REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT (the "Agreement"), dated as of April 14,
1997, by and between INTEGRATED HEALTH SERVICES, INC., a Delaware corporation
having an address at 00000 Xxx Xxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxx 00000
("IHS"), and COMMUNITY CARE OF AMERICA, INC., a Delaware corporation having an
address at 0000 X. Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000 ("CCA").
WITNESSETH:
WHEREAS, CCA has entered into that certain Loan and Security
Agreement with Daiwa Healthco-2 LLC ("Daiwa") dated as of December 23, 1996 (the
"Loan Agreement");
WHEREAS, as a condition to extending to CCA certain accommodations
under the Loan Agreement, Daiwa has required that IHS provide a guaranty (the
"Daiwa Guaranty") securing the repayment of all amounts owing from CCA to Daiwa
under the Loan Agreement in excess of the Basic Borrowing Amount, as well as the
payment of any and all reasonable costs and expenses (including reasonable
counsel fees and expenses) paid or incurred by Daiwa in enforcing its rights
under the Daiwa Guaranty;
WHEREAS, CCA has entered into a letter agreement with Health and
Retirement Properties Trust ("HRPT") dated as of April 14, 1997 (the "Letter
Agreement");
WHEREAS, in accordance with the Letter Agreement, HRPT has required
that IHS provide a guaranty (the "HRPT Guaranty") securing certain obligations
owed by CCA to HRPT;
WHEREAS, as a condition to providing the Daiwa Guaranty and the HRPT
Guaranty, IHS requires that CCA agree to reimburse IHS for any amounts that
become payable by IHS in respect of the Daiwa Guaranty and the HRPT Guaranty.
NOW, THEREFORE, in consideration of the mutual promises hereinafter
set forth, and for other good and valuable consideration, the parties hereby
agree as follows:
1. Subject to any waiver by IHS of the right to subrogation or
reimbursement contained in the Daiwa Guaranty and/or the HRPT Guaranty, CCA
shall, on demand, reimburse IHS for any amounts paid by IHS on behalf of CCA in
accordance with the terms of the Daiwa Guaranty and/or the HRPT Guarantee,
including any costs, fees, charges and expenses (including reasonable legal fees
and expenses of counsel) arising out of the negotiation, preparation or issuance
of, or performance under, the Daiwa Guaranty and/or the HRPT Guarantee
(collectively, the "Reimbursement Obligations").
2. Any and all amounts which become owing to IHS by CCA in respect of
the Reimbursement Obligations shall bear interest, from the date such amounts
are advanced by IHS under the applicable guaranty until paid in full, at the
rate of fifteen (15%) percent per annum.
3. This Agreement shall remain in full force and effect until all of
the Reimbursement Obligations shall have been fully, finally and irrevocably
satisfied and IHS has been fully, finally and irrevocably released from all
obligations with respect to the Daiwa Guaranty and the HRPT Guaranty.
4. All agreements between CCA and IHS herein are hereby expressly
limited so that in no contingency or event whatsoever, shall the amount paid or
agreed to be paid to IHS for the use, forbearance or detention of money
hereunder exceed the maximum permissible under applicable law. If, from any
circumstance whatsoever, the fulfillment of any provision hereof, at the time
performance of such provision shall be due, shall involve transcending the limit
of validity prescribed by law, then, IPSO FACTO, the obligation to be fulfilled
shall be reduced to the limit of such validity, and if from any circumstance IHS
should ever receive as interest an amount which would exceed the highest lawful
rate, such amount which would be excessive interest shall be applied to the
reduction of the principal of the Reimbursement Obligations and not to the
payment of interest.
5. Any notice or other communication by either party to the other
shall be in writing and shall be given and be deemed to have been duly given,
upon the date delivered if delivered personally or upon the date received if
mailed postage pre-paid, registered, or certified mail, addressed as follows:
TO CCA: Community Care of America, Inc.
0000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: President
TO IHS: Integrated Health Services, Inc.
00000 Xxx Xxx Xxxxxxxxx
Xxxxxx Xxxxx, XX 00000
Attention: General Counsel
or to such other address, and to the attention of such other person or officer
as either party may designate in writing by notice.
6. The substantive laws of the State of Maryland shall govern the
validity, construction, enforcement and interpretation of this Agreement and all
other documents and instruments referred to herein, unless otherwise specified
therein. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited or invalid under
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applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
7. Neither this Agreement nor any provision hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought. This Agreement shall be binding upon CCA and its
successors and assigns, and shall inure to the benefit of and be enforceable by
the IHS and its successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first written above.
INTEGRATED HEALTH SERVICES, INC.
By: _____________________________
Name:
Title:
COMMUNITY CARE OF AMERICA, INC.
By: _____________________________
Name:
Title:
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