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Exhibit 10.52
FORM OF WORKING CAPITAL ASSURANCE AGREEMENT
(______________________)
THIS AGREEMENT is made as of the _______________________, by and
between BALANCED CARE CORPORATION, a Delaware corporation, with a principal
place of business at 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxxx, XX 00000
("BCC") and ______________________, a Florida corporation, with a principal
place of business at 0000 Xxxx Xxxxx Xxxxx Xxxx., Xxxx Xxxx 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 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 a Shortfall Funding Agreement dated of even date
herewith (the "Shortfall Agreement") between Lessee, the Members (as defined in
the Shortfall Agreement) and BCC, Lessee has deposited as of the date hereof in
a collateral bank account (the "Cash Collateral Account") for the benefit of
Lessor the sum of $_______ (the "Cash Collateral"), and will on or before April
30, 1998, cause to be issued and delivered to Lessor an irrevocable standby
letter of credit in the amount of $_______ (the "LC") for the benefit of Lessor
and payable to Lessor in form and issued by an institution satisfactory to
Lessor in its sole discretion (such LC to replace the initial funding in the
Cash Collateral Account and to increase the total amount of capital available
for Lessee to fund operations and pay sums owing to Lessor under the Lease and
other Lease Documents), which shall be used to fund operational losses
anticipated in connection with the Facility (the LC, together with sums
deposited in the Cash Collateral Account, are referred to herein as the "Working
Capital Reserve"); and
WHEREAS, BCC has agreed that, in the event that Lessor for any reason
whatsoever is unable to obtain funds pursuant to the LC or in the Cash
Collateral Account, or if the LC and Cash Collateral have been depleted, BCC
will unconditionally fund operational losses to the Lessee pursuant to the
Shortfall Agreement; and
WHEREAS, as additional security for the obligations of Lessee under the
Lease (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
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consideration of the covenants and agreements set forth herein, the parties
hereto agree as follows:
1. (a) 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 its obligations (including, without limitation, operating
expenses, debt service and the obligations of Lessee under the Lease) due and
payable during any month exceed the gross revenues received by the Lessee during
such month (the "Shortfall"). Working Capital Loans from BCC to Lessee shall be
made without regard to any default, breach of condition, bankruptcy of Lessee or
failure to satisfy any condition or obligation under the Shortfall Agreement.
BCC shall, without further direction, advance to the Lessee an amount equal to
the Shortfall within three (3) days after demand by Lessor or Lessee in the form
of Working Capital Loans so that the Lessee is able to meet all of its working
capital obligations (including, without limitation, the obligations of Lessee
under the Lease) when due. 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 enable the Lessee to fulfill its working capital
obligations, including, without limitation, the obligations of Lessee under the
Lease. Accordingly, it is expressly intended by BCC that the covenants and
agreements by BCC hereunder may be relied upon and enforced by the Lessor. In
furtherance of the foregoing, Lessor shall have the right to directly request
from BCC any advance needed to satisfy such Shortfalls, and upon such request
the same shall be funded by BCC.
(b) The obligations of BCC contained herein are absolute and
unconditional obligations to Lessor, and no provision herein or any other
agreement to which BCC is a party (including without limitation the Shortfall
Agreement) shall be construed to the contrary. Without limiting the generality
of the foregoing, should any conflict exist between the provisions of the
Shortfall Agreement and the provisions of this Agreement, the provisions of this
Agreement shall control.
2. Notwithstanding any provision 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
to be deposited by Lessee in the Working Capital Reserve has been depleted, by
drawing down on the LC or by making withdrawals from the Cash Collateral
Account, as appropriate; provided, however, should funds in the Working Capital
Reserve available in the Cash Collateral Account or through drawing down on the
LC not be available to fund the working capital needs of Lessee for any reason
whatsoever, BCC shall nonetheless have the obligation to fund Shortfalls as
herein provided. When the working capital needs of Lessee require such action,
Lessor shall make demand to draw down on the LC or withdraw sums from the Cash
Collateral Account, as appropriate, until fully depleted to fund such working
capital needs of Lessee.
3. (a) The Lessor shall not amend, modify or otherwise alter the
Lease or any other Lease Document (as defined in Appendix 1 to the Shortfall
Agreement) without BCC's prior written consent, in each instance, which consent
shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the
previous sentence, the obligations of BCC hereunder shall not be
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affected by the termination, discontinuance, release or modification of any
agreement from any endorser, surety or guarantor of the obligations of Lessee
under the Lease.
