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EXHIBIT 10.28
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this "Agreement") made as of the __________
January, 1998, by _________________________________________________
("Guarantor"), ____________________________________________________________ (the
"Borrower"), and ______________________________________________________
___________ (the "Lender").
RECITALS:
Borrower and Guarantor have requested that Lender make a loan to
Borrower in the principal sum of ____________________ Dollars ($__________)
(the "Loan"), which Loan is to be made pursuant to a Loan Agreement
between Borrower and Lender of even date herewith (referred to herein, as the
same may hereafter be amended, as the "Loan Agreement"; capitalized terms not
otherwise defined herein shall have the meanings given in the Loan Agreement).
Lender requires that, as a condition to making the Loan, Borrower and Guarantor
jointly and severally indemnify Lender against all violations of any applicable
Environmental Laws (as herein defined), relating to the property securing the
Loan, which property consists of the land more particularly described in
Exhibit A attached hereto and made a part hereof and all buildings and
improvements now or hereafter situated on such land (collectively,
the "Property"). The Borrower and Guarantor have therefore agreed to execute
this Agreement in order to induce Lender to make the Loan.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals, and
as an inducement to Lender to make the Loan to Borrower, the Borrower and
Guarantor do hereby jointly and severally agree with Lender as follows:
1. As used herein, the term "Applicable Environmental Laws" shall mean
any applicable laws, rules or regulations pertaining to health or the
environment, or petroleum products, or radon radiation, or oil or hazardous
substances, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), the
Resource Conservation and Recovery Act of 1976, as amended ("RCRA") and the
Federal Emergency Planning and Community Right-To-Know Act of 1986.
2. Borrower and Guarantor will jointly and severally indemnify and hold
Lender harmless from and against, and reimburse Lender for, any fines, charges,
liabilities, reasonable expenses, reasonable fees of environmental
professionals, and reasonable attorney's fees incurred by Lender, in the event
any of the Property is hereafter determined to be in violation of any Applicable
Environmental Law (whether or not due to any fault of Borrower or Guarantor).
Without limiting the foregoing, upon any reasonable allegation that such a
violation may exist, Borrower and Guarantor shall upon Lender's request: (a)
cause to be conducted such reasonable investigations, tests or analyses of the
Property by environmental professionals approved by Lender and provide Lender
the written results of such investigations, tests or analyses, and (b) promptly
remedy in accordance with Applicable Environmental Law,
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any violation that may exist, and (c) report any reasonably alleged violation to
any federal, state or local agency having jurisdiction over such matters. If
Borrower and Guarantor fail to promptly comply with Lender's request, Lender
may, at its option, do any of the foregoing, and Borrower and Guarantor will
promptly reimburse Lender for all reasonable costs and expenses incurred by
Lender. Lender and its agents shall have access to the Property for the purposes
of conducting any such investigations, tests or analyses.
3. This Agreement shall survive any foreclosure or acceptance by Lender
of a deed in lieu of foreclosure and repayment of the Loan; provided, however,
Borrower and Guarantor shall not indemnify Lender with respect to any violation
which (a) Borrower and Guarantor can establish results from wastes, substances
or materials being placed on, above or under the Property only subsequent to any
foreclosure by Lender or acceptance by Lender of a deed in lieu of foreclosure
with respect to the Property, or (b) are caused by Lender's misconduct or
negligence.
4. Borrower and Guarantor jointly and severally agree to pay to Lender
all charges, expenses, reasonable attorney's fees and costs incurred by Lender
in connection with the Lender's enforcement of this Agreement, including
charges, expenses, reasonable attorney's fees and costs upon any appeal and in
any bankruptcy proceedings.
5. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and
assigns.
6. In the event that any provision hereof is deemed to be invalid by
reason of the operation of any law or by reason of the interpretation placed
thereon by any court, this Agreement shall be construed as not containing such
provision and the invalidity of such provision shall not affect other provisions
which are otherwise lawful and valid and shall remain in full force and effect.
7. This Agreement may be executed in counterparts which together shall
constitute one instrument. It shall not be necessary for all parties to sign the
same counterpart.
