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EXHIBIT 10.81
COMPLETION GUARANTY AND AGREEMENT
THIS COMPLETION GUARANTY AND AGREEMENT ("Agreement") is made as of the
30th day of January 1998 between AHP OF [INDIANA], INC., an Indiana corporation
("Owner") and BALANCED CARE CORPORATION., a Delaware corporation ("Guarantor" )
WHEREAS, _________________________________("General Contractor") has
entered into a Construction Contract dated as of
________________________________(the "Construction Contract") which has been
assigned to the Owner with the consent of the General Contractor pursuant to
which the General Contractor has agreed to construct, for the benefit of the
Owner, a [___]-story building containing approximately [________] gross square
feet of building area and related site improvements (collectively, the
"Facility") on a certain parcel of land containing approximately [_________]
acres owned by the Owner in [Evansville, Indiana] (the "Land"; the Land,
together with all Facility to be placed or erected thereon, being hereinafter
sometimes referred to as the "Premises") in accordance with plans,
specifications, drawings and addenda referred to in the Construction Contract
(the "Plans and Specifications") and approved by the Owner; and
WHEREAS, Owner has agreed to acquire the Land and construct and develop
the Facility thereon (hereinafter sometimes referred to as the "Project") on the
terms and conditions set forth in that certain Facility Agreement (the "Facility
Agreement") entered into between Guarantor and American Health Properties, Inc.,
a Delaware corporation ("American Health"), the sole shareholder of Owner; and
WHEREAS, BCC Development and Management Co., a Delaware corporation
("Developer") has agreed to construct the Project and cause the Facility to be
opened pursuant to that certain Development Agreement of even date herewith (the
"Development Agreement") entered into between Developer and Owner (all
capitalized terms used in this Agreement shall be defined as in the Development
Agreement unless specified herein to the contrary); and
WHEREAS, as a material inducement to American Health to enter into the
Facility Agreement and to cause Owner to acquire the Land and to cause the
Project to be developed and constructed thereon, Guarantor has agreed to
guarantee the lien-free completion of the Facility, and the payment of any
amounts incurred by the Owner for the development, construction and completion
of the Project which exceed an agreed amount, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and for other good and valuable consideration, the receipt and adequacy
of which are acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. GUARANTY.
1.1. Guaranty. For valuable consideration, Guarantor hereby (a)
irrevocably and unconditionally guarantees the full, faithful and punctual
performance, fulfillment and observance of all of the obligations and
liabilities of Developer under the Development Agreement and the
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payment and performance of all Obligations; (b) waives notice of and consents
and agrees that, without notice to or by Guarantor and without affecting or
impairing in any way the obligations of Guarantor hereunder, Owner may do any
one or more of the following: (i) accelerate the maturity of, accept partial
payments of, compromise or settle, renew, or extend the time for the payment,
discharge, or performance of any or all Obligations due or owed to Owner from
Developer; (ii) grant any other indulgence to Developer or any other person in
respect of any or all of the Obligations and any other matter; (iii) release,
substitute or add any one or more endorsers or guarantors of all or any part of
the Obligations, including, without limitation, one or more parties to this
instrument; (iv) amend, alter or change in any respect whatsoever any term or
provision relating to any or all of the Obligations; (v) apply any sums received
from Developer or any other guarantor, or from the disposition of any collateral
or security, to any indebtedness or other obligation whatsoever owing from such
person or secured by such collateral or security, in any order and regardless of
whether such indebtedness or obligation is part of the Obligations, is secured,
or is due and payable; and (vi) apply any sums received from Guarantor or from
the disposition of any collateral or security securing the obligations of
Guarantor, to any of the Obligations in any order, regardless of whether or not
such Obligations is secured or is due and payable, (c) consents to any and all
amendments, extensions and renewals of the Development Agreement, any and all
assignments, subleases and other actions that may be permitted thereunder by
Guarantor or the Owner, any and all other amendments, extensions and renewals,