(b) In addition, the Lessor hereby covenants and agrees with
BCC that, except in connection with the exercise or 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.
4. 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 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 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.
5. 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 provided in the Lease
Documents, and, to the extent permitted by law, enter upon the Facility, 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 under the Lease or any other Lease Document for which
Lessor becomes aware; provided, however, such notice shall only be required if
Lessor is otherwise obligated to give Lessee notice of such Default. The Lessor
agrees to accept any remedy performed by BCC or any affiliate of BCC as if the
same had been performed by the Lessee.
6. 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
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Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
IF TO THE LESSOR: Shippensburg ALF, Inc.
0000 Xxxx Xxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, XX 00000
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.
7. 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 State in which the Leased Property is located, excluding its conflicts of
laws.
8. This Agreement and BCC's obligations hereunder shall automatically
terminate upon the purchase by BCC or an affiliate of BCC of all of the issued
and outstanding equity of the Lessee or substantially all of the assets of
Lessee; provided, however, such purchases may only be made in accordance with
the terms and conditions of the Lease and other Lease Documents.
9. 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 an affiliate of BCC) 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 25.1.3 of the Lease
occurs with respect to Lessee, the Lessor covenants and agrees with BCC that,
subject to applicable law, the Lessor shall use reasonable efforts to 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,
provided, that BCC executes and delivers a guaranty of any such lease, in form
and substance acceptable to 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)
the new lessee 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 upon 3
days after written demand 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.
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10. (a) Financial Information. Lessor reserves the right to
reasonably require financial information (including tax returns, detailed cash
flow information and contingent liability information) of BCC at such times as
Lessor shall deem reasonably necessary, and BCC shall promptly provide such
information to Lessor in a form reasonably satisfactory to Lessor.
(b) 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.
(c) Amendments. This Agreement may be modified or amended only
by a written instrument executed by the Lessor, the Lessee and BCC.
(d) 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.
(e) 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.
(f) 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.
(g) Successors and Assigns. This Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns.
(h) Third Party Beneficiary. The parties hereto intend and
agree that Lessor shall be deemed a third party beneficiary of the Shortfall
Agreement with respect to the obligation of BCC to provide Working Capital Loans
to Lessee; and in that regard, Lessor shall be permitted to enforce against BCC
such provisions in the Shortfall Agreement requiring BCC to advance such Working
Capital Loans to Lessee; provided, however, Lessor shall have no obligations
whatsoever under, or liability with respect to, the Shortfall Agreement.
(g) Cooperation In Bankruptcy. For purposes of this
Subsection, the following terms shall have the following meanings: The term
"Bankruptcy Code" shall mean the Bankruptcy Reform Act of 1978, as amended, and
codified as 11 U.S.C. Section 101 et seq. and the term "Reorganization" shall
mean any voluntary or involuntary dissolution, execution sale, liquidation,
winding-up, or bankruptcy, insolvency, receivership or other statutory or common
law
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proceedings or arrangements involving Lessee or any equity owner of Lessee (a
"Member") or any assignment for the benefit of creditors or any marshaling of
the assets or liabilities of Lessee or any Member or any sale of all or
substantially all of the assets of Lessee or any Member. In the event (i) of a
Reorganization of Lessee or any Member of Lessee, and (ii) in connection with
such Reorganization, that the Lessee attempts to reject or otherwise invalidate
the Asset Purchase Option (as defined in the Shortfall Agreement) or any Member
attempts to reject or otherwise invalidate the Option (as defined in the Option
Agreement dated as of March 31, 1998 among BCC and the Members), BCC agrees to
cooperate, subject to applicable laws, with Lessor with respect to the
Reorganization, which cooperation shall include, without limitation, voting with
Lessor regarding any plan of Reorganization proposed or endorsed by Lessor in
accordance with the Bankruptcy Code that results in BCC or an Affiliate of BCC
controlling the Facility; provided, however, Lessor shall (subject to the
provisions of applicable law) in any such Reorganization only endorse or proffer
such plans, and take such actions, that require the equity ownership of the
Lessee or the assets of the Lessee be acquired by BCC or a wholly-owned
subsidiary of BCC (with BCC executing and delivering a guaranty of all
obligations of such subsidiary owed to Lessor, in form and substance acceptable
to Lessor).
