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HomeMy WebLinkAbout01-07078 ",~il- , r:;f'" WHITE AND WILLIAMS LLP By: Steven E. Ostrow, Esquire Dawn L. Vahey, Esquire Identification Nos.: 50568,87934 1800 One Liberty Place Philadelphia, PA 19103-7395 (215) 864-7000 Attorneys for Plaintiff PENNSYLVANIA BCC PROPERTIES, INC. One SeaGate, Suite 1500 P.O. Box 1475 Toledo OH 43603, COURT OF COMMON PLEAS, OF CUMBERLAND COUNTY PENNSYLVANIA Plaintiff No. 0/ - 1D'l P (J u iL '7-fiR..~ v, BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, PA 17055, Defendant NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and fIling in writing wim the court your defenses or objections to me claims set forth against you. You are warned mat if you fail to do so the case may proceed without you and a judgment may be entered against you by the court wimout further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. Doc#: 1257509 vI "~~"?""__<:;,,,,.,;:;<j;_'i' ,- 12,",~,,'"::~,,ur'''j' ,~",~"",,,-,'_'_"i,'$' ~_",?,' ,"'ICf'\{c~"', ~:"~" r.o_ .', - 1- ,^'- "',te:" ........, 'I. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. DOC#: 1257509 vI hp1~ "_k_ ~ "'-",-"',' -_",_,f",',::t"., ,_;."",, ,_ ,_ ."", , .",,< __;",;~",,-'I>'_,,' _ _: ~, ,,' " North Penn Legal Services 168 E. 5th Street Bloomsburg, PA 17815 Phone: (570) 784-8760 ,,,_,,, '--"'-, -~'T;,~_ -~"---,~ ,~ ~-~~.. '"~11!:_ 1 1~- __A .'''" '- TillS IS NOT AN ARBITRATION MATTER. WillTE AND WILLIAMS LLP By: Steven E. Ostrow, Esquire Dawn L. Valley, Esquire Identification No.: 50568, 8794 1800 One Liberty Place Philadelphia, PA 19103-7395 (215) 864-7000 Attorneys for Plaintiff Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 61-767! Q.I'U~C l~ PENNSYLVANIA BCC PROPERTIES, INC. One SeaGate, Suite 1500 P.O. Box 1475 Toledo OH 43603, BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, PA 17055, Defendant COMPLAINT IN CIVIL ACTION Plaintiff, Pennsylvania BCC Properties, Inc. ("Pennsylvania BCC"), by and through the undersigned counsel, files this civil action against Balanced Care Corporation ("Balanced Care") to enforce certain guaranties, and in support thereof avers as follows: 1. Plaintiff is a Pennsylvania corporation with an office located at One SeaGate, Suite 1500, P.O. Box 1475, Toledo, Ohio, 43603. 2. Defendant, Balanced Care, is a Delaware corporation, with an office located at 1215 Manor Drive, Mechanicsburg, Pennsylvania 17055. '-"'~_n,~-"'''_'' -","''"'''''~<~1_..~~r.:'_'''_",_,\,;<'",.._,n<c '''',,~ ^ ,,_~"...,"~<_ "__~" .1""'_."' ,. "__Vv", '_' , " ' 1_' ""y_ ,,"',_" ~,,,, ,,'-~' ,,> "'~,%!lL, -, ^ .~ T , (, j.' ~ 3. As is more fully set forth below, Balanced Care issued six (6) separate guaranties to and in favor of Plaintiff, and Balanced Care is liable to Plaintiff on each of the six guaranties. 4. Plaintiff extended to financial Care Investors of Loyalsock, LLC ("Loyalsock") a loan up to the amount of $674,050.00 ("Loyalsock Loan"). The Loan is evidenced by a Note, as amended and restated, and subject to the terms of a Loan Agreement, as amended.! 5. Loyalsock is in default of the Loyalsock Loan and Loyalsock and Balanced Care were provided notice of the defaults. The Loyalsock Loan has been accelerated by Plaintiff in accordance with the terms of the Loyalsock Loan. 6. One hundred percent (100%) of the equity interest in Loyalsock is owned by Balanced Care at Loyalsock, Inc. Balanced Care at Loyalsock, Inc. is a wholly-owned subsidiary of Defendant, Balanced Care. 7. Balanced Care unconditionally guaranteed the Loyalsock Loan. A copy of the Unconditional and Continuing Guaranty, dated October 31,2000, is attached as Exhibit 1 and incorporated herein by reference ("Loyalsock Loan Guaranty"). 8. Plaintiff is the Landlord under a certain Lease Agreement dated September 22, 1998 with Loyalsock, as amended ("Loyalsock Lease"), under which Plaintiffleased the Leased Property, as defmed in the Loyalsock Lease, to Loyalsock. 9. Loyalsock is in default of the Loyalsock Lease for monetary defaults and other defaults. Loyalsock and Balanced Care were provided notice of the defaults. 1 This Complaint is based upon four lease guaranties and iwo loan guaranties. Each of the six guaranties are atlached as Exhibits, However, the four Lease Agreements and the iwo Loan Agreements referenced herein, including the Notes, are not attached because they are too volwninous and Defendant has a copy of each of these documents, Doc#: 1257500 vI =~,~~~,~"~--~-- ..,' -- ~,~ ~~, .~^," - ,,-, >-'" ~ " ~ , , " ".~_'"'HLnn frI-1 .- 1;. 10. As a result of Loyalsock's defaults under the Loyalsock Lease, the Loyalsock Lease has been terminated in accordance with its terms. 11. Balanced Care unconditionally guaranteed the payment and performance of the Loyalsock Lease. A copy of the Unconditional and Continuing Lease Guaranty, dated October 31,2000 ("Loyalsock Lease Guaranty"), is attached as Exhibit 2 and incorporated herein by reference. 12. Plaintiff extended to Financial Care Investors of Lebanon, LLC ("Lebanon") a loan up to the amount of $686,800.00 ("Lebanon Loan"). The Loan is evidenced by a Note, as amended and restated, and subject to the terms of a Loan Agreement, as amended. 13. Lebanon is in default of the Lebanon Loan, and Lebanon and Balanced Care were provided notice of the defaults. The Lebanon Loan has been accelerated by Plaintiff in accordance with the terms of the Lebanon Loan. 14. One hundred percent (100%) of the equity interest in Lebanon is owned by Balanced Care at Lebanon, Inc. Balanced Care at Lebanon, Inc. is a wholly-owned subsidiary of Defendant, Balanced Care. 15. Balanced Care unconditionally guaranteed the Lebanon Loan. A copy of the Unconditional and Continuing Guaranty, dated October 31,2000, is attached as Exhibit 3 and incorporated herein by reference ("Lebanon Loan Guaranty"). 16. Plaintiff is the Landlord under a certain Lease Agreement dated September 22, 1998 with Lebanon, as amended ("Lebanon Lease"), under which Plaintiffleased the Leased Property, as defined in the Lebanon Lease, to Lebanon. 17. Lebanon is in default of the Lebanon Lease for monetary defaults and other Doc#; 1257500 vi ;1i1!I,_,,,, . ,_ . ^,~" _ ~"~,~ ,_ ", _,_.~ ...._"_,._ ~ - ,0..' ?,,'~. '~" - ,-,~.~ ", ',- ," . " "_"_~'_ d~'_~_~ -~ ---~- _"r:_' V~', "[n :-,~::',~~q:c::r ~ " defaults. Lebanon and Balanced Care were provided notice of the defaults. 18. As a result of Lebanon's defaults under the Lebanon Lease, the Lebanon Lease has been terminated in accordance with its terms. 19. Balanced Care unconditionally guaranteed the payment and performance of the Lebanon Lease. A copy of the Unconditional and Continuing Lease Guaranty, dated October 31,2000 ("Lebanon Lease Guaranty") is attached as Exhibit 4 and incorporated herein by reference. 20. Plaintiff is the Landlord under a certain Lease Agreement dated March 15, 1999 with Balanced Care at Bloomsburg II ("Bloomsburg"), as amended ("Bloomsburg Lease"), under which Plaintiff leases the Leased Property, as defined in the Bloomsburg Lease, to Bloomsburg. 21. Bloomsburg is in default of the Bloomsburg Lease, and Bloomsburg and Balanced Care were provided notice of the defaults. As a result of Bloomsburg's defaults under the Bloomsburg Lease, the Bloomsburg Lease has been terminated in accordance with the terms of the Bloomsburg Lease. 22. Bloomsburg is a wholly-owned subsidiary of Defendant, Balanced Care. 23. Balanced Care unconditionally guaranteed the payment and performance of the Bloomsburg Lease. A copy of the Unconditional and Continuing Lease Guaranty, dated March 15, 1999 ("Bloomsburg Lease Guaranty"), is attached as Exhibit 5 and incorporated herein by reference, 24. Plaintiff is the Landlord under a certain Lease Agreement dated March 15, 1999 with Balanced Care at Saxonburg, Inc. ("Saxonburg"), as amended ("Saxonburg Lease"), Doc#: 1257500 vI ,_,,",,"~,~",_~, ,," .'c. ,I"',"~' ,__,~,"__,~ _~ , ,---" '. "':'-" " -, ~" , t ' ;~f-:T':1!'1f1 i ,: ""':.'i-rt'..- ~ under which Plaintiff leases tlie Leased Property, as defined in the Saxonburg Lease, to Saxonburg. 25. Plaintiff is the Landlord under a certain Lease Agreement dated March 15, 1999 with Saxonburg ("Saxonburg Lease") under which Plaintiff leases the Leased Property, as defmed in the Saxonburg Lease. 26. Saxonburg is in default of the Saxonburg Lease, and Saxonburg and Balanced Care were provided notice of the defaults. As a result of Saxonburg's defaults under the Saxonburg Lease, the Saxonburg Lease has been terminated in accordance with the terms of the Saxonburg Lease. 27. Saxonburg is a wholly-owned subsidiary of Defendant, Balanced Care. 28. Balanced Care unconditionally guaranteed the payment and performance of the Saxonburg Lease. A copy of the Unconditional and Continuing Lease Guaranty, dated March 15, 1999 ("Saxonburg Lease Guaranty"), is attached as Exhibit 6 and incorporated herein by reference. 29. Under each of the six guaranties referenced herein, Balanced Care waived numerous rights including, but not limited to, tlie right to notice and all suretyship and otlier similar defenses. Under the express terms of each guaranty referenced herein, Balanced Care also waived any requirement that Plaintiff pursue the primary obligor or tenant prior to pursing its claims against Balanced Care under the guaranties. 30. Under each of the six (6) guaranties referenced herein, Plaintiff is entitled, under the facts set forth herein, to conunence this action against Balanced Care on each of the six (6) guaranties. Doc#: 1257500 vI :~,r.",_"__, ,"_.."', .-",,,-,,,,,, ."'~,' .",{,,,,.,.~,,,,.. ">"""1"' e",,_._ _' _70~ _, J -,"" . ~ ,M', ,0;,'... -",'-"- "I "4i;!;r"'"''"''''U~YiTilfr~-' --1.- J!!!l , COUNTl (Loyalsock Loan Guaranty) 31. Plaintiff incorporates herein by reference the averments set forth in paragraphs 1 through 30 above as if said averments were set forth in full. 32. Under the Loyalsock Loan Guaranty, as of November 30, 2001, Balanced Care owes Plaintiff the amount of $792,965.69, plus interest at the Default Rate of $407.56 per diem, and attorneys' fees, expenses and costs of suit. WHEREFORE, Plaintiff demands judgment in its favor and against Balanced Care as follows: (a) for an award on the Loyalsock Loan Guaranty in the amount of $792,965.69, plus interest at the Default Rate of $407.56 per diem from December 1, 2001 until the said amount is paid in full, including the period following the entry of judgment; (b) for an award of reasonable attorney's fees, costs of suit and litigation expenses; and (c) for such other and further relief as this Court deems just and appropriate. COUNT II (Loyalsock Lease Guaranty) 33. Plaintiff incorporates herein by reference the averments set forth in \ paragraphs 1 through 32 above as if said averments were set forth in full. 34. Under the Loyalsock Lease Guaranty, Balanced Care owes Plaintiff an amount that cannot yet be determined but is in excess of $18,000.00, plus interest, attorneys' fees, expenses and costs of suit. Doc#: 1257500 vI '~,'Fr- "'~"~'__" "0"__ '_0. __,,<..~ ~ ~ "f.,,,,,_,~,,,,.,-,,,~..,,^ ,'<" _" " -'-'~ - y ,"- " - ~~"'''-' " ' -" ",~ , il"~C-:'f~r'~'- ~,-,. , WHEREFORE, Plaintiff demands judgment in its favor and against Balanced Care as follows: (a) for an award on the Loyalsoek Lease Guaranty in an amount that carmot yet be determined but is in excess of $18,000.00, plus interest, and any and all other amounts which accrue and are owed under the subject lease hereinafter; (b) for an award of reasonable attorney's fees, costs of suit and litigation expenses; and (c) for such other and further relief as this Court deems just and appropriate. COUNT III (Lebanon Loan Guaranty) 35. Plaintiff incorporates herein by reference the averments set forth in paragraphs 1 through 34 above as if said averments were set forth in full. 36. Under the Lebanon Loan Guaranty, as of November 30,2001, Balanced Care owes Plaintiff the amount of $774,578.76, plus interest at the Default Rate of $398.11 per diem, and attorneys' fees, expenses and costs of suit. WHEREFORE, Plaintiff demands judgment in its favor and against Balanced Care as follows: (a) for an award on the Lebanon Loan Guaranty in the amount of $774,578.76, plus interest at the Default Rate of $398.11 per diem from December I, 2001 until the said amount is paid in full, including the period following the entry of judgment; (b) for an award of reasonable attorney's fees, costs of suit and litigation expenses; and Doc#: 1257500 vI '<:11t9:'~'''"'f,'~ "~'"''"'''__'''''''''"'''''''''''' ",'^"',"'''''M"''','''""_~_',,,.' ',' "_,, CO '"," ,."_,,,0- ,_~ , ~'. ,'- , ".'",' ~".'_ '"', ___. ,- "', _ > -" "v ~ ," "."" " . ~ I~ ,";,,~,",,;,\"'j~f'~~'~'~""lr - ,." ,- , (c) for such other and further relief as this Court deems just and appropriate. COUNT IV (Lebanon Lease Guaranty) 37. Plaintiff incorporates herein by reference the averments set forth in paragraphs 1 through 36 above as if said averments were set forth in full. 38. Under the Lebanon Lease Guaranty, Balanced Care owes Plaintiff an amount that cannot yet be determined but is in excess of $17,000.00, plus interest, attorneys' fees, expenses and costs of suit. WHEREFORE, Plaintiff demands judgment in its favor and against Balanced Care as follows: (a) for an award on the Lebanon Lease Guararlty in an amount that cannot yet be determined but is in excess of $17,000.00, plus interest and any and all other amounts which accrue and are owed under the subject lease hereinafter; (b) for an award of reasonable attorney's fees, costs of suit and litigation expenses; and (c) for such other arid further relief as this Court deems just and appropriate. COUNT V (Bloomsburg Lease Guaranty) 39. Plaintiff incorporates herein by reference the averments set forth in paragraphs 1 through 38 above as if said averments were set forth in full. 40. Under the Bloomsburg Loyalsock Lease Guararlty, Balanced Care owes Plaintiff an amount that cannot yet be determined but is in excess of $16,000.00, plus interest, attorneys' fees, expenses arid costs of suit. Doc#: 1257500 vI "~:~r~,_.. _,',"" ^"'7~'':- "",~ ",,~ -~, ",I"'''''-''~''-'"''''T,~;'?',f~-''~'~ ",.~ , ~,; ."q , ," --~ ~ "'.> -"" .'," '''~';;';;''''':'.:--':"iT"'lj:rt . , WHEREFORE, Plaintiff demands judgment in its favor and against Balarlced Care as follows: (a) for arI award on the Bloomsburg Lease Guararlty in an amount that cannot yet be determined but is in excess of $16,000.00, plus interest, and any arid all other amounts which accrue arid are owed under the subject lease hereinafter; (b) for an award of reasonable attorney's fees, costs of suit arid litigation expenses; and (c) for such other arid further relief as this Court deems just and appropriate. COUNT VI (Saxonburg Lease Guaranty) 41. Plaintiff incorporates herein by reference the averments set forth in paragraphs 1 through 40 above as if said averments were set forth in full. 42, Under the Saxonburg Loyalsock Lease Guaranty, Balanced Care owes Plaintiff an amount that cannot yet be determined but is in excess of $23,000.00, plus interest, attorneys' fees, expenses and costs of suit. WHEREFORE, Plaintiff demands judgment in its favor and against Balanced Care as follows: (a) for an award on the Saxonburg Lease Guaranty in an amount that cannot yet be determined but is in excess of $23,000.00, plus interest and arlY and all other amounts which accrue arid are owed under the subject lease hereinafter; (b) for an award ofreasonable attorney's fees, costs of suit arid litigation expenses; and (c) for such other and further relief as this Court deems just arid appropriate. Respectfully submitted, Doc#: 1257500 vI '''':#~l:\" -- ~~ "~,. ,,, " __ __. ,~ - __ __ "I, "_ ,.", __ ~,~.. " 'n'" '_ -", ",- " '''' J~ ~ ~~ """"i'"" ,trj" ",,' ,.. ii' "~~,'.~ "~,,~ ~= Dated: December 17, 2001 Doc#: 1257500 vI ",-- .,__",,' c .~~ H>, "_, wmTE AND WILLIAMS LLP By: ~~! - Steven E. Ostrow, Esquire Dawn L. Vahey, Esquire Attorneys for Plaintiff - ", ' . _ .. ," , ,'" _~" '.'- - ~, f '_ ,e,,<__ - . >n_ _" ,J "'J :' Tl J ~ ",'",'-- ~" ---- ." VERIFICATION The undersigned, subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities, states that she is an officer and/or representative of the Plaintiff in this action; she is authorized to make this Verification on Plaintiff's behalf, and that the facts set forth in the foregoing Complaint are true and correct to the best of her knowledge, information and belief. ~~L~ Erin C. Ibele ,..,~,.-rr ..'o.~" ~_. . ~ ~ ,,=^,-''''.~.., ".."..,.-. " _ ."c- _~~O" ~,~ ,,<,'"r ~ .." ___.~", "', .",~.~r z__",_'. ~_ ~__"~." _<""'~ __ ,~_'" "" <'-~'I-"''''',",' UNCONDITIONAL AND CONTINUING GUARANTY THIS GUARANTY is made effective as of October 31, 2000 (the "Effective Date") by BALANCED CARE CORPORATION ("Guarantor"), in favor of PENNSYLVANIA BCC PROPERTIES, INe. a corporation organized under the laws of the Connnonwealth of Pennsylvania ("Lender"). RECITALS A. Lender has extended to Financial Care Investors, LLC ("FCI''), a loan in an amount of up to $674,050,00 ("Loan'') pursuant to a Loan Agreement between Lender and FCl dated as of September 22, 1998 as amended by a First Amendment to Loan Agreement dated as of September 30, 1999 ("Loan Agreement"). The Loan was extended to FCI in connection with Lender entering into a Lease Agreement ("Lease") with Financial Care Investors of Loyalsock, LLC ("Borrower" or "Tenant"), a wholly owned subsidiary of FCI, for the assisted living facility ("Facility") on the real property located in Montoursville, Pennsylvania ("Property"). B. Manager has now acquired FCI's membership interest in Tenant. In connection with this acquisition, Borrower has agreed to assume responsibility for repayment of the Loan. Borrower has executed an Amended and Restated Note to evidence its obligation to repay the Loan ("Note"). Borrower has also executed a Second Amended and Restated Loan Agreement of even date herewith, Hereinafter all references to the Loan Agreement shall mean the Second Amended and Restated Loan Agreement of even date herewith. C. In order to permit the assumption of the Loan by Borrower, Lender requires that this guaranty be provided by Guarantor. Balanced Care at Loyalsock, Inc, is the sole member of Borrower and is a wholly owned subsidiary of Guarantor and Guarantor has determined that Guarantor will benefit from Borrower's assumption of the Loan and has agreed to provide this guaranty to Lender. D. As used herein, "Loan Documents" means the Note, Loan Agreement, and all other documents and agreements made in connection with the Loan, as amended, modified, renewed or extended from time to time. "Credit" means all principal, interest, charges, expenses and all other amounts payable by Borrower to Lender pursuant to the Loan Documents. "Security" includes all guaranties of any Credit, all interests in real or personal property securing the payment of any Credit or any guaranties of any Credit, and all other agreements, rights, or interests insuring or guaranteeing payment of any Credit. "Loan Obligations" means all of the covenants, obligations and liabilities of Borrower under the Loan Documents, including the payment of the Credit when due. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and Guarantor intending to be legally bound hereby, agree as follows: clr\hcri\loyalsock\Joan.guaranty 11122100 ':?,i!! ;:'1 '"''=!' T' ,'- -1~ ,!1:7""'" '"', ~ " I ~,' _T'" 1_ ~. ,w ~'Y,'- 1. Guarantv. Guarantor unconditionally guarantees the prompt payment when due of the Credit and the performance of the Loan Obligations and shall indemnify Lender and hold Lender hannless from any costs and expenses in any way arising out of Borrower's failure to repay the Credit or perform the Loan Obligations according to their terms. 2, Warranties. (a) Capacity. Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, Guarantor warrants that Guarantor has taken all necessary corporate action to incur the obligations of this guaranty and to execute, deliver and perform this guaranty. (b) Contracts, Guarantor warrants that there is no provision of Guarantor's Articles of Incorporation or Bylaws or any existing indenture, contract, or agreement to which Guarantor is a party or of any law, administrative regulation, court order, or consent decree that would be contravened by the execution, delivery, or performance ofthis guaranty, (c) Inducement to Lender; Waivers. Guarantor [1] acknowledges that Lender would not have permitted Borrower to assume the Credit and will not continue to extend Credit to Borrower but for this guaranty; [2] warrants that Guarantor has given this guaranty to induce Lender to extend and to continue to extend Credit to Borrower; [3] agrees that Lender may rely on this guaranty in extending future Credit to Borrower without notice to Guarantor, but only in connection with the Leased Property; [4] warrants that Guarantor has received good and valuable consideration for this guaranty; [5] waives acceptance of this guaranty; [6] warrants that Guarantor has not given this guaranty in reliance upon the existence of any Security; [7] acknowledges receipt of notice of all Credit extended before this date; [8] waives notice of any Credit extended after this date except as specifically provided in the Lease; [9] waives protest and any other notice of failure to pay the Credit or to perform any agreement relating to any Credit or Security except as specifically provided in the Lease; [10] acknowledges that Guarantor has read this guaranty, the Note, the Loan Agreement, and all other documents in connection with the Loan; and [11] acknowledges that Guarantor understands and agrees to Guarantor's obligations under this guaranty. (d) No Reliance on Information from Lender. Guarantor [l J warrants that Guarantor has not relied on any information about the Borrower, the Security, or any guarantor of the Credit provided directly or indirectly by Lender; [2J warrants that Guarantor is familiar with Borrower, Borrower's affairs, and the Security; [3] warrants that Guarantor has had ample opportunity to investigate Borrower, Borrower's affairs, the Security, and the effect that the Credit will have; [4J warrants that Guarantor has been provided all information concerning Borrower, Borrower's affairs, and the Security that Guarantor has requested; [5] warrants that Guarantor has had adequate opportunity to seek and evaluate professional advice concerning Borrower, the Security, and this guaranty from advisors of Guarantor's choosing, including financial and legal advice; and [6)agrees that Guarantor shall not rely on any information provided by Lender about Borrower or the Security, including any other guarantor. Guarantor shall continue to investigate and evaluate Borrower and the Security independently throughout the term of this guaranty, and Lender has no obligation to provide Guarantor any information about the Borrower or the Security. clr\hcri\Joya lsock\loan.guaranty -2- 11/22/00 V"1"'l' ':; _ ~ _ _""_~'. - ~~ - , I " ~ "-,, ;')'f' ,~ , 'T-'~ (e) No Insolvencv. On the date of the Guarantor's entering into this guaranty and after giving effect to all indebtedness of the Guarantor, [1] the Guarantor will be able to pay Guarantor's obligations as they become due and payable; [2] the present fair saleable value of the Guarantor's assets exceeds the amount that will be required to pay Guarantor's probable liability on its obligations as the same become absolute and mature; [3] the sum ofthe Guarantor's property at a fair valuation exceeds Guarantor's indebtedness; and [4] the Guarantor will have sufficient capital to engage in Guarantor's businesses. The proceeds of the Credit constitute fair consideration and reasonably equivalent value for this guaranty, 3. Waivers. Without notice to or consent of Guarantor, Lender may do 01: refrain from doing anything affecting any Credit or any Security including the following: [a] granting or not granting any indulgences to anyone liable for payment of the Credit or any Security; [b] failing to get or to perfect any Security; [c] failing to get an enforceable agreement to repay the Credit; [d] releasing any Security or anyone or any property from liability for payment of the Credit; [ e) changing the Loan Agreement or any agreement relating to the Credit or any Security including, without limitation, any change in the schedule or manner for the payment of any Credit and any increase or decrease in the rate of interest payable thereon; [f] extending the time for payment of the Credit including extending the time beyond the term of the Note; [g] exercising any right or remedy, including, without limitation, taking a deed in lieu of foreclosure; [h] applying any funds received from Borrower, Guarantor or any other party and any fimds realized from any Security to the Credit in such manner and in such order or priority as Lender elects in its sole discretion; and [i) delaying in enforcing or failing to enforce any rights to payment of the Credit or rights against any Security. In the event that Lender forecloses or otherwise realizes on any Security for repayment of the Credit, Guarantor agrees that the purchase price at any judicial or nonjudicial sale of the Security paid by Lender or any other party shall be conclusive evidence of the value of the Security and Lender shall have an absolute right, subject to applicable law, to obtain a deficiency judgment against Guarantor of all amounts due in excess of such purchase price, even though any rights which Guarantor may have against others might be destroyed or diminished by the exercise of any such remedy by Lender. To the fullest extent permitted by law, Guarantor waives the right to contest the value of the Security through appraisals or otherwise, and waives any defense to a deficiency judgment that Guarantor may have pursuant to any stahlte or other applicable law. 4. Defects in Securitv. Etc. Guarantor's liability under this guaranty shall not be affected by [a] any default in any document concerning any Credit or Security when accepted by Lender or arising any time thereafter; [b) the unenforceability of or defect in any Security or document relating to any Credit; [c) any decline in the value of any Security; [d] Lender's failure to obtain any Security or to perfect Lender's security interest therein; or [ e) the death, incompetence, insolvency, dissolution, liquidation, or winding up of affairs of Borrower, Guarantor, or anyone liable for any Security or the start of insolvency proceedings by or against any such person or entity. 5. Waiver of Suretv's Defenses. GUARANTOR W AlVES ALL SURETYSIDP AND OTHER SIMILAR DEFENSES. 6, Unconditional Obligation. If Borrower fails to pay all or any part of any Credit when due after expiration of any applicable grace, notice or cure period, Guarantor shall immediately pay to Lender all amounts then due and payable in connection with any Credit, regardless of whether or not Lender first pursues Borrower or exhausts any of its rights or remedies c1r\hcn"\loyalsock\loan.guarnnty -3- 11/22/00 ';"~~~r~ " _<... ~ ..,." " . Jl " r" ., , ' - '"",ilf1r '-~Ww~, _ " against Borrower, any other Guarantor, others, or other Security. Guarantor shall not have any right of subrogation to the rights of Lender against any of the assets of Borrower or any other guarantor of the Loan until after indefeasible payment in full of the Credit. 