIVE LIVING SERVICES, INC. A corporation
organized under the law of the State of Delaware ("ALS"), and BANK UNITED (the
"Agent") in its capacity as agent for each of the Lenders (as defined in the
Financing Agreement, as that term is defined hereinbelow).
NOW, THEREFORE, for value received the undersigned agree as follows:
1. Reference is hereby made to the Financing and Security
Agreement dated as of September 28, 1998 (as amended, modified, restated,
substituted, extended and renewed at any time and from time to time, the
"Financing Agreement") by and among Holdings and each Person which is included
in the definition of "Borrower" (as that term is defined in the Financing
Agreement) immediately prior to the date of this Agreement (together with
Holdings, collectively, the "Existing Borrower"), and the Agent. Capitalized
terms not otherwise defined in this Agreement shall have the meanings given to
them in the Financing Agreement.
2. (a) As a condition precedent to extending the Credit
Facility to the Borrower, the Lenders required that any Wholly Owned Subsidiary
which owns a Facility to be encumbered with a Deed of Trust to secure the Credit
Facility execute this Agreement to evidence its agreement to the terms of the
Financing Documents as applicable. The Additional Borrower and the Existing
Borrowers are Wholly Owned Subsidiaries of ALS. The Additional Borrower and the
Existing Borrowers hereby acknowledge, confirm and agree that on and as of the
date of this Agreement the Additional Borrower has become an "Additional
Borrower" (as that term is defined in the Financing Agreement), and, along with
the Existing Borrowers, is included in the definition of "Borrower" under the
Financing Agreement and the other Financing Documents for all purposes thereof,
and as such shall be jointly and severally liable, as provided in the Financing
Documents, for all Obligations thereunder (whether incurred or arising prior to,
on, or subsequent to the date hereof) and otherwise bound by all of the terms,
provisions and conditions thereof.
(b) The Additional Borrower and the Existing Borrowers
hereby acknowledge, confirm and agree that on and as of the date of this
Agreement Additional Borrower has received the benefit of advances made under
the Loan and granted a first lien Mortgage/Deed of Trust, Assignment and
Security Agreement covering its Facilities located in Outagamie County,
Wisconsin known as "Wynwood of Appleton" and Dane County, Wisconsin known as
"Wynwood of Madison" (collectively, the "Property") to secure the Obligations,
and as such shall be jointly and severally liable, as provided in the Financing
Documents, for all Obligations thereunder (whether incurred or arising prior to,
on, or subsequent to the date hereof) and otherwise bound by all of the terms,
provisions and conditions thereof.
(c) Without in any way implying any limitation on any of
the provisions of
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this Agreement, the Additional Borrower agrees to execute such financing
statements, instruments, and other documents as the Agent may require to further
evidence the Additional Borrower's obligations under the Financing Agreement and
to further secure the Obligations.
(d) Without in any way implying any limitation on any of
the provisions of this Agreement, the Additional Borrower hereby represents and
warrants that all of the representations and warranties contained in the
Financing Documents are true and correct on and as of the date hereof as if made
on and as of such date, both before and after giving effect to this Joinder
Supplement, and that no Event of Default or Default has occurred and is
continuing or exists or would occur or exist after giving effect to this Joinder
Supplement.
3. The Additional Borrower hereby promises to pay, jointly and
severally with the Existing Borrowers all sums due or to become due under the
Note and all of the other Obligations. This Agreement shall constitute an
Allonge to the Note for the purposes of adding the Additional Borrower as a
Borrower, jointly and severally liable with the Existing Borrowers.
4. Each Person included in the term "Borrower" hereby covenants
and agrees with the Agent and the Lenders as follows:
(a) The Obligations include all present and future
indebtedness, duties, obligations, and liabilities, whether now existing or
contemplated or hereafter arising, of any one or more of the Additional Borrower
or the Existing Borrowers.
(b) Reference in this Agreement, the Financing Agreement
and the other Financing Documents to the "Borrower" or otherwise with respect to
any one or more of the Persons now or hereafter included in the definition of
"Borrower" shall mean each and every such Person and any one or more of such
Persons, jointly and severally, unless the context requires otherwise (by way of
example, and not limitation, if only one such Person is the owner of the real
property which is the subject of a mortgage).
