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EXHIBIT 10.58
TC REALTY OF POCAHONTAS, INC.
STOCK SUBSCRIPTION AND CAPITALIZATION AGREEMENT
THIS AGREEMENT is made effective on and as of December 1, 1997.
RECITALS:
WHEREAS, TC Realty Holding Company ("Subscriber") agrees to subscribe
for the capital stock of TC Realty of Pocahontas, Inc., a Delaware corporation
(the "Corporation") and to make an additional capital contribution in the amount
of $316,134, all as more specifically set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Subscriber agrees as follows:
(1) Subscriber hereby agrees to subscribe for One Hundred (100) shares
(the "Shares") of common stock, par value $0.01 per share, of the Corporation,
and agrees to pay to the Corporation a price of $0.01 per share for the Shares,
for a total purchase price of $1.00 (the "Purchase Price"), in cash, due and
payable as set forth in Section (3) below.
(2) Subscriber hereby agrees to make an additional capital contribution
to the Corporation in an amount equal to $316,134 (the "Additional Capital
Contribution"), in cash, due and payable as set forth in Section (3) below.
(3) The Purchase Price and the Additional Capital Contribution shall be
due and payable by Subscriber upon the simultaneous closing (the "Closing") of
the following transactions: (i) the sale and assignment by Balanced Care at
Pocahontas, Inc. ("BCC") to the Corporation pursuant to that certain Agreement
Regarding Facility Lease and Related Transaction Documents and certain other
related documents each dated effective as of December 1, 1997 (collectively, the
"BCC Transaction Documents") of BCC's interests and obligations under that
certain Facility
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Lease Agreement and certain other related documents by and among BCC and certain
of its affiliates, the Corporation and the Subscriber each dated as of December
19, 1997 (collectively, the "Lease Transaction Documents"), (ii) the assignment,
assumption and restatement of the Lease Transaction Documents and the execution
and delivery of certain related documents (collectively, the "Amended and
Restated Lease Documents") between the Corporation and Meditrust Acquisition
Corporation II ("MT") and such other parties as MT shall require, and (iii) the
funding of that certain working capital loan to Subscriber by MT pursuant to
that certain Promissory Note and certain other related documents (collectively,
the "Loan Documents") (hereinafter, the BCC Transaction Documents, the Amended
and Restated Lease Documents and the Loan Documents shall be collectively
referred to as the "Transaction Documents"). Notwithstanding anything to the
contrary that may be contained herein, Subscriber's obligation to pay the
Purchase Price and the Additional Capital Contribution is expressly conditioned
upon the occurrence of Closing and the funding of all such amounts by MT to
Subscriber pursuant to the Loan Documents and, if Closing fails to occur for any
reason, this Agreement and Subscriber's obligations hereunder shall
automatically become NULL AND VOID.
(4) Subscriber represents and warrants to the Corporation as follows:
(a) Subscriber understands that the Shares have not been
registered under the Securities Act of 1933 (the "Federal Act") or the Delaware
Securities Act (the "Delaware Act") by reason of specific exemptions under the
provisions thereof which depend, in part, upon the representations made by
Subscriber in this Agreement. Subscriber understands that the Corporation is
relying upon Subscriber's representations and warranties contained in this
Agreement for the purpose of determining whether this transaction meets the
requirements for
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such exemptions.
(b) Subscriber has such knowledge, skill and experience in
business, financial and investment matters so that Subscriber is capable of
evaluating the merits and risks of an investment in the Shares. To the extent
that Subscriber has deemed it appropriate to do so, Subscriber has retained, and
relied upon, appropriate professional advice regarding the tax, legal and
financial merits and consequences of the investment in the Shares.
(c) Subscriber has made, either alone or together with
advisors (if any), such independent investigation of the Corporation and related
matters as Subscriber deems to be, or such advisors (if any) have advised to be,
necessary or advisable in connection with an investment in the Shares; and
Subscriber and Subscriber's advisors (if any) have received all information and
data which Subscriber and such advisors (if any) believe to be necessary in
order to reach an informed decision as to the advisability of an investment in
the Shares. Subscriber is satisfied that there are no material facts regarding
the Corporation or the Shares as to which Subscriber is not aware.