7. Continuing Obligation. This guaranty shall extend and be applicable to all renewals, amendments, extensions, consolidations, modifications, increases and reductions of the Loan Documents and the Credit. Guarantor's liability under this guaranty shall not be reduced or cancelled by any such action and shall be deemed modified in accordance with the terms of such action, whether or not Guarantor has notice of such action. 8, Subordination. Guarantor subordinates to and postpones in favor of the Credit and Security [a] any present and future debts and obligations of Borrower to Guarantor (the "Indebtedness") including but not limited to [i] salary, bonuses, and other payments pursuant to any employment arrangement; [ii] fees, reimbursement of expenses and other payments pursuant to any independent contractor arrangement; [iii] principal and interest pursuant to any Indebtec\ness; [iv] distributions payable to any shareholders or general or limited partners of Borrower; and [v] lease payments pursuant to any leasing arrangement; and [b] any liens or security interests securing payment of the Indebtedness. Except as otherwise specified in the Loan Agreement, the provisions of this paragraph shall be effective only [i] after the occurrence ofan Event of De fault (as defined in the Loan Agreement) and until such Event of Default is cured, or [ii] after the commencement of any bankruptcy or insolvency proceeding by or against Borrower and until such proceeding is dismissed, Guarantor shall not ask for, sue for, demand, take or receive any payment, by setoff or in any other manner, including the receipt of a negotiable instrument, for all or any part of the Indebtedness owed by Borrower, or any successor or assign of Borrower, including without limitation a receiver, trustee or debtor in possession (the term "Borrower" shall include any such successor or assign of Borrower) until the Credit has been paid in fun; however, if Guarantor receives such a payment, Guarantor shall immediately deliver the payment to Lender for credit against the then outstanding balance of the Credit, whether matured or unmatured, Notwithstanding any right of Guarantor to ask, demand, sue for, take or receive any payment with respect to the Indebtedness, all rights, liens and security interests of the Guarantor, whether now or hereafter arising, in any assets of the Borrower or in any Security shall be and hereby are subordinated to the rights of Lender in such assets and Guarantor shall have no right to possession of any such assets or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until the Credit has been paid in fun. Guarantor agrees that Lender shall be subrogated to the Guarantor with respect to the Guarantor's claims against Borrower and the Guarantor's rights, liens and security interest, if any, in any of the Borrower's assets and proceeds thereof until an ofthe Credit has been paid in fun, Guarantor warrants and represents that Guarantor has not previously assignec\ any interest in the Indebtedness to any party other than Lender, that no other party owns an interest in the Indebtedness other than Guarantor, (whether as joint holders ofthe Indebtedness, participants or otherwise) and that, except as provided below, the entire Indebtedness is and shall continue to be owing only to the Guarantor. Guarantor shall not assign or transfer to others any claim Guarantor has or may have against the Borrower, unless such assignment or tnmsfer is made expressly subject to this guaranty. clr\hcri\loyalsock\Joan..guaranty -4- 11122/00 , ';"', '0"" ~ I" . -~ - ,,,.~~ ~ ''1lI~T~'"'' Any claim which Guarantor may make against Borrower or Borrower's estate in any bankruptcy or insolvency proceedings shall be expressly subject to the tenns of this 98. In the event of any distribution of the assets or readjustment of the obligations and indebtedness of the Borrower, whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding involving the readjustment of all or any of: the Indebtec\ness hereby subordinated, or the application of the assets of the Borrower to the payment or liquidation thereof, Lender shall be entitled to receive payment in full of any and all of the Credit, due or not due, prior to the payment of all or any part of the Indebtedness hereby subordinated, and in order to enable Lender to enforce its rights hereunder in any such action or proceeding, Lender is hereby authorized and empowered in its discretion to make and present for and on behalf of Guarantor such proofs of claims against the Borrower, if the Guarantor shall have failec\ to file any such proof of claim within thirty (30) days after Lender has requested Guarantor to file such proofs of claim on account of the Indebtedness hereby subordinated, as Lender may deem expedient or proper and to vote such proofs of claims in any such proceeding and to receive and collect any and all dividends or other payments or disbursements made thereon in whatever fonn the same may be paid or issued and to apply the same on account of any of the Credit. In the event of any distribution, division or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the assets of the Borrower or the proceeds thereof, to the creditors of the Borrower's business, or upon the sale of all or substantially all of the Borrower's assets, then, and in any such event, any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any or all of the Indebtedness shall be paid or delivered directly to Lender for application on any of the Credit, due or not due, until such Credit shall have first been fully paid and satisfied. After the occurrence and during the continuance of any Event of Default, in the event that Guarantor shall fail or refuse to take any action that Lender requests in writing that the Guarantor take with respect to the Indebtedness within thirty (30) days of the Guarantor's receipt of such request, Guarantor authorizes and empowers Lender to demand, sue for, collect and receive every such payment or distribution and give acquittance therefor and to file claims and take such other proceedings, in Lender's own name or in the name of Guarantor or otherwise,. as Lender may deem necessary or advisable for the enforcement of this guaranty; and Guarantor will execute and deliver to Lender such powers of attorney, assignments or other instruments or docmnents, as may be requested by Lender in order to enable Lender to enforce any and all claims upon or with respect to any or all of the Indebtedness and to collect and receive any and all payments of distributions which may be payable or deliverable at any time upon or with respect to the Indebtedness, all for Lender's own benefit. Should any payment, distribution, security, instrument or proceeds which are subject to the subordination contained in the first paragraph of this 98 be received by Guarantor upon, or with respect to, the 'Indebtedness while such subordination provision is effective and prior to the satisfaction of all of the Credit and termination of all financing arrangements between the Borrower and Lender, Guarantor shall receive and hold the same in trust as trustee, for the benefit of Lender and shall forthwith deliver the same to Lender in precisely the form received (except for the endorsement or assignment of the Guarantor where necessary), for application on any of the Credit, due or not due, and until so delivered, the same shall be held in trust by the Guarantor as the c1r\hcri\loyaJsock\loan.. guaranty -5- J 1/22/00 <",~W11 '~,"l'"'''_' _~ " ", .~,__~ "'1 , "' "'T_ '"," ,,"',,- property of Lender. In the event of the failure of Guarantor to make any such endorsement or assignment to Lender, Lender, or any of its officers or employees, is hereby irrevocably authorized to make the same. Any instrument evidencing any of the Indebtedness, or any portion thereof, will, on the date hereof or promptly hereafter, be inscribed with a legend conspicuously indicating that payment thereof is subordinated to the claims of Lender, pursuant to the terms of this guaranty, and will be delivered to Lender upon request therefor after the declaration of an Event of Default, if such original is necessary in order to enable Lender to take any action permitted hereunder, including, without limitation, the filing of proofs of claim on behalf of Guarantor. This subordination shall continue and shall be irrevocable until all the terms, covenants and conditions of the Credit have been fully and completely performed by Borrower or otherwise discharged and released by Lender, and the Guarantor shall not be released from any duty, obligation orliability hereunder so long as there is any claim of Lender against Borrower arising out of the Credit which has not been performed, settled or discharged in full. 9. Financial Statements. (a) Financial Statements. Not later than 90 days after the end of each fiscal year, Guarantor shall deliver to Lender audited consolidated financial statements of Guarantor for the preceding year. In addition, not later than 45 days after the end of each quarter, Guarantor shall deliver to Lender unaudited consolidated financial statements of Guarantor for the preceding quarter. If Guarantor is or becomes subject to any reporting requirements of the Securities and Exchange Commission ("SEC"), Guarantor shall, in lieu of providing the financial statements described above, concurrently deliver to Landlord such reports as are delivered to the SEC pursuant to applicable securities laws. (b) Certificate. With each delivery of financial statements, Guarantor shall also provide to Lender a Certificate in the form of Exhibit A. (c) Tax Returns. Guarantor shall deliver to Lender the federal tax return of Guarantor for each year within 15 days after the filing of the return. If the filing date for any tax return has been extended, Guarantor shall also deliver to Lender a copy of the extension application within 15 days after the date of filing. (d) Other Information. Guarantor shall promptly furnish to Lender such other information and statements concerning the business affairs and financial condition of the Guarantor as Lender may reasonably request. Guarantor shall give Lender access to all books, records, and financial data of Guarantor by or through any of Lender's officers, agents, attorueys or accountants, at all reasonable times and from time to time. Lender may examine, inspect, and make extracts from Guarantor's books and other records at all reasonable times and from time to time , subject, however, to any agreements made by Lender regarding confidentiality of such information. ( e) Covenants. Guarantor covenants that all financial statements of Guarantor furnished Lender will present fairly in all material aspects of Guarantor as of the dates of the statements and will be prepared in accordance with generally accepted accounting principles applied on a basis consistently maintained throughout the period involved. c1r\hcri\loya lsock\loan..guaranty -6- 11/22100 ",']'1ij~1'\i~ ~,,.,,:>, ,'~""',,':"" - -,- .0} " 1-'- . - .- , I~~~ Ll 10. Financial Covenants. (a) Net Worth. Throughout the term of the Loan, Guarantor shall maintain for each fiscal quarter a Net Worth and equity capitalization of not less than $35,000,000.00. (b) Current Ratio. Guarantor shall maintain for each fiscal quarter a ratio of current assets to current liabilities of not less than 1,25 to 1,00. ( c) Debt to Equity Ratio. Guarantor shall maintain for each fiscal quarter a ratio of total indebtedness to shareholders' equity not to exceed 10.0 to 1.00. The aggregate lease amount under all capitalized and operating leases shall be included as indebtedness and all subordinated debt shall be included as equity, For purposes of this section, "operating leases" shall include all future lease obligations where Guarantor is not currently the tenant but has an option to purchase the equity interest in or assets of the tenant or where Guarantor otherwise has rights to purchase the assets or equity of the tenant or where Guarantor has agreed to fund operating shortfalls in connection with the operation ofthe facility by the tenant. 11. No Convevance, Guarantor shall not sell, convey, pledge, encumber or otherwise transfer any ownership interest in Balanced Care at Loyalsock, Inc. now owned or hereafter acquired, and Guarantor shall not permit Balanced Care at Loyalsock, Inc, to sell, convey, pledge, encumber or otherwise transfer any ownership interest in Borrower now owned or hereafter acquired, without the prior written consent of Lender, which consent shall not be unreasonably withheld. Guarantor shall not sell, give, conveyor otherwise transfer, directly or indirectly, all or substantially all ofthe assets of Guarantor to any person ("Transferee") if such transfer would cause the Net Worth of such Guarantor to be less than the amount required to be maintained under this Guaranty; provided, however, thatthe foregoing restriction shall not apply to any transfer of assets made after Guarantor's death (if aJ!l individual) pursuant to any will, testament or applicable law of descent and distribution, Any transfer of assets that is prohibited by this section shall constitute an Event of Default under the Loan Agreement and shall be deemed to be a fraudulent conveyance against Lender. In the event of any such prohibited transfer, Lender shall be entitled to enforce this guaranty against the Transferee anp to seize all such transferred assets and apply the proceeds from such assets to payment of the Credit, whether matured or unmatured. 12. Loan Covenants. Throughout the term of the Loan, Guarantor shall comply with all requirements and covenants of the Lease applicable to Guarantor, including, without limitation, Sections 14,5, 14.6, 14,9, and Article 23. 13. Subsequent Guaranties. No subsequent guaranty to Lender by Guarantor shall supersede or terminate this guaranty, but shall be an additional guaranty unless otherwise stated therein and, if Guarantor has given a previous guaranty to Lender, this guaranty shall be in addition to the previous guaranty. 14. Successors. Etc. This guaranty shall be binding upon not only Guarantor but also Guarantor's successors and assigns and shall inure to the benefit of Lender and its successors and assigns. clr\hcri\loyaJsock\loan..guaranty -7- 11122100 "t"'!!~~ ," ^ c,' ~ "'9~,~,e ,,- " ,. , ,,'~ JnilrOOl'iifl -" 15. Termination; Revocation. Subject to reinstatement pursuant to 916, this guaranty shall automatically terminate on the date on which all of the Credit is repaid in full. No revocation of this guaranty or any substitute guaranty by Guarantor shall be effective until all of the Credit has been repaid in full. 16. Survival. The obligations of the Guarantor under this guaranty will continue to be effective or shall be reinstated, as the case might be, if at any time any payment from Borrower of any sum due to the Lender is rescinded or must otherwise be restored or returned by the Lender on the insolvency, bankruptcy, dissolution, liquidation or reorganization ofthe Borrower or as a result of the appointment of a custodian, conservator, receiver, trustee or other officer with similar powers with respect to the Borrower or any part of the Borrower's property or otherwise. If an event permitting the acceleration of the maturity of the Loan has occurred and is continuing and such acceleration is at such time prevented by reason of the pendency against the Borrower of a proceeding under any bankruptcy or insolvency law, Guarantor agrees that, for the purposes ofthis guaranty and the obligations of Guarantor under this guaranty, the maturity of the Loan will be deemed to have been accelerated with the same effect as if the Lender had accelerated the same in accordar!Ce with the terms of the Loan Documents and Guarantor will immediately pay the unpaid balance ofthe Credit. 17. Governing Law. 1bis guaranty shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania, without giving effect to the conflict oflaws rules thereof. 18. Number; Gender. Where appropriate, the number of any word in this guaranty shall include both singular and plural, the gender of any word shall be masculine, feminine, or neuter. 19, Enforceability, If any provision ofthis guaranty or the application thereofto anyone or any circumstance shall be adjudged invalid or unenforceable to any extent, the application of the remainder of the provision to the party or circumstance, the application of the provision to other parties or circumstances, and the application of the remainder of this guaranty shall not be affected thereby, Each provision of this guaranty shall be valid and enforceable to the fullest extent permitted by law. 20. No Waivers bv Lender. No forbearance by Lender in exercising any right under this guaranty, any Credit, or any Security shall operate as a waiver thereof; no forbearance in exercising any right under this guaranty, any Credit, or any Security on anyone or more occasions shall operate as a waiver of such right on any other occasion; and no single or partial exercise of any right under this guaranty, any Credit, or any Security shall preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. Lender's rights under this guaranty are cumulative and not exclusive of any rights or remedies that Lender may otherwise have. 21. Fees and Expenses. Guarantor shall pay to Lender all costs and expenses incurred by Lender in administering the Loan and the Security, enforcing or protecting Lender's rights in cOlll1ection with any Credit, Security or this guaranty and in collecting payment on any Credit or this guaranty, whether or not an Event of Default (as defined in the Loan Agreement) has actually occurred or has been declared and thereafter cured, including, but not limited to, c1r\hcn\loyalsock\loan.guaranty -8- 11/22100 ~.~""'''''''''. > '",.,~- ".., ""'7"""-","1" . , , -~ TV [aJ attorney's fees and paralegal fees; [bJ the fees and expenses of any litigation, administrative, bankruptcy, insolvency, receivership or any other similar proceeding; [cJ court costs; [d]the expenses of Lender, its employees, agents, and witnesses in preparing for litigation and for lodging, travel, and attendance at pretrial hearings, depositions, and trials; and [e J consulting fees and expenses incurred by Lender in connection with any litigation. 22. Notices. Any notices required or desired to be given under this guaranty shall be in writing and shall be delivered in the manner set forth in the Loan Agreement, and if to Lender, delivered to Lender at One SeaGate, Suite 1500, P,O. Box 1475, Toledo, Ohio 43603, and if to a Guarantor, to the address set forth opposite such Guarantor's signature, or to such other address as Lender or any Guarantor may hereafter give written notice thereof. All notices shall be effective upon the earlier of actual receipt or three days after deposit in the U.S. mail or one business day after deposit with the overnight courier. 23. Amendment. This guaranty may not be amended except in a writing signed by Guarantor and Lender. All references to this guaranty, whether in this guaranty or any other document or instrument, shall be deemed to incorporate all amendments, modifications, renewals and extensions of this guaranty and all substitntions therefor made after the date hereof. 24. [Intentionally Deletedl. 25, Counterparts, This guaranty may be executed in multiple counterparts, each of which shall constitute an original and all of which together shall constitnte one and the same instrument. 26. JURISDICTION AND VENUE, GUARANTOR IRREVOCABLY SUBMITS AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING JURISDICTION OVER LUCAS COUNTY, OIDO OR LYCOMING COUNTY, PENNSYLVANIA FOR ADnJDICATION OF ALL MATTERS IN CONTROVERSY UNDER THIS GUARANTY, AND WAlVES ANY OBJECTIONS TO SUCH JURISDICTION AND VENUE AND CONSENTS TO FULL FAITH AND CREDIT BEING GIVEN TO ANY DECISION OF SUCH COURTS BY ANY OTIIER STATE OR FEDERAL COURT OF THE UNITED STATES OF AMERICA. GUARANTOR SHALL NOT ATTEMPT TO LITIGATE ANY MATTERS IN CONTROVERSY UNDER TIllS GUARANTY BEFORE ANY COURT OR TRIBUNAL OTIIER THAN BEFORE A STATE OR FEDERAL COURT HAVING JURISDICTION OVER LUCAS COUNTY, OIDO. GUARANTOR W AlVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON GUARANTOR AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS UPON TIIE GUARANTOR BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO GUARANTOR AT THE ADDRESS SET FORTH BELOW AND SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER POSTED. c1r\hcn"\loyalsock\1oan.guaranty -9- ] ] 122/00 ;?'k\'i'~~;,t, '~"'. , ~._ ,~, ~,= ", . - 'l~' ~, , "'f; ". . ,,' - 27. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY WAIVES KNOWINGLY AND VOLUNTARILY THE RIGHT TO, A JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY. [THE REMAINDER OF TillS PAGE IS INTENTlONALL Y LEFT BLANK] c1r\hcri\Joyalsock\loan.guaranty -10- 11/22/00 "1"~,~,," ','~ 0 ~, " --1. e, r ~, , " . .' ~~-~~ r" ~'rljlr"1l1l1 L IN WITNESS WHEREOF, Guarantor executes and delivers to Lender this Unconditional and Continuing Guaranty effective as of the Effective Date. Address: BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, Pennsylvania 17055 By: ~~ Robin L. Barber Senior Vice President - Legal Counsel and Assistant Secretary clr\hcri\loyalsock\1oan. guaranty -11- 11122100 ",-e),!,,,.~~,,,,,~ """"',,,'~O_,'.-,~i"'," ~,... ,""~' I' "",'- -<-] ,,' .p ,,~ '" - '- - 11 J- EXHIBIT A: GUARANTOR'S CERTIFICATE Report Period: Commencing and ending Loan: Loan made by Pennsylvania BCC Properties, Inc. ("Lender") to Financial Care Investors of Loyalsock, LLC ("Borrower") guaranteed by Balanced Care Corporation ("Guarantor") I hereby certify to Lender as follows: 1. The attached [specify audited or unaudited and annual or quarterly. and if consolidated, so state) financial statements of Guarantor [i) have been prepared in accordance with generally accepted accounting principles consistently applied; [ii] have been prepared in a manner substantially consistent with prior financial statements submitted to Lender; and [iii] fairly present the financial condition of Guarantor in all material respects as of the dates thereof. 2, As set forth in the attached financial statements, Guarantor has maintained the Net Worth, Current Ratio, and Debt to Equity Ratio as required under the Unconditional and Contimling Guaranty made by Guarantor in favor of Lender ("Guaranty''). 3, To the best of my knowledge, Borrower was in compliance with all of the provisions of the Loan Documents at all times during the Report Period, and no default, or any event which with the passage of time or the giving of notice or both would constitute a default, has occurred under the Loan Documents. 4, Guarantor was in compliance with all of the provisions of the Guaranty at all times during the Report Period, and no default, or any event which with the passage of time or the giving of notice or both would constitute a default, has occurred under the Guaranty. Executed this _ day of CORPORATE/PARTNERSHIP LIMITED LIABILITY COMPANY GUARANTOR: By: Title: cJr\hcn"\loyalsock\Toan.guaranty -12- 11/22100 T?~t '~_""_~" _ ,.,,'''''_''~_,__ - " '~'I -- , ~ "; 'c" ,'" ',- ''"' '1 ,-" , .~!Il - UNCONDITIONAL AND CONTINUING LEASE GUARANTY THIS GUARANTY is made effective as of October 31, 2000 (the "Effective Date") by BALANCED CARE CORPORATION, a corporation organized under the laws of the State of Delaware ("Guarantor"), in favor ofPENNSYLVANlA BCC PROPERTIES, INC., a corporation organized under the laws of the State of Pennsylvania ("Landlord"). RECITALS A. Landlord granted to Financial Care Investors of Loyalsock, LLC, a Delaware limited liability company ("Tenant"), a lease of the real property located in Montoursville, Pennsylvania ("Property") pursuant to a Lease Agreement between Landlord and Tenant dated as of September 22, 1998 ("Lease"), as amended by that certain First Amendment to Lease Agreement dated as of September 30, 1999. Tenant operates an assisted living facility ("Facility") on the Property. B. The Facility and all improvements and fixtures constructed and installed on the Property will be the property of Landlord and will be included in the "Leased Property" under the Lease, C. Balanced Care at Loyalsock, Inc., a wholly owned subsidiary of Guarantor on October 31, 2000 succeeded the interest of the Tenant (the "Succession"), D. Pursuant to Section 18.l[ii] of Lease upon such a Succession, Landlord requires that this guaranty be provided by Guarantor. E, As used herein, "Lease Docmnents" means the Lease, and all other documents and agreements made in counection with the Lease, as amended, modified, renewed or extended from time to time. "Credit" means all rent, late charges, interest, taxes, utility charges, insurance premimns and all other charges, expenses and amounts payable by Tenant to Landlord pursuant to the Lease Documents, "Security" includes all guaranties of any Credit, all interests in real or personal property securing the payment of any Credit or any guaranties of any Credit, and all other agreements, rights, or interests insuring or guaranteeing payment of any Credit. "Lease Obligations" means all of the covenants, obligations and liabilities of Tenant under the Lease Documents, including the payment of the Credit when due, NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Guarantor intending to be legally bound hereby, agree as follows: 1. Gmranty_ Guarantor unconditionally guarantees the prompt payment when due of the Credit and the performance of the Lease Obligations and shall indemnifY Landlord and hold Landlord harmless from any costs and expenses in any way arising out of Ten ant's failure to repay the Credit or perform the Lease Obligations according to their terms. G/legal/Iorie/take outs - hcrtlLoyalsocklunconditional and continuing lease guaranty loyalsock.v2 ',,"~~~,- - +,.C' "-, "..",-. -- ",~- " . -" ':~ ',' ~ r ,A, ~ ~'1 .. " '.~,)ij' "',' ~,~r! 2. Warranties. (a) C:apacity. Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Guarantor warrants that Guarantor has taken all necessary corporate action to incur the obligations of this guaranty and to execute, deliver and perform this guaranty. (b) C:ontrads. Guarantor warrants that there is no provlSlon of Guarantor's Articles ofIncorporation or Bylaws or any existing indenture, contract, or agreement to which Guarantor is a party or of any law, administrative regulation, court order, or consent decree that would be contravened by the execution, delivery, or performance ofthis guaranty. (c) Tndncement to T andlord: Waivers. Guarantor [1] acknowledges that Landlord would not have extended the Credit to Tenant without Guarantor's agreement to provide this guaranty upon the Succession and will not continue to extend Credit to Tenant but for this guaranty; [2] warrants that Guarantor has given this guaranty to induce Landlord to extend and to continue to extend Credit to Tenant; [3] agrees that Landlord may rely on this guaranty in extending future Credit to Tenant without notice to Guarantor, but only in connection with the Leased Property; [4] warrants that Guarantor has received good and valuable consideration for this guaranty; [5] waives acceptance of this guaranty; [6] warrants that Guarantor has not given this guaranty in reliance upon the existence of any Security; [7] acknowledges receipt of notice of all Credit extended before this date; [8] waives notice of any Credit extended after this date except as specifically provided in the Lease; [9] waives protest and any other notice of failure to pay the Credit or to perform any agreement relating to any Credit or Security except as specifically provided in the Lease; [10] acknowledges that Guarantor has read this guaranty, the Lease, and all other documents in connection with the Lease; and [11] acknowledges that Guarantor understands and agrees to Guarantor's obligations under this guaranty. (d) No Reliance on Tnformation from T andlord. Guarantor [1] warrants that Guarantor has not relied on any information about the Tenant, the Security, or any guarantor of the Credit provided directly or indirectly by Landlord; [2] warrants that Guarantor is familiar with Tenant, Tenant's affairs, and the Security; [3] warrants that Guarantor has had ample opportunity to investigate Tenant, Tenant's affairs, the Security, and the effect that the Credit will have; [4] warrants that Guarantor has been provided all information concerning Tenant, Tenant's affairs, and the Security that Guarantor has requested; [5] warrants that Guarantor has had adequate opportunity to seek and evaluate professional advice concerning Tenant, the Security, and this guaranty from advisors of Guarantor's choosing, including financial and legal advice; and [6] agrees that Guarantor shall not rely on any information provided by Landlord about Tenant or the Security, including any other guarantor. Guarantor shall continue to investigate and evaluate Tenant and the Security independently throughout the term of this guaranty, and Landlord has no obligation to provide Guarantor any information about the Tenant or the Security. (e) No Tnsolvency. On the date of the Guarantor's entering into this guaranty and after giving effect to all indebtedness of the Guarantor, [1] the Guarantor will be able to pay Guarantor's obligations as they become due and payable; [2] the present fair saleable value of the Guarantor's assets exceeds the amount that will be required to pay Guarantor's probable liability on its obligations as the same become absolute and mature; [3] the sum of the Guarantor's -2- ""~"" ~'Y ,,~" ,!~Il""c","_, ~~T,=-r .,.", T' T '-. ~~~ '" ;~: (d, 1'1 .' , ~ , !l. property at a fair valuation exceeds Guarantor's indebtedness; and [4] the Guarantor will have sufficient capital to engage in Guarantor's businesses. The proceeds of the Credit constitute fair consideration and reasonably equivalent value for this guaranty. 3. Waivers Without notice to or consent of Guarantor, Landlord may do or refrain from doing anything affecting any Credit or any Security including the following: [a] granting or not granting any indulgences to anyone liable for payment of the Credit or any Security; [b] failing to get or to perfect any Security; [c] failing to get an enforceable agreement to repay the Credit; [d] releasing any Security or anyone or any property from liability for payment of the Credit; [e] exercising any right or remedy including, without limitation, eviction of Tenant or termination of the Lease; if] applying any funds received from Tenant, Guarantor or any other party and any funds realized from any Security to the Credit in such manner and in such order or priority as Landlord elects in its sole discretion; and [g] delaying in enforcing or failing to enforce any rights to payment of the Credit or rights against any Security. In the event that Landlord forecloses or otherwise realizes on any Security for repayment of the Credit, Guarantor agrees that the purchase price at any judicial or other sale of the Security paid by Landlord or any other party shall be conclusive evidence of the value of the Security and Landlord shall have an absolute right, subject to applicable law, to obtain a deficiency judgment of all amounts due in excess of such purchase price, to the extent permitted by applicable law. To the fullest extent permitted by law, Guarantor waives the right to contest the value of the Security through appraisals or otherwise, and waives any defense to a deficiency judgment that Guarantor may have pursuant to any statute or other applicable law. 4. Defee.!. in Se~nrity, Etc Guarantor's liability under this guaranty shall not be affected by [a] any default in any document concerning any Credit or Security when accepted by Landlord or arising any time thereafter; [b) the unenforceability of or defect in any Security or document relating to any Credit; [c) any decline in the value of any Security; [d] Landlord's failure to obtain any Security or to perfect Landlord's security interest therein; [e] the death, incompetence, insolvency, dissolution, liquidation, or winding up of affairs of Ten ant, Guarantor, or anyone liable for any Security or the start of insolvency proceedings by or against any such person or entity; [f] any termination of the leasehold estate created by the Lease to the extent Tenant remained liable under the Lease; [g) the release or discharge of Tenant in any creditor's, receivership, bankruptcy, other insolvency proceedings, or other proceedings; [h] impairment, limitation or modification of the liability of Tenant or the estate of Tenant in bankruptcy or of any remedy for the enforcement of Tenant's liability under the Lease, resulting from the operation of any present or future provisions of the federal Bankruptcy Code or other statutes or from the decision of any court; [i] the rejection or disaffirmance of the Lease in any such proceedings; [j] the assignment or transfer of the Lease by the Tenant; [k] any disability or other defense of Tenant; [1] the cessation from any cause whatsoever of the liability of Tenant under the Lease; or [m] any reorganization, merger, consolidation, combination, or sale of substantially all the assets of Tenant. 5. Waiver of Snrety'. Defen.e._ SURETYSHIP AND OTHER SIMILAR DEFENSES. GUARANTOR W AlVES ALL 6. llnconc1itional Ohlip;ation, If Tenant fails to pay all or any part of any Credit when due after expiration of any applicable grace, notice or cure period, Guarantor shall immediately pay to Landlord all amounts then due and payable in connection with any Credit, -3- ""\li"jo;!'W"-", _1'<__~Lr ,~n '_I ,"" ,", - ! !I!W ~'.'-~ ' 'j[if' n-'~,~'Cj)f-,~l _l regardless of whether or not Landlord first pursues Tenant or exhausts any of its rights or remedies against Tenant, any other Guarantor, others, or other Security. Guarantor shall not have any right of subrogation to the rights of Landlord against any of the assets of Ten ant or any other guarantor of the Lease until after indefeasible payment in full of the Credit. 7. C;ontinning OhligJItion. This guaranty shall extend and be applicable to all renewals, amendments, extensions, consolidations, modifications, increases and reductions of the Lease Documents and the Credit. Guarantor's liability tinder this guaranty shall not be reduced or cancelled by any such action and shall be deemed modified in accordance with the terms of such action, whether or not Guarantor has notice of such action. 8. Snhorl1in"tion. Guarantor subordinates to and postpones in favor of the Credit and Security (aJ any present and future debts and obligations of Tenant to Guarantor (the "Indebtedness") including but not limited to (iJ salary, bonuses, and other payments pursuant to any employment arrangement; (iiJ fees, reimbursement of expenses and other payments pursuant to any independent contractor arrangement; (iiiJ principal and interest pursuant to any Indebtedness; (ivJ distributions payable to any shareholders or general or limited partners of Ten ant; and (vJ lease payments pursuant to any leasing arrangement; and (b] any liens or security interests securing payment of the Indebtedness. Except as otheJwise specified in the Lease, the provisions of this paragraph shall be effective only (i] after the occurrence of an Event of Default (as defined in the Lease) and until such Event of Default is cured, or (ii] after the commencement of any bankruptcy or insolvency proceeding by or against Tenant and until such proceeding is dismissed. Guarantor shall not ask for, sue for, demand, take or receive any payment, by setoff or in any other manner, including the receipt of a negotiable instrument, for all or any part of the Indebtedness owed by Tenant, or any successor or assign of Tenant, including without limitation a receiver, trustee or debtor in possession (the term "Tenant" shall include any such successor or assign of Tenant) until the Credit has been paid in full; however, if Guarantor receives such a payment, Guarantor shall immediately deliver the payment to Landlord for credit against the then outstanding balance of the Credit, whether matured or unmatured. Notwithstanding any right of Guarantor to ask, demand, sue for, take or receive any payment with respect to the Indebtedness, all rights, liens and security interests of the Guarantor, whether now or hereafter arising, in any assets of the Tenant or in any Security shall be and hereby are subordinated to the rights of Landlord in such assets and Guarantor shall have no right to possession of any such assets or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until the Credit has been paid in full. Guarantor agrees that Landlord shall be subrogated to the Guarantor with respect to the Guarantor's claims against Tenant and the Guarantor's rights, liens and security interest, if any, in any of the Tenant's assets and proceeds thereof until all of the Credit has been paid in full. Guarantor warrants and represents that Guarantor has not previously assigned any interest in the Indebtedness to any party other than Landlord, that no other party owns an interest in the Indebtedness other than Guarantor, (whether as joint holders of the Indebtedness, participants or otherwise) and that, except as provided below, the entire Indebtedness is and shall continue to be owing only to the Guarantor. Guarantor shall not assign or transfer to others any claim Guarantor has or may have against the Tenant, unless such assignnient or transfer is made expressly subject to this guaranty. -4- _:;;;;:IIl;;JI;i)LJJ "~,,,< -""',, ",' ,"- -,~ - I'~ __O,h,_ '" ~~ ~ ~ , ~~, , ! ~,~ ','TlJ r-in:~i!W~rm- Any claim which Guarantor may make against Tenant or Tenant's estate in any bankruptcy or insolvency proceedings shall be expressly subject to the terms of this \)8. In the event of any distribution of the assets or readjustment of the obligations and indebteclness of the Tenant, whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding involving the readjustment of all or any of the Indebteclness hereby subordinated, or the application of the assets of the Tenant to the payment or liquidation thereof, Landlord shall be entitled to receive payment in full of any and all of the Credit, due or not due, prior to the payment of all or any part of the Indebteclness hereby subordinated, and in order to enable Landlord to enforce its rights hereunder in any such action or proceeding, Landlord is hereby authorized and empowered in its discretion to make and present for and on behalf of Guarantor such proofs of claims against the Tenant, if the Guarantor shall have failed to file any such proof of claim within thirty (30) days after Landlord has requested Guarantor to file such proofs of claim on account of the Indebtedness hereby subordinated, as Landlord may deem expedient or proper and to vote such proofs of claims in any such proceeding and to receive and collect any and all dividends or other payments or disbursements made thereon in whatever form the same may be paid or issued and to apply the same on account of any of the Credit. In the event of any distribution, division or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the assets of the Tenant or the proceeds thereof, to the creditors of the Tenant's business, or upon the sale of all or substantially all of the Tenant's assets, then, and in any such event, any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any or all ofthe Indebteclness shall be paid or delivered directly to Landlord for application on any of the Credit, due or not due, until such Credit shall have first been fully paid and satisfied. After the occurrence and during the continuance of any Event of Default, in the event that Guarantor shall fail or refuse to take any action that Landlord requests in writing that the Guarantor take with respect to the Indebteclness within thirty (30) days of the Guarantor's receipt of such request, Guarantor authorizes and empowers Landlord to demand, sue for, collect and receive every such payment or distribution and give acquittance therefor and to file claims and take such other proceedings, in Landlord's own name or in the name of Guarantor or otherwise, as Landlord may deem necessary or advisable for the enforcement of this guaranty; and Guarantor will execute and deliver to Landlord such powers of attorney, assignments or other instruments or documents, as may be requested by Landlord in order to enable Landlord to enforce any and all claims upon or with respect to any or all of the Indebteclness and to collect and receive any and all payments of distributions which may be payable or deliverable at any time upon or with respect to the Indebteclness, all for Landlord's own benefit. Should any payment, distribution, security, instrument or proceeds which are subject to the subordination contained in the fust paragraph of this \)8 be received by Guarantor upon, or with respect to, the Indebteclness while such subordination provision is effective and prior to the satisfaction of all of the Credit and termination of all financing arrangements between the Tenant and Landlord, Guarantor shall receive and hold the same in trust as trustee, for the benefit of Landlord and shall forthwith deliver the same to Landlord in precisely the form received (except for the endorsement or assignment of the Guarantor where necessary), for application on any of the -5- -i~ flU. ~"_, _ '~< ~ - '-," "",' - " ",... ,e t~ - -.'~-i'q - ~ -~.~~ -]_ II Credit, due or not due, and until so delivered, the same shall be held in trust by the Guarantor as the property of Landlord. In the event of the failure of Guarantor to make any such endorsement or assignment to Landlord, Landlord, or any of its officers or employees, is hereby irrevocably authorized to make the same. Any instrument evidencing any ofthe Indebtedness, or any portion thereof, will, on the date hereof or promptly hereafter, be inscribed with a legend conspicuously indicating that payment thereof is subordinated to the claims of Landlord, pursuant to the terms of this guaranty, and will be delivered to Landlord upon request therefor after the declaration of an Event of Default, if such original is necessary in order to enable Landlord to take any action permitted hereunder, including, without limitation, the filing of proofs of claim on behalf of Guarantor. This subordination shall continue and shall be irrevocable until all the terms, covenants and conditions of the Credit have been fully and completely performed by Tenant or otherwise discharged and released by Landlord, and the Guarantor shall not be released from any duty, obligation or liability hereunder so long as there is any claim of Landlord against Tenant arising out of the Credit which has not been performed, settled or discharged in full. 9, Fin"n"i"1 StMementR. (a) Fin"n,,;"! St"tementR. Not later than 90 days after the end of each fiscal year, Guarantor shall deliver to Landlord audited consolidated financial statements of Guarantor for the preceding year and not later than 90 days after the end of the calendar year. In addition, not later than 45 days after the end of each quarter, Guarantor shall deliver to Landlord unaudited consolidated financial statements of such Guarantor for the preceding quarter. If Guarantor is or becomes subject to any reporting requirements of the Securities and Exchange Commission ("SEe''), Guarantor shall, in lieu of providing the financial statements described above concurrently deliver to Landlord such reports as are delivered to the SEC pursuant to applicable securities laws. (b) C;ertifi"ate. With each delivery of fmancial statements, Guarantor shall also provide to Landlord a Certificate in the form of Exhibit A. (c) Tax RetllmR. Guarantor shall deliver to Landlord the federal tax return of Guarantor for each year withiu 15 days after the filing of the return. If the filing date for any tax return has been extended, Guarantor shall also deliver to Landlord a copy of the extension application within 15 days after the date of filing. (d) Other Tnfonmtion. Guarantor shall promptlyfumish to Landlord such other information and statements concerning the business affairs and financial condition of the Guarantor as Landlord may reasonably request. Guarantor shall give Landlord access to all books, records, . and financial data of Guarantor by or through any of Landlord's officers, agents, attorneys or accountants, at all reasonable times and from time to time. Landlord may examine, inspect, and make extracts from Guarantor's books and other records at all reasonable times and from time to time, subject, however, to any agreements made by Landlord regarding confidentiality of such information. -6- ~'~~~ ,~~^N ~,~ ~I~ ~ e, " ~ ^ 1- -"""= m l"nrrrJJlTj[lii (e) C;oven~ntR, Guarantor covenants'that all financial statements of Guarantor furnished Landlord will present fairly in all material respects the financial condition of Guarantor as of the dates of the statements and will be prepared in accordance with generally accepted accounting principles applied on a basis consistently maintained throughout the period involved. 10. Fin~nc.i~l C;oven~ntR. (a) Net Worth, Throughout the term of the Lease, Guarantor shall maintain a Net Worth (as defined in the Lease) and equity capitalization of at least $35,000,000. (b) C;nrrent R ~tio. Guarantor shall maintain for each fiscal quarter a ratio of current assets to current liabilities of not less than 1.25 to 1.00. (c) Deht to Fqnity RMio. Guarantor shall maintain for each fiscal quarter a ratio of total indebtedness to shareholders' equity not to exceed 10.0 to 1.0. The aggregate lease amount under all capitalized and operating leases shall be included as indebtedness and all subordinated debt shall be included as equity. For purposes ofthis section, "operating leases" shall include all future lease obligations where Guarantor is not currently the tenant but has an option to purchase the equity interest in or assets of the tenant or where Guarantor otherwise has rights to purchase the assets or equity of the tenant or where Guarantor has agreed to fund to operating shortfalls in connection with the operation of the facility by the tenant. 11. No C;onve.y~nc.e. Guarantor shall not sell, convey, pledge, encumber or otherwise transfer any ownership interest in Tenant now owned or hereafter acquired, if any, without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Guarantor shall not sell, give, conveyor otherwise transfer, directly or indirectly, all or substantially all of the assets of Guarantor to any person ("Transferee"). Any transfer of assets that is prohibited by this section shall constitute an Event of Default under the Lease and shall be deemed to be a fraudulent conveyance against Landlord. In the event of any such prohibited transfer, Landlord shall be entitled to enforce this guaranty against the Transferee and to seize all such transferred assets and apply the proceeds from such assets to payment of the Credit, whether matured or unmatured. 12. T ,e~Re C;ovemntR. Throughout the term of the Lease, Guarantor shall comply with all requirements and covenants of the Lease expressly applicable to Guarantor, including, without limitation, SS 14.5, 14.6, 14.9 and Article 23. 13, SnhReqnent r;n~r~ntieR. No subsequent guaranty to Landlord by Guarantor shall supersede or terminate this guaranty, but shall be an additional guaranty unless otherwise stated therein and, if Guarantor has given a previous guaranty to Landlord, this guaranty shall be in addition to the previous guaranty. 14. Snc.c.eRROTR, Ftc. This guaranty shall be binding upon not only Guarantor but also Guarantor's successors and assignees and shall inure to the benefit of Landlord and its successors and assigns. -7- ","'-~F-',;_! , ._!1.~ 1-- . ~,'~"W.- 15, T"nninHtion; R"VocHtion. Subject to reinstatement pursuant to 916, this guaranty shall automatically terminate on the date on which all of the Credit is paid in full. No revocation of this guaranty or any substitute guaranty by Guarantor shall be effective until all of the Credit has been paid in full. 16. SnrviVH 1. The obligations of the Guarantor under this guaranty will continue to be effective or shall be reinstated, as the case might be, if at any time any payment from the Tenant of any sum due to the Landlord is rescinded or must otherwise be restored or returned by the Landlord on the insolvency, bankruptcy, c1issolution, liquidation or reorganization of the Tenant or as a result of the appointment of a custodian, conservator, receiver, trustee or other officer with similar powers with respect to the Tenant or any part of the Tenant's property or otherwise. 17. Gov"rning T HW. This guaranty shall be governed by and construed in accordance with the interuallaws of the State of Pennsylvania, without giving effect to the conflict oflaws rules thereof. 18. Nnmh",,: G"nrl"r, Where appropriate, the number of any word in this guaranty shall include both singular and plural, the gender of any word shall be masculine, feminine, or neuter. 19, Enforc"Hhility. If any provision of this guaranty or the application thereofto anyone or any circumstance shall be adjudged invalid or unenforceable to any extent, the application of the remainder of the provision to the party or circumstance, the application of the provision to other parties or circumstances, and the application of the remainder of this guaranty shall not be affected thereby. Each provision of this guaranty shall be valid and enforceable to the fullest extent permitted by law. 20, No WHiv"rs hy LHnrllorrl. No forbearance by Landlord in exercising any right under this guaranty, any Credit, or any Security shall operate as a waiver thereof; no forbearance in exercising any right under this guaranty, any Credit, or any Security on anyone or more occasions shall operate as a waiver of such right on any other occasion; and no single or partial exercise of any right under this guaranty, any Credit, or any Security shall preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. Landlord's rights under this guaranty are cumulative and not exclusive of any rights or remedies that Landlord may otherwise have. 21. F""s Hnrl Exp"ns"s Guarantor shall pay to Landlord all costs and expenses incurred by Landlord in administering the Lease and the Security, enforcing or protecting Landlord's rights in connection with any Credit, Security or this guaranty and in collecting payment on any Credit or this guaranty, whether or not an Event of Default (as defined in the Lease) has actually occurred or has been declared and thereafter cured, including, but not limited to, [ a] attorney's fees and paralegal fees; [b] the fees and expenses of any litigation, administrative, bankruptcy, insolvency, receivership or any other similar proceeding; [c] court costs; [d] the expenses of Landlord, its employees, agents, and witnesses in preparing for litigation and for lodging, travel, and attendance at pretrial hearings, depositions, and trials; and [e] consulting fees and expenses incurred by Landlord in connection with any litigation. -8- ~,Wo!!lh:~~ ,{11!8 y~ , ",-1 '",. "--"'T":'m"~~~ --". '."' ,,~ 22. Not;",," Any notices required or desired to be given under this guaranty shall be in writing and shall be delivered in the manner set forth in the Lease, and if to Landlord, delivered to Landlord at One SeaGate, Suite 1500, P.O. Box 1475, Toledo, Ohio 43603, and if to a Guarantor, to the address set forth opposite such Guarantor's signature, or to such other address as Landlord or any Guarantor may hereafter give written notice thereof. All notices shall be effective upon the earlier of actual receipt or three days after deposit in the U.S. mail or one business day after deposit with the overnight courier. 23. Am"nnm"nt. This guaranty may not be amended except in a writing signed by Guarantor and Landlord. All references to this guaranty, whether in this guaranty or any other document or instrument, shall be deemed to incorporate all amendments, modifications, renewals and extensions of this guaranty and all substitutions therefor made after the date hereof. 24. [Intentionally Deleted] 25, rOlmt"rpart". This guaranty may be executed in multiple counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument. 26. llJRTSmrTTON AND VENTffi. GUARANTOR IRREVOCABLY SUBMITS AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING JURISDICTION OVER LUCAS COUNTY, OHIO OR LYCOMING COUNTY, PENNSYLVANIA FOR ADJUDICATION OF ALL MATTERS IN CONTROVERSY UNDER THIS GUARANTY, AND WAIVES ANY OBJECTIONS TO SUCH JURISDICTION AND VENUE AND CONSENTS TO FULL FAITH AND CREDIT BEING GIVEN TO ANY DECISION OF SUCH COURTS BY ANY OTHER STATE OR FEDERAL COURT OF THE UNITED STATES OF AMERICA. GUARANTOR SHALL NOT ATTEMPT TO LITIGATE ANY MATTERS IN CONTROVERSY UNDER THIS GUARANTY BEFORE ANY COURT OR TRIBUNAL OTHER THAN BEFORE A STATE OR FEDERAL COURT HAVING JURISDICTION OVER LUCAS COUNTY, OHIO. GUARANTOR WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON GUARANTOR AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS UPON THE GUARANTOR BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO GUARANTOR AT THE ADDRESS SET FORTH BELOW AND SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER POSTED. 27. WATVER OF llJRYTRTAT" TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY WAIVES KNOWINGLY AND VOLUNTARlLY THE RIGHT TO A JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY. -9- ~"~;"""""";"'" ",,_,__~ _ " ", ~"', ,< ,'I, 'I"' " . ~'~li~"~~1N -,~~ .. , '~,'~~'~ J IN WITNESS WHEREOF, Guarantor executes and delivers to Landlord this Unconditional and Continuing Guaranty effective as of the Effective Date. Address: 1215 Manor Drive Mechanicsburg, Pennsylvania 17055 BALANCED CARE CORPORATION By: ~';l~ Robin L. Barber Senior Vice President - Legal Counsel and Assistant Secretary Tax ID No.: 25-1761898 -10- >~",,^,,",-,,- '"""l""~~",,",,"-,- r-- ., -<; ,," , . """"~~""!,-,,,,,j,1_. .:\ EXIllBIT A: GUARANTOR'SCERTIFICATE Report Period: Commencing and ending Lease: Lease made by Pennsylvania BCC Properties, Inc. ("Landlord") to Financial Care Investors of Loyalsock, LLC ("Tenant") guaranteed by Balanced Care Corporation ("Guarantor") I hereby certify to Landlord as follows: 1. The attached [specify anrliterl or nnauoiterl and annual or q.narterly, and if conRolirlateo, so state] fmancial statements of Guarantor [i] have been prepared in accordance with generally accepted accounting principles consistently applied; [ii] have been prepared in a manner substantially consistent with prior fmancial statements submitted to Landlord; and [iii] fairly present the financial conclition of Guarantor in all material respects as of the dates thereof. 