any and all advances, extensions, settlement, compromises, favors and
indulgences, any and all receipts, substitutions, additions and releases of
persons primarily or secondarily liable, and any and all acceptances by the
Owner of negotiable instruments, commercial paper and other property, and agrees
that none of the foregoing, should there be any, shall discharge or affect in
any way the liability of Guarantor hereunder; (d) agrees that all rights and
remedies of the Owner under the Development Agreement and hereunder shall
survive any discharge, moratorium or other relief granted any person primarily
or secondarily liable in any proceeding under federal or state law relating to
bankruptcy, insolvency or the relief or rehabilitation of debtors, and any
consent by the Owner to, or participation by the Owner in the proceeds of, any
assignment, trust or mortgage for the benefit of creditors, or any composition
or arrangement of debts, may be made without Guarantor being discharged or
affected in any way thereby; (e) waives any right to require marshaling or
exhaustion of any right or remedy against any person, collateral or other
property and (f) waives (i) presentment for payment, demand, protest, and notice
thereof as to any instrument, and all other notices and demands to which
Guarantor might be entitled, including without limitation notice of all of the
following: the acceptance hereof; the creation, existence, or acquisition of any
Obligations; the amount of the Obligations from time to time outstanding; any
adverse change in Developer's financial position; any other fact which might
increase Guarantor's risk; any default, partial payment or non-payment of all or
any part of the Obligations; and any and all agreements and arrangements between
Owner and Developer and any changes, modifications, or extensions thereof; (ii)
the right to jury trial in any action in which Owner is a party; (iii) any right
to require Owner to institute suit against, or to exhaust its rights and
remedies against, Developer or any other person, or to proceed against any
property, real or personal, tangible or intangible, which secures all or any
part of the Obligations or this Guaranty, or to exercise any other right or
power, or pursue any other remedy Owner may have; (iv) any defense arising by
reason of any disability or other defense of Developer with respect to all or
any part of the Obligations and (v) to the maximum extent permitted by
applicable Laws, any other defense which Guarantor may have with respect to any
claim of Owner under this Guarantee.
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1.2. Effect of Bankruptcy. Guarantor agrees that its liability
hereunder shall not be affected in any way by any election made by Owner in any
proceeding instituted by or against Developer or any Guarantor under Chapter 7
or Chapter 11 of Title 11 of the United States Code, 11 U.S.C. ss. 101 et seq.,
(the "Bankruptcy Code") including but not limited to any election or other item
in connection with the application of ss. 1111(b)(2) of the Bankruptcy Code; or
by any borrowing or grant of a secured interest by Developer, as
debtor-in-possession, under ss. 364 of the Bankruptcy Code; or by the
disallowance, under ss. 502 of the Bankruptcy Code, of all or any portion of
Owner's claim against Developer or any other guarantor for repayment of any part
of the Obligations. In any bankruptcy or other proceeding in which the filing of
claims is required by Law, Guarantor shall file all claims which it may have
against Developer relating to any Obligation or other indebtedness or obligation
of Developer to Guarantor and shall assign to Owner all rights of Guarantor
thereunder or otherwise with respect thereto. If Guarantor fails to file such
claim, Owner as attorney-in-fact for Guarantor, is hereby authorized to do so
without notice to Guarantor and in the name of Guarantor, or, in Owner's sole
discretion, to assign the claims to a nominee and to cause proof of claim to be
filed in the name of Owner's nominee. The foregoing power of attorney is coupled
with an interest and cannot be revoked or otherwise terminated. Owner or its
nominee shall have the right in its reasonable discretion, to accept or reject
any plan proposed in such proceeding and to take any other action which a party
filing a claim is entitled to do. In all such cases, whether in administration,
bankruptcy or otherwise, the person or persons authorized to pay such claim
shall pay to Owner the amount payable on such claim, and to the full extent
necessary for that purpose, Guarantor hereby assigns to Owner all of Guarantor's
rights to any such payments or distributions; provided, however, Guarantor's
obligations under this Section 1.2 shall not be satisfied except to the extent
that Owner receives cash by reason of any such payment or distribution.
