Exhibit 10.102
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (herein called "Agreement") dated as of
September __, 2002, by and between CAPITAL SENIOR LIVING, INC., a Texas
corporation ("CSL") and TRIAD SENIOR LIVING I, L.P., a Texas limited partnership
("Triad I"), TRIAD SENIOR LIVING II, L.P., a Texas limited partnership ("Triad
II"), TRIAD SENIOR LIVING III, L.P., a Texas limited partnership ("Triad III"),
TRIAD SENIOR LIVING IV, L.P., a Texas limited partnership ("Triad IV") and TRIAD
SENIOR LIVING V, L.P., a Texas limited partnership ("Triad V").
RECITALS
A. CSL and each of Triad I, Triad II, Triad III, Triad IV and Triad V
(collectively, the "Triads" and individually, a "Triad") have entered into
management agreements (the "Management Agreements") pursuant to which CSL
manages the communities owned by each Triad.
B. Pursuant to the Management Agreements, CSL or an affiliate of CSL
has loaned and may loan in the future funds to each Triad (as such loans exist
from time to time, the "Existing Loans").
C. CSL and each Triad desire to amend the Management Agreements and to
agree to certain provisions concerning the Existing Loans, on the terms and
conditions provided herein.
NOW, THEREFORE, for valuable consideration paid by each party to the
other, the receipt and sufficiency of which is hereby acknowledged, and in
further consideration of the mutual covenants and agreements herein contained,
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
1. Each of Triad II, Triad III, Triad IV and Triad V agree to loan any
Excess Cash Flow (as hereinafter defined) of such Triad to any one or more of
Triad I, Triad II, Triad III, Triad IV and Triad V for payment of any interest
owing on the Existing Loans of any of the other Triads and thereafter for
payment of any principal owing on the Existing Loans of any of the other Triads.
Funds loaned from one Triad to another Triad pursuant to this Agreement shall be
evidenced by one or more promissory notes in form and substance reasonably
acceptable to the loaning Triad, shall be unsecured, shall bear interest at 8%
per annum, which interest shall accrue but not be paid until maturity, shall
mature after the maturity of the applicable Existing Loan to such borrowing
Triad and shall be subordinate in all respects to the applicable Existing Loan
to such borrowing Triad, such subordination to provide that no payments of
principal, interest or any other amounts shall be made on the loan from the
loaning Triad until the applicable Existing Loan has been repaid in full.
Notwithstanding the foregoing, the obligations of each Triad under this
Agreement shall be subject in all respects to the terms and provisions of the
Existing Loan of such Triad and any indebtedness of such Triad that is senior to
the Existing Loan of such Triad.
"Excess Cash Flow" of any Triad shall mean any excess cash
flow from operations, any excess refinancing proceeds and any excess sales
proceeds of such Triad after payment of all operating expenses and all amounts
due under any senior indebtedness of such Triad as well as all amounts due under
the Existing Loan of such Triad, all as determined after taking into account the
anticipated unsatisfied cash needs of such Triad. Anticipated unsatisfied cash
needs may include, but shall not be limited to, anticipated operating expenses,
debt service and similar obligations coming due in the future, and tax payment
obligations stemming from the operations and activities of the loaning Triad, in
all cases where such cash needs are not anticipated to be satisfied from
currently known sources such as operating revenues.
2. Each of Triad I, Triad II, Triad III, Triad IV and Triad V agrees
that concurrently herewith such Triad shall amend its existing Management
Agreements with CSL to extend the term of such Management Agreements until
September 1, 2022, with an option in favor of CSL to further extend the term for
one additional five year period at the end of the term, in each case subject to
any required lender approval and in the case of Triad I, subject to any required
approval of LB Triad, Inc. Each Triad agrees to use commercially reasonable
efforts to obtain such approvals.
3. This Agreement shall be binding upon and for the benefit of the
parties hereto and their respective successors and assigns.
4. None of the terms or provisions of this Agreement shall be deemed to
create a partnership between or among the parties in their respective businesses
or otherwise, or to affect in any way any partnership which may exist between
any of the parties, nor shall it cause them to be considered joint venturers or
members of any joint enterprise.
5. This Agreement may be canceled, changed, modified, amended or
terminated in whole, or in part only by written instrument executed by all
parties.