2. As set forth in the attached fmancial statements, Guarantor has maintained the Net Worth, Cash and Cash Equivalents, Current Ratio, and Debt to Equity Ratio as required under the Unconditional and Continuing Lease Guaranty made by Guarantor in favor of Landlord ("Guaranty"). 3. To my knowledge, Tenant was in compliance with all of the provisions of the Lease Documents at all times during the Report Period, and no default, or any event which with the passage of time or the giving of notice or both would constitute a default, has occurred under the Lease Documents. 4. Guarantor was in compliance with all of the provisions of the Guaranty at all times during the Report Period, and no default, or any event which with the passage of time or the giving of notice or both would constitute a default, has occurred under the Guaranty, Executed this _ day of CORPORATEIP ARTNERSHlP LIMITED LIABILITY COMPANY GUARANTOR: By: Title: 3114/99 {'~~~i'- _ _~ '_''''' I ';-',; - " . ,~ ""_"l'" ~; ~ - '~ ,,-;;-- .' UNCONDITIONAL AND CONTINUING GUARANTY THIS GUARANTY is made effective as of October 31, 2000 (the "Effective Date'') by BALANCED CARE CORPORATION ("Guarantor"), in favor of PENNSYLVANIA BCC PROPERTIES, me., a corporation organized under the laws of the Commonwealth of Pennsylvania ("Lender"), RECIT ALS A. Lender has extended to Financial Care Investors, LLC ("FCI"), a loan in an amount of up to $686,800.00 ("Loan") pursuant to a Loan Agreement between Lender and FO dated as of September 22,1998 as amended by a First Amendment to Loan Agreement dated as of September 30, 1999 ("Loan Agreement"), The Loan was extended to FCIin connection with Lender entering into a Lease Agreement ("Lease") with Financial Care Investors of Lebanon, LLC ("Borrower" or "Tenant"), a wholly owned subsidiary of FCI, for the assisted living facility ("Facility") on the real property located in Lebanon, Pennsylvania ("Property"), B. Manager has now acquired FCI's membership interest in Tenant. In connection with this acquisition, Borrower has agreed to assume responsibility for repayment of the Loan. Borrower has executed an Amended and Restated Note to evidence its obligation to repay the Loan ("Note"). Borrower has also executed a Second Amended and Restated Loan Agreement of even date herewith. Hereinafter all references to the Loan Agreement shall mean the Second Amended and Restated Loan Agreement of even date herewith, C. In order to permit the assumption of the Loan by Borrower, Lender requires that this guaranty be provided by Guarantor. Balanced Care at Lebanon, Inc. is the sole member of Borrower and is a wholly owned subsidiary .of Guarantor and Guarantor has determined that Guarantor will benefit from Borrower's assumption of the Loan and has agreed to provide this guaranty to Lender. D. As used herein, "Loan Documents" means the Note, Loan Agreement, and all other documents and agreements made in connection with the Loan, as amended, modified, renewed or extended from time to time, "Credit" means all principal, interest, charges, expenses and all other amounts payable by Borrower to Lender pursuant to the Loan Documents. "Security" includes all guaranties of any Credit, all interests in real or personal property securing the payment of any Credit or any guaranties of any Credit, and all other agreements, rights, or interests insuring or guaranteeing payment of any Credit. "Loan Obligations" means all of the covenants, obligations and liabilities of Borrower under the Loan Documents, including the payment of the Credit when due. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lender and Guarantor intending to be legally bound hereby, agree as follows: ctr\hcri\Jebanon \loan..guaTIlnty 11/22100 ,""",">;:r;l><"""~,, ~ ~'~ ~"~ '. r ~ - " ~ ~ - . r~-';""~'''~'.tf-'l''~'' .'~,"""-''''' 'eo_'.',.'=_' ~--~-- -, 1. Guaranty, Guarantor unconditionally guarantees the prompt payment when due of the Credit and the performance of the Loan Obligations and shall indemnifY Lender and hold Lender harmless from any costs and expenses in any way arising out of Borrower's failure to repay the Credit or perform the Loan Obligations according to their terms, 2. Warranties, (a) Capacity, Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Guarantor warrants that Guarantor has taken all necessary corporate action to incur the obligations of this guaranty and to execute, deliver and perform this guaranty. (b) Contracts. Guarantor warrants that there is no provision of Guarantor's Articles of Incorporation or Bylaws or any existing indenture, contract, or agreement to which Guarantor is a party or of any law, administrative regulation, court order, or consent decree that would be contravened by the execution, delivery, or performance of this guaranty, (c) Inducement to Lender; Waivers. Guarantor [1] acknowledges that Lender would not have permitted Borrower to assume the Credit and will not continue to extend Credit to Borrower but for this guaranty; [2] warrants that Guarantor has given this guaranty to induce Lender to extend and to continue to extend Credit to Borrower; [3] agrees that Lender may rely on this guaranty in extending future Credit to Borrower without notice to Guarantor, but only in connection with the Leased Property; [4] warrants that Guarantor has received good and valuable consideration for this guaranty; [5] waives acceptance of this guaranty; [6] warrants that Guarantor has not given this guaranty in reliance upon the existence of any Security; [7] acknowledges receipt of notice of all Credit extended before this date; [8] waives notice of any Credit extended after this date except as specifically provided in the Lease; [9] waives protest and any other notice of failure to pay the Credit or to perform any agreement relating to any Credit or Security except as specifically provided in the Lease; [10] acknowledges 1hat Guarantor has read this guaranty, the Note, the Loan Agreement, and all other documents in connection with the Loan; and [11] acknowledges that Guarantor understands and agrees to Guarantor's obligations under this guaranty. (d) No Reliance on Information from Lender. Guarantor [1] warrants that Guarantor has not relied on any information about the Borrower, the Security, or any guarantor of the Credit provided directly or indirectly by Lender; [2] warrants that Guarantor is familiar with Borrower, Borrower's affairs, and the Security; [3] warrants that Guarantor has had ample opportunity to investigate Borrower, BOITower's affairs, the Security, and the effect that the Credit will have; [4] warrants that Guarantor has been provided all information concerning Borrower, Borrower's affairs, and the Security that Guarantor has requested; [5] warrants that Guarantor has had adequate opportunity to seek and evaluate professional advice concerning Borrower, the Security, and this guaranty from advisors of Guarantor's choosing, including financial and legal advice; and [6] agrees that Guarantor shall not rely on any information provided by Lender about BOITower or the Security, including any other guarantor. Guarantor shall continue to investigate and evaluate Borrower and the Security independently throughout the term of this guaranty, and Lender has no obligation to provide Guarantor any information about the Borrower or the Security. c1r\hcri\lebanon\loan..guaranty -2- 11/22/00 1-_" ~c, r"" ", ., ,""",,~i!Ill, ~~. . ~ (e) No Insolvencv. On the date of the Guarantor's entering into this guaranty and after giving effect to all indebtedness of the Guarantor, [1) the Guarantor will be able to pay Guarantor's obligations as they become due and payable; (2) the present fair saleable value of the Guarantor's assets exceeds the amount that will be required to pay Guarantor's probable liability on its obligations as the same become absolute and mature; [3) the sum of the Guarantor's property at a fair valuation exceeds Guarantor's indebtedness; and (4) the Guarantor will have sufficient capital to engage in Guarantor's businesses, The proceeds of the Credit constitute fair consideration and reasonably equivalent value for this guaranty. 3. Waivers. Without notice to or consent of Guarantor, Lender may do or refrain from doing anything affecting any Credit or any Security including the following: [a) granting or not granting any indulgences to anyone liable for payment of the Credit or any Security; [b) failing to get or to perfect any Security; [c) failing to get an enforceable agreement to repay the Credit; [d) releasing any Security or anyone or any property from liability for payment of the Credit; [e) changing the Loan Agreement or any agreement relating to the Credit or any Security including, without limitation, any change in the schedule or manner for the payment of any Credit and any increase or decrease in the rate of interest payable thereon; [f) extending the time for payment of the Credit including extending the time beyond the term of/he Note; [g) exercising any right or remedy, including, without limitation, taking a deed in lieu of foreclosure; [h) applying any funds received from Borrower, Guarantor or any other party and any funds realized from any Security to the Credit in such manner and in such order or priority as Lender elects in its sole discretion; and [i) delaying in enforcing or failing to enforce any rights to payment of the Credit or rights against any Security. In the event that Lender forecloses or otherwise realizes on any Security for repayment of the Credit, Guarantor agrees that the purchase price at any judicial or nonjudicial sale of the Security paid by Lender or any other party shall be conclusive evidence of the value of the Security and Lender shall have an absolute right, subject to applicable law, to obtain a deficiency judgment against Guarantor of all amounts due in excess of such purchase price, even though any rights which Guarantor may have against others might be destroyed or diminished by the exercise of any such remedy by Lender. To the fullest extent permitted by law, Guarantor waives the right to contest the value of the Security through appraisals or otherwise, and waives any defense to a deficiency judgment that Guarantor may have pursuant to any statute or other applicable law. 4. Defects in Securitv, Etc. Guarantor's liability under this guaranty shall not be affected by [a) any default in any document concerning any Credit or Security when accepted by Lender or arising any time thereafter; [b) the unenforceability of or defect in any Security or document relating to any Credit; [c) any decline in the value of any Security; [d) Lender's failure to obtain any Security or to perfect Lender's security in1erest therein; or [e) the death, incompetence, insolvency, dissolution, liquidation, or winding up of affairs of Borrower, Guarantor, or anyone liable for any Security or the start of insolvency proceedings by or against any such person or entity. 5. Waiver of Surety's Defenses, GUARANTOR WAIVES ALL SURETYSHIP AND OTHER SIMILAR DEFENSES. 6. Unconditional Obligation. If Borrower fails to pay all or any part of any Credit when due after expiration of any applicable grace, notice or cure period, Guarantor shall immediately pay to Lender all amounts then due and payable in connection with any Credit, regardless of whether or not Lender first pursues Borrower or exhausts any of its rights or remedies clr\hcri\lebanon \loan.guaranty -3- 11122/00 ""''i'''''?''' _ .' ."~", '~r,", ~ "- .' , , . . - ,"~'P'Cjj{t'~~:~'rr< ~_' " --, ~,. ~. ~ ^ , , against Borrower, any other Guarantor, others, or other Security. Guarantor shall not have any right of subrogation to the rights of Lender against any of the assets of Borrower or any other guarantor of the Loan until after indefeasible payment in fi.11l of the Credit. 7. Continuing Obligation, This guaranty shall extend and be applicable to all renewals, amendments, extensions, consolidations, modifications, increases and reductions of the Loan Documents and the Credit. Guarantor's liability under this guaranty shall not be reduced or cancelled by any such action and shall be deemed modified in accordance with the terms of such action, whether or not Guarantor has notice of such action, 8. Subordination, Guarantor subordinates to and postpones in favor of the Credit and Security [a] any present and future debts and obligations of Borrower to Guarantor (the "Indebtedness") including but not limited to [i] salary, bonuses, and other payments pursuant to any employment arrangement; [ii] fees, reimbursement of expenses and other payments pursuant to any independent contractor arrangement; [iii] principal and interest pursuant to any Indebtedness; [iv] distributions payable to any shareholders or general or limited partners of Borrower; and [v] lease payments pursuant to any leasing arrangement; and [b] any liens or security interests securing payment of the Indebtedness, Except as otherwise specified in the Loan Agreement, the provisions of this paragraph shall be effective only [i] afler the occurrence of an Event of Default (as defined in the Loan Agreement) and until such Event of Default is cured, or [ii] after the commencement of any bankruptcy or insolvency proceeding by or against Borrower and until such proceeding is dismissed. Guarantor shall not ask for, sue for, demand, take or receive any payment, by setoff or in any other manner, including the receipt of a negotiable instrument, for all or any part of the Indebtedness owed by Borrower, or any successor or assign of Borrower, including without limitation a receiver, trustee or debtor in possession (the term "Borrower" shall include any such successor or assign of Borrower) until the Credit has been paid in full; however, if Guarantor receives such a payment, Guarantor shall immediately deliver the payment to Lender for credit against the then outstanding balance of the Credit, whether matured or unmatured, Notwithstanding any right of Guarantor to ask, demand, sue for, take or receive any payment with respect to the Indebtedness, all rights, liens and security interests of the Guarantor, whether now or hereafter arising, in any assets ofthe Borrower or in any Security shall be and hereby are subordinated to the rights of Lender in such assets and Guarantor shall have no right to possession of any such assets or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until the Credit has been paid in full, Guarantor agrees that Lender shall be subrogated to the Guarantor with respect to the Guarantor's claims against Borrower and the Guarantor's rights, liens and security interest, if any, in any of the Borrower's assets and proceeds thereof until all of the Credit has been paid in full. Guarantor warrants and represents that Guarantor has not previously assigned any interest in the Indebtedness to any party other than Lender, that no other party owns an interest in the Indebtedness other than Guarantor, (whether as joint holders of the Indebtedness, participants or otherwise) and that, except as provided below, the entire Indebtedness is and shall continue to be owing only to the Guarantor. Guarantor shall not assign or transfer to others any claim Guarantor has or may have against the Borrower, unless such assignment or transfer is made expressly subject to this guaranty. clr\hcri\1ebanon\!oan..guaranty -4- 11122/00 _"'-''',MfW{of''',,"'k ~I .- r '~'''''f'''lirrjf' . -~ ~-, Any claim which Guarantor may make against Borrower or Borrower's estate in any bankruptcy or insolvency proceedings shall be expressly subject to the terms of this 98. In the event of any distribution of the asse1s or readjustment of the obligations and indebtedness of the Borrower, whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding involving the readjustment of all or any of the Indebtedness hereby subordinated, or the application of the assets of the Borrower to the payment or liquidation thereof, Lender shall be entitled to receive payment in full of any and all of the Credit, due or not due, prior to the payment of all or any part of the Indebtedness hereby subordinated, and in order to enable Lender to enforce its rights hereunder in' any such action or proceeding, Lender is hereby authorized ,md empowered in its discretion to make and present for and on behalf of Guarantor such proofs of claims against the Borrower, if the Guarantor shall have failed to file any such proof of claim within thirty (30) days after Lender has requested Guarantor to file such proofs of claim on account of the Indebtedness hereby subordinated, as Lender may deem expedient or proper and to vote such proofs of claims in any such proceeding and to receive and collect any and all dividends or other payments or disbursements made thereon in whatever form the same may be paid or issued and to apply the same on account of any of the Credit. In the event of any distribution, division or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the .assets of the Borrower or the proceeds thereof, to the creditors of the Borrower's business, or upon the sale of all or substantially all of the Borrower's assets, then, and in any such event, any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any or all of the Indebtedness shall be paid or delivered directly to Lender for application on any of the Credit, due or not due, until such Credit shall have fitst been fully paid and satisfied, After the occurrence and during the continuance of any Event of Default, in the event that Guarantor shall j'li I or refuse to take any action that Lender requests in writing that the Guarantor take with respect to the Indebtedness within thirty (30) days of the GuarantcJr's receipt of such request, Guarantor authorizes and empowers Lender to demand, sue for, collect and receive every such payment or distribution and give acquittance therefor and to file claims and take such other proceedings, in Lender's own name or in the name of Guarantor or otherwise, as Lender may deem necessary or advisable for the enforcement of this guaranty; and Guarantor will execute and deliver to Lender such powers of attorney, assignments or other instruments or documents, as may be requested by Lender in order to enable Lender to enforce any and all claims upon or with respect to any or all of the indebtedness and to collect and receive any , and all payments of distributions which may be payable or deliverable at any time upon or with respect to the Indebtedness, all for Lender's own benefit. Should any payment, distribution, security, instrument or proceeds which are subject to the subordination contained in the first paragraph of this 98 be received by Guarantor upon, or with respect to, the Indebtedness while such subordi nation provision is effective and prior to the satisfaction of all of the Credit and termination of all flllancing arrangements between the Borrower and Lender, Guarantor shall receive and hold the same in tmst as trustee, for the benefit of Lender and shall forthwith deliver the same to Lender in precisely the form received (except for the endorsement or assignment of the Guarantor where nec",ssary), for application on any of the Credit, due or not due, and until so delivered, the same sha II be held in trust by the Guarantor as the clMcri\lebanon\loon..guaranty -5c 1II22100 ,o","''''''",,",,,,''~ .~" __r~lu~!.J_ 1 ~H! ff~ ~~" r -0 ~ _ ",' ~ ~-~'""~- Il<< ,J-r"'- 'Xf'ik-sf.j-,-,-,~ '"".' , -,,, - property of Lender, In the event of the failure of Guarantor to make any such endorsement or assigmnent to Lender, Lender, or any of its officers or employees, is hereby irrevocably authorized to make the same, Any instrument evidencing any of the Indebtedness, or any portion thereof, will, on the date hereof or promptly hereafter, be inscribed with a legend conspicuously indicating that payment thereof is subordinated to the claims of Lender, pursuant to the terms ofthis guaranty, and will be delivered to Lender upon request therefor after the declaration of an Event of Default, if such original is necessary in order to enable Lender to take any action pennitted hereunder, including, without limitation, the filing of proofs of claim on behalf of Guarantor. This subordination shall continue and shall be irrevocable until all the terms, covenants and conditions of the Credit have been fully and completely performed by Borrower or otherwise discharged and released by Lender, and the Guarantor shall not be released from any duty, obligation or liability hereunder so long as there is any claim of Lender against Borrower arising out ofthe Credit which has not been perfomled, settled or discharged in full. 9, financial Statements, (a) Financial Statements, Not Iatcr than 90 days after the end of each fiscal year, Guarantor shall deliver to Lender audited cOllsolidate',d financial statements of Guarantor for the preceding year. In addition, not later than 45 days atter the end of each quarter, Guarantor shall deliver to Lender unaudited consolidated fimmcial slatements of Guarantor for the preceding quarter. If Guarantor is or becomes subject to any reporting requirements of the Securities and Exchange Commission ("SEC"), Guarantor shaH, in lieu of providing the financial statements described above, concurrently deliver to Landlord such reports as are delivered to the SEC pursuant to applicable securities laws, (b) Certificate. With each delivery of financial statements, Guarantor shall also provide to Lender a Certificate in the form of Exhibit A. (c) Tax Returns. Guarantor sh<lll deliver to Lender the federal tax return of Guarantor for each year within 15 days after the filing of the return. If the filing date for any tax return has been extended, Guarantor shall also deliver 10 Lender a copy of the extension application within 15 days after the date of filing. (d) Other Information. Guarantor shall promptly fturush to Lender such other information and statements concerning the business affairs and financial condition of the Guarantor as Lender may reasonably request. Guarantor shall give Lender access to all books, records, and financial data of Guarantor by or through any of Lender's officers, agents, attorueys or accountants, at all reasonable times and from time to time. Lender may examine, inspect, and make extracts from Guarantor's books and other records at all reasonable times and from time to time, subject, however, to any agreements made by Lender rcgarding confidentiality of such information. (e) Covenants. Guarantor covenants that all financial statements of Guarantor furnished Lender will present fairly in all material aspects of Guarantor as of the dates of the statements and will be prepared in accordance with generally accepted accounting principles applied on a basis consistently maintained throughout 1he period involved. clT\hcri\lebanon\Joan..guaranly -6- 11122100 "-,-"-".,,,;-~._" - ,.....,..".._-~ ~1 ,. , ,'-- . ,...$""1 4" "C~t",~,,"'i f1i1fYTI--' "......'" -"~~" - 1 O. Financial Covenants. (a) Net Worth, TJu'oughont the term of the Loan, Guarantor shall maintain for each fiscal quarter a Net Worth and equity capitalization of not less than $35,000,000.00. (b) Current Ratio. Guarantor shall maintain for each fiscal quarter a ratio of current assets to curreut liabilities of not less than 1,25 to 1.00. (c) Debt to Equitv Ratio, Guarantor shall maintain for each fiscal quarter a ratio of total indebtedness to shareholders' equity not to exceed 10.0 to 1.00. The aggregate lease amount under all capitalized and operating leases shall be included as indebtedness and all subordinated debt shall be included as equity, For purposes of this section, "operating leases" shall include all future lease obligations where Guarantor is not currently the tenant but has an option to purchase the equity interest in or assets of the tenant or where Guarantor otherwise has rights to purchase the assets or equity of the tenant or where Guarantor has agreed to fund operating shortfalls in connection with the operation of the facility by the tenant. 11. No Convevance, Guarantor shall not sell, convey, pledge, encumber or otherwise transfer any ownership interest in Balanced Carc at Lebanon, Inc. now owned or hereafter acquired, and Guarantor shall not permit Balanced Care at Lebanon, Inc, to sell, convey, pledge, encumber or otherwise transfer any ownership ill1erest in Borrower now owned or hereafter ' acquired, without the prior written consent of Lender. which consent shall not be unreasonably withheld, Guarantor shall not sell, give, conveyor otherwise transfer, directly or indirectly, all or substantially all of the assets of Guarantor to any pcrson ('Transferee") if such transfer would cause the Net Worth of such Guarantor to be less than the amount required to be maintained under this Guaranty; provided, however, that the foregoing restriction shall not apply to any transfer of assets made after Guarantor's death (if an individual) pnrsualll 10 any will, testament or applicable law of descent and distribution. Any transfer of assets that is prohibited by this section shall constitute an Event of Default under the Loan Agreement and shall be deemed to be a fraudulent conveyance against Lender. In the event of any such prohibited transfcr, Lender shall be entitled to enforce this guaranty against the Transferee and to seize all snch 1ransferred' assets and apply the proceeds from such assets to payment of the Credit, whether mahlred or unmatured. 12, Loan Covenants. Throughout the term of the Loan, Guarantor shall comply with all requirements and covenants of the Lease applicable to Guarantor, including, without limitation, Sections 14,5,14,6,14,9, and Article 23, 13. Subsequent Guaranties. No subsequent guaranty to Lender by Guarantor shall supersede or terminate this guaranty, but shall be an additional guaranty unless otherwise stated therein and, if Guarantor has given a previous gnaranty to Lender, this guaranty shall be in addition to the previous guaranty, 14. Successors. Etc. This guaran1y shall be binding upon not only Guarantor but also Guarantor's successors and assigns and shall innre to the benefit of Lender and its successors and assigns. clr\hcri\lebanon \loan.guaranty -7- 11122/00 .'",,"_",,',lm'W<'i' , ",,-. -" >,' ?~ ,~ " Jfi!