1.3. "Obligations". The term "Obligations" shall mean all
obligations owed to Owner by Developer under the Development Agreement or
otherwise and any other expenses of, for or incidental to enforcement or
collection thereof (including but not limited to legal fees and costs incurred
in connection with any action, motion or other proceeding which is part of or
relates to any state or federal insolvency or debtor relief case or proceeding
wherein Developer or Guarantor is the debtor). Until all of the Obligations has
been paid, performed and discharged in full, nothing shall discharge or satisfy
the liability of Guarantor hereunder except the full performance and payment of
the Obligations.
1.4. Guarantee of Payment. This Guarantee is not a guarantee of
collection but rather this Guaranty is an irrevocable, absolute and
unconditional guarantee of payment and performance of each and every one of the
Obligations. Guarantor hereby irrevocably and unconditionally covenants and
agrees that Guarantor is liable for the Obligations as a primary obligor. Any
Obligation may be enforced by Owner against Guarantor separately without
enforcing compliance with any other Obligation and without waiving the right
subsequently to enforce any other Obligation guaranteed hereunder.
1.5. Warranty of Guarantor. Guarantor hereby represents and
warrants to Owner that (a) this Guarantee is executed at Developer's request,
(b) Guarantor has reviewed and has been advised by legal counsel regarding all
of the terms and provisions of the Transaction Documents including but not
limited to the Development Agreement and the Plans and Specifications referred
to therein,
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(c) Owner has made no representation, promise, covenant or statement to
Guarantor with regard to the site, Developer, Plans and Specifications or any
other aspect of the Project or Transaction Documents, (d) Guarantor has
established adequate means of obtaining from Developer and from other sources,
on a continuing basis, financial and other information pertaining to Developer's
financial condition, the Property, the progress of construction of the Project
and the status of Developer's performance under the Transaction Documents and
(e) Guarantor has not and will not sell, lease, assign, encumber, hypothecate or
otherwise transfer or convey any material portion of Guarantor's assets.
Guarantor hereby agrees that Owner shall have no duty to disclose or report to
Guarantor any information now or hereafter known to Owner relating to the
business, operation, condition or assets of Developer. Owner shall have no duty
to inquire into the authority or powers of Developer or any officer, employee,
contractor or other agent of Developer.
2. GUARANTOR'S REPRESENTATIONS AND WARRANTIES.
Guarantor represents and warrants to Owner and American Health that:
2.1. Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2.2. Guarantor has the requisite power and authority to own its
properties and to carry on business as now being conducted and as contemplated
under this Agreement.
2.3. Guarantor has the power to execute, deliver and perform this
Agreement, and the execution, delivery and performance by Guarantor of this
Agreement have been duly authorized by all requisite action and will not violate
any provision of law, any order of any court or other agency of government or
any indenture, agreement or other instrument to which Guarantor is a party, or
by which it is bound, or be in conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon the property or
assets of Guarantor.
2.4. There is no action, suit or proceeding at law or in equity
(including, without limitation, actions, suits or proceedings by any civic
group) or by or before any governmental instrumentality or other agency now
pending, or, to the "Best Knowledge" (as defined in the Facility Agreement) of
Guarantor, threatened against or affecting Guarantor or the Project, which, if
adversely determined, would have a material adverse effect on the business,
operations, properties, assets or condition, (financial or otherwise) of
Guarantor or the Project.
2.5. Guarantor owns one hundred percent (100%) of Developer and
owns one hundred percent (100%) of the person which will manage the Project upon
Final Completion. Guarantor will, therefore and for other reasons, benefit
directly from the development of the Project. Guarantor is fully aware of and
shall be solely responsible for keeping itself informed regarding the financial
condition of Developer from time to time and Guarantor waives any requirement at
law, in equity or otherwise which would obligate Owner to keep Guarantor
apprised of the financial condition of Developer.
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2.6. Developer has filed the Plans and Specifications with all
appropriate political subdivisions, agencies or instrumentalities exercising
jurisdiction over the Project or any aspect thereof and has obtained therefrom
all required building permits.
