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Exhibit 10.30
FORM OF WORKING CAPITAL ASSURANCE AGREEMENT
(_______________________)
THIS AGREEMENT is made as of the 26th 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") and
Nationwide Health Properties, Inc., a Maryland corporation, with a principal
place of business at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, XX
00000 (the "Lessor").
W I T N E S S E T H:
WHEREAS, the Lessor and ______________________________________, a
Delaware limited liability company (the "LESSEE") have agreed to enter into that
certain Lease and Security Agreement, of even date herewith (the "Lease"),
relating to certain premises located in ____________________________ on property
more fully described in the Lease (the "Property"); 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 a Shortfall Funding Agreement dated of even date
herewith (the "Shortfall Agreement"), and a Deposit Pledge Agreement dated of
even date herewith (the "Deposit Pledge"), each among the Members (as defined in
Appendix 1 to the Shortfall Agreement) Lessee and BCC, Lessee has or will
deposit funds into the Working Capital Reserve (as defined in the Shortfall
Agreement) as provided in the Shortfall Agreement to fund certain operational
losses anticipated in connection with the Project; and
WHEREAS, the Lessee has entered into the Senior Credit Documents (as
defined in Appendix 1 to the Shortfall Agreement), whereby Lessee will receive
the proceeds of a loan in the amount of $_______ from Senior Lender (as defined
in Appendix 1 to the Shortfall Agreement), and which proceeds shall be deposited
in the Collateral Account (as defined in the Deposit Pledge Agreement) for the
benefit of Lessor, BCC and the Manager (as hereinafter defined) pursuant to the
terms of the Deposit Pledge Agreement and Shortfall Agreement; and
WHEREAS, Lessor and BCC Development and Management Co., a Delaware
corporation ("Developer") have entered into a Development Agreement of even date
herewith (the "Development Agreement") for the purpose of developing an assisted
care living facility on the Property (the "Facility"); and
WHEREAS, Lessee and ___________________________________, a Delaware
corporation (the "Manager") have entered into a Management Agreement of even
date herewith (the "Management Agreement") for the operation and management of
the Facility; and
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WHEREAS, the Developer and the Manager are wholly-owned subsidiaries of
BCC; and
WHEREAS, as additional security for all of the obligations of Lessee
under the Lease, including without limitation all Minimum Rent and Additional
Rent, as defined in the Lease (the "Lease Obligations"), the Lessor has
requested the execution and delivery of this Agreement; and
WHEREAS, because of the significant interest of BCC in the success and
economic viability of the Facility, BCC is willing to enter into this Agreement
to, among other matters, provide to the Lessor adequate assurances regarding the
funding of Shortfalls (as hereinafter defined) upon depletion of the Working
Capital Reserve.
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 intending to be legally bound hereby agree as
follows:
1. (a) Subject to the terms of Section 4 hereof, from the date hereof
until the complete payment and performance of the Lease Obligations and
obligations under the Senior Note, BCC unconditionally agrees to loan to the
Lessee, 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 all of its obligations (including, without limitation,
operating expenses, debt service and the Lease Obligations) due and payable
during any month exceed the gross revenues received by the Lessee during such
month (the "Shortfall"). Without limiting the generality of the definition of
Shortfall, Shortfalls shall also include, without limitation (i) costs, expenses
and damages related to Lessee's failure to pay Taxes (as defined in the Lease),
to maintain adequate insurance, to maintain any license necessary or desirable
to operate the Facility and indemnification and defense costs and expenses in
connection with litigation arising from or related to the Facility, (ii) all
costs of collection and enforcement incurred by Lessor in exercising any
remedies provided in the Lease, and (iii) payment in full of all rent,
additional rent and other amounts due to Lessor or third parties under the Lease
and the Senior Note (as defined in Appendix 1 to the Shortfall Agreement) in the
manner and at the time prescribed in the Lease and such Senior Note.
(b) Working Capital Loans shall be made pursuant to the Shortfall
Agreement. BCC hereby agrees that Lessor may make distributions of proceeds of
Working Capital Loans directly to Lessor or third party creditors of Lessee.
2. (a) Subject to the terms of Section 4 hereof, whether or not there
has occurred or is continuing any default, breach of condition or failure to
satisfy any condition 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, all Lease Obligations and
obligations under the Senior Note) when due. Without limiting the generality of
foregoing, BCC shall make Working Capital Loans to
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Lessee to fund Shortfalls even if Lessee fails to make contributions on a timely
basis to the Working Capital Reserve as provided in Section 1.01 of the
Shortfall Agreement or otherwise.