(h) Agreement Regarding Acquisition of Equity or Assets of
Lessee. Without in any manner limiting the obligations and duties of BCC under
that certain Amended and Restated Subordination and Standstill Agreement dated
as of March 31, 1998, in favor of Lessor, BCC shall use its best efforts in the
case of a foreclosure of the Lease pursuant to its Leasehold Mortgage or the
execution by BCC on the equity interests of the Members under that certain
Equity Pledge Agreement dated as of March 31, 1998 executed by the Members and
Lessee in favor of BCC to acquire all of the assets of or equity interests in
Lessee (as the case may be) at the time of such foreclosure or execution.
(i) Failure to Fund Working Capital Reserve. In connection
with the development of the Facility, the Lessee is obligated to contribute to
the Cash Collateral Account sufficient capital to fund pre-opening and start up
costs for the Facility, all as more fully described in the Shortfall Agreement.
As of the date hereof, the Lessee has deposited cash into the Cash Collateral
Account in the amount of $312,500, and is obligated pursuant to Section 27 of
the Development Agreement to deliver to Lessor the LC in the amount of $625,000
(where upon, Lessor shall return to Lessee the amount of cash placed as of the
date hereof in the Cash Collateral Account). In the event for any reason
whatsoever that the Lessee does not deliver to Lessor by April 30, 1998, the LC
in the amount of $625,000 required pursuant to Section 27 of the Development
Agreement, then BCC shall be unconditionally obligated to (i) exercise (or cause
a wholly-owned subsidiary to exercise) BCC's option to purchase the equity
ownership interest of the Lessee pursuant to that certain Option Agreement of
even date herewith among BCC and the equity owners of Lessee and either (A)
enter into direct a lease for the Facility with Lessor on the terms and
conditions described in the Lease or (B) cause a wholly-owned subsidiary of BCC
to enter into a lease for the Facility with Lessor on the terms and conditions
described in the Lease (in which event BCC shall provide to Lessor an
unconditional guaranty of all obligations of such wholly-owned subsidiary on
terms and conditions satisfactory to Lessor) and (ii) deliver to Lessor the LC
as required in Section 27 of the Development Agreement in the amount of
$625,000.
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(j) Financial Information/Confidential Information. (a) So
long as BCC is subject to reporting requirements under the Securities Act of
1934, as amended (the "'34 Act"), BCC shall provide to Lessor (in lieu of any
other financial reporting required by Lessor under the Lease Documents with
respect to BCC and its Affiliates) all financial information and financial data
that BCC is required to file with the Securities and Exchange Commission (the
"SEC") as provided in the '34 Act and the regulations related thereto, at such
times as BCC is required to file such information and data with the SEC. Should
BCC or any Affiliate of BCC purchase the equity interests of the Tenant or
receive an assignment of the Lease from the Tenant, BCC shall comply with all
reporting requirements referenced in Section 5 of the Lease.
(b) 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 Related Transactions (as defined in Section 36 of the
Development 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 for purposes as
determined by Lessor 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 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.
(c) 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 facility in a Related Transaction, 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) "Affiliates" has the meaning ascribed to such term in the Development
Agreement dated as of March 31, 1998 (the "Development Agreement") among Lessor,
BCC Development & Management Co. a Delaware corporation and Senior Care
Operators of Shippensburg, LLC, a Delaware limited liability company.
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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:
___________________________________
_____________________________________ By:________________________________
Name: Name:
Title:
S - 1
[Working Capital Assurance Agreement]
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Omitted Exhibits
Exhibits Description
-------- -----------
1.1A Real Property Description
1.1B Permitted Encumbrances
2.1 Conditions Precedent
3.1 Budget
3.5 Replacement Reserve Procedures
5.1 Compliance Certificate
19.1(d) Off-Site Construction Agreements
19.1(t) Beneficial Interest of Parties
19.1(w) Permits
19.1(w)(1) Unsatisfied Conditions re Off-Site Improvements
24.b Operating Expenses and Operating Revenues
27.8A Notice of Lease
27.8B Assignment of Leases, Rents and Receivables
27.8C Assignment of Leases, Rents and Receivables re Cross-Coll