2.7. Completion of the Facility in accordance with the Plans and
Specifications will result in a complete [___]-unit assisted living facility
entitled to be licensed and fully licensed as such by the appropriate
authorities within the State, County and municipality in which the facility is
located and certified, to the extent required from time to time, by the Medicare
program and will not violate any building, zoning, subdivision, land-use,
health, sanitation or environmental protection ordinance, regulation or law.
2.8. To Guarantor's Best Knowledge, no Hazardous Substances (as
hereinafter defined) are located on the Land or have been released into the
environment or deposited, discharged, placed or disposed of at, on, under or
near the Land. No portion of the Land is being used or, to Guarantor's Best
Knowledge, has been used at any previous time for the disposal storage,
treatment, processing or other handling of Hazardous Substances nor is the Land
affected by any Hazardous Substances (as defined in the Development Agreement).
2.9. Except as disclosed in Schedule I attached hereto, to
Guarantor's Best Knowledge, no Hazardous Substances are located in the vicinity
of the Land, no property adjoining the Land is being used or has ever been used
at any previous time for the disposal, storage, treatment, processing or other
handling of Hazardous Substances, nor has any other property adjoining the Land
been contaminated or otherwise affected by Hazardous Substances.
2.10. To Guarantor's Best Knowledge, no asbestos or asbestos
containing materials have been installed, used, incorporated into, or disposed
of on the Land nor will any such materials be installed, used, incorporated into
or disposed of within or as a part of the Project.
2.11. To Guarantor's Best Knowledge, no underground storage tanks
are located on the Land or were located on the Land and subsequently removed or
filled.
2.12. To Guarantor's Best Knowledge, no investigation,
administrative order or notice, consent order and agreement, litigation or
settlement with respect to Hazardous Substances is proposed, threatened,
anticipated or in existence with respect to the Land. The Land and its existing
and, to Guarantor's Best Knowledge, prior uses comply and at all time have
complied with any applicable governmental requirements relating to environmental
matters or Hazardous Substances. There is no condition on the Land which is in
violation of any applicable governmental requirements relating to Hazardous
Substances, and Guarantor has not received any communication from or on behalf
of any governmental authority that any such condition exists. The Land is not
currently on and, to Guarantor's Best Knowledge after diligent investigation and
inquiry, has never been on any federal or state "Superfund" or "Superlien" list,
nor is Guarantor aware that the Land is anticipated or threatened to be placed
on such 1ist
2.13. Subject only to payment of fees to be paid as contemplated by
the Approved Budget (as defined in the Development Agreement), all utility and
municipal services required for the construction, occupancy and operation of the
Facility, including, but not limited to, water supply,
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storm and sanitary sewage disposal systems, gas, electric and telephone
facilities, are available for use and tap-on at the boundaries of the Land, and
written permission has been or will be obtained from the applicable utility
companies or municipalities to connect the Facility into each such service.
2.14. The storm and sanitary sewage disposal system, water system
and all mechanical systems of the Premises comply (or when constructed will
comply) with all applicable environmental, pollution control and ecological
laws, ordinances, rules and regulations. There are no environmental protection
agency, pollution control board or other governmental authority approvals
required in connection with construction, tap-on and operation of such systems.
3. COMPLETION GUARANTY.
If for any reason or under any contingency any Contractor shall abandon
the construction of the Facility, or, fail to Finally Complete the Project
within the maximum construction time and in accordance with the terms of the
Construction Contract and pay all costs therefor including without limitation
all amounts owed to subcontractors, laborers and materialmen (provided that
Owner makes payment to the Contractor as provided in the Development Agreement),
then in any such event, Guarantor shall assume all responsibility for Final
Completion of the Facility in accordance with the terms of the Construction
Contract and the Development Agreement, and, at Guarantor's sole cost and
expense, cause the Project to be Finally Completed in accordance with the
Construction Contract and Development Agreement, including without limitation,
the Plans and Specifications, free and clear of any liens for labor or materials
entered or filed against the Land or the Facility in connection with such work.