(d) Subscriber represents that (i) Subscriber has adequate
means of providing for Subscriber's financial needs and possible contingencies
and has assets or sources of income which, taken together, are more than
sufficient so that Subscriber could bear the risk of loss of Subscriber's entire
investment in the Shares, (ii) Subscriber has no present or contemplated future
need to dispose of all or any portion of the Shares to satisfy any existing or
contemplated need or indebtedness, and (iii) Subscriber is capable of bearing
the economic risk of an investment in the Shares for the indefinite future.
Subscriber agrees to furnish any additional information requested by the
Corporation to assure compliance of this transaction with applicable federal and
state
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securities laws in connection with the purchase and sale of the Shares.
(e) Subscriber understands that the Shares are "restricted
securities" under applicable Federal Securities laws and that the Federal Act
and the rules of the Securities and Exchange Commission provide in substance
that Subscriber may dispose of the Shares only pursuant to an effective
registration statement under the Federal Act or an exemption from such
registration if available. Subscriber further understands that the Corporation
has no obligation or intention to register any of the Shares under or to take
action so as to permit sales pursuant to the Federal Act. Accordingly,
Subscriber may dispose of the Shares only in certain transactions which are
exempt from registration under the Federal Act, including "private placements",
in which event transferee will acquire "restricted securities" subject to the
same limitations as in the hands of the Subscriber. Subscriber further
understands that the Delaware Act allows sales of the Shares only if the Shares
are registered or the transaction is subject to an applicable exemption. As a
consequence, Subscriber understands that Subscriber must bear the economic risks
of the investments in the Shares for an indefinite period of time.
(f) Subscriber hereby confirms that Subscriber is acquiring
the Shares for investment only and not with a view to or in connection with any
resale or distribution of the Shares. Except as may be contemplated in the
Transaction Documents, Subscriber hereby affirms that Subscriber has no present
intention of making any sale, assignment, pledge, gift, transfer or other
disposition of the Shares or any interest therein.
(g) Except as may be contemplated in the Transaction
Documents, Subscriber agrees that Subscriber will not sell or otherwise transfer
all or any part of Subscriber's interest in the Shares during the twelve month
period following the date of purchase of the Shares.
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(5) Subscriber acknowledges and agrees that the certificate(s)
evidencing the Shares will bear the following legend:
The shares represented by this certificate have not been
registered under the Securities Act of 1933 or any state
securities laws and may not be sold or transferred in the
absence of such registration or an exemption therefrom under
the Securities Act of 1933 and applicable state securities
laws.
(6) Subscriber acknowledges that neither the Corporation nor any
persons acting on its behalf has offered or sold the Shares to Subscriber by any
form of general solicitation, general or public media advertising mass mailing.
(7) This Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of Pennsylvania, exclusive of its conflict
of laws provisions.
(8) Neither this Agreement nor any provisions hereof shall be modified,
changed, discharged or terminated except by an instrument in writing signed by
the party against whom any waiver, change, discharge or termination is sought.
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned has executed and delivered this Agreement effective on and as of
December 1, 1997.
WITNESS/ATTEST: TC REALTY HOLDING COMPANY
BY:/s/ Signature Illegible BY: /s/ Signature Illegible
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NAME: NAME:
TITLE: TITLE:
DATE: DATE:
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Schedule to Exhibit 10.58 filed pursuant to Instruction 2 to Item 601(a) of
Regulation S-K
Stock Subscription Agreement
Project Corporation Additional Capital Contribution
------- ----------- -------------------------------
Blytheville, AR TC Realty of Blytheville, Inc. $268,057
Maumelle, AR TC Realty of Maumelle, Inc. $350,622
Mountain Home, TC Realty of Mountain Home, Inc. $348,623
AR
Pocahontas, AR TC Realty of Pocahontas, Inc. $316,134
Sherwood, AR TC Realty of Sherwood, Inc. $385,751
Reading, PA TC Realty of Reading, Inc. $149,374