6. Invalidation of any of the provisions contained in this Agreement,
or of the application thereof to any person by judgment or court order shall in
no way affect any of the other provisions hereof or the application thereof to
any other person and the same shall remain in full force and effect, unless
enforcement of this Agreement as so partially invalidated would be unreasonable
or grossly inequitable under all the circumstances or would frustrate the
purposes of this Agreement.
7. All notices, payments, requests, demands and other communications
hereunder shall be in writing (except payments, which shall be in good funds)
and shall be deemed to have been duly given or paid (a) when personally
delivered, or (b) three (3) calendar days after mailed by registered or
certified mail, postage prepaid, return receipt requested, delivered or
addressed to the parties or their assigns at the following addresses or at such
different addresses as shall be given in the manner herein provided:
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If to CSL:
Capital Senior Living, Inc.
c/o Xxxxx X. Xxxxxxxx
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
If to any Triad:
c/o Xxxxx X. Fail
0000 Xxxxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
8. This Agreement and the exhibits hereto contain the entire agreement
between the parties with respect to the subject matter hereof. Any prior
correspondence, memoranda or agreements are superseded in total by this
Agreement and the exhibits hereto. The provisions of this Agreement shall be
construed as a whole according to their common meaning and not strictly for or
against any party.
9. THIS AGREEMENT AND ALL RIGHTS AND OBLIGATIONS CREATED HEREBY SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
10. If any party shall bring an action against any other party to this
Agreement by reason of the breach or alleged violation of any covenant, term or
obligation hereof, or for the enforcement of any provision hereof or otherwise
arising out of this Agreement, the prevailing party in such suit shall be
entitled to its costs of suit and reasonable attorneys' fees, which shall be
payable whether or not such action is prosecuted to judgment. The term
"prevailing party" within the meaning of this Section 9 shall include, without
limitation, a party who dismisses an action for recovery hereunder in exchange
for payment of the sums allegedly due or an agreed amount in lieu thereof,
performance of covenants allegedly breached, or consideration substantially
equal to the relief sought in the action.
11. Time is of the essence of this Agreement and each and every
provision hereof.
12. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT IT HAS HAD THE BENEFIT
OF COUNSEL OF ITS OWN CHOICE AND HAS BEEN AFFORDED AN OPPORTUNITY TO REVIEW THIS
AGREEMENT WITH ITS CHOSEN COUNSEL. EACH OF THE PARTIES HERETO FURTHER
ACKNOWLEDGES THAT IT HAS, THROUGH ITS RESPECTIVE COUNSEL, PARTICIPATED IN THE
PREPARATION OF THIS AGREEMENT, AND IT IS UNDERSTOOD AND AGREED THAT NO PROVISION
HEREOF SHALL BE CONSTRUED AGAINST ANY OF THE PARTIES HERETO BY VIRTUE OF THE
ACTIVITIES OF ANY SUCH PARTY OR BY ITS ATTORNEY IN THE PREPARATION AND EXECUTION
THEREOF.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
CAPITAL SENIOR LIVING, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Vice President
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TRIAD SENIOR LIVING I, L.P.
By: Triad Senior Living, Inc.,
its general partner
By: /s/ Xxxxx X. Fail
--------------------------------------
Name: Xxxxx X. Fail
------------------------------------
Title: President
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TRIAD SENIOR LIVING II, L.P.
By: Triad Partners II, Inc.,
its general partner
By: /s/ Xxxxx X. Fail
---------------------------------------
Name: Xxxxx X. Fail
-------------------------------------
Title: President
------------------------------------
TRIAD SENIOR LIVING III, L.P.
By: Triad Partners III, Inc.,
its general partner
By: /s/ Xxxxx X. Fail
-----------------------------------------
Name: Xxxxx X. Fail
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Title: President
--------------------------------------
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TRIAD SENIOR LIVING IV, L.P.
By: Triad Partners IV, Inc.,
its general partner
By: /s/ Xxxxx X. Fail
---------------------------------------
Name: Xxxxx X. Fail
-------------------------------------
Title: President
------------------------------------
TRIAD SENIOR LIVING V, L.P.
By: Triad Partners V, L.L.C.,
its general partner
By: /s/ Xxxxx X. Fail
-------------------------------------
Name: Xxxxx X. Fail
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Title: Manager
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