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EXHIBIT 10.28
FORM OF INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this "Agreement") made as of _____________
__________, by and among ("BCC"), and (" ").
RECITALS:
BCC and Guarantor have requested that purchase and lease to
BCC certain real property and improvements pursuant to a Lease Agreement
between BCC and of even date herewith (referred to herein, as the same
may hereafter be amended, as the "Lease Agreement"; capitalized terms not
otherwise defined herein shall have the meanings given in the Lease Agreement).
requires that, as a condition to entering into the Lease Agreement, BCC and
Guarantor jointly and severally indemnify against all violations of any
applicable Environmental Laws (as herein defined), relating to the property
which is the subject of the Lease, 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"). BCC and Guarantor have therefore agreed to
execute this Agreement in order to induce to enter into the Lease
Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals,
and as an inducement to to enter into the Lease Agreement, BCC and
Guarantor do hereby jointly and severally agree with 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. BCC and Guarantor will jointly and severally indemnify and hold
harmless from and against, and reimburse for, any fines,
charges, liabilities, reasonable expenses, reasonable fees of environmental
professionals, and reasonable attorney's fees incurred by , 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 BCC or
Guarantor). Without limiting the foregoing, upon any written notice that such a
violation may exist, BCC and Guarantor shall upon 's request: (a)
cause to be conducted such reasonable investigations, tests or analyses of the
Property (such as, at a minimum, a Phase I environmental report and any
additional testing or remediation set forth
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in such report or by any Applicable Environmental Laws) by environmental
professionals mutually approved by and BCC and provide the
written results of such investigations, tests or analyses, and (b) prompt remedy
in accordance with Applicable Environmental Law, any violation that may exist,
and (c) report any reasonably alleged violation, to the extent required by law,
to any federal, state or local agency having jurisdiction over such matters. If
BCC and Guarantor fail to promptly comply with 's request, may, at its
option, do any of the foregoing, and BCC and Guarantor will promptly reimburse
for all reasonable costs and expenses incurred by . 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 termination of the Lease Agreement;
provided, however, BCC and Guarantor shall not indemnify with respect to any
violation which (a) are caused by 's misconduct or gross negligence or
(b) occur after BCC's vacation of the Property.
4. BCC and Guarantor jointly and severally agree to pay to
all charges, expenses, reasonable attorney's fees and costs incurred by in
connection with the '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 'S PRINCIPAL PLACE OF BUSINESS IS LOCATED IN
JEFFERSON COUNTY IN THE STATE OF ALABAMA, AND BCC AND GUARANTOR AGREE THAT THIS
AGREEMENT SHALL BE DELIVERED TO AND HELD BY AT SUCH PRINCIPAL PLACE
OF BUSINESS, AND THE HOLDING OF THIS AGREEMENT BY THEREAT SHALL
CONSTITUTE SUFFICIENT MINIMUM CONTACTS OF BCC AND GUARANTOR WITH JEFFERSON
COUNTY AND THE STATE OF ALABAMA FOR THE PURPOSE OF
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CONFERRING JURISDICTION UPON THE FEDERAL AND STATE COURTS PRESIDING IN SUCH
COUNTY AND STATE. BCC AND GUARANTOR CONSENT THAT ANY LEGAL ACTION OR PROCEEDING
ARISING HEREUNDER 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. BCC 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 LEASE,
OR (B) IN ANY WAY CONNECTED WITH OR PERTAINING OR RELATED TO OR INCIDENTAL TO
ANY DEALINGS OF AND/OR BCC AND GUARANTOR WITH RESPECT TO THE LEASE
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. BCC AND GUARANTOR AGREE THAT MAY FILE A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY, AND
BARGAINED AGREEMENT OF BCC AND GUARANTOR IRREVOCABLY TO WAIVE THEIR RIGHTS TO
TRIAL BY JURY AS AN INDUCEMENT OF TO MAKE THE LEASE, AND THAT, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY WHATSOEVER
(WHETHER OR NOT MODIFIED HEREIN) BETWEEN BCC AND/OR GUARANTOR WITH 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:
BALANCED CARE CORPORATION
BY:
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XXXXX X. XXXXX, VICE PRESIDENT
BORROWER:
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BY:
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BY:
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SCHEDULE TO EXHIBIT 10.28 FILED PURSUANT TO INSTRUCTION 2 TO ITEM 601(a) OF
REGULATION S-K
INDEMNITY AGREEMENT
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PROJECT PARTIES FACILITY DATE
------- ------- -------- ----
Harrisburg, PA Capstone Capital Corporation of Outlook Pointe at Harrisburg 3/28/97
Pennsylvania, Inc. and BCC at
Harrisburg, Inc.
