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Exhibit 10.133
LETTER OF CREDIT AGREEMENT (MIGRATORY)
This LETTER OF CREDIT AGREEMENT (MIGRATORY) (this "Agreement")
is dated as of , 2000, by and between NATIONWIDE HEALTH PROPERTIES, INC.,
a Maryland corporation, and MLD DELAWARE TRUST, a Delaware business trust
(collectively, "Beneficiary"), and those entities listed as LC Party on Schedule
1 hereto which is incorporated herein by this reference (collectively, "LC
Party").
R E C I T A L S
A. The Beneficiary, as landlord, and LC Party, as tenant, have
entered into that certain Master Lease and Security Agreement (Migratory) dated
as of July 1, 2000 (the "Lease") whereby Beneficiary has leased to LC Party
certain property as more particularly described therein. All initially
capitalized terms used herein and not otherwise defined herein shall have the
same meanings given such terms in the Lease.
B. To secure LC Party's performance under the Lease, Balanced
Care Corporation, a Delaware corporation, and those entities listed as Guarantor
on Schedule 1 (collectively "Guarantor"), have executed that certain Guaranty of
Master Lease and Security Agreement (Migratory) and Letter of Credit Agreement
(Migratory) (the "Guaranty") of even date herewith guarantying the full
performance by LC Party under the Lease and this Agreement.
C. LC Party acknowledges and agrees that this Agreement is
given as an inducement to Beneficiary to enter into the Lease and that
Beneficiary would not enter into the Lease without the execution and delivery by
LC Party of this Agreement.
A G R E E M E N T
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:
1. Letter of Credit.
(a) Form of Letter of Credit. On or before the date required
under Section 11 of the Lease, LC Party, at LC Party's expense, shall
cause a bank or financial
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institution approved by Beneficiary in its reasonable discretion
subject to the criteria set forth in Section 3(a) (the "Issuer") to
issue an irrevocable letter of credit in the form of Exhibit A
attached hereto, with such modifications as the Issuer may request that
are acceptable to Beneficiary in its reasonable discretion (the
"Letter of Credit") naming Beneficiary, as beneficiary. The Letter of
Credit shall partially secure the performance by LC Party as tenant
under the Lease and the performance by Guarantor under the Guaranty. As
used herein, "Letters of Credit" and "Letter of Credit" shall include
the Letter of Credit and all Supplemental Letters of Credit (as
hereinafter defined) and Replacement Letters of Credit (as hereinafter
defined).
(b) Letter of Credit Amount. The aggregate amount of all
issued and outstanding Letters of Credit shall, at all times during the
term hereof as provided in Section 5, be One Million Two Hundred
Thirty-four Thousand Dollars ($1,234,000), as adjusted from time to
time pursuant to Section 11 of the Lease (as so adjusted, the "Letter
of Credit Amount"). Each Letter of Credit shall be for a term of not
less than twelve (12) months and a Letter of Credit shall be in effect
for at least thirty (30) days after the date upon which the Term
expires.
(c) Replacement Letter of Credit. The term "Reissuance Date"
shall mean a date thirty (30) days prior to the expiration date of the
then issued and outstanding Letter of Credit. On or before each
Reissuance Date, LC Party, at LC Party's expense, shall cause the
Issuer to issue a replacement of the then issued and outstanding Letter
of Credit, which replacement shall be in the form of Exhibit A hereto,
with such modifications as the Issuer may request that are acceptable
to Beneficiary in its reasonable discretion (the "Replacement Letter of
Credit"). The Replacement Letter of Credit shall be effective
immediately as of the expiration of the then issued and outstanding
Letter of Credit.
(d) Supplemental Letter of Credit. If all or any portion of
any Letter of Credit is drawn against by Beneficiary as a result of
Beneficiary's proper exercise of its rights under the Lease, LC Party
shall, within two (2) business days after demand by Beneficiary, order
Issuer to issue to Beneficiary, at LC Party's expense, a replacement or
supplementary Letter of Credit in the form of Exhibit A hereto, with
such modifications as the Issuer may request that are acceptable to
Beneficiary in its reasonable
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discretion (a "Supplemental Letter of Credit") such that at all times
during the term of this Agreement, Beneficiary shall have the ability
to draw on one or more Letters of Credit totaling, in the aggregate,
the Letter of Credit Amount. If Issuer does not issue to Beneficiary
such Supplemental Letter of Credit within ten (10) business days after
Beneficiary's demand to LC Party, it shall be a default by LC Party
under this Agreement and an Event of Default under the Lease.