Upon the occurrence of a default by the General Contractor under the
Construction Contract, Guarantor agrees, without the need of any demand by the
Owner, to assume direct responsibility and control over construction and the
Final Completion of the Facility and payment of all subcontractors and to
proceed diligently and with dispatch to cure the default (if curable by
Guarantor) and Finally Complete the Facility in accordance with the terms and
conditions of the Construction Contract and the Development Agreement. Guarantor
hereby agrees that any and all rights of the undersigned in and to the Premises,
whether by lien or otherwise, which arise by virtue of the performance of any of
Guarantor's obligations contained herein are and at all times shall be and
remain subject and subordinate to the terms and conditions of the Development
Agreement, the Transaction Documents and all other documents executed in
connection therewith, and further agrees to execute, acknowledge and record such
documents in [Vanderburgh] County, [Indiana] as Owner may deem necessary in
order to implement and evidence such subordination.
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4. GUARANTY OF PROJECT COSTS.
4.1. Guarantor hereby unconditionally guarantees to pay from its
own funds the amount, if any, by which the "Total Project Costs" incurred by the
Owner (including costs incurred by Developer or Guarantor on behalf of the
Owner) for the development, construction and Final Completion of the Project in
accordance with the provisions of the Development Agreement exceed the sum of
$_______________ (the "Maximum Project Amount") for any reason, even if beyond
the control of Developer or Guarantor (including by way of example and not
limitation construction delays due to acts of God, shortages of materials or
obtaining necessary permits or approvals or other Unavoidable Delays). In the
event Total Project Costs are in excess of the Maximum Project Amount, then
Guarantor shall pay the amount of such excess without demand by the Owner. To
the extent Construction Advances are required to be paid by Owner pursuant to
the Development Agreement but are not advanced or otherwise available for use in
developing, constructing and completing the Project solely because of a default
by the Owner, Guarantor shall not be responsible to advance such amount.
4.2. The costs which comprise Total Project Costs consist of the
following costs and expenses incurred by or on behalf of the Owner in connection
with the development, construction and Final Completion of the Project,
regardless of whether said costs are paid directly by the Owner or by Guarantor
on behalf of the Owner:
(a) All costs and expenses incurred for acquisition of the Land,
including title insurance charges and premiums, transfer taxes (if any), survey
expenses and legal expenses;
(b) All payments to the General Contractor, subcontractors,
materialmen, suppliers, laborers and workmen hired by or on behalf of the Owner
to construct the Facility;
(c) Insurance costs during the "Construction Period", which for
purposes of this Agreement shall mean the period which commenced at the start of
construction of the Facility and which will end on the "Termination Date", as
that term is defined in Section 6.1 hereof;
(d) Fees of architects, engineers, consultants (including but not
limited to fees of Guarantor under that certain Development Agreement of even
date) and appraisers engaged with respect to the construction of the Project;
fees of attorneys of Guarantor and the Owner incurred in connection with
negotiating the lease with Assisted Care Operators of [ ], LLC, a Delaware
limited liability company (the "Tenant"), the financing commitments and loan
documents with the Construction Lender and the contracts with the Genera1
contractor. architects, engineers and other consultants;
(e) Real estate taxes during the Construction Period and all other
taxes levied, assessed or imposed on the Project during the Construction Period;
(f) All water and sewer and other utility expenses during the
Construction Period;
(g) All costs and expenses which are the obligation of the
Developer or Guarantor under any construction contract (including but not
limited to the Construction Contract) or any other
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contract or agreement entered into by Developer or Guarantor on behalf of the
Owner or by the Owner with the consent of Guarantor for the construction and
Final Completion of the Projects;
(h) All costs and expenses incurred in obtaining all licenses,
permits and approvals required for the operation of the Premises as a duly
licensed assisted living facility;
(i) All costs and expenses incurred by the Owner in connection
with the enforcement of its rights under the Development Agreement and the
Transaction Documents (as defined in the Development Agreement) arising out of
the failure by the Developer to perform fully its obligations under the
Development Agreement or the failure of Guarantor to perform its obligations
under this Agreement, including, without limitation, the reasonable fees and
expenses of its attorneys and travel, lodging and other out-of-pocket expenses
of its officers and other representatives; provided, however, that Total Project
Costs shall not include general operating expenses of the Owner;
(j) all fees payable to Developer pursuant to the Development
Agreement; and
(k) all other "Costs of Construction" (as defined in the
Development Agreement).