(c) Each Person included in the term "Borrower" in the
discretion of its respective management is to agree among themselves as to the
allocation of the proceeds of the Credit Facility, provided, however, that each
such Person be deemed to have represented and warranted to the Agent and the
Lenders at the time of allocation that each benefit and use of proceeds is a
Permitted Use.
(d) For administrative convenience, each Person included
in the term "Borrower" hereby irrevocably appoints Holdings as the Borrower's
attorney-in-fact, with power of substitution (with the prior written consent of
the Agent in the exercise of its sole and absolute discretion), in the name of
Holdings or in the name of the Borrower or otherwise to take any and all actions
with respect to this Agreement, the other Financing Documents, the Obligations
and/or the Collateral (including, without limitation, the proceeds thereof) as
Holdings may so elect from time to time, including, without limitation, actions
to (i) request advances under the Loan, and direct the Agent to disburse or
credit the proceeds of any advance under the Loan directly to an account of
Holdings, any one or more of such Persons or otherwise, which direction shall
evidence the making of such advance and shall constitute the acknowledgment by
each such Person of the receipt of the proceeds of such
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Loan or the benefit of such Letter of Credit, (ii) enter into, execute, deliver,
amend, modify, restate, substitute, extend and/or renew this Agreement, any
Additional Borrower Joinder Supplement, any other Financing Documents, security
agreements, mortgages, deposit account agreements, instruments, certificates,
waivers, letter of credit applications, releases, documents and agreements from
time to time, and (iii) endorse any check or other item of payment in the name
of such Person or in the name of ALS. The foregoing appointment is coupled with
an interest, cannot be revoked without the prior written consent of the Agent,
and may be exercised from time to time through ALS' duly authorized officer,
officers or other Person or Persons designated by ALS to act from time to time
on behalf of ALS.
(e) Each Person included in the term "Borrower" hereby
irrevocably authorizes each of the Lenders to make advances to any one or more
or to all of such Persons, pursuant to the provisions of this Agreement upon the
written, oral or telephonic request of any one or more of the Persons who is
from time to time a Responsible Officer of a Borrower under the provisions of
the most recent certificate of corporate resolutions and/or incumbency of the
Person included in the term "Borrower" on file with the Agent and also upon the
written, oral or telephone request of any one of the Persons who is from time to
time designated pursuant to Section 2.2 of the Financing Agreement.
(f) Neither the Agent nor any of the Lenders assumes any
responsibility or liability for any errors, mistakes, and/or discrepancies in
the oral, telephonic, written or other transmissions of any instructions,
orders, requests and confirmations between the Agent and any one or more of the
Persons included in the term "Borrower" or the Agent and any of the Lenders in
connection with the Credit Facilities, any advance under the Loan, or any other
transaction in connection with the provisions of this Agreement with the
exception of those arising from the Agent's or any of the Lenders' gross
negligence or willful misconduct.
5. Without implying any limitation on the joint and several
nature of the Obligations, the Lenders agree that, notwithstanding any other
provision of this Agreement, the Persons included in the term "Borrower" may
create reasonable inter-company indebtedness between or among the Persons
included in the term "Borrower" with respect to the allocation of the benefits
and proceeds of the advances under the Financing Agreement. The Persons included
in the term "Borrower" agree among themselves, and the Agent and the Lenders
consent to that agreement, that each such Person shall have rights of
contribution from all of the such Persons to the extent such Person incurs
Obligations in excess of the proceeds of the Loans received by, or allocated to
purposes for the direct benefit of, such Person. All such indebtedness and
rights shall be, and are hereby agreed by the Persons included in the term
"Borrower" to be, subordinate in priority and payment to the indefeasible
repayment in full in cash of the Obligations, and, unless the Agent agrees in
writing otherwise, shall not be exercised or repaid in whole or in part until
all of the Obligations have been indefeasibly paid in full in cash. Each Person
included in the term "Borrower" agrees that all of such inter-company
indebtedness and rights of contribution are part of the Collateral and secure
the Obligations. Each Person included in the term "Borrower" hereby waives all
rights of counter claim, recoupment and offset between or among themselves
arising on account of that indebtedness and otherwise. Unless otherwise
consented to in writing by the Agent, no Person included in the term "Borrower"
shall evidence the inter-company indebtedness or rights of contribution by note
or other instrument, and shall
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not secure such indebtedness or rights of contribution with any Lien or
security.