(;~~l,"!i::" '(~'''~-' <--'"q -<"-'. '~c. w '"~~, ~"~ IS, Termination; Revocation. Subject to reinstatement pursuant to 916, this guaranty shall automatically terminate on the date on which all of the Credit is repaid in full. No revocation ofthis guaranty or any substitute guaranty by Guarantor shall be effective until all of the Credit has been repaid in full. 16. Survival. The obligations of the Guarantor under this guaranty will continue to be effective or shall be reinstated, as the case might be, if at any time any payment from Borrower of any sum due to the Lender is rescinded or must otherwise be restored or returned by the Lender on the insolvency, bankruptcy, dissolution, liquidation or reorganization ofthe Borrower or as a result of the appointment of a custodian, conservator, receiver, trustee or other officer with similar powers with respect to the Borrower or any part of the Borrower's property or otherwise. If an event pennitting the acceleration of the maturity of the Loan has occurred and is continuing and such acceleration is at such time prevented by reason \) r 1he pendency against the Borrower of a proceeding under any bankruptcy or insolvency Jaw, Guarantor agrees that, for the purposes of this guaranty and the obligations of Guarantor under this guaranty, the maturity of the Loan will be deemed to have been accelerated with the same effect as if the Lender had accelerated the same in accordance with the terms of the Loan Documents and Guarantor will innnediately pay the unpaid balance of the Credit. 17, Governing Law. This guarantv shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania, without giving effect to the conflict oflaws mles thereof. 18. Number; Gender. Where appropriate, the number of any word in this guaranty shall include both singular and plural, the gender of any word shall be masculine, feminine, or neuter. J 9, Enforceability, If any provision \1 f this guaranty or the application thereofto anyone or any circumstance shall be adjudged invalid or unenforceable to any extent, the application of the remainder of the provision to 1he party or circumstance, the application of the provision to other parties or circmTIstances, and the application of the remainder of this guaranty shall not be affected thereby. Each provision of this guaranty shall be valid and enforceable to the fullest extent permitted by law, 20. No Waivers bv Lender. No forbear'illce by Lender in exercising any right under this guaranty, any Credit, or any Security shall operate as a waiver thereof; no forbearance in exercising any right under this guaranty, any Credit, or any Security on anyone or more occasions shall operate as a waiver of such right on any other occasion; and no single or partial exercise of any right under this guaranty, any Credit, or any Security shall preclude any other or further exercise thereof or the exercise of any other right, power, or privilege, Lender's rights under this guaranty are cumulative and not exclusive of any rights or remedies that Lender may otherwise have. 21. Fees and Expenses. Guarantor shall pay to Lender all costs and expenses incurred by Lender in administering the Loan and the Security, enforcing or protecting Lender's rights in connection with any Credit, Security or this guaranty and in collecting payment on any Credit or this guaranty, whether or not an Event ofDej~llIJt (as defined in the Loan Agreement) has actually occurred or has been declared and thereafler cured, including, but not limited to, clnhcri\}ebanon \Joan.guaranty -8- 11122100 ''''s'''""''''''"'.l'<4,, lilR ,,_+,0 "'.. ~ . ~__'-";:.-""'::~--""Y"r:D- - ,'""''''"', "~- [a] attorney's fees and paralegal fees; [b) the fees and expenses of any litigation, administrative, bankruptcy, insolvency, receivership or any other similar proceeding; [c) court costs; [d) the expenses of Lender, its employees, agents, and witnesscs in preparing for litigation and for lodging, travel, and attendance at pretrial hearings, depositions, and trials; and [e) consulting fees and expenses incurred by Lender in connection with any litigation, 22. Notices. Any notices required or desired to be given under this guaranty shall be in writing and shall be delivered in the manner set forth in the Loan Agreement, and if to Lender, delivered to Lender at One SeaGate, Suite 1500, P,O, Box 1475, Toledo, Ohio 43603, and if to a Guarantor, to the address set forth opposite such Guarantor's signature, or to such other address as Lender or any Guarantor may hereafter give written notice thereof. All notices shall be effective upon the earlier of actual receipt or three days after deposit in the US. mail or one business day after deposit with the overnight courier. 23. Amendment. This guaranty may not be amended except in a writing signed by Guarantor and Lender. All references to this guaranty, whether in this guaranty or any other document or instrument, shall be deemed to incorporate all amendments, modifications, renewals and extensions of this guaranty and all substitutions therefor made after the date hereof. 24. [Intentionally Deleted). 25. Counterpm1s, This guaran1y may be executed in multiple counterparts, each of which shall constitute an original and all of which toge1her shall constitute one and the same inslriunent. 26. JURISDICTION AND VENUE, GUARANTOR IRREVOCABLY SUBMITS AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING JURISDICTION OVER LUCAS COUNTY, OHIO OR LEBANON COUNTY, PENNSYLVANJA FOR ADJUDICATION OF ALL MATTERS IN CONTROVERSY UNDER THIS GUARANTY, AND WAIVES ANY OBJECTIONS TO SUCH JURISDICTION AND VENUE AND CONSENTS TO FULL FAITH AND CREDIT BEING GIVEN TO ANY DECISION OF SUCH COURTS BY ANY OTHER STATE OR FEDERAL COURT OF THE UNITED STATES OF AMERICA. GUARANTOR SHALL NOT ATTEMPT TO LITIGATE ANY MATTERS IN CONTROVERSY UNDER THIS GUARANTY BEFORE ANY COURT OR TRIBUNAL OTHER THAN BEFORE A STATE OR FEDERAL COURT HAVING JURISDICTION OVER. LUCAS COUNTY, OHIO. GUARANTOR WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON GUARANTOR AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS UPON THE GUARANTOR BE MADE BY REGISTERED OR CERTIFIED MAlL DIRECTED TO GUARANTOR AT THE ADDRESS SET FORTH BELOW AND SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER POSTED, clr\hcri\lebanon \toan. guaranty -9- 11/22/00 ',,,,.,,,,'V""'~'~' k, ".._ ~,' , - ~,- - ,~-", ~ ~ ,- . I," '.~ ,~ ify;~\",..F,' "' ~ - .,_. , 27. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY WAIVES KNOWINGLY AND VOLUNTARILY THE RIGHT TO A JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY. [THE REMAINDER OF THIS PAGE IS JNTENTIONALL Y LEFT BLANK] clr\hcn"\lebanon\Joan..gu:Jranty -10- 1\122/00 _"'",-,E,,.,,,,,,,,,,,"" ,;',- ""'I '" " " :'r-~~"'<'C'~-';" IN WITNESS WHEREOF, Guarantor executes and delivers to Lender this Unconditional and Continuing Guaranty effective as of the Effective Date. Address: BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, Pennsylvania 17055 By: yyz ~~ Robin L. Barber Senior Vice President - Legal Counsel and Assistant Secretary clr\hcnlJebanon\loan..guaranty -11- 11122100 "-".-o",,,,,"l~ I" , . '.," f"'~'i~Yt.,:"<,,, ,>'" ~" EXHIBIT A: GUARANTOR'S CERTIFICATE Report Period: Commencing and ending Loan: Loan made by Pennsylvania BCC Properties, Inc. ("Lender") to Financial Care Investors of Lebanon, LLC ("Borrower") guaranteed by Balanced Care Corporation ("Guarantor") I hereby certify to Lender as follows: 1. The attached [specify audited or unaudited and annual or Quarterly, and if consolidated, so state] financial statements of GU3ranlOJ' [i] have been prepared in accordance with generally accepted accounting principles consistently applied; [ii] have been prepared in a manner substantially consistent with prior financial statements submitted to Lender; and [iii] fairly present the financial condition of Guarantor in all material respects as of the dates thereof. 2, As set forth in the attached financial statements, Guarantor has maintained the Net Worth, Current Ratio, and Debt to Equity Ratio as required under the Unconditional and Continuing Guaranty made by Guarantor in favor ofLcnder ("Guaranty"). 3, To the best of my knowledge, BOlTower was in compliance with all of the provisions of the Loan Documents at all times during the Report Period, and no default, or any event which with the passage of time or the giving of notice or both would constitute a default, has occurred under the Loan Documents, 4. Guarantor was in compliance wi1h all of the provisions of the Guaranty at all times during the Report Period, and no default, or any event which with the passage of time or the giving of notice or both would constitute a default, has occurred under the Guaranty. Executed this ~ day of CORPORA TE/P ARTNERSHIP LIMITED LIABILITY COMPANY GUARANTOR: By: Title: c1r\hcri\lebanon\loan.gllaranty - 12- 11/22/00 ~'"",,":",r",'''!..." I' " .' , UNCONDITIONAL AND CONTINUING LEASE GUARANTY TillS GUARANTY is made effective as of October 31, 2000 (the "Effective Date") by BALANCED CARE CORPORATION, a corporation organized under the laws of the State of Delaware ("Guarantor"), in favor of PENNSYLVANIA BCC PROPERTIES, INC., a corporation organized under the laws of the State of Pennsylvania ("Landlord"). RECITALS A. Landlord granted to Financial Care Investors of Lebanon, LLC, a Delaware limited liability company ("Tenant"), a lease of the real property located in Lebanon, Pennsylvania ("Property") pursuant to a Lease Agreement between Landlord and Tenant dated as of September 22, 1998 ("Lease"), as amended by that certain First Amendment to Lease Agreement dated as of September 30, 1999. Tenant operates an assisted living facility ("Facility") on the Property. B. The Facility and all improvements and fixtures constructed and installed on the Property will be the property of Landlord and will be included in the "Leased Property" under the Lease. C. Balanced Care at Lebanon, Inc., a wholly owned subsidiary of Guarantor on October 31,2000 succeeded the interest of the Tenant (the "Succession"). D. Pursuant to Section 18.1[ii] of Lease upon such a Succession, Landlord requires that this guaranty be provided by Guarantor. E. As used herein, "Lease Documents" means the Lease, and all other documents and agreements made in connection with the Lease, as amended, modified, renewed or extended from time to time. "Credit" means all rent, late charges, interest, taxes, utility charges, insurance premiums and all other charges, expenses and amounts payable by Tenant to Landlord pursuant to the Lease Documents. "Security" includes all guaranties of any Credit, all interests in real or personal property securing the payment of any Credit or any guaranties of any Credit, and all other agreements, rights, or interests insuring or guaranteeing payment of any Credit. "Lease Obligations" means all of the covenants, obligations and liabilities of Tenant under the Lease Documents, including the payment of the Credit when due. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and suffIciency of which are hereby acknowledged, Landlord and Guarantor intending to be legally bound hereby, agree as follows: 1. Gmranty Guarantor unconditionally guarantees the prompt payment when due of the Credit and the performance of the Lease Obligations and shall indenmif'y Landlord and hold Landlord harmless from any costs and expenses in any way arising out of Tenant's failure to repay the Credit or perform the Lease Obligations according to their terms. Gl1egal/lorie/take outs ~ hert/forms/unconditional and continuing lease guaranty Lebanon..v2 ,,--'h'i""-;""~ ~ " - ". ~~. V"..,,,'~ 2. W;lrr;lntlP~. (a) r.~p~eity, Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Guarantor warrants that Guarantor has taken all necessary corporate action to incur the obligations of this guaranty and to execute, deliver and perform this guaranty, (b) r.ontr~dR. Guarantor warrants that there is no provlSlon of Guarantor's Articles ofIncorporation or Bylaws or any existing indenture, contract, or agreement to which Guarantor is a party or of any law, administrative regulation, court order, or consent decree that would be contravened by the execution, delivery, or performance ofthis guaranty. (c) Tnnneement to T ~nnlOTn; W~iverR. Guarantor [1] acknowledges that Landlord would not have extended the Credit to Tenant without Guarantor's agreement to provide this guaranty upon the Succession and will not continue to extend Credit to Tenant but for this guaranty; [2] warrants that Guarantor has given this guaranty to induce Landlord to extend and to continue to extend Credit to Tenant; [3] agrees that Landlord may rely on this guaranty in extending future Credit to Tenant without notice to Guarantor, but only in connection with the Leased Property; [4] warrants that Guarantor has received good and valuable consideration for this guaranty; [5] waives acceptance of this guaranty; [6] warrants that Guarantor has not given this guaranty in reliance upon the existence of any Security; [7] acknowledges receipt of notice of all Credit extended before this date; [8] waives notice of any Credit extended after this date except as specifically provided in the Lease; [9] waives protest and any other notice of failure to pay the Credit or to perform any agreement relating to any Credit or Security except as specifically provided in the Lease; [10] acknowledges that Guarantor has read this guaranty, the Lease, and all other documents in connection with the Lease; and [11] acknowledges that Guarantor understands and agrees to Guarantor's obligations under this guaranty. (d) No Re1i~nee on Tnformation from T ~nnlorn, Guarantor [1] warrants that Guarantor has not relied on any information about the Tenant, the Security, or any guarantor of the Credit provided directly or indirectly by Landlord; [2] warrants that Guarantor is familiar with Tenant, Tenant's affairs, and the Security; [3] warrants that Guarantor has had ample opportunity to investigate Tenant, Tenant's affairs, the Security, and the effect that the Credit will have; [4] warrants that Guarantor has been provided all information concerning Tenant, Tenant's affairs, and the Security that Guarantor has requested; [5] warrants that Guarantor has had adequate opportunity to seek and evaluate professional advice concerning Tenant, the Security, and this guaranty from advisors of Guarantor's choosing, including fmancial and legal advice; and [6] agrees that Guarantor shall not rely on any information provided by Landlord about Tenant or the Security, including any other guarantor. Guarantor shall continue to investigate and evaluate Tenant and the Security independently throughout the term of this guaranty, and Landlord has no obligation to provide Guarantor any information about the Tenant or the Security. (e) No TnRolveney, On the date of the Guarantor's entering into this guaranty and after giving effect to all indebtedness of the Guarantor, [1] the Guarantor will be able to pay Guarantor's obligations as they become due and payable; [2] the present fair saleable value of the Guarantor's assets exceeds the amount that will be required to pay Guarantor's probable liability on its obligations as the same become absolute and mature; [3] the sum of the Guarantor's -2- '--"~""::?'+'1,,"~1 ~ -" , . ,,'" .. ..^ ~ - - - ~~,"~ ~r' " property at a fair valuation exceeds Guarantor's indebtedness; and [4] the Guarantor will have sufficient capital to engage in Guarantor's businesses. Tbe proceeds of the Credit constitute fair consideration and reasonably equivalent value for this guaranty, 3. WaiverR. Without notice to or consent of Guarantor, Landlord may do or refrain from doing anything affecting any Credit or any Security inclucling the following: [a] granting or not granting any indulgences to anyone liable for payment of the Creclit or any Security; [b] failing to get or to perfect any Security; [c] failing to get an enforceable agreement to repay the Creclit; [d] releasing any Security or anyone or any property from liability for payment of the Creclit; [e] exercising any right or remedy including, without limitation, eviction of Tenant or termination of the Lease; [f] applying any funds received from Tenant, Guarantor or any other party and any funds realized from any Security to the Credit in such manner and in such order or priority as Landlord elects in its sole c1iscretion; and [g] delaying in enforcing or failing to enforce any rights to payment of the Credit or rights against any Security. In the event that Landlord forecloses or otherwise realizes on any Security for repayment of the Creclit, Guarantor agrees that the purchase price at any judicial or other sale of the Security paid by Landlord or any other party shall be conclusive evidence of the value of the Security and Landlord shall have an absolute right, subject to applicable law, to obtain a deficiency judgment of all amounts due in excess of such purchase price, to the extent permitted by applicable law. To the fullest extent permitted by law, Guarantor waives the right to contest the value of the Security through appraisals or otherwise, and waives any defense to a deficiency judgment that Guarantor may have pursuant to any statute or other applicable law. 4. DefectR in Se"nrity, Fk Guarantor's liability under this guaranty shall not be affected by [ a] any default in any document concerning any Credit or Security when accepted by Landlord or arising any time thereafter; [b) the unenforceability of or defect in any Security or document relating to any Credit; [c] any decline in the value of any Security; [d] Landlord's failure to obtain any Security or to perfect Landlord's security interest therein; [e] the death, incompetence, insolvency, c1issolution, liquidation, or winding up of affairs of Tenant, Guarantor, or anyone liable for any Security or the' start of insolvency proceedings by or against any such person or entity; [f] any termination of the leasehold estate created by the Lease to the extent Tenant remained liable under the Lease; [g] the release or c1ischarge of Tenant in any creditor's, receivership, bankruptcy, other insolvency proceeclings, or other proceedings; [h] impairment, limitation or modification of the liability of Ten ant or the estate of Ten ant in bankruptcy or of any remedy for the enforcement of Tenant's liability under the Lease, resulting from the operation of any present or future provisions of the federal Bankruptcy Code or other statutes or from the decision of any court; [i] the rejection or c1isaffirmance of the Lease in any such proceedings; [j] the assignment or transfer of the Lease by the Tenant; [k] any c1isability or other defense of Tenant; [1] the cessation from any cause whatsoever of the liability of Tenant under the Lease; or [m] any reorganization, merger, consolidation, combination, or sale of substantially all the assets of Ten ant 5. Waiver of Snrety'R DefenReR. SURETYSHIP AND OTHER SIMILAR DEFENSES. GUARANTOR W AlVES ALL 6. TJn"onditional Ohligation. If Tenant fails to pay all or any part of any Creclit when due after expiration of any applicable grace, notice or cure period, Guarantor shall immecliately pay to Landlord all amounts then due and payable in connection with any Credit, -3- ~"")-""': ~I -;! , . .. ,~~ '""~ ~ - . I' <,., -' ~ ~ " ,~ regardless of whether or not Landlord first pursues Tenant or exhausts any of its rights or remeclies against Tenant, any other Guarantor, others, or other Security. Guarantor shall not have any right of subrogation to the rights of Landlord against any of the assets of Tenant or any other guarantor of the Lease until after indefeasible payment in full of the Creclit. 7. C:ontinlling Ohlig~tion. This guaranty shall extend and be applicable to all renewals, amendments, extensions, consolidations, moclifications, increases and reductions of the Lease Documents and the Creclit. Guarantor's liability under this guaranty shall not be reduced or cancelled by any such action and shall be deemed moclified in accordance with the terms of such action, whether or not Guarantor has notice of such action. 8. Sllhon1in~tion, Guarantor suborclinates to and postpones in favor of the Credit and Security [a] any present and future debts and obligations of Tenant to Guarantor (the "Indebtedness'') including but not limited to [i] salary, bonuses, and other payments pursuant to any employment arrangement; [ii] fees, reimbursement of expenses and other payments pursuant to any independent contractor arrangement; [iii] principal and interest pursuant to any Indebtedness; [iv] c1istributions payable to any shareholders or general or limited partuers of Ten ant; and [v] lease payments pursuant to any leasing arrangement; and [b] any liens or security interests securing payment of the Indebtedness. Except as otherwise specified in the Lease, the provisions of this paragraph shall be effective only [i] after the occurrence of an Event of Default (as defined in the Lease) and until such Event of Default is cured, or [ii] after the commencement of any bankruptcy or insolvency proceeding by or against Tenant and until such proceeding is c1ismissed. Guarantor shall not ask for, sue for, demand, take or receive any payment, by setoff or in any other manner, including the receipt of a negotiable instrument, for all or any part of the Indebtedness owed by Tenant, or any successor or assign of Tenant, including without limitation a receiver, trustee or debtor in possession (the term ''Tenant'' shall include any such successor or assign of Tenant) until the Creclit has been paid in full; however, if Guarantor receives such a payment, Guarantor shall immediately deliver the payment to Landlord for creclit against the then outstanding balance of the Creclit, whether matured or unmatured, Notwithstancling any right of Guarantor to ask, demand, sue for, take or receive any payment with respect to the Indebtedness, all rights, liens and security interests of the Guarantor, whether now or hereafter arising, in any assets of the Tenant or in any Security shall be and hereby are subordinated to the rights of Landlord in such assets and Guarantor shall have no right to possession of any such assets or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until the Creclit has been paid in full. Guarantor agrees that Landlord shall be subrogated to the Guarantor with respect to the Guarantor's claims against Tenant and the Guarantor's. rights, liens and security interest, if any, in any of the Tenant's assets and proceeds thereof until all of the Credit has been paid in full. Guarantor warrants and represents that Guarantor has not previously assigned any interest in the Indebtedness to any party other than Landlord, that no other party owns an interest in the Indebtedness other than Guarantor, (whether as joint holders of the Indebtedness, participants or otherwise) and that, except as provided below, the entire Indebtedness is and shall continue to be owing only to the qUarantor. Guarantor shall not assign or transfer to others any claim Guarantor has or may have against the Tenant, unless such assignment or transfer is made expressly subject to this guaranty. -4- """,C"-,"'"",,,,,,,1tl';.. ,illr<'lk 1I - "" .', ~ ,-- .., Any claim which Guarantor may make against Tenant or Tenant's estate in any bankruptcy or insolvency proceedings shall be expressly subject to the terms of this 98. In the event of any distribution of the assets or readjustment of the obligations and indebtedness of the Tenant, whether by reason of liquidation, bankruptcy, arrangement, receivership, assigmnent for the benefit of creditors or any other action or proceeding involving the readjustment of all or any of the Indebtedness hereby subordinated, or the application of the assets ofthe Tenant to the payment or liquidation thereof, Landlord shall be entitled to receive payment in full of any and all of the Credit, due or not due, prior to the payment of all or any part of the Indebtedness hereby subordinated, and in order to enable Landlord to enforce its rights hereunder in any such action or proceeding, Landlord is hereby authorized and empowered in its discretion to ]nake and present for and on behalf of Guarantor such proofs of claims against the Tenant, if the Guarantor shall have failed to file any such proof of claim within thirty (30) days after Landlord has requested Guarantor to file such proofs of claim on account of the Indebtedness hereby subordinated, as Landlord may deem expedient or proper and to vote such proofs of claims in any such proceeding and to receive and collect any and all dividends or other payments or disbursements made thereon in whatever form the same may be paid or issued and to apply the same on account of any of the Credit. In the event of any distribution, division or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the assets of the Tenant or the proceeds thereof, to the creditors of the Tenant's business, or upon the sale of all or substantially all of the Tenant's assets, then, and in any such event, any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any or all of the Indebtedness shall be paid or delivered directly to Landlord for application on any of the Credit, due or not due, until such Credit shall have first been fully paid and satisfied. After the occurrence and during the continuance of any Event of Default, in the event that Guarantor shall fail or refuse to take any action that Landlord requests in writing that the Guarantor take with respect to the Indebtedness within thirty (30) days of the Guarantor's receipt of such request, Guarantor authorizes and empowers Landlord to demand, sue for, collect and receive every such payment or distribution and give acquittance therefor and to file claims and take such other proceedings, in Landlord's own name or in the name of Guarantor or otherwise, as Landlord may deem necessary or advisable for the enforcement of this guaranty; and Guarantor will execute and deliver to Landlord such powers of attorney, assigmnents or other iuslrunients or documents, as may be requested by Landlord in order to enable Landlord to enforce any and all claims upon or with respect to any or all of the Indebtedness and to collect and receive ,lilY and all payments of distributions which may be payable or deliverable at any time upon or with respect to the Indebtedness, all for Landlord's own benefit. Should any payment, distribution, security, inslrunient or proceeds which are subject to the subordination contained in the first paragraph of this 98 be received by Guarantor upon, or with respect to, the Indebtedness while such subordination provision is effective and prior to the satisfaction of all of the Credit and termination of all financing arrangements between the Tenant and Landlord, Guarantor shall receive and hold the same in trust as trustee, for the benefit of Landlord and shall forthwith deliver the same to Landlord in precisely the form received (except for the endorsement or assigmnent of the Guarantor where necessary), for application on any of the -5- ;,...'''';->13'''''''''' ^.~_ ,~ "- ,~ _,r c. ..