(e) Replacement of Cash Security Deposit. Beneficiary shall
return to LC Party any cash security deposit held with respect to the
Lease immediately upon receipt of a photocopy of the initial Letter of
Credit required to be delivered under Section 11 of the Lease, as
signed by the Issuer, together with a signed letter agreement from the
Issuer stating that the original of such Letter of Credit will be
delivered to Beneficiary by overnight courier upon receipt by LC Party
of the cash security deposit.
2. Beneficiary's Right to Draw.
(a) General. Beneficiary shall be entitled to draw on each
Letter of Credit one or more times for the purpose of compensating
Beneficiary for any amounts due to Beneficiary under the Lease by
reason of an Event of Default occurring under the Lease. Any amount
drawn by Beneficiary shall not be deemed: (i) to fix or determine the
amounts to which Beneficiary is entitled to recover under the Lease,
the Guaranty or otherwise; (ii) to waive or cure any default under the
Lease or the Guaranty; or (iii) to limit or waive Beneficiary's right
to pursue any remedies provided for in the Lease or the Guaranty.
(b) Replacement Letters of Credit. Upon the issuance and
delivery to Beneficiary of a Replacement Letter of Credit, Beneficiary
shall have the right to draw solely on such Replacement Letter of
Credit and Beneficiary shall have no right to draw against the Letter
of Credit which is replaced by such Replacement Letter of Credit. If LC
Party fails to cause the issuance of a Replacement Letter of Credit by
the Reissuance Date, then Beneficiary shall, in addition to all other
rights and remedies available at law or equity, have the right to draw
the full amount of the then issued and outstanding Letters of Credit.
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(c) Supplemental Letters of Credit. If LC Party fails to cause
the issuance of any Supplemental Letter of Credit as required pursuant
to Section 1(d) hereof, then Beneficiary shall, in addition to all
other rights and remedies available at law or equity, have the right to
draw the full amount of the then issued and outstanding Letters of
Credit.
3. Replacement of Issuer.
(a) Supplemental and Replacement Letters of Credit. All
Letters of Credit, including Supplemental Letters of Credit and
Replacement Letters of Credit, shall be issued by a financial
institution acceptable to Beneficiary in the exercise of its reasonable
discretion, provided, however, Beneficiary shall have no obligation to
approve any financial institution which does not either (i) have
capital and surplus, as determined in accordance with rules promulgated
by the appropriate government agency regulating such Issuer, in excess
of One Billion Dollars ($1,000,000,000) or (ii) have a rating by
Standard & Poors of A-1, or by Xxxxx'x of P-1 (the standards set forth
in the foregoing clauses (i) and (ii) referred to individually as a
"Credit Standard" and collectively as the "Credit Standards"). Any such
replacement financial institution shall be deemed to be the "Issuer"
hereunder.
(b) Creditworthiness of Issuer. In the event the Issuer at any
time does not meet at least one of the Credit Standards or if Issuer
shall admit in writing its inability to pay its debts generally as they
become due, shall file a petition in bankruptcy or a petition to take
advantage of any insolvency statute, shall consent to the appointment
of a receiver or conservator of itself or the whole or any substantial
part of its property, shall file a petition or answer seeking
reorganization or arrangement under the Federal Bankruptcy Laws, shall
have a receiver or conservator appointed for it, or if, in
Beneficiary's reasonable determination, Issuer is not sufficiently
creditworthy or shall become subject to operational supervision by any
federal or state regulatory authority, then within thirty (30) days
after a written demand by Beneficiary, LC Party shall obtain a
Replacement Letter of Credit from another financial institution meeting
the criteria set forth in Section 3(a) hereof, whereupon such
replacement financial institution shall be deemed to be the "Issuer"
under this Agreement.
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4. Successors and Assigns.
(a) The rights of Beneficiary under this Agreement and any
outstanding Letter of Credit shall be transferrable and assignable to
any assignee of, or successor in interest to, Beneficiary's rights
under the Lease (including any assignment for security purposes of
Beneficiary's rights under the Lease, this Agreement or any Letter of
Credit) and the term "Beneficiary" as used herein shall refer to each
entity comprising Landlord and to each successor and assign of all or
any portion of its interest under the Lease. LC Party and Issuer shall
accept and agree to tender performance of their obligations hereunder
and under any Letter of Credit to any such successor or assign of which
LC Party and Issuer have been given written notice of by Beneficiary.
(b) LC Party shall not have the right to assign its rights or
duties under this Agreement without the prior written consent of
Beneficiary, which consent may be granted or withheld in Beneficiary's
sole discretion.