(b) Without limiting BCC's obligation to fund Shortfalls as herein
provided, BCC shall promptly notify Lessor should any proceedings under Title 11
of the United States Code (each a "Bankruptcy Proceeding", and the laws applied
during such Bankruptcy Proceedings being referred to herein as "Bankruptcy
Laws") be instituted by or against BCC, Lessee or any member owing equity
interests in Lessee (collectively a "Member"), and, upon request from Lessor,
shall immediately fund or otherwise cause to be paid to all creditors (exclusive
of Lessor) of the party subject to the Bankruptcy Proceeding all amounts due
such creditors. Further, BCC shall use all reasonable efforts (within the bounds
of applicable law) to cause such Bankruptcy Proceedings to be dismissed as soon
as possible.
3. BCC acknowledges that the covenants and agreements made hereunder by
BCC are being made to induce the Lessor to enter into and accept the Lease and
the Senior Credit Documents and enable the Lessee, upon the complete
disbursement of the Working Capital Reserve, to fulfill its obligations,
including, without limitation, the Lease Obligations and the obligations under
the Senior Note. Accordingly, it is expressly intended by BCC that the covenants
and agreements by BCC hereunder may be relied upon and enforced by the Lessor.
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 (i) the Senior Lender has advanced
the full principal amount of the Senior Note to or for the benefit of the Lessee
into the Working Capital Reserve and (ii) the full amount actually deposited by
Lessee in the Working Capital Reserve has been depleted. BCC shall make or
permit disbursements to Lessor from the Working Capital Reserve to meet any and
all Lease Obligations and obligations under the Senior Note when and as such
obligations become due and payable, pursuant to the terms and provisions of the
Deposit Pledge Agreement.
5. The obligations of BCC hereunder shall not be affected by the
termination, discontinuance, release or modification of any agreement from any
endorser, surety or guarantor of the Lease Obligations and the obligations under
the Senior Note. 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 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.
6. 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
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shall not be construed as a guaranty or surety agreement, but shall constitute
the separate and independent primary obligation of BCC to Lessor. This Agreement
shall be in addition to any guaranty or other security for the Lease Obligations
and obligations under the Senior Note, 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 Lease Obligations or obligations under the
Senior Note is rescinded or must otherwise be returned by the Lessor upon the
insolvency, bankruptcy or reorganization of the Lessee or otherwise, all as
though such payment had not been made.
7. (a) Without limiting BCC's obligation to provide the Working Capital
Loans, upon the occurrence of any default under any of the Lease Documents or
any Senior Credit Document, 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 notices of default by Lessee under the Lease or any other Lease
Document which Lessor sends to Lessee. 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
Equity Interests (as defined in Appendix 1 to the Shortfall Agreement) should
Lessee fail to timely make all required deposits into the Working Capital
Reserve pursuant to Section 1.01 of the Shortfall Agreement. In the event that
Lessee fails to make such deposits into the Working Capital Reserve and BCC
exercises its rights under Section 1.01 of the Shortfall Agreement by having
BCC, an Affiliate of BCC or a designee of BCC purchase all of the Equity
Interests, Lessor shall recognize as Lessee under the Lease and other Lease
Documents such designee as BCC may designate so long as such designee fully
funds the Working Capital Reserve as provided in the Shortfall Agreement and
otherwise executes and delivers to Lessor such documents, instruments,
affidavits and opinions as Lessor may reasonably request. In such event (but
subject to Section 10 of this Agreement), this Agreement and the obligations of
the parties hereunder (including without limitation BCC's obligation to fund
Shortfalls) shall remain in full force and effect.
8. 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: C/O BCC DEVELOPMENT AND MANAGEMENT CO.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attn: President
WITH COPIES TO: X/X XXX XXXXXXXXXXX XXX XXXXXXXXXX XX.
0000 Xxxxxx Xxxxx, Xxxxx 000
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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: Nationwide Health Properties, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Att: President and General Counsel
Xxxxxxx & Xxxxxxxx
0000 Xxx Xxxx
Xxxxxxx, XX 00000
Att: Xxxxxx X. Xxxxxxx, Xx.
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.
9. 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
in which the Facility is located, exclusive of such State's conflicts of laws
rules.