5. DEFAULTS AND REMEDIES; INDEMNIFICATION.
5.1. The occurrence of one or more of the following shall, at the
option of the Owner, constitute an Event of Default by Guarantor hereunder:
(a) Developer shall fail to observe and perform any material term,
covenant and condition on its part to be performed under the Development
Agreement when such observance or performance is due; provided, however, that if
the Transaction Documents provide a grace or cure period within which to cure
such default, Guarantor shall have the right to cure such default within the
time provided in the Transaction Documents;
(b) Any Event of Default by or on the part of Developer, Guarantor
or the affiliates of either or by Tenant or its affiliates shall have occurred
and continue under any one or more of the Transaction Documents;
(c) Developer shall have failed to make any payment or perform any
other material obligation under any contract for the Project on the date such
payment or performance is due; provided, however, if such contract or agreement
provides a grace or cure period within which to cure the default, Guarantor
shall have the right to cure the default within the time period provided in the
applicable contract or agreement;
(d) Guarantor shall have failed to observe and perform any one or
more of the terms, covenants and agreements on its part to be observed and
performed under this Agreement other than matters covered by the other
subsections of this Section 5.1, and such failure shall have continued for a
period of thirty (30) days after notice specifying such default and demanding
that the same be cured shall have been given to Guarantor (provided that such
thirty (30) day cure period shall be extended for the period of time that
Guarantor is prevented from curing a default by reason of matters beyond the
reasonable control of Guarantor so long as the commences such
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curing during the said thirty (30) day period, Guarantor diligently thereafter
pursues such cure to completion and such failure is cured in all events within
120 days of the date of notice specifying the default);
(e) A court of competent jurisdiction shall enter a decree or
order for relief in respect to Guarantor in any involuntary case under the
Federal Bankruptcy Code or any other applicable bankruptcy, insolvency or
similar law now or hereafter in effect, or appointing a receiver, liquidator,
trustee or similar official of Guarantor or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain and stay in effect for a period of one hundred
twenty (120) consecutive days; or
(f) Guarantor shall commence a voluntary case under the Federal
Bankruptcy Code or any applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case under such law, or shall consent to the appointment or taking
possession by a receiver, liquidator, trustee or similar official of Guarantor
or for any substantial part of its property.
Guarantor shall give Owner written notice of any act, omission or condition
constituting a default or which would, with the passage of time or giving of
notice (or both), constitute a default under this Agreement within five (5) days
of discovery.