6. (a) Each Person included in the term "Borrower" hereby
represents and warrants to the Agent and the Lenders that each of them will
derive benefits, directly and indirectly, from each advance under the Loan, both
in their separate capacity and as a member of the integrated group to which each
such Person belongs and because the successful operation of the integrated group
is dependent upon the continued successful performance of the functions of the
integrated group as a whole, because (i) the terms of the consolidated financing
provided under this Agreement are more favorable than would otherwise would be
obtainable by such Persons individually, and (ii) the additional administrative
and other costs and reduced flexibility associated with individual financing
arrangements which would otherwise be required if obtainable would substantially
reduce the value to such Persons of the financing.
(b) Each Person included in the term "Borrower" hereby
represents and warrants that all of the representations and warranties contained
in the Financing Documents are true and correct on and as of the date hereof as
if made on and as of such date, both before and after giving effect to this
Agreement, and that no Event of Default or Default has occurred and is
continuing or exists or would occur or exist after giving effect to this
Agreement.
7. Guaranty.
(a) Each Person included in the term "Borrower" hereby
unconditionally and irrevocably, guarantees to the Agent and the Lenders:
(i) the due and punctual payment in full (and
not merely the collectibility) by the other Persons included
in the term "Borrower" of the Obligations, including unpaid
and accrued interest thereon, in each case when due and
payable, all according to the terms of this Agreement, the
Notes and the other Financing Documents;
(ii) the due and punctual payment in full (and
not merely the collectibility) by the other Persons included
in the term "Borrower" of all other sums and charges which may
at any time be due and payable in accordance with this
Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by the
other Persons included in the term "Borrower" of all of the
other terms, covenants and conditions contained in the
Financing Documents; and
(iv) all the other Obligations of the other
Persons included in the term "Borrower".
(b) The obligations and liabilities of Each Person
included in the term "Borrower" as a guarantor under this paragraph 7 shall be
absolute and unconditional and joint and several, irrespective of the
genuineness, validity, priority, regularity or enforceability of this Agreement,
any of the Notes or any of the Financing Documents or any other circumstance
which might otherwise constitute a legal or equitable discharge of a surety or
guarantor. Each Person included in the term "Borrower" in its capacity as a
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guarantor expressly agrees that the Agent and the Lenders may, in their sole and
absolute discretion, without notice to or further assent of such Borrower and
without in any way releasing, affecting or in any way impairing the joint and
several obligations and liabilities of such Person as a guarantor hereunder:
(i) waive compliance with, or any defaults
under, or grant any other indulgences under or with respect to
any of the Financing Documents;
(ii) modify, amend, change or terminate any
provisions of any of the Financing Documents;
(iii) grant extensions or renewals of or with
respect to the Credit Facilities, the Notes or any of the
other Financing Documents;
(iv) effect any release, subordination,
compromise or settlement in connection with this Agreement,
any Note or any of the other Financing Documents;
(v) agree to the substitution, exchange, release
or other disposition of the Collateral or any part thereof, or
any other collateral for the Loan or to the subordination of
any lien or security interest therein;
(vi) make advances for the purpose of performing
any term, provision or covenant contained in this Agreement,
any of the Notes or any of the other Financing Documents with
respect to which the Borrower shall then be in default;
(vii) make future advances pursuant to the
Financing Agreement or any of the other Financing Documents;
(viii) assign, pledge, hypothecate or otherwise
transfer, the Obligations, the Note, any of the other
Financing Documents or any interest therein, all as and to the
extent permitted by the provisions of this Agreement;
(ix) deal in all respects with the other Persons
included in the term "Borrower" as if this paragraph 7 were
not in effect;
(x) effect any release, compromise or settlement
with any of the other Persons included in the term "Borrower",
whether in their capacity as a Borrower or as a guarantor
under this paragraph 7 or any other guarantor; and
(xi) provide debtor-in-possession financing or
allow use of cash collateral in proceedings under the
Bankruptcy Code, it being expressly agreed by all Persons
included in the term "Borrower" that any such financing and/or
use would be part of the Obligations.