10. This Agreement and BCC's obligations hereunder shall automatically
terminate upon the purchase by BCC or a wholly-owned subsidiary of BCC (a "BCC
Affiliate") of all of the outstanding legal and beneficial interest in the
Lessee or substantially all of the assets of Lessee (and Lessor hereby consents
to such purchase of equity or assets); provided, however, if a BCC Affiliate
purchases all of the assets or the outstanding legal and beneficial interest in
Lessee, BCC shall provide to Lessor an unconditional guaranty of all Lease
Obligations, in form and substance reasonably satisfactory to Lessor. Lessor
shall have the right, but not the obligation, to terminate this Agreement if (i)
an Event of Default under the Lease remains uncured beyond any applicable cure
period or (ii) BCC fails to perform any of BCC's obligations or duties under
this Agreement.
11. (a) The Lessor covenants and agrees with BCC that (subject to
Bankruptcy Laws) the Lessor shall not consent to any assignment of the Lessee's
interest under the Lease (except to BCC or a BCC Affiliate) or any transfer of
substantially all of the Lessee's assets or any transfer of the outstanding
legal and beneficial interest in 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 this Agreement or the
Lease, (a) the Lessee or any Guarantor (as defined in the Lease) attempts to
assign its interest in the Lease (or transfer
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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 10.1.8 and Section 10.1.10 of the Lease
occurs with respect to Lessee or a Guarantor, each of the Lessor and BCC
covenant and agree that, subject to applicable law, the Lessor shall terminate
the Lease (in accordance with the terms thereof) and Lessor shall enter into a
new lease of the 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,
(y) BCC and its subsidiary 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 11.
(b) BCC agrees to indemnify, defend and hold Lessor, its
Affiliates, and their respective trustees, officers, directors, shareholders and
other representatives (the "Indemnified Parties") harmless from and against any
and all claims, demands, actions, causes of action, damages, losses,
liabilities, fees (including without limitation attorneys fees), costs
(including without limitation court costs) and expenses (collectively "Claims")
in any way or manner whatsoever related or attributed to or arising out of
suits, litigation or threatened suits or litigation by the Lessee or its members
in connection with (i) the rightful exercise of the rights, interests,
obligations and duties of Lessor or BCC under this Agreement, the Shortfall
Agreement, the Deposit Pledge Agreement and any related leasehold mortgages,
option agreements, equity pledge agreements, financing statements or other
security interests (the "Applicable Documents") and/or (ii) any acts or failures
to act, or the performance or assertion of any rights, duties or obligations, by
BCC or the Indemnified Parties with respect to the Applicable Documents;
provided, however, no Indemnified Party shall be held harmless or entitled to
indemnifications or defenses to the extent that the Claim was caused in whole or
in part by a breach of any obligation, covenant or agreement of the Indemnified
Party under Sections 5, 7 or 11 of this Agreement.
12. (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, the Lessee 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
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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.
(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) Representations and Warranties of BCC. BCC represents and warrants
that (i) this Agreement constitutes a legal, valid and binding obligation of
BCC, was duly authorized, executed and delivered by BCC, and is fully
enforceable against BCC in accordance with its terms (except as may be limited
by bankruptcy and creditor's rights laws and general principles of equity), (ii)
BCC is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, and is duly authorized and qualified to do
all things required of it under this Agreement; (iii) neither this Agreement nor
any agreement, document or instrument executed or to be executed in connection
herewith, violates the terms of any other agreement to which BCC is a party and
(iv) the recitals set forth above are hereby incorporated by this reference and
made a part of this Agreement, and BCC represents and warrants that such
recitals are true and correct. Any material breach by BCC of the representations
and warranties set forth herein shall be a default under this Agreement.
(h) Subordination. If for any reason whatsoever Lessee, any Affiliates
of Lessee, Developer or Manager now or hereafter becomes indebted to BCC or any
Affiliate of BCC, such indebtedness and all interest therein shall at all times
be subordinated in all respects to the obligations of BCC under this Agreement,
the obligations of Lessee under the Lease, the obligations of Lessee and the
Members to the Senior Lender under the Senior Credit Documents and the
obligations of Developer under the Development Agreement. For purposes of this
Agreement, the terms "Affiliate" and "Affiliates" shall have the meanings set
forth in that certain Second Series Master Investment Agreement (the "Master
Agreement") of even date herewith, by and between the Lessor, Developer,
Lessee's members and BCC.
(i) Counsel Fees. If Lessor or BCC brings any action to interpret or
enforce this Agreement, or for damages for any alleged breach thereof, the
prevailing party in any such action shall be entitled to reasonable attorney's
fees and costs as awarded by the court in addition to all other recovery,
damages and costs.