8. THE VALIDITY, INTERPRETATION, ENFORCEMENT AND EFFECT OF THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF ALABAMA. THE LENDER'S PRINCIPAL PLACE OF BUSINESS IS LOCATED IN
JEFFERSON COUNTY IN THE STATE OF ALABAMA, AND THE BORROWER AND GUARANTOR AGREE
THAT THIS AGREEMENT SHALL BE DELIVERED TO AND HELD BY LENDER AT SUCH PRINCIPAL
PLACE OF BUSINESS, AND THE HOLDING OF THIS AGREEMENT BY LENDER THEREAT SHALL
CONSTITUTE SUFFICIENT MINIMUM CONTACTS OF BORROWER AND GUARANTOR WITH JEFFERSON
COUNTY AND THE STATE OF ALABAMA FOR THE PURPOSE OF CONFERRING JURISDICTION UPON
THE FEDERAL AND STATE COURTS PRESIDING IN SUCH COUNTY AND STATE. BORROWER AND
GUARANTOR CONSENT THAT ANY LEGAL ACTION OR PROCEEDING ARISING HEREUNDER
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MAY BE BROUGHT IN THE CIRCUIT COURT OF THE STATE OF ALABAMA, JEFFERSON COUNTY,
OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA AND
ASSENT AND SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH COURT IN ANY ACTION
OR PROCEEDING INVOLVING THIS AGREEMENT. NOTHING HEREIN SHALL LIMIT THE
JURISDICTION OF ANY OTHER COURT.
10. BORROWER AND GUARANTOR HEREBY WAIVE ANY RIGHT THAT THEY MAY HAVE TO
A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF
ACTION (A) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE LOAN,
OR (B) IN ANY WAY CONNECTED WITH OR PERTAINING OR RELATED TO OR INCIDENTAL TO
ANY DEALINGS OF LENDER AND/OR BORROWER AND GUARANTOR WITH RESPECT TO THE LOAN
DOCUMENTS OR IN CONNECTION WITH THIS AGREEMENT OR THE EXERCISE OF EITHER PARTY'S
RIGHTS AND REMEDIES UNDER THIS AGREEMENT OR OTHERWISE, OR THE CONDUCT OR THE
RELATIONSHIP OF THE PARTIES HERETO, IN ALL OF THE FOREGOING CASES WHETHER NOW
EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. BORROWER AND GUARANTOR AGREE THAT LENDER MAY FILE A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY, AND
BARGAINED AGREEMENT OF BORROWER AND GUARANTOR IRREVOCABLY TO WAIVE THEIR RIGHTS
TO TRIAL BY JURY AS AN INDUCEMENT OF LENDER TO MAKE THE LOAN, AND THAT, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY WHATSOEVER
(WHETHER OR NOT MODIFIED HEREIN) BETWEEN BORROWER AND/OR GUARANTOR WITH LENDER
SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING
WITHOUT A JURY.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed or caused this
Agreement to be executed as of the day and year first above written.
GUARANTOR:
BY:
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BORROWER:
BY:
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LENDER:
BY:
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SCHEDULE TO EXHIBIT 10.28 FILED PURSUANT TO INSTRUCTION 2 OF ITEM 601(a) OF
REGULATION S-K
INDEMNITY AGREEMENT
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PROJECT PARTIES LOAN DATE
------- ------- AMOUNT ----
------
Raleigh, NC Balanced Care Corporation (Guarantor), Balanced $8,600,000.00 12/1/97
Care at North Ridge, Inc. (Borrower) and Capstone
Capital Corporation (Lender)
Millville, PA Balanced Care Corporation (Guarantor), Balanced $1,031,675.00 1/2/98
Care at Eyers Grove, Inc. (Borrower) and Capstone
Capital of Pennsylvania, Inc. (Lender)
Bloomsburg, PA Balanced Care Corporation (Guarantor), Balanced $4,568,325.00 1/2/98
Care at Bloomsburg II, Inc. (Borrower) and
Capstone Capital of Pennsylvania, Inc. (Lender)