- ~~~... lB:r"~--' Credit, due or not due, and until so delivered, the same shall be held in trust by the Guarantor as the property of Landlord. In the event of the failure of Guarantor to make any such endorsement or assignment to Landlord, Landlord, or any of its officers or employees, is hereby irrevocably authorized to make the same. Any instrument evidencing any of the Indebtedness, or any portion thereof, will, on the date hereof or promptly hereafter, be inscribed with a legend conspicuously indicating that payment thereof is subordinated to the claims of Landlord, pursuant to the terms of this guaranty, and will be delivered to Landlord upon request therefor after the declaration of an Event of Default, if such original is necessary in order to enable Landlord to take any action permitted hereunder, including, without limitation, the filing of proofs of claim on behalf of Guarantor. This subordination shall continue and shall be irrevocable until all the terms, covenants and conditions of the Credit have been fully and completely performed by Tenant or otherwise discharged and released by Landlord, and the Guarantor shall not be released from any duty, obligation or liability hereunder so long as there is any claim of Landlord against Tenant arising out of the Credit which has not been performed, settled or discharged in full. 9. Fin"nei"l St"tementR. (a) Fin"nei"l St"tementR. Not later than 90 days after the end of each fiscal year, Guarantor shall deliver to Landlord audited consolidated financial statements of Guarantor for the preceding year and not later than 90 days after the end of the calendar year. In addition, not later than 45 days after the end of each quarter, Guarantor shall deliver to Landlord unaudited consolidated [mancial statements of such Guarantor for the preceding quarter. If Guarantor is or becomes subject to any reporting requirements of the Securities and Exchange Commission ("SEC"), Guarantor shall, in lieu of providing the financial statements described above concurrently deliver to Landlord such reports as are delivered to the SEC pursuant to applicable securities laws. (b) Certifie"te. With each delivery of financial statements, Guarantor shall also provide to Landlord a Certificate in the form of Exhibit A. (c) T"x RehlmR. Guarantor shall deliver to Landlord the federal tax return of Guarantor for each year within 15 days after the filing of the return. If the filing date for any tax return has been extended, Guarantor shall also deliver to Landlord a copy of the extension application within 15 days after the date of filing. (d) Other Tnfonmtion. Guarantor shall promptly furnish to Landlord such other information and statements concerning the business affairs and financial condition of the Guarantor as Landlord may reasonably request. Guarantor shall give Landlord access to all books, records, and [mancial data of Guarantor by or through any of Landlord's officers, agents, attorneys or accountants, at all reasonable times and from time to time. Landlord may examine, inspect, and make extracts from Guarantor's books and other records at all reasonable times and from time to time, subject, however, to any agreements made by Landlord regarding confidentiality of such information, -6- '.",:~,c;,',;'W;;~,11 , " ~ - 'I'" ' , .~ , 0 r " ( e) r:oven:mtR, Guarantor covenants that all fmancial statements of Guarantor furnished Landlord will present fairly in all material respects the financial condition of Guarantor as of the dates of the statements and will be prepared in accordance with generally accepted accounting principles applied on a basis consistently maintained tlrroughout the period involved. 10. Fin~n"i~l r:oven~nt". (a) Net Worth. Throughout the term of the Lease, Guarantor shall maintain a Net Worth (as defined in the Lease) and equity capitalization of at least $35,000,000, (b) Oment R~tio, Guarantor shall maintain for each fiscal quarter a ratio of current assets to current liabilities of not less than 1.25 to 1.00. (c) neht to FqJlity R ~tio, Guarantor shall maintain for each fiscal quarter a ratio oftotal indebtedness to shareholders' equity not to exceed 10.0 to 1.0, The aggregate lease 3lllount under all capitalized and operating leases shall be included as indebtedness and all subordinated debt shall be included as equity. For purposes of this section, "operating leases" shall include all future lease obligations where Guarantor is not currently the tenant but has an option to purchase the equity interest in or assets of the tenant or where Guarantor otherwise has rights to purchase the assets or equity of the tenant or where Guarantor has agreed to fund to operating shortfalls in connection with the operation of the facility by the tenant. 11. No r:onvey~n"e, Guarantor shall not sell, convey, pledge, encumber or ) otherwise transfer any ownership interest in Tenant now owned or hereafter acquired, if any, without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Guarantor shall not sell, give, conveyor otherwise transfer, directly or indirectly, all or substantially all of the assets of Guarantor to any person ("Transferee"). Any transfer of assets that is prohibited by this section shall constitute an Event of Default under t1(e Lease and shall be deemed to be a fraudulent conveyance against Landlord. In the event of ll11Y such prohibited transfer, Landlord shall be entitled to enforce this guaranty against the Transferee and to seize all such transferred assets and apply the proceeds from such assets to paymerit of the Credit, whether matured or unmatured. 12. T e~Re r:oven~ntR, Throughout the term of the Lease, Guarantor shall comply with all requirements and covenants of the Lease expressly applicable to Guarantor, including, without limitation, SS 14.5, 14.6, 14.9 and Article 23. 13. SnhReqJlent GlI~r~ntieR, No subsequent guaranty to Landlord by Guarantor shall supersede or terminate this guaranty, but shall be an additional guaranty unless otherwise stated therein and, if Guarantor has given a previous guaranty to Landlord, this guaranty shall be in addition to the previous guaranty. 14. Sn""eRRorR, FtC- This guaranty shall be binding upon not only Guarantor but also Guarantor's successors and assignees and shall inure to the benefit of Landlord and its successors and assigns, -7- "",,,,,,,:,,.,j-;;t~ , ,-,- , ,,- -I" -',",'" - f -- ~ -~^' - , '-__ii"~~"";'~,;" 15. Termination; 'Revocation. Subject to reinstatement pursuant to g16, this guaranty shall automatically terminate on the date on which all of the Credit is paid in full. No revocation of this guaranty or any substitute guaranty by Guarantor shall be effective until all of the Credit has been paid in full. 16, Snrvival. The obligations of the Guarantor under this guaranty will continue to be effective or shall be reinstated, as the case might be, if at any time any payment from the Tenant of any sum due to the Landlord is rescinded or must otherwise be restored or returned by the Landlord on the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Tenant or as a result of the appointment of a custodian, conservator, receiver, trustee or other officer with similar powers with respect to the Tenant or any part of the Tenant's property or otherwise. 17. Govemine Law. This guaranty shall be goverued by and construed in accordance with the internal laws of the State of Pennsylvania, without giving effect to the conflict oflaws rules thereof. 18. Nnmher: Genc1er. Where appropriate, the number of any word in this guaranty shall include both singular and plural, the gender of any word shall be masculine, feminine, or neuter. 19. Fnforceahility If any provision of this guaranty or the application thereof to anyone or any circumstance shall be adjudged invalid or unenforceable to any extent, the application of the remainder of the provision to the party or circumstance, the application of the provision to other parties or circumstances, and the application of the remainder of this guaranty shall not be affected thereby. Each provision of this guaranty shall be valid and enforceable to the fullest extent permitted by law, 20, No Waivern hy T anc11orc1. No forbearance by Landlord in exercising any right under this guaranty, any Credit, or any Security shall operate as a waiver thereof; no forbearance in exercising any right under this guaranty, any Credit, or any Security on anyone or more occasions shall operate as a waiver of such right on any other occasion; and no single or partial exercise of any right under this guaranty, any Credit, or any Security shall preclude any other or further exercise thereof or the exercise of any other right, power, or privilege, Landlord's rights under this guaranty are cumulative and not exclusive of any rights or remedies that Landlord may otherwise have. 21. FeeR anc1 F"penReR. Guarantor shall pay to Landlord all costs and expenses incurred by Landlord in administering the Lease and the Security, enforcing or protecting Landlord's rights in connection with any Credit, Security or this guaranty and in collecting payment on any Credit or this guaranty, whether or not an Event of Default (as defined in the Lease) has actually occurred or has been declared and thereafter cured, including, but not limited to, [a] attorney's fees and paralegal fees; [b] the fees and expenses of any litigation, administrative, bankruptcy, insolvency, receivership or any other similar proceeding; [c] court costs; [d] the expenses of Landlord, its employees, agents, and witnesses in preparing for litigation and for lodging, travel, and attendance at pretrial hearings, depositions, and trials; and [e] consulting fees and expenses incurred by Landlord in connection with any litigation. -8- "',"' .c' -~- ,?' I ,",_, ',I,"" . 22. Noti",,". Any notices required or desired to be given under this guaranty , shall be in writing and shall be delivered in the manner set forth in the Lease, and if to Landlord, delivered to Landlord at One SeaGate, Suite 1500, P.O. Box 1475, Toledo, Ohio 43603, and if to a Guarantor, to the address set forth opposite such Guarantor's signature, or to such other address as Landlord or any Guarantor may hereafter give written notice thereof. All notices shall be effective upon the earlier of actual receipt or three days after deposit in the U.S. mail or one business day after deposit with the overnight courier. ' 23. Amennm"nt. This guaranty may not be amended except in a writing signed by Guarantor and Landlord. All references to this guaranty, whether in this guaranty or any other document or instrument, shall be deemed to incorporate all amendments, modifications, renewals and extensions of this guaranty and all substitutions therefor made after the date hereof. 24. [Intentionally Deleted] 25. r:mmt"rp~rts. This guaranty may be executed in multiple counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument, 26. TITRTsmr:nON ANn VFNTTR. GUARANTOR IRREVOCABLY SUBMITS AND CONSENTS TO THE NON-EXCLUSIVE JURlSDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING JURlSDICTlON OVER LUCAS COUNTY, OHIO OR LEBANON COUNTY, PENNSYLVANIA FOR ADJUDICATION OF ALL MATTERS IN CONTROVERSY UNDER THIS GUARANTY, AND WAIVES ANY OBJECTIONS TO SUCH JURlSDICTION AND VENUE AND CONSENTS TO FULL FAITH AND CREDIT BEING GIVEN TO ANY DECISION OF SUCH COURTS BY ANY OTHER STATE OR FEDERAL COURT OF THE UNITED STATES OF AMERICA. GUARANTOR SHALL NOT ATTEMPT TO LITIGATE ANY MATTERS IN CONTROVERSY UNDER THIS GUARANTY BEFORE ANY COURT OR TRIBUNAL OTHER THAN BEFORE A STATE OR FEDERAL COURT HAVING JURlSDICTlON OVER LUCAS COUNTY, OHIO. GUARANTOR WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON GUARANTOR AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS UPON THE GUARANTOR BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO GUARANTOR AT THE ADDRESS SET FORTH BELOW AND SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER POSTED. 27. WATVFR OF TITRYTRTAT,. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY WAIVES KNOWINGLY AND VOLUNTARILY THE RIGHT TO A JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY. -9- ",\,"""""'-.;q::"",~ -,)I,~, 1"~""" '.)"'0,,,,--",- "'''''" '. , ' - -=-~ ....4, 'Jit''''' ~ ,,~" IN WITNESS WHEREOF, Guarantor executes and delivers to Landlord this Unconditional and Continuing Guaranty effective as of the Effective Date. Ann",,": BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, Pennsylvania 17055 ~y~ '-.- By: Robin L. Barber Senior Vice President - Legal Counsel and Assistant Secretary TaxIDNo.: 25-1761898 -10- ^"'*~""',,'l""''If_ i . , ~ ", -;~ . , "-"-'^"F""-"""'~ Jl EXHmIT A: GUARANTOR'S CERTIFICATE Report Period: Commencing and ending Lease: Lease made by Pennsylvania BCC Properties, Inc, ("Landlord") to Financial Care Investors of Lebanon, LLC ("Tenant") guaranteed by Balanced Care Corporation ("Guarantor") I hereby certify to Landlord as follows: 1. The attached [specify amliterl or nnanrliterl and annnal or qnarterly, and if eonRolirlaterl, so state] financial statements of Guarantor [i] have been prepared in accordance with generally accepted accounting principles consistently applied; [ii] have been prepared in a manner substantially consistent with prior financial statements submitted to Landlord; and [iii] fairly present the financial condition of Guarantor in all material respects as of the dates thereof. 2. As set forth in the attached financial statements, Guarantor has maintained the Net Worth, Cash and Cash Equivalents, Current Ratio, and Debt to Equity Ratio as required under the Unconditional and Continuing Lease Guaranty made by Guarantor in favor of Landlord ("Guaranty"), 3. To my knowledge, Tenant was in compliance with all of the provisions of the Lease Documents at all times during the Report Period, and no default, or any event which with the passage of time or the giving of notice or both would constitute a default, has occurred under the Lease Documents. 4. Guarantor was in compliance with all of the provisions of the Guaranty at all times during the Report Period, and no default, or any event which with the passage of time or the giving of notice or both would constitute a default, has occurred under the Guaranty, Executed this _ day of CORPORATEIPARTNERSHIP LIMITED LIABILITY COMPANY GUARANTOR: By: Title: 3114/99 '~"'~~''''''''JW~''k" _ , ~~',,~ "1' " , , , UNCONDITIONAL AND CONTINUING LEASE GUARANTY THIS GUARANTY, is made effective as of. J'1c.o.rc..1t 15 ' " 1999 (the "Effective Date") by BALANCED' CARE CORPORATION, a corporation organized under the laws of the State of Delaware ("Guarantor"), in favor of PENNSYLVANIA BCC PROPERTIES, INC., a corporation organized under the laws of the State ofPellilsylvania ("Landlord"). RECITALS A. Landlord is granting to Balanced Care at Bloomsburg II, Inc., a corporation organized under the laws ofthe State of Delaware ('Tenant"), a lease ofthe real property located in Bloomsburg, Pennsylvania ("Property") pursuant to a Lease Agreement between Landlord and Tenant of even date ("Lease"). Tenant intends to operate a 36-unit (66-bed) skilled nursing facility ("Facility") on the Property. B. The Facility and all improvements and fixtures constructed and installed on the Property will be the property of Landlord and will be included in the "Leased Property" under the Lease. C. In order to extend the Lease to Tenant, Landlord requires that this guaranty be provided by Guarantor. Tenant is a wholly-owned subsidiary of Guarantor and Guarantor has determined that Guarantor will benefit from the Lease to Tenant and has agreed to provide this guaranty to Landlord. D. ,As used herein, "Lease Documents" means the Lease, and all other documents and agreements made in connection with the Lease, as amended, modified, renewed or extended from time to time. "Credit" means all rent, late charges, interest, taxes, utility charges, insurance premiums and all other charges, expenses and amounts payable by Tenant to Landlord pursuant to the Lease Documents. "Security" includes all guaranties of any Credit, all interests in real or personal property securing the payment of any Credit or any guaranties of any Credit, and all other agreements, rights, or interests insuring or guaranteeing payment of any Credit. "Lease Obligations" means all of the covenants, obligations and liabilities of Tenant under the Lease Documents, including the payment of the Credit when due. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Guarantor intending to be legally bound hereby, agree as follows: 1. Guarantv. Guarantor unconditionally guarantees the prompt payment when due of the Credit and the performance of the Lease Obligations and shall indemnify Landlord and hold Landlord harmless from any costs and expenses in any way arising out of Tenant's failure to repay the Credit or perform the Lease Obligations according to their terms. clr\hcri\bloomsburg\guaranty 31l4/99 "';"!!:1W~ ~., '" '1' '--' """ ,. >" 2. Warranties. (a) Caoacitv. Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Guarantor warrants that Guarantor has taken all necessary corporate action to incur the obligations of this guaranty and to execute, deliver and perform this guaranty. (\}) ,Contracts. -Guarantor Wlh'Tants that t..'1ere ,is noprovisioH ,{}f Guarantor's Articles of Incorporation or Bylaws or any existing indenture, contract, or agreement to which Guarantor is a party or of any law, administrative regulation, court order, or consent decree that would be contravened by the execution, delivery, or performance ofthis guaranty. (c) Inducement to Landlord; Waivers. Guarantor [IJ acknowledges that Landlord would not have extended the Credit to Tenant and will not continue to extend Credit to Tenant but for this guaranty; [2] warrants that Guarantor has given this guaranty to induce Landlord to extend and to continue to extend Credit to Tenant; [3] agrees that Landlord may rely on this guaranty in extending future Credit to Tenant without notice to Guarantor, but only in connection with the Leased Property; [4J warrants that Guarantor has received good and valuable consideration for this guaranty; [5] waives acceptance of this guaranty; [6] warrants that. Guarantor has not given this guaranty in reliance upon the existence of any Security; [7] acknowledges receipt of notice of all Credit extended before this date; [8] waives notice of any Credit extended after this date except as specifically provided in the Lease; [9] waives protest and any other notice of failure to pay the Credit or to perform any agreement relating to any Credit or Security except as specifically provided in the Lease; [10] acknowledges that Guarantor has read this guaranty, the Lease, and all other documents in connection with the Lease; and [11] acknowledges that Guarantor understands and agrees to Guarantor's obligations under this guaranty. (d) No Reliance on Information from Landlord. Guarantor [1J warrants that Guarantor has not relied on any information about the Tenant, the Security, or any guarantor of the Credit provided directly or indirectly by Landlord; [2] warrants that Guarantor is familiar with Tenant, Tenant's affairs, and the Security; [3J warrants that Guarantor has had ample opportunity to investigate Tenant, Tenant's affairs, the Security, and the effect that the Credit will have; [4] warrants that Guarantor has been provided all information concerning Tenant, Tenant's affairs, and the Security that Guarantor has requested; [5] warrants that Guarantor has had adequate opportunity to seek and evaluate professional advice concerning Tenant, the Security, and this guaranty from advisors of Guarantor's choosing, including financial and legal advice; and [6] agrees that Guarantor shall not rely on any information provided by Landlord about Tenant or the Security, including any other guarantor. Guarantor shall continue to investigate and evaluate Tenant and the Security independently throughout the term of this guaranty, and Landlord has no obligation to provide Guarantor any information about the Tenant orthe Security. (e) No Insolvencv. On the date of the Guarantor's entering into this guaranty and after giving effect to all indebtedness of the Guarantor, [1 J the Guarantor will be able to pay Guarantor's obligations as they become due and payable; [2J the present fair saleable value of the Guarantor's assets exceeds the ~Qunt that will be required to pay Guarantor's probable liability on its obligations as the same become absolute and mature; [3] the sum of the Guarantor's property at a fair valuation exceeds Guarantor's indebtedness; and [4] the Guarantor will have c1r\hcri\bloomsburg\guaranty -2- 3/14/99 L""C"'''',""""" sufficient capital to engage in Guarantor's businesses. The proceeds of the Credit constitute fair consideration and reasonably equivalent value for this guaranty. 3. Waivers. Without notice to or consent of Guarantor, Landlord may do or refrain from doing anything affecting any Credit or any Security including the following: [a] granting or not granting any indulgences to anyone liable for payment of the Credit or any Security; [b] failing to get or to perfect any Security; [c] failing to get an enforceable agreement to repay the 'Credit;fdj re'leasing any Security or 'anyone or l'lIlY'JlIUperty from 'liabitityforp-ayment of the Credit; [e] exercising any right or remedy including, without limitation, eviction of Tenant or termination of the Lease; [f] applying any funds received from Tenant, Guarantor or any other party and any funds realized from any Security to the Credit in such manner and in such order or priority as Landlord elects in its sole discretion; and [g] delaying in enforcing or failing to enforce any rights to payment of the Credit or rights against any Security, In the event that Landlord forecloses or otherwise realizes on any Security for repayment of the Credit, Guarantor agrees that the purchase price at any judicial or other sale of the Security paid by Landlord or any other party shall be conclusive evidence of the value of the Security and Landlord shall have an absolute right, subject to applicable law, to obtain a deficiency judgment of all amounts due in excess of such purchase price, to the extent permitted by applicable law. To the fullest extent permitted by law, Guarantor waives the right to contest the value ofthe Security through appraisals or otherwise, and waives any defense to a deficiency judgment that Guarantor may have pursuant to any statute or other applicable law. 4. Defects in Security. Etc. Guarantor's liability under this guaranty shall not be affected by [a] any default in any document concerning any Credit or Security when accepted by Landlord or arising any time thereafter; [b] the unenforceability of or defect in any Security or document relating to any Credit; [c] any decline in the value of any Security; [d] Landlord's failure to obtain any Security or to perfect Landlord's, security interest therein; [e] the death, incompetence, insolvency, dissolution, liquidation, or winding up of affairs of Ten ant, Guarantor, or anyone liable for any Security or the start of insolvency proceedings by or against any such person or entity; [f] any termination of the leasehold estate created by the Lease to the extent Tenant remained liable under the Lease; [g] the release or discharge of Tenant in any creditor's, receivership, bankruptcy, other insolvency proceedings, or other proceeclings; [h] impairment, limitation or modification of the liability of Ten ant or the estate of Ten ant in bankruptcy or of any remedy for the enforcement of Tenant's liability under the Lease, resulting from the operation of any present or future provisions of the federal Bankruptcy Code or other statutes or from the decision of any court; [i] the rejection or disaffirmance of the Lease in any such proceedings; [j] the assignment or transfer of the Lease by the Tenant; [k) any disability or other defense of Tenant; [1] the cessation from any cause whatsoever of the liability of Tenant under the Lease; or [m] any reorganization, merger, consolidation, combination, or sale of substantially all the assets of Ten ant. 5. Waiver of Surety's Defenses. SURETYSHIP AND OTHER SIMILAR DEFENSES. GUARANTOR W AlVES ALL 6. Unconditional Obligation. If Tenant fails to pay all or any part of any Credit when due after expiration of any applicable grace, notice or cure period, Guarantor shall immediately pay to Landlord all amounts then due and payable in connection with any Credit, regardless of whether or not Landlord first pursues Tenant or exhausts any of its rights or remedies clr\hcri\bloomsburg\gllaranty -3- 3/14/99 ;''"''\'" ,~"- against Tenant, any other Guarantor, others, or other Security. Guarantor shall not have any right of subrogation to the rights of Landlord against any ofthe assets of Tenant or any other guarantor of the Lease until after indefeasible payment in full of the Credit. 7. Continuing Obligation. This guaranty shall extend and be applicable to all renewals amendments extensions, consolidations, modifications, increases and reductions of the , , Lease Documents and the Credit. Guarantor's liability under this guaranty shall not be reduced or cancelled by any such action ':md 'slI'dtl'bedeemed 'modified ,in ':lecordance witht:.i.e-tenns ,.,fsud, action, whether or not Guarantor has notice of such action. 