(j) Reliance by Lessor. BCC acknowledges that (i) BCC will benefit from
the execution and continued existence of the Lease, (ii) Lessor will be relying
upon BCC's assurances, representations, warranties, and covenants contained
herein and (iii) Lessor may take, or delay in
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taking or refuse to take any and all action with reference to the Lease
(regardless of whether the same might vary the risk or alter the rights,
remedies or recourses of BCC), including without limitation the settlement or
compromise of any amount allegedly due thereunder, the granting of indulgences
or extensions, and/or the release of or refusal to execute on any and all
collateral; provided, however, nothing contained in this Section shall limit or
modify the obligations of Lessor under this Agreement, including without
limitation Section 5 above.
(k) Waiver Provisions. BCC hereby knowingly, voluntarily and
unequivocally waives: (i) all notice of acceptance, protest, demand and
dishonor, presentment and demands of any kind now or hereafter provided for by
any statute or rule of law; (ii) any and all requirements that Lessor institute
any action or proceeding, or exhaust any or all of Lessor's rights, remedies or
recourses, against Lessee or anyone else as a condition precedent to bringing an
action against BCC under this Agreement; (iii) any defense arising by reason of
any disability, insolvency, bankruptcy, lack of authority or power, dissolution
or any other defense of Lessee, BCC, any guarantor of the Lease, or their
respective successors and assigns (even though rendering same void,
unenforceable or otherwise uncollectible); (iv) the benefits of any and all
express or implied waivers which may otherwise be available to or claimed by BCC
under the laws of the State in which the Property is located; (v) any claim BCC
might otherwise have against Lessor by virtue of Lessor's invocation of any
right, remedy or recourse permitted it hereunder or under the Lease, any letter
of credit agreement, any guaranty, or otherwise available at law or equity; (vi)
any failure, omission, delay or lack on the part of Lessor or Lessee to enforce,
assert or exercise any right, power or remedy conferred on Lessor or Lessee in
the Lease, or any action on the part of Lessor granting a waiver, indulgence or
extension to Lessee or any other party; (vii) the voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or substantially all
the assets of Lessee or BCC, marshaling of assets or liabilities, receiverships,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar proceeding
affecting Lessee, BCC, or their respective assets, or the disaffirmance of the
Lease in any such proceeding; (viii) any release or other reduction of the Lease
Obligations arising as a result of the expansion, release, substitution or
replacement (whether or not in accordance with terms of the Lease) of the
Premises or any portion thereof; and (ix) any defense or claim available to BCC
as a result of BCC's exercise of its right to purchase the Premises (or any
portion thereof) pursuant to the Master Agreement or that certain Right of First
Refusal Agreement of even date herewith by and between Lessor and BCC; provided,
however, nothing contained in this Section shall limit or modify the obligations
of Lessor under this Agreement, including without limitation Section 5 and
Section 11(a) above.
(l) Application of Agreement. This Agreement shall apply
notwithstanding any extension or renewal of the Lease, or any holdover following
the expiration or termination of the Term or any renewal or extension of the
Term (as defined in the Lease).
(m) Financial Reporting. Within forty-five (45) days of the end of each
of the first three quarters of the fiscal year of BCC, BCC shall deliver the
quarterly consolidated or combined, as applicable, financial statement of BCC to
Lessor. Within one hundred (100) days of the fiscal year end of BCC, BCC shall
deliver to Lessor the annual consolidated or combined, as applicable, financial
statement of BCC audited by a reputable certified public accounting firm. If BCC
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is or becomes subject to any reporting requirements of the Securities and
Exchange Commission (the "SEC") during the Term, BCC shall, in lieu of providing
the financial statements described in the first two sentences of this
Subsection, concurrently deliver to Lessor such reports as are delivered to the
SEC pursuant to applicable securities laws. All of the reports and statements
required hereby shall be prepared in accordance with GAAP and BCC's accounting
principles consistently applied and shall be accompanied by a statement signed
by the President, Chief Financial Officer, Principal Accounting Officer,
Controller, Executive Vice President, Development, or other officer of BCC as
approved by Lessor in writing, certifying that said reports are true, correct
and complete in all material respects after due inquiry.
(n) Leasehold Mortgage. To secure the obligations of the Lessee under
the Shortfall Agreement, Lessee has granted to BCC a leasehold mortgage (the
"Leasehold Mortgage") encumbering Lessee's interest in the Lease. BCC shall,
concurrently with the execution and delivery of this Agreement, execute and
deliver to Lessor an escrow letter and satisfaction instrument in the form
attached hereto as Exhibit A removing the Leasehold Mortgage of record, which
satisfaction instrument may only be recorded as provided in such escrow letter.