5. Termination of Obligation to Provide Letters of Credit.
The obligation of LC Party to cause the issuance of any
Letters of Credit shall terminate on the date which is thirty (30) days after
the date upon which the Lease Term expires, other than an expiration or
termination of the Lease Term pursuant to an Event of Default.
6. Attorneys' Fees.
If any party 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 attorneys' fees and costs as
awarded by the court in addition to all other recovery, damages and costs.
7. Miscellaneous.
All terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. The headings in this Agreement are for the convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
This Agreement and all rights and duties of LC Party and Beneficiary, arising
from or relating in any way to the subject matter of this Agreement shall be
governed by, construed and enforced in accordance with the laws of the State of
California, without
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regard to the conflict of law rules of such State, except to the extent provided
expressly to the contrary in the Lease. This Agreement may be executed in
separate counterparts, each of which shall be considered as original when such
party has executed and delivered to the other one or more copies of this
Agreement. The Recitals set forth above are hereby incorporated by reference and
made a part hereof. LC Party represents and warrants that the Recitals are true
and correct in all material respects.
8. Notices.
All notices, requests and demands to be made hereunder to the
parties hereto shall be made in writing to the addresses set forth below and
shall be given by any of the following means: (a) personal service; (b)
electronic communication, whether by telex, telegram or telecopying; (c)
certified or registered mail, postage prepaid, return receipt requested; or (d)
nationally recognized courier or delivery service. Such addresses may be changed
by notice to the other parties given in the same manner as provided above. Any
notice, demand or request sent pursuant to either subsection (a), (b) or (d)
hereof shall be deemed received upon the actual delivery thereof, and, if sent
pursuant to subsection (c) shall be deemed received five (5) days following
deposit in the mail. Refusal to accept delivery of any notice, request or demand
shall be deemed to be delivery thereof. If LC Party is not an individual, notice
may be made on any officer, general partner or principal thereof. Notice to any
one co-LC Party shall be deemed notice to all co-LC Parties. In the event
Beneficiary notifies LC Party of the name and address of Beneficiary's lender,
LC Party shall cause a copy of all notices delivered to Beneficiary by LC Party
to be concurrently therewith delivered to such lender.
If to Beneficiary: c/o Nationwide Health Properties, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, General Counsel
Facsimile No.: (000) 000-0000
with a copy to: O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
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If to LC Party: c/o Balanced Care Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, General Counsel
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxxxxxxx & Xxxxxxxx, LLP
Xxxxx X. Xxxxxx Building
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
9. Joint and Several Obligations. The liability and obligations of each
entity comprising LC Party hereunder shall be joint and several.
[Signatures begin on next page.]
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EXECUTED as of the date first set forth above.
"LC PARTY"
C&G HEALTHCARE AT TALLAHASSEE, L.L.C., a Delaware limited
liability company
By:/s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
C&G HEALTHCARE AT PENSACOLA, L.L.C., a Delaware limited
liability company
By:/s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
ELDER CARE OPERATORS OF YORK, LLC, a Delaware limited
liability company
By:/s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
ELDER CARE OPERATORS OF LAKEMONT FARMS, LLC, a Delaware
limited liability company
By:/s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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ELDER CARE OPERATORS OF XXXXXXXX, LLC, a Delaware limited
liability company
By:/s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
ELDER CARE OPERATORS OF AKRON, LLC, a Delaware limited
liability company
By:/s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
"BENEFICIARY"
NATIONWIDE HEALTH PROPERTIES, INC., a Maryland corporation
By:
Name:
Title:
MLD DELAWARE TRUST,
a Delaware business trust
By:
Name:
Title:
ACCEPTED
AND
AGREED TO: "GUARANTOR"
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BALANCED CARE CORPORATION,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President,
Legal Counsel
and Assistant Secretary
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BALANCED CARE AT TALLAHASSEE, INC., a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
BALANCED CARE AT PENSACOLA, INC.,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
BALANCED CARE AT YORK, INC.,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
BALANCED CARE AT LAKEMONT FARMS,
INC., a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
BALANCED CARE AT XXXXXXXX, INC.,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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BALANCED CARE AT AKRON, INC.,
a Delaware corporation
By:/s/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President and Secretary
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SCHEDULE 1 TO LC AGREEMENT
LC Party and Guarantor Entities
LC Party:
1. C&G Healthcare at Tallahassee, L.L.C., a Delaware limited liability
company
2. C&G Healthcare at Pensacola, L.L.C., a Delaware limited liability
company
3. Elder Care Operators of York, LLC, a Delaware limited liability company
4. Elder Care Operators of Lakemont Farms, LLC, a Delaware limited
liability company
5. Elder Care Operators of Xxxxxxxx, LLC, a Delaware limited liability
company
6. Elder Care Operators of Akron, LLC, a Delaware limited liability
company
Guarantor:
1. Balanced Care Corporation, a Delaware corporation
2. Balanced Care at Tallahassee, Inc., a Delaware corporation
3. Balanced Care at Pensacola, Inc., a Delaware corporation
4. Balanced Care at York, Inc., a Delaware corporation
5. Balanced Care at Lakemont Farms, Inc., a Delaware corporation
6. Balanced Care at Xxxxxxxx, Inc., a Delaware corporation
7. Balanced Care at Akron, Inc., a Delaware corporation
Schedule 1 - 1
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EXHIBIT A TO LC AGREEMENT
[NAME] BANK
IRREVOCABLE LETTER OF CREDIT NO.