(c) The obligations and liabilities of each Person
included in the term "Borrower", as guarantor under this paragraph 7 shall be
primary, direct and immediate, shall not be subject to any counterclaim,
recoupment, set off, reduction or defense based upon any claim that such Person
may have against any one or more of the other Persons included in the term
"Borrower", the Agent, any one or more of the Lenders and/or any other guarantor
and shall not be conditional or contingent upon pursuit or enforcement by the
Agent or other Lenders of any remedies it may have against Persons included in
the term "Borrower" with respect to this Agreement, the Note or any of the other
Financing Documents, whether pursuant to the terms thereof or by operation of
law. Without limiting the generality of the
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foregoing, the Agent and the Lenders shall not be required to make any demand
upon any of the Persons included in the term "Borrower", or to sell the
Collateral or otherwise pursue, enforce or exhaust its or their remedies against
the Persons included in the term "Borrower" or the Collateral either before,
concurrently with or after pursuing or enforcing its rights and remedies
hereunder. Any one or more successive or concurrent actions or proceedings may
be brought against each Person included in the term "Borrower" under this
paragraph 7, either in the same action, if any, brought against any one or more
of the Persons included in the term "Borrower" or in separate actions or
proceedings, as often as the Agent may deem expedient or advisable. Without
limiting the foregoing, it is specifically understood that any modification,
limitation or discharge of any of the liabilities or obligations of any one or
more of the Persons included in the term "Borrower", any other guarantor or any
obligor under any of the Financing Documents, arising out of, or by virtue of,
any bankruptcy, arrangement, reorganization or similar proceeding for relief of
debtors under federal or state law initiated by or against any one or more of
the Persons included in the term "Borrower", in their respective capacities as
borrowers and guarantors under this paragraph 7, or under any of the Financing
Documents shall not modify, limit, lessen, reduce, impair, discharge, or
otherwise affect the liability of each Borrower under this paragraph 7 in any
manner whatsoever, and this paragraph 7 shall remain and continue in full force
and effect. It is the intent and purpose of this paragraph 6 that each Person
included in the term "Borrower" shall and does hereby waive all rights and
benefits which might accrue to any other guarantor by reason of any such
proceeding, and the Persons included in the term "Borrower" agree that they
shall be liable for the full amount of the obligations and liabilities under
this paragraph 6 regardless of, and irrespective to, any modification,
limitation or discharge of the liability of any one or more of the Persons
included in the term "Borrower", any other guarantor or any obligor under any of
the Financing Documents, that may result from any such proceedings.
(d) Except with respect to any applicable notice and/or
opportunity to cure required to be given under the Financing Documents, each
Person included in the term "Borrower", as guarantor under this paragraph 7 ,
hereby unconditionally, jointly and severally, irrevocably and expressly waives:
(i) presentment and demand for payment of the
Obligations and protest of non-payment;
(ii) notice of acceptance of this paragraph 7 and
of presentment, demand and protest thereof;
(iii) notice of any default hereunder or under the
Notes or any of the other Financing Documents and notice of
all indulgences;
(iv) notice of any increase in the amount of any
portion of or all of the indebtedness guaranteed by this
paragraph 7;
(v) demand for observance, performance or
enforcement of any of the terms or provisions of this
paragraph 7, the Notes or any of the other Financing
Documents;
(vi) all errors and omissions in connection with the
Lender's administration of all indebtedness guaranteed by this
paragraph 7 except errors and omissions resulting from acts of bad
faith or gross negligence;
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(vii) any right or claim of right to cause a marshalling of
the assets of any one or more of the other Persons included in the term
"Borrower";
(viii) any act or omission of the Agent or the Lenders
(except acts or omissions in bad faith or constituting gross
negligence) which changes the scope of the risk as guarantor hereunder;
and
(ix) all other notices and demands otherwise required by
law which such Person may lawfully waive.
(e) Within ten (10) days following any request of the Agent so to
do, each Person included in the term "Borrower" will furnish the Agent and the
Lenders and such other persons as the Agent may direct with a written
certificate, duly acknowledged stating in detail whether or not any credits,
offsets or defenses exist with respect to this paragraph 7.