BCC shall provide notice to Lessor if BCC shall desire to institute any
foreclosure proceedings by BCC under the Leasehold Mortgage, and BCC shall not
institute such proceedings without the prior written consent of the Lessor,
which consent shall not be unreasonably withheld, conditioned or delayed;
provided, however, BCC agrees that Lessor may condition consent to such
foreclosure on the agreement by BCC that all personal property leased to Lessee
under the Lease will remain in the Facility and that such foreclosure will not
materially or unreasonably disrupt or interrupt the operation of the Facility.
(o) Management Agreement. BCC acknowledges that BCC is the sole
shareholder of the Manager. As sole shareholder of the Manager, BCC agrees and
shall cause the Manager to agree, that in the case of an Event of Default under
the Lease (after applicable cure periods): (i) Lessor shall have the right to
terminate the Management Agreement and Manager's rights to manage the Facility,
(ii) Lessor shall have the right to require the Manager to cooperate and assist
in all reasonable ways during any transition of management of the Facility after
such termination, (iii) during any such interim management, Lessor shall have
the right to approve or veto all operation budgets and (iv) Manager shall
otherwise take such actions or refrain from taken such actions as Lessor may
reasonably request.
(p) Confidentiality. Lessor hereby covenants and agrees, on behalf of
Lessor and all Affiliates of Lessor, that all Confidential Information (as
hereinafter defined) will be held and treated by Lessor, Lessor's Affiliates and
the agents and employees of Lessor and its Affiliates in confidence and will
not, except as explicitly consented to by BCC in its sole discretion, be
disclosed by Lessor, its Affiliates or the agents and employees of Lessor or its
Affiliates, in any manner whatsoever, in whole or in part, and will not be used
by Lessor, its Affiliates or the agents and employees of Lessor or its
Affiliates other than in connection with the Other Facilities (as defined in
Appendix 1 to the Shortfall Agreement). Lessor further agrees on behalf of
itself and its Affiliates (i) to disclose Confidential Information only to
(A) Lessor's employees who need to know the Confidential Information in
connection with the Facility and (B) potential or actual participants or
assignees of Lessor's interest in the Lease, the other Lease Documents, any
other documents related thereto and the Facility, but only after receiving from
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such potential or actual participants or assignees an agreement whereby the
recipient of such Confidential Information agrees to be bound by the provisions
hereof relating to confidentiality and non-disclosure, (ii) to employ all
reasonable procedures to ensure that neither the Lessor, nor its Affiliates,
agents, employees or potential or actual participants or assignees of Lessor or
its Affiliates use the Confidential Information in connection with trading in
the securities of BCC or communicate such information to others who so trade in
such securities and (iii) that any Confidential Information not returned to BCC,
the Management Firm or Lessee, as applicable, will be held by Lessor and kept
subject to the terms of this Section or destroyed. As used in this Section,
(i) "Confidential Information" means all information and data containing or
otherwise reflecting information concerning BCC or any Affiliate of BCC, or any
Other Facility, which is not available to the general public but is material to
the business, financial condition, or prospects of BCC and its Affiliates or
otherwise would be material to making an investment decision with respect to the
publicly traded securities of BCC, together with analyses, compilations, studies
or other documents, whether prepared by BCC, Lessor or any other Entity (as
defined in Appendix 1 to the Shortfall Agreement), which contain or otherwise
reflect such information and (ii) "Affiliate" of any Entity (the "Subject")
shall mean (x) any Entity which, directly or indirectly, controls or is
controlled by or is under common control with the Subject, (b) any Entity or
person owning, beneficially, directly or indirectly, five percent or more of the
outstanding capital stock, shares or equity interests of the Subject or (c) any
officer, director, employee, general partner, member, manager or trustee of
either the Subject or any Entity controlling, controlled by or under common
control with the Subject (excluding trustees and persons serving in similar
capacities who are not otherwise an Affiliate of the Subject); provided,
however, Confidential Information shall in no event include information that has
become public through no wrongful action of Lessor or the Member or matters for
which the Lessor is required to disclose pursuant to Laws.
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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: LESSOR:
-------- --------
NATIONWIDE HEALTH PROPERTIES, INC.
_____________________________________ By: _______________________________
Name: Name:
Title:
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