5.2. Upon the occurrence of any Event of Default (but not prior
thereto), the Owner, in addition to any other remedy available at law or in
equity, shall be entitled to:
(a) After not less than two (2) business days notice to Guarantor
of its intention to do so (except in the case of an emergency, in which case no
prior notice shall be required), make any payments or perform any obligations
due under the Development Agreement which the Developer is required to pay or
perform under the terms of the Development Agreement or Guarantor is required to
pay or perform pursuant to the terms of this Agreement for the account of the
Owner, and any sums spent by the Owner from funds or sources which were not
otherwise to have been made available to Developer or Guarantor for such
purposes pursuant to the terms of this Agreement or the Development Agreement
shall be repaid by Guarantor upon demand, together with interest thereon at the
lesser of the Default Rate or the maximum rate of interest permitted under
applicable law from the date of demand for repayment until the date repaid;
(b) Offset any monies due to the Owner from Guarantor pursuant to
this Agreement or from the Developer pursuant to the Development Agreement
against any monies due from the Owner to Guarantor, together with interest
thereon at the Default Rate; and/or
(c) Upon not less than two (2) business days' prior notice to
Guarantor of its intention to do so (except in the case of an emergency, in
which case no prior notice shall be required), enter upon and take possession of
the Facility (whether in the course of construction or completed), and all
materials, supplies, tools, equipment and construction facilities and appliances
located thereon, and proceed either in the name of the Owner or in the name of
Guarantor, as the Owner shall elect, to Finally Complete the Project at the cost
and expense of Guarantor (but giving to Guarantor credit for funds which would
otherwise have been made available to Guarantor for such purposes
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pursuant to the terms of this Agreement). If the Owner elects to complete or
cause the Project to be so completed, it may do so according to the terms of the
Construction Contract (and the Plans and Specifications) and all other
authorized contracts with such changes, alterations or modifications as may be
necessary to complete the Project, and the Owner may enforce or cancel all
contracts entered into, as aforesaid or make other contracts which in the
Owner's reasonable opinion are required to complete construction of the Project;
and Guarantor shall be liable under this Agreement to pay to the Owner upon
demand any amount or amounts incurred or extended by the Owner or its
representatives for such performance over and above the Maximum Project Amount;
any amount so payable to the Owner pursuant to this sentence shall bear interest
at the lesser of the Default Rate or the maximum rate of interest permitted
under applicable law from the date of demand by the Owner until payment in full;
and/or
(d) The Owner may exercise all of the rights and remedies provided
for in this Agreement or any other rights which may be available to the Owner by
law or in equity, and all such rights and remedies are cumulative and concurrent
and may be pursued singly, successively or together at the Owner's sole
discretion and may be exercised as often as the occasion therefor shall occur.
Any failure by the Owner to insist on the strict performance by Guarantor of any
of the terms hereof shall not be deemed to be a waiver of any of the terms
hereof and the Owner, notwithstanding any such failure, shall have the right
thereafter to insist upon strict performance by Guarantor of any and all of the
terms of this Agreement.
5.3. The representations, warranties and agreements of Guarantor
herein are of a special, unique and extraordinary character, any violation of
which would cause the Owner irreparable harm which could not be reasonably or
adequately compensated by damages in an action at law, and this Agreement shall,
therefore, be specifically enforceable by injunction or other appropriate
equitable proceeding.
5.4. Without limitation on the provisions of Section 1.1 above,
Guarantor hereby waives notice of acceptance of this Agreement and any and all
notices and demands of every kind which may be required to be given by any
statute or rule of law, and Guarantor agrees that its liability hereunder shall
be in no way affected, diminished or released by (a) any extension of time or
forbearance which may be granted to the General Contractor, (b) any waiver by
the Owner under the Construction Contract, (c) the acceptance by the Owner of
additional security, or (d) any bankruptcy or other insolvency proceeding
affecting the General Contractor, it being the intent that the obligations of
Guarantor hereunder shall be absolute, independent and unconditional under any
and all circumstances, including but not limited to any bankruptcy or other
insolvency proceeding involving Guarantor.
5.5. The enforcement of the rights and remedies of the Owner under
this Agreement or under applicable law shall not constitute an election of
remedies by the Owner. The Owner shall not be obligated to marshal remedies or
assets or to proceed against the General Contractor or any other party as a
condition to the enforcement of the liabilities of Guarantor hereunder.
Guarantor shall pay all reasonable attorneys, fees and court costs incurred by
the Owner in enforcing its rights under this Agreement.
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5.6. Guarantor agrees to indemnify and save the Owner harmless from
and against any and all loss, cost or expense (including, without limitation,
reasonable attorneys, fees and court expenses) arising out of the breach or
violation of any representation, warranty or covenant of Guarantor under this
Agreement.
6. TERMINATION.
6.1. The obligations of Guarantor under this Agreement shall
terminate on the date (the "Termination Date") when all of the following have
occurred: (i) the Project has been Finally Completed, including without
limitation the issuance of a certificate of occupancy for the Premises; (ii) all
licenses for occupancy of the Premises as a duly licensed assisted living
facility are obtained (including licenses which must be obtained by the operator
of such a facility); and (iii) the Tenant accepts possession of the Facility
under the Lease and commences payment of rent thereunder.