8. Subordination. Guarantor subordinates to and postpones in favor of the Credit and Security [a) any present and future debts and obligations of Tenant to Guarantor (the "Indebtedness") including but not limited to [i) salary, bonuses, and other payments pursuant to any employment arrangement; [ii) fees, reimbursement of expenses and other payments pursuant to any independent contractor arrangement; [iii) principal and interest pursuant to any Indebtedness; [iv) distributions payable to any shareholders or general or limited partners of Ten ant; and [v) lease payments pursuant to any leasing arrangement; and [b] any liens or security interests securing payment of the Indebtedness. Except as otherwise specified in the Lease, the provisions of this paragraph shall be effective only [i) after the occurrence of an Event of Default (as defined in the Lease) and until such Event of Default is cured, or [ii) after the commencement of any bankruptcy or insolvency proceeding by or against Tenant and until such proceeding is dismissed. Guarantor shall not ask for, sue for, demand, take or receive any payment, by setoff or in any other manner, including the receipt of a negotiable instrument, for all or any part of the Indebtedness owed by Tenant, or any successor or assign of Tenant, including without limitation a receiver, trustee or debtor in possession (the term "Tenant" shall include any such successor or assign of Ten ant) until the Credit has been paid in full; however, if Guarantor receives such a payment, Guarantor shall immediately deliver the payment to Landlord for credit against the then outstanding balance of the Credit, whether matured or unmatured. Notwithstanding any right of Guarantor to ask, demand, sue for, take or receive any payment with respect to the Indebtedness, all rights, liens and security interests of the Guarantor, whether now or hereafter arising, in any assets of the Tenant or in any Security shall be and hereby are subordinated to the rights of Landlord in such assets and Guarantor shall have no right to possession of any such assets or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until the Credit has been paid in full. Guarantor agrees that Landlord shall be subrogated to the Guarantor with respect to the Guarantor's claims against Tenant and the Guarantor's rights, liens and security interest, if any, in any of the Tenant's assets and ~roceeds thereof until all of the Credit has been paid in full. Guarantor warrants and represents that Guarantor has not previously assigned any interest in the Indebtedness to any party other than Landlord, that no other party owns an interest in the Indebtedness other than Guarantor, (whether as joint holders of the Indebtedness, participants or otherwise) and that, except as provided below, the entire Indebtedness is and shall continue to be owing only to the Guarantor. Guarantor shall not assign or transfer to others any claim Guarantor has or may have against the Tenant, unless such assignment or transfer is made expressly subject to this guaranty. Any claim which Guarantor may make against Tenant or Tenant's estate in any bankruptcy or insolvency proceedings shall be expressly subject to the terms ofthis 98. clr\hcri\bloomsburg\guaranty -4- 3/14/99 .',c,~~ In the event of any distribution of the assets or readjustment of the obligations and indebtedness of the Tenant, whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding involving the readjustment of all or any of the Indebtedness hereby suborclinated, or the application of the assets ofthe Tenant to the payment or liquidation thereof, Landlord shall be entitled to receive payment in full of any and all of the Credit, due or not due, prior to the payment of all or any part of the Indebtedness hereby subordinated, and in order to enable Lanqlord to enforce its rights hereunder in any such action or proceeding, Landlord is hereby authorized and empowered in its discretion to make and present for and on behalf of Guarantor such proofs of claims against the Tenant, if the Guarantor shall have failed to file any such proof of claim within thirty (30) days after Landlord has requested Guarantor to file such proofs of claim on account of the Indebtedness hereby subordinated, as Landlord may deem expedient or proper and to vote such proofs of claims in any such proceeding and to receive and collect any and all dividends or other payments or disbursements made thereon in whatever form the same may be paid or issued and to apply the same on account of any of the Credit. In the event of any distribution, division or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the assets of the Tenant or the proceeds thereof, to the creditors of the Tenant's business, or upon the sale of all or substantially all of the Tenant's assets, then, and in any such event, any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any or all ofthe Indebtedness shall be paid or delivered directly to Landlord for application on. any of the Credit, due or not due, until such Credit shall have first been fully paid and satisfied. After the occurrence and during the continuance of any Event of Default, in the event that Guarantor shall fail or refuse to take any action that Landlord requests in writing that the Guarantor take with respect to the Indebtedness within thirty (30) days of the Guarantor's receipt of such request, Guarantor authorizes and empowers Landlord to demand, sue for, collect and receive every such payment or distribution and give acquittance therefor and to file claims and take such other proceedings, in Landlord's own name or in the name of Guarantor or otherwise, as Landlord may deem necessary or advisable for the enforcement of this guaranty; and Guarantor will execute and deliver to Landlord such powers of attorney, assignments or other instruments or documents, as may be requested by Landlord in order to enable Landlord to enforce any and all claims upon or with respect to any or all of the Indebtedness and to collect and receive any and all payments of distributions which may be payable or deliverable at any time upon or with respect to the Indebtedness, all for Landlord's own benefit. . Should any payment, distribution, security, instrument or proceeds which are subject to the suborclination contained in the first paragraph of this 98 be received by Guarantor upon, or with respect to, the Indebtedness while such subordination provision is effective and prior to the satisfaction of all of the Credit and termination of all financing arrangements between the Tenant and Landlord, Guarantor shall receive and hold the same in trust as trustee, for the benefit of Landlord and shall forthwith deliver the same to Landlorcl in precisely the form received (except for the endorsement or assignment of the Guarantor where necessary), for application on any of the Credit, due or not due, and until so delivered, the saine shall be held in trust by the Guarantor as the property of Landlord. In the event of the failure of Guarantor to make any such endorsement or clr\hcri\bloomsburg\guaranty -5- 3114/99 (~'*01ik~" t >. ~. - ''0'''_ I' '- , , ~."" ,} .,j assignment to Landlord, Landlord, or any of its officers or employees, is hereby irrevocably authorized to make the same. ' Any instrument evidencing any of the Indebtedness, or any portion thereof, will, on the date hereof or promptly hereafter, be inscribed with a legend conspicuously indicating that payment thereof is subordinated to the claims of Landlord, pursuant to the terms of this guaranty, and will be delivered to Landlord upon request therefor after the declaration of an Event of Default, if such original tS 'oocessa.-jtn order{o ,enahle ,Landlord -totak-c any action 'permitted hereunder, including, without limitation, the filing of proofs of claim on behalf of Guarantor. This subordination shaIl continue and shall be irrevocable until all the tenns, covenants and conditions of the Credit have been fully and completely perfornied by Tenant or otherwise discharged and released by Landlord, and the Guarantor shall not be released from any duty, obligation or liability hereunder so long as there is any claim of Landlord against Tenant arising out of the Credit which has not been performed, settled or discharged in full. 9. Financial Statements. (a) Financial Statements. Not later than 90 days after the end of each fiscal year, Guarantor shall deliver to Landlord audited consolidated financial statements of Guarantor for the preceding year and not later than 90 days after the end of the calendar year each individual Guarantor shall deliver to Landlord a current personal financial statement. In addition, not later than 45 days after the end of each quarter, Guarantor shall deliver to Landlord unaudited consolidated financial statements of such Guarantor for the preceding quarter. If Guarantor is or becomes subject to any reporting requirements of the Securities and Exchange Commission, ("SEC"), Guarantor shall, in lieu of providing the financial statements described above concurrently deliver to Landlord such reports as are delivered to the SEC pursuant to applicable securities laws. (b) Certificate. With each delivery of financial statements, Guarantor shall also provide to Landlord a Certificate in the fonn of Exhibit A. (c) Tax Returns. Guarantor shall deliver to Landlord the federal tax return of Guarantor for each year within 15 days after the filing of the return. If the filing date for any tax return has been extended, Guarantor shall also deliver to Landlord a copy of the extension application within 15 days after the date of filing. (d) Other Information. Guarantor shall promptly furnish to Landlord such other information and statements concerning the business affairs and financial condition of the Guarantor as Landlord may reasonably request. Guarantor shall give Landlord access to all books, records, and financial data of Guarantor by or through any of Landlord's officers, agents, attorueys or accountants, at all reasonable times and from time to time. Landlord may examine, inspect, and make extracts from Guarantor's books and other records at all reasonable times and from time to time, subject, however, to any agreements made by Landlord regarding confidentiality of such information. (e) Covenants. Guarantor covenants that all financial statements of Guarantor furnished Landlord will present fairly in all material respects the financial condition of Guarantor as clr\hcri\bloomsburg\guaranty -6- 3/14/99 ,,,r,~W"~ ~ l~ '",~-, '- - ,,= " ~ " " ,-- B =~- "'.~,,~-- ':'Y~;; of the dates of the statements and will be prepared in accordance with generally accepted accounting principles applied on a basis consistently maintained throughout the period involved. 10. Financial Covenants. (a) Net Worth. Throughout the term of the Lease, Guarantor shall maintain a Net Worth (as defined in the Lease) of at least $55,000,000.00, with cash and cash ,eqllivalerrts.of.at least$5,OOO,OOO.OD. (b) Current Ratio. Guarantor shall maintain for each fiscal quarter a ratio of current assets to current liabilities of not less than 1.25 to 1.00. (c) Debt to Equity Ratio. Guarantor shall maintain for each fiscal quarter a ratio of total indebtedness to shareholders' equity of not more than 2.50 to 1.00. The aggregate lease amount under all capitalized and operating leases shall be included as indebtedness and all subordinated debt shall be included as equity. 11. No Convevance. Guarantor shall not sell, convey, pledge, encumber or otherwise transfer any ownership interest in Tenant now owned or hereafter acquired, if any, without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Guarantor shall not sell, give, conveyor otherwise transfer, directly or indirectly, all or substantially all of the assets of Guarantor to any person ("Transferee"). Any transfer of assets that is prohibited by this section shall constitute an Event of Default under the Lease and shall be deemed to be a fraudulent conveyance against Landlord. In the event of any such prohibited transfer, Landlord shall be entitled to enforce this guaranty against the Transferee and to seize all such transferred assets and apply the proceeds from such assets to payment of the Credit, whether matured or unmatured. 12. Lease Covenants. Throughout the term of the Lease, Guarantor shall comply with all requirements and covenants of the Lease expressly applicable to Guarantor, including, without limitation, SS 14.5, 14.6, 14.9 and Article 23. 13. Subsequent Guaranties. No subsequent guaranty to Landlord by Guarantor shall supersede or terminate this guaranty, but shall be an additional guaranty unless otherwise stated therein and, if Guarantor has given a previous guaranty to Landlord, this guaranty shall be in addition to the previous guaranty. 14. Successors. Etc. This guaranty shall be binding upon not only Guarantor but also Guarantor's successors and assignees and shall inure to the benefit of Landlord and its successors and assigns. 15. Termination: Revocation. Subject to reinstatement pursuant to S16, this guaranty shall automatically tenninate on the date on which all of the Credit is paid in full. No revocation of this guaranty or any substitute guaranty by Guarantor shall be effective lintil all of the Credit has been paid in full. clr\hcri\bloomsburg\guaranty -7- 3114/99 ~''''~''''1~~="d'(_ ~ -',""1 , ~,,~~li7_ 'I~~" -,. . ~ -^; 16. Survival. The obligations of the Guarantor under this guaranty will continue to be effective or shall be reinstated, as the case might be, if at any time any payment from the Tena~t of any sum due to the Landlord is rescinded or must otherwise be restored or returned by the Landlord on the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Tenant or as a result of the appointment of a custodian, conservator, receiver, trustee or other officer with similar powers with respect to the Tenant or any part of the Tenant' s property or otherwise. 17. Governing Law. TPis guaranty sha!!be govemed ,by lL'1d 'cOl'lstruedin accordance with the internal laws of the Commonwealth of Pennsylvania, without giving effect to the conflict of laws rules thereof. 18. Number; Gender. Where appropriate, the number of any word in this guaranty shall include both singular and plural, the gender of any word shall be masculine, feminine, or neuter. 19. Enforceabilitv. If any provision of this guaranty or the application thereof to anyone or any circumstance shall be adjudged invalid or unenforceable to any extent, the application of the remainder of the provision to the party or circumstance, the application of the provision to other parties or circumstances, and the application of the remainder of this guaranty shall not be affected thereby. Each provision of this guaranty shall be valid and enforceable to the fullest extent permitted by law. 20. No Waivers bv Landlord. No forbearance by Landlord in exercising any right under this guaranty, any Credit, or any' Security shall operate as a waiver thereof; no forbearance in exercising any right under this guaranty, any Credit, or any Security on anyone or more occasions shall operate as a waiver of such right on any other occasion; and no single.or partial exercise of any right under this guaranty, any Credit, or any Security shall preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. Landlord's rights under this guaranty are cumulative and not exclusive of any rights or remedies that Landlord may otherwise have. 21. Fees and Expenses. Guarantor shall pay to Landlord all costs and expenses incurred by Landlord in administering the Lease and the Security, enforcing or protecting Landlord's rights in connection with any Credit, Security or this guaranty and in collecting payment on any Credit or this guaranty, whether or not an Event of Default (as defmed in the Lease) has actually occurred or has been declared and thereafter cured, including, but not limited to, [a] attorney's fees and paralegal fees; [b] the fees and expenses of any litigation, administrative, bankruptcy, insolvency, receivership or any other similar proceeding; [c] court costs; Cd] the expenses of Landlord, its employees, agents, and witnesses in preparing for litigation and for lodging, travel, and attendance at pretrial hearings, depositions, and trials; and [e] consulting fees and expenses incurred by Landlord in connection with any litigation. 22. Notices. Any notices required or desired to be given under this guaranty shall be in writing and shall be delivered in the manner set forth in the Lease, and if to Landlord, delivered to Landlord at One SeaGate, Sui~ 1500, P.O. Box 1475, Toledo, Ohio 43603, and if to a Guarantor, to the address set forth opposite ~uch Guarantor's signature, or to such other address as Landlord or any Guarantor may hereafter give written notice thereof. All notices shall be effective clr\hcri\bloomsburg\guaranty -8- 3/14/99 ''''';If,,*t ~ , I ~ ..,- r-~-.:-' "" ,~' ."" < .. '. '~ 'upon the earlier of actual receipt or three days after deposit in the U.S. mail or one business day after deposit with the overnight courier. 23. Amendment. This guaranty may not be amended except in a writing signed by Guarnntor and Landlord. All references to this guaranty, whether iil this guaranty or any other document or instrument, shall be deemed to incorporate all anlendments, modifications, renewals and extensions of this guaranty and all substitutions therefor made after the date hereof. 24. [Intentionally Deleted] 25. Counteroarts. This guaranty may be executed in multiple counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument. 26. JURISDICTION AND VENUE. GUARANTOR IRREVOCABLY SUBMITS AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING JURISDICTION OVER LUCAS COUNTY, OHIO OR COLUMBIA COUNTY, PENNSYLVANIA FOR ADJUDICATION OF ALL MATTERS IN CONTROVERSY UNDER THIS GUARANTY, AND WAIVES ANY OBJECTIONS TO SUCH JURISDICTION AND VENUE AND CONSENTS TO FULL FAITH AND CREDIT BEING GIVEN TO ANY DECISION OF SUCH COURTS BY ANY OTHER STATE OR FEDERAL COURT OF THE UNITED STATES OF AMERICA. GUARANTOR SHALL NOT ATTEMPT TO LITIGATE ANY MATTERS IN CONTROVERSY UNDER THIS GUARANTY BEFORE ANY COURT OR TRIBUNAL OTHER THAN BEFORE A STATE OR FEDERAL COURT HAVING JURISDICTION OVER LUCAS COUNTY, OHIO. GUARANTOR WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON GUARANTOR AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS UPON THE GUARANTOR BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO GUARANTOR AT THE ADDRESS SET FORTH BELOW AND SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER POSTED. 27. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY WAIVES KNOWINGLY AND VOLUNTARILY THE RIGHT TO A JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] clr\hcri\bloomsburg\guaranty -9- 3114/99 W'fJq ""~ , '''-'' r", ,-" _,'_c, . ~. ,~ - "-":~<iSfrY^;"?'(f:' ")~r!~r"""' .'" '''m<r",,~, ' , . 0.., ,".,~w, _'_ "", .~, ~ ""',~~""",O" " ~. , IN WITNESS WHEREOF, Guarantor executes and delivers to Landlord this Unconditional and Continuing Guaranty effective as of the Effective Date. Address: BALANCED ~ CORPORATION By: ct;; X. ~ - 5021 Louise Drive, Suite 200 Mechanicsburg, Pennsylvania 17055 Title: Rohin L Dn-be . ~. t Assistant Secreta \ Tax ill No.: 25-1761898 ry , c1r\hcn\bloomsburg\guaranty -10- 3/14/99 -~,~, ^,-, 'I~' ',', ,_ ;!- ",,_, ,< F',' -- -,+ - ~ , ..' r" EXHIBIT A: GUARANTOR'S CERTIFICATE Report Period: Commencing and ending Lease: Lease made by Pennsylvania BCC Properties, Inc. ("Landlord") to Balanced Care at Bloomsburg II, Inc. ("Tenant'') guaranteed by Balanced Care Corporation -{"Guarantor"} I hereby certify to Landlord as follows: 1. The attached [specify audited or unaudited and annual or Quarterlv, and if consolidated, so state J financial statements of Guarantor [i] have been prepared in accordance with generally accepted accounting principles consistently applied; [iiJ have been prepared in a manner substantially consistent with prior financial statements submitted to Landlord; and [iii] fairly present the financial condition of Guarantor in all material respects as of the dates thereof. 2. As set forth in the attached financial statements, Guarantor has maintained the Net Worth, Cash and Cash Equivalents, Current Ratio, and Debt to Equity Ratio as required under the Unconditional and Continuing Lease Guaranty made by Guarantor in favor of Landlord ("Guaranty"). 3. To my knowledge, Tenant was in compliance with all of the provisions of the Lease Documents at all times during the Report Period, and no default, or any event which with the passage of time or the giving of notice or both would constitute a default, has occurred under the Lease Documents. 4. Guarantor was in compliance with all of the provisions of the Guaranty at all times during the Report Period, and no default, or any event which with the passage of time or the giving of notice or both would constitute a default, has occurred under the Guaranty. Executed this _ day of CORPORATE/PARTNERSHIP LIMITED LIABILITY COMPANY GUARANTOR: By: Title: . c1r\hcn"\btoomsburg\guaranty 3/14/99 -'~\~ .-,,- '-' ,"~' '-" '" "', <, '-,' ,,~ , _?- " ., ~~" YTt'J-t!1"""~ ~<, '. UNCONDITIONAL AND CONTINUING LEASE GUARANTY THIS GUARANTY is made effective as of tnun..h t 5 ,1999 (the "Effective Date") by BALANCED CARE CORPORATION, a corporation organized under the laws of the State of Delaware ("Guarantor"), in favor of PENNSYLVANIA BCC PROPERTIES, INC., a corporation organized under the laws of the State of Pennsylvania (''Landlord''). RECIT ALS A. Landlord is granting to Balanced Care at Saxonburg, Inc., a corporation organized under the laws of the State of Delaware (''Tenant''), a lease of the real property located in Saxonburg, Pennsylvania ("Property") pursuant to a Lease Agreement between Landlord and Tenant of even date ("Lease''). Tenant intends to operate a 77-unit (123-bed) assisted living (personal care) facility ("Facility'') on the Property. B. The Facility and all improvements and fixtures constructed and installed on the Property will be the property of Landlord and will be included in the "Leased Property" under the Lease. C. In order to extend the Lease to Tenant, Landlord requires that this guaranty be provided by Guarantor. Tenant is a wholly-owned subsidiary of Guarantor and Guarantor has detennined that Guarantor will benefit from the Lease to Tenant and has agreed to provide this guaranty to Landlord. D. As used herein, "Lease Documents" means the Lease, and all other documents and agreements made in connection with the Lease, as amended, modified, renewed or extended from time to time. "Credit" means all rent, late charges, interest, taxes, utility charges, insurance premiums and all other charges, expenses and amounts payable by Tenant to Landlord pursuant to the Lease Documents. "Security" includes all guaranties of any Credit, all interests in real or personal property securing the payment of any Credit or any guaranties of any Credit, and all other agreements, rights, or interests insuring or guaranteeing payment of any Credit. ''Lease Obligations" means all of the covenants, obligations and liabilities of Tenant under the Lease DocUlllents, including the payment of the Credit when due. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Guarantor intending to be legally bound hereby, agree as follows: I. Guaranty. Guarantor unconditionally guarantees the prompt payment when due of the Credit and the perfonnance of the Lease Obligations and shall indemnify Landlord and hold Landlord harmless from any costs and expenses in any way arising out of Tenant's failure to repay the Credit or perform the Lease Obligations according to their tenns. cJr\hcn~axonburg\guaranl:y 3/14199 o~~;m_J!~ ~",' "-,,', ,.' I.' .", 1- ,~ "' " I ~ '~1ir:rr ' ~~. - - ..- -"" ~~ - " 2. Warranties. (a) CaJ)acitv. Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Guarantor warrants that Guarantor has taken all necessary corporate action to incur the obligations of this guaranty and to execute, deliver and perform this guaranty. '~17) 'C'iliitraets. ".G-uanmter <.'.;rorrants ..~tbat .,.there .is "00 "'pro-"yrisi0fl"cl" Guarantor's Articles of Incorporation or Bylaws or any existing indenture, contract, or agreement to which Guarantor is a party or of any law, administrative regulation, court order, or consent decree that would be contravened by the execution, delivery, or performance of this guaranty. (c) Inducement to Landlord; Waivers. Guarantor [I] acknowledges that Landlord would not have extended the Credit to Tenant and will not continue to extend Credit to Tenant but for this guaranty; [2] warrants that Guarantor has given this guaranty to induce Landlord to extend and to continue to extend Credit to Tenant; [3] agrees that Landlord may rely on this guaranty in extending future Credit to Tenant without notice to Guarantor, but only in connection with the Leased Property; [4] warrants that Guarantor has received good and valuable consideration for this guaranty; [5] waives acceptance of this guaranty; [6] warrants that Guarantor has not given this guaranty in reliance upon the existence of any Security; [7] acknowledges receipt of notice of all Credit extended before this date; [8] waives notice of any Credit extended after ,this date except as specifically provided in the Lease; [9] waives protest and any other notice of failure to pay the Credit or to perform any agreement relating to any Credit 'or Security except as specifically provided in the Lease; [10] acknowledges that Guarantor has read this guaranty, the Lease, and all other documents in connection with the Lease; and [11 ] acknowledges that Guarantor understands and agrees to Guarantor's obligations under this guaranty. (d) No Reliance on Information from Landlord. Guarantor [I] warrants that Guarantor has not relied on any information about the Tenant, the Security, or any guarantor of the Credit provided directly or indirectly by Landlord; [2] warrants that Guarantor is familiar with Tenant, Tenant's affairs, and the Security; [3] warrants that Guarantor has had ample opportunity to investigate Tenant, Tenant's affairs, the Security, and the effect that the Credit will have; [4] warrants that Guarantor has been provided all information concerning Tenant, Tenant's affairs, and the Security that Guarantor has requested; [5] warrants that Guarantor has had adequate opportunity to seek and evaluate professional advice concerning Tenant, the Security, and this guaranty from advisors of Guarantor's choosing, including financial and legal advice; and [6] agrees that Guarantor shall not rely on any information provided by Landlord abont Tenant or the Security, including any other guarantor. Guarantor shall continue to investigate and evaluate Tenant and the Security independently throughout the term of this guaranty, and Landlord has no obligation to provide Guarantor any information about the Tenant or the Security. (e) No Insolvencv. On the date of.the Guarantor's entering into this guaranty and after giving effect to all indebtedness of the Guarantor, [I] the Guarantor will be able to pay Guarantor's obligations as they become due and payable; [2] the present fair saleable value of the Guarantor's assets exceeds the amount that will be required to pay Guarantor's probable liability on its obligations as the same become absolute and mature; [3] the sum of the Guarantor's property at a fair valuation exceeds Guarantor's indebtedness; and [4] the Guarantor will have ctr\hcri\saxonburg\guaranty -2- 3f14199 ~ii;j';, ,', ~~ ~,~,\-"Y". ,_",~_ , """'IF, ~~ - - .." ',- ~'t'''';':f'f*'' ~""}r~'f"~"-'_ ._>,'.' " :'""~jt "-,,,..'- , - '~~~' ~ sufficient capital to engage in Guarantor's businesses. The proceeds of the Credit constitute fair consideration and reasonably equivalent value for this guaranty. !. 3. Waivers. Without notice to or consent of Guarantor, Landlord may do or refrain from doing anything affecting any Credit or any Security including the following: [a) granting or not granting any indulgences to anyone liable for payment of the Credit or any Security; [b) failing to get or to perfect any Security; [C) failing to get an enforceable agreement to <fepa~.~1re.CFOOit; {.dloreleasing.,any .Sese.rity.er,~~yene.cr,&"}y-.pre~mt'f..,fr0m..liaoility.f0r'flayment'o3=f the Credit; [e) exercising any right or remedy including, without limitation, eviction of Tenant or termination of the Lease; [f) applying any funds received from Tenant, Guarantor or any other party and any funds realized from any Security to the Credit in such manner and in such order or priority as Landlord elects in its sole discretion; and [g) delaying in enforcing or failing to enforce any rights to payment of the Credit or rights against any Security. In the event that Landlord forecloses or otherwise realizes on any Security for repayment of the Credit, Guarantor agrees that the purchase price at any judicial or other sale of the Security paid by Landlord or any other party shall be conclusive evidence of the value of the Security and Landlord shall have an absolute right, subjeCt to applicable law, to obtain a deficiency judgment of all amounts due in excess of such purchase price, to the extent permitted by applicable law. To. the fullest extent permitted by law, Guarantor waives the right to contest the value of the Security through appraisals or otherwise, and waives any defense to a deficiency judgment that Guarantor may have pursuant to any statute or other applicable law. 4. Defects in Security. Etc. Guarantor's liability under this guaranty shall not be affected by [a) any default in any document concerning any Credit or Security when accepted by Landlord or arising any time thereafter; [b) the unenforceability of or defect in any Security or document relating to any Credit; [c) any decline in the value of any Security; [d) Landlord's failure to obtain any Security or to perfect Landlord's security interest therein; [ e) the death, incompetence, insolvency, dissolution, liquidation, or winding up of affairs of Ten ant, Guarantor, or anyone liable for any Security or the start of insolvency proceedings by or against any such person or entity; [f] any termination of the leasehold estate created by the Lease to the extent Tenant remained liable under the Lease; [g) the release or discharge of Tenant in any creditor's, receivership, bankruptcy, other insolvency proceedings, or other proceedings; [h] impairment, limitation or modification of the liability of Tenant or the estate of Tenant in bankruptcy or of any remedy for the enforcement of Tenant's liability under the Lease, resulting from the operation of any present or future provisions of the federal Bankruptcy Code or other statutes or from the decision of any court; [i) the rejection or disaffirmance of the Lease in any such proceedings; [j] the assignment or transfer of the Lease by the Tenant; [k) any disability or other defense of Tenant; [1] the cessation from any cause whatsoever of the liability of Tenant under the Lease; or [m) any reorganization, merger, consolidation, combination, or sale of substantially all the assets of Tenant. 