DATE:
EXPIRATION DATE:
c/o Nationwide Health Properties, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Ladies and Gentlemen:
We hereby establish our Irrevocable Letter of Credit in favor for the
account of ("Customer") available by your draft(s) on us at sight in an amount
not to exceed a total of Dollars ($ ) when accompanied the following documents:
1. A certificate which on its face appears to have been executed by an
officer of Nationwide Health Properties, Inc., a Maryland corporation
("Beneficiary Agent"), stating the amount which Beneficiary Agent is drawing and
that one or more of the following events has occurred: (i) an Event of Default
has occurred under the Master Lease and Security Agreement (Migratory) dated as
of July 1, 2000 (the "Lease") between Beneficiary Agent and MLD Delaware Trust,
a Delaware business trust, collectively as landlord (collectively,
"Beneficiary"), and certain Affiliates (as defined in the Lease) of BCC (as
defined below), collectively as tenant; (ii) a default under that certain
Guaranty of Master Lease and Security Agreement (Migratory) and Letter of Credit
Agreement (Migratory) dated July 1, 2000, executed by Balanced Care Corporation,
a Delaware corporation ("BCC") and certain Affiliates thereof as identified
therein, as guarantors for the benefit of Beneficiary; or (iii) a default has
occurred under that certain Letter of Credit Agreement (Migratory) dated July 1,
2000 by and between Customer and Beneficiary.
EXHIBIT X-0
00
0. The original Letter of Credit must accompany all drafts unless a
partial draw is presented, in which case the original must accompany final
draft.
This Letter of Credit will be duly honored by us at sight upon delivery
of the statement set forth above without inquiry as to the accuracy of such
statement and regardless of whether Customer disputes the content of such
statement.
This Letter of Credit may be transferred or assigned by Beneficiary to
any successor or assign of Beneficiary's interests under the Lease or to any
lender obtaining a lien or security interest in the property covered by the
Lease. Each draft hereunder by any assignee or successor shall be accompanied by
a copy of the fully executed documents or judicial orders evidencing such
encumbrance, assignment or transfer.
Any draft drawn hereunder shall be in the form attached hereto as
Schedule 1. Partial drawings are permitted with the amount of the Letter of
Credit being reduced, without amendment, by the amount(s) drawn hereunder.
This Letter of Credit shall expire at 2:00 p.m., , on the
expiration date set forth above.
Except so far as otherwise expressly stated, this Letter of Credit is
subject to the "Uniform Customs and Practice for Documentary Credits (1/1/94
Revision), International Chamber of Commerce Publication No. 500." We hereby
agree with you and all persons negotiating such drafts that all drafts drawn and
negotiated in compliance with the terms of this Letter of Credit will be duly
honored upon presentment and delivery of the documents specified above by
certified or registered mail to , , if negotiated
on or before the expiration date shown above.
Very truly yours,
Authorized Signature
EXHIBIT A-2
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SCHEDULE 1 TO LETTER OF CREDIT
SIGHT DRAFT
TO:
Attention:
PAY TO THE ORDER OF:
Nationwide Health Properties, Inc.,
a Maryland corporation,
c/o Wells Fargo Bank
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx
ABA No. 000000000
for the benefit of Nationwide Health Properties, Inc.
Account No. 4692089329
THE SUM OF:
Dollars ($ )
DRAWN ON:
Irrevocable Letter of Credit No.
dated , 20 issued by
Bank
NATIONWIDE HEALTH PROPERTIES,
INC., a Maryland corporation
By:
Name:
Title:
SCHEDULE 1-1