6.2. Upon the expiration or earlier termination of this Agreement,
Guarantor shall forthwith surrender and deliver and cause the Developer to
surrender and deliver to the Owner any space in the Premises occupied by
Guarantor and shall make delivery to the Owner or to the Owner's designee any
funds of the Owner held by Guarantor or the Developer with respect to the
Project, and all records, plans, specifications, permits and other governmental
approvals, purchase agreements, contracts, receipts for deposits, unpaid bills
and all other records, papers and documents in the possession of Guarantor
relating to the Project and the development and construction thereof. In
addition, Guarantor shall furnish such information and take such action as the
Owner shall reasonably require (including, if applicable, cooperating with the
person or entity designated by the Owner as the new Guarantor of the Project
after the occurrence of an Event of Default hereunder) to effectuate an orderly
and systematic termination of Guarantor's duties and activities under this
Agreement and of the Developer's activities under the Development Agreement.
7. MISCELLANEOUS
7.1. This Agreement embodies the entire agreement and understanding
between the parties relating to the subject matter hereof and supersedes all
prior agreements and understandings relating to such subject matter, and it is
agreed that there are no terms, understandings, representations or warranties,
expressed or implied, other than those set forth herein.
7.2. This Agreement shall be binding upon the parties hereto and
their respective successors and permitted assigns. This Agreement may not be
assigned by either of the parties hereto without the written consent of the
other party, except that the rights of the Owner hereunder may be collaterally
assigned to American Health as security for the performance of Guarantor under
the Facility Agreement.
7.3. The descriptive headings of the articles and sections of this
Agreement are inserted for convenience only, and are not intended to and shall
not be construed to limit, enlarge or affect the scope or intent of this
Agreement or the meaning of any provision hereof.
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12
7.4. All notices, consents, waivers, directions, requests or other
instruments or communications provided for under this Agreement shall be in
writing, signed by the party giving the same or such party's attorney, and shall
be deemed properly given if sent by reputable overnight service, by telegram or
by registered or certified United States mail, return receipt requested, postage
prepaid, and addressed as follows:
If to Guarantor: Balanced Care Corporation
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
With a Copy to: Xxxxxxxxxxx and Laockhart, LLP
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
If to the Owner: AHP of [ ], Inc.
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President and General Counsel
or to such other address as a party may from time to time designate in writing
in the manner set forth above.
7.5. This Agreement may not be changed or modified except by an
agreement in writing executed by each of the parties hereto.
7.6. Unless otherwise specifically provided herein, all rights,
privileges and remedies afforded to the parties by this Agreement shall be
cumulative and not exclusive, and the exercise of any one of such remedies shall
not be deemed to be a waiver of any other rights, remedies or privileges
provided for herein or available at law or in equity or under any other document
executed in connection with this Agreement.
7.7. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7.8. THIS AGREEMENT SHALL BE GOVERNED BY AND IN ACCORDANCE WITH THE
LAWS OF THE STATE OF [INDIANA]. If any provision of this Agreement is declared
or found by a court of competent jurisdiction to be unenforceable or null and
void, such provision shall be deemed stricken from this Agreement, and the
remaining provisions hereof shall continue in full force and effect.
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[SIGNATURES COMMENCE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on this 1st day of February 1998, to be effective as of the day
and year first above written.
AHP OF [INDIANA], INC.,
an Indiana corporation
By: /s/ Signature Illegible
------------------------------
Name:
Title:
Its Authorized Representative
BALANCED CARE CORPORATION,
a Delaware corporation
By: /s/ Signature Illegible
------------------------------
Name:
Title:
Its Authorized Representative
15
Schedule to Exhibit 10.81 filed pursuant to Instruction 2 to Item
601(a) of Regulation S-K
Completion Guaranty
Location Owner
Jackson, TN AHP of Tennessee, Inc.