5. Waiver of Surety's Defenses. SURETYSHIP AND OTHER SIMILAR DEFENSES. GUARANTOR WAIVES ALL 6. Unconditional Obligation. If Tenant fails to pay all or any part of any Credit when due after expiration of any applicable grace, notice 'or cure period, Guarantor shall immediately pay to Landlord all amounts then due and payable in connection with any Credit, regardless of whether or not Landlord first pursues Tenant or exhausts any of its rights or remedies c1r\hcri\saxonburg\guaranty -3- 3/14/99 W'''1'1:-r:J,~: . . 'Y-~," f'~ '-' "0,- . ,~~ ;>>"'0" ~'Tn-- -- :'0" Jr:Dj'Jr~ 'r -, ",.' ~"'="'" against Tenant, any other Guarantor, others, or other Security. Guarantor shall not have any right of subrogation to the rights of Landlord against any of the assets of Ten ant or any other guarantor of the Lease until after indefeasible payment in full of the Credit. 7. Continuing Obligation. This guaranty shall extend and be applicable to all renewals, amendments, extensions, consolidations, modifications, increases and reductions of the Lease Documents and the Credit. Guarantor's liability under this guaranty shall not be reduced or ..c.am:-elle-d .bY,aIJ-}' .sw;n .actign,.and.sb..aU.her.d~mOO"modi&d,.m'~GC-@rdanee '-.voith .the.,ts..r.ms:.ef1iuck action, whether or not Guarantor has notice of such action. 8. Subordination. Guarantor subordinates to and postpones in favor of the Credit and Security [a] any present and future debts and obligations of Tenant to Guarantor (the "Indebtedness") including but not limited to [i) salary, bonuses, and other payments pursuant to any e1i1ployment arrangement; [ii] fees, reimbursement of expenses and other payments pursuant to any independent contractor arrangement; [iii] principal and interest pursuant to any Indebtedness; [iv) distributions payable to any shareholders or general or limited partners of Ten ant; and [v] lease payments pursuant to any leasing arrangement; and [b) any liens or security interests securing payment of the Indebtedness. Except as otherwise specified in the Lease, the provisions of this paragraph shall be effective only [i) after the occurrence of an Event of Default (as defmed in the Lease) and until such Event of Default is cured, or [ii] after the commencement of any bankruptcy or insolvency proceeding by or against Tenant and until such proceeding is dismissed. Guarantor shall not ask for, sue for, demand, take or receive any payment, by setoff or in any other manner, including the receipt of a negotiable instrument, for all or any part of the Indebtedness owed by Tenant, or any successor or assign of Tenant, including without limitation a receiver, trustee or debtor in possession (the term "Tenant" shall include any such successor or assign of Ten ant) until the Credit has been paid in full; however, if Guarantor receives such a payment, Guarantor shall immediately deliver the payment to Landlord for credit against the then outstanding balance of the Credit, whether matured or unmatured. Notwithstanding any right of Guarantor to ask, demand, sue for, take or receive any payment with respect to the Indebtedness, all rights, liens and, security interests of the Guarantor, whether now or hereafter arising, in any assets of the Tenant or in any Security shall be and hereby are subordinated to the rights of Landlord in such assets and Guarantor shall have no right to possession of any such assets or to foreclose npon any such asset, whether by judicial action or otherwise, unless and 1ll1til the Credit has been paid in full. Guarantor agrees that Landlord shall be subrogated to the Guarantor with respect to the Guarantor's claims against Tenant and the Guarantor's rights, liens and security interest, if any, in any of the Tenant's assets and proceeds thereof until all of the Credit has been paid in full. ' Guarantor warrants and represents that Guarantor has not previously assigned any interest in the Indebtedness to any party other than Landlord, that no other party owns an interest in the Indebtedness other than Guarantor, (whether as joint holders of the Indebtedness, participants or otherwise) and that, except as provided below, the entire Indebtedness is and shall continue to be owing only to the Guarantor. Guarantor shall not assign or transfer to others any claim Gnarantor has or may have against the Tenant, unless such assignment or transfer is made expressly subject to this guaranty. Any claim which Guarantor may make against Tenant or Tenant's estate in any bankruptcy or insolvency proceedings shall be expressly subject to the terms of this ~8. clr\hcnlsaxonburg\guaranty -4- 3/14/99 -,y;r:0i;__,~~,,,, ~ < ,,-." "T ,~ , ,'~ , .", - .""7 "11-" ,-t .',Y'~'-h'" ,-1 ~ ," ,~~ w' '~", .- In the event of any distribution of the assets or readjustment of the obligations and indebtedness of the Tenant, whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding involving the readjustment of all or any of the Indebtedness hereby subordinated, or the application of the assets of the Tenant to the payment or liquidation thereof, Landlord shall be entitled to receive payment in full of any and all of the Credit, due or not due, prior to the payment of all or any part of the Indebtedness hereby subordinated, and in order to enable Landlord to enforce its rights hereunder in any sucn action or proceeding,'Landiotd is 'hereby ailmorized and empowered in its iliscretionlo make and present for and on behalf of Guarantor such proofs of claims against the Tenant, if the Guarantor shall have failed to file any such proof of claim within thirty (30) days after Landlord has requested Guarantor to file such proofs of claim on account of the Indebtedness hereby subordinated, as Landlord may deem expedient or proper and to vote such proofs of claims in any such proceeding and to receive and collect any and all dividends or other payments or disbursements made thereon in whatever form the same may be paid or issued and to apply the same on account of any of the Credit. In the event of any distribution, division or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the assets of the Tenant or the proceeds thereof, to the creditors of the Tenant's business, or upon the sale of all or substantially all of the Tenant's assets, then, and in any such event, any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any or all of the Indebtedness shall be paid or delivered directly to Landlord for application on any of the Credit, due or not due, until such Credit shall have first been fully paid and satisfied. After the occurrence and during the continuance of any Event of Default, in the event that Guarantor shall fail or refuse to take any action that Landlord requests in writing that the Guarantor take with respect to the Indebtedness within thirty (30) days of the Guarantor's receipt of such request, Guarantor authorizes and empowers Landlord to demand, sue for, collect and receive every such payment or distribution and give acquittance therefor and to file claims and take such other proceedings, in Landlord's own name or in the name of Guarantor or otherwise, as Landlord may deem necessary or advisable for the enforcement of this guaranty; and Guarantor will execute and deliver to Landlord such powers of attorney, assignments or other instruments or documents, as may be requested by Landlord in order to enable Landlord to enforce any and all claims upon or with respect to any or all of the Indebtedness and to collect and receive any and all payments of distributions which may be payable or deliverable at any time upon or with respect to the Indebtedness, all for Landlord's own benefit. Should any payment, distribution, security, instrument or proceeds which are subject to the subordination contained in the first paragraph of this S8 be received by Guarantor upon, or with respect to, the Indebtedness while such subordination provision is effective and prior to the satisfaction of all of the Credit and termination of all fmancing arrangements between the Tenant and Landlord, Guarantor shall receive and hold the same in trust astrustee, for the benefit of Landlord and shall forthwith deliver the same to Landlord in precisely the form received (except for the endorsement or assignment of the Guarantor where necessary), for application on any of the Credit, due or not due, and until so delivered, the same shall be held in trust by the Guarantor as the property of Landlord. In the event of the failure of Guarantor to make any such endorsement or clr\hcri\saxonburg\guaranty -5- 3/14/99 C;""~;'~l~~?g;~~,[__, . "", - -I~' ". ",'- I, -:CTn~c-'<' ... '~' ,,----- ~,~ " ,- assigmnent to Landlord, Landlord, or any of its' officers or employees, is hereby irrevocably authorized to make the same. Any instrument evidencing any ofthe Indebtedness, or any portion thereof, will, on the date hereof or promptly hereafter, be inscribed with a legend conspicuously indicating that payment thereof is subordinated to the claims of Landlord, pursuant to the terms of this guaranty, and will be delivered to Landlord upon request therefor after the declaration of an Event of Default, -if'sticb 'origIDal.is 'uee-essmY1n"vruer.'to''C.ilabie 'barnP.~."to,.take"any '-aetiun''Pa;nrltt-dl-,tlffe-1.'ii'ideI~ including, without limitation, the filing of proofs of claim on behalf of Guarantor. TIlls subordination shall continue and shall be irrevocable until all the terms, covenants and conditions of the Credit have been fully and completely performed by Tenant or otherwise discharged and released by Landlord, and the Guarantor shall not be released from any duty, obligation or liability hereunder so long as there is any claim of Landlord against Tenant arising out of the Credit which has not been performed, settled or discharged in full. 9. Financial Statements. (a) Financial Statements. Not later than 90 days after the end of each fiscal year, Guarantor shall deliver to Landlord audited consolidated financial statements of Guarantor for the preceding year and not later than 90 days after the end of the calendar year each individual Guarantor shall deliver to Landlord a current personal financial statement. In addition, not later than 45 days after the end of each quarter, Guarantor shall deliver to Landlord unaudited consolidated financial statements of such Guarantor for the preceding quarter. If Guarantor is or becomes subject to any reporting requirements of the Securities and Exchange Connnission ("SEC"), Guarantor shall, in lieu of providing the financial statements described above concurrently deliver to Landlord such reports as are delivered to the SEC pursuant to applicable securities laws. (b) Certificate. With each delivery of fmancial statements, Guarantor shall also provide to Landlord a Certificate in the form of Exhibit A. ' (c) Tax Returns. Guarantor shall deliver to Landlord the federal tax return of Guarantor for each year within 15 days after the filing of the returu. If the filing date for any tax return has been extended, Guarantor shall also deliver to Landlord a copy of the extension application within 15 days after the date of filing. (d) Other Information. Guarantor shall promptly furnish to Landlord such other information and statements conceming the business affairs and financial condition of the Guarantor as Landlord may reasonably request. Guarantor shall give Landlord access to all books, records, and financial data of Guarantor by or through any of Landlord's officers, agents, attorneys or accountants, at all reasonable times and from time to time: Landlord may examine, inspect, and make extracts from Guarantor's books and other records at all reasonable times and from time to time, subject, however, to any agreements made by Landlord regarding confidentiality of such information. ( e) Covenants. Guarantor covenants that all financial statements of Guarantor furnished Landlord will present fairly in all material respects the fmancial condition of Guarantor as clr\hcn"\saxonburg\guaranty -6- 3/14/99 -~'I "','W'_ _,__~_ !L, -,,'.', ,- . . ". ~ . , ';["(<:Xf,::'.-t':'C <"..-. "~"'-'~'cp', 'Mn~_ -""- of the dates of the statements and will be prepared in accordance with generally accepted accounting principles applied on a basis consistently maintained throughout the period involved. 10. Financial Covenants. (a) Net Worth. Throughout the term of the Lease, Guarantor shall maintain a Net Worth (as defined in the Lease) of at least $55,000,000.00, with cash and cash "c,quivakms..ofat.lcast,$5,OOD.ODDJlD. (b) Current Ratio. Guarantor shall maintain for each fiscal quarter a ratio of current assets to current liabilities of not less than 1.25 to 1.00. ' ( c) Debt to EQuity Ratio. Guarantor shall maintain for each fiscal quarter a ratio of total indebtedness to shareholders' equity of not more than 2.50 to 1.00. The aggregate lease amount under all capitalized and operating leases shall be included as indebtedness and all subordinated debt shall be included as equity. 11. No Convevance. Guarantor shall not sell, convey, pledge" encumber or otherwise transfer any ownership interest in Tenant now owned or hereafter acquired, if any, without the prior written consent of Landlord, which consent shall not be unreasonably withheld. , Guarantor shall not sell, give, conveyor otherwise transfer, directly or indirectly, all or substantially all of the assets of Guarantor to any person ("Transferee"). Any transfer of assets that is prohibited by this section shall constitute an Event of Default under the Lease and shall be deemed to be a fraudulent conveyance against Landlord. In the event of any such prohibited transfer, Landlord shall be entitled to enforce this guaranty against the Transferee and to seize all such transferred assets and apply the proceeds from such assets to payment of the Credit, whether matured or unmatured. 12. Lease Covenants. Throughout the term of the Lease, Guarantor shall comply with all requirements arid covenants of the Lease expressly applicable to Guarantor, including, without limitation, 99 14.5, 14.6, 14.9 and Article 23. 13. SubSeQuent Guaranties. No subsequent guaranty to Landlord by Guarantor shall supersede or terminate this guaranty, but shall be an additional guaranty unless otherwise stated therein and, if Guarantor has given a previous guaranty to Landlord, this guaranty shall be in addition to the previous guaranty. 14. Successors. Etc. This guaranty shall be binding upon not 0111y Guarantor but also Guarantor's successors and assignees and shall inure to the benefit of Landlord and its successors and assigns. IS. Termination: Revocation. Subject to reinstatement pursuant to 916, this guaranty shall automatically terminate on the date on which all of the Credit is paid in full. No revocation of this guaranty or any substitute guaranty by Guarantor shall be effective until all of the Credit has been paid in full. clr\hcri\saxonburg\guaranty -7- 3/14/99 -'MmJfl.~r~ _ < ,=. = '. ., '. '"', '-"-- ~,--", ~",,, " ..~"<, .,. . 16. Survival. The obligations of the Guarantor under this guaranty will continue to be effective or shall be reinstated, as the case might be, if at any time any payment from the Tenant of any sum due tolhe Landlordjs rescinded or must otherwise be restored or returned by the Landlord on the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Tenant or as a result of the appointment of a custodian, conservator, receiver, trustee or other officer with similar powers with respect to the Tenant or any part of the Tenant's property or otherwise. 'l9.~rrriii,,{:;aw.'f1ri5~g1l'a1>ifnY5hall"be 'gcrverned'b-y ''lti'id "W'IIb'tnred';fi accordance with the internal laws of the Commonwealth of Pennsylvania, without giving effect to the conflict oflaws rules thereof. 18. Number; Gender. Where appropriate, the number of any word in this guaranty shall include both singular and plural, the gender of any word shall be masculine, feminine, or neuter. 19. Enforceabilitv. If any provision of this guaranty or the application thereof to anyone or any circumstance shall be adjudged invalid or unenforceable to any extent, the application of the remainder of the provision to the party or circumstance, the application of the provision to other parties or circumstances, and the application of the remainder of this guaranty shall not be affected thereby. Each provision of this guaranty shall be valid and enforceable to the fullest extent pennitted by law. 20. No Waivers bv Landlord. No forbearance by Landlord in exercising any right under this guaranty, any Credit, or any Security shall operate as a waiver, thereof; no forbearance in exercising any right under this guaranty, any Credit, or any Security on anyone or more occasions shall operate as a waiver of such right on any other occasion; and no single or partial exercise of any right under this guaranty, any Credit, or any Security shall preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. Landlord's rights under this guaranty are cumulative and not exclusive of any rights or remedies that Landlord may otherwise have. 21. Fees and Expenses. Guarantor shall pay to Landlord all costs and expenses incurred by Landlord in administering the Lease and the Security, enforcing or protecting Landlord's rights in connection with any Credit, Security or this guaranty and in collecting payment on any Credit or this guaranty, whether or not an Event of Default (as defined in the Lease) has actually occurred or has been declared and thereafter cured, including, but not limited to, [ a] attorney's fees and paralegal fees; [b] the fees and expenses of any litigation, administrative, . bankruptcy, insolvency, receivership or any other similar proceeding; [c] court costs; [d] the expenses of Landlord, its employees, agents, and wituesses in preparing for litigation and for lodging, travel, and attendance at pretrial hearings, depositions, and trials; and [e] consulting fees and expenses incurred by Landlord in connection with any litigation. 22. Notices. Any notices required or desired to be given under this guaranty shall be in writing and shall be delivered in the manner set forth in the Lease, and if to Landlord, delivered to Landlord at One SeaGate, Suite 1500, P.O. Box 1475, Toledo, Ohio 43603, and ifto a Guarantor, to the address set forth opposite such Guarantor's signature, or to such other address as Landlord or any Guarantor may hereafter give written notice thereof. All notices shall be effective clr\hcri\saxonburg\guaranty -8- 3/14/99 "'~""",."_.,,.",/,,- 1-' _ ,~ n I ", "~~ "'" , - ~.' ':".~ mww, t ~"" ,,"" ~ - ".-' -,'-.' - ! upon the earlier of actual receipt or three days after deposit in the U.S. mail or one business day after deposit with the overnight courier. 23. Amendment. This guaranty may not be amended except in a writing sigued by Guarantor and Landlord. All references to this guaranty, whether in this guaranty or any other document or instrument, shall be deemed to incorporate all amendments, modifications, renewals and extensions of this guaranty and all substitutions therefor made after the date hereof. 24. [Intentionally Deleted] 25. Counterparts. This guaranty may be executed in multiple counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument. 26. JURISDICTION AND VENUE. GUARANTOR IRREVOCABLY SUBMITS AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING JURISDICTION OVER LUCAS COUNTY, OliO OR BUTLER COUNTY, PENNSYLVANIA FOR ADJUDICATION OF ALL MATTERS , IN CONTROVERSY UNDER THIS GUARANTY, AND WAIVES ANY OBJECTIONS TO SUCH JURISDICTION AND VENUE AND CONSENTS TO FULL FAITH AND CREDIT BEING GIVEN TO ANY DECISION OF SUCH COURTS BY ANY OTHER STATE OR FEDERAL COURT OF THE UNITED STATES OF AMERICA. GUARANTOR SHALL NOT ATTEMPT TO LITIGATE ANY MATTERS IN CONTROVERSY UNDER TliS GUARANTY BEFORE ANY COURT OR TRIBUNAL OTHER THAN BEFORE A STATE OR FEDERAL COURT HAVING JURISDICTION OVER LUCAS COUNTY, OliO. GUARANTOR WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON GUARANTOR AND CONSENTS TIlAT ALL SUCH SERVICE OF PROCESS UPON THE GUARANTOR BE MADE BY REGISTERED OR CERlil'l,hU MAIL DIRECTED TO GUARANTOR AT THE ADDRESS SET FORTH BELOW AND SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER POSTED. 27. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY WAIVES KNOWINGLY AND VOLUNTARILY THE RIGHT TO A JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] clr\hcn'\s3xonburg\guamnty -9- 3/14/99 '''i<!'l1_",C',,-, """,,__J '1,- ",- ,..~,__" I , 0 -' - e_ ~>YL '1 "~,- "~ 'c""""~';=- "~,,' ~ -" c"," ~.~ , i \' IN WITNESS WHEREOF, Guarantor executes and delivers to Landlord this Unconditional and Continuing Guaranty effective as of the Effective Date. Address: 5021 Louise Drive, Suite 200 Mechanicsburg, Pennsylvania 17055 BALANCED CARE CORPORATION ~,)(~ By: , Title: Robin L. Barhf!r Assistant Secretary TaxIDNo.: 25-1761898 i r I ,; c1r\hcn'\saxonburg\guaranty -10- 3/14/99 r'ittirfi:"~",~",. _, ,"~_,,' ,'~ , , 'I" ~,~ , - "~~"';,.'*-"" 1 " ~ ~, ~~ p 1 i i ""~'\I~",-,-",~,,,.. EXHmIT A: GUARANTOR'S CERTIFICATE Report Period: Commencing and ending Lease: Lease made by Pennsylvania BCC Properties, Inc. ("Landlord'') to Balanced Care at Saxonburg, Inc. ("Tenant'') guaranteed by Balanced Care Corporation ("Guarantor'') I hereby certify to Landlord as follows: 1. The attached [specify audited or unaudited and annual or Quarterlv. and if consolidated. so state] fmancial statements of Guarantor [i] have been prepared in accordance with generally accepted accounting principles consistently applied; [ii] have been prepared in a manner substantially consistent with prior financial statements submitted to Landlord; and [iii] fairly present the financial condition of Guarantor in all material respects as of the dates thereof. 2. As set forth in the attached fmancial statements, Guarantor has maintained the Net Worth, Cash and Cash Equivalents, Current Ratio, and Debt to Equity Ratio as required under the Unconditional and Continuing Lease Guaranty made by Guarantor in favor of Landlord ("Guaranty''). 3. To my knowledge, Tenant was in compliance with all of the provisions of the Lease Documents at all times during the Report Period, and no default, or any event which with the passage of time or the giving of notice or both would constitute a default, has occurred under the Lease Doc1llllents. 4. Guarantor was in compliance with all of the provisions of the Guaranty at all times during the Report Period, and no default, or any event which with the passage of time or the giving of notice or both would constitute a default, has occurred under the Guaranty. Executed this _ day of CORPORATFJP ARTNERSHIP LIMITED LIABILITY COMPANY GUARANTOR: By: 'Title: clr\bcn\saxonburg\guaranty 3/14/99 ~."., '.' " ,"' ,~," - , r~ 0.' ~~ .".~.~. "'-"W''''''"'''''"'''H'~''~r ,in] JRjijlip"u ','rr""ThrifHj"'.' ~ ~ w. !i- f'( 8 f j:) """ ........... ~~ .......... ~ Crt '.'.'..' .{) () ~ -..J \,j,) Cif:J - Ft ~ ':') f< '-C... !l~L"", , ~'''''C''',,",.-"',,~,,,",,, __". ,M~""''''''--'"".''''1 ',' -I", 4,-~"~''-'''" ,!l'J..fflf-,:,,,,:~., ,~,_,~f~~~If~~"lI?;.~~~~il"*'''*'~'<;-:''i1-'19''~,'ii\',iiij(~,~~~~~.r, ;," ~~r., . SHERIFF'S RETURN - REGULAR - CASE NO: 2001-07078 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUM~RLAND PENNSYLVANIA BCC PROPERTIES IN "'iIVS 'c~ BALANCED CARE CORPORATION BRYAN WARD , , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, was served upon says, the within COMPLAINT & NOTICE BALANCED CARE CORPORATION the DEFENDANT - ... , at 1155:00 HOURS, on the 20th day of December, 2001 at 1215 MANOR DRIVE MECHANICSBURG, PA 17055 - .... ..... -, by handing to KIM WASHINGTON, RECEPTIONIST AND ADULT IN CHARGE ... a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 7.80 .00 10.00 .00 35.80 Sworn and Subscribed to before me this ?~ day of Q,.....} J.vv;L..- A.D. n.. I. (l 7vt.&.-..) ./ ~thonotary .~ i~'-.W'!","',,,,-,,~wu,, ,~if .: ~,v~ " ""'I ~T ,,, So Answers: ~~~~ ... .... R. Thomas Kline .~ . 12/26/2001 WHnS B: Wi"MS ~ L I , ~rjff' . . . , ~~ ~~,., ",.. . 111~ ~",q'kW::-, 1r''','".'J;:tT\!T r ~ '-J --J 1 ? ... WHITE AND WILLIAMS LLP By: Steven E. Ostrow, Esquire Dawn L. Vahey, Esquire Identification No.: 50568, 8794 1800 One Liberty Place Philadelphia, Pl\ 19103-7395 (215) 864-7000 Attorneys for Plaintiff PENNSYLVANIA BCC PROPERTIES, INC. One SeaGate, Suite 1500 P.O. Box 1475 Toledo OH 43603, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA. Plaintiff No. 2001-07078P v. BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, PA 17055, Defendant PRAECIPE TO DISCONTINUE ACTION TO THE PROTHONOTARY: Kindly discontinue without prejudice the above-captioned action pursuant to Pa.R.Civ.P. 229(a). WHITE AND WILLIAMS Dated: February 26, 2002 BY:/~ &- Steven E. Ostrow, Esquire Doo#: 1277037 vi "K:,,*:J; 'I,' "" ~",-._", ., j, .' ,n, _, :', , '-,'"- .- "-< ~"~ ,^,~ , ,~. ~ rj _ Ii '.' WHITE AND WILLIAMS LLP By: Steven E. Ostrow, Esquire Dawn L. Vahey, Esquire Identification No.: 50568, 8794 1800 One Liberty Place Philadelphia, PA 19103-7395 (215) 864-7000 Attorneys for Plaintiff PENNSYLVANIA BCC PROPERTIES, INC. One SeaGate, Suite 1500 P.O. Box 1475 Toledo OH 43603, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff No. 2001-07078P v. BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, PA 17055, Defendant CERTIFICATE OF SERVICE I, Dawn L. Vahey, Esquire, hereby certify that on February 26, 2002 I caused a true arid correct copy of Plaintiff's, Pennsylvania BCC Properties, Inc. 's, Praecipe to Discontinue Action, to be served via first class mail, postage pre-paid upon the following: BALANCED CARE CORPORATION 1215 Manor Drive Mechanicsburg, PA 17055 Dated: February 26, 2002 (~ Dawn L. Vahey, Esquire WHITE AND WILLIAMS LLP 1800 One Liberty Place Philadelphia, PA 19103 Telephone: (215) 864-6808 :'}J~W.C ~ ,~~'=__ "''-, e,_ ",:".0":'. 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