Greensboro, NC Capstone Capital Corporation and Outlook Pointe at Greensboro 3/28/97
BCC at Greensboro, Inc.
Ravenna, OH Capstone Capital Corporation and Outlook Pointe at Ravenna 3/28/97
BCC at Ravenna, Inc.
Nevada, MO (2 Capstone Capital Corporation and Xxx Xxxxx Residential Care Home 5/15/97
Agreements) BCC at Missouri, Inc. 0000 X. Xxxxxxx Xxxxxx
Xxxxxx, XX
Xxxxxx, XX Capstone Capital Corporation and Xxx Xxxxx Residential Care Home 5/15/97
BCC at Missouri, Inc. 000 X. Xxxxxxxx Xxxxxx
Xxxxxx, XX
Xxxxx, XX Capstone Capital Corporation and Xxx Xxxxx Residential Care Home 8/18/97
BCC at Lamar, Inc. 0 Xxxxxxxxx Xxxxx Xxxx
Xxxxx, XX
Roanoke, VA ALCO II, L.L.C. and BCC at Outlook Pointe at Roanoke 6/30/97
Roanoke, Inc.
Harrisonburg, VA ALCO I, L.L.C. and BCC at Outlook Pointe at Harrisonburg 6/30/97
Harrisonburg, Inc.
Danville, VA ALCO III, L.L.C. and BCC at Outlook Pointe at Danville 9/3/97
Danville, Inc.
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SCHEDULE TO EXHIBIT 10.28 FILED PURSUANT TO INSTRUCTION 2 OF ITEM 601(a) OF
REGULATION S-K
ENVIRONMENTAL INDEMNITY AGREEMENT
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PROJECT PARTIES FACILITY LOAN DATE
------- ------- -------- AMOUNT ----
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Darlington, PA Balanced Care Corporation (Guarantor), BCC at Xxxxxxx $5,875,000.00 9/30/97
Darlington, Inc. (Borrower), and Capstone Personal Care
Capital of Pennsylvania, Inc. (Lender) Home
Hampden Township, Xxxxxxx X. Xxxxxxxx, Xxxx X. Xxxx, W. Xxx Xxxxx Outlook Pointe N/A 9/30/97
PA XXX, Xxxxxxx, X. Xxxxxxxx, Xxxxx X. Xxxxxx at Creekview
(collectively, Guarantors), ALCO VI, L.L.C.
(Lessee), and Capstone Capital of Pennsylvania,
Inc. (Lessor)
Butler, PA Balanced Care Corporation (Guarantor), Balanced Silver Haven $246,000.00 10/31/97
Care at Butler (Borrower), and Capstone Capital
of Pennsylvania, Inc. (Lender)
Sarver, PA Balanced Care Corporation (Guarantor), Sterling Care $286,000.00 10/31/97
Balanced Care at Sarver (Borrower), and Capstone of Sarver
Capital of Pennsylvania, Inc. (Lender)
Saxonburg, PA Balanced Care Corporation (Guarantor), Balanced Sterling Care $8,618,000.00 10/31/97
Care at Saxonburg (Borrower), and Capstone of Saxonburg
Capital of Pennsylvania, Inc. (Lender)
