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Exhibit 10.28
FORM OF WORKING CAPITAL ASSURANCE AGREEMENT
(_______)
THIS AGREEMENT is made as of the 27th day of March, 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
__________________________________, 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, 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
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
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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 (as hereinafter defined).
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, 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 in the manner and at the time prescribed
in the Lease.
(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) when due.
Without limiting the generality of foregoing, BCC shall make Working Capital
Loans to 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
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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
enable the Lessee, upon the complete disbursement of the Working Capital
Reserve, to fulfill its obligations, including, without limitation, the Lease
Obligations. 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 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 when and as such Lease 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. 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 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 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.
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, 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
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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: 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
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
IF TO THE LESSOR: ____________________________________
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
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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 issued and outstanding equity of 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 equity of 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 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 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 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
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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 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 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.
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(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, 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 First 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 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,
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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 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
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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.
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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:
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