8. Acknowledgment of Guarantor. ALS in its capacity as guarantor under
the Guaranty of Payment Agreement dated September 28, 1998 by ALS for the
benefit of the Lenders (as amended, modified, substituted, extended and renewed
from time to time the "Guaranty") and in order to induce the Agent to enter into
the foregoing Agreement, (a) consents to the transactions contemplated by and
agreements made by the Additional Borrower and the Existing Borrower under the
foregoing Agreement, and (b) ratifies, confirms and reissues the terms,
conditions, promises, covenants, grants, assignments, agreements,
representations, warranties and provisions contained in the Guaranty.
9. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Texas, without regard to principles of
choice of law.
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WITNESS the due execution hereof as of the day and year first written
above.
WITNESS: ALS WISCONSIN HOLDINGS, INC.
/s/ Xxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx (SEAL)
------------------------- ------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
WITNESS: ALS HOLDINGS, INC.
/s/ Xxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx (SEAL)
------------------------- ------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
WITNESS: ALTERNATIVE LIVINGS SERVICES, INC.
/s/ Xxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx (SEAL)
------------------------- ------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Vice President
WITNESS: BANK UNITED
in its capacity as Agent on behalf of the
Lenders
------------------------- By: /s/ (Seal)
----------------------------
Name:
Title:
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STATE/COMMONWEALTH OF WISCONSIN,
CITY/COUNTY OF WAUKESHA, TO WIT:
I HEREBY CERTIFY, that on this 8th day of December, 1998, before me,
the undersigned Notary Public of said State/Commonwealth, personally appeared
Xxxx X. Xxxxxxxxx, who acknowledged himself/herself to be the Vice President of
ALS Wisconsin Holdings, Inc., a Delaware corporation, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within
instrument, and acknowledged that he executed the same for the purposes therein
contained as the duly authorized Vice President of said corporation by signing
the name of the corporation by himself/herself as Vice President.
WITNESS my hand and Notarial Seal.
/s/ Xxxxx Xxxxxx
--------------------------------------
Notary Public
My Commission Expires: 5/26/02.
STATE/COMMONWEALTH OF WISCONSIN,
CITY/COUNTY OF WAUKESHA, TO WIT:
I HEREBY CERTIFY, that on this 8th day of December, 1998, before me,
the undersigned Notary Public of said State/Commonwealth, personally appeared
Xxxx X. Xxxxxxxxx, who acknowledged himself/herself to be the Vice President of
ALS Holdings, Inc, a Delaware corporation, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein contained as the
duly authorized Vice President of said corporation by signing the name of the
corporation by himself/herself as Vice President.
WITNESS my hand and Notarial Seal.
/s/ Xxxxx Xxxxxx
--------------------------------------
Notary Public
My Commission Expires: 5/26/02.
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STATE/COMMONWEALTH OF WISCONSIN,
CITY/COUNTY OF WAUKESHA, TO WIT:
I HEREBY CERTIFY, that on this 8th day of December, 1998, before
me, the undersigned Notary Public of said State/Commonwealth, personally
appeared Xxxx X. Xxxxxxxxx, who acknowledged himself/herself to be the Senior
Vice President of Alternative Living Services, Inc., a Delaware corporation,
known to me (or satisfactorily proven) to be the person whose name is subscribed
to the within instrument, and acknowledged that he executed the same for the
purposes therein contained as the duly authorized Senior Vice President of said
corporation by signing the name of the corporation by himself/herself as Senior
Vice President.
WITNESS my hand and Notarial Seal.
/s/ Xxxxx Xxxxxx
--------------------------------------
Notary Public
My Commission Expires: 5/26/02.
STATE/COMMONWEALTH OF ___________,
CITY/COUNTY OF ____________ , TO WIT:
I HEREBY CERTIFY, that on this _____ day of _____________, 19__, before
me, the undersigned Notary Public of said State/Commonwealth, personally
appeared ________________, who acknowledged himself/herself to be a
_______________ of Bank United, known to me (or satisfactorily proven) to be a
person whose name is subscribed to the within instrument, and acknowledged that
she executed the same for the purposes therein contained as the duly authorized
___________________ of said Bank by signing the name of the Bank by herself as
_______________.
WITNESS my hand and Notarial Seal.
------------------------------
Notary Public
My Commission Expires:
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